Way to incentivize pitiless enforcement: Louisiana may double littering fines, with the extra money going toward the pensions of the ticket-writers. What could go wrong? And will we start acting all surprised if officers begin ticketing retirees who throw bread to pigeons in the park, anglers who dump their unused worm supply back on the ground before heading home, or 12-year-olds who spit a cherry pit onto the grass? [New Orleans Times-Picayune] Our law enforcement for profit file is here.
A historian indicts “food Luddism”
Don’t miss what Rachel Laudan has to say about the deprecation of industrially produced food in favor of all that is thought to be artisanal, local, seasonal, traditional, and natural. It’s full of policy implications and makes a super-useful gloss on the work of writers like Michael Pollan and Mark Bittman. [Jacobin] She’s also interviewed at shorter length by Todd Kliman at Washingtonian.
June 3 roundup
- Ohio appeals court: code enforcement officers in town of Riverside can be personally liable for towing cars off man’s property without due process [The Newspaper; Vlcek v. Chodkowski, Second Appellate District, Montgomery County]
- “FDA’s proposed cigar crackdown could effectively ban up to 80% of stogies currently sold in US” [James Bovard, Washington Times; earlier here, here]
- Don’t decriminalize subway farebeating, says Nicole Gelinas, it’s a deliberate theft and a damaging one (though “enforcing the fare helps enforce New York gun laws” may not work as an argument unless you admire those gun laws) [New York Post]
- Lawyers take Fifth and (via their attorney) blame paralegal over DUI setup of a trial opponent [ABA Journal; Adams and Diaco, Florida]
- “The Questionable History of Regulatory Reform Since the APA” [Stuart Shapiro and Deanna Moran, Mercatus]
- Did American rebels of 1776 fight for English liberties, or universal Rights of Man? [David Boaz, Cato, taking issue with Daniel Hannan]
- “Appeals court scolds Apple monitor, but does not remove him” [Jeff John Roberts, Fortune; Eriq Gardner, THR; Colin Lecher, The Verge; earlier]
“Is There A Duty To Test A Chicken McNugget?”
Lawsuits alleging the finding of extraneous objects in food are rather common; lawsuits demanding that mass-market food items be inspected for such, less so [Chicago Tribune via Kyle White, Abnormal Use]:
The suit contends that McDonald’s employees failed to inspect and test the Chicken McNugget in question for bone fragments prior to serving it to Anderson.
You’d think that would help solve the problem of how to keep employment up at the fast-food chain after the robot cashiers take over. But not so fast — turns out there are chicken x-ray machines.
Supreme Court rules for Abercrombie hijab claimant
I’ve got a new post up at Cato about the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores Inc. The Court’s 8-1 ruling on fairly narrow grounds in favor of the headscarf-wearing claimant isn’t very surprising, for reasons I explain in the piece. The ruling could expose employers to more liability, particularly of the sued-if-you-do, sued-in-you-don’t variety, since it encourages employers to pry into employees’ religious views or adopt stereotyped views about what their religious scruples should be presumed to be. Still, eight Justices were content to resolve the dispute on relatively dry statutory interpretation grounds, with only Justice Clarence Thomas interested in interrogating the law at a more fundamental level. (Why, he wonders, is equal treatment based on non-religious considerations now considered “intentional discrimination” based on religion?)
P.S. More coverage: Daniel Fisher, Daniel Schwartz, Philip Miles. (More: Marci Hamilton.) And when might a National Review author favor limiting private employers’ liberty? When it’s a religious discrimination case.
Schools roundup
- Following student complaints, Northwestern Prof. Laura Kipnis investigated by her university over an essay she wrote on campus sexual politics [Jonathan Adler and more, Chronicle of Higher Ed (Kipnis cleared amid nationwide furor), Glenn Reynolds] Flashback: How NPR, the Center for Public Integrity, and federal officials fueled the campus sex assault panic [Christina Hoff Sommers, The Daily Beast, January] Harvard lawprof Janet Halley, who battles for rights of Title IX accused, is anything but conservative [Harvard Crimson] “The pretense of ‘neutrality’ … has its roots in privilege.” Popehat’s wicked satire of academia looks so real;
- Throwing Skittles on a school bus = “interference with an educational facility” [Louisiana, Lowering the Bar]
- To reduce stigma, or so it’s said, Maryland will serve free school breakfast and summer meals to more children whether they’re poor or not. Why cook for your kids when the state will do it? [my Free State Notes post]
- Will high school football still be around in 2035? “Iowa Jury Awards Injured Ex-High School Football Player $1M” [Insurance Journal]
- “Maryland’s ‘free range’ parents cleared of neglect in one case” [Washington Post, earlier]
- St. Paul, MN schools in recent years embraced latest progressive nostrums on discipline, mainstreaming, cultural difference. Results have not been happy [Susan Du, City Pages]
- “Two-Thirds of Risk Managers Say Frats Are Major Liability” [Inside Higher Ed] California trend spreads as Connecticut Senate passes affirmative consent bill for college disciplinary policies [West Hartford News/CT News Junkie]
Now you know: rent two not one units for employee lodging
For a seasonal posting in Park City, Utah, Ruby Tuesday invited only female associates to apply as servers, citing a wish not to require males and females to room together in the company-provided housing it had lined up (and no doubt swayed at least in part by legal risks to which it would be exposed by doing so). Expensive lesson: in a settlement with the EEOC, it will pay $100,000 to two male servers who say they wanted a summer assignment at the resort. [Daily Times]
Orange County prosecutorial misconduct scandal
Orange County District Attorney Tony Rackauckas may pull out the old playbook, but it hasn’t kept the latest scandal from getting national play [OC Weekly, Dahlia Lithwick/Slate, Kevin Williamson/NRO (entire office disqualified from representation in case “following revelations that the office colluded with the Orange County sheriff’s department to systematically suppress potentially exculpatory evidence in at least three dozen cases, committing what legal scholars have characterized as perjury and obstruction of justice in the process.”]
Supreme Court and constitutional law roundup
- “Laura & Marvin Horne’s Story”, video on raisin takings case, features the great Michael McConnell [YouTube, earlier]
- Actor Edward Gero shines as Antonin Scalia in new stage play The Originalist but script doesn’t really understand originalists or Federalist Society types, thinks John McGinnis [City Journal]
- McGinnis on the difference between “big”/philosophical cases and normal cases at the Supreme Court [Liberty and Law]
- Ninth Circuit should call foul on Montana’s racial preferences in state contracting [Ilya Shapiro, Cato]
- Narrowly divided court in Wynne v. Comptroller finds Dormant Commerce Clause forbids double taxation by Maryland, which might have implications for California’s power to regulate the whole world [Michael Greve/Law and Liberty, Daniel Fisher]
- Ilya Shapiro is keeping score of how many unanimous cases Obama administration has lost before Supreme Court [twenty, as of May 1; American Spectator, auto-plays ad]
- Spokeo lawsuit under Fair Credit Reporting Act gives Court chance to clarify standing for uninjured plaintiffs [Will Baude, New York Times; Daniel Fisher]
Sen. Whitehouse urges RICO suit against climate wrongthink
Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?
Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:
In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.
By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.
Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”
P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer.