- In November I wrote in Jurist on a Third Circuit panel’s refusal to order that sports great Jim Thorpe be disinterred and reburied under provisions of the Native American Graves Protection and Repatriation Act (NAGPRA); in response, Elizabeth Varner, Diane Penneys Edelman and Leila Amineddoleh of the Lawyers’ Committee for Cultural Heritage Preservation argue that the panel could have based its result on specific language in the statute rather than via the roundabout path it did take [Jurist]
- Electing judges, a relic of Jacksonianism, still generating problems today [John Steele Gordon, Commentary]
- “Obama issues ‘executive orders by another name'” [USA Today on Presidential “memoranda”; earlier on executive orders]
- “Legislators Say E-Cigarette Companies Are Bound by an Agreement Reached Before They Existed” [Jacob Sullum]
- Woman upset at exclusion of service kangaroo but agrees to leave McDonald’s [AP, Wisconsin News, earlier (although local law may vary, federal government these days takes view that aside from qualified dogs and some miniature horses, ADA does not require businesses to accept customers’ service animals)]
- Join the crowd: “Various plaintiffs v. various defendants,” an actual case caption [Lowering the Bar]
- “..the very kind of odious racialization of politics that Congress wrote the Voting Rights Act to forbid” [Ilya Shapiro]
Vaccines: plenty of blame to go around
Within the past 72 hours most of the energy on measles and vaccination has moved into hating the opposite Red or Blue team, so at least that’s normalized.
The problem would be a much easier one if only one side were implicated, though. As one who focuses on the legal system, I’ve written mostly about the role of litigation in hampering immunization [Overlawyered, Point of Law coverage over the years] with occasional attention to the role of America’s Most Irresponsible Public Figure®, attorney and Rolling Stone anti-vax author Robert F. Kennedy, Jr.
But it isn’t just the legal system, nor is it just one side of familiar ideological conflicts. “Look closely at these poll numbers before you decide you know which ‘side’ is at fault in the vaccination debate,” notes author Terry Teachout. It’s politicians from both parties, along with various commentators and organizations from both the less-government and the more-government side of the spectrum. If you’re not ready to acknowledge harms done by people on your “own” side (left, right, libertarian, traditionalist or whatever) you’re probably not helping the vaccination debate.
At the Atlantic, Conor Friedersdorf makes a case for friendly persuasion over TwitterShaming, channeling the spirit of a letter by children’s author Roald Dahl that has been much noted in recent days.
More: Richard Epstein via Roger Pilon (against common-law-will-work-things-out wishful thinking: “It is sheer fantasy to think that individuals made ill could bring private lawsuits for damages against the parties that infected them, or that persons exposed to imminent risk could obtain injunctive relief against the scores of persons who threaten to transmit disease. The transmission of disease involves hidden and complex interconnections between persons that could not be detected in litigation, even assuming that it could be brought in time, which it cannot.”)
Don’t tag the courthouse lobby with graffiti
Good advice anywhere, including New Zealand. [Dominion-Post via Lowering the Bar]
“Taxation by citation”
Missouri lawmakers are discussing a bill that would discourage speed traps and excessive municipal reliance on fines by providing that revenue from traffic citations could not exceed 10 percent of a town’s revenues, down from 30 percent currently. [St. Louis Public Radio]
Former St. Louis County Police Chief Tim Fitch testified in favor of Senate Bill 5 Wednesday before the senate committee on local government.
“We are not supposed to be in the business, in law enforcement, of generating revenue for the cities,” Fitch said. “I think, personally, municipal courts should be able to recover their costs, but they shouldn’t be profit generators. It’s not a business; you’re not supposed to be able to buy chairs for the mayor’s office with traffic ticket fines.”
The bill’s sponsor, state Sen. Eric Schmitt (R-Glendale), cited the way traffic citations can snowball with late fees, doubling or tripling of fines, arrest after missed court dates, and loss of jobs. Many towns, on the other hand, don’t want to lose the revenue:
City officials, including a few mayors such as Cool Valley Mayor Viola Murphy, testified against the bill.
“You have money that comes in, but it goes right back out,” Murphy said. “It goes back out to different funds that are needed … I wouldn’t want to see (the) battered women’s fund cut; I wouldn’t want to see police training cut.”
Labor and employment roundup
- Jury convicts Ironworkers Local 401 boss in union violence case [Philadelphia Inquirer, CBS Philly, earlier here, etc. on Quaker meetinghouse arson and other crimes] Pennsylvania lawmaker proposes to end unions’ exemption from laws defining crimes of harassment, stalking, threatening [York Dispatch; more on exemption of unions from these laws]
- Emergent regime under federal law: if you’ve ever offered light duty to a disabled worker or returning injured worker, you’d better offer it to pregnant worker too [Jon Hyman]
- Everything you know about company towns is wrong [Alex Tabarrok]
- “The EEOC issues you’ll want to keep an eye on in 2015” [Littler Mendelson via Tim Gould, HR Morning]
- Sued if you do: employers struggle to navigate between government rules encouraging, penalizing hiring of applicants with criminal records [WSJ, paywall] “Watch Your Back: The Growing Threat of FCRA Background Check Class Actions” [Gregory Snell, Foley & Lardner]
- “Nearly 30 Percent of Workers in the U.S. Need a License to Perform Their Job: It Is Time to Examine Occupational Licensing Practices” [Melissa S. Kearney, Brad Hershbein and David Boddy, Brookings via John Cochrane]
- “The Effect of Mandatory Sick Leave Policies: Reviewing the Evidence” [Max Nelsen] “Popularity of Obama’s paid sick leave proposal depends on workers not realizing it ultimately comes out of their paychecks.” [James Sherk]
Long after the accusation
Seven-year-old accuses teacher of shoving him, teacher is jailed and fired, a big lawsuit follows. But ten years later their lives once again intersect…. [Marc Fisher, Washington Post Magazine; Josh Kaplowitz; Raynard Ware; and particularly recommended, Fisher’s 2003 story (“He began his teaching stint with idealism. And ended it in jail”)]
Minimum wage closes much-loved S.F. bookstore
Don’t believe minimum wage hikes hurt real people? After March 31, a famed sci-fi bookstore on Valencia St. in San Francisco’s Mission District will no longer be able to cater to your taste in fantasy:
The change in minimum wage will mean our payroll will increase roughly 39%. That increase will in turn bring up our total operating expenses by 18%. To make up for that expense, we would need to increase our sales by a minimum of 20%. We do not believe that is a realistic possibility for a bookstore in San Francisco at this time.
And this, which speaks for itself:
In November, San Francisco voters overwhelmingly passed a measure that will increase the minimum wage within the city to $15 per hour by 2018. Although all of us at Borderlands support the concept of a living wage in [principle] and we believe that it’s possible that the new law will be good for San Francisco — Borderlands Books as it exists is not a financially viable business if subject to that minimum wage. Consequently we will be closing our doors no later than March 31st. The cafe will continue to operate until at least the end of this year.
Early reactions from customers online run heavily to two themes: 1) anguish that a beloved cultural institution is passing from the scene and 2) reflections that they, the fans and customers, had supported the minimum wage hike too when it was on the ballot. (It might restrict businesses’ rights, but who cares about that?) But in this world — as in so many of the well-crafted alternative worlds of science fiction — the link between actions and their logical consequences, foreseen and intended or otherwise, is not to be broken. [Reprinted from my post at Cato at Liberty]
Coyote read the letter in recognition:
I found the language here familiar because I spent most of last year writing such letters to angry customer bases. In our case, fortunately, we had the ability to raise prices so the letters were to defuse customer irritation rather than to announce a closure.
And Mark Perry at AEI identifies why a bookstore in particular cannot adjust the way a restaurant or a dry cleaner might:
There’s a limit to how much a bookstore can increase book prices to offset higher labor costs because the publisher sets the list price of the book and it’s printed on the book cover.
Meanwhile, in Philadelphia, a new minimum wage law hits nonprofits, which ask for more taxpayer money so they can comply [Inquirer]
EEOC v. Abercrombie & Fitch: employers as mind-readers
The Supreme Court is considering the case of a woman who sued torrid-youth retailer Abercrombie & Fitch, saying it discriminated against her based on religious belief when it failed to waive its “Look Policy,” in which sales personnel are expected to wear only clothes sold by the store, to accommodate her modesty headscarf. Never mind whether this demand would be a reasonable one in itself; the case has gone up to the U.S. Supreme Court in large part because of a second issue, whether the store was legally obliged to grasp the situation intuitively as based on religion and pre-emptively accommodate Samantha Elauf “even though Elauf never informed them that she would need a religious accommodation.” A district court ruled that it was so obliged, the Tenth Circuit reversed, and now the Supreme Court is hearing the case at the EEOC’s request.
Requiring employers to offer a religious accommodation before they are on notice that one is sought requires them to act on “crude stereotypes or pry into employees’ personal lives,” write Ilya Shapiro and Julio Colomba. Not all employee requests on subjects such as modesty, diet, or weekend attendance are associated with religious affiliation and observance, while conversely many persons with genuine or sincere religious affiliation or belief do not conform to stereotypical expectations about what their religion might require of them in the workplace. Individual employees are thus “in a significantly better position to identify conflicts than employers.” The Cato Institute has filed an amicus brief on Abercrombie’s side arguing that the Court should reject the EEOC’s position as unworkable, unfair, and not required by the statute.
Related: Eugene Volokh has been posting on religious-exemption and religious-accommodation law at Volokh Conspiracy. For those who imagine, reading the Hobby Lobby and state-RFRA coverage, that religious exemptions have mostly been favored by conservatives over liberal opposition, he reminds us that the actual history is nearer the opposite. And he explains why his own view is that an optimal approach would include a mix of legislatively and judicially crafted (consistent with legislative wishes) religious exemptions and accommodations, but not necessarily a constitutional entitlement to accommodation.
Harvard study: lawyers tilt left, judges don’t
A new study out of Harvard finds that lawyers in the United States lean left politically — though not nearly as far left as do law professors — while judges’ political views by contrast tend more toward the middle of the spectrum. An author of the study concludes something’s wrong with the judges. Oh, Harvard, don’t ever change [Adam Liptak, New York Times]
P.S. And in case you hadn’t guessed, lawyers are phenomenally active in the political process:
The study is based on an analysis of the campaign contributions of American lawyers, a group that turns out to be exceptionally active in the financial side of elections.
Of the 975,000 lawyers listed in 2012 in the Martindale-Hubbell legal directory, 43 percent had made contributions to state or federal candidates — including state judicial candidates — since 1979. That is about 10 times the rate of the voting-age population.
One difficulty with the study’s approach, as Liptak notes, is that contributions may reflect factors distinct from ideological leanings, such as economic self-interest. Certainly some lawyers have no terribly strong political views of their own but regard Democratic policies as more conducive to the prosperity of the legal sector or their own particular firm.
Sheldon Silver and lawyers in politics
Sheldon Silver’s arrest prompts Jeffrey Toobin to relate a war story regarding the now-defunct law firm known as Morris Eisen, P.C., “an outfit so extravagantly corrupt, so hilariously dishonest, and so creatively malign as almost to defy belief.” (I’ve written a number of times about the Eisen firm myself.) Eisen’s son-in-law, who had gotten his start with the firm, went on to found the firm of Weitz & Luxenberg, where Silver had his no-visible-duties job and to which he occasionally sent lucrative asbestos referrals from his friends at the Columbia clinic and elsewhere.
Weitz & Luxenberg (which has not been charged with any wrongdoing in the federal investigation, and says it has asked Silver to take a leave of absence) is also a big political player nationally, not just in New York. As Kim Strassel notes at the WSJ, “Then Senate Majority Leader Harry Reid’s top contributor from 2009 to 2014 was Weitz & Luxenberg. The firm played the same role for Bruce Braley, the trial-lawyer Democrat who just lost an Iowa Senate race.” The other large asbestos firm to receive lucrative patient referrals from Dr. Robert Taub’s now-discontinued Columbia University mesothelioma center is the Simmons firm of Illinois, another big political donor that Strassel says has been the single biggest backer of Sen. Dick Durbin (D-Ill.).
Previously on the Silver arrest here and here. More: “Tarnished Silver: Speaker’s arrest upends most everything in Albany” [Andrew Hawkins, Crain’s New York (“his support for the teachers’ union has kept education reformers at bay”); Henry Goldman, Bloomberg; Wayne Barrett on Silver’s “Friends of Shelly” network of pals, including Chief Judge Jonathan Lippman (“In his varied posts, Lippman has long overseen the very courts hearing the asbestos and other cases brought by Silver’s firm.”)
And this Joseph Nocera column from the weekend, which is particularly strong on Silver’s influence over the judiciary in New York, built up through methods all “perfectly legal.” But note this NYT correction stating that Nocera’s discussion of the judiciary in that column was “premised on several factual errors.” (More on that: New York Sun.) The New York Post believes the feds are sniffing around Manhattan trial courts.