- At least twelve Baltimore cops sought workers’ comp for stress after using deadly force on citizens [Luke Broadwater, Baltimore Sun/Carroll County Times]
- “D.C. Council votes to overhaul asset forfeiture, give property owners new rights” [Washington Post]
- A different view on Ferguson: Richard Epstein defends grand jury outcome [Hoover]
- “The House GOP leadership is blocking a police militarization reform bill from even getting a vote.” [Zach Carter, HuffPo, via @radleybalko]
- Will potential cost of citizen public records requests sink police body-camera schemes? [Seattle Times, ABA Journal]
- Marissa Alexander case, cited by critics of mandatory minimum sentencing, ends in plea deal [Brian Doherty, earlier, CBS Sunday Morning on mandatory minimum sentencing]
- Forensics guy hired by Michael Brown’s family: “If they want to think I’m a physician, then more power to them.” [Radley Balko]
- St. Louis County fines/fees: “Municipal courts charge $100 for Christmas gift of fake amnesty” [St. Louis Post-Dispatch editorial]
Eleventh Circuit slaps down overly broad EEOC subpoena
After receiving a complaint of health-status discrimination from a Royal Caribbean Cruise Lines employee, followed by a response from the company saying that the employee was a foreign national working on a foreign-flagged ship and therefore not subject to EEOC authority, the agency launched a massive fishing expedition:
(1) List all employees who were discharged or whose contracts were not renewed [from August 25, 2009, through the present] due to a medical reason.
(2) For each employee listed in response to request number 1, include the employee’s name, citizenship, employment contract, position title, reason for and date of discharge, a copy of the separation notice and the last known contact information for each individual.
(3) For each employee listed in response to request number 1, include their employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee obtained the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
(4) List all the persons who applied for a position but were not hired within the relevant period due to a medical reason
(5) For each person listed in response to request number 4, include their citizenship, employment application and related correspondence, any interview notes, the identity of the person [who] hired the employee, how the employee learned of the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
The cruise line complied in (massive) part, but not fully, “providing records for employees and applicants who were United States citizens” but not others. The agency took the dispute to court and proceeded to lose at every stage, the Eleventh Circuit being the latest to find its information demands burdensome and irrelevant: “The relevance necessary to support a subpoena for the investigation of an individual charge is relevance to the contested issues that must be decided to resolve the charge, not relevance to issues that may be contested when and if future charges are brought by others.” [Hunton and Williams; Phelps Dunbar]
Meanwhile, the commission has issued its fiscal 2014 performance report; in explaining a drop in resolved complaints, its public statement cites the “lingering effects of sequestration and the government shutdown” but not the marked skepticism that judges repeatedly showed toward EEOC positions through the year.
Politics roundup
- Latest Yank expatriate to get caught in IRS’s overseas tax/FATCA trap? None other than London mayor Boris Johnson [Robert Wood, Forbes]
- “He washes any hint of influence-peddling through the purifying font of his law firm, just as other Albany leaders do.” [Mark Cunningham, New York Post]
- Now why would Texas trial lawyer Steve Mostyn spend $1.2 million trying to get Charlie Crist elected governor of Florida, a different state? [Nancy Smith/Sunshine State News, earlier on Mostyn]
- Yes, that opinion-TweetWatch project at Indiana U. funded with federal NSF dollars was intensely if covertly political [Charlotte Allen, Minding the Campus]
- Qui tam/whistleblower plaintiff bar finds bright spot in election with elevation of Iowa Sen. Grassley who has so often been helpful to them in past [WSJ Law Blog, earlier]
- Considerable turnover in election results for state attorneys general (due to open seats, of course; you thought incumbent AGs get defeated?) [NAAG, Bingham McCutchen/Lexology]
- “John Doe froze conservative speech, targets say” [M.D. Kittle/Wisconsin Reporter, earlier]
Obama: let’s step up federal cop subsidies
It’s like a parody of one’s worst expectations: President Obama refuses to curtail the federal police militarization program, instead calling for a big hike in federal spending on aid to local departments with the usual micromanaging strings attached. [The Guardian] The administration has now gathered some useful information on the Pentagon’s 1033 surplus-gear program, but still has no plans to improve data gathering on police use of lethal force [Washington Post editorial] More from USA Today: “The Fraternal Order of Police, the nation’s largest police union, has waged an intense lobbying campaign to keep the surplus equipment flowing,” and its executive director specifically speaks up in favor of the transfer of armored vehicles and personnel carriers. More: Trevor Timm.
Related: Conor Friedersdorf gathers stories of cops reinstated in union arbitration from Oakland, Philadelphia, Pittsburgh, Miami, Sarasota, and other cities. He concludes:
I’d rather see 10 wrongful terminations than one person wrongfully shot and killed. Because good police officers and bad police officers pay the same union dues and are equally entitled to labor representation, police unions have pushed for arbitration procedures that skew in the opposite direction. Why have we let them? If at-will employment, the standard that would best protect the public, is not currently possible, arbitration proceedings should at a minimum be transparent and fully reviewable so that miscarriages of justice are known when they happen. With full facts, the public would favor at-will employment eventually.
You can’t tackle the excessive force problem credibly unless you tackle the power of the police unions. Period.
Friday at Cato, Repeal Day celebration: “Prohibition Still Doesn’t Work”
Register here for the 5 p.m. Cato event. Description:
Featuring Walter Olson, Senior Fellow, Center for Constitutional Studies, Cato Institute & Editor, Overlawyered.com (@walterolson); Stacia Cosner, Deputy Director, Students for Sensible Drug Policy (@TheStacia); Michelle Minton, Fellow in Consumer Policy Studies, Competitive Enterprise Institute (@michelleminton); moderated by Kat Murti, Digital Marketing Manager, Cato Institute (@KatMurti).
On December 5, 1933, the 21st Amendment to the Constitution was ratified, supposedly ending our nation’s failed experiment with prohibitionism. Yet, 81 years later, modern-day prohibitionists continue to deny the laws of supply and demand, attempting to control what individuals can choose to put into their own bodies.
Please join the Cato Institute for a celebration of the 81st anniversary of the repeal of alcohol prohibition. Panelists will discuss modern prohibitions—from the Drug War to blue laws; tobacco regulation to transfats—drawing connections with their earlier antecedent.
Alcoholic beverages and other commonly restricted refreshments (bring on the trans fats!) will be served following the discussion.
#CatoDigital (formerly #NewMediaLunch) is a regular event series at the Cato Institute highlighting the intersection of tech, social media, and the ideas of liberty.
This event will be live-streamed and questions may be submitted via Twitter using #CatoDigital.
If you can’t make it to the Cato Institute, watch this event live online at www.cato.org/live and follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.
Dodd-Frank conflict minerals fiasco, cont’d
[reposted from Cato at Liberty]
Economic sanctions, when they have an effect at all, tend to inflict misery on a targeted region’s civilian populace and often drive it further into dependence on violent overlords. That truism will surprise few libertarians, but apparently it still comes as news to many in Washington, to judge from the reaction to this morning’s front-page Washington Post account of the humanitarian fiasco brought about by the 2010 Dodd-Frank law’s “conflict minerals” provisions. According to reporter Sudarsan Raghavan, these provisions “set off a chain of events that has propelled millions of [African] miners and their families deeper into poverty.” As they have lost access to their regular incomes, some of these miners have even enlisted with the warlord militias that were the law’s targets.
Congress added the provisions to Dodd-Frank in a fit of moral self-congratulation over making sure Americans had the chance to be ethical and thoughtful consumers of such products as jewelry and cellphones (as well as thousands of other products, as it turned out, from auto parts to the foil in food packaging). Publicly held companies would be required to report on their supply connections to “conflict minerals” such as tin, tungsten, and gold mined in war-torn areas of the Democratic Republic of the Congo. Lawmakers assigned enforcement of the law to the Securities and Exchange Commission – a body with scant discernible expertise in either African geopolitics or metallurgy – and barbed it with stringent penalties for disclosure violations, to which are added possible liability in class-action shareholder lawsuits.
Reactions to this morning’s Post account frequently employ words like “unintended” or “tragic” to describe the effect on miners of the law, which people in the Congo soon came to call “Loi Obama” – “Obama’s law”. Unintended and tragic? Maybe. But not unforeseen, because the signs that the law would backfire this way have been in plain sight for years now – as in this 2011 account by Prof. Laura Seay (via) of how “electronics companies now have a strong incentive to source minerals elsewhere, leaving Congolese miners unemployed.” Or this 2011 account by David Aronson in the New York Times of the “unintended and devastating consequences” that he “saw firsthand on a trip to eastern Congo.” Or this more recent paper by law professor Marcia Narine.
But although the evidence has been there for years, the will to believe in the law was too strong – a will fueled by anti-corporate campaigners who take it on faith that when brutalities in the underdeveloped world occur within two or three degrees of separation of the activities of multinational businesses, the right answer must be to blame and shame the businesses.
You might call it an expensive lesson for Americans too, if you assume that anything has been learned. A recent Tulane calculation found that the costs in business compliance have already topped $700 million, with billions more ahead should nothing change. Just this September, the U.S. government conceded that it “does not have the ability to distinguish” which refiners and smelters around the globe are tainted by a connection to militia groups. That is to say, the government has demanded of business a degree of certainty that it cannot achieve itself. Courtesy of UCLA corporate law professor Stephen Bainbridge, here’s a flowchart of what complying might involve for a given business.
If the new Republican Congress wants to be taken seriously about fixing counterproductive regulation, it should make the repeal of this law an early priority. (& Bader)
December 2 roundup
- “Lying to a Lover Could Become ‘Rape’ In New Jersey” [Elizabeth Nolan Brown/Reason, Scott Greenfield]
- “A $21 Check Prompts Toyota Driver to Wonder Who Benefited from Class Action” [Jacob Gershman, WSJ Law Blog]
- On “right of publicity” litigation over the image of the late General George Patton [Eugene Volokh]
- HBO exec: “We have probably 160 lawyers” looking at film about Scientology [The Hollywood Reporter]
- Revisiting the old and unlamented Cambridge, Mass. rent control system [Fred Meyer, earlier]
- Lawyers! Wanna win big by appealing to the jurors’ “reptile” brain? Check this highly educational offering [Keenan Ball]
- “Suit claims Google’s listings for unlicensed locksmiths harmed licensed business” [ABA Journal]
Posner: “selfish deal” by class counsel resulted in “outlandish” fees
“Judge Richard Posner of the Seventh Circuit Court of Appeals has unleashed another zinger at class-action attorneys, trashing a settlement over joint-pain pills that would have paid attorneys $2 million in fees, more than double what their clients got.” [Daniel Fisher, Forbes, whose own writing gets cited; opinion in Pearson v. NBTY] From the ABA Journal:
The opinion was a victory for Ted Frank of the Center for Class Action Fairness, who objected to the settlement as a class member. He told the Am Law Litigation Daily he will be citing the case in new objections to class-action settlements. So far, he says, his group has persuaded courts to wipe out $271 million in attorney fees in the 39 cases in which the center achieved some success.
“This is the best opinion out there” on class settlement issues, Frank told the Litigation Daily. “I think it will have a dramatic effect on class action settlements negotiated.”
“Some fear rioting may seal Ferguson fate for decades”
Quoted in USA Today and other papers on what can be the very long road back once a reputation for riots tanks a community’s business climate and property values. [Yamiche Alcindor, USA Today]
Public employment roundup
- Cute: Outgoing Massachusetts Gov. Patrick shifts 500 managers to union status, now incoming GOP successor can’t touch ’em [Fox Boston]
- Despite opposition from police union, Montgomery County, Md. eventually managed to correct disability scam [Washington Post editorial, Ed Krayewski]
- “Retired CUNY professor gets $560K a year pension” [New York Post]
- “L.A. Cannot Afford Budget Busting Labor Agreements” [Jack Humphreville, CityWatch L.A.] Major changes needed to Nevada public collective bargaining laws [Las Vegas Review-Journal] “States And Cities Coming To Grips With Economic Reality” [Brett Joshpe, Forbes]
- “Public-Sector Unions and Government Policy: Reexamining the Effects of Political Contributions and Collective Bargaining Rights” [George Crowley/Scott Beaulier, Mercatus, PDF]
- “Newark forced to rehire tenured teacher despite new state law” [NJ.com]
- Time Magazine says not-especially-controversial things about tenure system, gets attacked by teachers unions [Weekly Standard] Throwing their money and influence around in elections [RiShawn Biddle on Democracy Alliance, same on AFT]