Labor and employment roundup

Halliburton Co. v. Erica P. John Fund, Inc.: SCOTUS considers shareholder class actions

Andrew Grossman reports on yesterday’s oral argument in Halliburton v. Erica P. John Fund, which “may be the biggest business case of the term. …Basic [Basic v. Levinson, 1988, in which the Court dispensed with the reliance requirement in favor of the “fraud on the market” theory] came at the tail-end of the Court’s decades-long experiment in policymaking by creating and defining the contours of civil actions. … The chief barrier to overturning Basic may not be its logic, its wisdom, or even its correctness as a matter of law, but instead stare decisis.” Earlier here, here, here, and here.

More: Kaye Scholer (possible “midway position” with impact on stock price considered at stage of class certification).

Police and prosecution roundup

  • New insight into Shaken Baby Syndrome (SBS) casts doubt on criminal convictions [Radley Balko, earlier here, etc.]
  • “The Shadow Lengthens: The Continuing Threat of Regulation by Prosecution” [James Copland and Isaac Gorodetski, Manhattan Institute]
  • Police busts of “johns” thrill NYT’s Kristof [Jacob Sullum, earlier on the columnist]
  • Sasha Volokh series on private vs. public prisons [Volokh]
  • “Police agencies have a strong financial incentive to keep the drug war churning.” [Balko on Minnesota reporting]
  • Forfeiture: NYPD seizes innocent man’s cash, uses it to pad their pensions [Institute for Justice, Gothamist] “Utah lawmakers quietly roll back asset forfeiture reforms” [Balko] “The Top 6 Craziest Things Cops Spent Forfeiture Money On” [IJ video, YouTube]
  • After Florida trooper nabbed Miami cop for driving 120 mph+, 80 officers accessed her private info [AP]

Texas: a ploy fails

“Flush with trial lawyer cash, the PAC’s public face is ‘Texans 4 Justice,’ which portrays itself as a conservative grassroots group.” It didn’t work: Texas GOP primary voters yesterday returned incumbent Supreme Court justices. [Texas Observer, Houston Chronicle, earlier]

Related: Plaintiff’s lawyer Steve Mostyn, “omnipresent” in Austin, and his involvement with “Conservative Voters of Texas” [Chamber-backed Legal NewsLine]

Judge: Ecuador verdict against Chevron “obtained by corrupt means”

“U.S. District Judge Lewis Kaplan in New York said he found ‘clear and convincing evidence’ that attorney Steven Donziger’s legal team used bribery, fraud and extortion in pursuit of an $18 billion judgment against the oil company issued in 2011.” [Reuters, Bloomberg, 485-pp., 1842-footnote opinion; SFGate, Kevin Williamson, Quin Hillyer, Ira Stoll (New York politicians including Comptroller Thomas DiNapoli roped in as allies of Donziger)] We’ve been covering the story for years.

March 5 roundup

  • U.S. Commission on Civil Rights commissioners Gail Heriot, Peter Kirsanow: Administration’s new policy on race and school discipline likely to make schools more chaotic [Robby Soave, Daily Caller, 2011 related, earlier here, etc.]
  • French court: fan club members suffered legally cognizable emotional damage from Michael Jackson’s death [Lowering the Bar, earlier]
  • “The Newkirk incident demonstrates why cameras in the courtroom are a bad idea” [James Taranto, includes bonus New York Times disgrace]
  • Claim: advocates stymied firearms research over most of past two decades. Accurate? [Fox News]
  • Another look at the CPSC’s war on former Buckyballs CEO Craig Zucker [Jim Epstein, Reason, earlier]
  • Chris Christie use of monitorships in white-collar prosecutions draws renewed scrutiny [New Republic, earlier]
  • In which I am included in a list with George Will and Heather Mac Donald, all very flattering etc. etc. [Charles C. W. Cooke, NRO]
  • D.C.: disbarred lawyer sat for years as workers comp judge [Washington City Paper]
  • “German home-school family won’t be deported” although Supreme Court declines to hear asylum appeal [AP; discussion in comments earlier]

When AGs decline to defend state laws

Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?

In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.