The Jones Act, which forbids coastwise trade in goods or passengers between American ports except in U.S.-made, U.S.-staffed, U.S.-owned vessels, has developed into a quintessential special interest law. It’s why Maryland and Virginia “bring in road salt from Chile rather than Ohio;” why Jacksonville, Fla. relies on coal from Colombia rather than U.S. sources; and why the economies of Hawaii, Puerto Rico and Guam are perpetually hobbled by high input costs. [Malia Blom Hill, Capital Research Center] Does it at least strengthen U.S. defense by preserving a defense-relevant merchant marine sector? The signs on that aren’t good either. [Eftychis John Gregos-Mourginakis and Joshua Jacobs, NRO; followup]
Disabled rights roundup
- U.S. Department of Justice may soon issue regulations mandating disabled accessibility for websites, a truly awful idea [WSJ, N.C. Journal of Law and Technology, Alexander Cohen, Atlas; one advocate’s view; our long-running coverage, and my two cents years back]
- Coming soon: 7% disabled-worker quota for federal contractors? [David Harsanyi, earlier here, here, etc.]
- “Disability Act Charges and Awards Skyrocket” [Corp Counsel]
- NYC: “Judge Raps Disability-Lawsuit Mill After ‘Client’ Disappears” [Daniel Fisher/Forbes, ABA Journal, John Andren/WLF, earlier on attorney Bradley Weitz]
- W.D. Va.: farmers’ markets covered by ADA as “places of public accommodations” [Bagenstos]
- Result under UK’s new version of ADA: teacher reinstated after arguing that mental disability caused him to keep student out drunk till 3 a.m. [Fox Rothschild]
- Hey, let’s start constitutionalizing disabled rights! What could go wrong? [Michael Waterstone via Bagenstos]
Great moments in immigration law (UK division)
An immigration judge has ruled that the British government cannot deport convicted drug dealer Hesham Ali, who has never been in the country legally, because he has a girlfriend and making him leave would therefore violate his “right to family life” under the Human Rights Act [Telegraph]:
He convinced a judge he had a “family life” which had to be respected because he had a “genuine” relationship with a British woman – despite already having two children by different women with whom he now has no contact.
Ali also mounted an extraordinary claim that his life would be in danger in his native Iraq because he was covered in tattoos, including a half-naked Western woman – a claim which was only dismissed after exhaustive legal examination.
Meanwhile, Ted Frank argues that the case of the Tsarnaev family points up the longstanding problem of dubious or fraudulent asylum claims [Point of Law]
Airplane child seats
Why they might not work to the overall benefit of child safety [Adam Sandberg, CEI “Open Market”]
NYC battle: can employers consider job applicants’ credit records?
Sometimes, when food choices are not involved, Mayor Michael Bloomberg is actually on the right side of controversies. One instance of that is the series of battles he’s having with the New York City Council on various bills to regulate employers. The Council recently overrode his veto of a bill creating unemployment status as a new protected class, and has pressed a paid-sick-leave bill as well. A third proposal: forbidding employers to consider job applicants’ credit records in hiring. Eight liberal-leaning states have already enacted similar measures but as the Proskauer Rose law firm explains, the NYC proposal goes further:
Unlike the vast majority of laws in effect and in legislation pending across the nation, however, the Proposal does not explicitly enumerate exceptions for managerial positions, or positions with access to bank or credit card information, Social Security numbers, significant amounts of cash, or confidential or proprietary information. Although the Proposal exempts employers required by law to run credit checks on their applicants and employees, its silence as to these other standard exceptions should give New York City employers particular pause should the Proposal become law.
Man gets into drunken fight with friend, is injured
And now William Lawler is suing the Amarillo, Tex. sports bar that served both of them earlier in the evening, saying it should have cut them off. The suit, which seeks $1 million or more,
also claims the two had an “amiable relationship, and would have never fought were it not for their extreme level of inebriation.”
Lawler’s lawyer Ryan Turman said he thinks they have a solid case.
“We feel like we’ve got solid facts. We feel like Pink is responsible,” he said. “You just trust a jury to do what is right on these.”
He said the lawsuit was filed in accordance with the Dram Shop Act.
[Amarillo Globe-News, more, Jon Mark Beilue column; & welcome Above the Law readers]
Mandatory nap rooms in offices?
Some eye sleep patterns as the next frontier for government intervention in the name of public health. [Cohen, Prawfsblawg]
“Oregon police officer fired after drunken driving crash sues city, cites disabilities law”
“A police officer fired for driving drunk in an unmarked police car while off-duty has filed a $6 million lawsuit against the city of Gresham, the police chief and others, alleging his rights were violated under the Americans with Disabilities Act. The lawsuit filed in Portland alleged the officer, Jason Servo, was suffering from alcoholism, a recognized disability under the act, and shouldn’t have been dismissed.” [AP] In my book The Excuse Factory I sketched some of the history of how alcoholism (at least when the subject declares a willingness to participate in rehab) came to be protected under the ADA.
Judge Posner and the elusive confidential informant
To allege scienter (intent or knowledge of wrongdoing) in securities fraud cases, lawyers sometimes avow to the court that they have one or more confidential sources who tipped them off to the wrongdoing. If the court accepts this story, they may keep a case alive for which there would otherwise be no or inadequate evidence. Trouble is, the confidential informants can be, if not entirely a mirage, then flimsier on inspection than the court might have assumed. Cory Andrews of WLF tells of a recent ruling by Judge Richard Posner in a case called City of Livonia Employees’ Retirement System v. Boeing:
Seeking hundreds of millions of dollars in damages, plaintiffs filed a putative class action alleging that Boeing Company, along with its CEO and the head of its commercial aircraft division, committed securities fraud in violation of federal law. The district judge dismissed the complaint for failing to allege sufficient facts to properly plead the requisite scienter for fraud. Not to be deterred, plaintiffs promptly filed an amended complaint, but this time with detailed bombshell revelations from a confidential source. Ultimately, however, the allegations in the amended complaint could not withstand even the slightest scrutiny.
As Posner describes it:
The plaintiffs’ lawyers had made confident assurances in their complaint about a confidential source — their only barrier to dismissal of their suit — even though none of the lawyers had spoken to the source and their investigator acknowledged that she couldn’t verify what (according to her) he had told her.
Their failure to inquire further puts one in mind of ostrich tactics —of failing to inquire for fear that the inquiry might reveal stronger evidence of their scienter regarding the authenticity of the confidential source than the flimsy evidence of scienter they were able to marshal against Boeing.
Noting that the same law firm [Robbins Geller Rudman & Dowd] had been accused of “similar conduct” in three other reported cases, Posner [on behalf of a unanimous panel] remanded the matter back to the district judge, who would be in a better position to calculate a dollar amount for Rule 11 sanctions.
Scales of justice: lawyer represented fish after its demise
A noted Swiss animal rights lawyer who’s campaigning for wider assignment of lawyers to represent animals’ interests “once represented a dead fish that had been caught, killed, and eaten” [Global Legal Post via John Steele, Legal Ethics Forum; title courtesy @KenParish1]
P.S. From last year (but new to us), this Jon Stewart segment on the unsuccessful PETA lawsuit against Sea World for holding whales in “involuntary servitude.”