- Oops! “Tulane sophomore unknowingly named as plaintiff in lawsuit over college bribery scandal” [John Simerman, New Orleans Advocate] “Admissions scandal class action is ‘fascinating’ but likely doomed – experts” [Alison Frankel, Reuters] Plus advice from Ken at Popehat;
- Some problems with the idea of a sweeping presidential order to decree free speech on campus — and a promising if more modest step the White House could take instead [Donald Downs, Cato] Two more views on how universities can “fend off outside intervention and, more importantly, be true to their own mission… [by] nurturing a better free speech culture” [Keith Whittington, parts one and two; John McGinnis]
- “‘If racial preference [in college admissions] is unjust, then it doesn’t magically become just because people notice some other injustice that has different beneficiaries,’ Olson said. ‘Two things can be unjust at the same time, and two injustices do not add up to one justice.'” [John Blake, CNN, quoting me on the argument that the admissions scandal somehow proves preference advocates’ case]
- Harvard lawprof and residential dean Ronald Sullivan under fire for defending unpopular figures facing MeToo charges
[Randall Kennedy, Chronicle of Higher Education; Conor Friedersdorf (quoting HLS prof Janet Halley: “Finally, the ‘climate survey’ technique is a dangerous precedent as a matter of employment rights and as a threat to academic freedom. It’s a thinly veiled version of the heckler’s veto.”)] - The Snuggle is real: very long list of demands by Sarah Lawrence students occupying campus building includes consistent access to detergent and fabric softener [Sarah Lawrence Phoenix; Pamela Paresky, Psychology Today] Rather more seriously, the students demand the college reconsider the tenure status of a professor who published a mildly conservative op-ed in the NYT [Colleen Flaherty, Inside Higher Ed]
- Even if occasionally subverted by dishonest actors, standardized tests remain the gold standard among transparent, objective ways to improve the accuracy of college success prediction [Jenna A. Robinson, Martin Center]
Connecticut high court, PLCAA or no PLCAA, allows Remington suit
Over a dissent from three of its seven justices, the Connecticut Supreme Court has green-lighted a suit over purportedly negligent marketing of the Bushmaster rifle used in the Sandy Hook massacre, even though the firearm in question was never marketed or sold to the killer, who stole it from his mother who had purchased it lawfully long before. To do so, it had to get around a specific federal law (the Protection of Lawful Commerce in Arms Act, or PLCAA) intended to stop exactly this kind of suit, which stretches available legal materials to an extreme so as to enable gun control objectives to be pursued through tort lawsuits. It resorted to ruling that the Connecticut Unfair Trade Practices Act (CUTPA), a state unfair-trade-practices law, is included as a “predicate statute” in an exception to PLCAA allowing suit in cases where guns have been sold in violation of a law or regulation. [Soto v. Bushmaster, majority opinion and dissent; Chris Woodyard, USA Today]
Writes Kevin Williamson: “The lawsuit against Remington is bogus. It has little to do with Connecticut commercial law and everything to do with a substantive gun-control agenda and the opportunistic inclination to wring money from institutions that have a great deal of it.”
I wrote about the suit at an earlier stage here and about PLCAA (for which I was a witness before the House Judiciary Committee at the time) here and here. From my 2014 piece:
In 2005 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) specifically to put an end to product liability suits over guns that had been made and sold in accordance with law. The courts have generally enforced it as written – even the Ninth Circuit’s famously liberal Judge Stephen Reinhardt agreed that it was constitutional – which has mostly, if not entirely, led to the dismissal of such lawsuits. …
Let’s not forget that calculation of the relatively shallowness of pockets of gun-related businesses was part and parcel of the abusive strategy of the politicians and lawyers promoting the suits back then:
because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). …the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.
We may hope that the courts are alive to the ongoing importance of PLCAA, and willing, as appropriate, to apply the tool of sanctions against legal strategists and campaigners who would seek to circumvent its provisions in the name of ideological grandstanding, profit, or revenge.
More: Jacob Sullum (distinguishing negligent entrustment theory also promoted in suit, which was rejected in new ruling).
Judge rules North Carolina legislature illegitimate
“Epic can of worms”: a North Carolina judge has ruled that because of racially gerrymandered districts the state’s lawmakers have no legitimate authority to propose amendments to the state’s constitution. The effect is potentially to nullify two amendments that the state’s voters approved in November, one on voter ID and one on capping state income taxes. [Alan Greenblatt, Governing]
But wait: wouldn’t declaring a legislature illegitimate mean nullifying a lot of legislative actions that are pleasing to progressives, such as funding and expanding the public sector in various ways? Conveniently, it seems Wake County Superior Court Judge G. Bryan Collins has not signaled any willingness to strike down decisions made by a simple legislative majority, which would therefore be regarded as legitimate and allowed to stand. Gerrymanders, of course, do have a direct influence on whether a legislature adopts measures subject to simple majority vote, even as they do not have a direct influence on whether voters approve or do not approve a constitutional amendment for which balloting is statewide.
It will be curious to see whether this opinion stands up on appeal, even at the North Carolina Supreme Court, which I understand has issued some strenuously progressive rulings in recent years.
Social media law roundup
- Was this an entry in a contest to draft the most unconstitutional bill? “Florida Bill Would Make It a Crime for Minors to Post Pictures of Guns on Social Media” [Eugene Volokh]
- “Everyone involved in politics has bad days, when one’s interests conflict with one’s ideals.” But conservatives should resist the temptation to call in government to regulate the Internet [John Samples] New Republican interest in antitrust explainable by wish to bust corporations considered unfriendly to Republicans [Steven Greenhut]
- Lafayette, La. mother jailed after posting video to social media showing fight between two high school students [Megan Wyatt, The Advocate; editorial; Dave Cohen, WWL]
- Suit over online harassment could puncture liability protections of Section 230, some hope and others fear [Elizabeth Nolan Brown]
- “So, to be blunt here, Warren’s campaign screwed up with its ad design [by] including the [Facebook] logo.” The really bad part, though, was the spinning afterward [Scott Shackford]
- Tweeting wrong sorts of things about gender can result in a visit from the British police, cont’d [Tom Potter, Ipswich Star (Suffolk; quoting local activist who “said police had a right to intervene if it was felt the posts were causing offence.”)] And another case from Hitchin, Hertfordshire [Martin Beckford, Daily Mail; earlier here, here, etc.
- Content moderation “is, in many ways, the commodity that platforms offer.” Will they be left free to offer it? [Will Duffield, Cato Journal, reviewing Custodians of the Internet by Tarleton Gillespie]
DoJ snubs whistleblower who shorted stocks of target firms
“The Trump Justice Department, following a tougher policy toward dubious False Claims Act lawsuits by private citizens, has moved to dismiss a pair of lawsuits by a former hedge-fund manager who shorted stock in pharmaceutical companies he accused of a wide-ranging price-fixing conspiracy.” [Daniel Fisher, Legal NewsLine/Forbes]
College admissions scandal: “most of these kids don’t even have issues, but they’re getting time.”
For 20 years I’ve been writing about how the gaming of disability diagnoses in schools helps affluent families. And I was hardly alone: in 2004 Craig Lerner wrote a paper entitled: “‘Accommodations’ for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites?” There hasn’t been much interest in fixing things.
Now test accommodations have surfaced as one key theme in the big and colorful new college-admissions scandal. “Particularly glaring in the 204-page indictment is that the majority of the children, whose parents were charged Tuesday, had seamlessly secured disability accommodations on their standardized tests. This enabled them to have additional time on the exams and to take them alone with the proctor at a private testing facility that was located, in some cases, thousands of miles from the test-takers’ residences.” [Michelle Robertson, SFGate/New Haven Register] More: Akira Olivia Kumamoto, Sacramento Bee; FBI affidavit on new scandal; Doree Lewak, New York Post last year on accommodations.
March 13 roundup
- “Near the end of her new proposal to break up Facebook, Google, Amazon, and Apple, Senator Warren asks, ‘So what would the Internet look like after all these reforms?’ It’s a good question.” [Geoffrey Manne and Alec Stapp, Truth on the Market/CNBC]
- Floral arrangements as constitutionally protected expression: Cato files amicus on behalf of First Amendment rights of Washington florist Barronelle Stutzman not to serve a wedding of which she disapproves [Ilya Shapiro and Patrick Moran, Washington Supreme Court]
- “Over several months, man repeatedly threatens his next-door neighbor with profanity, racial epithets. The police investigate, warn the man to stop, and then arrest him when he does not. Eventually, the man leaves the apartment complex after the landlord declines to renew his lease. Can the neighbor sue the landlord for failing to intervene sooner? The Second Circuit says yes, the neighbor’s Fair Housing Act claims should not have been dismissed. Dissent: The FHA doesn’t say landlords can be liable for tenant-on-tenant harassment; more likely it precludes such claims.” [IJ “Short Circuit” on Francis v. Kings Park Manor, Second Circuit; Scott Greenfield]
- Gender identity: R. Shep Melnick on where the momentum is headed among judges, regulators, and administrators [Liberty and Law]
- Comfort for lawmakers means discomfort for taxpayers? Study finds “growth in state government expenditures in warm states was higher after the introduction of air conditioning” [Thomas A. Garrett and Natalia A. Kolesnikova, Cato Journal]
- “Succubustic” is not a word you should probably use at all, certainly not to describe any real person, and most definitely not if you are a lawyer to describe a judge [Lowering the Bar]
Homeless encampments will stay put under Los Angeles settlement
“The Los Angeles City Council on Wednesday agreed to settle a pivotal and contentious case on the property rights of homeless people — a decision that is likely to limit the seizure and destruction of encampments on skid row.” Since 2016 the city has been in litigation with civil rights lawyers representing homeless persons “and two Skid Row anti-poverty groups.” Subsequently, “U.S. District Judge S. James Otero in Los Angeles issued an injunction [that] barred the city from seizing and destroying homeless people’s property on skid row unless officials could show it had been abandoned, threatened public health or safety, or consisted of contraband or evidence of a crime.” [Gale Holland, L.A. Times; Susan Shelley, L.A. Daily News] An estimated 2,000 persons live in the downtown L.A. encampments, and diseases little seen in peacetime in the modern era, including flea-borne typhus, have been making a comeback. [Anna Gorman, Kaiser Health News/The Atlantic; KCOP; earlier]
L.A. should have put the Skid Row encampments under the authority of the California Coastal Commission. That would have ended all chance that anyone could successfully assert property rights in them.
The unreliable count of hate crimes
Laws on hate crimes raise longstanding questions of fairness both in theory and application, including (when enacted at the federal level) dangers of overextension of federal criminal law and inroads on the prohibition against double jeopardy. The role of hate crimes as culture war rallying points can make things worse. In the Jussie Smollett episode, journalists came under fire for raising questions about unlikely elements of the actor’s story — Smollett had been “doubly victimized as the subject of speculation by the media industry and broader culture,” said the head of one progressive outfit — and even for hedging their stories about with words like “allegedly.”
After Smollett’s story fell apart, some advocates argued that no matter what might have happened this one time, data show that hate crimes are sharply on the rise and reports of them hardly ever prove unfounded. Is that the case? I tackle the question in a new piece at Inside Sources
An oft-repeated talking point is that FBI statistics last year, to quote Sen. Kamala Harris (D-Calif.), “revealed a 17 percent increase in the number of hate crimes in America.”
Let’s be polite and say those FBI figures are difficult to interpret….
In the state of Oregon, the college town of Eugene reported 72 hate crimes to the FBI in 2017, about as many as the rest of the state put together. According to the Daily Emerald, the difference reflects “the city’s active approach. … The city carefully catalogs reported instances … and even classifies certain crimes — such as vandalism — as a hate crime that other cities would classify in a different way.”
Word is that the Eugene approach is spreading as other cities get interested in steps such as asking officers to write up on their own initiative as a hate incident a graffiti epithet they might see, rather than only if a public complaint happens to come in.
Should those methods spread in coming years, the FBI count of reported hate incidents is sure to mount — yet still not demonstrate with any certainty a genuine rise.
For whatever reason, many of us are predisposed to accept findings that seem to highlight the prevalence of terrible injustice. The impulse to believe extends to matters of scholarship. So it was with a recently retracted 2014 study that purportedly found “structural stigma” in society shortens the lives of LGBT persons by a remarkable 12 years. The authors acknowledged that they had inadvertently committed a coding error with the data; once it was corrected, there was no statistically significant correlation at all between “structural stigma” and mortality. Yet the paper, with its inherently implausible findings, had already achieved “highly cited paper” status, and has continued to garner citations even after its retraction.
More: David Kopel 2003 (recommending stronger penalties for the perpetration of hoaxes).
Banking and finance roundup
- Progressive sentiment vs. actual progress: Philadelphia bans cashless stores [Jeffrey Miron; related, Billy Binion, Reason (council member thinks city should legislate against “elitism”), Joe Setyon, Reason (NYC)] Meanwhile, heading in the opposite direction: “California bill would require businesses to offer e-receipts” [Don Thompson, Associated Press]
- “Overhaul CRA? Why Not Eliminate It?” [Diego Zuluaga, American Banker; video of panel on CRA at Federalist Society National Lawyers Convention with Bert Ely, Deepak Gupta, Keith Noreika, and Jesse Van Tol, moderated by Hon. Joan Larsen]
- SEC should see its role as fostering, not just reining in, risk taking [Cato audio with Commissioner Hester Peirce; more from Peirce, Cato Journal]
- Your taxes pay for bad mortgage loans [Hans Bader]
- “With Emulex Corp., Supreme Court Could Raise Bar for ‘Merger Tax’ Securities Suits” [Stephen Bainbridge, WLF; Emulex Corp. v. Varjabedian]
- In car insurance, credit scores “effectively predict risk of claims within racial and ethnic groups” and banning their use would likely “result in insurers finding other, less good and possibly discriminatory methods of distinguishing high from low risks” [Luke Froeb, Managerial Econ via Alex Tabarrok]