Product liability roundup

Should the state pay the legal defense costs of acquitted criminal defendants?

Scott Greenfield, contra Radley Balko, believes the idea would prove “problematic, if not disastrous,” in real life, especially if enacted in the form of two-way fee-shifting (as distinct from a one-way fee payable only to defendants). It is worth noting that although legal systems around the world predominantly embrace loser-pays principles in civil litigation between private parties, they more or less uniformly decline to carry a similar principle over to criminal prosecution.

Discrimination law roundup

  • After being slapped down by courts, EEOC concentrates on filing fewer but bigger cases [Sue Reisinger, Corporate Counsel] EEOC scores in Cintas, UPS cases [Legal Times]
  • SCOTUS grants certiorari in retaliation mixed motives case [University of Texas Southwestern Medical Center v. Nassar, SCOTUSBlog via Marcia McCormick, Workplace Prof]
  • False Claims Act could be potent weapon for discrimination plaintiffs [Texas Law Review student note by Ralph Mayrell, PDF via Bagenstos]
  • Religious liberty compatible with gay rights so long as ambitions of anti-discrimination law aren’t allowed to run wild [Eugene Volokh as part of UCLA conference on Roe’s 40th and Lawrence’s 10th anniversary] Case of Ocean Grove, N.J. pavilion is still regularly cited as infringement on church autonomy, but it’s not that simple, since it hinges on untypical “public use” covenant of property in question [Box Turtle Bulletin]
  • For a more genuine menace to religious liberty, however, watch out for the notion of taking the Bob Jones University precedent — in which courts upheld the stripping of an educational institution’s tax exemption due to its backward racial views — and extending it into a weapon for denying tax exemption to the much broader class of institutions said to contravene “fundamental public policy” [Caroline Maia Corbin, Concurring Opinions]
  • More on the deaf lifeguard case [Jon Hyman, earlier]
  • New York Gov. Cuomo seeks one-way fee awards in state bias cases [Reuters]

Can treaties confer on Congress powers otherwise not conferred by the Constitution?

Profs. Rick Pildes and Nicholas Rosenkranz have been debating the topic at Volokh Conspiracy [Pildes first, second; Rosenkranz first, second; more] The pending case of Bond v. U.S. will give the U.S. Supreme Court the chance to revisit Missouri v. Holland, the main precedent on the point [Julian Ku, Ilya Somin, Gerard Magliocca/Concur Op, Michael Greve, earlier here and here] More: Curtis Bradley, Lawfare.

Report: marker for concussion brain damage found in living NFL veterans

As I’ve said before, if subjected to the same injury liability rules that American courts apply to other businesses, organized football is unlikely to survive. The development of a workable diagnostic test for living players would hasten this process along. [PBS] Similarly: Ta-Nehisi Coates, said before, if subjected to the same injury liability rules that American courts apply to other businesses, organized football is unlikely to survive. The development of a workable diagnostic test for living players would hasten this process along. [PBS] Similarly: Coyote.

Nice raisin crop you’ve grown there. Now hand over 47% of it to the state.

Max Boot, who has written a new book on the history of guerrilla movements, tells how Shamil, firebrand leader of a celebrated 19th-century Muslim insurgency in Chechnya and Dagestan, began to lose the allegiance of “many ordinary villagers who balked at his demands for annual tax payments amounting to 12 percent of their harvest.” Instead, they switched their allegiance to the rival Russian czar, whose demands were more modest.

Compare the pending case of Horne v. U.S. Department of Agriculture, where, as my Cato colleague Ilya Shapiro explains,

the USDA imposed on the Hornes (long-time California raisin farmers Marvin and Laura Horne) a “marketing order” demanding that they turn over 47% of their crop without compensation. The order — a much-criticized New Deal relic — forces raisin “handlers” to reserve a certain percentage of their crop “for the account” of the government-backed Raisin Administrative Committee, enabling the government to control the supply and price of raisins on the market. The RAC then either sells the raisins or simply gives them away to noncompetitive markets—such as federal agencies, charities, and foreign governments—with the proceeds going toward the RAC’s administration costs.

The U.S. government denies that it owes anything to the Hornes under the Takings Clause, and also says that to contest the legality of what has been done to them, the Hornes are obliged to pay the USDA what it demands — $438,000 for the raisins not handed over, plus $200,000 or so in penalties — and then sue in the Court of Federal Claims to get it back. The Supreme Court has granted certiorari and will hear oral argument March 20.

Law schools: “a remorseless, above-the-law attitude that enables it all”

My colleague Neal McCluskey on last week’s Cato panel:

When it comes to taking on higher education, I thought I was as hard bitten as any Law and Order cop. I thought I’d seen all the worst things that went on in the ivory tower. Until, that is, I started investigating the very schools that produce the prosecutorial side of the justice biz: law schools.

…[A]ll the major carnage of higher education, only worse. Worse tuition hyper-inflation. Deceptive advertising that rivals the most odious of any openly for-profit university.

Read the whole thing here at SeeThruEdu.com.