Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Barack Obama’

“I’ve got a pen and I’ve got a phone”: Obama’s regulatory rush

An unprecedented volume of rulemaking by the Obama administration, at a pace of one major rule every three days, will soon be followed by an even more intense binge of the “midnight” regulation seen at the end of many presidential tenures. Sam Batkins of American Action Forum and Sofie Miller of George Washington University Regulatory Studies Center, authors of two recent papers on the subject, discuss in a Federalist Society podcast moderated by Hoover’s Adam White. More: binge of Obama labor regulation will cost economy $80 billion over ten years [Ike Brannon and Sam Batkins for NAM]

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Campus free expression roundup

  • 21 professors, including Bartholet, Epstein, and McConnell, write letter to Department of Education Office of Civil Rights [OCR] challenging its directives on campus sexual harassment [Ashe Schow, Washington Examiner] Student suing Colorado State over multi-year suspension adds OCR as a defendant [Scott Greenfield; more, George Will]
  • President Obama has been saying things students need to hear about intellectual freedom at commencements [Howard and Rutgers, Jonathan Adler] “Does Obama understand that his own government is responsible for the safe-space phenomenon he frequently decries?” [Robby Soave]
  • Protesters these days disrupting and physically shutting down a lot of pro-Israel campus speeches and events on US campuses [Observer; UC Irvine]
  • “Jokes, insensitive remarks, size-ist posters”: from a distance the doings of the University of Oregon’s Bias Response Team can seem kind of hilarious. Maybe not up close [Robby Soave/Reason, Catherine Rampell/Washington Post] “Towson U. [Maryland public university] implements ‘hate/bias’ reporting system to ensure ‘anti-racist campus climate’” [The College Fix]
  • Read and marvel at the arguments being deployed against Prof. Dale Carpenter’s proposal for bolstering free expression at the University of Minnesota [Susan Du, City Pages] “Why Free Speech Matters on Campus” [Michael Bloomberg and Charles Koch]
  • Faculty at George Mason University law school unanimously affirm commitment to renaming school after Justice Antonin Scalia [Lloyd Cohen, Michael Greve]

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More courtroom losses for EEOC, Labor Department

I’ve got a new post at Cato summarizing four recent cases in which judges have rebuked the Equal Employment Opportunity and Department of Labor, awarding attorneys’ fees against the agencies in two cases (Gate Guard and Freeman Cos.) and rejecting two major EEOC initiatives against wellness programs (Flambeau) and severance package language (CVS). Excerpt:

Why are independent, strong-minded courts so important to a free society? One reason is that they – and often only they – are the ones who can stop government agencies from trampling on the rights of the citizens….

Imagine what these agencies and others would be getting away with were our judiciary someday reduced to a spirit of subservience to the executive branch of government.

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EEOC pay reporting: the better to sue you with, my dear

“Under a new rule proposed by the Equal Employment Opportunity Commission, all companies with more than 100 employees would be required to submit summary pay data each year. Since 1966, large companies have reported to the EEOC the number of their employees by sex, race, ethnicity and job group. The new proposal would add to that list pay data in 12 salary ranges, [with individual salaries] grouped together to protect privacy.” [USA Today, EEOC press release] “The data will be used to identify employers that may be engaging in pay discrimination so that the agency can target its enforcement resources where problems may be likeliest to exist. The proposal would cover more than 63 million U.S. workers, according to the White House. The plan… won’t require legislative approval.” [WSJ]

Aside from driving a high volume of litigation by the EEOC itself, the scheme will also greatly benefit private lawyers who sue employers, including class action lawyers. An employer might then weather the resulting litigation siege by showing that its numbers were good enough, or not. Would today’s Labor Department and EEOC policies look much different if the Obama administration frankly acknowledged that it was devising them with an eye toward maximum liability and payouts?

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State of the Union address live-tweets

I live-tweeted President Obama’s address last night (text) and South Carolina Gov. Nikki Haley’s Republican response (text) and here are some highlights:

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Gun control, terrorism, and President Obama

Just out, and could hardly be more timely: new David Kopel monograph for Cato, “The Costs and Consequences of Gun Control.” From Kopel’s summary at Volokh Conspiracy:

The policy analysis examines several gun control proposals which have been promoted by the Obama administration and the gun control lobby: bans on so-called assault weapons; bans on standard magazines; confiscation; and the prohibition of all private sales, loans and returns, except when processed by a gun store [and explains] why each of these proposals is likely to do little good and much harm….

Also at Cato, Trevor Burrus responds to an otherwise predictable editorial on gun control that the New York Times elected to print on its front page:

Not only do victims of mass shootings constitute one percent or fewer of gun deaths (depending on how “mass shooting” is defined), but the perpetrators of mass shootings are the hardest to affect with public policy changes…. Mass shooters are the quintessence of an over-motivated criminal, and in a country with over 300 million guns, there are very few (if any) realistic gun control laws that could stop mass shooters. Policy proposals that focus on identifying would-be mass shooters and protecting would-be victims of mass shooters have a much better chance of succeeding than any proposal that focuses on guns.

Jonah Goldberg at National Review reacts to the same editorial, while James Taranto has this on Twitter: “The New York Times today published the newspaper’s opinion in the front page. The last time it did that was yesterday.”

Since last week’s slaughter by a radicalized Islamist couple of 14 employees at a gathering of county health employees in San Bernardino, you’ve almost certainly seen people claim that the U.S. has had 355 mass shootings this year. A Mother Jones editor (of all people) in the NYT (of all places) explains why a more accurate number would be 4. And the Washington Post “Fact Checker,” after awarding Two Pinocchios to President Obama for his claim that “this [kind of mass shooting] just doesn’t happen in other countries” has gone on to examine his claim that “We know that states with the most gun laws tend to have the fewest gun deaths” and finds the evidence “not as clear cut as the president claims”: “We wavered between Two and Three Pinocchios, but in the end settled on Two.”

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Supreme Court and constitutional law roundup

  • “There is nothing in the Constitution that …even hints that the president’s power expands because Congress won’t pass the legislation he advocates.” [David Bernstein interview with Josh Blackman about Bernstein’s new book “Lawless,” on Obama administration vs. constitutional limits more from Bernstein on book]
  • “Will the Supreme Court End Affirmative Action? A Preview of Fisher v. University of Texas at Austin on the Eve of Oral Argument” [Cato event Dec. 7 with Andrew Grossman, John Paul Schnapper-Casteras, Gail Heriot, Richard Lempert, and Wallace Hall, moderated by Ilya Shapiro]
  • Theme of this year’s Federalist Society lawyers’ convention was Congress, videos of related panels [originalist views of Congress, Congressional dysfunction, deference and delegation, prospects for getting legislative branch to reclaim lawmaking power]
  • Certiorari petition asks SCOTUS to review dischargeability of law school debts in bankruptcy [BNA; Tetzlaff v. Educ. Credit Mgmt. Corp.]
  • At Cato’s Constitution Day, panels looked back at an eventful SCOTUS term [Cato Policy Report]
  • Common law vs. statutes: Richard Epstein on Spokeo v. Robins oral argument [Hoover] Must plaintiffs show they actually suffered harm? [Daniel Fisher]
  • No, the Constitution doesn’t let feds cancel Redskins trademark as offensive [Kristian Stout, Truth on the Market; Ilya Shapiro]

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Politics roundup

  • “Executive Power in the Age of Obama,” podcast interview with Prof. David Bernstein about his new book Lawless, from Encounter Books [Liberty and Law] And so many choices: Bernstein picks his top five acts of Obama administration lawlessness;
  • Donations-wise, law firms love Hillary Clinton [Above the Law] as do teachers’ unions [RiShawn Biddle]
  • “The Criminalization Of Politics: Is It Happening, And Is It A Problem?” David Lat covers the Federalist Society convention panel [Above the Law]
  • Donald Trump’s fondness for legal threats can be traced back to his early association with infamous attorney Roy Cohn [Business Insider video with Michael D’Antonio; June 1989 Spy magazine “Those Who Can, Sue” noting the Trump/Cohn connection; a Steven Brill anecdote about Cohn and Ford Motor that I quoted in my first book] More: @andrewmgrossman on “Ex. 1 to defendant’s anti-SLAPP motion,” Trump on Kasich;
  • “Sheldon Silver lied to us” [New York Daily News editorial] More: Lawyers for Silver “don’t plan to call any witnesses. They will instead enter some documents as evidence in their defense, offering a case so minimal that U.S. District Judge Valerie Caproni used air quotes when referring to it.” [WSJ]
  • Raunchy emails in Kathleen Kane saga: “Pennsylvania’s attorney general seems to have decided that if she has to go, she’s going to take others down with her.” [AP/Yahoo]
  • Eternal return? Ex-con reinstalled as mayor of Bridgeport, Ct. played key role in cities-sue-gun-business episode [U.S. News, back then]

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College and offense-screening: a message from the White House

In light of President Obama’s (quite admirable) recent comments on college as a place for the open exchange of ideas, could his administration call off its rules pressuring colleges to adopt unconstitutional speech codes? [Hans Bader, Glenn Reynolds, USA Today] “University of California considering recognizing a ‘right’ to be ‘free from … expressions of intolerance'” [Eugene Volokh; regents go back to drawing board; Sarah McLaughlin/FIRE; AAUP] “Deciding who is eligible to complain about microaggressions is itself an act by which the majority imposes its will.” [Megan McArdle] And the New Yorker contributes a politically correct “Lord of the Flies.”

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NLRB: we’re coming after franchisors and subcontractors

In a long-feared ruling, the Obama National Labor Relations Board has ruled that a company that employs subcontractors or engages in franchising can over a wide range of situations be deemed a “joint employer” for purposes of liability for labor law violations and obligation to bargain over wages and working conditions with subcontractors’ or franchisees’ work forces. The decision imperils many of the most successful business models on the American economic scene. I’ve got a write-up at Cato observing that the ruling is likely to wreak havoc with, among many other sector, Silicon Valley and sharing-economy launches and asking “One wonders whether many of the smart New Economy people who bought into the Obama administration’s promises really knew what they were buying.”

More coverage of the NLRB’s Browning-Ferris ruling: Reuters (quotes me on the not-bright prospects for Hill action); Seyfarth Shaw; Tim Devaney, The Hill; “Good week to change name of NLRB to National Labor Resuscitation Board.” [Jonathan Segal] And, from standpoints supportive of the ruling, Al-Jazeera and Prof. Catherine Fisk/On Labor.

P.S.: At the Weekly Standard, Andrew B. Wilson notes that Obama wage/hour czar David Weil doubles as a key ideologist of the kill-outsourcing crowd.

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