Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘WO writings’

Assault on police: the newest hate crime?

The town of Red Wing, Minnesota, has passed a resolution urging that assaults on police be made a hate crime, a position urged for some years by the Fraternal Order of Police (FOP) union. How bad an idea is this? A very bad one indeed, I argue in an op-ed for the Minneapolis Star-Tribune:

Critics argue that [existing hate-crime] laws in effect play favorites, departing from the spirit of equal protection under law that aims at treating all victims of personal assault as equally important.

Because they seem to put an official public seal on a narrative of oppression, such laws are also lobbied for in me-too fashion by other groups that rightly or wrongly see themselves as oppressed….

Not only are lethal assaults on police declining, I note, but the vast majority of them do not arise from any supposed prejudice or animus against cops, nor do such crimes go neglected and unprosecuted. Besides, most states already allow sentence enhancements on other grounds for crimes against police:

…what would [such a change in law] symbolize? The merely absurd proposition that police in the U.S. today are an oppressed minority group? Or the downright dangerous proposition that the law should step in to chastise and rectify the attitudes of a public that may not be as supportive of police wishes and demands as cop advocates would like?

Read the whole thing. Incidentally, the town council voted last week to let its Human Rights Commission review the resolution, a possible step toward reconsidering it. Some earlier Cato commentary on hate-crime laws here, here, here, and here. (cross-posted from Cato at Liberty).

More links: Star-Tribune original coverage (noting that Red Wing’s police chief approached the council requesting the resolution as a “show of support,” and that Minnesota already provides for sentence enhancements when police are the target of crimes, as indeed do most states); FBI on definition of hate crime; Fraternal Order of Police side of the case; Washington Post; U.S. News; New York Daily News.

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To fit the crime: a social justice “Mikado”

The news that New York’s Gilbert & Sullivan Players have canceled a production of The Mikado because it was accused of purveying anti-Japanese stereotypes, and because there had been objections to Caucasian actors singing the parts, prompted me to write up a short piece in the new Weekly Standard on how the beloved operetta might be modernized for contemporary, social-justice-attuned ears:

So he decreed, in words succinct,
That all who flirted, leered, or winked,
Without consent-form double-inked,
Should forthwith be beheaded…

Correspondent Corey Bean contributed a verse:

My object all sublime
I shall erase the line —
Between micro-
aggressions and crime —
Between mere offense and crime;

The company for now is going to switch to a production of The Pirates of Penzance. “So now pirate-shaming is supposed to be okay?” Read the whole thing here.

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My Newsweek piece on the First Amendment Defense Act (FADA)

A bill called the First Amendment Defense Act, or FADA, with many Republican sponsors, would establish a new protected class in discrimination law, enabling what might develop into a major new sector of litigation. It would bestow on advocates of putative traditional family values — but not their opposite thinkers — new legal rights to sue over adverse government treatment of any kind, including the withholding of subsidies, government contracts or indeed any other public action. The protected status would even extend to acts taken as public employees and clothed with official force. It’s an extraordinarily one-sided, wildly impractical set of proposals whose theme, I argue at Newsweek, is not pluralist accommodation but merely to empower one side, when wielding public authority or tax moneys, to engage in a wide range of punitive and coercive measures against their culture war opponents. And that has less than nothing to do with the First Amendment.

Whole piece here. Dale Carpenter at Volokh Conspiracy has some kind words for my piece along with thoughts about the possible constitutional infirmities of the draft bill’s blatant enlistment of government power on behalf of one viewpoint and set of beliefs as against others; he also links to this Christianity Today piece by three leading religious liberty scholars, Richard Garnett, John Inazu, and Michael McConnell, who acknowledge some of the problems with FADA in present form while urging support for a less sweeping measure (“We think the best approach is to tailor FADA to the core area of concern: religious nonprofits.”)

P.S.: Stephen Bainbridge reprints a letter in which I link and summarize some of my recent writing on religious accommodation.

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Flight attendant: my religion entitles me to avoid serving liquor

New at Politico Europe, my piece on the Equal Employment Opportunity Commission complaint by a Muslim flight attendant, covered here last week, who doesn’t want to serve alcohol (“scruples about screwpulls”) and what, if anything, it has in common with the Kim Davis case. (As a direct legal matter, not much.) I reference the EEOC v. Star Transport case:

Here’s the thing: The EEOC has already sided with Muslim employees who wish to avoid handling alcohol….If Charee Stanley or a future counterpart someday wins the right to bob and weave through the passenger cabin, handing out only beverages that meet with her spiritual approval, she’ll have this record of Congressional posturing to thank.

Surprisingly or otherwise, the pressure for federal law to become more indulgent toward private employees’ demands for religious accommodation — thus turning cases like Stanley’s into more likely winners — has come both from liberal lawmakers like John Kerry and Hillary Clinton and from conservatives like Rick Santorum and Bobby Jindal.

Related: “No one should have to choose between their career and religion,” proclaimed Stanley’s lawyer. Really? No one? Ever? [Andrew Stuttaford, Secular Right] My Cato colleague Ilya Shapiro on why West Coast florist Barronelle Stutzman is far more deserving of martyr status than Kim Davis (my two cents, leading to GoFundMe “campaign not found”). And dear #kimdavis meme-slingers: be advised that Dallas judges are under no legal obligation to do weddings [Taylor Millard, Hot Air]

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“Are you showing contempt for this court?” “No, I’m doing my best to hide it.”

“Are you showing contempt for this court?” “No, I’m doing my best to hide it.” Mae West might get away with that attitude but Kentucky clerk Kim Davis can’t, as I explain in my (revised and expanded from last night’s post here) post at Cato. First paragraph:

Across the political landscape this morning, people on one side are discovering that lawlessness is bad, while people on the other are discovering that the machinery of our justice system is harsh. If experience is any guide, these lessons will last a lunchtime.

Whole thing here.

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Supreme Court and constitutional law roundup

  • New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair;
  • Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato]
  • Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” [Daniel Fisher]
  • “Another Chance To Clean Up ‘Trial by Formula’ Class Actions” [Andrew Grossman/Cato, SCOTUSBlog on Tyson Foods v. Bouaphakeo]
  • “Bench Memos” to the barricades: National Review builds case for “resistance” to Supreme Court decisions” [my two cents at Cato on rhetoric likening Obergefell to Dred Scott]
  • Media firms including Time, Meredith, Advance, NPR jump into Spokeo case before high court, warn of Fair Credit Reporting Act litigation “quagmire” [Media Post]
  • After a tainted-food episode, managers convicted without a showing of mens rea? Egg case deserves a closer look [Ilya Shapiro, Cato]

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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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The very model of a Left attorney general

My lengthy profile of New York Attorney General Eric Schneiderman in the new City Journal ranges over many topics, including mortgage and Wall Street settlements; Uber, Lyft, AirBnB and the sharing economy; unions’ efforts to light legal fires under fast-food operators; the unreconstructed Left politics of Manhattan’s Upper East Side; and much more, including Schneiderman’s dubious campaign against herbal supplement retailers. One section that I hope is of interest beyond New York is a sidebar on the politics of state attorney general offices. An excerpt:

…State attorneys general really took off as players on the national scene in the 1970s and 1980s, a period in which the number of staff attorneys in AG offices quadrupled, according to figures in Paul Nolette’s new book, Federalism on Trial. Once the National Association of Attorneys General, or NAAG, began to take a more active role in helping beef up and coordinate formerly scattered efforts, multistate AG litigation, in which many state offices band together to file suit, began to grow, from fewer than five cases a year three decades ago to 40 to 50 cases a year more recently.

Is this a spontaneous upsurge reflecting the decentralized genius of our system? Not quite: as Nolette explains, Congress was, in fact, busy over this period funneling federal grants to state AG offices to build up their strike-force capacity against business defendants, while revamping laws to give them more enforcement power. The executive branch helped, too: “[F]ederal agencies have aggressively promoted [state AG] litigation working groups,” Nolette writes….

The tobacco episode — and the idea it encouraged that AGs should step in to reform national industries through litigation and master settlement when the U.S. Congress declined to do so — changed everything. One of its consequences was to send hundreds of millions, even billions of dollars in settlement money sloshing through the formerly sleepy AG offices:

…It’s common for AGs’ offices to keep at least enough money from settlements to cover their own investigation; state laws vary widely, however, on whether they have to turn over surplus money to a general fund. When they don’t do so, the AG office can quickly become a power center, handing out (in effect) appropriations that bypass the state legislature’s scrutiny. In states like Arkansas, Massachusetts, and West Virginia, AG offices have channeled settlement funds to health nonprofits, police and fire charities, and agencies of their own choosing within state, county, and local government. Other favored beneficiaries include legal-aid programs, bar associations, and law schools—the legal profession being, of course, a key political constituency of any AG’s office. With control over big money flows, smart AGs can populate a political landscape with grateful allies. …

Last week I linked a sidebar on the legal system’s failure to protect businesses (small banks, in this case) from the exercise of arbitrary authority by officials like Schneiderman. While my piece is critical of his enforcement actions, it also makes clear that most of what he’s up to simply applies the set of far-reaching powers assembled by earlier state attorneys general before him, from Eliot Spitzer and Andrew Cuomo in New York to figures in other states like Jerry Brown, Richard Blumenthal, Jim Hood, and even Bill Clinton. Whole thing here.

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Ida Wells, free speech, and the rule of law

I write at Cato about the accomplishments of Ida Wells (1862-1931), who after being born into slavery in Mississippi became the leading voice documenting the horrors of lynch law in late nineteenth century America, as well as a free speech heroine (a mob in Memphis attacked and destroyed her printing press). Wells is also the subject of today’s Google Doodle. And as I learned from Nicholas Johnson’s post last year at Volokh, she was a notable figure in the history of the Second Amendment as well.

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