John Culbreath Blog

Women-only co-working space in Washington, D.C. is packed with amenities. But is it legal? [ Ally Schweitzer, WAMU ] Hurry up and cert: Ninth Circuit en banc rules that use of past salary history violates federal Equal Pay Act [ Reuters/KFGO ; Marcia McCormick, Workplace Prof ] Justice Ruth Ginsburg talks down idea of passing new laws in response to #MeToo harassment scandals: “We have the legal reforms — we have had them for a long time….The laws are there and the laws are in place; it takes people to step forward and use them.” [ Jeffrey Rosen interview, The Atlantic ] “No Fingerprinting as a Religious Accommodation? Yes, Says Court” [ Daniel Schwartz ] “Equal Pay Day Should Be in January” [ Vanessa Brown Calder, Cato ] “Mythbusting Paid Leave Statistics” [ same ] “Women who have their first child before 25 or after 35 eventually close the salary divide with their husbands,” but new moms between 25-35 don’t [ Claire Cain Miller, New York Times ] “When factors such as experience,

Wisconsin, where dairy producers hold great political sway, maintains a uniquely onerous scheme of butter grading that “has nothing to do with public health or nutrition” but does serve to restrict the sale of butter made in other states, including high-end artisanal butter. Representing Ohio’s Minerva Dairy, the Pacific Legal Foundation has sued to overturn the regulation on Commerce Clause, Due Process, and Equal Protection theories, and Cato has now filed a pun-strewn amicus supporting the due process and equal protection claims [ Ilya Shapiro and Matt Larosiere ] Tags: Cato Institute , competition through regulation , eat drink and be merry , Wisconsin Wisconsin’s butter-grading scheme is a post from Overlawyered - Chronicling the high cost of our legal system Wisconsin’s butter-grading scheme curated from Overlawyered

“The Ninth Circuit has now said we should not use animals as props in ideologically driven litigation.” [ Ted Folkman, Letters Blogatory ] In particular: But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. The footnote ends with a devastating indictment of PETA’s entire project: Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Earlier here . Tags: animal ri

Not seen yet, but promises to be an important read: R. Shep Melnick’s “The Transformation of Title IX: Regulating Gender Equality in Education” Publisher’s blurb : Few laws have had such far-reaching impact as Title IX of the Education Amendments of 1972. Intended to give girls and women greater access to sports programs and other courses of study in schools and colleges, the law has since been used by judges and agencies to expand a wide range of antidiscrimination policies?most recently the Obama administration’s 2016 mandates on sexual harassment and transgender rights. In this comprehensive review of how Title IX has been implemented, Boston College political science professor R. Shep Melnick analyzes how interpretations of “equal educational opportunity” have changed over the years. In terms accessible to non-lawyers, Melnick examines how Title IX has become a central part of legal and political campaigns to correct gender stereotypes, not only in academic settings but in socie

This morning, I attended oral arguments in Trump v. Hawaii . The only surprise (and a pleasant one at that) was that Lin-Manuel Miranda—the creator of the Broadway smash hit Hamilton —was kind enough to sign my pocket Constitution. (If I had a copy of my pleading in the emoluments clause litigation, I would have asked him to sign that instead.) Breaking news from #scotus . @Lin_Manuel , who was sitting to my left, signed my pocket constitution. It is very nice to have Hamilton on my side. pic.twitter.com/dbmRLJw1Lj — Josh Blackman (@JoshMBlackman) April 25, 2018 Everything else at the Supreme Court went more-or-less how I anticipated. The justices asked questions concerning the scope of the president’s authority, and what the relevant precedents are with respect to construing the establishment clause claims. Unlike the proceedings in the lower court , the justices did not ask about the president’s campaign statements or tweets. Rather, Justice Elena Kagan alluded to his rem

The Trump administration’s plan to wind down DACA, the deferred action policy that grants lawful presence to certain aliens, has been halted by several federal courts. While I have criticized  such rulings  in light of the  deference due to the executive branch  in this context, I freely concede that the government justification to rescind the policy was lacking.  My recommendation : “The attorney general should issue an additional opinion that explains why he concluded DACA is unconstitutional.” To date, the government has been unwilling to take up this proposal on its own volition. Now Judge John Bates of the U.S. District Court for the District of Columbia  has given the government an ultimatum : Issue a new memorandum explaining the rescission within 90 days, or he will require the government to accept new DACA applications. This ruling is a blessing in disguise. Judge Bates’s order should be sufficient to dislodge whatever institutional inertia exists within the Justice Departme

“Three Bad Arguments for Government Paid Leave” [ Vanessa Brown Calder, Cato ] So much wrong with Bernie Sanders scheme of a guaranteed government job for everyone [ Ryan Bourne, Cato ] “This old socialist standby deserves to stay exactly where we left it — on the ash heap of history.” [ Megan McArdle ] NYC legislates “dues checkoff” payable to activist groups [ Ruth McCambridge, Nonprofit Quarterly ] “Ralph Lauren interns get next to nothing after winning lawsuit” [ Julia Marsh, New York Post ] Uh-oh: Ford Foundation funding Harvard Law School project to redesign U.S. labor law from ground up [ Benjamin Sachs, On Labor ] The federal law that forbids employers from ceasing to participate in union (multiemployer) pension plans unless they pay massive “withdrawal liability” including obligations of other employers is unjust and destructive. Now it’s playing havoc with the makers of Peeps confections [ Damien Paletta, Washington Post/Lehigh Valley Live , related earlier ] Tags: Fo

Four members of the CUNY faculty (none in the law school) wrote to the CUNY Chancellor for clarification concerning the protest and heckling of my lecture. Chancellor James Milliken City University of New York 205 East 42nd Street New York, NY 10017 April 24, 2018 Dear Chancellor Milliken, We write as members of the CUNY Association of Scholars to ask that you clarify CUNY policy regarding disruption of events in which a student or faculty organization invites an outside speaker. Our request comes in the aftermath of an example of speech suppression that took place at our university and, lamentably, with its apparent approval. We are confident that you know of the (now notorious) event that concerns us – a lecture at the CUNY Law School in which Josh Blackman was shouted down by a group of heckling students. A CUNY Law student organization, the Federalist Society, had invited Blackman to give a public talk at the school—with a topic, ironically, focused on free speech. Whil

The lead anecdote in a Bloomberg story on the evils of tech fine print is on PayPal deleting the accounts of persons who joined before age 18. Yet on its own internal evidence, this seemingly irrational action is pretty clearly a response to the risk of liability/regulatory exposures rather than some act of random malice. How many more instances of pointless runaround or “impenetrable legalese” are going to be occasioned by the ongoing push to regulate and assign new liability to data-intensive businesses? [ Nate Lanxon, Bloomberg ] Tags: contracts of adhesion , privacy , technology “Impenetrable legalese” and the push to regulate is a post from Overlawyered - Chronicling the high cost of our legal system “Impenetrable legalese” and the push to regulate curated from Overlawyered

New suits claim lack of web accessibility features in online employment applications violates California’s ADA equivalent law [ Kristina M. Launey & Myra Villamor, Seyfarth Shaw ] Sugar in candy? Who knew? [ John O’Brien and John Breslin, Legal Newsline/Forbes ] Slack-fill lawsuits reveal nonfunctional void within class-action industry [ Baylen Linnekin ] Musical instruments in court: the stories behind six famous gear disputes [ Jay Laughton, Reverb last year] “Secret of David Copperfield’s signature trick revealed in slip-and-fall suit by audience volunteer” [ ABA Journal ] Given Congressional presence in area, California not entitled to use foie gras regulation to impose its views of duck and goose husbandry on producers outside state [ Ilya Shapiro and Reilly Stephens on Cato cert amicus in Association des Eleveurs de Canards et d’Oies du Quebec v. Becerra] “The earliest versions of the “People’s Court” TV show used law professors as the judges. They were picked because

Mark Britton In 2005, Mark Britton sat at a kitchen table in Sardinia, Italy. It had been about two years since he left the online travel company Expedia, where he was an executive, and he was ready to uncork something new. It wasn’t a bottle of cabernet sauvignon or grenache that the Mediterranean island is known for: He was aerating an idea that could change how legal services were delivered in the United States. That night, Britton sketched out what would become Avvo—based on the Italian word for lawyer, avvocato—an online marketplace to connect consumers and lawyers. The path he set out on would be littered with various lawsuits, including a class action shortly after launch, ethics opinions that put into question the company’s services and ultimately an acquisition by Internet Brands for an undisclosed sum, which closed earlier this year. Now, after 13 years, Britton is preparing to step down from the company he founded and led, and he says he feels good about it. “H

Class 26 The First Amendment Freedom of Speech Snyder v. Phelps (1420-1430) Matal v. Tam (1501-1506) Free Exercise Madison’s Memorial and Remonstrance against Religious Assessments (1569-1570) Sherbert v. Verner (1571-1573) Employment Division v. Smith (1573-1578) Establishment Clause McCreary County v. ACLU of Kentucky (1638-1649) The lecture notes are here . Snyder v. Phelps This  Marine Lance Cpl. Matthew A. Snyder  who was killed in Iraq in 2006. The Westboro Baptists protested outside the cemetery during Snyder’s funeral. The family did not see the protestors at the time, and only became aware of their presence later. The Baptists protest funerals, always quietly, holding up signs with these sorts of messages: The case was argued for Respondents by Margie Phelps, who is Fred Phelp’s daughter. The evening before oral arguments at the Supreme Court, I conducted this interview with Orlando Bethel from Alabama who was not a member of Phelps’s church, but w

Applicants for faculty positions at UC San Diego must file written statement detailing “past efforts, as well as future plans to advance diversity, equity and inclusion,” and are warned that lip service isn’t enough [ Stephen Bainbridge ] CUNY law dean: disruptors shouted down Josh Blackman for only eight minutes or so, nothing contrary to university rules in that [ Robby Soave , earlier ] “Hecklers of Campus Speakers: Easy Answers and Hard Questions” [ Erica Goldberg ] “Is Free Speech Becoming the Next Scare-Quote Domain?” [ Paul Horwitz ] On a happier note, a Festschrift and tribute essay collection for the inimitable and unstoppable Richard Epstein [ University of Chicago Law School ] “Readers may find it remarkable that these students expected the other people in the room to applaud and validate them for derailing the event.” [ Robby Soave on Duke protest of alumni event] “Some Pundits Say There’s No Campus Free Speech ‘Crisis.’ Here’s Why They’re Wrong” [ same ] “The people

Since January 27, 2017, I have written more than thee dozen blog posts, editorials, and articles about the three iterations of the travel ban. I have nothing new to say about this case until oral arguments, which I will be attending. I’ve also given hundreds of interviews with the press on the topic. Here is a compendium of those writings for your convenience. Pretext and the Establishment Clause , Josh Blackman’s Blog (Jan. 28, 2017). Nationwide Injunction (Stay, really) issued in Darweesh v. Trump , Josh Blackman’s Blog (Jan. 28, 2017). The Procedural Aspects of “The Airport Cases,”  Josh Blackman’s Blog (Jan. 29, 2017). Why Trump Had To Fire Sally Yates , Politico Magazine (Jan. 31, 2017). Washington Seeks Nationwide Injunction of Immigration Order, Relying on Argument It Opposed U.S. v. Texas , Josh Blackman’s Blog (Feb 1, 2017). Writing Opinions in Times of Conflict , Josh Blackman’s Blog (Feb 4, 2017). Instant Analysis Nationwide Injunction in Washington v. Trump , Jos

Outcry among British doctors after trainee pediatrician convicted of negligent homicide in death of patient following systemic errors at understaffed hospital [ Telegraph , Saurabh Jha, Medscape , General Medical Council ] “There’s no particular reason to think that smokers will be happier with denatured tobacco than drinkers have been with weak beer.” [ J.D. Tuccille on FDA plans to reduce nicotine level in cigarettes] “Why Doesn’t the Surgeon General Seek FDA Reclassification of Naloxone to OTC?” [ Jeffrey Singer, Cato ] “1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit” [ Kevin B. O’Reilly, AMA Wire ] “Best and worst states for doctors” [ John S Kiernan, WalletHub ] “Soon came a ‘routine’ urine drug test, ostensibly to ensure she didn’t abuse the powerful drug. A year later, she got the bill for that test. It was $17,850.” [ ArsTechnica ] Milkshakes could be next as sugar-tax Tories in Britain pursue the logic of joylessness [ Andrew Stuttaford, National Revie

On Balkinzation , Richard Primus writes about a debate he and I had at the University of Michigan in October. Though he links to the video I posted, he does not refer to me by name. Instead, he refers to me as “another law professor—a relatively thoughtful defender of the Trump Administration’s executive orders.” Several months ago, I transcribed portions of Primus’s remarks. I sent them to him for his approval, and incorporated his proposed changes. Here they are, with time stamps. 30:50 : I am not here to tell you that I have looked into Professor Blackman’s soul and found evil. I have known Professor Blackman for some years, though I do not know him closely, he has always presented in his direct interactions with me as a very friendly person. But I think almost everyone looks back in history and identifies episodes as evil, and I don’t see any reason to think that evil is a thing that existed in the past, and disappeared from the earth. It is difficult to call evil by its own

“Association for Honest Attorneys loses its tax-exempt status after founder can’t find a lawyer” [ Debra Cassens Weiss, ABA Journal ] Tags: lawyers A headline we couldn’t resist clicking is a post from Overlawyered - Chronicling the high cost of our legal system A headline we couldn’t resist clicking curated from Overlawyered

The Harlan Institute and ConSource have completed the semi-final rounds for the OT 2017 Virtual Supreme Court Competition. This year, we received a record-number of submissions on Carpenter v. United States . On Thursday, April 26, 2018, we will hold the championship round at the Georgetown Supreme Court Institute.  Zack Lori and Chris McDonnell of  Greenwich HS will represent the petitioner (from Match 1).  Joanna Boyer and Makaylia Askew of  Creekview HS  will represent the Respondent (from Match 2). Congratulations to all of the teams that participate. Here are the briefs and submissions of the twelve teams that advanced. Match 1 Petitioner: Greenwich HS (Zack Lori and Chris McDonnell) Respondent: Westover HS (Caroline Broude and Fangyi Wang)   Match 2 Petitioner: Friscoe CTE (Sasha Chuprakova and Nancy Trinh) Respondent: Creekview HS (Joanna Boyer and Makaylia Askew)   Match 3 Petitioner: Greenwich High School (James Heavey and Nick Liu) Respondent: Greenwich High

The New York Daily News published my op-ed about the CUNY Protest. Here is an excerpt:  Several minutes into the protest, the Dean of Students warned the demonstrators that they “may not keep anyone from speaking,” and that she would come back if they continued interrupting me. But she did not come back, despite persistent heckling. And, to my knowledge, the school didn’t actually consider disciplining any of the students. Mary Lu Bilek, the Dean of the Law School, defended her students. Because of the interruption’s short duration, she  insisted  that “limited protest was a reasonable exercise of protected free speech.” There was nothing “reasonable” about their heckling. As a practical matter, because of the delayed start, I did not have enough time to deliver the lecture I had planned to give. There simply would not have been enough time. As a matter of course, the invited speaker, and not the demonstrators, determines the schedule. But more pressingly, I don’t think I would ha

“When Congress passed that big spending plan, an anticipated reform to civil forfeiture had been curiously abandoned. Darpana Sheth of the Institute for Justice comments” in this Cato Daily Podcast with Caleb Brown. On the other hand, there’s this from the state level: “Wisconsin joins Minnesota in signing law saying authorities now have to convict you of a crime before they can take your cash” [ Christopher Ingraham, Washington Post/Grand Forks Herald ] Tags: forfeiture , Wisconsin “Congress whiffs on curbing civil forfeiture” is a post from Overlawyered - Chronicling the high cost of our legal system “Congress whiffs on curbing civil forfeiture” curated from Overlawyered

Should gatekeepers to the medical profession test prospective doctors on their adherence to tenets of social justice? [ Devorah Goldman, Weekly Standard ] Tags: colleges and universities , medical “The Politicization of the MCAT” is a post from Overlawyered - Chronicling the high cost of our legal system “The Politicization of the MCAT” curated from Overlawyered

Dangerous and misguided: Michigan pursues prosecution on charges of jury tampering of man who handed out “jury nullification” pamphlets on public sidewalk outside courthouse [ Jay Schweikert, Cato ; Jacob Sullum , earlier here , here, etc.] “‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration” [ Eric Goldman ] Among first casualties: Craigslist personals [ NPR , Elizabeth Nolan Brown] And Elizabeth Nolan Brown joins (no relation) Caleb Brown on a Cato Daily Podcast ; Is reprinting thumbnail headshots fair use? [ Mike Masnick, TechDirt ] “16 Pulse survivors sue Google, Facebook, Twitter for ‘supporting’ ISIS” [ Daniel Dahm, WKRG Orlando ] Not the group it used to be: ACLU calls for government-owned broadband, claims First Amendment may require as opposed to forbid state-operated communications infrastructure [ Randolph May and Theodore Bolema, Free State Foundation ] Cato amicus commercial speech triple-header: Virginia’s ban on promoting happy ho