President's weekly report on the law and Dickens — February 20, 2015
Economic Liberty Project — Challenging another competitor’s veto
We filed this complaint this week challenging Nevada’s version of a competitor’s veto in Perlman v. Mackay. Here the owners of an limousine and moving services would like to expand in Nevada — but can only do so if existing businesses do not object. So what’s the stated purpose for this restriction? Nothing other than the official state policy to “discourage any practices which would tend to increase or create competition” that supposedly might be detrimental to the public. That’s not a misprint. Nevada has an official statutory policy against competition. For more on that, see our litigation backgrounder. This is one of those cases where merely to quote the law should be more than enough to demonstrate the vacuity of the logic of that law. Or as Charles Dickens put it, “the law is a ass.”
Economic Liberty Project — Discrimination against out of state businesses
We filed this Motion for Summary Judgment in Castillo v. Ingram, our case challenging Nevada’s requirement that all private investigators have an office location in Nevada in order to do business in Nevada. Under the statute, just about anybody in the information gathering business might qualify as a private investigator under the Nevada law. As our blog post notes, this violates both the First Amendment and the Constitution’s prohibition on discrimination against people in other states.
Equality Under the Law Project — Dishonest disparate impact study rejected
Once again, the EEOC has been badly rebuked by a federal court over its use of shoddy disparate impact studies. As our blog post explains, in EEOC v. Freeman, the Fourth Circuit rejected in an opinion today the use of a patently flawed disparity study by a paid expert. Despite its problems, the EEOC had used this study to claim that a business was guilty of discriminatory conduct because it used criminal background checks in job applicant screening. We had argued against the use of disparity studies in this amicus brief. Amazingly, the EEOC insisted on using an expert who has been severely rebuked in other courts already. Here the court lambasted him for “cherry-picking” data, intentionally skewing results, and other obvious errors. One judge remarked that the continued use by EEOC of this expert was ““disquieting in the context of what appears to be a pattern of suspect work.” The trial court had called this an “egregious example of scientific dishonesty.” Now, all this bad work begs the question: Why does the EEOC and the Department of Justice continue to use and then defend the work of this hack? What does the federal government not understand about why these lapses of ethical behavior are below the standard we should expect from government lawyers? Why should businesses be forced to spend small fortunes to defend themselves against malicious and dishonest prosecutions? Is it only because being a lawyer for EEOC and DOJ truly means never having to say you’re sorry? (Dickens never said that. But he did write this: “Why, I don’t exactly know about perjury, my dear sir,” replied the little gentleman. “Harsh word, my dear sir, very harsh word indeed. It’s a legal fiction, my dear sir, nothing more.”) (And for more on the question of legal ethics see this blog post by Professor Gideon Kanner.)
Environment & Property Rights — Wetlands Litigation
We filed our reply brief in Kent Recycling v. United States Army Corps of Engineers with the Supreme Court. This is the case where we’re asking the Court to take up the issue of whether a property owner has the right to challenge a wetlands jurisdictional determination in court. The Corps says, “no,” a property owner should have to spend hundreds of thousands of dollars on a multi-year permitting process for the privilege of arguing that no permit is required in the first place. See again, Charles Dickens on the law as a particular animal and see Charles Dickens on the Circumlocution Office.
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