On January 1, a law took effect in the union stronghold of California that poses a dire threat to the so-called “gig economy” by drastically restricting the use of independent contractors, upon which many tech companies depend. The law, referred to as AB 5, was apparently directed primarily at transportation network companies such as Uber and Lyft, which treat their drivers as contractors instead of employees. AB 5, which was promoted by labor unions wishing to organize the drivers, sought to remove the legal impediment of IC status by effectively banning the use of contractors in California. Instead of forcing Uber and Lyft to capitulate, as intended, the overly-broad law has backfired by also threatening long-established practices in the trucking industry, and even the livelihoods of freelance writers in the Golden State.
As flattered as I was to attract George Will’s attention—in his 4th of July column, no less—being criticized by a Pulitzer Prize-winning essayist left me somewhat perplexed, for several reasons. Allow me to explain. First, although I have engaged Will directly in the past, he used his nationally-syndicated column to take issue with something I had written in response to someone else—specifically, Ed Erler (a disciple of Harry Jaffa) regarding Robert Bork’s view of the Constitution.
Across the country, many large cities sacrifice public safety to political correctness, catering to minority voters by hamstringing—or even demonizing–law enforcement. Some progressive cities, such as Los Angeles, San Francisco, and Seattle, openly condone urban chaos in the form of rampant homelessness and public drug use, despite local residents’ vociferous objections. Defying these trends, in one of the nation’s largest and fastest-growing cities, Austin Police Chief Brian Manley presides over the third-safest major metro area in the United States.
Utopian social movements often degenerate into unruly—and sometimes vicious—mobs. During the French Revolution, the slogan “liberty, equality, fraternity” quickly led to the guillotine as the Jacobins unleashed the Reign of Terror. We are witnessing a softer version of this at Harvard, America’s most elite university, where Ronald Sullivan, an African-American law professor, faces professional retribution for the sin of representing a (presumed innocent) client (Harvey Weinstein) accused of sexual assault. Harvard Law School professor emeritus Alan Dershowitz denounced the incident as “The new McCarthyism comes to Harvard.”
San Antonio, a predominantly Hispanic city named for a Catholic saint, has persisted in its crusade against the popular fast-food chain Chick-fil-A. In reaction to the conservative religious beliefs of its owners, the city council has barred Chick-fil-A from operating at San Antonio’s airport. So far, advocates against the restaurant have the upper hand, though that could soon change. Voters will soon have an opportunity to weigh in on the controversy in a local election.
When asked by Law & Liberty if I would be interested in reviewing Lawrence Wright’s new book, God Save Texas, I had mixed feelings. I greatly enjoyed two of Wright’s previous books, The Looming Tower (2006) and Going Clear (2013), both deeply-researched and impressively-reported works of nonfiction. Wright’s journalism also inspired the acclaimed documentary Three Identical Strangers (2018), which fascinated me. Wright is a Pulitzer Prize-winning author and longtime staff writer for The New Yorker, who happens to live in Austin, Texas (as I do), the state capital and the home of the flagship campus of the University of Texas. Wright is unquestionably a talented writer knowledgeable about his (and my) adopted state.
No one is surprised when cities like San Francisco, New York City, and Seattle enact policies driven by the latest progressive imperatives. In Texas, where I live, observers have long believed that a statewide Republican majority would insulate the Lone Star State from such pressure. Capital city Austin’s traditionally liberal politics—its unofficial slogan is “Keep Austin Weird”—have usually seemed like an exception to the statewide rule. But now it appears that San Antonio, the state’s second-biggest city (and seventh-largest in the U.S.), has gotten “woke,” too, blacklisting a well-respected business because of its owners’ political contributions and religious beliefs.
Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa. Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant–references to Abraham Lincoln and the Declaration of Independence. Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law.
Last year’s decision in Janus v. AFSCME (2018) is properly seen as a landmark ruling in the area of compelled speech (e.g., here and here), but it is more than that. By overruling Abood v. Detroit Board of Education(1977), the Supreme Court in Janus acknowledged that its extension of private-sector labor law precedents concerning union-security clauses to the public sector was erroneous. I have previously written about “the road to Abood” (here and here), and explained why the Court’s poorly-reasoned decisions under the National Labor Relations Act (NLRA) should not govern arrangements involving government employees. Justice Alito, who authored Janus and the decisions leading up to it, scathingly dissected the Court’s NLRA precedents, most of which were issued during the heyday of the Warren Court.
On February 28, 2019, I was honored to speak at the University of Virginia School of Law, at a day-long program sponsored by the UVA student chapter of the Federalist Society, entitled “The Future of Originalism: Conflicts and Controversies.” Congratulations to Jenna Adamson (President of the UVA student chapter), her colleagues, and the participating faculty, speakers, and moderators (including Judges Thomas B. Griffith, Diane S. Sykes, and John K. Bush) for planning and executing a terrific event. At lunch, Clark Neily and I debated the topic “Judicial Engagement v. Judicial Restraint: Equally Compatible with Originalism?” The moderator was UVA Professor Lillian BeVier.
I have reminisced at length about my student days at the University of Texas School of Law (here), and also expressed concern about the leftward drift of the Texas Law Review, on whose editorial board I served during 1979-80 (here). Recent events have only heightened my concerns (here). Specifically, on February 7-8, 2019, the TLR is co-hosting (with the left-leaning American Constitution Society) a constitutional law symposium at the law school, entitled “Reclaiming—and Restoring—Constitutional Norms,” that appears to be little more than an anti-Trump political rally. The announcement is here.
Is it Beyoncé’s fault that some of her fans are blind? Is the performer a “public accommodation,” like a hotel, restaurant, or department store? Is it society’s obligation to rectify all misfortunes in life’s lottery? These questions may seem silly, but they lie at the heart of a cottage industry of abusive class-action litigation against websites pursuant to the Americans with Disabilities Act, a well-intentioned but poorly conceived—and horribly drafted—law that continues to generate unintended consequences decades following its passage in 1990. Computer users afflicted with various disabilities—blind consumers seem especially litigious—regularly sue companies hosting websites that allegedly aren’t sufficiently “accommodating” of their condition. Beyoncé and her website (beyonce.com), through her management company, became their latest target.
The 85-year old Ruth Bader Ginsburg, appointed to the U.S. Supreme Court by President Bill Clinton in 1993, is approaching her 25th anniversary as a justice. She is historic in many respects: the second female to serve on the high court, the first Jewish female justice, and the longest-serving Jewish justice ever. Her record as a reliable liberal vote on the court, along with her well-publicized background as a trail-blazer for women’s rights, has made her an icon on the Left—celebrated as the “Notorious RBG” and featured in the recent film “On the Basis of Sex.”