This is little surprise; the U.S. Supreme Court has already held such laws constitutional. So the partisan challenge to promote voter fraud had to resort to forum shopping, but that effort has also failed. [WaPo; last week at PoL; Applewhite v. Pennsylvania]

The National Law Journal headline is "Research attests to the value of diversity at law schools," and that's certainly how study authors Charles Daye et al. pitch their piece. But they simply demonstrate shoddy science to reach the authors' predetermined conclusions.

The study relied on self-reporting of law students, and found that "Many students reported that they left law school with a deeper understanding of the law as a result of diversity among their classmates." Thus, the authors argue diversity should matter in admissions.

The non sequitur is astonishing. All we conclude is that students think that diversity helps their understanding of the law. In the absence of controls (or even a quantifiable statistic for "understanding of the law"), the most we can conclude is that students want to seem politically correct when talking to interviewers.

Even if we were to accept the conclusions of the paper, the policy conclusions—there's a benefit to race discrimination in the name of diversity—do not follow.

Leave aside the constitutional question whether these unquantifiable diversity benefits survive strict scrutiny. How much diversity is required? If every law school abolished diversity-based race discrimination (so that schools that refused to participate in the race-based race wouldn't lose qualified students to better-ranked law schools that reach down to inflate their non-Asian minority population), would the resulting percentages of non-Asian minorities be sufficient to inculcate students with the benefits of diversity? If so, why need affirmative action at all?

If the argument that diversity is good because of the exposing of students to differing viewpoints, wouldn't students be better off if a law school went out and used affirmative action to recruit a Hasid, a Sri Lankan, a Macedonian, an Argentinian, a Mennonite, a Latvian, a Roma, a Gujarati Hindu, a Tibetan Buddhist, and a North Korean refugee? That surely does much more to increase the number of viewpoints available to students than disregarding African-American LSAT scores in admissions. Many law schools have no Hasidim or Roma or North Korean refugee students whatsoever, and the increase from zero to one surely does more for promoting diverse viewpoints than the twenty-third African-American does.

If law schools really care about diverse viewpoints, shouldn't they be doing more to promote diverse viewpoints in faculty hiring? In particular, it's well known that Federalist Society membership and conservative credentials result in blackballing at many law schools; even the schools with token conservatives are overwhelmingly liberal. Surely to the extent students benefit from diverse viewpoints, they'd especially benefit from diverse political viewpoints from faculty. Perhaps we should have a two-year hiring freeze on non-Federalists until conservatives catch up?

Or is the argument that only African-Americans have the innate qualities that create the positive externality of diversity? I'm waiting for someone to come out and say that, though it seems suspiciously like the Magical Negro stereotype.

"Daye said he hopes the findings will influence admissions officials to continue to consider race as at least a small part of the review process and will help inform the courts struggling with affirmative action challenges." I bet.

Related: Big Business weighs in with an unpersuasive brief in Fisher v. University of Texas. [Clegg @ Bench Memos] One hopes that Jenner & Block wasn't being paid with shareholder money for this buoyant political correctness.

In April, we complained that the Obama administration's push to use "disparate impact" to encourage schools to discipline misbehaving African-American students less often was both undercovered by the media and potentially disastrous to both public schools and the African-American community. In City Journal, Heather Mac Donald has a must-read expanding on this issue, with supporting statistics:

The homicide rate among males between the ages of 14 and 17 is nearly ten times higher for blacks than for whites and Hispanics combined. Such data make no impact on the Obama administration and its orbiting advocates, who apparently believe that the lack of self-control and socialization that results in this disproportionate criminal violence does not manifest itself in classroom comportment as well.

Though the federal government does not collect data on student misbehavior by race, it does survey schools on their discipline problems. During the 2009-10 school year, the rate at which schools that were over 50 percent minority reported gang activity was five times as high as the rate at schools where minorities constituted 5 to 20 percent of the population. More than 11 times as many schools in the first category as in the second reported widespread weekly disorder in classrooms; more than four times as many reported weekly verbal abuse of teachers. The Departments of Education and Justice publish this information in their annual Indicators of School Crime and Safety, but they have not allowed it to contaminate their official position that racial disparities in student discipline reflect racial inequity, not student behavior.

Hans Bader argues that the problem is even worse at the state level, with Maryland proposing actual quotas in discipline. The consequences in integrated schools can be appalling, with actual disparate treatment to prevent disparate impact: one commenter at Joanne Jacobs' blog claims to have had a "difficult month" when a smaller child of a disfavored race was severely beaten by a 6-foot-tall seventh grader of a more widely misbehaving race—and the school only punished the victim to avoid disrupting its statistics. Word "quickly spread that violence against the "under-disciplined" ethnic group was treated as a freebie."

Litigation to prevent this nonsense is very badly needed before we have a lost generation.

See also Overlawyered.

Related: Roger Clegg analyzes an appalling Department of Justice brief in Fisher v. University of Texas defending racial discrimination against Asians. [Bench Memos via Fed Soc, which needs to do a better job of making sure its links work; see also Reuters]

In June 2011, six cattle wandered onto the North Dakota property of Rodney Brossart. Brossart refused to return them to their owner until he had paid Brossart for feed consumed by the cows. North Dakota law permits such "distraint," but, noting that "there have been problems with [him] in the past," the Nelson County Sheriff's Office decided to arrest Brossart. During an armed standoff, the Sheriff took up the offer by the Department of Homeland Security to lend the Sheriff an unmanned Predator drone. When the drone confirmed that Brossart and his family had not left the ranch, and were unarmed, Sheriff's deputies arrested Brossart and four members of his family. The Brossarts moved to dismiss the charges, arguing, inter alia, that use of the drone constituted "outrageous governmental conduct," "unlawful surveillance," and an "illegal search and seizure." North Dakota District Judge Joel Medd denied the motion, writing that "there was no improper use of an unmanned aerial vehicle" and that the drone "appears to have had no bearing on these charges being contested here."

The Brossart case is the first in which a court has approved a domestic law enforcement agency's use of a drone to investigate or arrest a suspect. But it certainly won't be the last. In February of this year, members of Congress backed by the drone industry inserted language in the the FAA reauthorization bill requiring the agency to simplify and accelerate the process for allowing domestic agencies to operate drones. At the same time, the Department of Homeland Security has launched a program to "facilitate and accelerate the adoption" of drones by domestic agencies. The FAA has already authorized dozens of domestic agencies to operate drones, including the police departments of Houston, North Little Rock and Gadsden, Alabama. Other states and localities are lining up for FAA authorization and DHS grant funds. There has even been talk by some local police of adding weapons to domestic drones.

There is no question that drones will make it easier for domestic law enforcement agencies to investigate crimes and arrest suspects. This may make us safer, although the lack of sophisticated onboard collision avoidance systems and the prospect of local sheriffs's deputies piloting drones outfitted with rubber bullets and tear gas engenders some doubt on this point. And the use of domestic drones will certainly provide jobs and profits for drone manufacturers. But as even DHS has recognized, the use of domestic drones raises enormous privacy and Constitutional issues. DHS says "we will not be watching backyards," but as domestic drones proliferate, it will become harder and harder to control what all of the agencies approved to use them are doing with them. The Fourth Amendment guarantees Americans the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." One wonders what its drafters would say about the use of drones to arrest a family in a dispute over trespassing cows.

A Tumblr complaining about Progressive has gone viral. The author's sister, "Katie," died in a Maryland car accident; the other driver's insurance paid its limits, and Katie's family went to Katie's insurer, Progressive, to seek coverage for the underinsurance of the other driver. Progressive refused, so the family sued the other driver to prove liability, and found themselves adverse to Progressive in court, and the author was furious, as are readers of the story. (A jury found for Katie, so her family will recover from Progressive after all.)

Without more facts, however, it seems Progressive is being viewed unfairly. Maryland is one of the few remaining contributory negligence states: if Katie was 1% at fault in the accident, there is no liability to the other driver or Progressive. As the author himself admits, there was a "possibility that Katie was at fault in the accident." Is Progressive supposed to give money away when they aren't legally obligated to do so? The author says "One indication that the case was pretty open-and-shut was that the other guy's insurance company looked at the situation and settled with my sister's estate basically immediately." But because "that payment didn't amount to much," that insurance company could have reasonably decided that there was little point in spending the small insurance limits on attorneys instead of just writing a check. Progressive had more money at stake and more reason to defend.

Yes, "[c]arrying Progressive insurance and getting into an accident does not entitle you to the value of your insurance policy." But that's true for all insurance companies when the policy holder is not in a no-fault state. Progressive isn't unique in that regard.

As of 2007, Maryland permits recovery on a "bad faith" theory against insurers who refuse to pay claims where liability is not "fairly debatable." One would expect that Progressive would not have taken the action it did, and risk liability, if their position was not "fairly debatable." (See the entertaining story of Rex DeGeorge for examples of insurance companies being quick to pay when bad faith might be at issue.) The author seems to concede that Progressive's position was fairly debatable; he also makes no mention about further litigation against Progressive for its initial refusal to pay.

One sympathizes with the author for the tragic loss of his sister. But his fury at Progressive is misguided. Katie, and other Maryland drivers, pay as little for auto insurance as they do precisely because insurance companies don't have to immediately pony up when they are not liable. One could ask for different rules, but consumers would be paying for those different rules up front. Related: Consumerist.

In March, I discussed the Apple iPhone 4 settlement, where the attorneys negotiated a self-dealing attorney-friendly settlement that gave them clear sailing for $5.9 million and said "I will be surprised if there are 40,000 claims."

Color me mildly surprised: there were 44,000 claims, worth about $650,000 to the class. Judge Whyte of the Northern District of California cut the fee request to the inflated lodestar of $2.2 million without a multiplier, so the attorneys are only collecting a bit less than four times as much as their clients instead of nine to ten times as much. Apple, which was willing to give an extra $3.7 million to settle the case, gets to keep the money: the attorney greed and breach of fiduciary duty to their clients means that that money is left on the table instead of going to the class. This should have led to class decertification, but the attorneys will walk away with millions, which is why they're not too critical in the press of the multi-million-dollar haircut.

Defense counsel facing the Rothken Law Firm in Novato, Gardy & Notis in New Jersey, Robbins Geller Rudman & Dowd in Florida, or Kirtland & Packard in El Segundo in future cases, however, should absolutely raise this breach of fiduciary duty to the class in opposing any Rule 23(g) motion: these firms have demonstrated that they will abuse the attorney-client relationship and happily deny their own clients millions for a chance at a windfall.

But the California Bar is too busy protecting clients from a voluntary relationship with Stephen Glass to look into cases where attorneys who have already passed the bar are self-dealing and stealing millions from involuntary clients.

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

In a recent Featured Column on POL, Richard Epstein criticized a proposal put forth by law professor Richard Hockett that would allow local governments to address the mortgage crisis via eminent domain. Epstein explained the proposal as follows:

Now we have another equally bad proposal to intervene in the mortgage market. Recent pieces in the New York Times by Joe Nocera and Robert Schiller, have eagerly embraced an idea put forward by Cornell University Law Professor Robert C. Hockett. In an incredibly tedious and self-important article, Hockett suggests that local government agencies use eminent domain power to condemn mortgages that are underwater but not yet in default--at reduced prices (what Nocera calls "steep but fair discount")--and then let some municipal authority refinance the loans and resell them in bundles for a profit to the agencies in question. Naturally such a scheme would require a middle man, and a fat fee. Mortgage Resolution Partners (whom Hockett advises) is happy to play that role.

Earlier this week, Hockett's eminent domain proposal found another skeptic. Edward DeMarco, chief regulator for Fannie Mae and Freddie Mac, issued a public notice under the auspices of the FHFA expressing concerns about using eminent domain to condemn underwater mortgages:

FHFA has significant concerns about the use of eminent domain to revise existing financial contracts and the alteration of the value of Enterprise or Bank securities holdings. In the case of the Enterprises, resulting losses from such a program would represent a cost ultimately borne by taxpayers.

Among other things, the FHFA is worried about the constitutionality of the proposal, its possible effects on holders of existing securities and contracts, and the potential cost to taxpayers. The FHFA even warned that it might take action against local governments that institute such proposals:

FHFA has determined that action may be necessary on its part as conservator for the Enterprises and as regulator for the Banks to avoid a risk to safe and sound operations and to avoid taxpayer expense.

The FHFA's public notice included an invitation for public commentary on the matter up until September 7th as the agency "moves forward with its deliberations on appropriate action." In the meantime, taxpayers have a well-placed ally in the fight against this "fancy con game."

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

Who says cozying up to pro-attorney interest groups can't be a bipartisan exercise? The Wall Street Journal picked up on some curious words by Republican Senator Lindsey Graham during a keynote speech at the ABA's recent annual meeting:

Mr. Graham, who serves on the Senate Judiciary Committee praised the group's work vetting judicial nominees. "That service you provide the United States Senate is invaluable because in these politically charged times in which we live," he said, "you are a filter, sort of a wall, between people who are politically connected and somebody who should be on the bench."

This politically charged environment, Mr. Graham maintains, is the result of the Senate's broken process. "I'm really worried about how we're doing confirmations. They're turning into political events," the South Carolina Republican said. "I'm not worried about judicial activism, I'm worried about Senate activism."

Sen. Graham went on to claim that judicial nominees, regardless of ideology, "are entitled to be confirmed as long as they're qualified." Such comments by Sen. Graham would seem to fly in the face of his actions on the Senate floor, where the Senator has voted to block several Obama nominees that were rated as "well qualified" by the ABA.

More controversial, however, is the ABA's vetting process itself. Far from creating a "filter" or "wall" between politics and qualifications as Sen. Graham suggested, the ABA's judicial evaluations appear to be heavily influenced by politics given the ABA's preference for liberal nominees over conservative nominees. [See also on POL]. The most frequently cited example of bias is the ABA's sparkling rating ("well qualified") for Obama's recent Ninth Circuit nominee Goodwin Liu compared to its lukewarm rating ("qualified/not qualified") for Reagan's Seventh Circuit nominee Frank Easterbrook. For perspective, at the time of his nomination Easterbrook's curriculum vitae (former judicial clerk, assistant to the Solicitor General, Deputy Solicitor General, 20 cases argued before Supreme Court, career in academia) dwarfed Goodwin Liu's credentials (former clerk and academic, no cases argued before the Supreme Court).

The bias of the ABA led the Bush Administration to exclude it from the process of evaluating judicial nominees. Undeterred, the ABA further inserted itself into the political arena during Obama's time in office by openly lobbying the Senate to schedule votes on Obama nominees. In light of the ABA's politicized history - and Sen. Graham's own voting record - the Senator's comments to the ABA were curious indeed.

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

With attention from the likes of George Will and the Wall Street Journal, the "whale whistling" story has shed light on the concept of overcriminalization. [POL]. By now the facts of Nancy Black's predicament are well-known: She is being charged for making a "false statement" concerning her whale-watching activities to federal officials under Title 18, Sec. 1001 of the U.S. Code. This statute has proven quite useful to the feds, especially when they are unable to pin any other charges on a person they suspect of wrongdoing (like Ms. Black, who was originally under investigation for whale harassment).

Could it be that Sec. 1001 - an already overbroad statute - could be getting even broader? Lost in the obsession over NFIB v. Sebelius at the end of the Supreme Court's recent term was the Court's denial of certiorari in King v. United States, a case involving Sec. 1001. In King, the Ninth Circuit ruled that an Idaho rancher who lied to state officials could face federal criminal liability.

The [Ninth Circuit] wrote that "King lied to Klimes, one of the [Idaho] investigators, in order to defeat the investigation. A willful injection of fluid into a deep well without a permit from the State of Idaho is a federal crime under the Safe Drinking Water Act. Therefore, King made a false statement in a 'matter within the jurisdiction' of the United States." The Court's argument, in other words, was the essence of the overfederalization: 'You violated a state law and you lied about it to a state official. That's a federal offense.' [rightoncrime.com].

An amicus brief was filed in the case by a broad coalition of organizations (from the Cato Institute to the National Association of Criminal Defense Lawyers), noting that before the year 1984, Sec. 1001 was only used when false statements were made to federal officials; since then, however, it has been extended to create federal criminal liability for false statements made to state officials as well.

The trend toward more federal criminal liability - dubbed "overfederalization" of crime - is not limited to Sec. 1001. In fact, stories abound of individuals becoming ensnared in abstruse and obscure federal laws - and even facing jail time as a result. [Previously on POL]. In fact, just yesterday, the Heritage Foundation highlighted an effort to pass another redundant federal criminal law:

The SAFE DOSES Act, which just passed the House, makes stealing medical equipment a federal crime punishable by up to 30 years in prison and a $1,000,000 fine.

There is no doubt that conduct of the kind mentioned in the SAFE DOSES Act is wrong and should be punished criminally. But does it need to be prosecuted on the federal level? Are the state laws governing the crimes of theft, burglary, and larceny inadequate to address the crime of stealing medical equipment?

The answer is no. All 50 states already have laws under which they can prosecute the misconduct covered in the SAFE DOSES Act. In fact, the federal government does, too.

As the Heritage piece alludes to (but does not outright say), the SAFE DOSES Act is deficit neutral and thus provides Congress with an opportunity to pass something during these budget-strapped times. It also gives congressmen the chance to pose as tough on crime. The losers are average citizens, facing the Leviathan that is our criminal code.

Yesterday on Twitter, trial lawyer Max Kennerly accused me of promoting non-substantive policies in a throwaway tweet. I challenged him to name one. Rather than admit that he was wrong, he made up one: he falsely claims that I think "injury plaintiffs should always lose." This is clearly false, and I told him so.

He asked me to name five injury plaintiffs I thought should win; because of Twitter's 140-character-limit, I understood his "injury" to mean "injury" when he apparently had a secret meaning as "personal injury," when I listed five injured plaintiffs. So he's now claiming that because "injury" means something other than "injury," my examples didn't actually involve injuries and is making hay over the misunderstanding of his imprecision instead of being intellectually honest—including misrepresenting the result of Dewey v. Volkswagen, where class action attorneys tried to screw over a million class members who will now be able to collect for their injuries.

I've long complained about the game-show aspects of modern trial practice. Rather than a search for truth, trials have become a series of attempts by both sides to play "gotcha": can the lawyer trick the witness into saying something damaging that isn't true? Can the lawyer take an innocuous document out of context and fool a jury into thinking it is a smoking gun? Here, I apparently was supposed to respond "What do you mean when you say 'injury'?" instead of treating Kennerly as an intellectually honest person engaging in a conversation using the English language, and now he's playing "gotcha" because he had a secret definition of "injury" that I didn't deduce when he asked the question, and pretending that I couldn't answer the question he never actually asked.

It sort of shows the intellectual bankruptcy of reform opponents that Kennerly can't identify a single policy position where I'm wrong and feels the need to invent and attack a position that I've never taken and, indeed, no reformer has ever taken. Of course there are scenarios where personal-injury plaintiffs should win; I've even defended the position of plaintiffs in some hot-coffee lawsuits, for crying out loud. I've loudly condemned the medical malpractice at Desert Shadow Endoscopy (where trial lawyers ignored the malpractice and instead went after innocent deep pockets with the help of questionable judicial rulings). A friend of mine was recently the smaller mass in a pedestrian versus automobile accident, and should recover reasonable damages for her injuries against the negligent driver; when have I ever implied otherwise?

Kennerly owes me an apology, but he owed me a retraction the first time for his attack, and instead doubled down with additional dishonesty, and has now tripled down by expanding a forgivable tweet into a thoroughly offensive blog post (which he knows is false), so I don't expect it. But as I've discovered in the last three years of fighting trial lawyers ripping off "injury plaintiffs" (and winning millions of dollars for such "injury plaintiffs," often with the trial lawyers kicking and screaming against these recoveries), no matter how low my opinion of trial lawyers, I somehow manage to regularly underestimate how low they will go to promote their profits over people.