Wednesday Writs: A Case of This, A Case of That Edition
Children in Afghanistan. Photo by Mirahmad Kouhnavard, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons
WW1: With the talk in recent days about the harsh treatment suffered by women and girls under Taliban rule, the practice of making very young girls marry was cited as an example. Some folks pointed out that the age of legal marriage in most of the United States is not exactly adulthood; in North Carolina, for instance, an adult man can marry a 14 year old girl, if he impregnates her first. The state has become a “regional destination for adults who want to marry children.” The NC legislature is trying to put an end to the practice — but raising the age to 16 was the best they could do in the face of some lawmakers who pushed back on the change. A bill is pending now that would not only raise the age to 16 but limit the age gap to 4 years, and require permission from a parent or a judge.
WW2: As if people didn’t hate California enough, a new animal welfare law may impact the availability of bacon. The 2018 law increased the amount of space required for pigs, chickens, and calves — and prohibits the sale of food products from producers who don’t comply, whether they are located in California or not. Currently, an estimated 4% of hog farms are in compliance, which means bacon is likely to become scarce in the Golden State when the law takes effect in January.
WW3: A major Second Amendment case has been scheduled for argument at the Supreme Court on November 3. The case comes out of New York, where the New York State Rifle and Pistol Association challenges a state law requiring carry permit applicants to demonstrate “proper cause” in order to receive the license. Along with the Association, the case is brought by two individuals whose applications were denied because they had not shown a “special need” for self defense beyond that which the public in general has. My educated guess is they have a good case here, but we won’t know until the spring.
WW4: We just saw how Justice Barrett tossed the lawsuit over vaccine mandates at Indiana University, and now federal judge in Connecticut just followed suit in a case out of UConn. This time, the reasoning was that of the 3 student plaintiffs, two had received exemptions and the 3rd had not asked for one, leaving no matter in controversy which the judge could decide.
WW5: The State of Texas might be next to ask SCOTUS to weigh in, as its highest court has upheld – temporarily – the governor’s EO banning on mask mandates in schools and other government run venues.
WW6: Last year, SCOTUS gave a big chunk of Oklahoma back to the Native Americans (sorta), sending its criminal justice system into chaos. Now the state is asking for a re-do. The opinion in McGirt v Oklahoma was 5-4, with Gorsuch joining the liberal quartet of Ginsburg, Breyer, Sotomayor, and Breyer to write the majority opinion. Now, of course, Ginsburg is gone and Amy Coney Barrett has taken her place. Oklahoma may intend to test Barrett’s loyalty to stare decisis and banking on her help to overrule McGirt.
WW7: The 5th Circuit upheld the dismissal of a lawsuit after the plaintiff’s attorney failed to respond to a motion for summary judgment. The case was in federal court, where almost all filings and pleadings are submitted electronically and emailed to the lawyers involved. The motion for summary judgment — to which the plaintiff had 14 days to respond — went to the lawyer’s “other” email folder rather than to his inbox. Based on the Court Rules of Civil Procedure, the judge in the case granted the motion, and the 5th Circuit was obliged to uphold the ruling. Moral of the story: Check your spam folders, people.
WW8: Presented without (my) opinion: The airline seat recline debate as a microcosm of property law.
WW5: a Texas school district (Paris) not too terribly far from me is trying out a loophole: temporarily adding masks to the dress code. So the twitter joking about “they can police the length of a girl’s Bermuda shorts but they can’t mandate mask wearing” may have come to something after all.
(I am going to have to offer online teaching the rest of this week; a student came to class infectious and tested positive slightly after and they and everyone who sat around them is having to quarantine. Because I’m vaccinated and was wearing a KN95 mask and was 10′ away I won’t, unless I have symptoms, but it’s being strongly suggested I get swabbed on Monday to be sure I’m not asymptomatically contagious. I am angry at the whole dang world this morning as a result)Report
I was reading something the other day where a mom wrote a letter to her school saying that if parents could allow their children to ‘opt-out’ of the mask mandate, then she was allowing her daughter to opt-out of the excessive requirements of the girls dress code.Report
I get her point, but let’s game it out. The two possible responses to acknowledging the truth in her argument: legitimize the dress code she clearly opposes by adding masks and continue to enforce it, or rescind the dress code and continue not to enforce masks, which is also not what she wants.Report
She left a comment to the effect that she wasn’t trying to overturn the dress code at that moment, but wanted the opt-out option removed.
Not that she was happy about the dress code, but that was a dragon to slay for another day.Report
In my hometown, which has become somewhat famous in the last week or so because of its, er, contentious school board meeting on masks, the school board mandated masks but with health or religious exemptions. As a childhood friend whose son is in kindergarten this year put it, half the kids’ parents have suddenly discovered religion.
This suggests that the option for dress code defiance is to claim religious exemption.Report
As Pastafarians, Spaghetti straps on a girls blouse are a religious staple, much like a Hajib is for Muslim girls!Report
WW2: Black Market Bacon.
In the past, most places have said “As goes California, so goes the Nation” and then gone on to either comply or make a roadmap to comply with California.
If that doesn’t happen this time, California will either have to deal with black markets, have to deal with blind eyes to the law, or have to deal without bacon.
Because I am a cynic: I’m not going to assume that they’re going to do without bacon.Report
No state that permits legal marijuana will long be able to restrict bacon.
Unless the vegan bacon is really, really good and affordable.Report
WW3: Wrong link – goes to CA bacon crisis, not NY gun caseReport
Thank you – fixed.Report
It ought to be held unconstitutional. And it’s a great example of why appeals to ‘common sense gun laws’ are so unconvincing.Report
Yeah, from what I’ve seen of the case, the issue was over, ahem, “disparate impact”.
Like, people from a particular economic caste were pretty much guaranteed to get their permit but people from other particular economic castes were pretty much guaranteed to *NOT* get it.
And the racial demographics of the economic castes in question were not identical.
But the linked article didn’t get into this so I don’t know if what I heard happens to be accurate.Report
There is an amicus brief from the NY public defenders office (or certain subsets of it, I don’t quite understand how it’s organized) that the enforcement of what is in practice a ban has a disparate impact on racial minorities.Report
It’s the assumption that if you belong to this economic caste, you are both very responsible with a firearm and naturally (by dint of being part of that caste) in some kind of mortal danger, so a permit is almost automatic.
But if you are part of that economic caste, even though crime statistics show that you are probably in some (relatively) greater degree of mortal danger in your neighborhood, you can’t be trusted to use, or secure, a firearm properly, so no boomstick for you!Report
My understanding of ‘may issue’ is that it in practice means LEOs and maybe veterans but no one else.Report
LEO’s and the politically connected (e,g, I remember reading that Robert Deniro has/had a permit).Report
WW1: A generational divide? Times like this I think we should have an upper age limit of elected representatives.Report
Who went on public record opposing a raising of the age and what was their argument? Holy smokes!Report
Oscar had it right – generational divide. One of the legislators quoted in the article said the opposition came from older members of both parties, several of whom had “my mom was married with two kids at 15 and look at me…” type stories.Report
If a random group of people can have stories like that, then we’re looking at some combo of corner cases and different cultures.Report
WW@:
From the article: “With little time left to build new facilities, inseminate sows and process the offspring by January…”
With “little time”. The law was passed three years ago. But of course, they ignored it, thinking they could
overturn it, or somehow evade it, but now that enforcement looms, they are squealing and snorting indignantly, complaining that the law leaves them hemmed in with no place to turn.
I say, we should leave them hanging on a hook.Report
It looks like there are multiple hooks there.
I have found that turkey bacon isn’t particularly good but turkey sausage is kind of okay, in that it makes you remember real sausage. Beef sausage is fine, I guess, but you’ll probably find yourself saying “I’d have preferred steak and eggs”.Report
Turkey bacon is wonderful if you like salty meat, but don’t particularly like fat.
Kiolbassa is awesome, smoky beef.
Would buy $100 of it off Costco.
Did buy $100 of it off Costco.Report
Maybe there are enough workarounds for Californians to not mind, then.Report
Did you miss the part where the state hasn’t released formal regulations yet? Why the hell should anyone invest in changes before they have hard and fast rules to work from? That quip about how the space requirements have been known for years is disingenuous, because those details matter, a lot!Report
I did see that, just above where it says the key rules about space have been known for years. Their complaints are hogwash.Report
You seem to keep making the assumption that pork producers will change in response to this legislation.
Have you taken the assumption that they may merely say “okay, we just won’t sell there” for a drive around the block? Could be interesting!Report
I want to chime in and say that I, at least, appreciated Chips clever wordplay in his swine comments.Report
Amen, brotherReport
I assume California will just get more pork from China.Report
Oh that’d be fun to see justified publicly.
“We have been assured that China’s bacon meets California standards by Chinese officials.”
(That kinda qualifies as a “blind eye”, though… California Pork has demonstrated that they don’t have enough clout to keep this law from passing in the first place. Pretty sure they won’t have enough clout to force the issue of Chinese Bacon.)Report
Yes, it would be interesting. California would be supplied with a small number of very richly compensated producers.
Say, maybe one of the Econ 101 folks could inform us- What are the long term consequences of a small number of producers making a killing in a market, with returns far above all the others?Report
California would be supplied with a small number of very richly compensated producers.
I’d need this fleshed out.
My read of the situation is that the assumptions are that their costs will be high enough to bite into the production costs and turn “very richly” into “eh, I’d make more money charging less but making it up on volume in the other 49.”Report
4% already comply, so presumably are already turning a profit.
But why are we talking like this is some hypothetical?
This is a perfectly normal occurrence in markets, where there is some external shock, followed by a spike in prices, then a return to equilibrium.
In this case, the equilibrium may be higher pork prices in California, and an opportunity for substitutes.Report
That 4% that already complies are likely to be able to continue to turn a profit and, indeed, charge more and thus make *MORE* of a profit!
“But why are we talking like this is some hypothetical?”
It has to do with the other 96%.
“In this case, the equilibrium may be higher pork prices in California, and an opportunity for substitutes.”
Yes. I agree.Report
CA, proudly served by Big Pork, and only Big Pork, because F-You to the small family farms.
PS I don’t honestly think the majority of pig farms in the US are small family farms, the capital outlays are just too much, but I guaran-damn-tee you that is how the PR goes.Report
The key rules are useless without the details. You spend $X updating your pens to meet the space requirement, and the final rules come back with some detail about how the area must be A, but the perimeter must be P1 to P2, or each pen must use specific materials, or whatnot, and now your investment is not in compliance, and there is no grandfathering.
Don’t pretend to be naive about how these rules are gamed by all parties (the regulators and the regulated).Report
I have no idea what’s going on here.
But I have found that, in my experience, 99% of the time when business is screaming like this, they’re lying. There are often valid complaints about regulations, but you should take any complaints with a large grain of salt simple because it’s in their monetary interest to, at the very least, massively exaggerate or simply leave out key details that would massively undercut their complaints.
lately it’s been the “We’re offering 15 an hour and can’t get people to apply” when, in reality, they’re offering 10 with irregular hours.Report
You work in a pretty regulated field, IIRC? How often would a company in your industry commit capital to changes based upon key rules fleshed out by a legislature but before the regulatory body had completed the final regs?
Do the prep work? Sure. Figure out if you’ll need to expand facilities and get that going, or line up suppliers and contractors, get on their schedules.
But being ready to be in full compliance, especially if the law itself was being challenged in court?Report
“How often would a company in your industry commit capital to changes based upon key rules fleshed out by a legislature but before the regulatory body had completed the final regs?”
It depends on what’s being finalized.
But I know for a FACT my company will cheerfully lie about regulations to pin blame on regulators and not themselves.
They did it to their own employees, blaming an unpopular shift in healthcare plans on the ACA. This was months before it was voted on, so it wasn’t a good lie.
My point here is you’re taking the company’s complaint as gospel truth. Yes, some details are finalized last minute — but in general, those are not details that will trip anyone up — if anything, those last minute changes are there to make transitions easier, lobbied for by the industry itself.
Regulators aren’t assholes, dude. They don’t make massive, last-second changes, then fine people for not snapping their fingers into compliance in a day.Report
If only 4% of pig farms are already in compliance (I’m betting that 4% represents a good chunk of the organic pork market), then regulators won’t have a problem putting a 6 or 12 mo* grace period on enforcement to allow people to get in compliance.
If they aren’t assholes, anyway.
We see this all the time, right? Hell, police departments often need years in order to get in compliance with legal rulings and new regulations, and constantly get deadline extensions, etc. I mean, if government itself needs so much time to align itself with new rules, we can’t expect less of private industry.
PS I’m not opposed to the rules themselves, just the idea that private actors who had a reasonable concern that a given law was up in the air should not be roasted for waiting to see where the chips fell, and should be permitted a grace period to get in compliance.
* WAG on the time needed to get in compliance, assuming farms have financing & suppliers & contractors ready to go.Report
Might be a good idea in realpolitik terms too because, outside of a handful of vegans, taking the bacon away from the voting public is sure to go over like a lead balloon.Report
The 4% is probably misleading. At one time, every farm in the midwest was raising a few pigs, with one to be sold for slaughter in winter. Does Marchmaine own hogs? The move towards factory farms has meant most of the smaller operations closed. 96% percent probably produce 99.9% of pork.
And as they’ve gotten bigger, they are more regulated. Around here a new facility will need to go through notice and hearing and environmental regulatory review before concrete can be poured. And the regulations strongly encourage a concrete waste basin under the building to prevent breaches.
And specialization usually means the hogs are not owned by the farmer. The farmer probably gets financing to build, but the farmer is there to meet the requirements of the pork processor. He only gets the hogs given to him and they are not his to sell elsewhere.
All in all though, the regulations might be so unenforceable outside the State of California that nobody outside the State needs to worry about doing anything.Report
The problem may be less “updating your pens” and more “proving that your pens are updated and that your special meat is somehow different from all other meat upstream”.
California is insisting there is now two different types of otherwise identical meat, rule compliant and not rule compliant. Who is going to be distributing this and how will it be done? Who is going to be labeling this and how will it be done?
Every stage in the national distribution network now needs to care about this. That 4% who comply are presumably “producers who control their own distribution networks”.
Up until this point, at a national level, different slices of a pig can be shipped to different states and mixed with other pigs from different states.
The level of engineering (and thus cost) will vary wildly from producer to producer, so some of them simply won’t comply. That means what for their processors? Can tools which were used to process “X” meat be used for tools that processed “Y” meat? Are we using a one drop rule where one slice of meat in a package means it’s unclean? How about one pig in a processing plant?
Not having rules for what means what at a processor level means some farmers can’t tell whether they should bother complying. Even if your farm does what CA wants, if your neighbor doesn’t and the processor can’t tell the difference, then you’ve just wasted your money.Report
How does a regulator from one state enforce a rule in another? I know with automotive exhaust, it was pretty straightforward to just check the car itself, the parts and assembly, to make sure it met the standard. But even VW found a way past that, and for how long before they were caught (not by regulators, mind).
So yeah, how are the meat packers supposed to control the entire supply chain? Actually, having grown up on dairy farms, the processors and distributors can exert a great deal of control over the producers, if they want to. If it’s in their financial interests to do so.
The problem CA will have is verifying that the processors and distributors are only selling meat in CA that came from compliant farms. The question will be, do the processors and distributors have the kind of tracking that let’s them make that determination, and if not, is it worth it to them to implement such tracking across the board; or the changes to the production facility that will enable such segregation?
And to take North’s comment up above, it will probably be in the best interests of the CA regulators to allow a generous grace period, unless they want to spend all their time trying to chase down violations while prices rise back home (and / or people just travel out of state for a couple of sides of bacon for their chest freezer and all their friends and family).Report
The problem CA will have is verifying that the processors and distributors are only selling meat in CA that came from compliant farms.
Just me, but I suspect the threat that “Unless you prove that your suppliers are meeting the requirements, you will not be selling in a market that is 40M people, 12% of the US population.” With the fear that some other states will follow CA’s lead, and you lose access to a much bigger market. Enough will figure it out.Report
I suspect they will. I also suspect CA will wind up granting a grace period for everyone to get into compliance.Report
WW2: An obvious compromise is to give the pigs less space in return for granting them carry permits.Report