An op-ed in today’s Washington Times from Tony Coehlo, chairman of the Epilepsy Foundation, and NAM President John Engler, “Securing the Promise of the ADA“:

[The ADA Amendments Act] would clarify Congress’ original intent and restore coverage to people who have been cut out of the law’s protections because, in a distinction worthy of “Catch 22,” the courts have ruled them “too functional” to meet the definition of “disabled.” Such hair-splitting ignores the fact that these Americans still are vulnerable to discrimination -– and our economy and our entire society still need their fullest contributions.

At a time when the baby-boom generation is beginning to retire, companies and industries are facing growing shortages of skilled workers and international competition is becoming more intense, there must be zero tolerance for discrimination that discourages capable workers. And as injured veterans return from Afghanistan and Iraq, it is even more urgent that we prevent discrimination against Americans with disabilities. Regardless of party, philosophy, disability or walk of life, Americans should be able to agree on this: We need to strengthen a law that strengthens America by passing the ADA Amendments Act in the U.S. Senate and signing it into law.

H.R. 3195 passed the House last week, 402-17.

From Page A1 in today’s Wall Street Journal,  “China’s Export Machine Threatened by Rising Costs,” (subscription) documenting problems being faced in places like Honghe, “China’s Famous Town for Sweaters.” Excerpt:

Manufacturers say their profits have dwindled as they pay out more for raw materials and energy. China’s strengthening currency has made Honghe’s products more expensive for important markets such as the U.S., where the price of Chinese goods surged a record 4.6% in May from the previous year, according to the U.S. Commerce Department. Foreign buyers, used to inexpensive Chinese products and nervous about economic weakness at home, are often refusing to pay more.

Beijing, too, has contributed to the squeeze: Companies say the government’s tougher protection for workers and the environment has made it more expensive to do business. Foreign buyers say tighter visa policies have made it harder for them to visit Chinese factories or attend trade shows.

And the flip side, as previously noted, BusinessWeek reporting, “Can the U.S. Bring Jobs Back from China?” 

Lots of folks doing the story in one version or another:

Newsweek, “Dark Clouds Over The Delta“:

Twenty years ago Guangdong was the place most small, family-owned manufacturers in Asia flocked to, making it China’s top exporting province and a magnet for migrant labor from the hinterland. But since 2005, wages have risen 14 percent a year and the yuan began to appreciate, the trend has reversed. Tougher labor, tax and environmental rules implemented this year, combined with spiraling energy and material costs, have driven thousands of factories to quit the delta, the start of an inevitable “hollowing out,” says Tao.

Montreal Gazette, “Outsourcing to China not so cheap anymore“:

China’s cost advantage is being eroded by soaring oil prices, rising wages and an appreciating currency. Canadian companies that outsource their manufacturing to China are already feeling the pinch and some are even bringing production closer to home. Could globalization be reversed in an era of high oil? What would that mean for Canadian companies that have come to depend on the China Price?

MoneyShow.com, Howard Gold, “China Bulls Get Shanghaied:”

After August’s Olympic Games, I expect Beijing to start raising interest rates sharply and also to allow its currency, the renminbi, to float upward more aggressively to reflect its true value in world currency markets. As China’s wages rise and the currency strengthens, exports will soften. Combine that with high material prices and weak economies in the developed world and you have a case for much lower economic growth down the road than the pundits are projecting (currently 9.8% this year).

Now how to extrapolate these developments for maximum negative media spin? Hmmm…

“China Downturn Threatens U.S. Jobs”

Which may even be true.

President Bush sat down with a small group of reporters today, and Larry Kudlow has a few observations, disseminating what he can between the on-and-off-the-record rules.

First, the president will continue his strong push on energy deregulation to open up the offshore outer continental shelf, ANWR, and the shale fields. When asked if he would revoke the executive order moratorium on drilling, he said he was thinking about it. When asked whether he would give a prime-time nationally televised speech on the subject, he said he would think about that too.

He made it clear that the root cause of high gas pump prices and the $140 barrel price of oil is a lack of supply. He said we’re in a transition period from hydrocarbons to alternative technologies, but that drilling for more oil and gas is essential at this stage. He said taxing oil companies will not create any new supply. He also asserted that the marketplace works more effectively than a variety of new regulations.

Here’s the transcript of the President’s Rose Garden remarks on energy he made on June 18.

A bit more fodder on last week’s U.S. Supreme Court decision in Exxon Shipping v. Baker, in which the court reduced the punitive damages awarded in the wake of the Exxon Valdez oil spill from $2.5 billion to a maximun of $507.5 million — the same amount as awarded in compensatory damages. (Copy of the opinion here.)

Kathleen Flynn Peterson, the head of the national trial lawyers association, the American Association for Justice, issued a statement in response. Excerpt:

The Court said that punitive damages may be capped through a ratio only in maritime cases that do not involve extraordinary misconduct by the corporation itself. Those in the business community who claim this decision stands for a generalized punitive damage limit are wrong, and the Court has made clear their decision applies only to maritime cases. [Our emphasis.]

Straw-man argument. No one in the business community we saw oversold the decision as a sweeping statement on punitive damages, making it clear that the ruling was made under maritime law.  Still, it might influence decision-making in other cases. Take a look at the NAM release:

The ruling was decided on the basis of maritime common law, not constitutional principles, and so is limited in scope, said Quentin Riegel, the NAM’s Vice President for Litigation and Deputy General Counsel. At the same time, the Justices clearly found the original punitive damage award excessive and arbitrary.

“The Court’s ruling continues its recent, important trend of clarifying the limits on punitive damages,” Riegel said. “The formula they chose was based on reasonableness in a case with ‘no earmarks of exceptional blameworthiness.’ By settling on a one-to-one standard – punitives equal to compensatory damages – they provided a standard that other courts can turn to.

And that’s it. L. Gordon Crovitz, a columnist with the Wall Street Journal, further explained the considerations involved in setting punitive damage limits in today’s “Common-sense in punitive damages.”

Over the years, the justices have tried to find limits for punitive damages, with mixed success. Relying on the due process clause, an earlier Supreme Court opinion said that a 9-to-1 punitive-to-compensatory ratio was probably the limit for cases in which there was no intent or maliciousness. In a footnote in this Exxon case, the justices said that when the compensatory damages are substantial, the “constitutional outer limit may well be 1:1.” Later litigation will determine if this indeed has become the new bright-line test for excessive punitive damages.

It’s so unusual for the justices to set clear guidelines that Justice Souter felt obliged proactively to defend the court’s approach. “History certainly is no support for the notion that judges cannot use numbers,” he wrote. He noted that judges made up the 21-year period in the rule against perpetuities relating to inheritances, and courts over the centuries have set common-law age limits in many situations. It would usually be unwarranted judicial activism for judges to replace their judgment for legislative decisions, but where there’s a void, common-law judges do set limits. These can be somewhat arbitrary, but still manage to establish rules of the road.

The void that Crovitz refers to is the worst of all possible worlds for business; such a void includes the possiblity that punitive damages will destroy a company all together, which can lead to all sorts of ill-considered decisions. Predictablity, or at the very least the lack of capriciousness, is the hallmark of a rule of law, with similar wrongs producing similar consequences, in effect reinforcing deterrence. 

In any case, if the choice is straw man versus common-sense, we’ll take the latter.

Last week we congratulated Dominion Power for being granted an air quality permit that will allow a coal-fired power plant to be constructed in Wise County, Virginia. Goodness knows the region needs the electricity.

Naturally, a group of young protesters tried to block Dominion’s headquarters this morning, so it’s clear we’ve got another cause celebre for the silly self-righteous. The rhetoric from some of the “youth” as posted at the It’s Getting Hot in Here website is revealingly silly, self-righteous and yet ultimately totalitarian.

Non-violent direct actions against coal-fired power plants and mountaintop removal coal mining are increasing this year as it becomes more and more apparent that challenging the plants legally, legislatively and in the regulatory process are only parts of the strategy and that radical action is needed as well.

Earlier this year, U.S. based-activists engaged in civil disobedience actions in Boston, New York, North Carolina and Richmond in protest of coal and coal finance. Earlier this month, U.K. activists stopped and occupied a coal train headed to the Drax power plant for combustion.

Last week, Dr. James Hanson [sic], NASA’s climate scientist, called for “radical steps” to stop the “perfect storm” of catastrophic climate chaos.

In the spirit of Dr. Hanson’s call to action, BREF! and Mountain Justice’s message was loud and clear this morning: “We Won’t Stop Until You Do.”

Until we stop, what? Consuming electricity? Emitting carbon dioxide? Driving to work on Monday?

So interesting to see the self-promoting NASA scientist James Hansen rise even further in prominence. Last week he was calling for criminal trials against energy company executives, and now he’s providing the intellectual basis for monkeywrenching.

NASA scientist…NASA scientist….hmmm….radical theorist. Radical theorist James Hansen. Works for us.

UPDATE (5:30 p.m.): Richmond Times-Dispatch story: “[Hannah] Morgan said each protester was charged with obstruction of justice and interference with an emergency vehicle. ‘We are working hard to have these charges dropped,’ she said today.” Typical of this new era of protester, not even willing to face the consequences of their actions. Apparently they don’t understand that the seriousness of one’s cause demands real sacrifice by the individual actor; just inconveniencing someone else lacks moral weight. Haven’t they read Thoreau?

The Washington Times provides a pro-and-con matching of columns about the federal media shield legislation, i.e., a proposed law that would let journalists refuse to disclose their sources in legal proceedings. The Free Flow of Information Act is sponsored by Rep. Mike Pence (R-IN), who writes, “A legislative shield for the press?”

The con comes from Attorney General Michael Mukasey, who challenges the pressing need for a federal law. In “A shield for the press?” Mukasey focuses on national security and intelligence issues, but makes broader points worth noting:

The Department of Justice is committed to protecting a free and robust media, but creating a statutory privilege for journalists is no small matter. A legal privilege can bar access to information otherwise relevant to national security, criminal and civil investigations and proceedings. Technological advances constantly expand the population involved in what could be considered “journalism,” and the range of information potentially subject to a journalist’s privilege is virtually limitless.

Which suggests the private sector’s problems with the legislation, that is, creating an ill-defined class of citizens (journalists, bloggers, trial-lawyer fronts) with special, “extra” First Amendment rights to acquire and publish confidential business and personal records.  Your correspondent’s recent column in Forbes addresses some of those issues.

Mukasey also notes…

One might assume that a fundamental change of this kind would be considered only in response to a dramatic spike in the number of subpoenas to the press. In fact, the opposite is true. Since 1991, the Department has approved subpoenas to reporters seeking confidential source information in fewer than two dozen matters. This record provides no justification for a new statutory privilege.

That’s right. The push for a federal law came largely as a response to the jailing of New York Times reporter Judith Miller for refusing to reveal her sources in the Valerie Plame name leaking (it was Richard Armitage), and then the contempt charges levied against Toni Locy, a USA Today reporter who covered the rumor-plagued investigation of James Hatfill’s non-involvement in the anthrax case. The Justice Department last week settled with Hatfill for $5.8 million, while Locy’s legal circumtances remain cloudy. We draw from the comments from Hatfill’s attorneys that a federal media shield would have just shielded the attacks on Hatfill’s reputation.

Hatfill’s attorneys blasted the news media, making no distinctions in quality of coverage. “This was not a case in which a courageous whistle-blower called government malfeasance to the public’s attention,” they said in a statement. “It was instead a case in which the government used the press, violating federal privacy laws in the process.”

Does that kind of slander deserve protection?

For more from Hatfill’s perspective, see this WSJ op-ed by his attorney, Mark A. Grannis, “Justice and the Press.”

All in the tongue of the beslurper…

Anyway, last week ended with the usual wrap-up stories about the just-completed term for the U.S. Supreme Court. Dow Jones especially had a good review: “Supreme Court Term Is Mixed For Business, But Wins Were Big“: “The U.S. Supreme Court handed the business sector a mix of wins and losses in the 2007-2008 term ending Friday, but when business did win, it won big.” The opinions Dow-Jones highlights are Stoneridge, Riegel v. Medtronic and the Exxon Valdez case. More…

• Associated Press: Long quiet, justices end their term with a growl
• Associated Press: Summaries of leading Supreme Court cases
• USA Today: Paradox marks Supreme Court term
• Los Angeles Times editorial: The evolving Supreme Court
• New York Times, Linda Greenhouse: On Court That Defied Labeling, Kennedy Made the Boldest Mark
• Legal Times, Tony Mauro: Despite June Fireworks, a Calmer Supreme Court Term
• Christian Science Monitor: A Less Deferential High Court

Meanwhile, Akin Gump Strauss Hauer & Feld LLP and SCOTUSblog.com issued their annual end-of-term statistical summary of the U.S. Supreme Court’s decisions. A few highlights:

• The Justices issued 67 merits opinions after argument this term, the lowest number since the 1953-54 Term
• The Justices decided 71 cases in total this term, the lowest number of decisions in recent memory.
• Five-to-four rulings represented 17 percent of the term’s opinions; last year’s percentage was 33 percent.

 Crossposted from Point of Law.com.

Shopfloor.org has returned from its involuntary hiatus, the result of unexpected server maintenance. Chinese hackers were not involved….that we know of.

Meanwhile, here’s the week ahead:

It’s a slow Fourth of July week here in Washington, D.C. The House is out until Tuesday, June 8, at 2 p.m. The Senate, save for a pro forma gaveling today — oops, missed it! — will convene again on Monday, July 7 at 10 a.m. First Senate items of business after the Fourth will be H.R. 3221, the housing bill, and H.R. 6304, FISA Amendments Act.

Executive Branch: President Bush travels to Bethesda Wednesday for the ceremonial groundbreaking of the Walter Reed National Medical Center. On the Fourth, he becomes a Jeffersonian, speaking at Monticello’s 46th Annual Independence Day Celebration and Naturalization Ceremony in Charlottesville, Va. Treasury Secretary Paulson is making a quick European tour (Russia, Germany, Britain) delivering the keynote speech on economy and the market at the Royal Society of Arts in London Wednesday. Commerce Secretary Gutierrez and Education Secretary Spelling are at the Aspen Ideas Festival in Colorado participating in a panel Wednesday, “Strengthening Our Nation’s Workforce.”

Economic Reports: The Bureau of Labor Statistics releases the employment numbers for June on Thursday morning.

Elsewhere, the African Union begins its annual meeting today in Cairo and France takes over EU’s rotating presidency on July 1.

Happy Independence Day.

We’ve got a post up over at Point of Law.com on a U.S. Supreme Court decision that drew little national attention this week, its denial of certiorari to W.R. Grace appealing the criminal prosecution of the company and six of its executives in an asbestos case. (The court’s docket in W.R. Grace v. United States is here.) The NAM had filed an amicus brief in the case with the American Chemistry Council and National Association of Criminal Defense Lawyers. Our case summary is here, and the amicus brief is here.

Which reminds us of this excellent paper at the Washington Legal Foundation, “Federal Erosion of Business Civil Liberties,” and the WLF’s related project, “Criminalization of Free Enterprise - Business Civil Liberties Program.”

The United Space Alliance aerospace company manufactures special tiles that protect space shuttles from the fiery heat they encounter when re-entering Earth’s atmosphere.

The company wanted to cut down on waste in space shuttle tile production. So they turned to Microsoft Corp. Visio software and the ProModel Corp. Process Simulator to get the job done. Visio is software that helps businesses visualize systems, processes and other information while Process Simulator is a Visio plug-in.

United Space Alliance representative David Tucker, a guest on this week’s “America’s Business with Mike Hambrick” radio program, says the results were better than expected. Accompanying Tucker on the program is Microsoft representative Ingo Heel and ProModel Consulting Services Vice President Bruce Gladwin.

“I can tell you to triple the production requirements and not have to hire anybody new or buy any new equipment was a pretty amazing feat,” Tucker says. “So we were able to do that without tripling our resource requirements. We used what we had.”

Reporter James Fallows, a frequent contributor to Atlantic Monthly magazine, returns to “America’s Business” this week to continue his conversation about China’s environmental problems. China is one of the fastest growing economies in the world but lags far behind the United States when it comes to keeping air and water clean.

Nuclear energy could be an important component in making America independent of expensive imported oil. And a recent report from the Clean and Safe Energy Coalition (CASEnergy) says a renaissance of America’s nuclear power industry could create thousands of high-paying jobs.

Former Environmental Protection Agency Administrator and former New Jersey Gov. Christine Todd Whitman, co-chair of CASEnergy, will join Mike to talk about that report.

In our regular segments, Renee Giachino of American Justice Partnership gives us the latest on tort reform and commentator Hank Cox recalls “The Way It Was.” And the National Association of Manufacturers President Gov. John Engler will close the program with “The Last Word.”

For more about “America’s Business with Mike Hambrick” and to listen to the program online, please click here. And for video highlights and more, check out www.americasbusiness.org.