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Yep. That’s what I think. From the Times:

Mr. Obama’s jobs bill would prohibit employers from discriminating against job applicants because they are unemployed.

Under the proposal, it would be “an unlawful employment practice” if a business with 15 or more employees refused to hire a person “because of the individual’s status as unemployed.”

Unsuccessful job applicants could sue and recover damages for violations, just as when an employer discriminates on the basis of a person’s race, color, religion, sex or national origin.

This would make a prima facie case for discrimination fairly easy. You’re unemployed. You weren’t hired. Next, companies would have to engage in litigation to show that they had a legitimate nondiscriminatory reason for not hiring the unemployed person.

Representative Louie Gohmert, Republican of Texas, said the president’s proposal would, in effect, establish the unemployed as a new “protected class.”

Mr. Gohmert said the proposal, if passed, would encourage litigation by sending a message to millions of Americans: “If you’re unemployed and you go to apply for a job, and you’re not hired for that job, see a lawyer. You may be able to file a claim because you got discriminated against because you were unemployed.”

“This will help trial lawyers who are not having enough work,” Mr. Gohmert said.

Update: More from Richard Epstein.

Moving on, the most ghastly AJA innovation is its new-fangled antidiscrimination law that now makes it essentially illegal to discriminate against unemployed workers. The multiple objections to this provision have been ably summarized by Chicago-based columnist Steve Chapman. Yet they all boil down to one simple point. Hounding employers into hiring unemployed workers will do nothing to create jobs.

The bill’s antidiscrimination provision is intended to prevent employers and employment agencies from stating that all job applicants must be currently employed. Choking off that information is a disservice to just these workers. With countless applicants for each position, nimble employers can easily manufacture some individuated reason to turn down a given worker. So why send desperate workers on a wild goose chase? It is better to have greater job mobility, so that when one worker shifts jobs another place is opened.

There is obviously at least some loose correlation between the inability to get a job today and the ability to hold one tomorrow. It hardly helps the economy to require employers to place their entire businesses at risk by making them hire workers they deem unsuitable. To allow for this possibility, the basic statutory command is quickly attenuated with a giant exception that allows the employer to look at the individual’s employment history and qualifications in making hiring decisions, or by finding out how the applicant has fared in a similar or related job.

Not what you think.

Here:

Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.

One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters’ intentions. Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.

Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don’t merely show that the accused took someone’s property, but also show that he or she knew it belonged to someone else.

Over time, lawmakers have devised a sliding scale for different crimes. For instance, a “willful” violation is among the toughest to prove.

Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had “weak” mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.

Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress “puts forth an ever-increasing volume” of imprecise criminal laws and criticized lawmakers for passing too much “fuzzy, leave-the-details-to-be-sorted-out-by-the-courts” legislation.

Lawmakers on both sides of the aisle worry about the weakening of mens rea. “Over my six years in Congress there have been many times when in discussions with members of Congress I say, ‘Look, I know you want to show people how serious you are about crime, but don’t put anything on the books that doesn’t require criminal intent,'” says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked.

In a 2009 Judiciary subcommittee hearing on the growth of federal criminal law, Rep. Bobby Scott (D., Va.)., said that mens rea had long served “an important role in protecting those who do not intend to commit wrongful or criminal acts from prosecution and conviction.”

Very good WaPo piece about the inadequacy of multiple choice “bubble tests” to assess the knowledge of the information generation (I would lump law students here).

Kelly couldn’t get rid of the test he created, but we should be able to. Institutions of education should be preparing our kids for their future — not for our past. In the Internet age, we are saddled with an educational system that was designed for the industrial age, modeled on mass production and designed for efficiency, not for high standards.

We know that bubble tests address only a quarter of the kinds of knowledge students master in schools. For low-income kids, who have limited resources for college costs and thus little reason to think that their test scores matter to their future, the exams can seem irrelevant. For them, low scores can denote not just a possible lack of knowledge but also a possible lack of motivation to concentrate on the exam. Affluent kids, if they pay enough and take enough test-prep courses, can get higher scores.

We are not teaching and testing our students for responsible participation in the interactive digital age. Even at IBM, that industrial age behemoth, the developer of the time clock, 40 percent of employees now work at least partly at home in a system called “endeavor-based work.” School bell? Timed tests? Right answer chosen from four preselected ones? What does that old form of education have to do with our children’s future — or, for that matter, their present?

I hated multiple choice tests. I seriously did. I got a B+ in Con Law 1 (multiple choice) and a A- in Con Law 2 (part multiple choice, part essay). Both professors were shocked by my poor performance. I hate multiple choice. I will never use them for my exam.

H/T Steve R.

If necessity is the mother of invention, than Brown v. Plata is a big mama!