“…Hire others in the same protected group.” [Jon Hyman, Ohio Employer's Law Blog] Wait a minute. Isn’t that discrimination? And if, as Jon Hyman argues with some show of logic, employers have a strong incentive to follow this advice in replacing a dismissed employee given the way courts currently handle bias complaints, should we be disturbed that the law is itself encouraging discrimination?
A California state court, interpreting the state’s “right of publicity” law, has ruled that the rights of former Panamanian dictator Manuel Noriega were not infringed when he was turned into a character in the videogame Call of Duty: Black Ops II. Eugene Volokh has details [earlier].
Chicago police union sues to keep newspapers from seeing misconduct reports [Sun-Times; headline borrowed from @tpcarney]
One instance of abusive litigation discovery down, 437,816 to go. [WSJ Law Blog, Houston Chronicle, City of Houston, earlier]
More from Scott Shackford, Reason: “Oppressive subpoenas like this happen all the time, which is probably why Houston didn’t even realize it was poking at a hornet’s nest. Cities across the country fight back like this against citizens attempting to exert their right to influence municipal policy. … If the targets hadn’t been pastors, would we even had known about the subpoenas?”
Many libertarians have expressed interest in statutes, enacted in five states, which seek to give incurably ill patients access to “investigational” drugs which have passed the first stage in the FDA’s approval process but not reached final approval. Nice goal, but according to James Beck at Drug & Device Law:
…we don’t think these statutes are going to accomplish much, let alone achieve their purpose of making investigational drugs generally available to terminally ill patients having no other choices.
One obstacle is the supremacy of the FDA:
States can pass all the laws they want, but unless the FDA gives its okay to programs more expansive than its compassionate use (“expanded access”) program, nothing’s going to happen. It’s called “preemption.”
A second is liability. While the new crop of statutes are an improvement on earlier proposals which sought to conscript pharmaceutical companies’ participation, they still give drugmakers no strong protection from resulting lawsuits, and sometimes include language hinting at the reverse. Even though plaintiff’s lawyers would face their own challenges of proving causation and damages, there would still be unknowable legal downside with relatively scant upside, making for poor incentives to participate in the program by making investigational drugs available.
Cato’s Caleb Brown interviews Larry Salzman of the Institute for Justice in this podcast about the federal practice of seizing and keeping small businesses’ bank accounts when it claims to find a pattern of deposits below the $10,000 reporting threshold. Earlier here, etc.
Once the Deadbeat Dad machinery of the state is clanking along, actual innocence isn’t enough to excuse you, Carnell Alexander of Detroit says he has discovered to his sorrow. [WXYZ] Also, from last year, another Detroit case: “Father says he’s still paying child support for 3-year-old son who died 25 years ago”
Mr. Wemple’s various lawsuits have named as defendants all Illinois judicial circuits as well as, more recently, “the Illinois State Bar Association and all of its members,” for conscripting him into a legal process that is “defective and unsafe for its intended purpose in that it generates degeneration financially, psychologically and/or physically.” One of his filings charged the state bar association with “treason” of sundry varieties, not a well-formed complaint since “treason is a criminal offense, not a basis for a civil lawsuit.” A no-longer-patient judge has ordered him added “to the list of ‘restricted filers’ (sometimes called ‘vexatious litigants’) who typically must seek leave before filing anything (and pay fees up front) because of this sort of history.” [Lowering the Bar]
If you’re in D.C., RSVP and register for Cato’s luncheon event on the publication of Damon Root’s Overruled: The Long War for Control of the U.S. Supreme Court. Description:
Featuring the author Damon Root, Senior Editor, Reason magazine and Reason.com; with comments by Jeffrey Rosen, Professor of Law, George Washington University, and President & CEO, National Constitution Center; and Roger Pilon, Vice President for Legal Affairs, Cato Institute, and Director, Cato Center for Constitutional Studies; moderated by Walter Olson, Senior Fellow, Cato Institute.
What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it. Please join us for a refreshing account of this recent history.
[John Farrier, "Alarming Signs from the Dresden Public Art Show," Neatorama, more]
Speaking of warnings, Ted Frank’s observation on this…. exotic Hallowe’en costume is, “The warning is critical.”
Netscape founder Marc Andreessen, quoted in New York magazine “Intelligencer”:
If you have been in an Uber car and gotten pulled over and had the car seized out from under the driver when you were like in the middle of a trip that you were otherwise having a good time on, you might be a little bit radicalized. You might all of a sudden think, Wait a minute, what just happened, and why did it happen? And then you might discover what the taxi companies did over the last 50 years to wire up city governments and all the corruption that’s taken place. And you might say, “Wait a minute.” There’s this myth that government regulation is well intentioned and benign, and implemented properly. That’s the myth. And then when people actually run into this in the real world, they’re, “Oh [...] I didn’t realize.”
One of my favorite things of all time is George McGovern, who ran for president in ’72 as a hyperliberal. Of course Nixon [beat him badly]. And in 1992 he wrote a column for The Wall Street Journal which told the story of his life after he left politics, when he bought an inn in Connecticut. And he said, “Oh my God, I didn’t realize.” And the “Oh my God, I didn’t realize” was: I did not realize what a layered impact 50 or 100 years of regulations and laws applied on small-business owners actually meant.
Tending to confirm the predictions of those who hoped or feared, as the case may be, that the legal system would not actually be willing to encourage juries to take into consideration the justice of the outcome as well as the facts of the case in deciding whether to acquit. [Tuccille, our post two years ago when the law passed]
“An Alabama man who sued over being hit and kicked by police after leading them on a high-speed chase will get $1,000 in a settlement with the city of Birmingham, while his attorneys will take in $459,000, officials said Wednesday.” [Reuters/Yahoo] Readers may argue about whether this kind of outcome is fair, but note that it seems to happen more often, rather than less, in this country (with its putative “American Rule” that each side pays its own fees) than in other industrialized countries which tend more to follow “loser-pays” or “costs follow the event” fee principles. One reason for that is that the U.S. does not actually hew consistently to the so-called American Rule; across wide areas of litigation, including civil rights suits, it follows “one-way shift” principles in which prevailing plaintiffs but not prevailing defendants are entitled to fees, and whose encouragement to litigation is greater than either the American Rule or the loser-pays principle.
Related: The Pennsylvania legislature is moving to adopt a rule adopting one-way fees for some cases in which municipalities trample rights protected by the Bill of Rights’ Second Amendment, provoking peals of outrage (“dangerous,” “outrageous,” “threatens municipalities’ financial stability,” etc.) from elected officials few of whom seem to be on record objecting to one-way fee shifts when plaintiffs they like better are doing the suing. [Free Beacon]
“MIAMI – In a verdict in favor of U.S. Equal Employment Opportunity Commission (EEOC), a jury has found that a licensed security guard with only one arm was unlawfully discriminated against based on his limb loss when his employer removed him from his post following a customer complaint about his disability, the federal agency announced today.” The agency said it was well-settled under federal anti-discrimination law that employers cannot act on the basis of discriminatory consumer preferences. [EEOC press release]