FOIA findings: “Dozens of Justice Department officials, ranging from FBI special agents and prison wardens to high-level federal prosecutors, have escaped prosecution or firing in recent years despite findings of misconduct by the department’s own internal watchdog. … In at least 27 cases, the inspector general identified evidence of possible criminal wrongdoing but no one was prosecuted.” Many cases ended in oral admonishment of errant employees. While various legitimate reasons can underlie a decision not to prosecute, such as a poor prospect of securing conviction, low stakes, or unclear law, the rate at which public integrity cases have been prosecuted has dropped significantly since the previous administration. [McClatchy] More: AP, Tim Cushing/TechDirt, Scott Greenfield.

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Or so a California Court of Appeals “proudly announced …because it took only 20 years from a developer’s application to build a housing tract under existing zoning, to the court’s EIR [environmental impact review] approval.” [Gideon Kanner, citing Clover Valley Foundation v. City of Rocklin, 197 Cal. App.4th 200 (2011), as well as a September 2014 land use roundtable in California Lawyer]

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Liability roundup

by Walter Olson on September 17, 2014

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Maricopa County (Phoenix) Sheriff and longtime Overlawyered mentionee Joe Arpaio did not keep close track of the military-grade gear the Pentagon gave him — in fact, his office seems to have lost some of it — and now the feds are lowering the boom: “Because of the agency’s continued failure to locate nine missing weapons issued by the Pentagon’s 1033 program, the Sheriff’s Office was terminated from the military-­surplus program, effective immediately. The agency is required to return its cache of issued firearms, helicopters and other gear within 120 days.” Arizona Republic reporter Megan Cassidy quotes me regarding the interesting timing of the announcement, following closely after events in Ferguson, Mo. helped stir a nationwide furor over the 1033 program. It’s not specified (h/t Lauren Galik) whether they’ll have to give back the hot dog machine and $3,500 popcorn machine.

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An outcry has lately arisen over consumer contracts that purport to ban disparagement of the company that proffered the contract or its products, especially since a few such companies, seeking to silence customers vocally dissatisfied with products or services, have proceeded to sue them, threaten them with suit, or report them as credit risks. Although it is doubtful that existing law in fact permits practices of this sort, California proceeded to pass a new law protecting consumers from retaliation by companies they criticize — a law that appears to go much farther than just banning the practices that stirred the furor. [Volokh] Contra: Scott Michelman, CL&P.

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September 16 roundup

by Walter Olson on September 16, 2014

  • “When I asked them why they decided to sell their [toy import] business, they said that they got out because of Proposition 65 and the CPSIA.” [Nancy Nord]
  • State tax regimes are getting more aggressive about grabbing money earned in other states [Steve Malanga, City Journal]
  • “Still can’t get over the fact that all [development] permits are discretionary in San Francisco” [@TonyBiasotti linking Mark Hogan, Boom]
  • How would American politics change if political parties could expel members, as in many countries they can? [Bryan Caplan]
  • Defenders of Wisconsin John Doe prosecutor push back against Stuart Taylor investigation [Daniel Bice, Milwaukee Journal-Sentinel via Althouse, more, related on "blue fist" posters and John Doe investigator, earlier]
  • “In Britain, Child’s Weight Leads to Parents’ Arrest” [New York Times in June, King's Lynn 11-year-old; also, Cadbury agrees to "stop making chocolate bars in Britain with more than 250 calories"]
  • Should there be judicial remedies — what kind, and for which plaintiffs — when federal spending is politicized? [Daniel Epstein, Federalist Society "Engage"]

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“The City of Brotherly Love can’t get enough of its citizens’ property and cash. The city is in a class by itself in the world of civil asset forfeiture, says Institute for Justice attorney Darpana Sheth” in this Cato podcast with interviewer Caleb Brown. More on IJ’s suit challenging Philadelphia’s forfeiture practices: Philadelphia Inquirer, Nick Sibilla/Forbes, Dave Weigel/Slate, and Scott Shackford/Reason.

And by way of balance on the Philadelphia story: one who defends forfeiture law as “good law” that “works” is “CNN legal analyst and consumer attorney, Brian Kabateck,” seen before in this space and elsewhere in his role as a class-action plaintiff’s attorney.

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Details, always those pesky details: “A federal appeals court has upheld the dismissal of 750 tobacco suits, citing this major problem: The Florida law firm that brought the cases had mistakenly identified 588 dead smokers as still being alive.” [ABA Journal]

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Is the American job market becoming less fluid, as a new paper by Steven Davis and John Haltiwanger argues, with less job-switching and fewer vacancies opening up at established employers? And to the extent this is an unwelcome trend, which policies might be contributing to it? [The Economist; some possibly contrary data points from Alex Tabarrok]

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Not clear that anything has been learned from the green-washer fiasco: “Spurred by President Obama’s climate action plan, the Department of Energy is pumping out new standards for refrigerators, dishwashers, air conditioners, ceiling fans, furnaces, boilers, water heaters, lamps and many more appliances…. critics argue the push to regulate household appliances is evidence of a nanny state.” [The Hill]

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But then the plot thickened… [Matt Haughey, Medium via Popehat]

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Coo coo for conflict minerals

by Walter Olson on September 13, 2014

The U.S. government has conceded that it can’t actually tell “which refiners and smelters around the world are financially fueling violence in the war-torn Congo region.” However, under a law passed by Congress in a fit of moral self-congratulation, publicly held companies are still going to be subject to stringent penalties for disclosure violations if they screw up on the reporting of these ultimately untraceable connections. Time for repeal [Bainbridge, Emily Chasan/WSJ CFO Journal blog; earlier]

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“Raw milk is risky. But that doesn’t mean it should be illegal.” [Joseph Stromberg, Vox]

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Disparate impact by way of location? “Four environmental groups announced a federal complaint Thursday alleging that North Carolina’s hog farms discriminate against ethnic minorities because the stench and pollution from the swine operations disproportionately affect African Americans, Latinos and Native Americans who live nearby.” [Raleigh News & Observer]

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Mallory Musallam had been a plaintiff in a class-action suit seeking minimum wage and overtime against the talk-show host on behalf of former interns. Now she has apologized and withdrawn her name, saying “lawsuit-hungry attorneys” had approached her at “a weak vulnerable time, facing student debt” and talked her into taking part in an action whose exact nature she didn’t recognize. “I cannot apologize enough for this debacle. I do not believe in getting something for nothing — that’s not how I was raised.” Her “now-former lawyer, Lloyd Ambinder, did not return a call for comment.” [N.Y. Daily News]

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Registration is open only until Monday for one of the Cato Institute’s premier annual events, the annual Supreme Court symposium celebrating Constitution Day and the publication of what will be the thirteenth annual Cato Supreme Court Review. The theme of the all-day event is “Past and Prologue,” looking back to the 2013 term and forward to the next, and panelists include Nadine Strossen, Tom Goldstein, Michael Carvin, and Eric Rassbach, as well as familiar Cato names like Roger Pilon, Ilya Shapiro, and Trevor Burrus. The program concludes with the annual B. Kenneth Simon Lecture, this year given by the Hon. Diane Sykes, judge on the Seventh Circuit U.S. Court of Appeals, who will discuss “Judicial Minimalism and Its Limits.” A reception follows. Register here.

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September 12 roundup

by Walter Olson on September 12, 2014

  • ObamaCare, Common Core, EPA policy all raise specter of federal commandeering of state governments [Richard Epstein and Mario Loyola, The Atlantic] Vocally supporting Common Core, William Bennett provides new reasons to be queasy about it [Neal McCluskey, Cato]
  • Mom lets six-year-old play within sight of his own front door. Then Child Protective Services arrives [Haiku of the Day]
  • Study finds no evidence California cellphone ban reduced accidents [The Newspaper]
  • Or maybe if you’ve been in good health for 13 years it’s okay to let the grievance slide: pols, union leaders urge unimpaired WTC rescuers to enroll for possible future compensation [AP/WCBS]
  • “Thomson Reuters Thinks Not Responding To Their Email Means You’ve Freely Licensed All Your Content” [Mike Masnick, TechDirt]
  • New frontiers in urban expropriation: San Francisco imposes crushing new “relocation assistance” burden on rental owners [Pacific Legal Foundation]
  • A lesson in standing up for individual liberty, and not being discouraged by setbacks [my Cato Institute piece on Lillian Gobitis Klose's flag-pledge case, Donald Boudreaux/Cafe Hayek]

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Much more than Citizens United

by Walter Olson on September 11, 2014

This week forty-eight senators are seeking to amend the Bill of Rights so as to give the government more power to control campaign speech. While some advocates pretend that the effect of the amendment would “only” be to overturn the Supreme Court’s decision in Citizens United, it would actually go a good bit farther than that. [Jacob Sullum, Reason; George Will; Trevor Burrus at Forbes ("political stunt," yet "terrifying"); related, David Boaz]

Concur: ACLU. Update: measure fails.

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