“Lance Armstrong Lied, Cheated, Doped…”

by Walter Olson on April 26, 2013

“…but Does He Really Owe Damages?” That’s what the U.S. Department of Justice will claim, at least. “Perhaps most curiously, how will the court assess damages on behalf of the Postal Service? Has the brand of the USPS actually been harmed by Armstrong’s years-late confession?” [Brad Wieners, Bloomberg Business Week]


1 Ted 04.26.13 at 9:25 am

Meh. The unjust enrichment count doesn’t seem too crazy: Armstrong received a substantial bonus under false pretenses. Interesting that the relator is Floyd Landis, which makes the unreported story the question of which private FCA lawyer is really behind this.

2 Theapplepan 04.26.13 at 9:45 am

Why don’t you think that a judge or jury shouldn’t make the determination as to what the Post Office’s damages are (if any)? Do you think that it would be better for a government bureaucrat to make the decision?

I must say what a pity it is that Cato is now sponsoring a blog which advocates for centralization of the law through legislative regulation, away from judges applying the common law developed over centuries through spontaneous order, and towards political control of the legal system. Bruno Leoni and Hayek are both spinning in their graves.

The United States maintains hundreds of thousands of prisoners under lock and key — more than any other society in history — the majority of whom have either committed victimless acts, been wrongfully convicted by overzealous prosecutors relying upon junk science, or sentenced to absurdly long sentences for the minor transgressions they have committed in violation of overly expansive law without basis in the US Constitution. That Cato has chosen to put its energy into promoting statist and federalized legislative solutions for civil law reform, is a major disappointment.

3 Hugo S. Cunningham 04.26.13 at 11:30 am

Theapplepan seems to have reposted a canned attack on Cato that has only a pasted-on link with this particular thread.

This sentence is an interesting half-truth:
>the majority of ["United States" prisoners] have either committed victimless acts, been wrongfully convicted by overzealous prosecutors relying upon junk science, or sentenced to absurdly long sentences for … minor transgressions.
[end quote]
He is correct that a majority of *Federal* prisoners are victimless drug offenders, but said victimless offenders make up only about 20% of the larger number of State-level prisoners.

4 Theapplepan 04.26.13 at 12:23 pm

I don’t know what you mean by “reposted a canned attack” and I am far from a critic of Cato as an institution, but in fact have been a fervent supporter for over 30 years. I am however, extremely disappointed by the adoption of this blog, and to have received the mass email this morning informing Cato’s members of it. Cato has historically offered libertarian, free market solutions to the problems with our legal systems, and I am usually a great admirer of their work in this area. This particular blog instead offers statist, political, legislative, and centralized regulatory solutions which abrogate the common law developed locally by spontaneous order over centuries. Like many market mechanisms, the common law is imperfect, but that is usually because of state intervention — indeed state control — of the legal system, for which free market solutions are available. I don’t think that this point of view — as illustrated perfectly well by this post — is in line with Cato’s mission.

As for my substantive point, note the use of the disjunctive, and you will see that my math works. The government and their monopoly control of the legal system has millions of victims, and is a much more severe threat to our liberty in this country than private lawyers seeking to resolve business disputes through private initiative.

5 gitarcarver 04.26.13 at 12:33 pm


I am not sure why you think Overlawyered is a “blog which advocates for centralization of the law through legislative regulation, away from judges applying the common law developed over centuries through spontaneous order, and towards political control of the legal system.”

The quote in the post is from the linked article, not an opinion of Olson himself. That is how this blog has always run. When asked, Olson may post an opinion, or he clearly states he is posting an opinion, but the blog, in my opinion, is successful, because it is a gathering point of articles and information which people can discuss.

Furthermore, if you believe this blog advocates for more laws and more “centralization,” I believe you have missed the point.

6 L. C. Burgundy 04.26.13 at 12:55 pm

“This particular blog instead offers statist, political, legislative, and centralized regulatory solutions which abrogate the common law developed locally by spontaneous order over centuries. ”

…it does? Mostly it’s a news accumulator with occasional light commentary. The outrageous stuff is usually in the story itself. I’ve read overlawyered for over a decade, and I can’t recall a single instance where where Walter or Ted posted about how they wish the legislature would just run the judiciary.

7 Walter Olson 04.26.13 at 1:13 pm

Gitarcarver — I have a feeling that TheApplePan, whoever he or she is, represents a certain sub-school within libertarian thinking that wishes to yank the libertarian card of anyone who believe that lawmakers should sometimes prescribe legal standards and the consequences of overstepping them through statute, as opposed to positing that any and all legal change to be legitimate must take place through putative common-law evolution. (While this view is most often found among people who see themselves as Hayekian, I don’t think it is fair to ascribe it to Hayek himself.) There are many problems with this view, among them that it doesn’t work very well in explaining the positions taken by most actual classical liberals over the centuries (especially but not only in civil law countries). Here’s a real-world example to think about. Suppose a state supreme court rules that a new tort of wrongful discharge will henceforth be recognized, displacing the old employment-law freedom-of-contract doctrine of employment at will. That’s a judge-made common law development, if a highly un-libertarian one. Now suppose a legislator in that state files a bill to restore freedom of contract by reaffirming employment at will. A libertarian like me might well be inclined to applaud such a bill as one that leaves the citizenry more secure in its freedom to contract. But because it is a statutory fix that would displace a mistaken turn in common law, I predict that TheApplePan would oppose it as “centralizing” (though one statewide rule would merely be replacing another), as “political control of the legal system” (though the judges who adopted the change might be just as political as any of the other figures on the scene) and most curiously of all, as “statist” (though the statutory fix would greatly reduce the level of state intervention in the market.) I at least appreciate the charm of novelty in the epithet; it’s not often that I get called statist.

8 Ron Miller 04.26.13 at 1:15 pm

Interesting argument. If these new readers are going to bring these kinds of arguments to the table, I’m happy whether I agree with them or not. I don’t know how I feel about the Lance Armstrong thing. I see both sides of it.

This whole Cato thing has me wondering though. I read this blog it part because I’m interested in Walter’s view which is not always informed by party affiliation. But I also assume Walter does not adopt every single view of Cato as his own. So what happens now when they do conflict? Do those posts see the light of day?

9 Walter Olson 04.26.13 at 1:24 pm

Ron — Cato can and does encourage a diversity of views, which means others at Cato sometimes advance positions I don’t share, and vice versa. But that’s always been true as well with respect to co-bloggers and guest bloggers posting at Overlawyered. If others from Cato begin to contribute posts from time to time, I hope and trust that you won’t impute their views to me or mine to them. We’re all different people.

10 Ron Miller 04.26.13 at 2:00 pm

Great answer.

11 jesse spurway 04.26.13 at 3:56 pm

I think it’s interesting that Theapplepan does not consider that judges can be government bureaucrats.

12 bobby b 04.26.13 at 10:08 pm

Would that the USPS could have taken Lance’s advice and got on steroids itself.

13 Them Apples 04.26.13 at 11:09 pm

Most do not understand what this is all about.

1. Suit was already brought, 2 years ago, by Floyd Landis.
2. US Gov by way of DofJ is joining it; not starting it.
3. This is about US government going on record; having history not question/wonder whether Armstrong/Team USPS was state-sponsored international pro sport cheating — for the history books being read 50 years from now (anyone remember East Germany of the 1960’s-70’s?)
4. If DofJ does not join the existing suit, history recorders will say it begs the question “why not?” (“something to hide?; maybe all coordinated by the state?”)
5. DofJ has to join the suit to ward that off; be categorical about it.
6. If you are going to act all righteous and indignant, you may as well go whole hog and have it play out in public courts (and not do a quiet settlement; that just leaves the same old questions)
7. This is not (primarily) about the money — both US government and Lance Armstrong got tons, last I looked
8. Floyd Landis? Well, yes, he could probably use his 25% cut of any award, as the whistleblower.
9. Lance had a penchant for making enemies (e.g., see Floyd Landis)
10. Some US senators and Congressmen were humiliated putting their necks on the line (some) by taking Lance’s side during the USADA investigation, going so far as to petition to have it shut down (believing Lance’s “witch-hunt” claims). They may have been pushing for this as well (yeah; they may have got a little peeved-off).

Lance liked to think himself as a smart guy. But he selected an agency of the government of the United States of America (USPS), one of the few established directly in the Constitution, to launch his racketeering ventures. He then hand-picked U.S. citizen cyclists to make up the bulk of this teammates. They turned out to be constitutionally hampered in any attempts to protect him (i.e., “be quiet”) when subpenaed.


Not too smart by halves.

14 George B 04.27.13 at 1:38 pm

I see the Lance Armstrong doping case more like NASCAR teams pushing the limits of the rule book. As an example, one NASCAR team that used a long meandering fuel line to get more fuel capacity while complying with the letter of the rule for fuel tank size. They got caught and a new rule was added to cover this type of cheating, but nobody was shocked that NASCAR teams were trying to find a way to gain an unfair advantage.

Lance Armstrong boosted the levels of naturally occurring substances in his body enough to win, but not enough to fail the blood tests. Floyd Landis boosted his testosterone levels to unnatural levels high enough to get caught.

Punishing Lance Armstrong within the sport of cycling seems reasonable, but I don’t see how the USPS brand was damaged. They benefited more from the publicity of the unfair wins than they would have if their cycling team didn’t win.

15 Bumper 04.27.13 at 7:58 pm

Somebody help me here. Exactly how could Lance Armstrong have damaged the USPS brand any worse than they have managed to do on their own? Or the Justice Department brand with the likes of Holder and Perez.

Armstrong’s mistake was in not joining the postal workers union, if he was a member they would have rallied around him to ward off those evil meanies out to besmirch the reputations of all the fine underpaid postal workers.

16 Melvin H. 04.29.13 at 2:41 am

Actually, since Landis himself admitted he doped (assuming he did it while at USPS cycling team), should not Landis himself be in the dock for unjust enrichment–not just for his time with the team but writing a book which turned out, like his defense all the to the Court for Administration in Sport and his OWN admission, to be a lie?

17 Ron Miller 04.29.13 at 10:16 am

I’m telling you right now, I can’t look at my mail the same anymore. It all looks like centrifuged blood to me. I should be a fact witness in the damages case.

18 Small Government Guy 04.29.13 at 10:51 am

I’m still trying to figure out why the USPS was sponsoring a team in the first place.

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