Overlawyered http://overlawyered.com Chronicling the high cost of our legal system Tue, 01 Sep 2015 13:05:06 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.4 I have read and agree http://overlawyered.com/2015/09/i-have-read-and-agree/ http://overlawyered.com/2015/09/i-have-read-and-agree/#comments Tue, 01 Sep 2015 13:05:06 +0000 http://overlawyered.com/?p=54970 “iTunes just made me promise I had read a 20,552-word, 9-point contract — with 3,276 words in all caps — before I could buy a $1.29 song” [@mbutterick] Tags: Apple, music and musicians, shrinkwrap/EULAs

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“iTunes just made me promise I had read a 20,552-word, 9-point contract — with 3,276 words in all caps — before I could buy a $1.29 song” [@mbutterick]

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Banking and finance roundup http://overlawyered.com/2015/09/banking-and-finance-roundup-9/ http://overlawyered.com/2015/09/banking-and-finance-roundup-9/#comments Tue, 01 Sep 2015 04:05:56 +0000 http://overlawyered.com/?p=54760 Marcia Narine on D.C. Circuit’s recent ruling striking down part of Dodd-Frank conflict mineral disclosure rule [Business Law Prof] More on suit challenging constitutionality of FATCA, the law complicating many expatriates’ lives [Paul Mirengoff, PowerLine] “Jury Will Put A Price On Terrorism — And Stick A Bank With The Bill” [Daniel Fisher, Reuters on Arab […]

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  • Marcia Narine on D.C. Circuit’s recent ruling striking down part of Dodd-Frank conflict mineral disclosure rule [Business Law Prof]
  • More on suit challenging constitutionality of FATCA, the law complicating many expatriates’ lives [Paul Mirengoff, PowerLine]
  • “Jury Will Put A Price On Terrorism — And Stick A Bank With The Bill” [Daniel Fisher, Reuters on Arab Bank settlement]
  • Operation Choke Point: “How a program meant to stamp out fraud has put a stranglehold on legitimate industries” [Reason TV video, AmmoLand on markup of Rep. Blaine Luetkemeyer’s anti-Choke-Point Financial Institution Customer Protection Act]
  • Federal Reserve’s denial of core banking services to Colorado cannabis businesses: consistent with its authorizing statutes? [George Selgin/Cato, related from me on RICO suit against bankers, bonders, and others interacting with the industry]
  • “A financial system based not on … charging interest for lending … but on traditional social values”: Russia’s Orthodox Church backs interest-avoiding finance system akin to Islamic sharia finance [Bloomberg, Moscow Times]
  • Two popular views in tension with each other: “Wall Street = short term thinking” and “Wall Street spins meager current earnings into bubbles” [Kevin Erdmann via Tyler Cowen]
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    The liability limit that created the modern online economy http://overlawyered.com/2015/08/the-liability-limit-that-created-the-modern-online-economy/ http://overlawyered.com/2015/08/the-liability-limit-that-created-the-modern-online-economy/#comments Mon, 31 Aug 2015 04:15:46 +0000 http://overlawyered.com/?p=54924 A tribute to Section 230: “No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one; if you have other candidates for that honor you think more worthy, please do share them.” — David Post on the fateful, intermediary-immunizing “No provider or user of […]

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    A tribute to Section 230: “No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one; if you have other candidates for that honor you think more worthy, please do share them.” — David Post on the fateful, intermediary-immunizing “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This bar to liability, Post writes, helped make possible “virtually every successful online venture that emerged after 1996 — including all the usual suspects, viz. Google, Facebook, Tumblr, Twitter, Reddit, Craigslist, YouTube, Instagram, eBay, Amazon.”

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    Supreme Court and constitutional law roundup http://overlawyered.com/2015/08/supreme-court-and-constitutional-law-roundup-4/ http://overlawyered.com/2015/08/supreme-court-and-constitutional-law-roundup-4/#comments Mon, 31 Aug 2015 04:05:23 +0000 http://overlawyered.com/?p=54624 New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair; Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato] Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” […]

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  • New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair;
  • Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato]
  • Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” [Daniel Fisher]
  • “Another Chance To Clean Up ‘Trial by Formula’ Class Actions” [Andrew Grossman/Cato, SCOTUSBlog on Tyson Foods v. Bouaphakeo]
  • “Bench Memos” to the barricades: National Review builds case for “resistance” to Supreme Court decisions” [my two cents on rhetoric likening Obergefell to Dred Scott]
  • Media firms including Time, Meredith, Advance, NPR jump into Spokeo case before high court, warn of Fair Credit Reporting Act litigation “quagmire” [Media Post]
  • After a tainted-food episode, managers convicted without a showing of mens rea? Egg case deserves a closer look [Ilya Shapiro, Cato]
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    Annals of bonkers scholarship: “Trahison des Professeurs” http://overlawyered.com/2015/08/annals-of-bonkers-scholarship-trahison-des-professeurs/ http://overlawyered.com/2015/08/annals-of-bonkers-scholarship-trahison-des-professeurs/#comments Sun, 30 Aug 2015 20:38:16 +0000 http://overlawyered.com/?p=54947 I’ve seen a hundred wacky and extreme papers out of legal academia, and wrote about more than one in Schools for Misrule, but this one, published by the National Security Law Journal at George Mason (whose editor-in-chief has already repudiated it) stands out. You can read the whole story at The Guardian, including links to […]

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    I’ve seen a hundred wacky and extreme papers out of legal academia, and wrote about more than one in Schools for Misrule, but this one, published by the National Security Law Journal at George Mason (whose editor-in-chief has already repudiated it) stands out. You can read the whole story at The Guardian, including links to some of the controversies that have followed author William Bradford, but it might make more sense to hand the gavel over to distinguished legal scholar and Prof. Jeremy Rabkin in his four-page rebuttal:

    When an article proposes to arrest law professors and bomb law schools and nearby TV studios, it’s not engaging in “controversy,” but slipping into an alternate universe. It’s not “discomforting.” It is bonkers. The journal could not reasonably have expected readers to “respond” – unless to ask, “Are you out of your minds?”

    Monday update: Bradford resigns.

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    The Prosser jukebox http://overlawyered.com/2015/08/the-prosser-jukebox/ http://overlawyered.com/2015/08/the-prosser-jukebox/#comments Sun, 30 Aug 2015 19:08:53 +0000 http://overlawyered.com/?p=54942 The late Prof. William Prosser, whose enormous influence on modern tort law has made him an occasional target of my windmill-jousting, wrote a parody song “The Common Law of Texas” in the early 1960s to the tune of “The Yellow Rose of Texas.” Kyle Graham found it and nominates North Carolina, Oregon, and Hawaii as […]

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    The late Prof. William Prosser, whose enormous influence on modern tort law has made him an occasional target of my windmill-jousting, wrote a parody song “The Common Law of Texas” in the early 1960s to the tune of “The Yellow Rose of Texas.” Kyle Graham found it and nominates North Carolina, Oregon, and Hawaii as states that currently follow their own path on common-law tort doctrine.

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    NLRB: we’re coming after franchisors and subcontractors http://overlawyered.com/2015/08/nlrb-were-coming-after-franchisors-and-subcontractors/ http://overlawyered.com/2015/08/nlrb-were-coming-after-franchisors-and-subcontractors/#comments Sat, 29 Aug 2015 11:11:06 +0000 http://overlawyered.com/?p=54929 In a long-feared ruling, the Obama National Labor Relations Board has ruled that a company that employs subcontractors or engages in franchising can over a wide range of situations be deemed a “joint employer” for purposes of liability for labor law violations and obligation to bargain over wages and working conditions with subcontractors’ or franchisees’ […]

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    In a long-feared ruling, the Obama National Labor Relations Board has ruled that a company that employs subcontractors or engages in franchising can over a wide range of situations be deemed a “joint employer” for purposes of liability for labor law violations and obligation to bargain over wages and working conditions with subcontractors’ or franchisees’ work forces. The decision imperils many of the most successful business models on the American economic scene. I’ve got a write-up at Cato observing that the ruling is likely to wreak havoc with, among many other sector, Silicon Valley and sharing-economy launches and asking “One wonders whether many of the smart New Economy people who bought into the Obama administration’s promises really knew what they were buying.”

    More coverage of the NLRB’s Browning-Ferris ruling: Reuters (quotes me on the not-bright prospects for Hill action); Seyfarth Shaw; Tim Devaney, The Hill; “Good week to change name of NLRB to National Labor Resuscitation Board.” [Jonathan Segal] And, from standpoints supportive of the ruling, Al-Jazeera and Prof. Catherine Fisk/On Labor.

    P.S.: At the Weekly Standard, Andrew B. Wilson notes that Obama wage/hour czar David Weil doubles as a key ideologist of the kill-outsourcing crowd.

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    “Pennsylvania AG, Facing Trial for Perjury, Uses Twin Sister as Courthouse Decoy” http://overlawyered.com/2015/08/pennsylvania-ag-facing-trial-for-perjury-uses-twin-sister-as-courthouse-decoy/ http://overlawyered.com/2015/08/pennsylvania-ag-facing-trial-for-perjury-uses-twin-sister-as-courthouse-decoy/#comments Fri, 28 Aug 2015 10:15:00 +0000 http://overlawyered.com/?p=54921 In case you had any doubt that the Kathleen Kane ethical saga in Pennsylvania is destined for a Hollywood treatment [Kathryn Rubino, Above the Law; Beth Ethier, Slate, whence the above headline] Relatedly or otherwise, our friends at the Competitive Enterprise Institute have named their pick of the nation’s six worst state attorneys general, with […]

    “Pennsylvania AG, Facing Trial for Perjury, Uses Twin Sister as Courthouse Decoy” is a post from Overlawyered - Chronicling the high cost of our legal system

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    In case you had any doubt that the Kathleen Kane ethical saga in Pennsylvania is destined for a Hollywood treatment [Kathryn Rubino, Above the Law; Beth Ethier, Slate, whence the above headline] Relatedly or otherwise, our friends at the Competitive Enterprise Institute have named their pick of the nation’s six worst state attorneys general, with Kane topping the list [Hans Bader/CEI, and thanks for link]

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    Magistrate recommends dismissal of Apple-made-me-watch-porn action http://overlawyered.com/2015/08/magistrate-recommends-dismissal-of-apple-made-me-watch-porn-action/ http://overlawyered.com/2015/08/magistrate-recommends-dismissal-of-apple-made-me-watch-porn-action/#comments Fri, 28 Aug 2015 04:15:01 +0000 http://overlawyered.com/?p=54906 A federal magistrate has recommended dismissal of an action by a Tennessee attorney representing himself who “contends that he should not have been inadvertently allowed to view pornography on the Internet,” and that Apple is liable for not including a default filter against such images on its devices. The plaintiff blames the resulting viewing for […]

    Magistrate recommends dismissal of Apple-made-me-watch-porn action is a post from Overlawyered - Chronicling the high cost of our legal system

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    A federal magistrate has recommended dismissal of an action by a Tennessee attorney representing himself who “contends that he should not have been inadvertently allowed to view pornography on the Internet,” and that Apple is liable for not including a default filter against such images on its devices. The plaintiff blames the resulting viewing for a host of physical and other ills, including the breakup of his relationship with his wife, who “simply could not compete with the endless stream of ageless cyber vixens, who ‘never say no’.” His earlier litigation against Google and other defendants likewise fell short. [Sevier v. Apple] [edited Aug. 31 to clarify that plaintiff was attorney representing himself, h/t David N. in comments]

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    Eric Schneiderman’s herbal-supplements adventure http://overlawyered.com/2015/08/eric-schneidermans-herbal-supplements-adventure/ http://overlawyered.com/2015/08/eric-schneidermans-herbal-supplements-adventure/#comments Fri, 28 Aug 2015 04:05:29 +0000 http://overlawyered.com/?p=54912 “Never apologize, never explain” is not a maxim to recommend for a state’s top law enforcer, and that goes for New York’s Attorney General Eric Schneiderman, the subject of my recent City Journal piece. Early this year Schneiderman charged that herbal supplements on sale at GNC, Walmart and other major retailers, when subjected to special […]

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    “Never apologize, never explain” is not a maxim to recommend for a state’s top law enforcer, and that goes for New York’s Attorney General Eric Schneiderman, the subject of my recent City Journal piece. Early this year Schneiderman charged that herbal supplements on sale at GNC, Walmart and other major retailers, when subjected to special tests arranged by his office, were found to lack DNA associated with the advertised herbs. Within days close observers and experts in the field had deduced why Schneiderman’s tests had produced such remarkable results: he had relied on testing methods badly unsuited to identifying active ingredients in substances that, like most of the supplements, had undergone extensive processing [see, e.g., Nicola Twilley, New Yorker; Live Science; Bill Hammond, New York Daily News]

    Other officials might have beat a timely retreat. Schneiderman’s office instead dug in, refusing to apologize, back down or even publicly disclose key facts about its testing methods. I’ve done a Cato Daily Podcast with Caleb Brown about the whole episode, including what is perhaps the most ominous aspect: such is the legal leverage of a New York attorney general that the targets chose to settle anyway. City Journal piece, again, here.

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