Overlawyered http://overlawyered.com Chronicling the high cost of our legal system Fri, 24 Oct 2014 04:15:53 +0000 en-US hourly 1 http://wordpress.org/?v=4.0 Illinois Supreme Court battles http://overlawyered.com/2014/10/illinois-supreme-court-battles/ http://overlawyered.com/2014/10/illinois-supreme-court-battles/#comments Fri, 24 Oct 2014 04:15:53 +0000 http://overlawyered.com/?p=49034 Really, the headline is as good an introduction to this tangled web as any: “Clifford firm contributes $150K to unseat Justice on the same day he’s in court saying campaign money corrupted Supreme Court.” [Madison County Record, related post ten years ago] Also, Illinois election officials say the state may need to have a slow […]

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Really, the headline is as good an introduction to this tangled web as any: “Clifford firm contributes $150K to unseat Justice on the same day he’s in court saying campaign money corrupted Supreme Court.” [Madison County Record, related post ten years ago] Also, Illinois election officials say the state may need to have a slow Election Night [The Southern Illinoisan]

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Food roundup http://overlawyered.com/2014/10/food-roundup-20/ http://overlawyered.com/2014/10/food-roundup-20/#comments Fri, 24 Oct 2014 04:05:19 +0000 http://overlawyered.com/?p=48767 Sugar, tea, fish and game, public houses: food freedom grievances helped fuel America’s revolution against Britain [Baylen Linnekin] Colorado, Oregon voters consider GMO labeling, which “likely will mislead more than inform.” [David Orentlicher, Health Law Prof] “Say No to GMO Labeling, Even If It Feels Terrible” [alt-weekly Portland Mercury; earlier on GMOs] “White House Boosts […]

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  • Sugar, tea, fish and game, public houses: food freedom grievances helped fuel America’s revolution against Britain [Baylen Linnekin]
  • Colorado, Oregon voters consider GMO labeling, which “likely will mislead more than inform.” [David Orentlicher, Health Law Prof] “Say No to GMO Labeling, Even If It Feels Terrible” [alt-weekly Portland Mercury; earlier on GMOs]
  • “White House Boosts Fictional ‘Food Addiction’ Concept to School Kids” [Glenn Lammi, WLF]
  • D.C. Circuit: immigration law doesn’t block specialized Brazilian steakhouse chefs from coming to U.S. [Joe Palazzolo, WSJ Law Blog]
  • “Why Is the USDA Buying Submachine Guns?” [Modern Farmer]
  • Little evidence new FDA food labeling rules will improve health [Robert Scharff and Sherzod Abdukadirov/Regulation mag, more] Flaws of agency’s “added sugar” labeling proposal [Glenn Lammi, WLF]
  • California tries to dictate standards for raising animals in other states; do you think the Constitution might have something to say about that? [Linnekin]
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    Mauna Kea, NAGPRA, and science’s “turn back toward the dark ages” http://overlawyered.com/2014/10/nagpra-mauna-kea-turn-back-toward-dark-ages/ http://overlawyered.com/2014/10/nagpra-mauna-kea-turn-back-toward-dark-ages/#comments Thu, 23 Oct 2014 10:27:00 +0000 http://overlawyered.com/?p=49025 Now this is welcome: the New York Times (via Ronald Bailey) has a column by George Johnson jumping off from the question of whether locating a giant telescope on Mauna Kea would unfairly desecrate the religious and ancestral heritage of (some) native Hawaiians. Johnson notes: While biblical creationists opposing the teaching of evolution have been […]

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    Now this is welcome: the New York Times (via Ronald Bailey) has a column by George Johnson jumping off from the question of whether locating a giant telescope on Mauna Kea would unfairly desecrate the religious and ancestral heritage of (some) native Hawaiians. Johnson notes:

    While biblical creationists opposing the teaching of evolution have been turned back in case after case, American Indian tribes have succeeded in using their own religious beliefs and a federal law called the Native American Graves Protection and Repatriation Act to empty archaeological museums of ancestral bones — including ones so ancient that they have no demonstrable connection to the tribe demanding their reburial. The most radical among them refuse to bow to a science they don’t consider their own. A few even share a disbelief in evolution, professing to take literally old myths in which the first people crawled out of a hole in the ground.

    In this turn back toward the dark ages, it is not just skeletal remains that are being surrendered. Under the federal law, many ceremonial artifacts are also up for grabs. While some archaeologists lament the loss of scientific information, Indian creationism is tolerated out of a sense of guilt over past wrongdoings.

    Even some scientists bow and go along in the spirit of reparations, while admitting the loss to human inquiry and future knowledge. Earlier on NAGPRA and the Kennewick Man controversy here, here, etc.

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    “Should the SEC be prosecutor, judge, jury, and executioner?” http://overlawyered.com/2014/10/sec-prosecutor-judge-jury-executioner/ http://overlawyered.com/2014/10/sec-prosecutor-judge-jury-executioner/#comments Thu, 23 Oct 2014 04:24:55 +0000 http://overlawyered.com/?p=49022 Prof. Bainbridge flags this disturbing Wall Street Journal piece: The Securities and Exchange Commission is increasingly steering cases to hearings in front of the agency’s appointed administrative judges, who found in its favor in every verdict for the 12 months through September, rather than taking them to federal court. Previously, the agency had tended to […]

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    Prof. Bainbridge flags this disturbing Wall Street Journal piece:

    The Securities and Exchange Commission is increasingly steering cases to hearings in front of the agency’s appointed administrative judges, who found in its favor in every verdict for the 12 months through September, rather than taking them to federal court.

    Previously, the agency had tended to use the ALJs (administrative law judges) for relatively cut-and-dried enforcement actions, while taking more complex or cutting-edge disputes to federal court. Now, following the Dodd-Frank expansion of its powers, it prefers ALJs even for many complex and demanding cases arising from charges such as insider trading. Defendants enjoy a range of protections in federal court that are not provided in administrative litigation, including juries as well as the presence of federal judges who are independent of agency control, held to a more demanding ethical code, and drawn generally from higher and more sophisticated circles within the legal profession. Read the entire Bainbridge commentary, with followups linking Henry Manne (adjudicatory actions are ways to avoid the more demanding process of rulemaking) and Keith Bishop (current system open to constitutional challenge?).

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    October 23 roundup http://overlawyered.com/2014/10/october-23-roundup-3/ http://overlawyered.com/2014/10/october-23-roundup-3/#comments Thu, 23 Oct 2014 04:05:57 +0000 http://overlawyered.com/?p=48451 I’m quoted by Nicky Woolf of Great Britain’s Guardian on the police militarization angle in Keene, N.H. civil disturbances (also: Van Smith, Baltimore City Paper). Also quoted regarding the ominous move to heavy armaments of Wisconsin prosecutors investigating their political opponents in the dawn-raids “John Doe” proceeding [Watchdog, and second post, earlier] Humor in The […]

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  • I’m quoted by Nicky Woolf of Great Britain’s Guardian on the police militarization angle in Keene, N.H. civil disturbances (also: Van Smith, Baltimore City Paper). Also quoted regarding the ominous move to heavy armaments of Wisconsin prosecutors investigating their political opponents in the dawn-raids “John Doe” proceeding [Watchdog, and second post, earlier] Humor in The New Yorker from Bruce McCall ["Pentagon Cop Aid Hits Snags"] And here’s a previously unlinked Cato panel last month on cop militarization with David Kopel, Mark Lomax, and Cheye Calvo, moderated by Tim Lynch;
  • Australia prime minister declares “repeal day” with “bonfire” of regulations [Jeff Bennett and Susan Dudley, Cato Regulation mag; earlier on Minnesota legislative "unsession" to dump outmoded or pointless laws]
  • “After dawdling for a year, panel tosses bogus complaint against Judge [Edith] Jones” [@andrewmgrossman on Houston Chronicle via Howard Bashman, Richard Kopf, Tamara Tabo, earlier here, here, and here]
  • Making waves: Michelle Boardman review of Margaret Radin book on boilerplate, adhesion contracts, fine print [Harvard Law Review, SSRN]
  • Why litigation lobby could cost Democrats Senate majority this year [Tim Carney]
  • Online-services companies, better not do business in Maryland since the state has a very special law that one law professor believes sharply restricts your customer research [Masnick/TechDirt]
  • Picking Thomas Perez as Attorney General would (or should!) ignite firestorm of opposition. Is that why President’s waiting till after Nov. 4? [Washington Examiner]
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    Idaho Hitching Post case http://overlawyered.com/2014/10/idaho-hitching-post-case/ http://overlawyered.com/2014/10/idaho-hitching-post-case/#comments Wed, 22 Oct 2014 16:08:48 +0000 http://overlawyered.com/?p=48973 I was preparing a post on the case from Idaho in which husband and wife Donald and Evelyn Knapp have pre-emptively sued (complaint, motion for TRO) to prevent the application of the city of Coeur d’Alene’s public accommodation law from being used to require their wedding chapel business, the Hitching Post, to handle same-sex weddings. […]

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    I was preparing a post on the case from Idaho in which husband and wife Donald and Evelyn Knapp have pre-emptively sued (complaint, motion for TRO) to prevent the application of the city of Coeur d’Alene’s public accommodation law from being used to require their wedding chapel business, the Hitching Post, to handle same-sex weddings. In the mean time Andrew Sullivan has done a post pulling together most of what I planned to say, so go read that instead.

    Sullivan quotes my observation on Facebook:

    I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.

    While I hope the Knapps succeed in establishing their exemption from this law, I am still shaking my head at the ADF’s framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something very akin to hiding the ball, including (as cited by Sullivan) the quiet legal revamping of the business onto a religious basis in recent weeks and the silent removal of extensive language on its website that until earlier this month had promoted the chapel as a venue for civil, non-religious wedding ceremonies.

    Now, the Knapps are free (or should be, in my view) to change their establishment’s business plan overnight to one that welcomes only ceremonies consistent with Foursquare Evangelical beliefs. But shouldn’t their lawyers be upfront that this is what’s going on? Especially since even sophisticated commentators, let alone casual readers, are construing the city of Coeur d’Alene’s legal position by reference to what its lawyer said back in May, when the Knapps were running the business the old way. (Back then, as Doug Mataconis notes, coverage included the following: “Knapp said he’s okay with other ministers performing marriages at their facilities but it is not something he will do.” — a position that appears to have changed, again without acknowledgment.)

    Let’s be blunt. ADF, which was involved in helping the Knapps revamp their enterprise onto a religious basis, is by the omissions in its narrative encouraging alarmed sympathizers to misread the situation.

    Could the city of Coeur d’Alene force the Knapps to provide ministerial officiation of same-sex weddings? As Eugene Volokh explains, in a post based on the initial reports, the clear answer is no, since such compulsion would be an unconstitutional forcing of speech and “would also violate Idaho’s Religious Freedom Restoration Act.”

    Besides those two distinct layers of legal protection, they are likely to benefit from a third, noted in this May article in the Spokane Statesman-Review: “religious entities are exempt from the Coeur d’Alene ordinance” and “pastors in the city are not obligated to perform same-sex weddings.” (Todd Starnes links to the Spokane article, but makes no reference to these bits.)

    Possibly — the statements of municipal lawyer Warren Wilson in May are ambiguous — the city saw the then-secular Hitching Post as obliged not only to provide the equivalent of a hall rental to same-sex applicants, and sell them silk flowers and other incidentals, but also connect them with an outside officiant sympathetic to their union to pronounce the ceremony. It is by no means clear that the city would apply the same requirements to the Knapps’ newly revamped and far more explicitly religious Hitching Post. It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps.

    Even absent any obligation to officiate, it seems to me that a family business in this situation has at least as sympathetic a case as the cake bakers, wedding photographers, invitation engravers, and hall providers who sought exemptions in previous episodes. But really, isn’t our libertarian case strong enough that it can stand on an accurate description of what’s actually going on?

    Update: Via Eugene Volokh, Coeur d’Alene’s attorney has now sent a letter making clear the city’s position that even the newly reorganized Hitching Post is subject to the law because the law’s religious exemption covers by its terms “nonprofit” religious corporations, which theirs is not. Volokh argues, I think plausibly, that this position will fail in court if applied to compel the provision of ceremonies because both the constitutional right against forced speech and the state Religious Freedom Restoration Act extend in their application beyond nonprofits. Indeed, the city lawyer’s own letter cites a provision, section 9.56.040, in the city’s anti-discrimination ordinance, stating that the ordinance “shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion”. This provision would appear not merely to permit, but to require, the city to back off enforcement efforts that conflict with speech and religious freedoms, whether exercised in a non-profit or for-profit setting. The letter — which in its reference to “services” draws no distinction between functions like hall and equipment rental, and expressive ceremonial services — would thus appear to put the city on a collision course with the speech and religious freedoms of the Knapps.

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    Dr. White Coat on the pink-panties case http://overlawyered.com/2014/10/dr-white-coat-pink-panties-case/ http://overlawyered.com/2014/10/dr-white-coat-pink-panties-case/#comments Wed, 22 Oct 2014 14:08:36 +0000 http://overlawyered.com/?p=49000 The Emergency Physicians Monthly columnist, often linked in this space, on a case noted in our open thread last week: From comments at Overlawyered.com … Employee of a surgicenter goes to facility for a colonoscopy. When he wakes up, he was wearing pink underwear. As a result, he suffered extreme emotional distress, humiliation, loss of […]

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    The Emergency Physicians Monthly columnist, often linked in this space, on a case noted in our open thread last week:

    From comments at Overlawyered.com …

    Employee of a surgicenter goes to facility for a colonoscopy. When he wakes up, he was wearing pink underwear. As a result, he suffered extreme emotional distress, humiliation, loss of wages and loss of earning capacity. He is now suing.

    While I probably would have laughed off a prank like this, I can understand why some people would have been upset. But suffering a loss of earning capacity from being dressed in pink panties as a prank? I’d like to see how that happened.

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    Liability roundup http://overlawyered.com/2014/10/liability-roundup-3/ http://overlawyered.com/2014/10/liability-roundup-3/#comments Wed, 22 Oct 2014 04:05:16 +0000 http://overlawyered.com/?p=48506 How legal doctrine changes in a state-based system: “The Diffusion of Innovations in Tort Law” [Kyle Graham] Are courts growing (appropriately) disillusioned with cy pres? [James Beck and Rachel Weil, WLF; Beck, D&DL, on Redman v. RadioShack] “Asbestos lawyers want $2.5 million for losing fight to keep Garlock records sealed” [@DanielDFisher on Legal NewsLine report] […]

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  • How legal doctrine changes in a state-based system: “The Diffusion of Innovations in Tort Law” [Kyle Graham]
  • Are courts growing (appropriately) disillusioned with cy pres? [James Beck and Rachel Weil, WLF; Beck, D&DL, on Redman v. RadioShack]
  • “Asbestos lawyers want $2.5 million for losing fight to keep Garlock records sealed” [@DanielDFisher on Legal NewsLine report] “Third Circuit rules against plaintiff who ‘just knew’ asbestos was used in Navy vessels” [Heather Isringhausen Gvillo, LNL]
  • Eric Alexander on the runaway $9 billion Actos verdict [Drug and Device Law, citing Dr. David Kessler, former FDA chief, as "plaintiff's mouthpiece"; earlier on Actos/Takeda case]
  • “Third-Party Bad Faith Claims Add $800M to Florida Auto Insurance Costs: IRC” [Insurance Journal]
  • Discussion of proposals to change contributory negligence for bicyclists in D.C., mucho comments [Greater Greater Washington]
  • “Missouri Supreme Court Invalidates State’s Legislative Cap on Punitive Damages” [Mark Behrens]
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    It’s an emotional-support alpaca, so let us in http://overlawyered.com/2014/10/emotional-support-alpaca-let-us/ http://overlawyered.com/2014/10/emotional-support-alpaca-let-us/#comments Tue, 21 Oct 2014 09:35:46 +0000 http://overlawyered.com/?p=48992 Author Patricia Marx decided to brazen her way through New York restaurants, museums, high-end fashion shops, and other institutions with five “un-cuddly, non-nurturing animals” such as a turtle, snake, and turkey, and some therapist paperwork that was easy enough to procure. [New Yorker] Aside from writing hilariously, she’s well informed about the Americans with Disabilities […]

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    Author Patricia Marx decided to brazen her way through New York restaurants, museums, high-end fashion shops, and other institutions with five “un-cuddly, non-nurturing animals” such as a turtle, snake, and turkey, and some therapist paperwork that was easy enough to procure. [New Yorker] Aside from writing hilariously, she’s well informed about the Americans with Disabilities Act interplay:

    Why didn’t anybody do the sensible thing, and tell me and my turtle to get lost? The Americans with Disabilities Act allows you to ask someone with a service animal only two questions: Is the animal required because of a disability? What work or task has the animal been trained to perform? Specific questions about a person’s disability are off limits, and, as I mentioned, people are baffled by the distinction between service animals and emotional-support animals.

    Len Kain, the editor-in-chief of dogfriendly.com, a Web site that features pet-travel tips, said, “The law is fuzzy. If you ask one too many questions, you’re in legal trouble for violating the Americans with Disabilities Act and could face fines of up to a hundred thousand dollars. But, if you ask one too few questions, you’re probably not in trouble, and at worst will be given a slap on the wrist.”

    We’ve been tracking the issue of real and imagined service animals for a long time.

    P.S. As I should have noted, changes in federal rules a few years back attempted to lay out a bright-line rule that animals other than individually trained dogs and some miniature horses do not enjoy service animal status under the ADA. Unless merchants have reason to fear separate liability under differing state or municipal versions of discrimination law, they should therefore be on firm ground in rejecting alpacas, reptiles, or turkeys — which of course assumes they are up on the status of the federal regs. More: Scott Greenfield.

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    Deed transfer theft in New York City http://overlawyered.com/2014/10/deed-transfer-theft-new-york-city/ http://overlawyered.com/2014/10/deed-transfer-theft-new-york-city/#comments Tue, 21 Oct 2014 04:15:04 +0000 http://overlawyered.com/?p=48990 Horror story in Queens points up flaws of the city’s deed-transfer system, and also of its pro-tenant housing court regime: “After Darrell Beatty failed to appear in August, a judge approved an eviction, but it was stayed last week when Beatty claimed he had health problems.” [New York Post] Tweet Tags: fraud, landlord tenant law, […]

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    Horror story in Queens points up flaws of the city’s deed-transfer system, and also of its pro-tenant housing court regime: “After Darrell Beatty failed to appear in August, a judge approved an eviction, but it was stayed last week when Beatty claimed he had health problems.” [New York Post]

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