Overlawyered http://overlawyered.com Chronicling the high cost of our legal system Fri, 18 Apr 2014 19:50:30 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.1 “Perhaps it is time for defendants to start settling less often” http://overlawyered.com/2014/04/perhaps-time-defendants-start-settling-less-often/?utm_source=rss&utm_medium=rss&utm_campaign=perhaps-time-defendants-start-settling-less-often http://overlawyered.com/2014/04/perhaps-time-defendants-start-settling-less-often/#comments Fri, 18 Apr 2014 14:56:42 +0000 http://overlawyered.com/?p=45345 I’ve got a new post at Cato about the latest federal court smackdown of overreaching enforcement by the Obama administration, this time in a Department of Labor prosecution regarding a Texas company’s wage-and-hour classification. I mention some greatest hits of the past couple of years reversing DoL, the EEOC, the EPA and other agencies, and […]

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I’ve got a new post at Cato about the latest federal court smackdown of overreaching enforcement by the Obama administration, this time in a Department of Labor prosecution regarding a Texas company’s wage-and-hour classification. I mention some greatest hits of the past couple of years reversing DoL, the EEOC, the EPA and other agencies, and suggest that a useful step might be for regulated businesses to contest unreasonable cases more often rather than, as is so often the norm now, paying to get them over with.

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“You have a broken headlight, you get stopped….” http://overlawyered.com/2014/04/broken-headlight-get-stopped/?utm_source=rss&utm_medium=rss&utm_campaign=broken-headlight-get-stopped http://overlawyered.com/2014/04/broken-headlight-get-stopped/#comments Fri, 18 Apr 2014 12:35:41 +0000 http://overlawyered.com/?p=45338 Time mag asked arch-leftwinger Barbara Ehrenreich about the best single way to reduce income inequality. I’d never have dreamed that David Henderson would agree with the answer she gave — or that I would too. More here on Ehrenreich’s views on the “criminalization of poverty” (which, not surprisingly, head off in directions very different from […]

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Time mag asked arch-leftwinger Barbara Ehrenreich about the best single way to reduce income inequality. I’d never have dreamed that David Henderson would agree with the answer she gave — or that I would too. More here on Ehrenreich’s views on the “criminalization of poverty” (which, not surprisingly, head off in directions very different from mine once you’re past the initial area of agreement).

One reader points out that laws against behaviors like driving with broken headlights or lapsed insurance are of universal benefit and improve road safety. But I don’t think Ehrenreich’s point (or Henderson’s or mine) amounts to “let’s legalize driving with broken headlights.” Not so long ago, many petty offenses of traffic and street life were illegal but the consequences of violation were much less harsh. The other day I got a transponder toll in the mail amounting to maybe $10, which would jump to $150+ if I didn’t get in a payment within 20 days; being your basic organized middle-class person, I dashed off a check that same day. Add one complicating factor — say I was a person whose mail was forwarded to me from another address — and it would have been a closer thing.

Why has government chosen to escalate once-petty fines over the past couple of generations? 1) It wants revenue and likes the idea of making agencies self-financing or better; 2) it listens more closely to its own agencies than to the populace; 3) when middle class policymakers (as they nearly always are) consider the issue, they think of what level of fine it would take to deter someone like themselves and worry less about whether fines at that level might capsize the little guy or small business (I hear often about how this framework of punitive small fines is a key deterrent to trying to run a small business with a couple of delivery trucks and maybe an urban commercial building or two to run up inspection and property fines.)

The reformist consumer finance literature, to which Elizabeth Warren was a big contributor as an academic, and with which Ehrenreich is no doubt well acquainted, decries $30 late fees and 20 percent interest rates as a business plan by which credit card companies can turn small debts into big ones at the expense of persons without middle-class money habits and skills. Which raises the question: why spend so much time belaboring the banks if government’s own policy on late fees, bounced checks, etc. is going to be so much less merciful?

P.S. An example? South Carolina man says he didn’t realize you needed to pay for a soda refill at VA hospital canteen. Contemplated consequences: $525 fine, federal criminal conviction, unable to return to workplace.

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Could we undo the no-fault divorce revolution if we tried? http://overlawyered.com/2014/04/undo-fault-divorce-revolution-tried/?utm_source=rss&utm_medium=rss&utm_campaign=undo-fault-divorce-revolution-tried http://overlawyered.com/2014/04/undo-fault-divorce-revolution-tried/#comments Fri, 18 Apr 2014 10:30:53 +0000 http://overlawyered.com/?p=45333 Megan McArdle has some thoughts on the role of changing divorce law among a broader shift of social mores and expectations on marriage, cohabitation, and childbearing in and out of wedlock. Note, however, that reformers might take an interest in reconsidering the no-fault revolution from many motives other than a simple wish to discourage the […]

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Megan McArdle has some thoughts on the role of changing divorce law among a broader shift of social mores and expectations on marriage, cohabitation, and childbearing in and out of wedlock.

Note, however, that reformers might take an interest in reconsidering the no-fault revolution from many motives other than a simple wish to discourage the rate of divorce across the board. (Contrary to some imaginings, critics of no-fault are a diverse crew, including social scientists, economists, lawyers and judges writing from secular, liberal, and classical-liberal as well as religious-conservative standpoints.) Some see no-fault as deficient in fairness in deciding between the claims of offending and innocent spouses. Some worry that it results in a first-mover advantage in favor of whichever spouse initiates the unraveling of a marriage (by removing assets, for example) and that such an advantage might have destructive effects if not corrected for in some way. And while (as McArdle argues) an expectation of marriage as being a hassle to leave might discourage entry into the institution, it is also possible that an expectation of it as being easily dissolved and lacking in real security might discourage entry by other persons.

“No-fault,” incidentally, may not be the most accurate term for the new system (“unilateral” would be more precise, sometimes combined with “relatively speedy”). While fault as such in contested cases may be kicked out the front door, it very often comes back in through the window in the form of arguments about parental fitness, appropriate asset division and other issues that are still open for argument in court.

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Banking and finance roundup http://overlawyered.com/2014/04/banking-finance-roundup-15/?utm_source=rss&utm_medium=rss&utm_campaign=banking-finance-roundup-15 http://overlawyered.com/2014/04/banking-finance-roundup-15/#comments Fri, 18 Apr 2014 04:05:09 +0000 http://overlawyered.com/?p=44965 Divided D.C. Circuit panel partially overturns SEC conflict minerals law [Bainbridge, more, more, Adler, earlier] Dodd-Frank vs. small banks, cont’d [Todd Zywicki] A failing grade for new Financial Stability Oversight Council? [Louise Bennetts, Cato; Peter Wallison, AEI, on Prudential SIFI designation] Regulators’ “choke hold” effort to throttle online payday lending draws protests [Kevin Funnell, more] […]

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  • Divided D.C. Circuit panel partially overturns SEC conflict minerals law [Bainbridge, more, more, Adler, earlier]
  • Dodd-Frank vs. small banks, cont’d [Todd Zywicki]
  • A failing grade for new Financial Stability Oversight Council? [Louise Bennetts, Cato; Peter Wallison, AEI, on Prudential SIFI designation]
  • Regulators’ “choke hold” effort to throttle online payday lending draws protests [Kevin Funnell, more]
  • Securities litigation after Amgen: time to reassess the fraud on the market presumption [Richard Epstein, Cato Regulation mag (PDF)]
  • House hearing on allegations of employee retaliation at CFPB [Free Beacon, Funnell, more]
  • “How To Destroy The Stock Market In 8 Steps,” series of Marc Andreessen tweets [Business Insider] “The Growing Executive Compensation Advantage of Private Versus Public Companies” [Marc Hodak]
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    Maryland backs off eminent domain to seize TV show http://overlawyered.com/2014/04/eminent-domain-seize-hit-tv-show/?utm_source=rss&utm_medium=rss&utm_campaign=eminent-domain-seize-hit-tv-show http://overlawyered.com/2014/04/eminent-domain-seize-hit-tv-show/#comments Thu, 17 Apr 2014 16:51:55 +0000 http://overlawyered.com/?p=45320 The state legislature adjourned last week having abandoned a threat to seize the hit TV show “House of Cards” through the use of eminent domain, with negotiations over the extent of tax subsidies to the show still hanging in part. I’ve got an update at Cato, with specific attention to the use of eminent domain […]

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    The state legislature adjourned last week having abandoned a threat to seize the hit TV show “House of Cards” through the use of eminent domain, with negotiations over the extent of tax subsidies to the show still hanging in part. I’ve got an update at Cato, with specific attention to the use of eminent domain to confiscate moveable and intangible assets, as opposed to land; in earlier episodes, Maryland has gone after the Baltimore Colts football team (which escaped) and the Preakness horse race (which agreed to stay).

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    No, as a matter of fact, it isn’t http://overlawyered.com/2014/04/matter-fact-isnt/?utm_source=rss&utm_medium=rss&utm_campaign=matter-fact-isnt http://overlawyered.com/2014/04/matter-fact-isnt/#comments Thu, 17 Apr 2014 11:59:26 +0000 http://overlawyered.com/?p=45312 “It’s Doctors’ Duty to Promote Gun Safety With Patients” [Art Caplan, Medscape via Bill of Health] Next step: giving patients a hard time about kitchen or camping knives? [A. Barton Hinkle] Tweet Tags: guns, medical

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    “It’s Doctors’ Duty to Promote Gun Safety With Patients” [Art Caplan, Medscape via Bill of Health] Next step: giving patients a hard time about kitchen or camping knives? [A. Barton Hinkle]

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    Cliven Bundy and the U.S. Constitution http://overlawyered.com/2014/04/cliven-bundy-u-s-constitution/?utm_source=rss&utm_medium=rss&utm_campaign=cliven-bundy-u-s-constitution http://overlawyered.com/2014/04/cliven-bundy-u-s-constitution/#comments Thu, 17 Apr 2014 04:25:39 +0000 http://overlawyered.com/?p=45289 If you imagine that Nevada rancher Cliven Bundy is some sort of constitutional conservative, Josh Blackman wants to direct your attention to the Property Clause as well as the Supremacy Clause of the (actually existing) U.S. Constitution. He also has some thoughts on the Equal Footing Doctrine (states come into the union on an equal […]

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    If you imagine that Nevada rancher Cliven Bundy is some sort of constitutional conservative, Josh Blackman wants to direct your attention to the Property Clause as well as the Supremacy Clause of the (actually existing) U.S. Constitution. He also has some thoughts on the Equal Footing Doctrine (states come into the union on an equal footing to the original 13), and on the rule of law in the context of the alleged right to flout court orders. Earlier here, with many reader comments, and more from Charles C. W. Cooke.

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    Medical roundup http://overlawyered.com/2014/04/medical-roundup-21/?utm_source=rss&utm_medium=rss&utm_campaign=medical-roundup-21 http://overlawyered.com/2014/04/medical-roundup-21/#comments Thu, 17 Apr 2014 04:05:19 +0000 http://overlawyered.com/?p=44868 Academics have underestimated sensitivity of medical system to liability pressures [Michael Frakes, SSRN via TortsProf] “Nobody has gone out and bought a new home” — Mark Lanier talks down his verdict knocking $9 billion out of Takeda and Lilly after two hours of deliberation by a Lafayette, La. jury [Reuters] Japanese drugmaker says it had […]

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  • Academics have underestimated sensitivity of medical system to liability pressures [Michael Frakes, SSRN via TortsProf]
  • “Nobody has gone out and bought a new home” — Mark Lanier talks down his verdict knocking $9 billion out of Takeda and Lilly after two hours of deliberation by a Lafayette, La. jury [Reuters] Japanese drugmaker says it had won three previous trials [ABA Journal]
  • Nursing home in living-up-to-its-name town of West Babylon sued over hiring male strippers to entertain residents [NYP, more (wife of complainant attended display), ABA Journal]
  • “Reining in FDA regulation of mobile health apps” [Nita Farahany, Volokh/WaPo]
  • Another setback for plaintiffs as Arkansas tosses $1.2 billion Risperdal marketing case against Johnson & Johnson [AP/Scottsbluff Star-Herald, Eric Alexander/Drug and Device Law, earlier here and here]
  • “Spacecraft collision injuring occupant”: docs scratch their heads at new revamp to billing codes [Steven Syre, Boston Globe via Future of Capitalism]
  • FDA preclearance, drug litigation: “Most [patients] never know they were harmed, because we never know what we might have had.” [John Stossel]
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    Even for search and rescue? http://overlawyered.com/2014/04/even-search-rescue/?utm_source=rss&utm_medium=rss&utm_campaign=even-search-rescue http://overlawyered.com/2014/04/even-search-rescue/#comments Wed, 16 Apr 2014 09:50:27 +0000 http://overlawyered.com/?p=45279 Sorry, say the feds: a drone ban is a drone ban [Steve Chapman] Tweet Tags: aviation

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    Sorry, say the feds: a drone ban is a drone ban [Steve Chapman]

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    Philip K. Howard, “The Rule of Nobody” http://overlawyered.com/2014/04/philip-k-howard-rule-nobody/?utm_source=rss&utm_medium=rss&utm_campaign=philip-k-howard-rule-nobody http://overlawyered.com/2014/04/philip-k-howard-rule-nobody/#comments Wed, 16 Apr 2014 04:15:01 +0000 http://overlawyered.com/?p=45275 Nick Gillespie reviews the new book by the author of The Death of Common Sense: The Rule of Nobody updates and expands Howard’s original brief, and it helps to explain why government at all levels not only is on autopilot but on a flight path that can only end in disaster. Every Philip Howard book […]

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    Nick Gillespie reviews the new book by the author of The Death of Common Sense:

    The Rule of Nobody updates and expands Howard’s original brief, and it helps to explain why government at all levels not only is on autopilot but on a flight path that can only end in disaster.

    Every Philip Howard book is notable for its horror stories of regulation and systemic dysfunction, and reviewer Kyle Smith in the New York Post relates one I hadn’t heard, about the mammoth Deepwater Horizon spill:

    When the oil rig started leaking mud and gas, the crew should have simply directed the flow over the side. Dumped it in the gulf. That would have been a small oil spill, of course, and no oil spill is a good thing. But in trying to avoid that, the crew caused a gigantic oil spill. Eleven lives were lost.

    Safety protocol called for the men to aim the flow into a safety gizmo called an oil and gas separator, but that became backed up and made matters worse. Explosive gas filled the air around the rig, which finally exploded.

    Then some workers who escaped in a raft almost died. Why? They were tied to the burning rig, and regulations forbade them to carry knives so they couldn’t cut themselves free.

    More on the book here.

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