Constitutional law roundup

  • Ilya Shapiro on round II of Fisher v. University of Texas, the racial preferences case [Pope Center]
  • “Supreme Court Endorses Tribal Courts; Bad News For Corporate Defendants?” [Daniel Fisher on Sixth Amendment case U.S. v. Bryant]
  • “Is The Consumer Financial Protection Bureau Unconstitutional?” [Susan Dudley]
  • “Dueling perspectives on Lochner v. United States” [Andrew Hamm, SCOTUSBlog on Paul Kens vs. Randy Barnett debate, earlier]
  • First Amendment and commercial speech: “Crazy Law Allows ‘Discounts’ for Cash but Not ‘Surcharges’ for Credit” [Ilya Shapiro on Expressions Hair Design case]
  • Who ‘ya gonna call if you need a Third Amendment lawyer? [humor]

More great moments in public employee unionism

That Friday tale from the Washington, D.C. Metro system was just the start. “The North Miami police officer who shot an unarmed, black mental health worker caring for a patient actually took aim at the autistic man next to him, but missed, the head of the police union said Thursday.” [Miami Herald] Meanwhile, in Oregon, a gross-receipts tax proposal backed by public employee unions and schools lobby could spell the end for Powell’s Books of Portland. [Interview with Emily Powell on Measure 97, Business Tribune]

Confirmed: climate denial heresy hunt based on contingency fee deal

Papers obtained by The Hill confirm that the prominent plaintiff’s law firm of Cohen Milstein is in for a 27 percent slice (plus costs) of loot from at least one branch of the ongoing probe over erroneous opinion on climate change, a campaign advanced by a subpoena dragnet from state attorneys general seeking papers and correspondence from dozens of free-market and right-of-center advocacy and scholarship groups. [The Hill]

Although the blithe denials of a couple of sources who spoke to The Hill might suggest otherwise, contingency-fee representation of states and other public bodies in damages claims was deemed ethically improper over most of American history. It’s a story I tell in The Rule of Lawyers, where I talk about Dickie Scruggs’ pioneering venture in the early 1990s in representing the state of Mississippi in claims for removal of asbestos from government property:

The United States [as of this point] had long justified its departure from other countries’ [bans on contingent fees] on the grounds that otherwise [given our lack of “loser-pays”] some poorer clients might be unable to obtain a lawyer at all. But no one was seriously claiming that no lawyer could be found to handle the asbestos case for the state of Mississippi on an hourly fee basis.

Until quite recently the notion of letting lawyers represent government on a contingency-fee basis would have been seen as pernicious, absurd, or both. But as Scruggs was no doubt aware, times were changing fast. Many of America’s legal authorities had begin to regard contingency fees — and the encouragement they gave to speculative litigation — not as a lesser evil that should be limited to the cases where it was necessary, but as something wholesome and beneficial in itself. The first experiments had already been noted by the end of the 1980s, with the state of Massachusetts hiring private lawyers on contingency for asbestos rip-out cases. If contingency fees for public lawyering could pass the ethical smell test in the state that was home to Harvard Law School, why shouldn’t they do so in Mississippi, too?

Since the Great Tobacco Robbery steered billions of dollars in fees to the pockets of politically influential law firms, the practice has been the subject of continued lively controversy, with legislative proposals in many states aiming to curtail or eliminate the opaque or even undisclosed deals by which private law firms get themselves cut themselves in on a share of public moneys by attorneys general dependent on their political support. Earlier on the contingency-fee angle in the climate subpoena affair here and here.

Quebec tribunal orders comedian to pay C$42,000 over jokes

P.C. QC: The misnamed Quebec Human Rights Tribunal has fined comedian Mike Ward C$42,000 for joking about a disabled child singer. “The tribunal ordered Ward to pay Gabriel $25,000 in moral damages and $10,000 in punitive damages for a joke dating back to 2010. The decision also requires Ward to pay an additional $5,000 for moral damages and $2,000 for punitive damages to Jérémy’s mother, Sylvie Gabriel….The ruling has spurred backlash across the comedian community, with many quickly declaring their support for Ward.” [CBC] In 2010 standup comedian Guy Earle was charged in British Columbia with a human rights violation for insulting a patron at a club.

Liability roundup