Personally liable in Philadelphia: “A Pennsylvania lawyer has been ordered to pay nearly $1 million in attorney fees for allowing an expert witness to refer to a lung cancer victim’s history of smoking in a May 2012 medical malpractice trial. Defense lawyer Nancy Raynor of Malvern, Pennsylvnia, told the Legal Intelligencer that insurance would not pay the sanction and her personal assets are at risk.” [ABA Journal]

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I know I’m one of the last to catch up with this brilliant show from last month, which has had 3.8 million views, but if you still haven’t seen it, now’s your chance: it’s pricelessly funny and only too real. Cato has been inveighing against forfeiture laws for two decades or more and it’s tremendously satisfying to see the issue take off this year.

P.S. More forfeiture links: excellent Shaila Dewan piece in the New York Times the other day (“Put your valuables where I can see them!”), noting that police deciding to seize property sometimes check it against a department wish list; explosive videos from cop how-to-seize seminars and other government proceedings (“If in doubt…. take it”) tend to confirm a dark view [Nick Sibilla]; Institute for Justice report, Bad Apples or Bad Laws? Testing the Incentives of Civil Forfeiture [Bart J. Wilson and Michael Preciado, September]; “The IRS Has Been Holding This Guy’s $447,000 For 2 Years, And He’s Never Been Charged With A Crime” [Erin Fuchs, Business Insider, on Hirsch brothers case]

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A lawyer who resigned abruptly from the office handling BP oil spill claims has denied allegations he accepted kickbacks from lawyers with claims pending in the process, saying the money was paid for earlier work and that his aim was to hide it from his wife — who also happened to work at the claims office — rather than to conceal anything improper. [New Orleans Times-Picayune]

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Schools roundup

by Walter Olson on November 12, 2014

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The town of Westminster, Mass. considers banning tobacco sales entirely, and the American Lung Association eggs them on [Boston Globe, AP]

P.S. David Boaz: “Does it surprise you to know that this town was founded by Puritans?”

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[cross-posted from Cato at Liberty and expanded with a P.S.]

Even by his standards, Paul Krugman uses remarkably ugly and truculent language in challenging the good faith of those who take a view opposed to his on the case of King v. Burwell, just granted certiorari by the Supreme Court following a split among lower courts. Krugman claims that federal judges who rule against his own position on the case are “corrupt, willing to pervert the law to serve political masters.” Yes, that’s really what he writes – you can read it here.

A round of commentary on legal blogs this morning sheds light on whether Krugman knows what he’s talking about.

“Once upon a time,” Krugman claims, “this lawsuit would have been literally laughed out of court.” [Citation needed, as one commenter put it] The closest Krugman comes to acknowledging that a plain-language reading of the statute runs against him is in the following:

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

New York City lawyer and legal blogger Scott Greenfield responds:

If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right.  That’s what the law says. … There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning.  A typo is such an error.  I know typos. This was not a typo. This was not a word misspelled because the scribe erred.  This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.

While some ObamaCare proponents may now portray the provision as a mere slip in need of correction, as I noted at Overlawyered in July, “ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges.”

Josh Blackman, meanwhile, points out something incidental yet revealing about Krugman’s column: its homespun introductory anecdote about how his parents discovered that they had been stuck with a mistaken deed to their property, fixed (“of course”) by the town clerk presumably with a few pen strokes and a smile, couldn’t possibly have happened the way Krugman said it did. Property law, much more so than statutory construction, is super-strict about these matters.

If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language”. … Mistakes are enforced by courts. That’s why [everyone] should purchase title insurance. …

So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses.

To be sure, there may be better arguments with which to defend the Obama administration’s side of the King case. But do not look for them in Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in Kingby casting the federal judiciary itself as “corrupt” and illegitimate.

P.S. “Krugman’s column in today’s NYT on King is the liberal equivalent of a Rush Limbaugh tirade.” [Gerard Magliocca] Krugman not notably consistent on views of statutory interpretation [Simon Lester] ObamaCare architect Jonathan Gruber caught on camera saying “lack of transparency” key to passing the bill; he “may believe that American voters are stupid, but he was the one dumb enough to say all this on camera” [Peter Suderman, Mickey Kaus ("I am big. It's the electorate that got small.")] How to argue the administration side in a less unhinged way than Krugman does [David Ziff via Jonathan Adler]

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Environment roundup

by Walter Olson on November 11, 2014

  • In Utah prairie dog case, federal judge finds Endangered Species Act regulation of intra-state property impacts exceeds scope of enumerated federal powers [Jonathan Adler, Evan Bernick, Jonathan Wood/PLF] Certiorari petition on whether economic considerations should enter into ESA measures on behalf of delta smelt in California [Ilya Shapiro and Trevor Burrus]
  • “While Smart Growth as a whole is maligned by some advocates of the free market, many Smart Growth tenets are actually deregulatory.” [Emily Washington, Market Urbanism; related, obnoxious-yet-informative Grist]
  • Economic logic should be enough to halt suburban Maryland Purple Line, but if not, says Chevy Chase, hey, let’s find a shrimp [Washington Post; Diana Furchtgott-Roth on economics of Purple Line]
  • SCOTUS should review Florida-dock case in which lower courts held property rights not “fundamental” for scrutiny purposes [Ilya Shapiro and Trevor Burrus]
  • “The Problem of Water” [Gary Libecap, Cato Regulation]
  • Paul Krugman and others hyped the rare earth crisis. Whatever happened to it? [Alex Tabarrok]
  • Louisiana judge strikes down state law prohibiting levee boards’ erosion/subsidence suit against oil companies, appeal likely [New Orleans Times-Picayune]

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AconitumFollowing the unexplained death of a gardener at a millionaire’s estate in Hampshire, England, a coroner has been told that it is more likely than not that brushing against the poisonous common garden plant aconitum, known variously as wolfsbane or monkshood, must have caused the man’s decease. [Independent]

Maggie Bloom, who is representing the family, said in the pre-inquest hearing yesterday that the initial blood sample had been destroyed – despite being against hospital policy – and that later samples that were retained could be useless as the poison leaves the body within a day.

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A judge in Quebec has told Google to pay C$2250 to a woman caught by a Google Street View camera on her front porch in revealing, though legal, attire [Syracuse.com via Stewart Baker]

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  • New Cato paper finds little evidence that pot legalization in Colorado has much affected rates of use, traffic safety, violent crime, ER visits, health, education outcomes [Jeffrey Miron working paper via Jacob Sullum]
  • Ferguson narrative changes as new evidence supports officer’s story on Michael Brown confrontation [Washington Post, Marc Ambinder/The Week, New Republic]
  • Why Obama was smart to choose Loretta Lynch as AG rather than knocking Republicans’ cap off with a pick like Thomas Perez [Cato; Todd Gaziano on confirmation questions]
  • Plea bargaining system: “Why Innocent People Plead Guilty” [Judge Jed Rakoff, New York Review of Books]
  • “There’s not much to do about catcalling, unless you’re willing to see a lot more minority men hassled by the police” [Kay Hymowitz, Time] Peer pressure seems to be a factor in restraining it [Andrew Sullivan] The “practice of catcalling is most taboo among members of the upper classes.” [Conor Friedersdorf, The Atlantic, earlier]
  • San Diego says it retains discretion over when to release cop camera footage [Radley Balko] How body cameras can vindicate cops [same]
  • Elderly Wisconsin man “was never considered dangerous, [but] was known to be argumentative,” so send in the armored vehicle [Kevin Underhill, Lowering the Bar, related] “The [SWAT-raided] Tibetan monks were here on a peace mission, for Christ’s sake. Well, not for Christ’s sake, but you know what I mean.” [same] Sen. Coburn quotes Madison: standing military force with overgrown executive will not long be safe companion to liberty [WSJ]

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The EU’s newly minted “right to be forgotten” may generate an Orwellian memory hole into which can be thrown the inconvenient past. “The [Washington] Post received a letter from Mr. Lazi? in September requesting that [classical music critic Anne] Midgette’s review be scrubbed from the Web. When she failed to reply, he upped the ante by claiming that it was ‘defamatory, offensive and mean-spirited’ and thus violates his legal right to be forgotten.” [Terry Teachout, WSJ via Arts Journal]

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The Supreme Court hears oral argument in the Yates v. U.S. case [WLF, ABA Journal, Daniel Fisher, earlier] Best line from a brief, via @ToddRuger: “More specifically, a false entry cannot be made in a fish.”

P.S. Radley Balko points out that while Congress has filled the U.S. Code with strict penalties for destruction of potentially relevant evidence, federal officials themselves almost never face real consequences when they destroy such evidence.

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A bad idea still isn’t catching on with voters, although those on the island of Maui approved an agricultural GMO moratorium, supposedly temporary. [NPR, earlier]

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Or should that be “method for using nastygrams to assert what isn’t really a valid patent?” [Lowering the Bar]

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Steve Bainbridge has a wish list for reforms to financial and securities law in the new Congress, especially the damaging Dodd-Frank and Sarbanes-Oxley laws. Included: repeal of conflicts minerals disclosure, “say on pay,” and pay ratio disclosure; more leeway for public companies to opt out of various regulatory obligations to shareholders that their own shareholders have not contractually seen fit to impose; and litigation reform.

Meanwhile, my Cato colleague Mark Calabria points out that there “are numerous protectors of the status quo in both major political parties,” which may frustrate the relatively free-market instincts of the responsible committee chairs, Sen. Richard Shelby and Rep. Jeb Hensarling. “But at least financial regulation is unlikely to get any worse.”

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A story we’ve been following about the consequences of the Food Safety Modernization Act of 2011 (FSMA). Edible Brooklyn:

The holiday season fast approaches, and with it comes the busiest time of the year at Brooklyn’s cheese counters. … This year, however, one name will be missing from the must-have list, and it’s a coveted favorite for cheesemongers and customers alike. … on August 15th, Andy Hatch, co-owner and head cheesemaker at Uplands, sent a ripple through the cheese world when he announced via an email to his customers that Uplands had cancelled production of Rush Creek Reserve. In his own words:

I’m writing to let you know that we will not be making any Rush Creek Reserve this year. It’s disappointing news, I know, and we hope that it’s not permanent. Food safety officials have been unpredictable, at best, in their recent treatment of soft, raw-milk cheeses, and until our industry is given clear and consistent guidance, we are forced to stop making these cheeses. I’m sorry if this throws a wrench into your plans for the holidays — it certainly does on our end. It’s not a decision we came to easily. Hopefully, our government officials will soon agree on how to treat traditional cheesemaking, and we can all return to the cheeses that are so important to us.

Wouldn’t it be great if the newly elected and more regulation-skeptical Congress passed and sent to the President a bill to roll back or repeal the FSMA and save endangered foods like Rush Creek Reserve?

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On Monday I moderated a panel at Cato on Damon Root’s splendid new book on the long debate over judicial activism from the Civil War to the present (blurbs). Commenting were prominent legal journalist Jeffrey Rosen, president of the National Constitution Center in Philadelphia, and Roger Pilon, director of Cato’s Center for Constitutional Studies, whose work figures prominently in the book. From the description:

What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it.

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International law roundup

by Walter Olson on November 7, 2014

  • Department of surreal headlines: “Detroit Mayor’s Office Disappointed With UN’s Stance on Water Shutoffs” [MLive.com via Deadline Detroit, earlier on customers who don't pay Detroit water bills]
  • “When Mr. Bond first impregnated Mrs. Bond’s best friend, the international Chemical Weapons Convention was probably the furthest thing from his mind.” [Nicholas Quinn Rosenkranz, Cato Supreme Court Review (PDF), earlier on Bond v. U.S.]
  • A case against including investor/state protections in trade negotiations [Daniel Ikenson, Cato] Issue leading leftists, libertarians separately to discover merits of sovereigntism? [Julian Ku, Opinio Juris]
  • Survey of rapidly changing field of transnational antiquities law [ABA Journal]
  • Canada, like U.S., gets periodic U.N. tongue-lashing over its relations with Indian tribes/native peoples [Kathryn Fort, ConcurOp]
  • With U.S. isolated on firearms issues, U.N.’s contemplated Programme of Action on Small Arms not quite so innocuous [Ted Bromund, more, earlier here, here, here, and here]
  • “The U.S. government should be careful about entering into new international agreements and treaties precisely because international laws do have legal force.” [Jason Sorens, Pileus]

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