- Mississippi community rallies behind 88 year old doctor investigated by licensure board for practicing from his car [AP]
- Pennsylvania: “Kill deal between Attorney General’s office and law firm, nursing homes ask court” [Harrisburg Patriot-News; earlier on AG Kathleen Kane; related on law firm of Cohen Milstein, on which earlier]
- Hazards of overwarning in the wired hospital: “2,507,822 unique alarms in one month in our ICUs, the overwhelming majority of them false.” [Robert Wachter, Medium]
- JAMS arbitrator, a retired California Supreme Court judge, resists subpoena seeking explanation of settlement allocation decisions among Prempro clients of Girardi Keese [National Law Journal; see also from way back]
- Reports of VA-scandal retaliation raise question: do all the HIPAA laws in the world protect us from persons in high places wishing to pry into our medical records with ill intent? [J. D. Tuccille, Reason]
- New York Attorney General Eric Schneiderman charged that 79% of herbal supplements lacked appropriate DNA, but that claim itself turns out to be hard to substantiate [Bill Hammond, New York Daily News]
- Nurses’ gallows humor defended against That’s-Not-Funny Brigade [Alexandra Robbins, Washington Post]
Very Cato-centric this time:
- Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
- New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
- “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
- Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
- With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
- On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
- A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
- “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]
- From the Manhattan Institute “Trial Lawyers Inc.” project, “Wheels of Fortune” (PDF), twin report on lawyers’ exploitation of SSDI (Social Security Disability) and ADA cases;
- Theodore Dalrymple on the flaws of the US litigation system [Liberty and Law]
- Testimony: “after he inquired about the 40 percent fee charged by [co-counsel] Chestnut, [Willie] Gary threatened to ‘tie up [client] Baker’s money in the courts for years so he would never live to see it.'” [Gainesville Sun]
- ATRA takes aim at rise of asbestos litigation in NYC [“Judicial Hellholes” series, Chamber-backed Legal NewsLine, New York Daily News (“national scandal”)]
- Another reminder that while plaintiff’s lawyers conventionally assail pre-dispute employment arbitration agreements, they routinely use them themselves [LNL]
- New U.S. Chamber papers on litigation trends: “Lawsuit Ecosystem II“; state supreme courts review;
- Changes ahead for class action rules? [Andrew Trask]
Six months ago the Delaware Supreme Court upheld the right of an enterprise to include a loser-pays provision in its bylaws, specifying that losing shareholder-litigants would have to contribute reasonable legal fees to compensate what would otherwise be loss to other owners. Since then there’s been a concerted campaign to overturn the ruling, either in the Delaware legislature or if necessary elsewhere. But as I argue in a new Cato post, allowing scope for freedom of contract of this sort is one of the best and most promising ways to avert an ever-rising toll of litigation. Contractually specified alternatives to courtroom wrangling have played a vital role, and are under attack for that very reason, in curbing litigation areas like workplace and consumer arbitration, shrinkwrap and click-through disclaimers of liability, and risk disclaimers at ballparks and elsewhere. (& Stephen Bainbridge).
To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward.
More on the Delaware bylaw controversy: D & O Diary (scroll), Andrew Trask on state of the merger class action, WSJ Law Blog first and second, Daniel Fisher, and ABA Journal in June, Alison Frankel/Reuters (forum selection bylaws).
From James Taranto’s “Best of the Web” Wall Street Journal column, under his recurring “Two Papers in One!” series:
- “Buried in the fine print of most contracts for cellphones, health insurance and credit cards is a clause requiring that all disputes be decided by binding arbitration, rather than a court. Businesses love these provisions, because arbitrators act quickly and almost always rule in their favor, and many employers are requiring new hires to sign similar agreements. All of this sounds pretty unfair, but apparently not unfair enough for the Supreme Court, which has now made the arbitration process even more onerous.” — editorial, New York Times, June 27, 2010
- “In lieu of litigation and jury trials, each of which is expressly waived, any dispute concerning, relating or referring to this Participation Agreement, the brochure, or any other literature concerning your trip or the Tour shall be resolved exclusively by binding arbitration in New York City, New York, according to the then existing commercial rules of the American Arbitration Association. Such proceeding will be governed by the substantive law of the State of New York. The arbitrator(s) and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Participant Agreement, including but not limited to any claim that all or any part of this Participant Agreement is void or voidable.” — Times Journeys Terms and Conditions, NYTimes.com, 2014
- Latest NLRB jaw-dropper: ban on retaliation against “concerted” labor action extends to employee acting alone in self-interest [Fresh & Easy case; Hackman/Barley, Vorys, Ian Gabriel Nanos/Management Memo]
- Connecticut Law Tribune assails workplace arbitration, and in so doing reveals lawyerly prejudices [Schwartz]
- Religious-discrimination complaint to EEOC demands reinstatement of newspaper editor out of step with views of paper’s owner [Romenesko]
- Unfair to reveal to customers costs of policy they may favor? [WCCO; Coyote, who relatedly is disrespectful to Paul Krugman] “Why is there such a difference of opinion on the employment effects of a minimum wage increase?” [Pierre Lemieux, Cato Regulation magazine, PDF]
- “NLRB goes rogue against small business” [Rick Manning, The Hill]
- Among biggest legal headaches of telecommuting for employers: wage-and-hour law implications [Joseph Leonoro, Steptoe & Johnson]
- Canada: “Farmers’ Kids are ‘Underage Labor’ and Must Stop Working” [Lenore Skenazy]
Coyote, updated, and Hans Bader write about yet another new burden loaded on federal contractors, involving the creation of separate affirmative action plans for each installation, including those that do no federal contract business. One result will be to pressure some firms that do only a little federal work to get out of the government contracting business entirely, rather than submit to escalating cost and open-ended legal consequences.
Meanwhile, notes Bader, another part of the Obama administration’s rapidly proliferating “pen and phone” regulation of the workplace “will make it very costly for employers to challenge dubious allegations of wrongdoing against them,” by “[allowing] the government to cut off the contracts of contractors and subcontractors that do not ‘consistently adhere’ to a multitude of complex federal labor, antidiscrimination, harassment, and disabilities-rights laws.” Even more damaging, it will forbid many applications of pre-dispute arbitration to workplace disputes, thus shunting grievances into courtroom litigation. “It will allow trial lawyers to extort larger settlements from companies, and enable bureaucratic agencies to extract costly settlements over conduct that may have been perfectly legal.”
Earlier on regulation of federal contractors, a program driven by executive orders and particularly at the mercy of White House discretion, here and here, here, here, here, and generally at this new tag.
- Court slaps “nightmare” Sacramento litigant Raj Singh with sanctions [KXTV, auto-plays, earlier]
- Child overprotection: “I don’t think they even drink liquid soap, the gateway drug for sunscreen.” [Lenore Skenazy, Free-Range Kids]
- Three-fer: personal injury, qui tam lawsuits against guardrail maker coordinated by disappointed patent litigant [Insurance Journal]
- Donald Trump hit with sanctions in lawsuit for not disclosing insurance policy [South Florida Business Journal, our Trump coverage]
- On AirBnB and sharing services, it’s lefty economist Dean Baker (con) vs. David Henderson (pro). Go David! [EconLib] London black cabs seek level playing field with Uber. Good idea, let’s deregulate ’em both [Matthew Feeney, Cato]
- Waffle House chairman claims attorneys committed extortion in ex-housekeeper’s sex lawsuit [Atlanta Journal-Constitution]
- “Tenth Circuit Says No to ‘Death by Discovery’ in Dispute over Agreement to Arbitrate in Class Action” [Lars Fuller, Class Action Blawg on Howard v. Ferrellgas Partners LP]
Still pretty much the Litigation Lobby’s number one target, and still worth defending with appropriate vigor. [Andrew Pincus, American Lawyer]
For those who freaked out at those headlines Thursday, Daniel Fisher at Forbes has a corrective to the New York Times’ latest story advancing the trial lawyer campaign against arbitration. More: Eric Goldman. Sequel: General Mills quickly withdraws new policy, perhaps reasoning that even when the New York Times is wrong, a consumer marketing company really can’t win trying to argue with it. Yet more: Dave Hoffman with an analysis of whether the language actually creates a contract.