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Cato Institute

I’m delighted to announce that Overlawyered, a freestanding blog since I founded it in 1999, has now affiliated itself with the Cato Institute, at whose Center for Constitutional Studies I’m a senior fellow. Cato already publishes several blogs and its prowess in technical support, marketing, and press outreach are certain to help the blog reach new readers, look sharper, keep more current with blog technology, and be even more a part of the conversation about law and legal reform.

As a trial run, Cato’s Ian Jacobson has already been helping out with the site’s Facebook presence in recent weeks, and Cato’s graphics team has devised an terrifically good-looking banner you can check out there, complete with shark fin. (We’re not losing the popular “shark and goldfish” emblem, though.) While you’re there, be sure to “Like” us and recommend us to friends, and also join nearly 7,000 others who follow us on Twitter.

In coming weeks you’ll notice design changes on our front page, as well as other new features. If you’re not familiar with Cato, the world’s leading libertarian think tank, this is a good time to check it out and learn more about its pursuit of individual liberties, free markets, and peace. In particular, let me recommend Cato’s group blog Cato at Liberty, where I and my colleagues blog on a variety of public policy issues.

Here’s the Cato announcement that went out this morning:

The Cato Institute is proud to announce its affiliation with one of the most respected law blogs around: Overlawyered.com. Founded and run by senior fellow Walter Olson, the blog explores an American legal system in dire need of reform, showing how litigation is used as a weapon against guilty and innocent alike, new laws erode individual responsibility, and law firms enrich themselves at the public’s expense.

Walter skewers American litigiousness with a careful eye and sharp wit. If you haven’t been following Overlawyered, here’s what you’ve been missing:

To learn the extent of the legal insanity, and how to fix it, visit Overlawyered.com and “like” its Facebook page.

Walter Olson founded and continues to run Overlawyered.com. He is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

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  • If you didn’t see my Saturday post previewing the DOMA and Prop 8 cases that reach the Supreme Court this week, I’ve now got a virtually identical version up at the Cato blog.
  • On Wednesday, immediately after the Court’s oral argument in Windsor, I’ll be moderating a panel at Cato with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). Details and RSVP here. If you’re in DC, don’t miss it! If not, watch live online at www.cato.org/live and comment via #CatoEvents.
  • A collection of links on the cases is currently headlining the Cato website.
  • I’ll be speaking Wednesday evening about the cases before the Washington, D.C. chapter of Log Cabin Republicans. I also expect to be doing some national broadcast commentary — details to follow.
  • Last week I spoke at a panel in Cato’s social media series with Jimmy LaSalvia (GOProud) and Trevor Burrus (Cato) on conservatives and same-sex marriage, on topics that included the changing poll numbers and demographics. Aside from going through my analysis of November’s election results, I commented on various aspects of the debate such as the difference between civil and religious marriage (“the same as that between a birth certificate and a christening,” I like to say), the non-connectedness of the gay marriage and abortion issues (on which many others seem to agree with me), and the issue of religious exemptions (“As libertarians, we’re ahead of the curve in considering how anti-discrimination law can trample freedom of conscience.”) No video at the moment.
  • By coincidence, that panel happened to be scheduled against a crosstown event making the opposite case at the Heritage Foundation, which suffice it to say is at a very different place from Cato on this topic. On the question of using 11-year-olds to try to tear down other people’s families, by the way, Rob Tisinai at Box Turtle Bulletin has a nice pre-rejoinder to Heritage: “But Gracie, no one is trying to take one of *your* parents away.”
  • I couldn’t help noticing the following from a March 22 Clarus survey of U.S. voters:

    “Do you think each individual state should be allowed to decide whether same-sex couples can legally marry, or not?”

    Should 53%
    Should not 45%

    “Do you think same-sex couples have a constitutional right to marry, or not?”

    Do 53%
    Do not 43%

    If these figures are to be credited, at least 6% of the voting public (and possibly much more) overlappingly believes both that same-sex couples have a constitutional right to marry, and that “each individual state should be allowed to decide” on that same question. I think it may be time for a refresher course in constitutional law.

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Yesterday by a 9-0 vote the Supreme Court agreed with a Cato amicus brief that the Securities and Exchange Commission has no power to seek fines or penalties after the statute of limitations has expired on challenged conduct by arguing that it did not discover the conduct until recently. I’ve got a discussion at Cato at Liberty. (& SCOTUSBlog, which also hosts this opinion analysis by Jonathan Macey)

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From Cato Institute chairman Robert Levy, who was co-counsel in the landmark D.C. v. Heller case. [National Law Journal] More: Trevor Burrus, The Blaze. And the New York Times takes up the topic of guns and suicide, but with some pretty big omissions [Tom Maguire, Ira Stoll/SmarterTimes]

Further: “Senate Judiciary Committee Hears from Cato on Gun Policy” [Ilya Shapiro, citing contributions by David Kopel, Randy Barnett, etc.] And while Bing’s real-time reaction tracker isn’t a scientific voter survey (though the sample size is large, and there’s a partisan breakdown) it seems I was not alone in being put off by President Obama’s demagogic “they deserve a vote” State of the Union wind-up on gun control. [Mediaite]

#SOTU

by Walter Olson on February 13, 2013

My tweets and retweets last night during the State of the Union address and the GOP response by Sen. Marco Rubio (R-Fla.), in regular rather than reverse chronological order:

Also, by way of pleasant contrast:

And here’s Cato’s response video with scholars Michael Tanner, Julian Sanchez, Alex Nowrasteh, Simon Lester, John Samples, Pat Michaels, Jagadeesh Gokhale, Michael F. Cannon, Jim Harper, Malou Innocent, Juan Carlos Hidalgo, Ilya Shapiro, Trevor Burrus and Neal McCluskey.

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Law schools roundup

by Walter Olson on February 8, 2013

  • Universities’ prestige game: will “zombie law schools” drag down the rest? [Gerard Magliocca]
  • Law as undergraduate degree works in advanced countries like Germany and Britain, could work here too [Bainbridge]
  • It’s a capitalist plot! Steve Diamond of Santa Clara assails Brian Tamanaha’s critique of law schools as too redolent of Hayek, Cato [SSRN, background, more]
  • “That’s pretty good reason to speak up: Thomas Breaks 5-year Silence During #SCOTUS Arguments to Mock Yale” [@DavidMastio]
  • Dean who took huge pay packet for dismal results is also immediate past president of ABA law school panel [Campos]
  • Does the California experience undercut arguments for relaxing accreditation? [Matt Bodie]
  • “What Do Law Professors Think About the Critiques of the Law Schools?” [Orin Kerr]

February 7 roundup

by Walter Olson on February 7, 2013

  • You mean Philadelphia traffic court wasn’t on the up-and-up? [ABA Journal] DUI prosecution in Lafayette Parish, La. had become quite the tidy business [Scott Greenfield]
  • Match.com sued after date assault [FindLaw]
  • Sweden is at cutting edge of free-market policy innovation [Adrian Wooldridge, The Economist]
  • Big victory for Institute for Justice as federal court strikes down new IRS tax preparer rules [Katherine Mangu-Ward] 97% of Chicago tax preparers out of compliance with local licensing regs? [TaxProf]
  • A sentiment open to doubt: Heritage claims “there is no ban on same-sex marriage” in any state [Ryan Anderson] Support from PM Cameron, other senior Conservatives instrumental in British passage of same-sex marriage [Peter Jukes, Daily Beast] New beyond-the-culture-wars initiative on marriage from David Blankenhorn and colleagues at Institute for American Values [Mark Oppenheimer, NYT]
  • “Why not a waiting period for laws?” [Glenn Reynolds, NY Post]
  • As he steps aside, recalling some of the accomplishments of longtime Cato Institute chairman Ed Crane [Cato Policy Report, PDF]
  • R.I.P. Maureen Martin, legal affairs fellow at Heartland Institute whose work touched many [Jim Lakely]

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January 29 roundup

by Walter Olson on January 29, 2013

  • In job bias dispute: “Federal Court Says Veganism Might Qualify As A Religion” [Religion Clause]
  • Perennially credulous L.A. Times drops broad hints that Toyota settlement vindicates sudden acceleration theories, others know better [LA Times, NLJ earlier]
  • “Cato Named America’s Most Effective Think Tank Per Dollar Spent” [Dan Mitchell, Nick Rosenkranz]
  • Disappointing: Transportation Sec. LaHood said to be “sticking around for a while” [Roads and Bridges, earlier] That was quick: only hours later, he says he’s leaving after all [WaPo]
  • It became necessary to destroy the sex workers in order to save them [Melissa Gira Grant/Reason]
  • Profile of lefter-than-thou NY attorney general Eric Schneiderman [NY Mag]
  • As rural pub tradition declines, Irish government rejects proposal to ease DUI laws [AP]

A Cato Forum held January 9 and featuring Craig Whitney, author, Living with Guns, and a former New York Times reporter and editor; Alan Gura and Alan Morrison, who argued opposite sides of the Heller case; and as moderator, Cato senior fellow Ilya Shapiro.

Meanwhile, getting the jump on President Obama’s proposals, Gov. Andrew Cuomo and the legislature of New York have rushed to passage a hasty new gun control package [Roger Pilon, Jacob Sullum, Bob McManus/NY Post, more from Sullum on "false urgency"]

Mark your calendar! On January 16 at noon in Washington, D.C., Prof. Brian Tamanaha of Washington University will speak at a Cato Book Forum on his much-acclaimed new book, Failing Law Schools. Commenting will be Neal McCluskey, who directs Cato’s program on education policy, and University of Colorado law professor Paul Campos, like Tamanaha a celebrated critic of the American law school scene. I’ll be moderating. The event in Washington, D.C. is free and open to the public; details on how to register here.

From the event description:

For decades, American law schools enjoyed one of the world’s great winning streaks. Amid swelling enrollments and what seemed an insatiable demand for new lawyers, they went on a spree of expansion; even as tuitions soared, the schools basked in an air of public-interest rectitude symbolized by Yale law dean Harold Koh’s description of his institution as a “Republic of Conscience.” Then came the Great Recession—and a great reckoning. New graduates were unable to find decently paying legal jobs even as they staggered under enormous debt burdens; it became impossible to ignore long-standing complaints from the world of legal practice that the law curriculum does not train students well in much of what lawyers do; and creative efforts to reduce the cost of law school were stymied by an accreditation process that closely constrains the format of legal education. In Failing Law Schools, one of the most talked-of books in years about higher education, Brian Tamanaha of Washington University has written a devastating critique of what went wrong with the American law school and what can be done to fix it. None of the key contributors to the problem—faculty self-interest, university administrators’ myopia, cartel-like accreditation—escape unscathed in his analysis.

We’ve often cited the work of Profs. Tamanaha and Campos in this space and linked to reviews and discussions of Failing Law Schools here, here, here, here, here, and here. National Jurist just named Prof. Tamanaha as #1 on its list of the year’s most five most influential people in legal education. See you there on Jan. 16!

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The Cato Institute website has just emerged from a thorough revamp with a new look, faster loading, and better optimization for cellphones and other emerging platforms. And the Cato at Liberty blog, where I contribute often, now has a new home within the Cato.org domain.

The Class Action Fairness Act of 2005 aims to steer all but relatively small nationwide class actions into federal court, in part because lawmakers wanted to prevent plaintiff’s lawyers from exploiting the system by forum-shopping cases into state courts that might be biased or ill-equipped to prevent abuse. It therefore allows defendants to remove cases to federal court where the aggregate claim exceeds $5 million. To evade that limit, plaintiff’s lawyers have been proffering stipulations that disclaim (at least temporarily) any intent to ask for more than that sum, even when plausible theories of the case would suggest a larger potential recovery. If the ploy works, they get to stay in the favored state court, and in later stages of litigation they sometimes succeed in using various further tactics to shuffle off the supposed limit and ask for more than $5 million after all.

Aside from the end run it does around the intent of the statute, this practice raises serious ethical issues arising from the lawyers’ duty toward clients, including absent class members who may not even be aware of the suit, let alone in a position to second-guess tactical choices. Disclaiming damages above $5 million, in particular, may be helpful to the lawyer (by obtaining less stringent oversight of the manner in which the suit is prosecuted) yet harm some clients’ interest in obtaining the best recovery.

The U.S. Supreme Court will take up this issue in the spring, and the Cato Institute has filed an amicus brief (PDF) urging the Court to recognize the ethical problem and direct lower federal courts to grant removal where appropriate. Ilya Shapiro has more. Ted Frank at the Center for Class Action Fairness also filed amicus briefs on behalf of certiorari and on the merits; related.

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Author Russell Nieli came to Cato this week to discuss his new book and I gave a brief commentary. More: John Rosenberg, Discriminations.

Related: Voting on ideological lines, the Sixth Circuit declares void the Michigan Civil Rights Initiative, suggesting a constitutionalized “right” to racial preferences. Calling SCOTUS! [Jonathan Adler]

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The Right rethinks prisons

by Walter Olson on November 22, 2012

How a seemingly unlikely assortment of libertarians, religious conservatives and small-government advocates have been helping to turn around the debate on incarceration. [David Dagan and Steven Teles, Washington Monthly]

I had the honor of moderating a debate at Cato on Thursday between Judge J. Harvie Wilkinson III, author most recently of Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, and the Cato Institute’s Roger Pilon on the proper role of restraint and energy in judicial protection of constitutional liberty. It was a scintillating discussion and you can watch it above, or at this Cato link.

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Details here on how you can follow along.

On C-SPAN here, via Orin Kerr (“It’s all very much worth watching, as is the case every year.”)

If you can’t attend in person in Washington, D.C., C-SPAN will be covering it live all day (C-SPAN1 in the morning, C-SPAN2 in the afternoon).