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NYC

Although we call it “rent control,” the key thing it controls is often not so much what you can charge for a lodging as whether you can ever reclaim it. This recluse successfully held out for $17 million to relinquish his moldy, squalid rented lodging at what is now 15 Central Park West. [New York Post]

P.S. But at least the U.N. likes the idea. While on the subject of legal insanity in NYC real estate: Andrew Rice, New York mag, “Why Run a Slum If You Can Make More Money Housing the Homeless?” I wrote about the epic New York City homeless-rights litigation in Schools for Misrule, and more links are here.

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Queens, N.Y.: “A mailman who admitted making about $35,000 selling undelivered coupons wants $25 million-plus from JCPenney for blowing the whistle on his scheme. … it was unclear if Tang still works as a letter carrier.” [New York Post]

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His two hats

by Walter Olson on January 2, 2014

An arbitrator overseeing negotiations between New York City and unions is also a fund-raiser for incoming Mayor Bill de Blasio [Capital New York]

“…Because It Looks Too Much Like Smoking.” The invention and rapid spread in popularity of e-cigarettes might be seen as a sort of lab experiment to test the proposition: when you banned smoking, were you mostly concerned about the spillover effects on third parties or mostly being paternalistic toward tobacco users? [Jacob Sullum, Reason]

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December 18 roundup

by Walter Olson on December 18, 2013

  • California judge tells three large companies to pay $1 billion to counties under highly novel nuisance theory of lead paint mostly sold long ago [Business Week, The Recorder, Legal NewsLine, IB Times]
  • Coincidence? California given number one “Judicial Hellhole” ranking in U.S. Chamber report, followed by Louisiana, NYC, West Virginia, Illinois’ Metro-East and South Florida [report in PDF; Daniel Fisher/Forbes (& thanks for mention of Overlawyered), Legal NewsLine]
  • Frivolous ethics charge filed by Rep. Louise Slaughter, Common Cause and Alliance for Justice against Judge Diane Sykes over Federalist Society appearance is quickly dismissed [Jonathan Adler]
  • On heels of San Antonio Four: “Texas pair released after serving 21 years for ‘satanic abuse’” [Guardian, Scott Greenfield]
  • White House delayed onerous regulations till after election; Washington Post indignant about the delay, not the regs [WaPo, Thomas Firey/Cato]
  • “GM vs Bankruptcy – How Autoworkers Became More Equal Than Others” [James Sherk, Bloomberg]
  • According to one study, North America’s economically freest state isn’t a state, but a Canadian province [Dan Mitchell]
  • “If you thought it wasn’t possible to lower the bar for lawyer advertising, of all things, you were wrong.” [Lowering the Bar, first and second round]
  • Follow the federal funding: “Stop giving out awards for arrests” [Andrew Sullivan]
  • NYC cops shoot at mentally disturbed man, hit bystanders instead, charge him with their injuries [Scott Shackford, Popehat]
  • Electric car owner charged with stealing 5 cents worth of power [Chamblee, Ga.: WXIA, auto-plays]
  • Claims re: sex trafficking in US fast spiraling into absurdity. Keep going [Maggie McNeill, earlier] “Perverse Incentives: Sex Work and the Law” [Cato Unbound symposium] “California to Open Victim Compensation Funds to Prostitutes” [Shackford]
  • Illegal ticket quotas at the LAPD, inmate beatings at the county sheriff’s jail: Los Angeles policing hit by multiple scandals [L.A. Times: editorial on charges against 18 sheriff's deputies, LAPD ticket quota]
  • Massachusetts crime lab test faker Annie Dookhan gets 3-5 year sentence [ABA Journal]
  • “Overcriminalization in the states” [Vikrant Reddy, Texas Public Policy Foundation, draft; related Mother Jones] Conservatives call for reforms in New Mexico justice system [Rio Grande Foundation via @PatNolanPFM]
  • Also: “Chief Judge For 9th Circuit [Alex Kozinski] Cites ‘Epidemic’ Of Prosecutor Misconduct” [Radley Balko]

Medical roundup

by Walter Olson on December 16, 2013

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[Yasmin] Rahman tried to commit suicide in 2001 by jumping in front of a subway train. NYPD officers saved her life. She was 15. Now, 27, she’s suing the city for $7 million, claiming the city and the NYPD posted pictures, police reports and hospital records of her failed suicide attempt on a database open to the public. She claims that has prevented her from obtaining a job.

Although her lawsuit alleges that the publication of the material has prevented Rahman from “obtaining any type of job,” a reporter “found that she actually did have a job from 2010 to 2012,” among other difficulties with the story. Rahman’s lawyer, Andrew Schatkin, commented on the $7 million demand: “I put a large figure in because if I put a small figure in I would only get that small amount. It’s not that I’m making an outsized or frankly a lie about it for a better word. I’m simply enabling a figure that would get her as much compensation as possible.” [MyFoxNY.com; Eric Turkewitz on ad damnum clauses in New York]

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“The female FDNY probie who was allowed to graduate from the Fire Academy without passing a required running test has quit” after a sixth unsuccessful try to run a mile and a half in 12 minutes or less. Wendy Tapia will “return back to EMS ranks,” said a fire spokesman.

“It’s really not about her, it’s about preferential treatment,” said Paul Mannix, president of Merit Matters, a firefighter group that opposes hiring quotas. “People are encouraged that she won’t be fighting fires, not because she’s a woman, but because she couldn’t meet the standards.”

For an excerpt from my discussion in The Excuse Factory of litigation challenging timed tests for firefighters, see this 2007 post. [New York Post, earlier]

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“Despite failing a required FDNY running test five times, Wendy Tapia was allowed to graduate from the Fire Academy and become a firefighter. On Dec. 2, she is taking the test for an unprecedented sixth time.” [New York Post] In The Excuse Factory, I told the story of how prolonged litigation from civil rights groups claiming to speak for the interests of female applicants had severely eroded testing for strength, endurance and agility among many urban fire, police and trash services.

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November 11 roundup

by Walter Olson on November 11, 2013

  • Incoming Australian attorney general: we’ll repeal race-speech laws that were used to prosecute columnist Andrew Bolt [Sydney Morning Herald, Melbourne Herald-Sun, earlier]
  • Texas sues EEOC on its criminal background check policy [Employee Screen]
  • After Eric Turkewitz criticizes $85M announced demand in Red Bull suit, comments section turns lively [NYPIAB]
  • If only Gotham’s official tourism agency acted like a tourism agency [Coyote on NYC's official war against AirBnB; Ilya Shapiro, Cato; earlier here and here, etc.]
  • “Lawmaker wants Georgia bicyclists to buy license plates” [WSB]
  • Religious liberty implications of European moves to ban infant circumcision [Eugene Kontorovich]
  • Video on CPSC’s quest for personal liability against agency-mocking Craig Zucker of Buckyballs fame [Reason TV, earlier]

#LifeUnderDeBlasio

by Walter Olson on November 6, 2013

Enjoying the genre of #LifeUnderDeBlasio satire tweets from New Yorkers, such as: “I remember when the screens in the back of taxis showed light entertainment, not statistics about iron production.” [@tomgara] “I thought de Blasio gave a good speech but am just not sure how the Five Year Plan for the Park Slope roof gardens will turn out.” [@stuartpstevens] And the one about considering teachers’ union head Randi Weingarten as schools chief.

Wait a minute. That one’s real!

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Businesses in New York that permits from City Hall — which at one time or another is likely to be most of them — commonly pay thousands of dollars for “expediters” to navigate municipal departments for them. That this system continues even after years of putatively pro-business, modernizing administration by Mayor Michael Bloomberg, says Ira Stoll, is “outrageous.” [Future of Capitalism]

Some reasons to think Bill de Blasio’s schemes for “mandatory inclusionary zoning” are likely to fall short. [Jim Epstein, New York Daily News]

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Yes, the New York City arts scene has a lot of money sloshing around in it, that of Minneapolis-St. Paul much less, but in neither instance are performing-arts labor unions doing well at reaching a livable accommodation with the needs of high culture. [Hoover "Defining Ideas"]

“Exhibiting a complete lack of common sense, the city’s Human Rights Commission is determined to take seven Hasidic-owned stores in Brooklyn to trial for the high crime of requiring modest dress of their customers.” Signs the HRC deems “discriminatory” include “No Shorts, No Barefoot, No Sleeveless, No Low Cut Necklines Allowed.” [editorial, New York Post] But shops catering to a secular clientele routinely post demands that their customers button up: no shirt/socks/shoes, no service, business attire only, and so forth. “Which means the city is targeting the Hasidic stores because of religion!” [Ann Althouse]

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Here at Overlawyered we post a lot about the problem of police misconduct, which is a deep-seated one in our system and corrosive to individual liberty. But there’s a flip side too, presented here by Max McCann in a guest column: one-way fee provisions can create an incentive to file dubious or marginal misconduct complaints, and some commentators will predictably jump on those allegations as if they represented actual findings of wrongdoing. McCann is an attorney who represents the City of New York; the guest column (which previewed yesterday in the Daily Caller) reflects his views alone. Read it here.

More: Responses from Scott Greenfield and commenters.

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[Guest column by Max McCann. McCann is a lawyer for the city of New York and Adjunct Instructor of Clinical Law at Brooklyn Law School. The views expressed are those of the author alone. A preview of the column ran at the Daily Caller, Sept. 23, 2013]

Most of the time, reporters avoid writing a story about an arrest in a way that assumes the guilt of the person charged. But when wrongdoing is charged against law enforcement itself, in the form of civil complaints against police officers, reporters too often treat plaintiffs’ contentions as if somehow pre-validated as findings of genuine misconduct.

Among the many stories written about lawsuits against the NYPD, examples of this type of reporting are easy to find. One typical headline: “14 Occupy Wall Street Protesters Sue NYC Over Unconstitutional NYE [New Year's Eve] Arrests,” which seems to assume that the arrests were, in fact, unconstitutional.

Many lawyers and activists are happy to encourage this mistake. A lawyer who represented a client in a sexual harassment case against an NYPD lieutenant that resulted in a settlement was quoted as saying, “[a]lthough our clients are satisfied that the litigation is over, it is further proof that the once-silent issue of same-sex harassment is on the rise.” Likewise, in a Daily News article, one activist was quoted as saying, “[w]here there’s this much smoke, there’s fire.”

That is one reason we should be cautious when we see headlines like this one, reciting that civil rights lawsuits against members of the NYPD are on the rise, costing New York City $185 million in fiscal year 2011. Often these reports simply take it for granted that — to quote the activist above — where there’s this much smoke, there must be fire. Why would so many civil rights lawsuits be filed, other than a high rate of misconduct by members of the NYPD?

One possible explanation is that many persons who get arrested find the experience disagreeable and strike back by filing a complaint, which helps solidify in their own and their families’ minds that the trouble they had with the law was not their fault. Another, which may strike readers as more surprising, is that even relatively weak cases can be profitable ventures for the lawyers who file these cases. In fact, the lawyers often win more than the actual plaintiffs.

Under current federal law, if a jury in a civil rights suit awards a plaintiff even a small sum of money, the municipality has to pay that amount plus the plaintiffs’ attorneys’ fees on top of that. Since the lawyers bill at upwards of $500 or more per hour, a minor award to plaintiffs can readily generate a large fee entitlement. Here are a few notable examples from lawsuits against the NYPD.

  • In Fryar v. City of New York, filed in Brooklyn federal court, the plaintiff claimed that he was unlawfully arrested and spent the night in jail as a result. At trial, the jury awarded the plaintiff $600, and the city had to pay his lawyers more than $78,000, even though the judge found that they had “engaged in bad faith discovery practices.
  • In Vilkhu v. City of New York, also filed in Brooklyn federal court, the plaintiff claimed that police used excessive force against him. At trial, the jury awarded the plaintiff $20,000, and the city eventually settled fees with his lawyers for approximately $500,000.
  • In Bradley v. Jusino, filed in Manhattan federal court, the plaintiff claimed that he was unlawfully arrested during an anti-war protest. After two mistrials, a jury awarded the plaintiff $20,000, and his lawyers received $750,000.

Although these are not typical outcomes, they show that plaintiffs’ lawyers can have huge financial incentives to bring marginal, not just high-value, claims to the attention of the courts. Making matters worse, attorneys’ fees are awarded after the trial by the judge, so the typical jury has no idea that its award of a few hundred dollars to the plaintiff may trigger a five or six-figure payout to the plaintiff’s lawyer.

Furthermore, the risks for the plaintiffs in these lawsuits are relatively low. If someone brings a frivolous suit against a police officer, and the city spends the resources required to win the case at trial, the plaintiff is unlikely to have to pay the city attorneys’ fees. That means, if the plaintiff wins, the taxpayers are on the hook for the plaintiff’s attorneys’ fees as well as the city’s. If the police officer wins, the taxpayers are still on the hook for the city attorneys’ fees.

Given this lose-lose situation, the city has a significant incentive to settle these cases prior to trial, generating a vicious cycle: the prospect of an easy settlement encourages more lawsuits.

Of course, a quest for attorneys’ fees is not the only reason plaintiffs’ lawyers go to court. Some are, no doubt, genuinely outraged about what they perceive as the unfair treatment of their clients. But in estimating the significance of any rise in civil suits against police officers, it’s worth keeping in mind that this is not just the pursuit of social justice. It’s an industry.

 

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