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October 31 roundup

by Walter Olson on October 31, 2014

  • “Government Is the Biggest Threat to Innovation, Say Silicon Valley Insiders” [J.D. Tuccille, Reason]
  • Acrimonious split between Overlawyered favorite Geoffrey Fieger and long-time law partner Ven Johnson [L.L. Brasier, Detroit Free Press]
  • Case against deference: “Now More Than Ever, Courts Should Police Administrative Agencies” [Ilya Shapiro on Perez v. Mortgage Bankers Association; boundary between "interpretive" and "legislative" agency rules]
  • “The Canary in the Law School Coal Mine?” [George Leef, Minding the Campus] Ideological diversity at law schools [Prof. Bainbridge and followup]
  • Familiar (to economists) but needed case against state auto dealership protection laws [Matt Yglesias, Vox; our tag]
  • Trial lawyers dump millions into attempt to defeat Illinois high court justice Lloyd Karmeier [Chamber-backed Madison County Record, Southern Illinoisan]
  • A genuinely liberal regime would leave accreditation room for small Massachusetts college that expects students to obey Biblical conduct standards [Andrew Sullivan, more]

“Net neutrality” sounds nice, fair, workable, and so forth, and has been eloquently backed by Google. Reason enough, then, to break with the “Hands Off the Net” policy under which the internet has flourished? Lest we forget: lines of business reduced to public utility status tend to stagnate [David Boaz, Cato]


July 3 roundup

by Walter Olson on July 3, 2014

  • As Brooklyn changes, so do its juries: “more sophisticated people… they don’t believe [plaintiffs] should be awarded millions of dollars for nothing.” [NY Post quoting plaintiff's lawyer Charen Kim]
  • Richard Epstein: Massachusetts buffer zone statute “should have been upheld, not struck down” [Hoover Institution, earlier on McCullen v. Coakley, my related comment]
  • “Runners” as in client-chasing for injury work: “Arkansas AG Files Suit Against Chiropractic ‘Runners'” [AP]
  • Fox, henhouse: 2012 law says local transit agencies must sit on boards helping set their own funding [Randal O'Toole, Cato]
  • No-good, terrible, really bad idea: occupational licensure for software professionals [Ira Stoll]
  • More proliferation of legally required video surveillance [Volokh; guns, cellphone sales]
  • How do you expect the IRS to back up headquarters emails when we throttle its IT budget down to a mere $2.4 billion? [Chris Edwards, Cato]

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Sen. Harry Reid seems to have been central:

“We felt really good the last couple of days,” said the tech lobbyist. “It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that’s it. Enough with the children playing in the playground—go kill it.”…

Trial lawyers are heavy donors to Democratic politicians, including Reid. … The long history of the divide over other kinds of legal tort reform loomed over the bill, which was dubbed the Innovation Act in the House. The fact that it was the trial lawyers’ lobby that reportedly delivered the death blow suggests that the rift only got wider as debate dragged on.

Key Litigation Lobby allies like Sen. Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) spoke out against the legislation on the Senate floor. [Joe Mullin, ArsTechnica]

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Incumbent firms “have an army of lawyers” and aren’t afraid to use them [Jon Brodkin, Ars Technica]

“California regulator seeks to shut down ‘learn to code’ bootcamps” [Venture Beat]


More clarity, or even deeper confusion? The Supreme Court has agreed to revisit software patents in the case of Alice Corp. v. CLS International. “A system of property rights is flawed if no one can know what’s protected. That’s what happens when the government grants 20-year patents for vague software ideas in exchange for making the innovation public.” [Gordon Crovitz, WSJ, quoted at Marginal Revolution; Daniel Fisher, Forbes]

Tech roundup

by Walter Olson on November 6, 2013

  • Far-reaching, little-discussed new regulation: Stewart Baker on NIST rules mandating cybersecurity at private enterprises [Volokh; first, second, third, fourth posts]
  • “Ominous Developments on the Internet Governance Front” [David Post]
  • “The Exaggeration Of The Cyberbullying Problem Is Harming Anti-Bullying Efforts” [Tim Cushing, TechDirt]
  • “Will California’s New Data Breach Notification Duty Stimulate Class Action Litigation?” [Glenn Lammi, WLF]
  • Some thoughts on how the law should treat domestic drones, public and private [Kenneth Anderson]
  • Privacy lawsuit against Gmail could do a lot of damage [Mike Masnick, TechDirt; Matt Powers, CEI "Open Market", parts one, two]
  • Warning: more efforts ahead from legal academia to come up with stringent liability schemes for software makers [New Republic and Lawfare]

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“1) Something bad could happen. 2) I can see it; others can’t. 3) Something must be done! 4) Ignore costs.” [@AdamThierer]


“California’s Department of Financial Institutions [has] decided to issue a cease and desist warning to … Bitcoin Foundation for allegedly engaging in the business of money transmission without a license or proper authorization…. As a nonprofit, [the Foundation's] mission is to standardize and promote the open source Bitcoin protocol … One activity that the foundation does not engage in is the owning, controlling, or conducting of money transmission business.” [Jon Matonis, Forbes]

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Randal O’Toole doesn’t share the concerns of Greg Beato and others.


The remarkable recent advances in make-it-yourself technology are opening up all sorts of new possibilities for users, but also have the potential to freak out the CPSC, FDA, trade agencies and intellectual property lawyers, as well as gun-control advocates. When products extruded from local printers are inevitably involved in injuries, which distant parties can be sued? [Bloomberg]


As Kenneth Anderson relates, scholars have begun putting quite a bit of thought is going into the question, and many realize that assigning strict liability for accidents to the deep pockets on the scene — manufacturers, designers, programmers and promoters — might not be an optimal safety strategy.


  • The term “space marine” dates way back in sci-fi writing, but Games Workshop says it’s now a trademark [Popehat] “Site plagiarizes blog posts, then files DMCA takedown on originals” [Ars Technica; related, Popehat]
  • D.C. suburban school district: “Prince George’s considers copyright policy that takes ownership of students’ work” [WaPo]
  • New book Copyright Unbalanced [Jerry Brito, ed.; Tom Palmer/Reason, David Post/Volokh] “Copyright, Property Rights, and the Free Market” [Adam Mossoff, TotM]
  • Neither doll left standing: “After Long Fight, Bratz Case Ends in Zero Damages” [The Recorder]
  • “Podcasting patent troll” [Gerard Magliocca, Concur Op]
  • “The EU-funded plan to stick a ‘flag this as terrorism site’ button on your browser” [Ars Technica]
  • “The Most Ridiculous Law of 2013 (So Far): It Is Now a Crime to Unlock Your Smartphone” [Derek Khanna, Atlantic]

A two-part post, with part 1 on the law as applied to the facts, and part II on sentencing, prosecutorial discretion, and the appropriate targets for reformist energy. Earlier here (& Greenfield; Timothy Lee and Mike Masnick on plea bargaining).

Rob Beschizza: “While it looks like clueless corporate spite, I bet it’s really about lawyers wanting to lower CBS’s exposure to uncertainty in its boring lawsuit over contracts and copyright. … For some, it seems inconceivable not to accept legal advice after it’s been sought — even when the negative consequences of taking it are profoundly obvious.” [BoingBoing]

Programmer Aaron Swartz, a founder of RSS syndication and Reddit, committed a series of trespasses and hacks at MIT so as to download millions of papers from the JSTOR academic database, possibly with the plan of making them freely available through file sharing. When caught he returned the files and JSTOR did not recommend prosecution. In September Timothy Lee wrote in Ars Technica that while there was no excuse for Swartz’s actions, it was also mystifying that federal prosecutors were going to such lengths to stack up felony counts and legal theories under the CFAA (Computer Fraud and Abuse Act) that could send the popular techie to prison for life. Now Swartz, who is known to have been afflicted by depression, is dead, a suicide at age 26. [Jonathan Blanks, Lawrence Lessig, Glenn Greenwald, Patterico interview with Swartz lawyer Elliot Peters, Scott Greenfield, Orin Kerr (disputing premise that prosecutors overcharged), Timothy Lee/WaPo]


Though the Ninth Circuit has differed, four federal circuit courts of appeal have read the Computer Fraud and Abuse Act to criminalize unauthorized access to computers even when the breach in question was to overstep contractual terms of service or the access a computer provider intended to furnish. As reported earlier, that leaves open possibilities of private liability or even felony conviction for behavior that in no way resembles hacking. [Mashable]

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