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Last week the Department of Justice announced a deal with Toyota in which the Japanese automaker would fork over $1.2 billion and place itself under supervision for allegedly not being forthcoming enough with information at the height of the 2009-2010 panic over claims of unintended acceleration in its cars. The acceleration claims themselves had turned out to be almost entirely bogus, and were refuted in a report from the federal government’s own expert agency, NHTSA. Instead, the prosecution relied on a single count of wire fraud: Toyota had supposedly given regulators, Congress and the public an erroneously positive view of its safety efforts. It should therefore have to “forfeit” a huge sum supposedly related to the volume of business it did over a relevant period.

I’ve got an opinion piece in Monday’s Wall Street Journal (unpaywalled Cato version here, related Cato post here) about this whole appalling affair, which should frighten other businesses that might face draconian charges in future not just for compliance infractions, but more broadly for defending their products in the court of public opinion. Meanwhile, the Justice Department’s grandstanding and demagogic press release goes to some lengths to leave the impression “that unintended acceleration is some mysterious phenomenon of auto design unrelated to flooring the accelerator.” Someone here is irresponsibly misleading the motoring public and withholding vital safety information, but it’s not Toyota.

A few related links: NHTSA unintended acceleration report, Car & Driver’s coverage, and my 2010 opinion piece. And Holman Jenkins at the WSJ (paywalled) compares the still-unfolding story of ignition problems at GM, also discussed by Paul Barrett at Business Week.

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A bill introduced by three members of the New York Senate would require parents of schoolchildren to attend four workshops aimed at sharpening their “parenting skills,” as a condition for their kids’ advancing to the seventh grade. I’ve got details in a new post at Cato at Liberty (& Patheos’s Terry Firma).

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Super Bowl ads in review

by Walter Olson on February 3, 2014

A Georgia lawyer aired an ad bizarre enough that it’s made the rounds of the legal sites:

More from Lowering the Bar (“As Rolling Stone suggests, it is a little problematic that the ad depicts him desecrating a grave and smashing a grave marker, even if he does it with a flaming sledgehammer named after his dead brother and to a badass metal soundtrack.”)

Meanwhile, over at Cato at Liberty, I’ve got a commentary on the Coca-Cola ad with at least a tangential relation to language law, the legacy of Teddy Roosevelt’s Progressives, and the gracefulness of being good winners regarding the success of English assimilation.

Suing over a study

by Walter Olson on January 7, 2014

I’ve got a short piece in the January Reason on the story (covered earlier here and here) of the lawyer who decided to sue a scientific journal publisher and the authors of a clinical report because the findings in the article made it harder for him to win personal injury lawsuits.

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I’ve got a new op-ed for Bloomberg View (first time I’ve appeared there) calling last week’s venture in presidential clemency “mingy and belated” and, if aimed at prison overcrowding, “like trying to bail out Lake Michigan with a paint can.” On Thursday President Obama commuted the sentences of eight inmates caught up in the crack cocaine sentencing fury, all of whom had already served at least 15 years for what were often relatively peripheral involvement in the drug trade. Clarence Aaron, for example, was serving three life sentences without possibility of parole for a first-time nonviolent offense. Many advocates from all political viewpoints pushed for Aaron’s release, among them Debra Saunders who wrote dozens of columns on his case in the San Francisco Chronicle over the past 12 years (Also in Minneapolis Star-Tribune and other papers, and AP roundup of opinion columns; & Scott Greenfield, Pardon Power).

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I’ve now got a guest column at PointOfLaw.com on the Securities and Exchange Commission’s proposed rule (earlier) requiring public companies to calculate and make public the ratio between chief executive officer (CEO) pay and the pay of a median worker. For companies with international operations in particular, the calculation may be quite difficult (it might depend on assumed exchange rates, for example, to say nothing of noncash benefits) and it might also depend on the ability to gather in one place certain types of data whose export is forbidden by some privacy-sensitive foreign laws. And all for what, aside from stoking demagogy? Or was that the point of the Dodd-Frank mandate that the SEC is now implementing?

I have fond memories of launching Point of Law during my years at the Manhattan Institute, and I was its primary writer for many years, so it is especially rewarding to contribute a guest column there. Under the leadership of MI’s Jim Copland, the site (and MI in general) has become especially active in corporate governance, shareholder and SEC controversies.

I’ve got a new piece at Reason.com expanding on my earlier reports on the new pilot program by which Facebook will give Maryland school officials a dedicated channel with which to seek takedown of posts and other material that in their view contributes to the problem of “cyber-bullying.” I think the program represents a disturbing step toward a wider government role as arbiter of what is allowed to be said in social media, the more so as it will be difficult or impossible to know whether takedown decisions at Facebook’s discretion are an entirely neutral application of the service’s “Community Standards” or are swayed in part by the wish to keep government bodies happy. I quote various press accounts, some affording additional insight into the existing and proposed takedown process, as well as commentary by Scott Greenfield, TechDirt, and the Daily Caller in which I’m quoted. Some additional commentary: Joy Pullmann/Heartland, Josh Blackman. More: Instalanched, thanks Glenn Reynolds.

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The Maryland high court recently declined an invitation to discard the common-law rule against server liability in a case where a patron of a Gaithersburg craft brewery got on the road and caused a fatal accident. Washington Post columnist Robert McCartney wrote in favor of the wider liability rule, and I responded in a letter to the editor just posted at the newspaper.

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Having to watch what bad government has done to my home city of Detroit is a bit like Princess Leia having to watch her home planet destroyed. The fate of the Motor City, writes John Steele Gordon, is America’s “greatest urban disaster that didn’t involve nature or war.” But wait: here’s distinguished New York Times columnist Paul Krugman to inform us that it’s not “fundamentally a tale of fiscal irresponsibility … For the most part, it’s just one of those things that happens now and then in an ever-changing economy.” Just one of those things! I reply — with a hat tip to Cole Porter — at Cato at Liberty. (& George Leef (“A tornado is ‘just one of those things’ because is has no human cause. When a city goes bankrupt, it has many human causes”), Ed Driscoll)

P.S. On the role of long-serving mayor Coleman Young, see pp. 12-13 of this Ed Glaeser/Andrei Shleifer paper (PDF). And here’s a HuffPo tag on Detroit corruption.

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In my new CNN.com piece I argue that we shouldn’t let anger over the Zimmerman acquittal shred the rights of criminal defendants: “awarding new powers to prosecutors will likely mean that more black people will end up behind bars.” [CNN](& Steele; thanks for Instalanche to Glenn Reynolds)

P.S. Some may wonder whether a toughening of hate crime laws might be an exception to the general rule that minorities have much to fear from a broadening of grounds for prosecution. Leaving aside whether the hate crime issue has any relation to the Martin/Zimmerman case (few lawyers believe Zimmerman could be found guilty of a hate crime, and when the FBI investigated him last summer it found no evidence of racial motivation; more on this from Michelle Meyer), per FBI statistics for 2011, blacks are actually overrepresented among persons charged with hate crimes, at 21 percent compared with 14 percent of general U.S. population.

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Commentary has un-paywalled my July article on the feds’ “blueprint” for how colleges and universities must deal with charges of sexual misconduct. I explain why despite a retreat to a seemingly less extreme interpretation of the law, the dangers remain that the Department of Education and Department of Justice will arm-twist academic institutions into stacked disciplinary methods and new curbs on speech. Read it here (and also consider subscribing to Commentary, gates aside). Earlier here, here, etc.

Two points worth noting: first, while the Obama administration has pushed the new plan hard, the wider trend of gradually stepped-up federal supervision over university life has been going on for decades under Republican and Democratic administrations alike. There is not much resistance: university officials and organized professors themselves are relatively half-hearted about sticking up for their own institutional autonomy. Indeed, the federal prescriptions represent in some ways a consolidation of power by already-powerful elements within the academy, as opposed to a perceived hostile takeover from the outside. In the same July issue of Commentary, Philip Hamburger has an excellent article outlining how university researchers have for decades now tamely submitted to federally prescribed controls — overseen by so-called IRBs, or institutional review boards — over such relatively innocuous forms of “human-subjects research” as interviewing politicians and observing passersby in public places. In 2007, David Hyman wrote for Cato’s Regulation magazine on “The Pathologies of Institutional Review Boards.”

P.S. Much more on IRBs from George Mason’s Zachary Schrag (book, another interview, more, blog).

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And with Justice Anthony Kennedy as the pivot? It just might have happened this term, or so I conclude in a new Cato post.

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Defending the Obama administration’s new rules governing discipline at colleges and universities, ThinkProgress makes it all sound more reasonable by erroneously reporting that the crackdown is on “unwanted contact”; the actual phrase is “unwanted conduct,” with “verbal conduct,” i.e. speech, very much part of that [Will Creeley, FIRE]

In the July Commentary I have an article on the controversy over the new blueprint (“Sentence First, Verdict Afterward“). It’s behind a paywall, but you can purchase it individually, or better yet subscribe to Commentary which is full of other great articles as well.

Yesterday the Supreme Court decided it was okay to require arrested persons to submit to DNA testing meant to match them to unsolved crimes. [Maryland v. King; Robert Kaiser, Washington Post; Nina Totenberg, NPR] In an impassioned dissent joined by liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Antonin Scalia warned that an important civil liberties line is being crossed as the Court now approves suspicion-less searches of persons at a stage at which the law presumes them innocent, without any primary motivation except to gather evidence of unrelated crime.

I’ve got an article in The Daily Beast this morning on the Scalia dissent and its warnings that lawmakers may soon embrace a genetic surveillance state in the name of security. Excerpt:

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

More: I’ve got this related piece in Newsweek on the Justices’ shifting Fourth Amendment alignments. Thanks to Glenn Reynolds for the Instalanche. And other commentaries from Daniel Fisher, Lowering the Bar (on the Jeremy Bentham angle; Scalia’s dissent mentions Bentham twice; Scott Greenfield; Julian Sanchez; Jacob Sullum). And Mississippi has just announced plans to match offspring of underage mothers to responsible fathers through DNA database checks based on umbilical cord blood. [NPR]

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For all with eyes to see (except maybe some folks at The New Yorker) the IRS scandal has been hiding in plain sight for more than a year, I argue in a new Cato post. For example, this site briefly covered the Service’s ridiculously broad documentary demands on Tea Party groups — for things like transcripts of speeches and radio shows and the contents of Facebook and Twitter postings– in March and May of last year.

The Treasury Inspector General’s report on the affair, released yesterday, is here. (Coverage roundup: Paul Caron, TaxProf.) It makes clear that many groups were singled out because of their controversial political stances and then subjected to both objectively unreasonable document demands (e.g., for thousands of pages of documentation) and objectively unreasonable delays (e.g., for two years) in resolving their applications. (The Service seldom if ever actually denied applications from the singled-out groups, perhaps because its actions would then have come under more rigorous court review). Meanwhile, other groups with controversial views of a different political valence were waved through. It is not a question of whether applications for tax exemption should somehow be “approved without question,” as some have contended, but whether they should come under review that is even-handed and with no more delay and regulatory burden than is inherent to the process. At Time, Michael Scherer collects past examples that suggest IRS retaliation against political adversaries is something of a tradition in America. (Similarly: Cato video podcast).

P.S. Defending itself against the Inspector General’s report, the IRS says the applicants flagged for special scrutiny “included organizations of all political views.” It points to three such left-leaning groups — out of 471 in all singled out for extra screening. [Bloomberg via Newser] Much more: Gregory Korte, USA Today (“As applications from conservative groups sat in limbo, groups with liberal-sounding names had their applications approved … the liberal groups applied for the same tax status and were engaged in the same kinds of activities as the conservative groups.”) Meanwhile, L.A. Times columnist Michael Hiltzik is unafraid of going way out on a limb to defend what the Service did: if you don’t want to be harassed for your dissidence, it seems, you shouldn’t have sought (c)(4) status in the first place.

Yet more: Reuters has illuminating coverage of how the Service tried to break one of the year’s biggest stories on a Friday afternoon via a friendly question before a room full of tax lawyers. (“They made a bet that this would be the quietest way to roll it out,” [Eric Dezenhall] said of the IRS strategy. “It didn’t work.”) “Did Citizens United Critics Push the Agency To Misbehave?” asks my Cato colleague John Samples, while Tim Lynch adduces “Some Empirical Evidence of IRS Political Manipulation”. The BBC has a lexicon of political scandal euphemisms (“tired and emotional,” “hiking the Appalachian Trail,” etc.)

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New from me at Cato: in covering the U.N. disabled-rights treaty, the Boston Globe bids to earn back its old nickname of “The Glib.” Earlier on the treaty here, here, etc.

Comcast Corp. v. Behrend

by Walter Olson on March 29, 2013

As I noted in this morning’s roundup, the Supreme Court spoke on Wednesday about class certification in an antitrust case from Philadelphia. Although a rather narrow and technical ruling it was not devoid of interest, or so I argue in a new post at Cato at Liberty.

I’ve got a flash reaction op-ed up at the New York Daily News site.

P.S. @gideonstrumpet: “I was indeed joking.

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