Overlawyered » WO writings http://overlawyered.com Chronicling the high cost of our legal system Sat, 30 May 2015 15:41:43 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.2 Buy our protective services, or we’ll rat you out to the feds http://overlawyered.com/2015/05/buy-our-protective-services-or-well-rat-you-out-to-the-feds/ http://overlawyered.com/2015/05/buy-our-protective-services-or-well-rat-you-out-to-the-feds/#comments Thu, 14 May 2015 04:15:55 +0000 http://overlawyered.com/?p=53082 I’ve got a new post at Cato summarizing dramatic new testimony in the case (briefly noted here last year) of a laboratory company that got reported to the Federal Trade Commission for data breach — and drawn into a crushingly expensive legal battle — after it declined to buy data security services offered by a […]

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I’ve got a new post at Cato summarizing dramatic new testimony in the case (briefly noted here last year) of a laboratory company that got reported to the Federal Trade Commission for data breach — and drawn into a crushingly expensive legal battle — after it declined to buy data security services offered by a company with Homeland Security contracts. The battle has been raging for a while, with the nonprofit Washington, D.C. group Cause of Action representing LabMD and outlets like Mother Jones running coverage unsympathetic to its case.

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David Simon (“The Wire”) on what went wrong in Baltimore http://overlawyered.com/2015/05/david-simon-the-wire-on-what-went-wrong-in-baltimore/ http://overlawyered.com/2015/05/david-simon-the-wire-on-what-went-wrong-in-baltimore/#comments Wed, 06 May 2015 04:15:41 +0000 http://overlawyered.com/?p=52983 What went wrong with police-community relations in Baltimore, and are there any hopes for improvement? I liked David Simon’s interview on this subject so well that I edited it down into a sort of highlights reel in a Cato at Liberty post. P.S.: Flashback to this December post: “At least twelve Baltimore cops sought workers’ […]

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What went wrong with police-community relations in Baltimore, and are there any hopes for improvement? I liked David Simon’s interview on this subject so well that I edited it down into a sort of highlights reel in a Cato at Liberty post.

P.S.: Flashback to this December post: “At least twelve Baltimore cops sought workers’ comp for stress after using deadly force on citizens [Luke Broadwater, Baltimore Sun/Carroll County Times] And I was a guest on the national Leslie Marshall show Monday, guest-hosted by Newsweek opinion editor Nicholas Wapshott, on the topic of Maryland’s Law Enforcement Officer Bill of Rights.

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Law Enforcement Officer Bill of Rights laws: time for reform http://overlawyered.com/2015/04/leobr-leobor-reform/ http://overlawyered.com/2015/04/leobr-leobor-reform/#comments Thu, 30 Apr 2015 04:15:46 +0000 http://overlawyered.com/?p=52770 “I don’t understand how she [Baltimore Mayor Stephanie Rawlings-Blake] can continually say they’re not cooperating,” Michael E. Davey, an attorney for the police union, told The Baltimore Sun on Wednesday. “They are. They did. And they’re lucky they got those statements before I got involved.” They’re lucky they got those statements before I got involved. […]

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“I don’t understand how she [Baltimore Mayor Stephanie Rawlings-Blake] can continually say they’re not cooperating,” Michael E. Davey, an attorney for the police union, told The Baltimore Sun on Wednesday. “They are. They did. And they’re lucky they got those statements before I got involved.”

They’re lucky they got those statements before I got involved. That’s a little window into the adversarial relationship between the union representing six Baltimore officers under investigation and city officials charged with determining whether Freddie Gray’s fatal injuries in police custody might have been caused by foul play such as an unbelted “rough ride” in the back of a police van.

Newsweek, and before that the Foundation for Economic Education, have now reprinted a short Cato at Liberty piece in which I describe the operation of Law Enforcement Officer Bill of Rights (LEOBR or LEOBoR) laws, of which Maryland passed the first in the early 1970s, and which have spread to more than a dozen states; in many other localities union contract provisions accomplish some of the same goals. These laws sharply restrain how police forces can pursue misconduct investigations against suspected officers, and officials in Baltimore and elsewhere have repeatedly cited the law as an impediment to investigations of officer misconduct long predating the Freddie Gray incident, including the probe into the enormous scandal of employee misconduct at the state-run Baltimore jail. (I’ve got more at Free State Notes about the local Maryland angle, including the failure of efforts this year in the state legislature to reform the law.)

Radley Balko followed up with a post summarizing my argument and adding an important point, which is that these laws can provide a covert way for departments to sabotage investigations so as to help out fellow officers, by introducing seemingly inadvertent errors that ensure that charges will later have to be thrown out.

In my opinion, conservatives should no more defend LEOBRs than they should defend teacher tenure laws, and for much the same reasons. In response to rising criticism, which has intensified since Gray’s death in custody, police unions have begun a broad effort to shore up support for the laws. The version of my article at FEE, for example, drew a response from a Montgomery County Fraternal Order of Police official which you can read here together with my response.

One oft-heard claim that these laws merely give suspected cops the same rights as other suspected citizens. Don’t miss Ken White’s new post at Popehat blowing that argument to smithereens. Equally laughable is the suggestion from union brass that the laws merely put into effect Fifth Amendment or other constitutional rights. While a few cases from the Warren Court era did invent new constitutional constraints on public agencies’ handling of employee investigations, LEOBR laws go far beyond anything in those cases.

Further reading and listening: Ed Krayewski, Reason; Kojo Nnamdi show; New York Times “Room for Debate” roundtable with Prof. Paul Butler, my friend and former Manhattan Institute colleague Heather Mac Donald (the middle-of-the-roader, in this context) and FOP’s Chuck Canterbury. See also my coverage of correctional officers “bill of rights” laws in Maryland, Pennsylvania, etc. here, here, here, and here.

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Business, gay rights, and the law: what comes next http://overlawyered.com/2015/04/business-gay-rights-and-the-law-what-comes-next/ http://overlawyered.com/2015/04/business-gay-rights-and-the-law-what-comes-next/#comments Sun, 05 Apr 2015 15:15:52 +0000 http://overlawyered.com/?p=52383 Following the furor over RFRA (Religious Freedom Restoration Act) legislation in Indiana and Arkansas this week, I’ve got a new piece in today’s New York Daily News on the emergence of American business as the most influential ally of gay rights. Links to follow up some of the quoted sources: Reuters on Walmart, Tony Perkins/FRC […]

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Following the furor over RFRA (Religious Freedom Restoration Act) legislation in Indiana and Arkansas this week, I’ve got a new piece in today’s New York Daily News on the emergence of American business as the most influential ally of gay rights. Links to follow up some of the quoted sources: Reuters on Walmart, Tony Perkins/FRC on pieces of silver, Dave Weigel on how public opinion in polls tends to side with the small business owners. I wrote last year on the Arizona mini-RFRA bill vetoed by Gov. Jan Brewer.

On the social media pile-on against a small-town Indiana pizzeria, see also the thought-provoking column by Conor Friedersdorf (more, Matt Welch). Also recommended on the general controversy: Roger Pilon, Mike Munger/Bleeding Heart Libertarians, and David Henderson on freedom of association, David Brooks on getting along, and Peter Steinfels on liberal pluralism and religious freedom.

Relatedly, Cato has now posted a podcast with my critical views (earlier) of the “Utah compromise” adding sexual orientation as a protected class while also giving employees new rights to sue employers over curbs on discussion of religion and morality in the workplace (h/t: interviewer Caleb Brown). For a view of that compromise more favorable than mine, see this Brookings panel.

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My take on Young v. United Parcel Service http://overlawyered.com/2015/03/my-take-on-young-v-united-parcel-service/ http://overlawyered.com/2015/03/my-take-on-young-v-united-parcel-service/#comments Thu, 26 Mar 2015 09:47:20 +0000 http://overlawyered.com/?p=52250 Supreme Court liberals smack around the Obama Equal Employment Opportunity Commission (EEOC), even as they hand a win to a pregnancy-bias plaintiff. I’ve got a write-up at Cato at Liberty. More: Josh Blackman. Tags: EEOC, pregnancy discrimination, Supreme Court, WO writings

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Supreme Court liberals smack around the Obama Equal Employment Opportunity Commission (EEOC), even as they hand a win to a pregnancy-bias plaintiff. I’ve got a write-up at Cato at Liberty. More: Josh Blackman.

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Beware the “Utah Compromise” http://overlawyered.com/2015/03/beware-the-utah-compromise/ http://overlawyered.com/2015/03/beware-the-utah-compromise/#comments Fri, 20 Mar 2015 15:18:57 +0000 http://overlawyered.com/?p=52164 Gov. Gary Herbert (R) has signed into law an expansion of Utah’s anti-discrimination law following what’s being billed as a historic compromise between gay rights advocates and the Church of Jesus Christ of Latter-Day Saints. Unfortunately, as I argue at the Daily Beast, both halves of the compromise are bad news for individual liberty and freedom […]

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Gov. Gary Herbert (R) has signed into law an expansion of Utah’s anti-discrimination law following what’s being billed as a historic compromise between gay rights advocates and the Church of Jesus Christ of Latter-Day Saints. Unfortunately, as I argue at the Daily Beast, both halves of the compromise are bad news for individual liberty and freedom of association in the workplace. Excerpt:

As I noted at the Cato Institute’s website a while back, these laws “sacrifice the freedom of private actors—as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed.”

That’s the familiar half of the story. What’s new about the Utah Compromise is that it adds completely new restrictions on employers’ rights to keep the workplace focused on work as opposed to religious or moral debate. In particular, it allows employees to sue on a claim that they were fired or otherwise treated poorly for talking about religion or morality in the workplace, at least if they were doing so in a way that was “reasonable” and didn’t interfere with the employer’s “essential” business interests.

When an employee then begins treating customers or co-workers to unasked-for disquisitions about religious or moral matters, it will apparently be the state of Utah—rather than, as now, the folks in human resources—who will have the final say as to whether the topic is “similar” to others on which discussion had previously been allowed, and whether the proselytizing or reproachful comments taken as a whole were “reasonable” or by contrast “harassing or disruptive.”

And I conclude:

It’s not clear whether anyone was at the table speaking up for employers’ rights and interests during the Utah negotiations. It’s a lot easier to reach what’s hailed as a historic compromise if you can do so at the expense of absent third parties, isn’t it?

Whole thing here. [cross-posted from Cato at Liberty]

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U.S. Department of Labor’s blueberry squeeze goes wrong http://overlawyered.com/2015/02/u-s-department-labors-blueberry-squeeze-goes-wrong/ http://overlawyered.com/2015/02/u-s-department-labors-blueberry-squeeze-goes-wrong/#comments Tue, 17 Feb 2015 05:15:57 +0000 http://overlawyered.com/?p=51151 I’ve got a new piece at Reason on how the U.S. Department of Labor stepped over the line when — relying on an obscure “hot goods” provision of the 1938 Fair Labor Standards Act — it slapped an order on two Oregon blueberry growers forbidding them from selling their crop until they settled a (dubious) […]

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I’ve got a new piece at Reason on how the U.S. Department of Labor stepped over the line when — relying on an obscure “hot goods” provision of the 1938 Fair Labor Standards Act — it slapped an order on two Oregon blueberry growers forbidding them from selling their crop until they settled a (dubious) DoL demand for back pay for workers. Having no choice in this forfeiture-like situation, the growers went along, but when things were brought to a federal court’s attention, the Obama administration got slapped down hard. Further observations at Cato at Liberty.

We mentioned the case in October, and developments last year drew coverage critical of the Administration’s tactics from a Wall Street Journal editorial, Jared Meyer at Economics 21, and George Leef at Forbes. For contrary views, see Catherine Ruckelshaus of the National Employment Law Project in Salon, with typical let-us-reason-together Salon framing (“lies… disingenuous… lost its mind”); Fair Warning; and Sachin Pandya, Workplace Prof. More coverage of the recent settlement and dropping of charges: AP, Oregonian, Fair Warning, and Trey Kovacs/WorkplaceChoice.org. More: Daniel Schwartz noting October 2014 DoL fact sheet.

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How Republicans win in the Northeast http://overlawyered.com/2015/01/republicans-win-northeast/ http://overlawyered.com/2015/01/republicans-win-northeast/#comments Tue, 27 Jan 2015 05:15:13 +0000 http://overlawyered.com/?p=51026 I wrote the cover story in this weekend’s Washington Examiner magazine, about why the Northeast continues to elect Republicans as governor (and not to many posts other than that). The cast of characters includes newly elected governors Larry Hogan of Maryland and Charlie Baker of Massachusetts, Thomas Dewey, Chris Christie, Rudy Giuliani, William Weld, George […]

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WashExaminerCoverI wrote the cover story in this weekend’s Washington Examiner magazine, about why the Northeast continues to elect Republicans as governor (and not to many posts other than that). The cast of characters includes newly elected governors Larry Hogan of Maryland and Charlie Baker of Massachusetts, Thomas Dewey, Chris Christie, Rudy Giuliani, William Weld, George Pataki, Mitt Romney, and Christine Todd Whitman.

It’s a particular honor that political analyst Michael Barone wrote a piece riffing on my article and going into more detail about the reformist origins of the GOP tradition in states like New York, and its continued importance as a brake on both self-dealing and fiscal profusion:

Why have Northeastern electorates, so heavily Democratic in presidential and congressional elections, been willing to elect Republican governors so often? Because that’s the only way to prevent their heavily Democratic legislatures from taxing and spending their states onto the road to bankruptcy for the benefit of the public employee unions. That’s something that Thomas Dewey, a light spender unlike Rockefeller, would approve and understand.

Most of my essay is about politics and policy, but here’s a bit related to law:

Northwestern law professor and Federalist Society member John McGinnis says [New York Gov. George] Pataki’s “most impressive act” was one that was hardly noticed at the time and yielded no electoral benefits, namely his appointment to the state’s highest court of Robert Smith, who “became one of the great state court jurists of his time.”

More on that: Ira Stoll. I blogged a bit more about Gov. Larry Hogan’s victory in my election night post, and much more at my Maryland blog Free State Notes.

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Public choice and D.C.’s ill-managed Metro http://overlawyered.com/2015/01/public-choice-washingtons-crumbling-metro/ http://overlawyered.com/2015/01/public-choice-washingtons-crumbling-metro/#comments Wed, 14 Jan 2015 05:15:15 +0000 http://overlawyered.com/?p=50748 I’ve got a new post at Cato about the perennial problem of poor governance at Washington, D.C.’s WMATA Metro subway system, which on Monday suffered a smoke-in-tunnel accident that cost the life of a passenger and sickened many more. Excerpt: If the cream of the nation’s political class, living within a 50 mile radius in […]

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I’ve got a new post at Cato about the perennial problem of poor governance at Washington, D.C.’s WMATA Metro subway system, which on Monday suffered a smoke-in-tunnel accident that cost the life of a passenger and sickened many more. Excerpt:

If the cream of the nation’s political class, living within a 50 mile radius in Virginia, Maryland, and D.C., cannot arrange to obtain competence from their elected local officials in delivering a public service that’s vital to their daily work lives, what does that tell us about their pretensions to improve through federal action the delivery of local government services – fire and police, water supply and schooling, road maintenance and, yes, transit itself – in the rest of the country?

Reactions from George Leef (“it tells us that we should ignore them”), @jasonkeisling (“If it had been Uber, the gov would ban their service. But no need to address any problems with metro.”), and Christine Sisto/National Review. The Washington Post succinctly summarizes local outrage about the service’s failure to live up to its boasts of a “culture of safety”, while Washington City Paper, Aaron Wiener reviews Metro’s sluggish response to a series of previous safety crises and breakdowns.

A lot of literature — like this recent study cited by the Regional Plan Association — tends to confirm the idea that transit operations work better when governance is arranged so as to provide clear lines of responsibility and accountability. WMATA, which has gone through many general managers over the years, suffers from a weak, too-many-cooks board structure in which two each of eight board seats are filled by Maryland, Virginia, the District, and the federal government, along with another two alternates for each of the four jurisdictions.

On Wednesday morning at 9:15 a.m. I’m scheduled to be on Fox 5 WTTG Morning News television to talk about these ideas.

More: Michael Brickman, Flypaper. @politicalmath recalls when Metro got $200 million from the stimulus program to “create a safety culture.” Another comment from @jasonkeisling: “No accountability. Imagine if a private company had an incident like this…”

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“Health In All Policies” http://overlawyered.com/2015/01/health-policies/ http://overlawyered.com/2015/01/health-policies/#comments Fri, 09 Jan 2015 10:31:19 +0000 http://overlawyered.com/?p=50517 At Reason, Baylen Linnekin has a year-end survey asking “a handful of food law and policy cognoscenti” (thanks!) what they would pick as the story of the year in that area, and also the story to watch next year. (Others surveyed include Elizabeth Nolan Brown, Ron Bailey, and Jeff Stier.) As a significant story in […]

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At Reason, Baylen Linnekin has a year-end survey asking “a handful of food law and policy cognoscenti” (thanks!) what they would pick as the story of the year in that area, and also the story to watch next year. (Others surveyed include Elizabeth Nolan Brown, Ron Bailey, and Jeff Stier.) As a significant story in the past year, I nominated the flare-up of social media resistance to changes to the federal school lunch program (“#ThanksMichelleObama“), noting that while purveyors of “food policy” could barely contain their disdain at the insolence of the students spreading the tag, the protest did make an impression in Washington: “of all the ways to irritate the political class, making fun of them is among their least favorite.”

So far as a sleeper issue to look for in 2015, my nomination was:

Have you heard of “Health in All Policies”? It’s a buzz-phrase for inserting public health dogma into everything from land use to taxation. Imagine if sticking up for your taste in milkshakes and margaritas meant you had to attend zoning meetings. It might come to that.

At “The Pulse”, a series on health based at Philadelphia’s public radio station WHYY, reporter Taunya English describes “Health in All Policies” at more length and quotes me providing a voice of skepticism about the idea.

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