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California’s Prop 37: Prop 65 in organic garb

by Walter Olson on August 15, 2012

After the quarter-century disgrace that is Proposition 65 litigation — run by and for lawyers’ interests, with no discernible benefit to the health of the citizenry — you’d think California voters would have learned a thing or two. But unless poll numbers reverse themselves, they’re on the way to approving this fall’s Proposition 37, ostensibly aimed at requiring labeling of genetically modified food, whose main sponsor just happens to be a Prop 65 lawyer. I explain in a new piece at Daily Caller. More coverage: Western Farm Press; Hank Campbell, Science 2.0; Ronald Bailey, Reason (& Red State).

More: defenders of Prop 37 point to this analysis (PDF) by economist James Cooper, arguing that 37 is drafted more narrowly than 65 in ways that would avert some of the potential for abusive litigation. And from Hans Bader: would the measure be open to challenge as unconstitutional, or as federally preempted?

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New at HuffPo: Bryan Fischer, the Miller-Jenkins case, and kidnap apologetics

by Walter Olson on August 10, 2012

The American Family Association’s zany yet high-profile Bryan Fischer is in the news for calling for an “Underground Railroad” by which his fellow believers would “rescue” kids from gay parents. In my new Huffington Post piece, just up, I trace two main threads in his argument — that gay parents are a menace to their kids, and that extralegal steps are called for to put “God’s law over man’s” – and show how the same messages have been emanating lately from some rather more respectable social-conservative quarters, in Princeton, N.J. and elsewhere. The controversy develops in part from the Miller-Jenkins custody and kidnapping case, long a topic of coverage in this space; in the latest development, Mennonite clergyman Kenneth Miller (applauded by Fischer) has just gone on trial for allegedly abetting the spiriting of Isabella Miller-Jenkins (no relation), now 10, out of the country in defiance of court orders.

Fischer now says he wasn’t suggesting that kids of same-sex couples be abducted from their beds by Christians unrelated to those children, but he definitely is encouraging believers to use extralegal force in cases that pit one of theirs against a gay parent in a custody dispute. He hints broadly that the next test case after Miller-Jenkins will be that of a divorced woman he describes who is losing custody to her gay ex-husband, and who just might disappear with the child into the “Underground Railroad” he promotes. Meanwhile, the Liberty University School of Law in Lynchburg, Va., whose faculty has multiple connections with Lisa Miller’s side of the Miller-Jenkins litigation, stirred criticism when related civil-disobedience precepts reportedly emerged as part of the curriculum in a class.

It might be added that this, like so many unsettling developments on the Right, is not without its parallels on the Left. Since the 1980s and the famous Elizabeth Morgan case, some feminists have operated a so-called Underground Railroad to enable mothers to defy court orders and abduct their kids away from fathers with shared custody or visitation orders. Usually some allegation is made of abuse, but the tactic has been used and applauded even where a judge has considered the abuse allegations and declined to accept them. (Law prof Nancy Polikoff discusses her mixed feelings about the Miller-Jenkins case here).

Reacting to the potential for lawlessness in this realm, Congress has passed at least two statutes of relevance: the International Child Abduction Remedies Act, signed by President Ronald Reagan in 1988, and the International Parental Kidnapping Crime Act, signed by President Bill Clinton in 1993.

Update Aug. 15: Jury convicts Kenneth Miller.

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Big Questions Online discussion

by Walter Olson on July 20, 2012

Our discussion of litigation, character, and humility at the John Templeton Foundation continues with talk of mediation, settlement rates, the impersonality of big cities, and contingency fees.

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Litigation, humility, and character: join me at Big Questions Online

by Walter Olson on July 17, 2012

What does the pursuit of litigation do to litigants’ characters? What does it do to the character of organizations and whole societies? Does it undermine the humility that some (though not all) of us deem an important virtue in persons and institutions?

This week I’m leading a discussion on that subject at the John Templeton Foundation’s Big Questions Online. It starts with a brief essay in which I note the older view, held by many religions and philosophical schools but now out of favor in much of academia, that litigiousness is a kind of vice, to which people are perhaps peculiarly susceptible if they take to an extreme what is otherwise the virtuous impulse to pursue justice. I cite familiar sources (Abraham Lincoln, Bleak House) as well as those perhaps less familiar (Kleist’s Michael Kohlhaas) that shed light on how pride in one’s own quarrels, even (especially?) those that are rightful, can distort perceptions and harden sympathies.

My observations, however, do no more than scratch the surface of a big subject on which there is much to say. It’s a moderated discussion and your comments are welcome through the week. And please pass on word to others who might be interested.

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Usage note

by Walter Olson on July 11, 2012

A reader chides me for using the prefix “ultra-” to mean “extremely,” saying it should be limited to meaning “beyond.” My response is here.

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More reactions to “Abolish the Law Reviews!”

by Walter Olson on July 10, 2012

My Atlantic piece touched off a lot of discussion, much of it quite constructive, of where law reviews fall short and how best to fix or replace them. Unless you’ve caught up with it already, you’ll want to check out Friday’s post rounding up more than a dozen reactions (and updated a couple of times over the weekend to include more content). On Monday, along with new reactions at legal blogs, the piece took off on Twitter as well.

Joe Hodnicki, Law Librarian Blog:

… eventually, reader expectations will push the long-form law article into the 21st century of e-publishing.

In the process one can only hope that law journals and enhanced regularly updated serial law eBooks will also eliminate the print era version of date-stamping by ceasing publication of “issues” for journals and, for serial eBooks, scheduled “supplements” or “editions.” As soon as the text has completed the editorial process, just e-publish the damn thing immediately.

Old publishing habits die hard, but it is time to create new ones by eliminating print era legacies.

Mark Giangrande, also of Law Librarian Blog, by email, following up on our previous excerpt:

One thing not in my Law Librarian Blog post was a quick check on Westlaw to see what quantity of law review cites appeared in Supreme Court opinions in the last term. A quick count showed at least 56. What surprised me was some of the citations went back to the 1960s. I’ve often criticized law reviews for publishing philosophical pieces that tend to show faculty writing to impress their friends and win promotions, little of which contribute to the bench and bar (per CJ Roberts’ point). The Court still uses them, but generally those which actually discuss the law as the law.

The full list of 56 last-term SCOTUS law review cites, of which the most satisfying is probably “Note, Regulation of Comic Books, 68 Harv. L. Rev. 489, 490 (1955),” is too long to be included here, but those interested can drop him a line.

Adam Kusovitsky and colleagues, Pace International Law Review:

Havighurst is correct to point out that law reviews are published in order that they may be written, but that fact should not rouse a sneer or scoff. …Law reviews provide thousands of students an apparatus to develop unrivaled editing, writing and researching skills, which ultimately makes them better attorneys and more effective writers in general.

Meanwhile, Vitruvian Design spies similar signs of sclerosis in humanities and classics journals. There’s even a Reddit thread (hipsterparalegal). And the article has gotten no end of pick-up on Twitter, including Lawyerist, Corby Kummer, Boston Bar (“must reading”), Cleveland-Marshall Dean Craig Boise, and Bryan Cave Library, to name a few. And:

And this rather cruel exchange:

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“Abolish the Law Reviews!”

by Walter Olson on July 5, 2012

I’ve got a new essay up at The Atlantic, part of the “America the Fixable” series edited by Philip K. Howard. I have a bit of fun at the expense of the Harvard Law Review, raising the question of whether it should be held to lower standards than the Long Island tabloid Newsday, and cite such figures as Richard Posner, Elizabeth Warren, Ross Davies of George Mason, and the bloggers at Volokh Conspiracy and Balkinization.

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American lawyers: a disintegrating guild?

by Walter Olson on July 3, 2012

Yes, lawyers are organized as a guild, but I’m not convinced that arrangement is disintegrating or on the way to doing so. I explain why in a new piece at Liberty and Law that’s a response to an essay-in-chief by Jim Chen of Louisville Law School arguing that competition and technological advance are fast eroding lawyers’ guild privileges. The other response-essay is by Brian Tamanaha of Washington U. in St. Louis, whose new book Failing Law Schools has been getting widespread acclaim [NLJ, Garnett]
and whose recent essays in the NYT and Daily Beast have stirred widespread discussion. (& Instapundit, Paul Caron/TaxProf, Scott Greenfield).

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“A trap for small business”: Welcome Baltimore Sun readers

by Walter Olson on May 30, 2012

I’m in the paper with an opinion piece on federal prosecutors’ assault on small business for bank deposit “structuring.” My posts on the South Mountain Creamery case, in which federal authorities seized the bank account of a Middletown, Maryland dairy which had allegedly been depositing farmers’ market proceeds in installments of less than $10,000, are here and here. Van Smith of the Baltimore City Paper deserves particular credit for breaking the structuring story with reports here and here. Update: South Mountain case settles.

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Will Stand Your Ground change the outcome of the Martin/Zimmerman case?

by Walter Olson on March 27, 2012

The Orlando Sentinel asked me to analyze how Florida’s Stand Your Ground law affects the Trayvon Martin shooting case. I conclude that in most likely scenarios, the law will make no difference one way or the other on George Zimmerman’s guilt or innocence, though it does help him on some points of procedure. Jacob Sullum has related thoughts at Reason (more at Cato).

The other piece in the point-counterpoint is from Florida prosecutor Buddy Rogers who emphasizes that claims of justifiable homicide have risen sharply (from 12 to 33 a year), even if homicides per capita themselves have not. I took a look at the crime numbers in this Cato post.

To answer a question, it was the Sentinel editors who elected to describe the antagonists in the Sanford confrontation by way of a given name for one (“Trayvon”) but a surname for the other (“Zimmerman”). My own inclination is to use a surname for both.

Michael Mannheimer has an important post on the role of “provocation” in the Martin/Zimmerman case at PrawfsBlawg. Earlier here, here, and here.

P.S. David Kopel similarly argues that Zimmerman’s guilt or innocence (depending on which version of events is accepted) is no different in Florida from what it would be under the law of New York or any other state; he also defends the rationale for Florida’s use of an immunity, which he argues “does not change the law, but… apparently is effective at reminding law enforcement officers of the standard they are required to obey” under court precedents forbidding arrest without probable cause.

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Don’t rush to repeal “Stand Your Ground” laws

by Walter Olson on March 22, 2012

The New York Times invited me to participate in a “Room for Debate” discussion of Florida’s controversial “Stand Your Ground” self-defense law, and my contribution is here. I elaborate on some of the issues at stake — including the failure of Florida’s violent crime rate to rise as predicted under the law — in this Cato post (& welcome Instapundit, Reihan Salam/NRO, Alex Adrianson/Insider Online, Aaron Worthing, David Codrea readers).

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Welcome New York Times readers

by Walter Olson on February 22, 2012

I contribute to a “Room for Debate” symposium on the 2012 farm bill here (& Drovers Cattle Network).

P.S. As Nicole Kurokawa Neily reminds us, Cato has been active on farm bill issues for many years, including this 2007 paper by Sallie James and Dan Griswold.

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Gonna wash Salon right outta my hair

by Walter Olson on September 1, 2011

A howler-packed Michael Lind screed against libertarians and classical liberals asserts, among other tall things, that John Stuart Mill, Benjamin Constant, and Thomas Macaulay were apologists for “autocracy.” I do my bit to correct the historical record at Cato at Liberty. Meanwhile, Will Wilkinson and Jason Kuznicki challenge Lind’s gross misrepresentations of Mises and Hayek, while Damon Root and Roderick Long take on some of his other errors. Sam Schulman, on Twitter, has fun with “Michael Lind’s eccentric view of history, upon the pinnacle of which stands – Michael Lind.” And yet more: Sam Bowman, AdamSmith.org, Brad Schlesinger, Pejman Yousefzadeh.

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Yes, it has come to this

by Walter Olson on August 31, 2011

You can “like” me on Facebook. Thanks to Cato’s Zach Graves for setting it up.

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Antiquities law ensnares coin collectors

by Walter Olson on August 24, 2011

As I note at Cato, antiquities law has been expanding to restrict private ownership of more and more ancient artifacts. The latest targets are numismatists; more on that in an op-ed that I published last week in the Examiner.

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“If I could press a button and instantly vaporize one sector of employment law…”

by Walter Olson on August 12, 2011

In a new Reason symposium on how to revitalize the American job market, I explain my answer to that question.

More: This set off a round of discussion on employment blogs including Jon Hyman (nominating FLSA for vaporization), Suzanne Boy (concur), Daniel Schwartz (leave laws), Suzanne Lucas (citing “the fabulous Overlawyered.com”), the ABA Journal, Tim Eavenson, Jon Hyman again, HR Daily Report, and Russell Cawyer. Also relevant on age discrimination laws: a June symposium in the NYT’s “Room for Debate” feature; ComputerWorld on age bias and IT.

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Happy Meals and Campbell’s Soup

by Walter Olson on July 28, 2011

This week has brought one nudge forward and one push back for the paternalistic “food policy” crowd, or so I argue in a new opinion piece for the New York Daily News (& welcome Instapundit/Glenn Reynolds readers, Center for Consumer Freedom “Quote of the Week“).

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Get ready to surprise yourself with a drug test

by Walter Olson on July 14, 2011

In my new post at Cato at Liberty, I quote a few highlights from Philip Greenspun’s account of his encounter with Federal Aviation Administration regulators intent on applying to the smallest aviation businesses the same rules that govern the largest. Per George Wallace, “All regulation aspires to the condition of a Monty Python sketch.”

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