Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2012

“Bloomberg’s Long History of Nannying”


Caleb Brown interviews me in this new Cato Institute podcast, in which we discuss the futility of Mayor Bloomberg’s effort to turn NYC soda fans into two-fisted drinkers (that is, they’ll need to carry one in each hand); the role of federal grants from the Obama administration; and more broadly, the creepily intrusive ambitions of the New York City Health Department. If the embedded version doesn’t work, you can find it here.

Related: “The issue is freedom, not soft drinks.” [Jonathan Tobin, Commentary]. “Over himself, over his own body and mind, the individual is sovereign,” wrote John Stuart Mill [Patrick Basham, U.S. News] A new study finds restricting people’s junk food choices doesn’t help them lose weight [Reuters] James Lileks offers a helpful picture gallery distinguishing “Poison” from “Not Poison,” and classes a-burger-and-a-Coke in the latter category. Contrariwise, a ban backer at the Daily Beast is happy to contemplate future rules limiting hamburger sizes: “why not? Eight- and ten-ounce burgers are sick things.” And from earldean71: “If history is any guide at least one Atlanta suburb will pass an ordinance requiring giant soda drinks if NYC has a ban.” Earlier here, here, here, here, etc.

More: Watch me on the video version, just up on YouTube:

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9-0, 9-0, 9-0

In three significant cases before the Supreme Court this term — Hosanna-Tabor Church v. EEOC on religious liberty, U.S. v. Jones on warrantless GPS search, and Sackett v. EPA on rights to challenge regulatory agency actions — the justices have been unanimous in rejecting the Obama Administration’s position. This Department of Justice, it seems, keeps asserting a vision of virtually unfettered executive-branch power that even its own appointees on the Court find unpersuasive. “If the government loses in the health-care or immigration cases,” writes my Cato Institute colleague Ilya Shapiro, “it won’t be because its lawyers had a bad day in court or because the justices ruled based on their political preferences. It will be because the Obama administration continues to make legal arguments that don’t pass the smell test.” [WSJ]

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Labor and employment law roundup

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EPA’s aerial surveillance of farms

“Snapping photos of livestock farms from an airplane is a legal and cost-effective way to help protect Nebraska and Iowa streams from runoff contamination, say officials with the U.S. Environmental Protection Agency.” The agency does not inform landowners that it is conducting the flights. [Omaha World-Herald, Reuters] “The EPA says it doesn’t rely solely on the aerial photos in taking enforcement actions against feedlots and their owners, but it does use them to identify businesses to target.” [Alexander Cohen, Business Rights Center]

Bloomberg’s soda Waterloo?

General derision continues from many quarters, if not all, for Mayor Bloomberg’s soda-snatch scheme. “Just don’t get caught with the weed AND a 24 ounce Coke” [NYT comment via John Elwood, Volokh] Baylen Linnekin finds it “just part of a typical news cycle in the Bloombergosphere” and points out that “The unsweetened juice of an apple — that symbol of New York City — contains at a minimum exactly the same number of grams of sugar per ounce (3.25 g) as Coca-Cola (3.25 g).” Ira Stoll suspects Bloomberg has surrounded himself overmuch with yes-men. More: George Will (“‘The essence of contemporary liberalism,’ ‘preposterous,’ ‘sinister'”)

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Diversity hiring on law school faculties, cont’d

Point of Law has been continuing its discussion of racial preference and diversity hiring at law schools in the wake of the Elizabeth Warren brouhaha. I’ve now concluded my contribution with a second post (first one here). Excerpt from my new post:

…were competing approaches to diversity permitted, newcomers would be more likely to find an institution that suits their own desired experience: some would seek a pledge that advancement would be race- and sex-blind, others an assurance of encountering colleagues from backgrounds very different from their own.

Of course that’s not the world we live in. In our actual world, all law schools must conform to a prescribed format. Accreditation officials will haul up any institution that tries to be race-blind, and HLS will scramble to claim hiring credit for Prof. Warren’s vague family lore of Cherokee ancestry.

Should outsiders care? One reason to care might be if the prevalence of identity politics tends to reinforce the problem (assuming it is a problem) of ideological imbalance in the legal academy. In Schools for Misrule I conclude that it does, though only as one of many contributing factors….

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Judge Easterbrook vs. the attitudinal model

At the Swarthmore commencement, Judge Frank Easterbrook explains why our Supreme Court would continue to generate many 5-4 cases even if all its members were appointed by a single President, and very many 9-0 cases even if its members were appointed by Presidents who were extremely different from each other politically. “In the United States, the Rule of Law really does differ from a Rule of Judges. Neutrality is a comfort to all who must stand before a court, and to all of us who favor equal justice under law.”