Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for January, 2014

State of the Union speech

Update: I’m in this Cato video, my brief contribution on the president’s executive order powers beginning around the 2:15 mark:

I tweeted and liveblogged the State of the Union address last night so you wouldn’t have to watch. Here are Twitter highlights, in regular rather than reverse chronological order:

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Privacy and financial roundup

  • Harassing Google executives at their homes: what better way to show you truly care about privacy? [Ars Technica]
  • Feds arrest Bitcoin executive on charges of “money laundering” and running an unlicensed cash transmission service, latest of what looks very much like a series [Reason, Rob Wile/Business Insider, earlier on Bitcoin]
  • Know (and babysit) your customers: “HSBC imposes restrictions on large cash withdrawals,” then backs off [BBC, earlier on KYC as outgrowth of money-laundering law]
  • “Banks say no to marijuana money, legal or not” [NY Times]
  • Randy Maniloff on the Target data breach and the example of the T.J. Maxx case [Coverage Opinions and more on class actions] “Swipe fee” price controls don’t help in allocating the costs of response and prevention for card data breaches [John Berlau, CEI “Open Market”] and
  • “Financial Disclosures as Regulation” panel video, part of Vermont Law School symposium “The Disclosure Debates” that I participated in last fall; participants include Tennessee lawprof Joan Heminway and moderator Jennifer Taub [YouTube]

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Electronic tickets: we skip the due process and pass the savings along to you

“An Oklahoma state senator has filed a bill to allow law enforcement officers to issue electronic citations for traffic, misdemeanor and municipal ordinance violations.” Sen. Al McAffrey, himself a former police officer, says approaching motorists’ cars is one of the more dangerous parts of patrol officers’ job. So why not let them just skip it, even if that also means skipping the opportunity for motorists to be notified of their legal jeopardy at once, see their accusers, have a chance to explain themselves, and so forth? “If they don’t have to approach vehicles during traffic stops to give people tickets but can simply email traffic violation citations directly to the district court clerk then they’re less likely to get into a dangerous altercation, the lawmaker said.” McAffrey’s S.B. 1872 would also attach a new $5 processing fee to the tickets, of which a portion would be shared with the ticketing officer’s department. [Insurance Journal, KOCO](& welcome Above the Law, Scott Greenfield readers)

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Virginia child support law, cont’d

Following up on the mention of the issue earlier this month, “Virginia is on the verge of substantially increasing child-support obligations for the first time since 1988. But the proposed increase, which recently passed a legislative committee as a bill called HB 933, would result in excessive obligations for many parents, more unpaid child support and more jailings for nonpayment at taxpayer expense. Some noncustodial parents already pay more than 50 percent of their income in child support.” [Hans Bader, Richmond Times-Dispatch]

In an email, Bader adds:

Often, laws contain provisions that seem to be for the benefit of lawyers rather than the people.

Such is the case for one provision in the child-support bill HB 933, which will result in divorced parents fighting each other over pennies.

Right now, the custodial parent pays the first $250 annually in unreimbursed medical and dental expenses, rather than each co-payment and out of-pocket expense being divided up based on the parents’ share of combined income. But this $250 ceiling will be reduced to zero under the bill HB 933, which may result in angry parents fighting each other over as little as $10 (in some cases, with the assistance of a lawyer, in many other cases, without any lawyer at all), in order to try to get their ex jailed for contempt for not paying their share of the $10.

Certified mediator Diane Poljacik writes in an email (excerpted):

One of the reasons the $250.00 ceiling on health, dental and vision costs was put in place is said to be due in part to a number of frivolous show cause failure to comply motions being filed by the custodial parent against the noncustodial parent for not immediately reimbursing the other parent a $10.00 (or some other ridiculously low figure) co-pay (so called “nickel and diming” the other parent). This happens more often in cases where parents are constantly at war with each other. Removal of this provision could end up playing right into this by enabling warring parents to use this as just another way of trying to get the other parent jailed for contempt. …

If this provision is removed and show cause motions increase, it could potentially create a further burden for court dockets that are already overburdened. … No data has been presented thus far that states the judges are asking for this to be removed.

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Supreme Court and constitutional law roundup

  • SCOTUS to hear case of Susan B. Anthony List v. Driehaus, First Amendment challenge to state laws regulating truth of political speech [IJ/Cato amicus cert brief]
  • Groups of law professors file amicus briefs in Halliburton Co. v. Erica P. John Fund, Inc. arguing that retreat from “fraud on the market” theory is consistent with modern scholarship on capital market efficiency [John Elwood] and sound statutory construction [Elwood, Bainbridge]
  • Behind the Michigan affirmative action plan in Schuette, including colorful background of litigant BAMN (“By Any Means Necessary”) [Gail Heriot, Federalist Society “Engage”]
  • Court dismisses Mulhall v. UNITE HERE (challenge to employer cooperation agreement with union as “thing of value”) as improvidently granted [Jack Goldsmith, On Labor, earlier]
  • Affordable Care Act saga has taken toll on rule of law [Timothy and Christina Sandefur, Regulation]
  • Lol-worthy new Twitter account, @clickbaitSCOTUS, with content like “The nine words no appellate advocate wants to read” [re: Madigan v. Levin]
  • Drug War vs. Constitution at Supreme Court, 1928: Drug War won by only one vote and you might not predict who wrote the most impassioned dissent [my Cato post]

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Great moments in legal argument

Australia: “Lawyer argues Kevin Spratt may have been screaming in ‘joy’ while being tasered by police: A lawyer for two police officers says the court cannot rule out the possibility that a man was screaming with joy when he was being repeatedly tasered at the Perth Watch House more than five years ago.” [ABC] One never knows what will work in these cases: a jury in Orange County, Calif. recently acquitted two officers in the death of homeless schizophrenic Kelly Thomas, though it is not clear whether they accepted the suggestion of a defense lawyer that Thomas beat himself to death in police custody.

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“We call it ‘Sixty Minutes’ legislation”

“It’s too early, but I’m sure there will be something,” he said. “We call it ‘Sixty Minutes’ legislation – something happens and legislation is introduced.” — Maryland Del. Joseph Vallario, Jr., chair of the House Judiciary Committee in the state legislature, on prospects for the introduction of new legislation following the murder of two skateboard store employees at the Mall in Columbia. [Washington Post] As of Sunday police had not assigned a motive to the slayer, who killed himself at the scene.

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Intellectual property roundup

  • “The patent had an interesting enforcement clause: that anyone who copied [ship designer] Brunelleschi’s work would have their own designs set on fire” [Jeremy Kolassa, R Street]
  • British government investigates problem of orphan copyright works [U.K. Intellectual Property Office, earlier]
  • Hookah’s design not copyrightable, per Ninth Circuit, O’Scannlain, Garber, Bea [Inhale v. Starbuzz Tobacco]
  • From EFF’s “Copyright Week”: what if the penalty that accompanied a parking ticket varied unknowably and might amount to a year’s salary? [Mitch Stoltz] “Copyright’s not getting its work done” [Cathy Gellis]
  • Nineteenth Century’s sewing machine patent wars resembled today’s smartphone wars, but ended more or less happily [Adam Mossoff, Slate]
  • Universities that post papers by their own scholars hear from Elsevier’s lawyers [ABA Journal]
  • Likelihood of confusion? Underwear maker Hanes cease/desists hummus maker in Saskatoon, Canada with name derived from “Yohannes” (= “John”)[ABC News, Craig Lederhouse, CBC (auto-plays radio)]

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