Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for November, 2015

Another step toward climate speechcrime: New York subpoenas

Months of agitation promoting a government investigation of supposedly wrongful advocacy on the issue of climate change have begun to pay off. As Holman Jenkins [paywall] notes, purportedly levelheaded Democrats and environmentalists are now jumping on the bandwagon for a probe of possible unlawful speech or non-speech by energy companies and advocacy groups they’ve backed. Perhaps the most remarkable name on that list is Hillary Clinton, who said the other day in New Hampshire, referring to Exxon, “There’s a lot of evidence that they misled people.” That’s right: Hillary Clinton, of all people, now wants to make it unlawful for those who engage in public controversy to mislead people.

The first high-profile law enforcer to bite, it seems, will be Eric Schneiderman, whose doings I’ve examined at length lately. “The New York attorney general has launched an investigation into Exxon Mobil to determine whether the country’s largest oil and gas company lied to investors about how global warming could hurt its balance sheets and also hid the risks posed by climate change from the public,” reports U.S. News. Show me the denier, as someone almost said, and I will find you the crime: “The Martin Act is a nearly empty vessel into which the AG can pour virtually any content that he wants,” as Reuters points out. More on the Martin Act here and here.

At Forbes, Daniel Fisher notes the possible origins of the legal action in an environmentalist-litigator confab in 2012 (“Climate Accountability Initiative”) in which participants speculated that getting access to the internal files of energy companies and advocacy groups could be a way to blow up the climate controversy politically. Fisher also notes that Justice Stephen Breyer, in the Nike v. Kasky case dismissed 12 years ago on other grounds, warned that it will tend to chill advocacy both truthful and otherwise by businesses if opponents can seize on disagreements on contentious public issues and run to court with complaints of consumer (or presumably securities) fraud.

Perhaps in this case chilling advocacy is the whole point. And very much related: my colleague Roger Pilon’s post last week, “Whatever Happened to the Left’s Love of Free Speech?“; Robert Samuelson (“The advocates of a probe into Exxon Mobil are essentially proposing that the company be punished for expressing its opinions.”)

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St. Louis suburb runs town hall on ticket money. Is that illegal?

We’ve reported many times on the syndrome of towns outside St. Louis which, often lacking another promising tax base for municipal services, run ticket mills so as to get by on fine and fee revenue. Missouri law limits the share of their budget that can be derived from traffic fines, but not other fines, which means that some towns like Pagedale hammer their homeowners and other locals with regular fines over untrimmed trees, barbecue sets left in front yards, and other minor offenses. But is this illegal? An Institute for Justice lawsuit seeks class-action status on behalf of persons fined for violations as minor as mismatched blinds. [Scott Shackford, Reason]

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The thin blue ego: head of police union menaces Tarantino

Forget boycotts and protests: the executive director of the Fraternal Order of Police knew what he was doing when he warned Quentin Tarantino about a “surprise” at the hands of police who would wait until seizing the “right time and place” to “try to hurt” the filmmaker (who has lately criticized police shootings). Asked to clarify, Fraternal Order of Police executive director Jim Pasco said he wasn’t talking about physical violence, but didn’t rule out the other ways police can use the powers of their office to hurt people. I’ve got a post at Cato wondering where this sort of talk will lead. Meanwhile, Scott Shackford at Reason suspects that Pasco’s we-know-where-you-live hinting will end in an anticlimax, like bringing out an inflatable rat or something.

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NYT public editor: yes, nail salon series had problems

Poynter: “A blockbuster investigation from The New York Times that provoked officials to intervene in poor workplace conditions in nail salons throughout New York ‘went too far in generalizing about an entire industry,’ Public Editor Margaret Sullivan wrote Friday morning.” That’s, well, cautiously worded: as critics have demonstrated, the series got basic facts wrong and its falsehoods have hurt thousands of New Yorkers, especially struggling immigrants, in multiple ways.

Major congratulations to Jim Epstein, Elizabeth Nolan Brown, and the others at Reason and elsewhere who relentlessly exposed the faults in the Times coverage. And Sullivan’s letter is revealing about just why editors until now ignored Epstein’s Reason coverage, which blew up some of the series’ central allegations about advertised pay rates in the Chinese-language press and about supposed clusters of health effects. “The Times has not responded [because] editors think the magazine, which generally opposes regulation, [is] biased.” Some Twitter responses:

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My adventures in redistricting reform

What the reform panel is proposing is about as far removed from party bosses as feasible. …. one thing is clear, the commission is headed in the proper direction.

— Baltimore Sun editorial, November 2

Gerrymandering is rife across the country, resulting in artificially drawn districts intended to protect or defeat certain incumbents, maximize one party’s share of power, or achieve other political goals. My own state of Maryland suffers from a famously awful Congressional gerrymander, including the notorious District 3, compared with a “broken-winged pterodactyl” or the blood splatters from a crime scene.

I’ve had a chance to do something about this problem over the past three months as co-chair of the Maryland Redistricting Reform Commission, created by Gov. Larry Hogan in August to gather information and draft recommendations for a new and better way of doing things. Following public hearings, testimony from experts and considerable research, we filed our report with the governor on Tuesday.

Len Lazarick at Maryland Reporter sums up some of the key points. If enacted, our plan would make Maryland the only state in which elected legislators and the governor would no say at all — zero — in deciding who should sit on a line-drawing commission. Our plan follows several elements of California’s ground-breaking plan, including screening of volunteers and randomized pools, simplified and adapted to the circumstances of our smaller state. In addition to requiring congruence with county and city boundaries where possible, contiguity, and compactness, we would join a very few states in instructing the drafters of lines to ignore partisan indicators such as voter registration and past voting results, as well as the place of residence of incumbents or any other person.

Full report here. Some more coverage: Carroll County Times editorial; Naomi Eide, Capital News Service; Josh Hicks, Washington Post; Erin Cox, Baltimore Sun; Fox Baltimore; Jen Fifield, Frederick News-Post (this last quoting me at length, and see also this profile in August).

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From the comments: arrestees stay out?

Commenter Gitarcarver on yesterday’s item about how some in the Charlotte Police Department have talked about designating “public safety zones” where persons who have previously been arrested would be forbidden to go:

The City wants to make these zones based on arrests (not convictions.)

At the same time, an employer cannot ask whether a person has been arrested. Of course, there is now the push for “ban the box” which means an employer cannot ask about a conviction.

The City wants to say it can ban people and arrest people from public property, but those private companies can’t even ask about those convictions (much less arrests) during the initial hiring process.

Yeah.

THAT makes sense.

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Banking and finance roundup

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Election results special

In an outbreak of economic sanity, voters in Portland, Maine on Tuesday rejected a $15 minimum wage, while San Francisco voters turned down a measure to crush AirBnB (complete with lawsuit-generating component). Ohio voters soundly defeated a proposal for a legalized, but monopolized, marijuana trade that many libertarian commentators considered worse than no bill at all. And after a race notable for its high volume of interest-group contributions, Pennsylvania voters chose to fill three seats on the state’s supreme court with a slate of three Democratic candidates backed by trial lawyers.

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