- “Embattled Broward Health paid law firm $10.2 million; tab included a lawyer’s M&Ms” [Miami Herald]
- “Journalists were not very interested in the areas of vaccine policy that are actually debatable. They just wanted to find fools and laugh at them.” [Matt Welch]
- Wider access to pharmaceutically based drug rehabilitation may be sound policy. But is it compelled by the ADA? [Huffington Post via @sbagen]
- Kamala Harris carries water for the SEIU in a hospital deal, and Californians are the losers [John Cochrane]
- Drug case: “Hagens Berman argument ‘gives new meaning to frivolous,’ judge says; sanctions imposed” [ABA Journal]
- California: Kaiser Permanente “ordered to pay woman more than $28 million” [L.A. Times]
- “Bacteria can evolve. So can McDonald’s. Maybe federal policymakers can as well, before it’s too late.” [Steve Chapman]
Archive for 2015
“You are probably breaking the law right now”
Glenn Reynolds on overcriminalization and regulation [USA Today]:
Regulatory crimes” of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. “Tellingly,” he writes, “no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500.” Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.
And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don’t require any knowledge that you’re breaking the law. This seems quite unfair.
Fourth Circuit ruling in social anxiety disorder ADA case
A deputy clerk of court in North Carolina allegedly suffered from social anxiety disorder, characterized (per the DSM) as “marked and persistent fear of … social or performance situations in which [a] person is exposed to unfamiliar people or to possible scrutiny by others.” While these fears led her to request to be insulated from customer service responsibilities, they did not inhibit her from secretly tape recording interviews with four supervisors involved with her firing. Reversing a lower court, the Fourth Circuit allowed her ADA accommodation claims to go forward in what Robert Fitzpatrick calls a “remarkable, and potentially far-reaching decision.” Excerpts from Fitzpatrick’s account:
Similarly, in a footnote, the Court indicated that if the plaintiff, took longer than necessary to complete her microfilming work and procrastinated in returning to the front desk, as the defense had alleged, “this may constitute avoidant behavior consistent with a diagnosis of social anxiety disorder.”
The court also reasoned that because the employer, on top of the various reasons it cited in firing her, later cited additional grounds for firing when the case reached a judge, this suspicious “piling on” could be read as evidence of pretext.
Liability roundup
- “Judge dismisses Brady Center’s lawsuit. Ammo retailers not to blame for Aurora theater killer” [Denver Post via @davekopel]
- “Ever been in a crowded subway car when a gunfight broke out? I have.” And it relates to slip-fall cases [Eric Turkewitz]
- No more of Prosser’s tricks: Scalia warns modern Restatements “of questionable value, must be used with caution” [Orin Kerr]
- Impact of revelations in Garlock document trove continues to ripple: “Insurer Claims Asbestos Fraud Tainted Pittsburgh Corning Bankruptcy” [Daniel Fisher, Forbes, earlier]
- Trial lawyer allies want to make California’s insurer-shackling Prop 103 even (if possible) worse [Ian Adams, Insurance Journal, see also]
- “The settlement shakedown”: Scott Shackford on the Moonlight Fire case in California [Reason, earlier]
- This must be what they call a hellhole jurisdiction [comic book cover via Jim Dedman, Abnormal Use]
Lawmaker seeks ban on home-insurance “breed discrimination”
Home insurance companies often charge higher premiums to homeowners whose breeds of dog have a bad loss experience, and that practice is unfair and even “ridiculous,” thinks Connecticut lawmaker Brenda Kupchick (R-Fairfield). If “breed discrimination” is banned, and insurers instead pass the uncovered losses on to owners of other dog breeds or policyholders generally, that would not be unfair or ridiculous, right? [AP/Insurance Journal; David Moran, Hartford Courant (reg)]
“No-knock” raids and the Founders
Radley Balko on the aftermath of a Cambridge, Md. “no-knock” police raid gone very wrong: “if the Fourth Amendment is due to the Founders’ offense at British soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night, without first knocking and announcing, in order to conduct searches for contraband.” More: Adam Bates, Cato.
Food roundup
- If the law was symbolic, consumers were apparently unswayed by its symbolism: L.A. zoning ban on new freestanding fast-food restaurants had no effect on obesity [The Guardian, NPR, Baylen Linnekin, earlier]
- More on draft new federal dietary guidelines: “Report lays groundwork for food ‘interventionists’ in schools, workplaces” [Sarah Westwood, Washington Examiner, earlier, public comment open through April 8]
- Opposition to GMOs is not humanitarian [Telegraph] Washington Post editorial rejects labeling on GMO foods;
- Baker fell afoul of French law by keeping his boulangerie open too often [Arbroath]
- A sentiment open to doubt: “There is a great need for lawyers to utilize their policy and litigation tools in the fight for a better food system.” [Melanie Pugh, Food Safety News]
- “Food policy” progressives “whistle same tune as large food producers on issue of food safety” [Baylen Linnekin, related on single-agency scheme, more Linnekin on competition-through-regulation among makers of wine corks]
- Why restaurant operators need to know about patent trolls [James Bickers, Fast Casual]
“JetBlue Pilot Who Caused Flight Diversion Sues Airline for $15 Million”
“A JetBlue Airways Corp. pilot whose erratic behavior forced the diversion of a flight from New York to Las Vegas in 2012 sued the airline for $14.9 million, claiming it shouldn’t have allowed him to fly. … [Clayton] Osbon claims in his complaint that a ‘complex partial brain seizure’caused him to run down the plane’s aisle, screaming about religion and terrorist attacks before he was restrained by passengers. He said JetBlue’s failure to ground him before the flight caused him public embarrassment and the loss of his career and reputation.” [Bloomberg]
Counting the costs of the New Mexico wi-fi suit
We posted earlier about a court’s dismissal after five years of the suit by Santa Fe, N.M. resident Arthur Firstenberg against neighbor Raphaela Monribot, over his claims that her electronic devices were exacerbating his condition of “electromagnetic hypersensitivity.” Don’t miss George Johnson’s excellent New York Times write-up, which fills in many more details:
…I assumed the case would be quickly dismissed. Instead, in 2010, it entered the maze of hamster tubes that make up the judicial system.
…About a week ago, after the Court of Appeals upheld the decision, I stopped by the office of Ms. Monribot’s lawyer, Christopher Graeser, with a tape measure. The files for the case sat in boxes on a table. Piled together, the pages would reach more than six feet high.
Court costs, not counting lawyers’ fees, had come to almost $85,000, or more than $1,000 an inch. Because of what the court described as Mr. Firstenberg’s “inability to pay,” the bill went instead to Ms. Monribot’s landlord’s insurance company — as if someone had slipped on an icy sidewalk, or pretended to.
Mr. Graeser and another lawyer, Joseph Romero, represented her pro bono, writing off an estimated $200,000 in legal fees.
Labor roundup
- “Hard hat dispute pits Amish miners against Labor Dept.” [The Hill]
- What, ProPublica do a tendentious, one-sided report with NPR on workers’ compensation? Can’t be the ProPublica we know [Joe Paduda, Workers Comp Insider and more, Insurance Information Institute and ProPublica response]
- “One government lawyer’s war on the franchising business” [Home Depot founder Bernie Marcus, The Hill, on NLRB’s Richard Griffin] Not even pretending any more: NLRB holds public seminar in SEIU offices [Labor Relations Institute]
- What unions stand to gain from minimum wage campaigns [Labor Pains]
- Speakers predict major damage to Los Angeles small theater scene from Actors Equity plan to end unpaid rehearsals [L.A. Times]
- Sen. Lamar Alexander (R-Tenn.) introduces bill to reverse NLRB’s “micro-unions” initiative [Sean Higgins, earlier] House holds critical hearing on ambush election rule [Diana Furchtgott-Roth, related Senate resolution] Adding a member to the NLRB might cut down on partisan swings, but why not check out more radical reform, along the lines of New Zealand’s Employment Contracts Act? [Trey Kovacs]
- Public college labor education center uses taxpayer funding to organize against proposed right to work law. You got a problem with that? [Freedom Foundation, Washington]