Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2015

“Human rights barrister” Amal Clooney

Yet another occasion to note that what passes for human rights advocacy is often nothing of the sort: famous “human rights barrister” Amal Clooney, alas, appears to be arguing the speech-suppressive side of a high-profile freedom of speech case. [Telegraph]

More, and clarification: Walter Katz responds, condensed from Twitter, to a Ted Frank tweet characterizing Clooney as having sided against speech: “This completely misrepresents Clooney’s role. Turkey was not a party to the initial prosecution at the initial ECHR appeal, Turkey did appear and basically argued there was no genocide to deny. The ECHR opinion was ambiguous about the genocide factual question. It is that specific issue which Armenia is challenging, i.e. court, don’t buy Turkey that there was no genocide. Armenia’s argument has little to do with the free expression issue.” Cite: Asbarez.com.

My response, again patched together and condensed from Twitter: My reading of the Asbarez coverage: Clooney’s co-counsel Geoff Robertson, from the same “human rights” law firm Doughty Street Chambers, argued pro-conviction on frank anti-speech grounds. If she left the pro-censorship advocacy to her law partner and handled only a narrower issue — I hope because she disagrees with him! — then, yes, a point in her favor. Update: this video does show her approximately six-minute speech focusing on the “setting the record straight” issue and on Turkish government hypocrisy. Whatever this may or may not illuminate about Clooney’s personal involvement, the coverage in both the Telegraph and Asbarez makes it hard for me to go along with the idea that either Armenia’s role or Robertson’s arguments on its behalf have “little to do with the free expression issue.”

Ted Frank’s response, once more condensed: “The story says she is ‘defending the conviction.’ Armenia’s role in the case is arguing for reinstatement of conviction. [Citing Clooney’s comments about not aiming to restrict free speech is] putting too much weight on a self-serving disingenuous throwaway line. ‘Free speech but’ not free speech.”

Full hearing video here.

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Environment roundup

  • Price of California eggs soars following animal-rights measure [WSJ via Michael Greve] “An Orangutan Has (Some) Human Rights, Argentine Court Rules” [Brandon Keim, Wired via Althouse, related U.S.]
  • Trees cut down by utility “are priceless — each one I could value at $100K,” Fieger said” [Detroit Free Press via @jamestaranto, more on Geoffrey Fieger; henceforth sums of $100,000 will be known as “one Fieger-tree”]
  • As New Englanders struggle with energy costs, pols kill the gas pipelines that could bring relief [Urbanophile]
  • Power-plant regs from EPA, based on flimsy science, show “federal agency twisting statutory language to aggrandize its own power.” [Andrew Grossman; Cato brief in Michigan v. EPA]
  • California state agency proposes regulations purportedly easing burdens of notorious Prop 65 warning law [Cal Biz Lit]
  • “When I got there, there were people in SWAT attire that evacuated our entire factory.” [Chamber’s Faces of Lawsuit Abuse on Gibson Guitar raid]
  • Would a minimalist state funded by Pigouvian taxes run a budget surplus? [Bryan Caplan]

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“Lawyer’s personal assets, bank accounts at risk as opponents seek to collect $1M sanction”

Debra Cassens Weiss at the ABA Journal has more on that curious sanctions order out of the Philadelphia Common Pleas Court in which attorney Nancy Raynor of Malvern, Pennsylvania, could lose everything because a judge found that she “allowed an expert witness to refer to a lung cancer patient’s history of smoking during a May 2012 medical malpractice trial.” Earlier here. More: Philadelphia Inquirer coverage here and here.

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January 29 roundup

  • Bi-counsel-ar? “Lawyer Defending Congressman’s Wife in Bigamy Case Accuses Client of Having a Second Lawyer” [Slate]
  • “Why tort liability for data breaches won’t improve cybersecurity” [Stewart Baker]
  • Pennsylvania passes a new gun law, and suddenly liberal standing with attorney fee shifting stops being the progressive position [Harrisburg Patriot-News]
  • “Letting a case die like a pet rat forgotten in the garage” [Ken at Popehat on Todd Kincannon challenge to South Carolina state bar discipline threats]
  • Getting to it late: hour-long Cato podcast with Randy Barnett on his book Structure of Liberty including Aaron Ross Powell, Trevor Burrus;
  • Once a fun party town, New Orleans now will ban vaping in private clubs and while waiting in line at drive-throughs [Christopher Fountain, Ronald Bailey on vaping bans and public health] More: Bailey on exaggeration of risks, Jacob Sullum on California proposal;
  • Colorado legislature looks serious about tackling liability reform [Denver Business Journal]

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“The pumpkin weighed 8.4 ounces and was ‘squishy.'”

A Florida appeals court has reinstated a jury’s verdict of no liability in the case of a woman who while shopping at Wal-Mart was struck in the back with an 8.4 ounce (that’s ounce, not pound) ornamental pumpkin. According to the court’s footnote 1, the projectile in question was “squishy.” The trial lasted three weeks. [Schwartz v. Wal-Mart Stores: Fifth District, FindLaw]

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This is your Fairfax County Police Department on forfeiture

“And for those who had cash seized from them — one player had more than $20,000, the regular player said — the police agreed to return 60 percent of the money, and keep 40 percent. … in Virginia state courts the local police agency may keep 100 percent of what they seize.” In a Fairfax SWAT raid on unlawful private gambling nine years ago, an officer shot and killed Sal Culosi, an optometrist who “had no criminal record and no known weapons.” [Washington Post, earlier (Radley Balko: Culosi incident in 2006 “wasn’t even the first time a Virginia SWAT team had killed someone during a gambling raid”)]

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Medical roundup

  • King v. Burwell: next ObamaCare showdown at Supreme Court [Ilya Shapiro and Josh Blackman, David Bernstein on Cato brief, Adler v. Bagley Federalist video, Michael Greve with theory of Justice Kennedy riding off to Colorado with Dagny, earlier]
  • “J&J says women being illegally solicited to join in mesh lawsuits” [Jessica Dye/Reuters, same on lawyers’ response, more on which]
  • Invoking ACA, feds regulate non-profit hospitals to require periodic community needs assessment, limit collection methods [Treasury]
  • Unless judges are vigilant, lawyers will take advantage of mass tort joinder to evade CAFA limits on forum-shopping [Steven Boranian, Drug & Device Law]
  • Popular literature on IRBs/consent of research subjects can employ dubious definitions of “coercion” [Simon Whitney via Zachary Schrag]
  • Qui tam lawyers vs. pharmaceutical companies, some empirical findings [Bill of Health]
  • So that’s what “anatomical theatre” means: researcher checks into ostensible open-source medical journals and finds many “had suspicious addresses; one was actually inside a strip club.” [Fast Company on report finding that fake paper was accepted for publication by 17 journals]
  • A student of David Henderson’s recalls the state of medicine under the Soviets: assignment to providers based on place of residence; the role of gifts, favors, and clout; how idealistic doctors became cynics; the black market as a safety valve. [EconLog]

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“U.S. Spies on Millions of Cars”

Per documents released in response to a FOIA request, the federal government maintains a large program using automatic license-plate readers to track vehicles in real time (not just in later investigation) and nationwide (not just near borders). The program “collects data about vehicle movements, including time, direction and location, from high-tech cameras placed strategically on major highways.” The resulting photographs are “sometimes” clear enough to identify drivers or passengers. “One email written in 2010 said the primary purpose of the program was asset forfeiture.” Although the program is run by the Drug Enforcement Administration, its data is increasingly shared for investigations unrelated to drugs. [Wall Street Journal]

Forfeiture-driven law enforcement is at this point deeply embedded in our practice at both federal and local levels, and the small and ambiguous federal-level reforms announced by AG Holder earlier this month are unlikely to turn that around in themselves.

Conor Friedersdorf comments: “The DEA will obviously continue to lose the War on Drugs. We’ve traded our freedom to drive around without being tracked for next to nothing. … Unfortunately, leaders in the U.S. law enforcement community feel that they’re justified in secretly adopting sweeping new methods with huge civil liberties implications.” (cross-posted and expanded at Cato at Liberty). A different view: Jazz Shaw, Hot Air (could be useful in “managing crime,” and think of the children: unless we let government monitor our comings and goings, the throwers of little girls into vans will win). And more: They can watch your car, but as Waze flap confirms, don’t you dare watch theirs [Liz Sheld]

Update: new emails reveal plans of even wider scope, including a proposal (which DEA says was not acted on) to cooperate with BATF to track license plates of gun show attendees. The Guardian quotes me about the chilling effect systematic surveillance can have on the exercise of rights, and about the impetus for cooperation between Right and Left on reining in law enforcement use of data tracking. Note pp. 10, 27-28 of this NRA amicus brief in an ACLU mass-surveillance case. And earlier on license plate tracking here (Los Angeles FOIA), here and here (Maryland), and here (Radley Balko). And with the rapid development of onboard computer technology, our cars ourselves could soon be reporting our driving habits to the government. But that’d never happen, right? [Steven Greenhut] “Taxing Us To Spy On Us” [Chris Edwards]

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