Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2016

“The Faulty Logic Of The NLRB College Student Unionization Ruling”

Another huge ruling, as NLRB hurtles leftward at topmost speed during these final Obama months [Inside Higher Ed; Connor Wolf, Inside Source; Jarad Lucan via Daniel Schwartz] “Bringing a union into the mix could interfere with the primary purpose of the student’s relationship with the school: education. As dissenting NLRB member Philip Miscimarra writes, employers subject to NLRB jurisdiction may be required to disclose details of sexual harassment investigations to the union. Universities may also be required to tolerate ‘outrageous conduct’ by students, in their roles as unionized employees, which would otherwise violate the schools’ community standards.” [Preston Cooper, Forbes]

P.S.: No, they’re not done: “NLRB Likely To Drop More Pro-Union Rulings By End Of August” [Daniel Fisher]

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“A liberal legal icon condemns the IRS’ abuses”

Overlawyered gets a mention today in a New York Post editorial today, but the greater credit should go to Prof. Larry Tribe for his willingness to be swayed by the evidence on the Internal Revenue Service targeting controversy (earlier). In a Cato post largely adapted from previous coverage here, I note in a P.S.: “If word of the D.C. Circuit panel decision has not gotten around as widely as it should, one reason is that some major news organizations have still, nearly three weeks later, not seen fit to cover it.”

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“No, You Can’t Sue Starbucks For Putting Too Much Ice In Your Drink, Judge Rules”

“In an epic takedown of a ruling issued Friday, a federal judge tossed a fraud lawsuit against Starbucks, dismissing claims that the coffee chain was defrauding customers by using a misleading amount of ice in their cold (i.e. iced) beverages.” [Julia Wick, LAist, earlier] More: ABA Journal (similar actions had been filed in L.A., Chicago, Starbucks moving to dismiss Chicago suitas well).

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Free speech roundup

  • Free speech hero Flemming Rose’s acceptance speech on winning the 2016 Cato Institute Friedman Prize;
  • “A Timeline of Attacks on Free Speech” is one of many features of new book Defending Free Speech, edited by Steve Simpson and highly recommended by figures including Harvey Silverglate, Flemming Rose, and Tara Smith [Ayn Rand Institute]
  • “Never Mind Peter Thiel; Gawker Killed Itself” [Simon Dumenco, Ad Age] That “prospect of financial ruin based on amorphous tort claims [will] improve quality of journalism” is a shaky premise, though [Jacob Sullum; earlier]
  • If you’ve heard and passed along the notion that the First Amendment doesn’t apply to civil cases you may find someone referring you to this Popehat page;
  • EEOC logic might require employers to investigate employees who make some kinds of critical water-cooler comments about political candidates [Eugene Volokh]
  • “Law Firm Sues 20-Year-Old Waitress Over Unflattering Yelp, Facebook Reviews” [Meagan Flynn, Houston Press]

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Great moments in public employee unionism, cont’d

“Metro is fighting its largest union, which has sued to reinstate a tunnel fan inspector who was fired after last year’s L’Enfant Plaza smoke disaster for allegedly falsifying an inspection report and later lying about his actions.” The lethal smoke incident killed one rider “and injured dozens more.” [Martine Powers, Washington Post, earlier]

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Regulating Louisiana’s “Cajun Navy”?

Louisiana’s natural disaster has brought forward, among innumerable other acts of spontaneous social solidarity, the daring rescue exploits of the spontaneously self-organized “Cajun Navy.” [Kevin Boyd, The Hayride] Now, according to The Advocate of Baton Rouge, “Jonathan Perry, a Republican state senator is working on legislation that could require training, certificates and a permit fee for citizen-rescuers…”

Following a public outcry, Perry posted this Facebook video intended, he says, to correct misreporting: his proposals are meant to provide more freedom for volunteers rather than less.

I’m trying to give Perry’s explanation a charitable reading — I guess he hopes something like a TSA preclear process will give police or authorities more confidence than they now have in letting licensed/approved amateurs past barricades and perimeters. But it’s pretty easy for me to imagine that this will change the incentives in a future emergency so as to give the police/authorities reason to be more aggressive in creating and enforcing barriers/perimeters than they currently are. After all, they’ll have the new option of letting only approved permit holders through, which may well seem safer and more controlled to them than letting everyone through. So, to me, it just seems like a really bad idea even if we accept that as his premise. More: Rod Dreher.

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August 24 roundup

  • Ingenious tactic to get bad review off search engines: arrange and win a pretend lawsuit in some other state [Paul Alan Levy, more: followup]
  • Law professor proposes to give out tax breaks based on race. Constitutional problems with that? [Caron/TaxProf]
  • $2,250 for the legal right to thread existing barrels: presidential order expands definition of “manufacturer” under arms treaty, which leaves some gunsmiths nervous [The Truth About Guns]
  • Political corner: Michael Greve reacts to Jonathan Rauch’s Atlantic article, “How Did Our Politics Go Insane?” [Liberty and Law] And for those following my commentary about the Gary Johnson campaign (see earlier), I’ve got a piece at Cato on his rocky relations with conservatives as well as a letter to the editor at the Baltimore Sun;
  • On Naomi Schaefer Riley’s new book, The New Trail of Tears: How Washington Is Destroying American Indians [Carla Main, City Journal; Chris Edwards]
  • But which way would the causation run? Econometric analysis finds “EU membership is positively associated with economic freedom.” [EPI Center] Will Brexit promote freer outcomes in areas like agricultural subsidy, or simply a return to national protection? [Simon Lester, Cato]

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A Kathleen Kane footnote, on forfeiture

The office of now-convicted Pennsylvania Attorney General Kathleen Kane kept the existence of a pile of seized money secret for nearly two years: “Not until the state attorney general’s office filed a forfeiture petition for the money [nearly $1.8 million] in Cumberland County Court on June 16, did its existence become public.” [Allentown Morning Call/Philly.com]

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“My inference is that the ABA wants to … limit lawyers’ expression of viewpoints that it disapproves of.”

Eugene Volokh on troubling implications for speech of the American Bar Association’s new adoption of rules declaring it a professional responsibility violation for lawyers to express bias in various ways, including in the course of “law-related social activities.” More: ABA Journal, Ron Rotunda/WSJ, Stephen Bainbridge.

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Labor and employment roundup

  • “Clusters” of nursing employees “standing around and ‘chitchatting’ about their concern that their cars would be damaged if they voted against union representation.” D.C. Circuit rejects NLRB position that talk of tire-slashing by union backer known to have “been in violent altercations in the past, and [sporting current] hand injury from a knife fight” was harmless joking [John Ross, Short Circuit on Manorcare of Kingston v. NLRB]
  • Karma stalks #FightFor15, SEIU: “Union protested by its own minimum wage organizers” [Sean G. Higgins]
  • Feds raid powerful Philadelphia construction union boss, allies [Jillian Kay Melchior, Heat Street, Philadelphia Daily News, NBC Philadelphia, earlier Melchior on role of John (“Johnny Doc”) Dougherty in enactment of city’s soda tax]
  • “A New Illegal Interview Question: How Much Did You Earn In Your Last Job?” [Evil HR Lady on just-passed Massachusetts law]
  • “You have the right to replace striking workers, right?” [Jon Hyman]
  • Hillary Clinton now hinting at increased federal control over labor markets as a centerpiece of economic policy if elected [John Cochrane]

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