Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2016

Guestblogger archive week: II

When New York area attorney David Nieporent did a guestblogging gig for us in February 2007 it turned into a nine-month engagement with David providing sharp analysis of dozens of legal cases, ranging from whether it’s discriminatory to test cops for proficiency in English, to the search for deep pockets in a Baltimore car-crash lawsuit, to a lawyer’s request for $150,000 in fees on a case worth $11,000. His archive is here (Twitter).

Wisconsin political writer Christian Schneider is now a regular contributor to USA Today as well as the Milwaukee Journal-Sentinel, and has been having fun writing up this year’s campaign. He wrote for us on an Ontario court’s order that a 24 year old man not have a girlfriend for three years, whether tattoo-edness should place you in a protected category in employment law, and the legal barriers to frozen beer on a stick. [archive/Twitter]

Baylen Linnekin, expert on food law and policy, has a new book coming out in September called Biting the Hands That Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. His topics for us included CSPI’s war on caffeinated alcohol beverages, odd doings in England after a Jack Russell terrier “allegedly bit off the tip of the leafleteer’s finger as he pushed election paraphernalia through a front-door letterbox,” and an Illinois couple’s nonmarital “agreement for an exclusive relationship.” (archive/Twitter).

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Environment roundup

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Guestblogger archive week: I

Over the years about thirty friends and acquaintances have contributed their talents as guestbloggers at Overlawyered, typically posting over the span of a week while I’m away from my duties. I’d like to use this week to tell what some of them are doing now, highlight a few of their contributions, and I hope at least mention the names and link the author archives of all of them.

Ron Coleman, an IP and media law attorney attorney in greater New York, writes the excellent and longstanding Likelihood of Confusion blog on trademarks, copyrights, Internet law and free speech, from which I’ve learned a lot over the years. He’s guestblogged for us twice, covering such issues as a New York male attorney’s discrimination suit against ladies’ night discounts at bars; a suit in Romania by a prison inmate purportedly against God Himself (“He has some issues, only not justiciable ones, it seems”); and a lawsuit by NBA players over depictions of their lady interests on a VH1 show called “Basketball Wives.” His full archive is here (law-oriented and personal Twitter).

When he guestblogged for us, Will Baude was a student at the University of Chicago Law School. He’s now on its faculty, teaching federal courts and constitutional law, after doing things like clerking for appellate judge Michael McConnell and Chief Justice John Roberts. Last week he was a guestblogger at Volokh Conspiracy about his work on the law of interpretation, statutory and otherwise; sample posts here and here. During his guest week at Overlawyered he covered a dispute over whether a California city should sue over a reference to its citizens as “white trash” on a popular TV show, “The O.C.”, and wrote on popular schemes (popular in philosophical circles, at least) “to extend the right to vote to children of any age.” Full archive here (Twitter).

Pasadena attorney George M. Wallace wrote the excellent insurance law blog Declarations and Exclusions through 2013, and continues to blog on non-legal subjects at A Fool in the Forest. In his time with us he covered an advisory in the L.A. city attorney’s office on “how they should recognize a newsworthy legal case. Public safety? Important public issue at stake? Nah, this is L.A. Number one is any case involving a celebrity — ‘no matter how minor’ — followed closely by a politician. Death, mutilation, child molestation or animal cruelty are also sure bets.” And he wrote — this nearly ten years ago — about the legal showdown between TV personality Rosie O’Donnell and Donald Trump. Full archive here (Twitter).

Because I’m expecting some down time in my own blogging in coming months, I invite volunteers (and of course repeat volunteers) who might like to guestblog in this space this summer and fall. Email editor – (at) – overlawyered – (dot) – com.

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“Three Blind Mice” Hallowe’en costumes probed at university

After students at the University of Wisconsin-Platteville used Facebook to post pictures of themselves in Hallowe’en “Three Blind Mice” costumes, a member of the school’s “Bias Incident Team” turned them in herself to the team, which decided that there was a risk the costume idea “makes fun of a disability.” The pictures have been taken down. “The University of Washington produced a six-minute video last year decrying ‘cultural appropriation’ around Halloween. Off-limits costumes included hula skirts, [straitjackets], sombreros, fake mustaches and martial-arts attire.” [Jillian Kay Melchior, Heat Street] No mention of possible offense to the tail-amputee community. More on bias response teams here.

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EEOC: wearing “Don’t Tread On Me” cap might create hostile environment

“Wearing a Gadsden Flag hat to work could be considered racial harassment, according to the Equal Employment Commission, the government body that oversees ‘hostile work environment’ harassment claims.” The EEOC acknowledged that the historical origin of the rattlesnake flag was unrelated to racial matters. The case involved a federal worker, but the EEOC’s jurisdiction extends to the private sector and the principles it expounds are generally applicable there as well. [Andrew Stiles/Heat Street, Eugene Volokh; compare Snopes (alarm premature, EEOC still early in process) and Noah Feldman, Bloomberg View (yes, worth investigating as possible harassment)]

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D.C. Circuit: IRS must face suit in targeting scandal

Yesterday, in a major ruling, the D.C. Circuit Court of Appeals rebuked the IRS over its targeting of conservative groups and said that it would have to face a lawsuit by two plaintiffs, reversing a lower court that had declared the dispute moot. The unanimous three-judge panel ruled that there is “little factual dispute” in the case and it is “plain…that the IRS cannot defend its discriminatory conduct on the merits,” that the wrongdoing included not only targeting itself but massively burdensome and intrusive examinations of targeted groups, and that despite the IRS’s claims to have ended the discriminatory treatment, there is evidence that it continues today. My new piece at Ricochet explains.

Sarah Westwood in the Washington Examiner also quotes me on the case: “This is a blistering rebuke to the IRS and its defenders.” Remember in June when the Washington Post ran an editorial dismissing this all as not much of a scandal? Here was my response then.

P.S. Kim Strassel passes the following along in her much-talked-about new book, The Intimidation Game: “So, yes, the president was saying—two months after the news broke—that the whole IRS thing was just a ‘phony scandal.’”

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Class action: Pokémon Go encourages trespassing

“Attorneys representing a New Jersey personal injury lawyer have brought a class-action suit against the company they say is responsible for an ‘unlawful and wrongful’ invasion of the man’s property.” To quote from the complaint “filed against the game’s developer, San Francisco-based Niantic Inc.:”

In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.

[Jacob Gershman/WSJ Law Blog, Variety; earlier on Pokémon Go here, here]

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Richard Epstein on antidiscrimination laws and common carriers

Libertarian legal scholar Richard Epstein discusses the conflict over religious exemptions to antidiscrimination laws at Hoover “Defining Ideas” and in a related podcast at Acton Institute. He suggests that it might be helpful to refocus the concept of “public accommodations” on businesses held to common carrier principles, typically because of elements of monopoly:

Historically, Title II [of the Civil Rights Act of 1964, with public accommodation provisions] had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view — still good today — that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have nowhere else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.

The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties.

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