Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2016

New student-loan rules will encourage more suits against colleges

The U.S. Department of Education has proposed new regulations that will make it easier for borrowers to avoid paying back student loans by alleging that they did not get the education they believed they were signing up for. [Anthony Caso via Caron]:

Called “borrower defense,” existing regulations allow forgiveness of student loans when the college violates state law, committing fraud. That means that the college made a knowingly false representation of a material fact and the student reasonably relied on that representation to his or her detriment. …

[The Department proposes to replace] the old fraud standard with “substantial misrepresentation,” which they helpfully define to mean “misleading under the circumstances.” You might ask what that means. Nobody knows. The standard is left intentionally vague so that Department of Education bureaucrats can make it up as they go along. If there is no legal standard, then everybody is subject to suit.

Did the school advertise some leading professors who retired or moved to other schools before you graduated? Obviously misleading — sue them. Did the school mention some of its more famous alumni — perhaps a Hollywood star — while the only job you can get with your drama degree is as a barista at Starbuck’s? Now you can sue, claiming that the glossy puff piece from the school was misleading.

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Banking and finance roundup

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Churches, tax exempt status, and candidate endorsements

Since the 1950s, a provision of federal tax law championed by then-Senator Lyndon Johnson has provided that 501(c)(3) organizations, including churches, charities, and other sorts of non-profits, endanger their tax-exempt status if too much of their activity is devoted to supporting or opposing candidates for office. Some churches and conservative groups have campaigned to relax or repeal this rule, an idea now endorsed by presidential candidate Donald Trump. Paul Caron at TaxProf has a link roundup. More: Benjamin Leff.

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Ivanka Trump, Chelsea Clinton, and me

Thanks to Ivanka Trump’s convention speech, gender and pay is suddenly relevant on the Republican side of the presidential race, as well as the Democratic [Danielle Paquette, Washington Post “WonkBlog”] You have to wait for the last four paragraphs to get the me part. For those paywalled out of the WP:

Walter Olson, a senior fellow at the right-leaning Cato Institute’s Center for Constitutional Studies, said he doesn’t dispute Ivanka’s thoughts on pay and motherhood — but cautions against tweaking laws to close the pay gap.

“All legislation attempting to prescribe the terms and conditions of employment has unintended side effects as employers adjust,” he wrote in an email, “and these are likely to be especially salient if the pay gap is largely or entirely the result of families’ own decisions.”

One such unintended side effect: After Chile required companies to provide child care to working mothers, women’s wages dropped.

Olson said [workplace reformers] might instead encourage fathers to take leave time and seek flexible hours, which could even the playing field for working moms, who still tend to shoulder the bulk of the burden. Also, clear the way for businesses to allow remote work. Managers could also build a work culture where telecommuting is acceptable, helping parents better juggle work and home.

I’ve used brackets above to clarify that in my view it’s not especially politicians’ role (as opposed to that of social thinkers interested in these issues) to come up with ideas for how employers might change HR policies. Earlier on the issue here.

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U.K. high court rules against Scottish “Named Person” scheme

“Judges at the UK’s highest court have ruled against the Scottish government’s Named Person scheme….The system would appoint a named person – usually a teacher or health visitor – to ensure the wellbeing of every child. Judges say some proposals breach rights to privacy and a family life under the European Convention on Human Rights.” They say that insecurity of data could endanger children’s privacy rights and that the bill goes beyond the legislative powers of the devolved Scottish parliament. The government of Scotland has indicated that it intends to implement the scheme in some form after addressing the court’s objections. [BBC; earlier; my Cato piece]

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Seventh Circuit: ENDA not implied by current federal law

Rejecting the view of the Equal Employment Opportunity Commission (EEOC), a three-judge panel of the Seventh Circuit has ruled that Congress not having enacted a measure such as the Employment Non-Discrimination Act banning sexual-orientation discrimination, plaintiffs cannot deduce the existence of such a ban from other elements of federal law. [Chris Geidner, BuzzFeed; Marcia McCormick, Workplace Law Prof] I saw this coming last year when the EEOC declared, on what did not seem strong legal grounds, that the previous federal court consensus that there is no implied ban had been effectively overridden by intervening case law.

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Prosecutors and “Brady” access to police personnel evidence

Jonathan Abel, guest posting at Volokh Conspiracy, has a series on the numerous tensions affecting prosecutors’ Brady v. Maryland obligation to disclose impeachment evidence that may be available in police personnel files, that is to say, evidence unfavorable to the credibility of planned police testimony: intro, first, second, third, fourth, and fifth posts.

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