The Supreme Court declined certiorari for other reasons in the case of Lisa Olivia Leonard v. Texas, but Justice Clarence Thomas in a separate concurrence took the opportunity to challenge whether the Court’s historic toleration of forfeiture as consistent with the Constitution is at this point consistent either with modern standards of due process or with modern police practices, which resort to forfeiture on a far broader scale than before. [Adam Bates, Cato; daily orders include Thomas opinion]
Archive for March, 2017
Jonathan Adler, “Business and the Roberts Court”
On March 2 I hosted a Cato book forum for Jonathan Adler to discuss his recent edited volume Business and the Roberts Court. Andrew Pincus commented. For more about this book — featuring contributors such as Joel Gora on Citizens United, Brian Fitzpatrick on the Twombly/Iqbal pleading cases, and Richard Lazarus on the emergence of a specialized Supreme Court bar — see Jonathan Adler’s interview with Ronald Collins at SCOTUSBlog, his posts at Volokh Conspiracy here and here, and this Stephen Bainbridge post.
“Portland’s First Mountain-Bike Park Could Be Crippled by a Court Decision”
“Parks where Oregonians pursue adventure sports—like East Portland’s Gateway Green—now have liability for visitors’ injuries. … Last March, the Oregon Supreme Court handed down a ruling that overturned a key premise of a 45-year-old law referred to as the Oregon Public Use of Lands Act.” [Nigel Jaquiss, Willamette Week]
Litigation reform moving fast through House of Representatives
With both Congress and White House now in Republican hands, the U.S. House of Representatives is moving with dispatch to consider a series of litigation reform measures, some stalled for years by Democratic opposition and others of relatively recent vintage. Bruce Kaufman at BNA Bloomberg has a three-part series (first, second, third) followed by an update today on the looming battle over the six main bills:
- The Lawsuit Abuse Reduction Act (H.R. 720) “requires judges to impose mandatory sanctions on attorneys who file ‘meritless’ civil cases in federal courts.”
- The Fairness in Class Action Litigation Act (H.R. 985) which “affects nearly all facets of class action practice” and in particular “class certification requirements, capping or delaying distribution of fees to class counsel, requiring the disclosure of litigation financing, and tying the reporting of settlement data to plaintiffs’ lawyers’ fees.” [More: various academic opponents weigh in here, Andrew Trask defends provisions of the bill here and here, and see earlier]
- The Innocent Party Protection Act (H.R. 725) “targets what is known as fraudulent joinder—the improper addition of [local] defendants to suits in a bid to keep cases in more plaintiff-friendly state courts.”
- The Furthering Asbestos Claims Transparency Act (H.R. 906) “mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies,” in hopes of preventing undisclosed duplicative collection of damages over the same injury.
- The Stop Settlement Slush Funds Act (H.R. 732) which “seeks to bar the Department of Justice from entering into settlements that steer funds to favored third-party groups.”
- The Sunshine for Regulatory Decrees and Settlements Act (H.R. 469) Goes after what have been called “sue-and-settle” processes at EPA in which the agency reaches concessionary terms with ostensibly adverse litigants who seek to expand its authority.
Trial lawyers and allies in the Litigation Lobby aren’t standing idly by: “opponents hope to gum up the works.” Even if many bills clear House passage, getting to 60 votes in the Senate in the face of filibuster threats could prove difficult, despite the departure of perennial trial lawyer ally Harry Reid (D-Nev.), and the views of President Trump are not entirely clear. More: Washington Examiner editorial on class action measures.
March 8 roundup
- Does the current civil service system violate the constitutional mandate that the executive power be vested in the President? [Philip K. Howard/The American Interest, Mark Hemingway, Weekly Standard]
- “Utah Supreme Court Affirms a Woman’s Right to Sue Herself” [Lowering the Bar]
- Museums’ rule against scaling back holdings is costly and irrational. Can’t NYT figure that out? [Michael O’Hare, SameFacts]
- “Patent troll that sued over Apple Watch and 80 other fitness products meets its match” [ArsTechnica]
- Wisconsin John Doe: “Prosecutor John Chisholm Sued for Retaliatory Investigation” [Andrew King/Fault Lines, earlier]
- Criminally tainted politicians retain voter support when and because “they provide services the state does not.” [Alex Tabarrok]
Cato Handbook chapters on labor and employment, minimum wage law
My chapter on labor and employment law in the new 8th Edition Cato Handbook for Policymakers has caused a riffle or two of reaction, what with its proposals to repeal the NLRA, ADEA, FMLA, and a bunch of other laws (and that’s just the start, really). Robin Shea and Jon Hyman both respond with posts on the theme of what would happen if they ran the world, could push a button, or were monarch for a day. Their responses are good-tempered in both agreement and disagreement, which cannot be said for all the corresponding fun had once the list started circulating over on Twitter.
If my chapter doesn’t manage to flood the outrage zone completely for committed supporters of current law, the handbook’s chapter on the minimum wage can help provide further stimuli. It’s written by Thomas Firey.
Downfall of Prenda Law, cont’d
John Steele has admitted guilt and pleaded guilty in the lawyer porn-troll copyright scheme that collected more than $6 million in settlements. He is expected to cooperate with prosecutors against Paul Hansmeier. [Dan Browning, Minneapolis Star-Tribune; earlier]
Liability roundup
- Uphill battle in Congress for bill to “prohibit federal courts from issuing awards that consider the victim’s race or gender, among other demographic variables” [Kim Soffen, Washington Post on “Fair Calculations Act”]
- Normalizing champerty, the Ann Arbor way: University of Michigan endowment to take stake in litigation finance fund [Janet Lorin, Bloomberg News]
- Lawsuit Abuse Reduction Act (LARA), restoring sanctions for groundless litigation, cleared House committee vote last month [@HouseJudiciary]
- “Lynch’s Doubling of False Claims Act Fines Could Be Bonanza for Trial Lawyers” [Joe Schoffstall, Washington Free Beacon]
- “Katrina victims shocked by small payments in levee failure case they ‘won’ – $118 each, on average” [David Hammer, WWL-TV]
- Advisory Committee on Civil Rules considers revising Rule 23 on class actions [Washington Legal Foundation comments]
Los Angeles Measure S
Los Angeles will vote tomorrow on the anti-development Measure S. That’s S as in “Suppress Supply of Shelter.” [Scott Beyer, Forbes; Alex Armlovich, L.A. Daily News; Market Urbanism]
The Fault Lines interview: Roger Pilon
Roger Pilon, who founded and continues to head the Cato Institute’s Center for Constitutional Studies, is the subject of a funny and wide-ranging interview by David Meyer Lindenberg at law blog Fault Lines. More from him here. Fault Lines also interviewed me last year, as part of a series that includes other figures known to readers here like Josh Blackman.