Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2017

Baltimore police consent decree, cont’d

There’s much that needs reforming about the Baltimore police department, but the collusive sweetheart agreement between two lame duck administrations, transferring power over department practices to outside activists and the usual monitor setup, has a great deal wrong with it. George Liebmann of the Calvert Institute, who has been critical of the settlement, wrote up his objections in a lengthy communication to the court, excerpted at Free State Notes.

More from Tim Lynch at Cato on the DoJ’s changing posture:

…Sessions is making a grave mistake if he thinks previous DOJ investigations did not uncover severe problems in American policing. The problems are there. The real question is how to address them. In the education area, teacher unions are the main obstacles to reform. Police unions are the major obstacle to sensible accountability measures for police organizations. But over the long run, local mayors and city councils must make a sustained commitment to proper oversight of police. It is unrealistic to expect the Attorney General or a federal monitor to do their jobs.

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Free speech roundup

  • “Spanish woman given jail term for tweeting jokes about Franco-era assassination” [The Guardian]
  • If California Attorney General Xavier Becerra’s 15-felony complaint and arrest warrant against activist filmmakers David Daleiden and Sandra Merritt is a vendetta, it’s one motivated by speech. That’s serious [Jacob Sullum]
  • “A.B. 1104 — a censorship bill so obviously unconstitutional, we had to double check that it was real.” [EFF on stalled California bill to ban “fake news,” introduced by Assemblymember Ed Chau (D-Monterey Park)] “Germany approves bill curbing online hate crime, fake news” [AP/Yahoo, earlier]
  • “Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint” [Tim Cushing, TechDirt; criticism of doctor’s experimental treatment methods]
  • Punching a hole out of Section 230: new “sex trafficking” bill could have far-reaching consequences for web content and platforms [Elizabeth Nolan Brown, Reason]
  • One section of a Maine bill would bar state’s attorney general from investigations or prosecutions based on political speech [HP 0551; Kevin at Lowering the Bar is critical of bill]

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April 5 roundup

  • Lawsuit by pilot against landowner who shot down his drone is dismissed for lack of federal jurisdiction [Cyrus Farivar, ArsTechnica; earlier here and (criminal case) here]
  • Super-broad readings of Emoluments Clause intended to trip up President Trump might have unwelcome consequences for over 2 million military retirees and 2.8 million federal employees also affected by the Clause’s interpretation [Chuck Blanchard via Andy Grewal; earlier on Emoluments Clause]
  • “Appeals court throws out six Intellectual Ventures ‘do it on a computer’ patents” [Joe Mullin, ArsTechnica]
  • David Meyer-Lindenberg interviews Cato Institute chairman and legal scholar Bob Levy on topics that include Heller v. D.C., his taking up of law as a second career after business success, and Cato’s mission [Simple Justice]
  • Judicial deference to the administrative state: Evan Bernick reviews “Law’s Abnegation: From Law’s Empire to the Administrative State,” by Adrian Vermeule [Federalist Society Review]
  • An economist visits India’s great onion market [Alex Tabarrok]

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“FBI Arrests Hacker Who Hacked No One”

Can the feds make conspiracy/aiding and abetting charges stick against software maker Taylor Huddleston, creator of a software tool that can be used by both bad and good players? “Because NanoCore has both legal and illegal uses, establishing that Huddleston wrote it for criminals is crucial for prosecutors. ‘It’s a dual-use technology case,’ says [Cornell law prof James] Grimmelman. ‘And you typically don’t get criminal liability in dual-use technology cases unless there’s a pretty clear intent to promote the criminal use instead of the legitimate ones.'” [Kevin Poulsen, The Daily Beast]

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Fee scrimmage in NFL concussion settlement

“The $1 billion NFL concussion settlement — nearly six years in the making yet still to deliver a penny to former players and their families for brain injuries stemming from football — is revealing the underbelly of the legal system to former players and their families. … Two dozen wives of former players recently sent a plea to the judge overseeing the case, asking her to address concerns that legal fees will be cutting heavily into money that was supposed to go their families. They cited lawyers charging ‘exorbitant’ retainer fees to players and their families despite the same lawyers being eligible to collect from a $112.5 million fund set aside to pay attorneys who worked on the case.” [ESPN]

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Eleventh Circuit: First Amendment protects right to label skim milk as “skim milk”

Florida law allows the sale of skim milk without vitamin A and D fortification but requires that it be sold under the name “imitation milk product.” Ochiltree Creamery, a business that views the addition of other than natural ingredients as contrary to its mission, was willing to put warnings on its all-natural skim milk alerting buyers to the absence of vitamin fortification, but resisted the law’s demand that it label the product something other than “skim milk.” The Eleventh Circuit ruled that the state had not met its burden under the First Amendment. [Eugene Volokh, Baylen Linnekin, Frank Garrison]

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“Opening up” libel law, cont’d

It is not clear whether a Thursday tweet from President Donald “Sue the Press” Trump should be interpreted as a serious policy proposal as distinct from an irritable gesture, but if its logic were pursued it might suggest that the chief executive favors extending defamation liability to coverage that is incomplete as opposed to untruthful and would have been fairer if it included points to be made on behalf of a covered personage. That’s not how defamation works under current First Amendment law, though [Jacob Sullum; earlier on Trump and libel]

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Supreme Court and constitutional law roundup

All-Cato edition:

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