Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2017

NYT on web accessibility suits

At the New York Times, Vivian Wang covers one of our regular topics around here, the wave of ADA lawsuits over website accessibility. Among the latest targets of these suits: colleges and universities.

Since January 2015, at least 751 lawsuits have been filed over the issue. The vast majority have focused on retailers and restaurants, according to a legal blog that tracks such suits.

A single plaintiff, however, has now sued eight New York-area colleges and universities, including Fordham University and Long Island University.

Some disability rights advocates, acknowledging the charges that some lawyers are just looking to cash in, have distanced themselves from the suits.

“We do not condone just filing a blizzard of lawsuits in order to get settlements. That’s not solving the underlying problem,” said Chris Danielson, public relations director for the National Federation of the Blind. His organization has pushed instead for clearer federal guidelines on web accessibility.

Relatedly, John Stossel covers Berkeley’s liability-driven removal of free public online course materials (“A third threat to free speech at University of California, Berkeley has led to more censorship than political rioters or college administrators. It’s the Americans with Disabilities Act.”). And while the vending machine case of Magee v. Coca-Cola Refreshments had raised hopes or fears in some quarters that the U.S. Supreme Court might seize on it to bring some much-needed clarity to the state of online accessibility law, the high court decided against taking the case and let stand a ruling against the blind plaintiff. [Emily Jed, Vending Times; more, Minh Vu]

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US finally deregulates telegraph service

“The FCC said in a notice it was removing ‘outmoded regulations’ on telegraphs effective in November.” And none too soon: “The last Western Union telegram in the United States was sent in 2006” and the “last major telegram service worldwide ended in India in 2013.” [David Shepardson, Reuters via @AjitPaiFCC]

AT&T Inc, originally known as the American Telephone and Telegraph Company, in 2013 lamented the FCC’s failure to formally stop enforcing some telegraph rules.

“Regulations have a tendency to persist long after they outlived any usefulness and it takes real focus and effort to ultimately remove them from the books even when everyone agrees that it is the common sense thing to do,” the company said.

In Chapter 8 of The Litigation Explosion I used the old body of law concerning liability for mishandled telegrams to illustrate the contrast between damages that were direct and certain on the one hand, and speculative on the other. And in 2011 I observed that Connecticut had yet to get around to repealing old state laws like those regulating the working conditions of telegraph messengers (cross-posted at Cato at Liberty).

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October 25 roundup

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My new WSJ: will ACLU defend its own right to speak?

I’ve got a new opinion piece at the Wall Street Journal about the extraordinary recent happenings at William & Mary, part of the Virginia public university system, where activists associated with the Black Lives Matter movement shouted down the executive director of the American Civil Liberties Union of Virginia, Claire Gastañaga, at a scheduled talk where she was to deliver remarks on freedom of speech. Among the cries and chants heard: “ACLU, you protect Hitler, too,” “the oppressed are not impressed,” “the revolution will not uphold the Constitution,” and “liberalism is white supremacy.”

The follow-up was perhaps more disturbing still: after initially releasing a firm statement condemning the disruption, the ACLU of Virginia went back and removed much of the strongest language, acknowledging debate within its own ranks. In particular, it dropped language pointing out that the Constitution does not protect disruption (the so-called heckler’s veto) that prevents a speaker from speaking or audience members from hearing the speaker, and another passage pointing out that public campuses are subject to constitutional standards.

It’s enough (I argue) to remind you of Robert Frost’s quip about a liberal as someone too broadminded to take his own side in an argument. More seriously, it signals the continued erosion of the ACLU’s commitment to core speech and civil liberties issues, under pressure from a tide of activists who joined in its activities in pursuit of equality and social justice, not Bill of Rights issues. Further reading: Wendy Kaminer and followup.

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Liability roundup

  • Another dubious lawsuit blaming terrorism on social media from law firm with phone number for a name [Tim Cushing]
  • Courts reverse two big talc/baby powder jury verdicts against Johnson & Johnson [Tina Bellon and Nate Raymond, Reuters ($417 million, California); Insurance Journal ($72 million, Missouri)]
  • “US-Based Tech Companies Subject to Worldwide Jurisdiction as Judicial Comity Takes a Back Seat” [Moin Yahya, WLF on Supreme Court of Canada’s decision in Google v. Equustek Solutions]
  • Richard Epstein wrote the Encyclopedia of Libertarianism’s entry on liability, tort and contract;
  • Asbestos: “Judges and juries should learn about a plaintiff’s entire exposure history so they can apportion liability appropriately.” [Phil Goldberg, Forbes]
  • Study of contingent fee litigation in New York City: few cases resolved on dispositive motions, lawyers nearly always take the maximum one-third permitted by law [Eric Helland et al., forthcoming Vanderbilt Law Review/SSRN]

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“Zoning, Land-Use Planning, and Housing Affordability”

New Cato Policy Analysis by Vanessa Brown Calder, here is the executive summary:

Local zoning and land-use regulations have increased substantially over the decades. These constraints on land development within cities and suburbs aim to achieve various safety, environmental, and aesthetic goals. But the regulations have also tended to reduce the supply of housing, including multifamily and low-income housing. With reduced supply, many U.S. cities suffer from housing affordability problems.

This study uses regression analysis to examine the link between housing prices and zoning and land-use controls. State and local governments across the country impose substantially different amounts of regulation on land development. The study uses a data set of court decisions on land use and zoning that captures the growth in regulation over time and the large variability between the states. The statistical results show that rising land-use regulation is associated with rising real average home prices in 44 states and that rising zoning regulation is associated with rising real average home prices in 36 states. In general, the states that have increased the amount of rules and restrictions on land use the most have higher housing prices.

The federal government spent almost $200 billion to subsidize renting and buying homes in 2015. These subsidies treat a symptom of the underlying problem. But the results of this study indicate that state and local governments can tackle housing affordability problems directly by overhauling their development rules. For example, housing is much more expensive in the Northeast than in the Southeast, and that difference is partly explained by more regulation in the former region. Interestingly, the data show that relatively more federal housing aid flows to states with more restrictive zoning and land-use rules, perhaps because those states have higher housing costs. Federal aid thus creates a disincentive for the states to solve their own housing affordability problems by reducing regulation.

Related: finding common ground between Cato and the Urban Institute on land use regulation [Vanessa Brown Calder and Rolf Pendall; Calder; James Rogers] “California Tries To Fix Housing Affordability Crisis By Making Housing More Expensive” [Christian Britschgi, Reason]

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Medical roundup

  • “Oral Contraceptives Should be Free (From the Third-Party Trap)” [Jeffrey Singer, Cato]
  • Arbitrator awards $17.5 million after hospital fires neurosurgeon: in retaliation, or because he didn’t disclose problems with the law unrelated to practice? [Mike Baker, Seattle Times]
  • Idea of empowering government to rewrite recipes for packaged food has gotten more traction in British public health sector than here [Sean Poulter, Daily Mail]
  • Encyclopedia time: you can look up a variety of health topics in the now-online Encyclopedia of Libertarianism including Michael Cannon on health care generally, Gene Healy and Bruce Benson on illegal drugs, Jeffrey Schaler on psychiatry. And the Routledge Encyclopedia of Libertarianism includes Jessica Flanigan on libertarianism and medicine;
  • If treatment deviating from the standard of care is the standard for malpractice, then some patients in pursuit of unconventional therapy choose it, and the law of waivers and of assumption of risk should respect their autonomy [Nadia Sawicki via TortsProf]
  • About the Washington Post’s big opioid-legislation exposé, a few questions [Robert VerBruggen]

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“Against Collusive Consent Decrees, For Police Reform”

From Chicago to Baltimore and beyond, don’t assume that consent decrees with higher levels of government (the U.S. Department of Justice included) are the best route to police reform. John McGinnis, Liberty and Law:

Rahm Emanuel, the mayor of Chicago, has welcomed the lawsuit [by Illinois Attorney General Lisa Madigan] and is looking to acquiesce in a consent decree which will create a new set of rules for the police department and a monitor to enforce them.

This collusive suit is a bad idea. To be sure, the Chicago Police Department needs reform, but this method reduces democratic accountability, imposes unnecessary costs, and most of all runs the risk of letting more people die from uncontrolled crime. And it is very unlikely to do what is most needed: eliminating or reducing the protections against discipline that police enjoy in union contracts or under civil service laws.

For an example of the kind of consent decree that is likely to be agreed upon, look at similar litigation in Baltimore….

…the greatest problem for lawful policing is that police departments have difficulty firing the few bad actors disproportionately responsible for civil rights violations because departments face constraints imposed by union contracts and civil service laws. The Baltimore consent decree does not rewrite these contracts or laws nor it is clear that it would have the power to do so. And I expect no different result in Chicago. Thus, the consent decree may retard the most important kind of police reform by giving a false sense of progress.

See also: “The lost history of police misconduct in Chicago” [Elizabeth Dale, PrawfsBlawg, first and second posts]

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