Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2017

Alexander Pope on litigation

Alexander Pope’s translation of a poem by Nicolas Boileau-Despréaux, via Eugene Volokh:

Once (says an author; where, I need not say)
Two Trav’lers found an Oyster in their way;
Both fierce, both hungry; the dispute grew strong,
While Scale in hand Dame Justice passed along.
Before her each with clamor pleads the Laws,
Explained the matter, and would win the cause.
Dame Justice weighing long the doubtful Right,
Takes, opens, swallows it, before their sight.
The cause of strife remov’d so rarely well,
“There take” (says Justice), “take ye each a shell
We thrive at Westminster on Fools like you:
‘Twas a fat oyster — live in peace — Adieu.”

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Campus climate roundup

  • Prof. Laura Kipnis, previously investigated by Northwestern over an essay she wrote saying there are too many Title IX investigations, wrote a book about the experience and that touched off yet another Title IX investigation of her [Jeannie Suk Gersen, The New Yorker]
  • Groups demand that outspoken social conservative Prof. Amy Wax not be allowed to teach first-year civil procedure at University of Pennsylvania Law School [Caron/TaxProf] How to evaluate claims that professors who say controversial things must step away from the classroom because they can’t be trusted to treat/grade students fairly? [Eugene Volokh]
  • Meanwhile, co-author of “bourgeois culture” op-ed, Larry Alexander of the University of San Diego, finds his dean distinctly unsupportive [Tom Smith, Caron/TaxProf roundup and more]
  • “Stay Woke” and allyship: insider view of American University’s new required first-year diversity courses [Minding the Campus] So revealing that an AAUW chapter would celebrate cancellation of this American U event [Elizabeth Nolan Brown]
  • Anonymous denunciation makes things better: president of Wright State University in Ohio “is encouraging students to anonymously report any violence and hate speech that might occur on campus.” [AP/WOUB] Student protesters called on Evergreen State “to target STEM faculty in particular for ‘antibias’ training” [Heather Heying, WSJ]
  • From this excerpt, upcoming Shep Melnick book on Title IX, OCR and federal control of colleges sounds top-notch [Law and Liberty] What to expect as Education Department reconsiders its former Dear Colleague policies [KC Johnson and Stuart Taylor, Jr., Weekly Standard]

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Waivers of class actions against employers

The Supreme Court will resolve a circuit court split on whether employment agreements under which workers agree to “arbitrate disputes with their employers individually, rather than bringing class-action lawsuits collectively with their co-workers, are valid….In an unusual twist, the administration will face off against an independent agency of the federal government, the National Labor Relations Board (NLRB).” [Lawrence Hurley and Robert Iafolla, Reuters, earlier here, here, here, and arbitration generally] Monday was oral argument on the trio of Murphy Oil, Ernst & Young, and Epic Systems [Amy Howe, transcript]

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Peggy Little on opioids as next tobacco

State attorneys general are teaming up with the tort bar in an alliance against opioids makers that’s all about the settlement prospects, writes Margaret Little at Law and Liberty:

The Financial Times has predicted a “tidal wave” of litigation that will snowball into a global settlement. Once an industry finds itself in a position where it faces a plaintiff at every level of government in nearly every state, cities, towns, counties and states jostle to put their claims into suit to get a piece of the action, “particularly when it doesn’t cost politicians anything,” as Richard Ausness, a professor at the Kentucky College of Law, told the FT.

Which leads to the heart of the question. Any settlement will likely follow the template of the tobacco Master Settlement Agreement, a quarter of a trillion-dollar wealth transfer that bloated state governments, levied unlegislated and cruelly regressive taxes on smokers, and sent $20 billion in unappropriated public money to the state AGs’ favorite donors: the mass-tort trial lawyers who have become government-financed Lawyer Barons.

A similar settlement on opioids would temporarily ease fiscal crises in the many states that have frittered away their tobacco-settlement money; but it would only encourage more such lawless and unlegislated regulation of other targets. Furthermore, it will lead to higher pharmaceutical prices and higher healthcare costs and premiums, in a process that is utterly opaque to the public, taxed without representation to enrich the lawyers (many of them former state Attorneys General stepping into a self-engineered path to personal wealth) and the governments with which they are in league.

Read the whole thing here.

P.S. Esme Deprez and Paul Barrett of Bloomberg on wheeler-dealer Mike Moore.

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Jones Act and Puerto Rico, continued

Ten day suspension more than halfway over already, time to refocus: the Jones Act “is a swamp creature that’s strangling Puerto Rico” [Colin Grabow, USA Today] The Act’s inefficiencies cost America many jobs, but they’re harder to identify than the jobs “saved” [Ike Brannon] An aged fleet [Thomas Firey on Regulation magazine analysis] A drag on the energy sector [James Coleman, Regulatory Transparency Project] Only two Washington problems are amenable to easy and correct solutions: simplify the tax code and get rid of the Jones Act [Ray Lehmann, R Street] More: Matt Yglesias. Earlier here.

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The New Yorker on guardianship abuse

“That weekend, she called her parents several times. She also called two hospitals to see if they had been in an accident. She called their landlord, too, and he agreed to visit the house. He reported that there were no signs of them. She told her husband, ‘I think someone kidnapped my parents.'”

Of all the scams and outrages in the legal system that I’ve written about, few get me as angry as does guardianship abuse. Rachel Aviv’s New Yorker report from Nevada shines a light into some dark places of elder law and of the human heart. Earlier here and here (2009 Brooklyn), here (Connecticut), here (North Carolina), here, etc. (Bronx).

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October 4 roundup

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“Gun policy is hard”

Once again it’s time to get angry at how unreasonable the other guy is being on the gun issue.

And it is time to just fix the problem, right?

I wish it were that simple, but, like most questions in public policy, it is not. Gun policy is hard, and getting it right—or even starting to get it right—requires calling out the bad arguments from both sides and understanding inevitable trade-offs and unavoidable facts.

[Trevor Burrus, Forbes, a year old but of continuing relevance] More: “I used to think gun control was the answer; my research told me otherwise” [Leah Libresco, Washington Post/Syracuse.com]

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Supreme Court and constitutional law roundup

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Suit over banana costume: a closet full of wearable-copyright disputes?

The Supreme Court’s recent decision in Star Athletica v. Varsity Brands on cheerleader uniforms has generated new uncertainty as to where a line falls between useful aspects of apparel, which are not copyrightable, and decorative aspects, which are. “The ruling is widely expected to lead to increased litigation in the fashion industry.” A lawsuit against Kmart over its sale of a banana costume “could be the first in a wave of copyright lawsuits over fairly generic Halloween costume designs.” [Timothy Lee, ArsTechnica; Bill Duhart, NJ.com; Polly Mosendz and Kim Bhasin, Bloomberg]

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