Archive for August, 2018

Poppy seed bagel triggers drug test (again), CPS gets involved (again)

Sitcom plots come to life: mom of newborn reported to state after poppy seed bagel triggers positive opiate test, baby kept in hospital for five days [Zuri Davis, Reason; Chaunie Brusie, Everyday Family; Baltimore County, Md.]

Longtime readers of Overlawyered know that this is not the first time around for this fact pattern. See “Mom ate poppy seed dressing, state holds baby for 75 days” and earlier; Radley Balko reported in 2014 that two lawsuits involving the same western Pennsylvania hospital and county children’s services department were both settled for substantial sums and a third case had been filed against another hospital in the same region. See also re-jailing of halfway house inmate from 2010 (Florida), as well as Dubai airport madness.

Filed under: Child Protective Services, illegal drugs

August 15 roundup

“Lawmakers are doing nothing to stop wheelchair ramp scams: businesses” [Julia Marsh and Yoav Gonen, New York Post, earlier on NYC ADA shakedowns]
Not a flattering picture: inside the politicized office of one state’s (Minnesota’s) attorney general [Rachel M. Cohen, The Intercept, Briana Bierschbach, Minnesota Public Radio, J. Patrick Coolican and Jessie Van Berkel, Minneapolis Star-Tribune (Swanson releases criminal record of aide-turned-critic]
Remembering when the U.S. went through its first moral panic about plastic guns, in 1986 [Dave Kopel]
Until 2012, after 60 Minutes did an exposé, “it was perfectly legal for members of Congress to trade on inside information. Not for you, of course. You’d go to jail. But for some strange reason, mystifying to all, that law simply did not apply to Congress.” [Kevin Underhill, Lowering the Bar]
“Federal Court: Miami Taxi Companies Have ‘No Right To Block Competition’ From Uber” [Nick Sibilla, Forbes]
“Not even consumer law professors routinely read consumer contracts and disclosures” [Jeff Sovern, CL&P]

Filed under: ADA filing mills, attorneys general, contracts of adhesion, guns, Minnesota, politics, taxis and ridesharing

Creator royalties on art in public spaces

Creators of art displayed in parks and other public spaces have been using assertions of copyright to demand cash from, or play favorites among, private persons and groups seeking to carry on video or photography in those spaces. Aaron Renn: “Any city installing public art should ensure that the agreement with the artist provides for unconditional royalty free pictures and videos, or the art shouldn’t be installed.”

Filed under: art and artists, copyright, photography, roads and streets

“Defendants File Non-Opposition to Plaintiff’s Motion for Leave to File Surreply to Motion for Leave to File Surreply”

“As is so often the case, the first sign of approaching disaster was a motion asking for leave to exceed the page limit….As part of the public service I provide, I have counted up the number of pages that were written, rewritten, printed, scanned, and/or filed by the lawyers during this titanic struggle, and, including exhibits, that number is 1,749. Not a single page of which will be considered by the Court or, in all likelihood, ever viewed again by any human being during the remainder of our species’ time on this planet. Perhaps eons hence some member of an alien race picking through our ruined archives will come upon it, and hurt its brain parts trying to figure it out.” [Kevin Underhill, Lowering the Bar, on E.D. Nev. class action discovery dispute]

Filed under: discovery, overzealous advocacy

Constitutional law roundup

Judge says Emoluments Clause suit based on Trump’s DC hotel can proceed [Andrew M. Harris, Bloomberg, Washington Post; two views at Volokh Conspiracy from David Post and Josh Blackman and Seth Barrett Tillman; earlier on Emoluments Clause litigation] Last year I noted the hotel-competitor fact pattern as the kind of emoluments case most likely to clear the standing hurdle;
Excessive fines are unconstitutional, whether levied on persons or on groups of persons [Ilya Shapiro and Matthew Larosiere and Dave Kopel on Cato/Independence Institute brief in Colorado Dept. of Labor v. Dami Hospitality]
Federalist Society conversation with author Joseph Tartakovsky about his new book, The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law;
“In 2016, Birmingham, Ala. officials imposed $10.10 minimum wage, but the next day state legislators preempted it, enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against blacks, who make up 72 percent of Birmingham and most of its City Council. Eleventh Circuit: ‘Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.’ Plaintiffs’ equal protection claim should not have been dismissed.” [John Kenneth Ross, Short Circuit, on Lewis v. Governor of Alabama]
“This is the old ‘why do you make him hit you?’ argument applied to civil liberties. It excuses the actions of the abuser—the state in this case—as reactions to the missteps of the abused.” [J.D. Tuccille on curious ACLU argument that maintaining expansive Second Amendment rights just provokes the state into wider crackdowns]
North Carolina’s constitution has a clause endorsing right to “the enjoyment of the fruits of their own labor” which might furnish ground to challenge some economic regulation [Eugene Volokh]

Filed under: ACLU, constitutional law, disparate impact, Eleventh Circuit, North Carolina

Followup on Cato adoption conference

Reporter Gillian Friedman at Deseret News covered our July conference on adoption [earlier here, with videos and podcasts, and more on topic] Brian K. Miller of the Center for Individual Rights has more on the proposal by panelist Robin Fretwell Wilson on voucherizing home studies (“How Vouchers can End the Culture War Over Adoption”), as does Wilson’s home institution, the University of Illinois College of Law.

The steep decline in international adoption, one theme of the conference, has been explored in places like Priceonomics. Keynote speaker Elizabeth Bartholet’s many books include Nobody’s Children, and you can find the Harvard Law Child Advocacy Program, which she directs, here; also check out this 2014 New York Times contribution. And panelist Mark Montgomery and Irene Powell’s book Saving International Adoption has been featured in outlets like The Conversation, The Academic Minute and NPR Morning Edition.

Filed under: adoption

Surgeon fights to dispel erroneous claim of having lied to patient

Lawyers can assert damaging untruths about you in litigation and you will find no recourse, part 7,281: the lawyer who accused Yale-New Haven Dr. Ricardo Quarrie of lying to a patient to cover up a mistake has recanted, but the accusation still haunts the surgeon’s good name [Elizabeth Cohen, CNN]

Filed under: medical malpractice, nonmonetary costs of litigation

Schools and childhood roundup

Judge greenlights lawsuit claiming right to literacy under California constitution [Stephen Sawchuk, Education Week] Whatever its surface appeal, legal right to literacy (or access to same) not in fact a good idea [Scott Greenfield on Michigan suit]
“Teachers’ unions plan to become ‘more political, not less political'” [Frederick Hess and Grant Addison] “The Long-Run Effects of Teacher Strikes: Evidence from Argentina” [David Jaume and Alexander Willén, Cato Research Brief] Worsening human capital outcomes: “The Long-run Effects of Teacher Collective Bargaining” [Michael Lovenheim and Alexander Willén, NBER via Tyler Cowen]
D.C.’s credentialism will hurt families: “Childcare Regulation and Quality” [Ryan Bourne, Cato, earlier here, here, here, and here]
“The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law” [Gail Heriot, parts one, two, three]
“Mom Brings Coughing 10-Month-Old to the Hospital. Days Later, Cops Take the Baby.” [Lenore Skenazy, Minnesota]
“The New Head of the Office for Civil Rights Charts a Very Different Course” [George Leef, Martin Center profile of Kenneth Marcus]

Filed under: Child Protective Services, labor unions, school discipline, schools

Judge strikes down abuse-prone Colorado campaign finance law

A federal judge in June struck down Colorado’s distinctive law (earlier) under which any private person could file charges of campaign-finance violations. “That is unconstitutional, the court held, because there is ‘nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated.'” The Institute for Justice had represented “Strasburg resident Tammy Holland, [who] challenged the system after she was twice sued by members of her local school board for running newspaper ads urging voters to educate themselves about school-board candidates. Even though Holland was ultimately cleared of any wrongdoing, the lawsuits dragged on for months and cost thousands of dollars in legal fees.” [Institute for Justice press release] Following the ruling, the state quickly moved to institute a new process under which complaints will be vetted, and are subject to closer time limits. [Jesse Paul, Denver Post]

Attorney and Denver Post columnist Mario Nicolais writes that at first he thought Colorado’s privately driven system worked well, until it developed into a vehicle for volume filings settled for cash:

…several groups began filing campaign finance complaints solely to line their own pockets and intimidate political opponents. These groups comb through campaign finance filings looking for any small errors and then exploit the complaint system for their own gain. The director for one of these groups, Matt Arnold, coined his work “political guerilla legal warfare (a.k.a. Lawfare).” …

… Because of the byzantine procedure through which Colorado’s campaign finance penalties compound and accrue on a daily basis, the potential fines threatened by the group regularly reached into the tens and hundreds of thousands of dollars. Even when the only errors involved a couple [of] omitted $3.00 transactions. Consequently, the group knew it could demand payments for $4,500 or $10,000. When defendants didn’t pay, the group threatened that “the beatings will continue until morale improves.”

More: Corey Hutchins, Colorado Independent 2016.

Filed under: campaign regulation, Colorado

Lawyers hunt massive opioid-suit payday

“A Bloomberg review of almost 100 [opioid-suit] agreements between the municipalities and their lawyers puts the stakes into focus: If the plaintiffs collect anything close to the maximum $50 billion that a global settlement may yield, according to a Bloomberg Intelligence estimate, a handful of attorneys could pocket at least one-quarter of that.” In all so far, “lawyers have brought more than 900 cases on behalf of states, local governments and tribes, as well as unions, medical practices and individuals.” [Andrew Harris, Jared Hopkins and Hannah Recht, Business Week/Bloomberg]

Filed under: feeing frenzy, opioids