Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2019

SCOTUS declines to intervene in Sandy Hook gunmaker case for now

I joined the Lars Larson Show on Tuesday to talk about the Supreme Court’s ruling allowing a suit against Remington over the Sandy Hook massacre to proceed for now [earlier]. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).

I’ve got a new post up at Cato at Liberty taking a more extended look at the ruling and what lies ahead for gunmaker litigation.

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“OK Boomer?” HR law to the rescue!

1) Under federal employment discrimination law, employers face higher risk of liability if they fail to take action against stray workplace comments that are derogatory toward protected groups.

2) There is no exception for comments derogatory toward older persons.

3) People will now get warned, disciplined, or fired for saying “OK Boomer.”

Welcome to the House That Social Justice Built!

P.S. To make things clear, whatever lawsuits are at issue are unlikely to be aimed at whoever made the remark, but instead at the employer, which is after all the party with money worth going after. Most likely, claims of boomer insults, overheard or direct, will be used as additional leverage to raise the buyout/payoff level of departing older executives. That is why the employer, in its self-interest, has a reason to suppress such comments before they start. (The tweet above is by a seasoned management-side employment attorney.)

Age discrimination is already by some measures the most successful branch of employment discrimination law for plaintiffs, and it pays off especially in the case of high earners, that is to say persons of middle management rank and above, mostly affluent white males. They can afford to hire good lawyers, the sort who can afford to probe and trawl a large record for age-related remarks. [More: Robin Shea]

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Social media law roundup

  • Despite warnings that its “copyright small claims” format could call forth a new troll business model and trip up ordinary Internet users, U.S. House of Representatives votes lopsidedly in favor of CASE Act [Makena Kelly, The Verge; Jonathan Bailey, Plagiarism Today; Katharine Trendacosta and Ernesto Falcon, Electronic Frontier Foundation, here, here, here, and here; Mike Masnick, TechDirt; Copyright Alliance and ABA president Judy Perry Martinez (supportive of bill); earlier]
  • A social media platform that proposes to vet political claims for truthfulness will inevitably be drawn into taking sides in favor of some political factions against others [John Samples, Cato] You’d think New Yorker writers and New York Times editors would know better: no, free speech is not “killing us.” [same]
  • “Top Myths About Content Moderation” [Eric Goldman] And a Cato Daily Podcast about content moderation with Thomas Kadri and Caleb Brown;
  • “Attorney Who Sued Grindr Responds Extremely Poorly To The Supreme Court’s Rejection Of Her Section 230 Lawsuit” [Tim Cushing, TechDirt, on “victims’ lawyer” Carrie Goldberg; Cathy Gellis in January]
  • It must be campaign season because here come the DMCA takedown notices over fair use [Paul Alan Levy]
  • “Facebook isn’t liable for algorithm that put terrorist content in news feeds, 2nd Circuit rules” [ABA Journal, earlier here, etc.]

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The Breathalyzer black box

“Alcohol breath tests, a linchpin of the criminal justice system, are often unreliable, a Times investigation found…. Judges in Massachusetts and New Jersey have thrown out more than 30,000 breath tests in the past 12 months alone, largely because of human errors and lax governmental oversight…. A county judge in Pennsylvania called it ‘extremely questionable’ whether any of his state’s breath tests could withstand serious scrutiny.” A wide-ranging and disturbing look at what happens when a familiar and seemingly uncontroversial technology gets put to practical forensic field use. [Stacy Cowley and Jessica Silver-Greenberg, New York Times]

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An old story: social critics decry new technologies

In something of a convergence, anti-tech themes have become common both among the cultural critics of the social justice Left and the populist moralists of the Right. [Corbin Barthold, Truth on the Market]

As for the stuff the industry does make, [Republican Missouri Senator Josh] Hawley wants it changed. He has introduced a bill to ban infinite scrolling, music and video autoplay, and the use of “badges and other awards” (gamification) on social media. The bill also requires defaults that limit a user’s time on a platform to 30 minutes a day. A user could opt out of this restriction, but only for a month at a stretch.

The available evidence does not bear out the notion that highbrow magazines, let alone Josh Hawley, should redesign tech products and police how people use their time. You’d probably have to pay someone around $500 to stay off Facebook for a year. Getting her to forego using Amazon would cost even more. And Google is worth more still—perhaps thousands of dollars per user per year. These figures are of course quite rough, but that just proves the point: the consumer surplus created by the internet is inestimable.

It’s priggish, but enduringly popular, to see one’s fellow humans as being merely entrapped by the temptation to use new technology in frivolous or destructive ways, incapable of turning them to solid benefit. “When a lantern inventor obtained a patent to light London, observed Macaulay, ‘the cause of darkness was not left undefended.'”

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Schools roundup

  • “Sen. Kamala Harris introduces bill to lengthen school day by three hours” [Yelena Dzhanova, CNBC]
  • “The Hidden Costs of Chicago’s Teacher Strike” [John McGinnis, Liberty and Law]
  • “The logic behind school busing is back. And so is flight from government-operated schools.” [Matt Welch, Reason, mentioning new report on controlled choice by David Armor for the Cato Institute Center for Educational Freedom]
  • Ambition of suppressing or even banning private schooling [earlier] by no means confined to the UK’s loony-Left Labour Party, so be ready for it [Ira Stoll, Education Next]
  • “The Seattle school district is planning to infuse all K-12 math classes with ethnic-studies questions that encourage students to explore how math has been ‘appropriated’ by Western culture and used in systems of power and oppression” [Catherine Gewertz, Education Week; “framework” via Amir Sariaslan on Twitter]
  • “Threatening Teachers’ Ability to Control Their Classrooms: The U.S. Commission on Civil Rights gets it wrong on school discipline.” [Gail Heriot] Survey finds significant rise in number of teachers attacked by students [Hans Bader; earlier here, etc.] More: Max Eden, Quillette.

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Discontinue prosecution of shoplifting, get more of it

On the West Coast, changing public policies including lighter legal consequences for theft and lower priority of police response have led to a rise in shoplifting and other crime in stores, sometimes blatant. Compounding the problem: stores fear large liability payouts should they chase or touch a suspected miscreant [Christopher F. Rufo, City Journal; Scott P. Lindsay study for Downtown Seattle Association]

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NYPD employees charged with selling confidential 911 caller info to claims-fraud ring

“Prosecutors estimate that as many as 60,000 car accident victims may have had their confidential information improperly disclosed” in a scheme in which New York Police Department employees accepted money to pass information about 911 callers to an outfit that would then urge them to visit prearranged medical clinics and lawyers. “He told his fraudulent call center not to target victims in Manhattan, court documents said, because ‘those people got attorneys.’… ‘We want all the bad neighborhoods.’” With bonus HIPAA content: the ringleader of the scheme, besides paying off police personnel, allegedly “bribed employees at hospitals and medical centers to violate the Health Insurance Portability and Accountability Act, known as HIPAA, and disclose confidential patient information for car accident victims, the documents say.” [Ali Watkins, New York Times]

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Supreme Court roundup

A Cato-centric selection:

  • Massachusetts bans the most popular variety of self-defense firearms and that violates the Second Amendment, as SCOTUS should make clear [Ilya Shapiro and James T. Knight II on Cato Institute amicus brief in Worman v. Healey] Congress has never passed a law criminalizing the accessories known as bump stocks and the Executive branch can’t change that on its own [Trevor Burrus and James Knight, Guedes v. BATF]
  • Three more Cato certiorari amicus briefs: With return of Little Sisters case, Court should make clear that scope of accommodation under Religious Freedom Restoration Act is not for executive agencies to expand and contract accordion-like [Ilya Shapiro and Sam Spiegelman] Berkeley, Calif.’s ordinance requiring disclosure of the purported risks of cell phone radio frequency (RF) exposure poses First Amendment questions of forced commercial speech [Ilya Shapiro and Michael Collins on return to SCOTUS of CTIA v. Berkeley] Supreme Court has rejected attempt to use Alien Tort Statute to assert universal jurisdiction over human-rights abuses in overseas business, but Ninth Circuit still hasn’t gotten the message [Ilya Shapiro and Dennis Garcia, Nestle v. Doe]
  • Summing up the last Court term: speech by Miguel Estrada and a short video with Ilya Shapiro for the Federalist Society;
  • “Fearful that the Supreme Court will reject a broad interpretation of the CWA’s [Clean Water Act’s] scope, environmentalist groups have been seeking to settle the Maui case before the Court rules.” [Jonathan Adler on Maui v. Hawaii Wildlife Fund]
  • Another case of surprise plain meaning? Advocates argue that Congress didn’t really end Indian reservation status for much of the state of Oklahoma even if everyone at the time thought it did [Will Baude on Sharp v. Murphy; earlier on surprise plain meaning]
  • “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know” [new book by Randy Barnett and Josh Blackman; described here, and discussed in this Cato video]

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Some election results

* As expected, Democrats took over both houses in the Virginia legislature, sweeping the D.C. and Richmond suburbs where they successfully nationalized the issues. Virginia has been a badly gerrymandered state, which figured as an issue in the campaign. Now that they are fully in charge of the process, Virginia Democrats will need to decide whether they actually believe in moving toward neutral and impartial redistricting methods that take the power of line-drawing out of the hands of interested parties.

* New York City voters overwhelmingly approved a proposal to adopt ranked choice voting (RCV) in primary and some other elections. While I know this isn’t a universally shared view, I see a lot of merit in ranked choice voting and look forward to seeing more large jurisdictions experiment with it.

* Jim Hood, whose doings as Mississippi Attorney General have long furnished grist for this blog, looks to have fallen short in his bid for Mississippi governor.

* The “crime victims’ rights” package known as Marsy’s Law was on the Pennsylvania ballot. My piece on why it’s a really, really bad idea.

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