Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for January, 2020

Wave of ADA suits over retailer gift cards lacking Braille version

Over a period of eight days last fall, four law firms and associated clients who had earlier filed hundreds of web accessibility suits in New York launched a new wave of more than 100 putative class actions charging that retailers are violating the Americans with Disabilities Act (ADA) by offering gift cards but failing to provide Braille versions. [Minh N. Vu and John W. Egan, Seyfarth Shaw]

Typically, according to the Lawsuit Reform Alliance of New York (LRANY), “a successful plaintiff in [a local web accessibility] settlement will receive only $500 per case, but attorney’s fees average many times that amount, approximately $16,000 per case or more, depending on the law firm, the court and other factors, thereby giving plaintiff’s lawyers ample incentive to file as many cases as possible.” One attorney has made about a million dollars a year this way over eight years. “The targets selected by plaintiffs in this new wave run the full gamut of retail establishments, including big box retailers, grocery stores, movie theaters, restaurants, clothing brands, and online gaming and other services.” [Ryan P. Phair, M. Brett Burns & Torsten M. Kracht, Hunton Andrews Kurth]

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“Ban the Box” laws don’t work. So why do lawmakers love them so?

Elected officials across the aisle agree in applauding “ban the box” laws. Too bad they don’t work, I argue in my new piece at Cato. Earlier research found the laws didn’t improve employment of ex-offenders and actually harmed some groups. Now a new study finds no benefit for recidivism — and once again, harm to some groups.

With studies finding such laws ineffective even as to government hiring, “how much less justification is there for using them to constrain the freedom of private employers that have never incarcerated anyone”? Especially when directed at non-government employers, such laws “are a triumph of feel-good sentiment over economic rationality, practicality, and in the end the interests of the intended beneficiaries.” Whole piece here.

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Discrimination law roundup

  • In August the Fifth Circuit handed down an opinion enjoining guidance on criminal records in employment issued by the Equal Employment Opportunity Commission, an agency to which Congress has accorded no rulemaking powers. Importantly, the opinion casts doubt on the EEOC’s powers to act by guidance in many other areas as well [Federalist Society teleforum with Mark Chenoweth and Eileen O’Connor on Texas v. EEOC]
  • Trump signs “ban the box” measure that restricts criminal-record inquiries by federal contractors, not just the government itself [Thomas Ahearn, ESRCheck; Roy Maurer/SHRM]
  • Also on Federal contract compliance: “Will New Executive Orders Close OFCCP’s Highway to Enforcement Hell?” [Chamber Institute for Legal Reform]
  • “Europe ended its age of religious wars by carving out safe space for each of the contending faiths, guaranteeing that none of them would be able to absolutely crush the others. We ought to try that again.” [Andrew Koppelman, Balkinization on why he thinks Justice William Brennan might have preferred the “Fairness for All” bill (earlier) to the Equality Act; Scott Shackford]
  • “Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): ‘Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there.'” [IJ “Short Circuit” on Johnson v. Ohio Department of Public Safety]
  • Virginia employment law could lurch leftward given breadth of pending legislation [Hans Bader and more]

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“TripAdvisor Sued for Negligent Camel Supervision”

“A woman is suing TripAdvisor after a runaway camel tossed her to the ground during a tour in Morocco.” [AP] One problem for the claim is the website terms of service, which “say right up front that defendants don’t actually operate the tours themselves, they just facilitate booking the tours. Interactions with the tour operators, or their camels, are ‘at your own risk.'” A further potential problem “is that camels are known to be stubborn and difficult animals… so there’s going to be a potential assumption-of-risk issue with any camel-ride-related injury claim, most likely. This may be why the camel’s alleged pregnancy is being emphasized.” There follows more on camel pregnancy, and what leads up to it, than you probably wanted to know [Lowering the Bar]

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Claim: editor’s joke tweet was federal labor violation

The National Labor Relations Board says any “aggrieved” person (not just an employee) can file a complaint of unfair labor practices against an employer. So does that include any old Internet troll? We may soon find out now that a Twitter rando has filed a NLRB complaint against Ben Domenech, editor of the online opinion journal The Federalist, over his joke tweet saying that if any employees unionize he would “send you to the salt mine.” [New Civil Liberties Alliance]

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Crime and punishment roundup

  • Three episodes of the Cato Daily Podcast, all with Caleb Brown: “A Survey of State-Level Criminal Justice Reform” with Robert Alt of the Buckeye Institute; “Reforming Parole and Probation” with Marc Levin of the Texas Public Policy Foundation; “Getting Honest on Bail Reform” with Josh Crawford of the Pegasus Institute;
  • In news of unconstitutional legislation, the lawmakers of Monroe County, N.Y. (Rochester) want to make it illegal to “annoy” a police officer [James Brown, WXXI, Eugene Volokh]
  • Jury unanimity is required in federal criminal trials, but does the Constitution also require it at the state court level? [Federalist Society SCOTUS Brief video with Jay Schweikert on Ramos v. Louisiana, argued at the Court Oct. 7]
  • In August New York Gov. Andrew Cuomo signed a law stripping state double jeopardy protections from Trump associates who may receive clemency in the future. It’s an improperly targeted enactment at best [Jacob Sullum, earlier]
  • Denison, Texas drunk with multiple priors, lying on gurney in hospital, kicks police officer and gets 99 year sentence for that [Stan Smith, KXII]
  • Lengthy profile of Philadelphia DA Larry Krasner, including his feuds with the local U.S. Attorney and Pennsylvania’s Attornry General. One disturbing data point: “Homicides in the city are up six percent and shootings are up 10 percent this year.” [Steve Volk, Philadelphia Magazine]

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From the archives: Robert Reich on regulation through litigation

Notable from Overlawyered’s archives of 20 years ago, quoting former labor secretary Robert Reich, who was writing in the American Prospect on gun control through litigation:

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”.

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Labor and employment roundup

  • More on presidential candidate Bernie Sanders’ big plans to regulate employment [Cato Daily Podcast with Ryan Bourne and Caleb Brown, related earlier]
  • It’s not just the joint employer rules, NLRB is rolling back Obama-era decisions in many other areas too: union elections, including “quickie” procedures [Laura I. Bernstein, Felhaber Larson]; confidentiality in workplace investigations and use of company email systems [Jon Hyman]
  • California Agricultural Labor Relations Board adopts a regulation entitling union organizers to enter farms whether owners approve or no. When such a mass incursion, with bullhorns, disrupts farm operations, has a taking of property occurred? Ninth Circuit says no [Pacific Legal Foundation; Metropolitan News-Enterprise; Federalist Society podcast with Wen Fa and Bethany Berger]
  • Study based on tax data finds typical member of top-earning 1% “derives most of his or her income from human capital, not financial capital” [David Henderson] Or on the other hand: “The [analytic] attempt to divide all income between labor and capital is a fool’s errand.” [Arnold Kling]
  • “Both the financial market crash and the aging of America’s industrial workforce are real phenomena. They did not, however, cause the multiemployer pension crisis.” [Charles Blahous, Economics21; more by Blahous here, here, and here; earlier]
  • Supervisor’s remarks critical of exercising FMLA leave options keep nurse’s lawsuit alive despite clients’ complaints about her behavior while visiting their homes [Ronald Tang, SHRM]

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Proposal: small claims courts for police misconduct

A proposal from my Cato Institute colleague Clark Neily: small claims courts for low-level police misconduct. Ilya Somin praises it as among the few constitutional law ideas “that are simultaneously good, original, and potentially useful in the real world.” [Volokh Conspiracy] More: Howard Wasserman (similar ideas), Scott Greenfield and some other thoughts on small claims.

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