“A man who couldn’t swim, but came to Fairfax County to work at a pool in 2016 and almost drowned himself, has filed a federal lawsuit against the lifeguard who pulled him out of the water and the county police officers who resuscitated him.” On his third day on the job, witnesses said the plaintiff began acting strangely in what was later deemed a bipolar episode and jumped into the pool. “It’s a frivolous lawsuit — we saved a young man’s life,” Fairfax County Police Chief Edwin Roessler told a reporter. “He was trying to commit suicide by drowning himself.” [Neal Augenstein, WTOP]
May 2 roundup
- Celebrity political defamation suits I: Stormy Daniels sues President Trump [Ken White and Marc Randazza at Popehat, strong language x2]
- Celebrity political defamation suits II: Roy Moore sues accusers [Paul Gattis/Al.com, Gabriel Malor on Twitter]
- Our knowledgeable readers have been having a discussion in comments about Wisconsin’s butter-grading rules and whether they have a rational basis, and Joshua Thompson of Pacific Legal Foundation, which represents Minerva Dairy, has written a post to explain more, which also has kind words we appreciate (“does a magnificent job pointing out and explaining the seen and unseen costs of our legal system”);
- USC lawprof Simkovic’s screed on campus-speech controversies ascribes sinister motives to Eugene Volokh and Prof. Josh Blackman, not to mention my own book Schools for Misrule [David Bernstein and more, Paul Horwitz, Popehat on Twitter, Rick Hills, William Jacobson/Legal Insurrection, Scott Greenfield]
- “Gabriel Over the White House,” Hollywood’s jarringly weird 1933 paean to one-man rule, aired on TCM April 27 [Jeff Greenfield, David Boaz, Gene Healy and Caleb Brown video]
- “Keep Facial Recognition Away From Body Cameras” [Matthew Feeney, Cato]
Supreme Court takes Ted Frank’s Google cy pres case
The Supreme Court has agreed to review Frank v. Gaos, a case in which Ted Frank is objecting to a Google class action settlement. [Barbara Leonard, Courthouse News; Kieren McCarthy, The Register (U.K.)] From the latter piece:
Of the $8.5m that Google has agreed to pay out, not a single cent will go to the actual users whose privacy was violated. It will instead go to the lawyers that brought the case on behalf of those users ($2.125m, no less) and a group of seven organizations that the lawyers, along with Google executives, decided should become “cy pres” recipients.
Those recipients have been controversial from the moment they were named: three of them are law schools, and just so happen to be the same law schools that the lead lawyers went to; and the remaining four are organizations that Google has repeatedly given money to, in large part because they share the same values and goals as Google itself….
His position is quite clear: the use of cy pres – pronounced, fittingly, “sigh, pray” – should be a last resort, and if used, there should be no conflict of interests or even the appearance of a conflict, for those involved in drawing up the list for who gets the money.
Dubious use of cy pres has been a regular topic here at Overlawyered, even before the years when Ted blogged here:
“Law’s Picture Books”
We’ve linked an item from this series previously, but it deserves a post in itself: “Law’s Picture Books,” an exhibition at NYC’s Grolier Club, displayed more than 140 items from the Yale Law Library’s collection of images and writings on legal themes. In a series of ten posts at Concurring Opinions (link is to the series tag), Mark S. Weiner explores many of the highlights. They include images of courtrooms and of lawyers at work; books using mathematical and quantitative methods to address legal issues arising from water and land; images used in law teaching; tree-and-branch and other diagrams; and a 1554 treatise on criminal law whose breakthrough innovation was its inclusion of 60 woodcuts depicting specific crimes.
More in videos at Weiner’s Worlds of Law and in pictures at Mike Widener’s Flickr account. More on the steamroller cartoon in the series entry “Laughing at the Law.”
When courts depend on fines
One problem with the packing on of fines and fees in street-level law enforcement is that it can pull residents down to indigency over ultimately minor offenses; another is that when fees are directed into justice system budgets, it can reshape incentives in dangerous ways. “We place courts in a dangerous position when we make them dependent on the funds they collect. The dynamic risks undermining judicial independence.” [Matthew Menendez, ABA Journal]
Fifth Circuit overturns $151 million Mark Lanier verdict
Citing “falsehoods,” “deceptions,” and “inflammatory evidence” on the plaintiff side, Judge Jerry Smith, writing for a Fifth Circuit panel, has overturned a $151 million hip implant verdict won by prominent attorney Mark Lanier against Johnson & Johnson. Reports the ABA Journal:
The court said Lanier had presented father-and-son orthopedic surgeons as unpaid experts, emphasizing their compelling pro bono testimony while contrasting the “bought testimony” of the defendants’ experts. Yet Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent checks totaling $65,000 to the surgeons after the trial along with thank-you notes.
The pretrial donation check and the post-trial payments “are individually troubling, collectively devastating,” Smith wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that [one of the surgeons] had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”
Discrimination law roundup
- Women-only co-working space in Washington, D.C. is packed with amenities. But is it legal? [Ally Schweitzer, WAMU]
- Hurry up and cert: Ninth Circuit en banc rules that use of past salary history violates federal Equal Pay Act [Reuters/KFGO; Marcia McCormick, Workplace Prof]
- Justice Ruth Ginsburg talks down idea of passing new laws in response to #MeToo harassment scandals: “We have the legal reforms — we have had them for a long time….The laws are there and the laws are in place; it takes people to step forward and use them.” [Jeffrey Rosen interview, The Atlantic]
- “No Fingerprinting as a Religious Accommodation? Yes, Says Court” [Daniel Schwartz]
- “Equal Pay Day Should Be in January” [Vanessa Brown Calder, Cato] “Mythbusting Paid Leave Statistics” [same] “Women who have their first child before 25 or after 35 eventually close the salary divide with their husbands,” but new moms between 25-35 don’t [Claire Cain Miller, New York Times] “When factors such as experience, industry and job level were taken into account, women earn 97.8 cents for every dollar earned by their male peers for doing the same work.” [Stephen Miller, SHRM] More: Tyler Cowen;
- “A waiter was fired for being combative, aggressive and something of a bully. His defense? He’s not rude. He’s French and his former bosses are discriminating against his culture and heritage.” [Laura M. Holson, New York Times via Twitter]
The case of Alfie Evans and the best-interests-of-the-child standard
British law gives more of a share in decision-making about children’s lives to the state, and less to the parents, than is typical in American law. I like American law better. [Damian Thompson, The Spectator]
A reader recommends this piece by barrister Matthew Scott in Quillette defending the British authorities’ actions. While it fills in much useful detail, I’m not at all persuaded on the central issue of whether it was proper for British law in 1989 to oust parental rights from areas in which they had been long respected, all in the name of the best interests of the child as discerned by courts, experts, and the state. In my first book, The Litigation Explosion, I argued against the specious attractions of a best-interest-of-the-child standard in the child custody modification context, pointing out that to upset an existing decree of custody it should be needful to allege something stronger than that the child would be marginally better off with a switch, or that the case for a switch was supported by marginally better expert avowals than the case for leaving custody where it was. Instead, presumptions of stability and family integrity should be respected, to be overcome only by a strong showing of likely substantial harm from not switching. Likewise, the presumption that parents are the ones to direct their infant children’s medical care should be a strong one, rebuttable to be sure in some cases of wretched or misguided parental errancy, but not simply by rhetorical flourishes, even when embodied in law, about how the best interests of the child must conquer all and we determine what those are.
For examples of the narrower scope of parental rights in the United Kingdom and its subdivisions, see this 2015 story (parents warned they may be reported for neglect if they allow under-18s to play adult-themed videogames such as Call of Duty and Grand Theft Auto); this from 2009 (seven children seized from obese couple in Scotland; but note American trends too); and the Scottish Named Persons scheme. More on expertise and best-interests-of-the-child standards: Megan McArdle, Jim Geraghty.
Wisconsin’s butter-grading scheme
Wisconsin, where dairy producers hold great political sway, maintains a uniquely onerous scheme of butter grading that “has nothing to do with public health or nutrition” but does serve to restrict the sale of butter made in other states, including high-end artisanal butter. Representing Ohio’s Minerva Dairy, the Pacific Legal Foundation has sued to overturn the regulation on Commerce Clause, Due Process, and Equal Protection theories, and Cato has now filed a pun-strewn amicus supporting the due process and equal protection claims [Ilya Shapiro and Matt Larosiere]
Ninth Circuit takes down PETA in monkey-selfie case
“The Ninth Circuit has now said we should not use animals as props in ideologically driven litigation.” [Ted Folkman, Letters Blogatory] In particular:
But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.
The footnote ends with a devastating indictment of PETA’s entire project:
Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” PETA seems to employ Naruto as an unwitting pawn in its ideological goals.
Earlier here.