Overlawyered: Chronicling The High Cost Of Our Legal System

Unions explore ways to dodge Janus in advance

In the pending Janus case, the Supreme Court may recognize a First Amendment right of government workers not to be obliged to pay mandatory union dues as a condition of employment, while not disturbing the situation for private sector employees, who have no such First Amendment right. Presto, an opening for union subterfuge involving pretend privatization of the government jobs:

The unions’ version is to create and insert between government and employees sham “private” units to handle human resource and payroll functions and, thereby, assume the role of “legal employer.”

Ironically, some of the first groups of unionized employees to be targeted for such a strategy are in sectors where public-employee status had itself been a subterfuge: independent home health care workers paid with state moneys who had only been declared public employees in the first place as a way to herd them into unions. With the new twist, these independent workers could thus have been reclassified twice: first from private to public so as to allow the fiction of a single employer and coverage by pro-union state policy, and then from public to private to avoid the constitutional protections that would ordinarily accompany work for a public employer. [Red Jahncke, New London Day and earlier The Hill.)

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The gun research ban that wasn’t

From a new Trevor Burrus article on which policy ideas might significantly reduce firearms death rates, and which almost certainly won’t:

Allow the CDC to make recommendations for gun reform: First of all, the CDC is not “banned” from studying gun violence. Here is a 110 page CDC study on gun violence from 2013. The CDC is banned from advocating or promoting gun control, which makes sense because such advocacy is not science. Advocacy from the CDC is problematic, such as when it advocates state-controlled liquor sales, and the imprimatur of the CDC can confuse as well as illuminate.

David Harsanyi has more on the supposed research ban that wasn’t. And Ilya Shapiro responds to former Justice John Paul Stevens’s proposal that the Second Amendment be repealed. [Washington Examiner]

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Update: habeas corpus claim for elephants “wholly frivolous on its face”

Updating a November post: a judge has rejected a habeas corpus petition filed by Steven Wise’s Nonhuman Rights Project against a small Connecticut zoo on behalf of three elephants. Ted Folkman, Letters Blogatory:

The judge held that under Connecticut law, at least, it’s necessary for the next friend to have at least some relationship with the real party in interest. Here there was no relationship between the NhRP and the elephants. Indeed, as the judge observed, the people with the real relationship with the elephants were the zookeepers—the people who were being sued! …I don’t think standing is the key issue here. But the judge’s discussion does raise the question of why one would think that Steven Wise has any more right to represent the interests of these elephants than do the people who know the elephants best. This illustrates one of the real problems with Wise’s crusade: it’s an attempt to use the courts for essentially legislative purposes, and the “client” is a mere fiction or pawn. …

Why does the the NhRP focus on trying to get a court to declare that highly intelligent animals are persons with rights, instead of trying to pass improved animal cruelty laws or even trying to pass more radical statutes, e.g., a law making it illegal to own or keep elephants, say? A cynical view is that if you pass general criminal laws, then when someone violates the law, the government takes the initiative to prosecute the offenders. But if the way we protect animals going forward is through litigation with the animals as plaintiffs, then there will be a regular role for the NhRP in conducting litigation and in shaping the outcomes of particular cases. … [They] will always need the ‘help’ of the lawyers.

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March 28 roundup

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New Yorker on Stand Your Ground

A big piece by Mike Spies in the New Yorker on the history of Florida as a battlefield on gun issues asserts that 1) Florida enacted the nation’s first Stand Your Ground law in the early 2000s, and broadly hints that 2) the law resulted in a jury’s 2013 acquittal of George Zimmerman in the killing of Trayvon Martin.

Is that so? Though both points are often claimed, as we’ve pointed out in the past, neither stands up to scrutiny. As Peter Jamison of the Tampa Bay Times noted in this 2014 piece, the “truth is that Florida did not pioneer the controversial rules” abolishing duty-to-retreat in favor of Stand Your Ground; many states had long since done so through case law development. Much more on the legal background in Ilya Shapiro’s 2013 Senate testimony, which points, for example, to a unanimous U.S. Supreme Court decision from 1895. (Florida’s statute did introduce new procedural protections at the charge stage for defendants, which is a different matter.)

Meanwhile, Zimmerman’s acquittal came after his lawyers advanced a conventional self-defense theory as opposed to one rooted in Stand Your Ground.

The magazine’s celebrated fact-checking system does not seem to have functioned well in this case.

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Climate change litigation roundup

  • Wearing two hats: mayor of Imperial Beach, Calif. suing oil companies is also with an environmentalist group [Ben Wolfgang, Washington Times] “Cross Examination Is Going To Be Brutal” given local officials’ earlier statements [Karen Kidd, Forbes, citing Richard Epstein]
  • Municipalities’ suits ignore important goal of California law “that emissions should be reduced, not simply shifted out of state due to high costs and burdensome regulations” [Dorothy Rothrock (CMTA), Sacramento Bee]
  • Washington Legal Foundation webinar on public nuisance suits with Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP;
  • “Schwarzenegger to Sue Big Oil for ‘First Degree Murder’” [Edward Isaac-Dovere, Politico]
  • “What is a non-mood-affiliated way to get up to speed on climate change issues?” [Tyler Cowen and commenters; brief Cowen explainer on mood affiliation]
  • “Whether it is lawsuits against opioid manufacturers or lawsuits against oil companies, public policy should be crafted in the statehouse, not the courthouse.” [David Yates, Southeast Texas Record]

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Occupational licensure reform advances

“The Latest On Occupational Licensing Reform: At the federal level and in the state of Michigan, there have been encouraging moves toward market liberalization.” [Thomas A. Hemphill and Jarrett Skorup, Cato Regulation mag] Related: George Leef, Regulation (reviewing “Bottleneckers” by William Mellor and Dick M. Carpenter II). “Florida Lawmakers Are Fast-Tracking Licensing Reforms” [Boehm] “But sadly Elias Zarate is no closer to being a barber, because he still doesn’t have a high school diploma. And, yes, that matters for some reason.” [same] “Inside the Insane Battle Over Arizona’s Blow-Dry Licensing Bill” [same] “Tennessee has imposed nearly $100K in fines for unlicensed hair braiding since 2009” [Debra Cassens Weiss, ABA Journal] Licensing bars on applicants with criminal histories, often related hardly at all to the risks of crime in licensed occupations, make re-entry of offenders harder [Arthur Rizer and Shoshana Weissmann, The Blaze] A Twitter thread on board certification of music therapists, which are licensed in 10 states [Shoshana Weissmann et al.] Study: “optician licensing appears to be reducing consumer welfare by raising the earnings of opticians without enhancing the quality of services delivered to consumers.” [Edward J Timmons and Anna Mills, Eastern Economic Journal]

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Liability roundup

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Lawsuit challenges Methodist resort’s “church attenders only” bylaws

Bay View, Michigan, is one of many Methodist-founded resorts from the Chautauqua tradition, among the better-known of which are the ones at Ocean Grove, N.J. and Chautauqua, N.Y. Now it is the target of an ACLU-backed lawsuit claiming that its bylaws, which permit only “practicing Christians” to own property, are unlawful. One of the claims in the lawsuit is that Michigan cannot properly under the First Amendment delegate certain public services, like those of a police force, to the association within its boundaries. But (I’m quoted as saying) as recently as 2002 a court ruled that it was not improper for a Christian college in Michigan to have police powers delegated to it for campus security, even though the college, like Bay View, was under bylaws requiring that it be controlled by religious believers. A second claim in the lawsuit, invoking the federal Fair Housing Act, may have a clearer path forward, because courts have been inclined to read narrowly rights of autonomy of religious institutions, especially entities like Bay View that are not as closely tied to church functions as those of, say, a monastic retreat might be. Tracy Schorn, DC_Bar]

My parting shot: “Certainly, Bay View is out of step with modern sentiment, and I can’t predict to what extent the courts will tolerate that. I will say this, however: If the courts turn Bay View into just another secular homeowner’s association, the result will be not more but less diversity overall in Michigan and in resort options.” [

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Michael McConnell on the Masterpiece Cakeshop case

The Stanford law professor has penned “Dressmakers, Bakers, and the Equality of Rights” for the forthcoming volume “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018). [SSRN, Volokh] Abstract:

Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.

Earlier on Masterpiece Cakeshop here.

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