Overlawyered: Chronicling The High Cost Of Our Legal System

Court strikes down overbroad Illinois ban on stalking/cyberstalking

Eugene Volokh:

Illinois “stalking” and “cyber-stalking” statutes criminalize (among other things),

  • “knowingly engag[ing] in [2 more or acts] directed at a specific person,”
  • including “communicat[ing] to or about” a person,
  • when the communicator “knows or should know that this course of conduct would cause a reasonable person to”
  • “suffer emotional distress,” defined as “significant mental suffering, anxiety or alarm.”

The statute expressly excludes, among other things, “an exercise of the right to free speech or assembly that is otherwise lawful.”

Despite that last exclusion, the Illinois Supreme Court struck down the provisions as unconstitutionally broad under the First Amendment. (The Cato Institute and the Marion B. Brechner First Amendment Project had filed an amicus brief). Shouldn’t Illinois lawmakers have known better? [People v. Relerford]

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Ontario lawyers resist mandatory promote-equality pledge

Lakehead University law faculty member Ryan Alford has filed a challenge to the new Ontario bar rule requiring all lawyers to prepare and submit personal “Statement of Principles” avowing their support for equality, diversity, and inclusion. The rules have drawn fire across Canada as compelled speech, but the bar association turned down a request that individual lawyers be allowed exemptions if they believe the requirement violates their conscience. I’ve got a write-up at Cato at Liberty noting the parallels with Model Rule 8.4 (g), adopted by the ABA in 2016, which makes a vaguely defined category of discriminatory conduct, including speech, the subject of discipline as “professional misconduct,” and which Texas Attorney General Ken Paxton warns would be unconstitutional if adopted into state regulation. I write:

The “Test Acts” were a series of enactments of England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.

Full piece here. More: Scott Greenfield.

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Best of Overlawyered — November 2017

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Delta: no more free-for-all on service animals

Following a series of safety incidents that included the mauling of a passenger last year by a 70-pound dog, Delta Air Lines has tightening its onboard policies on emotional support and other service animals, requiring additional documentation of their role and training and excluding some species altogether, including “‘farm poultry,’ hedgehogs and anything with tusks.” [Karin Brulliard, Washington Post/PennLive; earlier here, here, etc.] The carrier said there had been “a 150 percent increase in the number of service and support animals carried onboard since 2015.” [Alana Wise/Reuters] Employers are bracing for a rising number of demands to let employees bring service animals with them into the workplace, with the likes of the EEOC litigating in support [Patrick Dorrian, BNA/Bloomberg, earlier] And New York has joined a number of other states in passing a law against service animal fraud. [Kevin Fritz and John Egan, Seyfarth Shaw]

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Administrative law roundup

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January 24 roundup

  • Bryan Caplan and Arthur Brooks on international adoption, the Hague Convention, and Type I and Type II error [Caplan/EconLog, Brooks/NYT]
  • It’s about the pecking order: enrolling a 3-month-old chicken in a “distinguished lawyer” marketing program [Conrad Saam]
  • West Baltimore police checkpoints, Montgomery County rent control proposals, taxes, regulations, gerrymandering and more in my latest Maryland policy roundup [Free State Notes]
  • Also from me: with Oprah Winfrey in the news, I recall the time I was on her talk show [Frederick News-Post]
  • Yet more from me: as part of a Reason symposium on Trump’s first year, his administration’s centrist course on gay issues;
  • More work for age discrimination lawyers? “The New York Times is looking for young writers” for paid positions according to its ad [archived original, and updated current page with legally safer wording, via @jackshafer]
  • “Copyright Troll Gets Smacked Around By Court, As Judge Wonders If Some Of Its Experts Even Exist” [Tim Geigner, TechDirt]

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NYC police union may cut back courtesy cards

Patrick Lynch, boss of New York’s Patrolmen’s Benevolent Association (PBA), is reportedly slashing “the number of ‘get out of jail free’ courtesy cards distributed to cops to give to family and friends… to current cops from 30 to 20, and to retirees from 20 to 10, sources told The Post. The cards are often used to wiggle out of minor trouble such as speeding tickets, the theory being that presenting one suggests you know someone in the NYPD.” [Dean Balsamini, New York Post; also the topic of a discussion in our comments section]

Perfect New York touch: the anonymous griping in the Post comes from sources who complain that things aren’t corrupt enough in that cards aren’t being distributed as freely as before. The courtesy cards are sold on eBay for prices that can range up to $200, but awareness of their commercial availability is said to be one reason “plastic [lowest-level] cards are being honored less and less by officers.”

Alex Tabarrok quotes one source on “gold” (family member) and “silver” (most favored civilian) card levels, and another with extensive reflections on the workings of “professional courtesy,” which can include retaliation against officers who incautiously “write over the card” by ticketing someone with police connections.

Commentary from my colleague Julian Sanchez:

Think about the message these cards send to every officer who’s expected to honor them. They say that the law—or at least, some ill-defined subset of it—isn’t a body of rules binding on all of us, but something we impose on others—on the people outside our circle of personal affection. They say that in every interaction with citizens, you must pay special attention to whether they are members of the special class of people who can flout laws, or ordinary peons who deserve no such courtesy. They say that, at least within limits, officers of the law should expect to be able to break the law and not be punished for it. They say that a cop who has the temerity to hold another officer or their family to the same standards as everyone else is a kind of traitor who should expect to suffer dire consequences for the sin of failing to respect that privileged status. Moreover, they say that this is not merely some unspoken understanding—a small deviation from impartial justice to be quietly tolerated—but a formalized policy with the explicit support of police leadership.

Can we really be surprised, when a practice like this is open and normalized, that the culture it both reveals and reinforces has consequences beyond a few foregone speeding tickets? Should we wonder that police fail to hold their own accountable for serious misconduct when they’re under what amounts to explicit instructions to make exceptions for smaller infractions on a daily basis?

And Ed Krayewski:

The cards cut to the heart of the problem with public-sector unions: They create an environment where government employees who are supposed to ‘serve and protect’ the public instead get extra privileges. This is particularly dangerous with police unions, whose membership is armed by the state to enforce laws. Such unions regularly push for rules that protect bad cops.

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Best of Overlawyered — October 2017

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South Dakota v. Wayfair: can states collect sales tax from out-of-state merchants?

David Post at Volokh Conspiracy has written an explanation and defense of the Supreme Court’s holding, in 1992’s Quill v. North Dakota, “that a State may not require out-of-state sellers of goods or services to collect that State’s sales/use tax, unless the out-of-state seller has some ‘physical presence’ in the State – a retail outlet, warehouse, office, or the like” This term’s case of South Dakota v. Wayfair invites the Court to retreat from that holding. The Quill rule is often criticized for privileging online commerce unfairly over brick-and-mortar, but the contrary rule, says Post, would tend to do the reverse by sinking small online retailers under impossible regulatory burdens. A foretaste of those burdens:

South Dakota’s law, however, does not merely require her [an Idaho woman with a web storefront selling crafted iPhone cases] to collect South Dakota’s sales tax; it subjects her to the full range of South Dakota’s tax and regulatory jurisdiction, including the panoply of South Dakota’s licensing, recordkeeping, and registration requirements, and would, among other things, make her subject to periodic audit by the South Dakota Department of Revenue – which, in many States, requires an in-person appearance before the Revenue Board.

And of course if the Court discards the Quill rule and upholds South Dakota’s law, we can expect other jurisdictions to follow suit.

There are more than 6,000 taxing jurisdictions. Post argues that congressional action is needed, rather than a free-for-all of local taxing power.

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