- Fiasco of Cliven Bundy prosecution points up that even those who break the law are entitled to a fair trial. “In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. Unfortunately, this seems to be standard procedure for the FBI.” [James Bovard, USA Today; Mark Joseph Stern, Slate; earlier]
- Don’t undermine structural protection Double Jeopardy Clause provides against prosecutorial overreach [Jay Schweikert on Cato amicus brief in Currier v. Virginia] Case gives SCOTUS chance to reconsider “dual sovereignty” exception to Double Jeopardy Clause [Ilya Shapiro on Cato certiorari brief in Gamble v. U.S.]
- “The room he was in happened to fall within 572 feet of a park and 872 feet of a school,” within the 1000 feet set by Tennessee law, result misery [C.J. Ciaramella and Lauren Krisai, Reason (“Drug-free school zone laws are rarely if ever used to prosecute sales of drugs to minors. Such cases are largely a figment of our popular imagination.”)]
- Missed last spring: this challenge to the “Standard Story” of mass incarceration [Adam Gopnik on John Pfaff’s “Locked In”]
- Ignorance of the law is no excuse. But with law having proliferated beyond anyone’s grasp, perhaps it should be? [Stephen Carter, Bloomberg, earlier]
- Another study finds decriminalizing prostitution reduces sexual abuse and rape [Alex Tabarrok]
Brad Smith: looking back at the IRS targeting scandal
Brad Smith, a former commissioner of the Federal Elections Commission, in the Washington Examiner:
…what we are now seeing is an outright attempt to rewrite history so as to whitewash the entire affair. Newsweek has gone so far as to call the scandal “fake news,” with one of its columnists calling it “a lie.” A Dec. 29 editorial by the Washington Post claims that there was “mismanagement … but not deliberate targeting.”…
The IRS itself eventually conceded that of 199 cases analyzed under this “Be On the Look Out,” or “BOLO” program, approximately 75 percent [150] “appear to be conservative leaning, while fewer than 10 appear to be liberal/progressive leaning groups.” In other words, the fact that the terms the IRS used to pull applications for extra scrutiny — terms such as “Tea Party” and “patriot” — snagged a few liberal groups doesn’t mean that the purpose and effect was not to target conservative organizations.
As the basis for whitewashing the IRS scandal, Newsweek, the Washington Post, and others have turned to a new TIGTA report concerning a different IRS program altogether. That program, called “Touch and Go,” swept up a mix of conservative and progressive groups. But that is precisely because it didn’t target groups based on politics, which was the problem with BOLO. Nothing in the latest TIGTA report contradicts TIGTA’s 2013 report revealing the IRS targeting, and TIGTA doesn’t claim that it does.
“State police must rehire trooper who isn’t allowed to carry a gun”
“The Pennsylvania State Police must reinstate a trooper who is barred from having a gun because a female officer secured a protection from abuse order against him, a state appeals court has ruled.” One judge dissented, “arguing that Acord’s firing was justified since, without a gun, ‘he cannot perform the basic and essential duties for which he was hired as a trooper.'” [Matt Miller, PennLive]
In the mail: “The Tyranny of Metrics”
New from Princeton University Press and Catholic U. historian Jerry Z. Muller:
Today, organizations of all kinds are ruled by the belief that the path to success is quantifying human performance, publicizing the results, and dividing up the rewards based on the numbers. But in our zeal to instill the evaluation process with scientific rigor, we’ve gone from measuring performance to fixating on measuring itself. The result is a tyranny of metrics that threatens the quality of our lives and most important institutions. In this timely and powerful book, Jerry Muller uncovers the damage our obsession with metrics is causing–and shows how we can begin to fix the problem.
Filled with examples from education, medicine, business and finance, government, the police and military, and philanthropy and foreign aid, this brief and accessible book explains why the seemingly irresistible pressure to quantify performance distorts and distracts, whether by encouraging “gaming the stats” or “teaching to the test.” That’s because what can and does get measured is not always worth measuring, may not be what we really want to know, and may draw effort away from the things we care about. Along the way, we learn why paying for measured performance doesn’t work, why surgical scorecards may increase deaths, and much more. But metrics can be good when used as a complement to—rather than a replacement for—judgment based on personal experience, and Muller also gives examples of when metrics have been beneficial.
Also with an epigraph from Aaron Haspel: “Those who believe that what you cannot quantify does not exist also believe that what you can quantify, does.”
Update: “Judge determines couple with low IQs can parent both their boys”
“Four years after their son was first placed into foster care, a Deschutes County judge has determined that Amy Fabbrini and Eric Ziegler can parent both their boys.” The couple’s infant had been restored to them by a court ruling three weeks ago; now “4-year-old Christopher is on a track to come home as well. Both boys have spent nearly their entire lives in foster care based on the state’s concerns that Fabbrini and Ziegler were intellectually incapable of caring for their children,” though no abuse has been alleged. [Samantha Swindler, Oregonian; earlier]
Best of Overlawyered — September 2017
- “Utterly worthless,” “no better than a racket”: Subway sandwich settlement comes in for criticism at Seventh Circuit;
- Defamation suit after being called patent troll;
- Publishing a gun design online = arms export?
- Drug company hands patents over to Indian tribe;
- No, “The Star-Spangled Banner” is not an “ode to slavery” as some have mistaken it;
- “Public interest” lawyer sues to end bottomless brunches;
- “Starbucks robber to sue customer”;
- “Mouse attacked, traumatized me in Home Depot, woman says in suit.”
Save the date, Feb. 8: Lenore Skenazy speaking on the sex offender registry
Coming to Cato in Washington, D.C. noon Feb. 8, register or watch online:
You May Be a Sex Offender if…
Featuring Lenore Skenazy, Author and columnist, founder of Free-Range Kids; with comments by Dara Lind, Senior Reporter, Vox; moderated by Walter Olson, Senior Fellow, Cato Institute.
In 1994, responding to a terrible murder, Congress passed a law requiring all 50 states to set up sex offender registries. Now many states closely control where and with whom persons on the registries may live, while public maps showing offenders’ places of residence lead to social shunning and occasional harassment. They also scare parents from letting their children play outside.
But does the registry make kids any safer? Lenore Skenazy, the New York newspaper columnist famous for letting her 9-year-old son ride the subway alone and founding the “anti-helicopter parenting” movement, has found that offender maps have helped shape public perceptions of a society rife with child-snatching. That led her to other questions: Who gets on the list? Could you, or someone you love, wind up on the list? How about getting off it?
Lenore Skenazy has spoken around the world on the costs of irrational fears of risk to young people and is the president of the new nonprofit dedicated to overthrowing overprotection, Let Grow. Commenting on her remarks will be Vox senior reporter Dara Lind, who has written on how the registry system fits into the wider scheme of criminal justice sanctions and how it may affect recidivism.
A southern border wall: the eminent domain angle
“The federal government’s boldest land grab in a generation produced the first border wall — and a trail of abuse, mistakes and unfairness.” It happened back in 2007. [T. Christian Miller, ProPublica, and Kiah Collier and Julián Aguilar, Texas Tribune; related, Ilya Somin]
Wage and hour roundup
- Among this administration’s most notable accomplishments — hurrah for Labor Sec. Alex Acosta and team — is to ditch its predecessor’s horrible overtime rules [Juliet Eilperin, Washington Post on opinion letters and internships] DoL rollback of Obama rules on tip pooling is fully justified [Christian Britschgi]
- “A Seattle Game-Changer? The latest empirical research further underscores the harm of minimum wage laws” [Ryan Bourne, Regulation mag] “Report: California’s $15 Minimum Wage Will Destroy 400,000 Jobs” [Scott Shackford]
- It just couldn’t have been Ontario premier Kathleen Wynne’s fault that some donut-franchise workers saw benefits and breaks trimmed after a minimum wage hike. “Instead, she attacked the employers.” [David Henderson; Robyn Urback/CBC and May Warren/Toronto Metro on changes by owners of some Tim Horton outlets]
- Study: grocery stores hike prices when minimum wage rises, “poor households are most negatively affected” [Tyler Cowen on Renkin, Montialoux, and Siegenthaler paper] New York enacts a minimum wage law applying to restaurant chains with at least 30 outlets, and presto-change-o, some upstate pizzerias have new names and are now separate businesses [Geoff Herbert, Syracuse.com]
- “Employer Responsibilities under the Fair Labor Standards Act After a Disaster” [Annamaria Duran, SwipeClock, promotional material for software product but informative even so]
- If lawsuits succeed in forcing ridesharing into employment mold, many will find it less attractive to earn money by driving [Coyote]
“Split up the Ninth Circuit—but Not Because It’s Liberal”
Arizona Attorney General Mark Brnovich and Ilya Shapiro on the case for breaking up the overburdened, overbusy Ninth Circuit, which can be made independently of the usual ideological concerns [Cato/WSJ] Because of the Ninth’s unique practice of forming en banc panels by randomly selecting 11 of its 29 judges rather than summoning the full number, I’ve referred to it in the past as “the court that’s not all there.”