- Big news: U.S. Department of Justice changes sides in Lucia v. SEC, challenge to constitutionality of SEC use of administrative law judges [Thaya Brook Knight, Cato; Knight and Ilya Shapiro in August; Kevin Daley, Daily Caller]
- Cyan v. Beaver County Employees Retirement Fund, oral argument Nov. 28: SCOTUS considers limits on securities class actions in state courts [Washington Legal Foundation]
- GAO: 2013 financial-agency guidance on leveraged lending was in effect a rulemaking, but wasn’t submitted to Congress as required. Time for review [Michelle Price, Davide Scigliuzzo, Reuters]
- Missed, from last March: shareholder class action lawyers suing Sprint sought to charge for 6,905 hours of work by (as it turned out) disbarred attorney [Joe Palazzolo and Sara Randazzo, WSJ; Doug Austin, eDiscovery Daily Blog]
- Joseph Stiglitz would like to outlaw Bitcoin [Jim Epstein, Reason]
- Bad idea watch: “Chicago Council Considers Banning Cashless Stores” [Charles Blain, Market Urbanism Report]
Attorney rebuffs Trump’s Fire and Fury cease-and-desist
Recommended: Attorney Elizabeth McNamara of Davis Wright Tremaine, a law firm known for its media defense practice, wrote this three-page letter on behalf of publisher Henry Holt and author Michael Wolff responding to Donald Trump’s letter demanding that it not publish Wolff’s book Fire and Fury (“My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”). How strong are the President’s claims based on contractual non-disclosure and non-disparagement clauses? David Post has a few things to say about that [Volokh Conspiracy] As for Mr. Trump’s possible defamation claims, American courts will not ordinarily enjoin a defamatory publication unless the fact of defamation has been proven at trial, so any remedy he may have will need to be after-the-fact in any case. “The suggestion that Donald Trump would actually follow through on this latest of his many legal threats, much less win…. is the hootworthy part.” [Lowering the Bar]
Addressing a cabinet meeting on Wednesday, the President once again called for changing libel laws to make it easier for plaintiffs to win, although libel is a matter of state rather than federal law [Gregory Korte and David Jackson, USA Today] Irony watch, from last month: “Trump’s statements ‘too vague, subjective, and lacking in precise meaning’ to be libelous,” in suit by political strategist who was the target of future President’s tweets in February 2016 [Eugene Volokh] “Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career,” I noted in this space last year. “Mr. Trump’s supporters should also keep in mind that one day they too will want to criticize a public official without being punished for doing so.” [John Samples, Cato]
January 10 roundup
- Supreme Court takes Maryland gerrymander case to go with the Wisconsin one, Gill v. Whitford, on which it’s already heard oral argument [Benisek v. Lamone] I joined Andrew Langer on WBAL Baltimore’s C4 show to discuss the development [listen] More: Linda Greenhouse, NYT and generally;
- Self-recommending: Kevin Underhill at Lowering the Bar is out with his top posts of 2017 and they include “Guy Who Got a C on Constitutional-Amendment Paper Gets Constitution Amended,” “Judge Rejects Man’s Claim to Be ‘Some Sort of Agricultural Product‘,” and “It Is Not Illegal to Drive With an Axe Embedded in the Roof of Your Car”;
- Guess who’s supporting “CPSIA for cosmetics” bill, the same way the largest toymakers supported the original CPSIA fiasco? Right [@GabrielRossman on Twitter; earlier on “Personal Care Products Safety Act” and its predecessors]
- Good. Now eliminate it entirely. HUD suspends until 2020 Obama-era “Affirmatively Furthering Fair Housing” (AFFH) program [Emily Badger and John Eligon/New York Times, earlier]
- New conspiracy-minded attack on foodmakers’ use of sugar is led by Stanton Glantz. Yes, that Stanton Glantz [Allison Aubrey/NPR, Vaping Post April, our earlier coverage]
- “Five Below, Trendy Retailer, Sues 10 Below, Ice Cream Seller, For Trademark Infringement” [Timothy Geigner, Techdirt]
Virginia Postrel (and Catherine Deneuve) on harassment law
As workplace expectations change in response to the #MeToo scandal, there is no point in hoping that some new set of norms will emerge that avoids exclusionary “you don’t belong” signals to some workplace participants: “Whatever new norms emerge will also exclude people, and not all of those cast out will be bullies, predators, or, for that matter, men. All norms draw lines. Norms that police speech and attitudes, as opposed to physical actions, are particularly likely to snare violators whose deviance is unconscious or benign.” [Bloomberg View]
Meanwhile, in France: “The letter [from revered actress Catherine Deneuve and ‘around 100 French women writers, performers and academics’] attacked feminist social media campaigns like #MeToo and its French equivalent #Balancetonporc (Call out your pig) for unleashing this ‘puritanical… wave of purification’.” [AFP; France Culture interview with Sarah Chiche (in French); Le Monde open letter reprint (in French)]
Police roundup
- Attitudes on law enforcement now function as culture war rallying point and vehicle of identity politics on both sides [Dara Lind] Good news on officer safety: “Line of duty deaths this year approached a 50-year low” [Ed Krayewski]
- SWAT deployment and police militarization — in rural Western Massachusetts [Seth Kershner, Valley Advocate] Trump still wrong on this issue [Eric Boehm]
- Would it be easier to address America’s high rate of fatal shootings by police if the focus were allowed to slip off race for a moment? [Conor Friedersdorf]
- Neighborhood police checkpoints employed in West Baltimore for several days in November, yet in 2009 DC Circuit, via conservative Judge Sentelle, found them unconstitutional [Colin Campbell and Talia Richman, Baltimore Sun; Elizabeth Janney, Patch]
- What should be done to address rising crime rates? Federalist Society convention panel video with Dr. John S. Baker, Jr., Heather Childs, Adam Gelb, Hon. Michael Mukasey, George J. Terwilliger III, moderated by Hon. David Stras;
- In Collins v. Virginia, Supreme Court has opportunity to reaffirm that home is truly castle against police search [Cato Daily Podcast with Jay Schweikert and Caleb Brown]
Seattle: beverage tax backers on sugar high
THEY ARE NOT MESSING AROUND WITH THE NEW SUGAR TAX IN SEATTLE pic.twitter.com/xqmj7940y2
— hayden ? (@HaydenBedsole) January 5, 2018
The city of Seattle has now put its stiff new 1.75 cents per ounce tax on sugary beverages (text of bill) into effect, and Costco managers in the tech city, much to their credit, have not hesitated to post signs informing shoppers of its impact. According to a reporter’s photo, the sign atop a Gatorade Frost Variety Pack lists the regular Costco price of $15.99 along with $10.34 in newly added Seattle tax for a total of $26.33. Helpfully, an adjacent sign advises shoppers that the same item “is also available at our Tukwila and Shoreline locations without City of Seattle Sweetened Beverage Tax.”
Following KIRO7 News coverage of the story, Scott Drenkard of the Tax Foundation wrote a funny Twitter thread on the positions taken by the various advocates:
- “First they interview people at the Costco who are rightfully shocked at how high prices on soda and sports drinks are now (they are almost doubled).”
- “Then they interview a public health advocate who says ‘that’s right! We want these prices to change people’s behavior and slow sales!’”
- “Then they talk to the consumer, ‘think you’ll change your behavior, maybe even shop somewhere else?’ And she’s like, ‘ya the Tukwila store is close enough.’ Then they ask a city council member if this will hurt local biz, who says ‘there is no data’ suggesting that.”
- “Then the SAME public health advocate says that people won’t respond to price increases, shopping elsewhere because it isn’t ‘worth their while.’”
- “You can’t have it both ways people! The tax is either big enough to elicit behavior change, which would slow sales and hurt local biz and potentially reduce calories, or it isn’t. Get your stories straight!”
In 2016 I wrote about Philadelphia’s soda tax that “while all taxes are evaded to some extent, excise taxes are especially subject to evasion based on local geography”, and followed up on the Philly measure’s possible openings for unlawful evasion and eventual public corruption. Seattle authorities intend to use the hoped-for $15 million revenue stream to fund various causes and organizations including an effort to bring fresh fruits and vegetables to urban neighborhoods, even though the once-voguish “food deserts” theory blaming dietary choices on the retail environment has sufferedone debunking after another in recent years. [cross-posted and expanded from Cato at Liberty]
P.S. I used to see this constantly from trial lawyers and their advocates on the question of whether it was a good thing for liability insurance rates to rise reflecting the big liberalization of tort recovery that was going on when I wrote The Litigation Explosion. Higher rates were socially desirable, they would say, because they would expose and discourage dangerous actors, such as incompetent doctors and drivers. There followed a big public reaction when it turned out it was not so easy to pick out bad apples ahead of time and that entire specialties like obstetricians and neurosurgeons were having to pay massive premiums. They then switched to the position that there was no connection between expected future payouts and liability premiums, that the problem was insurance companies being greedy, and that liability insurance rates should be frozen by law.
P.P.S. “Philadelphia implemented a 1.5-cent tax on soda in January of last year. …By August, the marketing firm Catalania found a 55 percent decline in the sale of carbonated soft drinks within the city limits — and a 38 percent jump in stores just outside of Philadelphia. Revenue from Philadelphia’s soda tax has also proven disappointing, coming in at $7 million below projections for fiscal year 2017.” [Christian Britschgi, Reason]
Best of Overlawyered — June 2017
- More tales of motorist-beware Tenaha, Texas;
- Indigenous advocates propose UN measures to make cultural appropriation illegal worldwide;
- “Man who jumped from ambulance says it’s New York City’s fault”;
- Tenants of London’s ill-fated Grenfell Tower “repeatedly complained about safety concerns; their landlord hired a lawyer who threatened to sue them for libel.”
- 4 x 4 lumber isn’t really four by four in dimensions, and if that comes as news to you, you might be a class action plaintiff;
- From 1890s to 1920s: “The Forgotten War on Chinese Restaurants.”
- Eleventh Circuit: “the practical problems with suing a dog are virtually endless.”
Marijuana, federalism, and law enforcement
Attorney General Jeff Sessions has rescinded an earlier Justice Department memo which had prescribed a hands-off approach to enforcing some aspects of the federal ban on marijuana in states that have legalized the drug for medical or recreational use. A needless step backward for federalism and state autonomy, or a necessary implication of the rule of law and the associated geographical uniformity of federal law? Some commentaries: Ken White/Popehat; Jacob Sullum (“Although [the] move reflects Sessions’ well-known opposition to marijuana legalization, it is not clear how big an impact it will have on the cannabis industry, because federal prosecutors have always had broad discretion but limited resources in this area”); Jonathan Blanks (“This move endangers state-legal businesses and violates the principle of federalism that has been central to the Republican Party for decades”); Jonathan Adler; Ilya Somin; Jeffrey Miron (“Marijuana liberalizations (decriminalization, medicalization, and legalization) have generated none of the negatives asserted by Sessions [who compares the drug to opiates and links it to violence]; in fact, the evidence shows minimal impact on use, health, traffic safety, education, or crime”).
“The Case for Protecting Commercial Speech”
Cato podcast: “Should commercial speech receive diminished First Amendment protection? Martin Redish of Northwestern Law School made his case at the Cato Institute’s conference on the First Amendment.” We linked Prof. Redish’s Cato Policy Analysis on the subject last summer.
Des Moines Register on disabled “dog lawyer”
A disabled attorney known for filing dozens of suits against animal control authorities, and for frequent courtroom clashes with judges as well as a wide range of other adversaries, is the subject of a Des Moines Register profile. “In recent weeks, McCleary launched a multi-pronged effort to block the publication of this article.” He has sought accommodations for courtroom conduct under the Americans with Disabilities Act. Despite the run-ins, his “license to practice law is spotless, with no record of any public disciplinary action taken by the Iowa Supreme Court.” [Clark Kauffman, Des Moines Register; Insurance Journal (public records request indicates insurers for city of Des Moines paid him $2.1 million following claim of head injuries from falling garbage can)]