Overlawyered: Chronicling The High Cost Of Our Legal System

A Baltimore cookie drama, in two acts

Act I: In a widely read Nov. 15 piece in Atlas Obscura, Priya Krishna reports on “the quest to save Baltimore’s Berger Cookie,” a beloved local food institution. “One of the most essential ingredients in the Berger Cookie is trans fats. Trans fats are what make the chocolate super creamy, prevent the fat and the water in the dough from separating (which would yield an overly crumbly cookie), and keep the cookie stable in both very warm and very cold settings.” However, the Obama administration enacted a federal ban on trans fats — for your own good, you know — which goes into effect next year.

Cookie producer Charlie DeBaufre, interviewed by Krishna, “refers to the past year as ‘frustrating and scary,’ as so many of his trans fat-free experiments have been failures. ‘I have spent $10,000 trying to get this worked out. I am not a big business. I don’t have an R&D Department. I have to shut down production for a few hours, still pay people for labor, and then most of the product gets trashed. It’s tough.'” More background in a piece I wrote for Cato last week.

Act II: Then a twist, reported by Sarah Meehan in the Baltimore Sun Nov. 21: the fudge supplier had managed to replace trans fats months ago and didn’t tell Berger’s. While early attempts to reformulate fudge frosting without trans fats had suffered from various quality defects, the new recipe was much improved to the point where neither consumers nor Berger’s had noticed.

So a happy if unexpected ending, at least for this one company, right? But the regulatory downside — you just knew there had to be one — was that in changing its recipe the fudge supplier had added more sugar, which appears to have boosted the calorie count and might have changed other things reported in the Nutrition Facts box as well. Since Berger’s says it didn’t know about the new formula, one inference might be that for a while it has been shipping cookies with a faulty calorie/nutrition count on the package. Hello to class action woes and, if the FDA is in a bad mood, regulatory liability?

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November 29 roundup

  • Will it ever end? “Monkey Selfie Photographer Says He’s Now Going To Sue Wikipedia” [Mike Masnick, TechDirt, earlier]
  • Justice Thomas argues Indian Reorganization Act is unconstitutional [Upstate Citizens for Equality v. U.S., land-into-trust, dissenting from denial of certiorari]
  • “How much does it cost to reimburse a probation officer for $60 pants? About $4,300, so far” [John Beauge, PennLive]
  • On Gill v. Whitford, partisan gerrymandering, and the uses of math in law [Erica Goldberg]
  • Brazil makes progress on fighting corruption, advancing rule of law [Juan Carlos Hidalgo on new Cato policy analysis by Geanluca Lorenzon]
  • “Activision are fighting a [trademark] for ‘Call of DooDee’, a dog-poop-removal service” [PC Games]

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Crime and punishment roundup

  • Drivers’ license should signify ability to drive motor vehicle safely. Denial for miscellaneous arm-twisting reasons – e.g. child support – is bad policy. [Beth Schwartzapfel, Marshall Project (“43 states suspend driver’s licenses for unpaid court debts, but only four require a hearing beforehand to determine whether the failure to pay is willful or simply a reflection of poverty.”); Jessica Silver-Greenberg, Stacy Cowley and Natalie Kitroeff, NYT (“Twenty states suspend people’s professional or driver’s licenses if they fall behind on [student] loan payments, according to records obtained by The New York Times.”)] Earlier here (tax delinquents in New York), here, here, here, etc.;
  • Under centuries of precedent, bail must be individualized as well as not excessive [Ilya Shapiro on Cato amicus in Walker v. City of Calhoun, Eleventh Circuit] And my piece on Maryland’s botched bail reform is now available ungated at Cato;
  • Harvey Silverglate recounts an old tale of prosecutorial entrapment — starring Robert Mueller, then acting U.S. Attorney in Boston [WGBH]
  • Criminal justice, mass incarceration, and the libertarian cause: Radley Balko’s speech on winning Bastiat Award [Reason]
  • “The Troubling Expansion Of The Criminal Offense Of Obstructing The IRS” [Kathryn Ward Booth, Vanderbilt Law]
  • Murder rap for drug supplier after overdose distorts both criminal law principle and incentives [Scott Greenfield, earlier here and here, see also here and here (prescribing doctors)]

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Cosby accuser can sue Martin Singer over demand letter

When might libel lawyers face liability themselves for sending threat letters? Perhaps more often than had been assumed. Eriq Gardner, Hollywood Reporter on a new ruling in the Bill Cosby case (“Not only is Marty Singer being dragged back as a co-defendant in this lawsuit, but Dickinson is being allowed to sue Cosby over statements to media outlets. No litigation privilege attaches when demand letters are merely bluffs.”) Related: Max Kennerly, 2013.

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Free speech roundup

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Podcast: interviewed on think tanks and the policy world

Check out this 17:23 podcast in which I’m interviewed by Patrick Hanes of Maryland’s WFRE. He wanted to know about think tanks, in particular, and our conversation led on to how those nonprofit groups affect the policy conversation, how Cato and other think tanks are adapting to changes in media formats and public consumption of information, my own background, and why I recommend the study of economics to every student.

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Critics call Kansas legislative process opaque

“Kansas’ legislative process is among the least transparent in the country, often cutting the public out of debates and making it difficult for constituents to track bills, let alone determine who sponsored them.” A popular tactic is the “gut-and-go,” in which a bill is sent to the floor with its original content deleted and unrelated matter substituted, which can result in the bringing to a quick floor vote of legislation that has bypassed the committee hearing process and public attention. The maneuver turns up in some other states as well, under nicknames like “gut and stuff” and “gut and amend.”

Also: “In Kansas, unlike most other states, nearly all the laws passed stem from bills whose authors are anonymous. All but six of the 104 bills that became law this year — a whopping 94 percent — were introduced by committees, with no sponsors identified. That means Kansans don’t know who pushed the measures and why.” [Judy L. Thomas and Bryan Lowry, Kansas City Star]

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“Robot Patrols Grocery Store to Prevent Slip-and-Falls”

Marty, a robot, patrols the aisles in a Giant food store in Pennsylvania, part of a test program of a technology developed by a Kentucky company. “The robot is equipped with scanners so he doesn’t bump into displays or shoppers. He also has several internal cameras that reach about three fourths of the way down aisles,” a manager for Ahold USA said. “The robot’s main job right now is to scan for trip or slip hazards on the floor,” which can reduce liability payouts not only by aiding rapid cleanup of spills, but also by documenting that the site of a spill had not been the scene of a slip hazard for very long, reducing the chance of a finding of liability. [Sue Gleiter, PennLive via TortsProf/Robinette]

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Publisher: we’re canceling book on influence of Chinese government in Australia

Allen & Unwin, the publisher, says it does not plan to publish a book by Charles Sturt University academic Clive Hamilton called Silent Invasion, on the influence of the Chinese government in high places in Australia. Hamilton says the publisher has privately communicated to him that it is afraid of facing defamation lawsuits should it go forward. [Andrew Greene, Australian Broadcasting Corporation]

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