- In Mississippi, a “mother has been forbidden from any contact with her newborn for 14 of the 18 months the child has been alive” because of unpaid misdemeanor fines [Radley Balko, WLBT/MSNewsNow; judge has now resigned, but similar practices reported to be common] Is Biloxi going to do better? [ABA Journal]
- “They … didn’t give it back”: outrageous tales of asset forfeiture from Alabama [Connor Sheets, AL.com]
- Efforts afoot in Lansing to write down nearly $595 million in unpaid Michigan drivers’ fees [Chad Livengood, Crain’s Detroit Business] Warren, Mich., residents invited to turn in neighbors on suspicion, win bounties from forfeiture funds [Scott Shackford]
- Ethical red flags: maker of heroin-cessation compound “marketing directly to drug court judges and other officials.” [Jake Harper, NPR]
- In Craighead County, Arkansas, private probation firms sue judges who cut them out of the process [Andrew Cohen, The Marshall Project]
- From Ohio “mayor’s courts” to asset forfeiture, prosecution for profit imperils due process [Jacob Sullum]
Turning the legal screws on retail wine-over-the-net
The powerful alcohol wholesalers’ lobby has been putting the legal squeeze on consumers’ access to retail wine across state lines. I explain in a new Cato post.
More: Also possibly relevant, this 2012 paper by Omer Gokcekus and Dennis Nottebaum, abstract:
This study develops thirteen criteria to detail diverging direct shipping laws of the U.S. states. It also investigates why some states have prohibitive laws by utilizing a logit regression model. Regression results provide strong support for public finance and special interest arguments: It appears that states concerned about incurring losses in tax revenues, that is, that are heavily dependent on federal aid and have low state revenues, and protecting the wholesalers and retailers that benefit from the three-tier system (at the expense of wineries and wine drinkers) are most likely to have a prohibitive law.
DoJ subpoenas Twitter accounts that were tweeted at
This one is weird: “Because Shafer Tweeted a smiley emoji at us, the DOJ wants identifying information on our accounts since creation. It’s a bit…overbroad.” [Keith Lee/Associates Mind, Ken at Popehat, Mike Masnick/TechDirt]
Tales of discovery: document request in qui tam case
And speaking of discovery, reader W.C. writes to say:
This is a False Claims Act case. I am not terribly interested in the substance (relators claim that a drug was recommended for off-label use and that Medicaid shouldn’t have paid for it; they complained and were fired).
What is interesting is taxable costs. Fifth Circuit affirmed (finding no abuse of discretion for an award of) $232,809.92.
Money quotes for me: “The district court acknowledged that [Defendant]’s invoices were not detailed but explained that, given nearly three million pages of copies [Defendant] produced for its defense in this case, it would have been impossible for [Defendant] to explain each page’s usefulness.” (emphasis added). The Court also allowed for “costs relating to (1) TIFF image conversion, (2) scanning, (3) formatting electronic documents, and (4) PDF conversion – per [28 U.S.C.] § 1920(4), which allows recovery for ‘exemplification’ and ‘making copies’ of case materials,” and confirmed that the district “allow[s] a prevailing party to recover the costs of complying with an opposing party’s request to reformat electronic documents or scan hard copies of documents” under 28 USDC s 1920.
Lessons: (i) You might want to more narrowly tailor those discovery request; (ii) Defendants had asked for $961,380.52, so maybe the back up the truck strategy was not 100% effective.
Co-pay mechanism would improve discovery incentives
“Skin in the Game: A Proposed Co-Pay Requirement for Discovery-Requesting Parties” by Robert D. Owen and Francis X. Nolan, WLF, excerpt:
Economics teaches that underpriced commodities are inevitably overconsumed. This truth has become increasingly evident in the world of large-litigation discovery over the last decade. Requesting parties (typically plaintiffs) are not effectively limited by outside forces to moderate the breadth of the discovery, nor are they incentivized to curb excess demands. Discovery is currently free to requesting parties, and judges have limited time to mediate and resolve inevitable discovery disputes. Accordingly, discovery has spun out of control….
This Legal Backgrounder first explains how litigation has reached the current tipping point, and then offers examples of recent attempts by the Committee and the judiciary to push back against rising discovery costs. The publication concludes by offering a basic outline for a percentage-based requestor-pay rule, while also noting the advantages and hurdles attendant with such a proposal.
Campus free speech roundup
- Many elements of First Amendment doctrine are applicable not at all to private universities and only in substantially modified form to public campuses. True enough, but few go as far in arguing this as does Yale’s Robert Post [Vox, Erwin Chemerinsky response, Will Creeley (FIRE) response, Post response to Creeley]
- Rundown of shout-downs: state representative kept from speaking at Texas Southern’s Thurgood Marshall Law School [Caron/TaxProf, Greenfield] University of Oregon president’s annual state-of-university speech [Oregonian] Pro-Trump hecklers shout down California Attorney General, assembly majority leader at Whittier College [Adam Steinbaugh, FIRE] College Republicans disrupted at UC Santa Cruz, not for inviting someone controversial, just for being them [Celine Ryan/Campus Reform, John Sexton/HotAir]
- Threats of violence against journal editors are one way to get a retraction [Sara Hebel/Chronicle of Higher Education, Jerry Coyne, Oliver Traldi, Quillette (Bruce Gilley, “Case for Colonialism” paper)]
- “New policy authorizes University of Wisconsin to expel students for repeatedly disrupting speakers” [ABA Journal] Will the new rules themselves improperly restrict speech? [Howard Wasserman, Joe Cohn/FIRE first and second posts]
- Debate over proposal by Rep. Anthony Brown (D-Md.) to prohibit “hate speech” on campus [Andrew King vs. Chris Seaton, Simple Justice]
- Federal court agrees that Title IX does not oblige university to ban (now-defunct) student gossip anonymous messaging app Yik Yak [Adam Steinbaugh, FIRE]
Florida law firm sanctioned; many clients had not authorized it to sue
Federal judges have fined the Jacksonville law firm of Farah & Farah $9.1 million over improperly handled claims against a fund set up after litigation to compensate smokers in the state of Florida [WTLV/First Coast News]:
The judges’ order states 1,250 frivolous tobacco claims were filed by Farah & Farah and the Wilner Firm against the Engle Trust Fund….
…cases filed collectively by Jacksonville attorneys Charlie Farah and Norwood Wilner prompted a U.S. Attorney Special Master seven month investigation into possible misconduct in 2012.
The investigation revealed some cases filed by the attorneys were for deceased clients, non-smokers, those who did not suffer from one of the required diseases, and 572 that did not authorize the attorneys to file lawsuits on their behalf.
More: Glenn Lammi.
NYT on web accessibility suits
At the New York Times, Vivian Wang covers one of our regular topics around here, the wave of ADA lawsuits over website accessibility. Among the latest targets of these suits: colleges and universities.
Since January 2015, at least 751 lawsuits have been filed over the issue. The vast majority have focused on retailers and restaurants, according to a legal blog that tracks such suits.
A single plaintiff, however, has now sued eight New York-area colleges and universities, including Fordham University and Long Island University.
Some disability rights advocates, acknowledging the charges that some lawyers are just looking to cash in, have distanced themselves from the suits.
“We do not condone just filing a blizzard of lawsuits in order to get settlements. That’s not solving the underlying problem,” said Chris Danielson, public relations director for the National Federation of the Blind. His organization has pushed instead for clearer federal guidelines on web accessibility.
Relatedly, John Stossel covers Berkeley’s liability-driven removal of free public online course materials (“A third threat to free speech at University of California, Berkeley has led to more censorship than political rioters or college administrators. It’s the Americans with Disabilities Act.”). And while the vending machine case of Magee v. Coca-Cola Refreshments had raised hopes or fears in some quarters that the U.S. Supreme Court might seize on it to bring some much-needed clarity to the state of online accessibility law, the high court decided against taking the case and let stand a ruling against the blind plaintiff. [Emily Jed, Vending Times; more, Minh Vu]
Speaking in Seattle Nov. 2
Seattle readers and those nearby: On Thursday Nov. 2 I’ll be the guest of Northeastern University at its South Lake Union campus for an evening conversation. Thanks to Peter Temes who organizes the series. The event is free and open to the public — you can sign up here.
US finally deregulates telegraph service
“The FCC said in a notice it was removing ‘outmoded regulations’ on telegraphs effective in November.” And none too soon: “The last Western Union telegram in the United States was sent in 2006” and the “last major telegram service worldwide ended in India in 2013.” [David Shepardson, Reuters via @AjitPaiFCC]
AT&T Inc, originally known as the American Telephone and Telegraph Company, in 2013 lamented the FCC’s failure to formally stop enforcing some telegraph rules.
“Regulations have a tendency to persist long after they outlived any usefulness and it takes real focus and effort to ultimately remove them from the books even when everyone agrees that it is the common sense thing to do,” the company said.
In Chapter 8 of The Litigation Explosion I used the old body of law concerning liability for mishandled telegrams to illustrate the contrast between damages that were direct and certain on the one hand, and speculative on the other. And in 2011 I observed that Connecticut had yet to get around to repealing old state laws like those regulating the working conditions of telegraph messengers (cross-posted at Cato at Liberty).