Overlawyered: Chronicling The High Cost Of Our Legal System

Unanimous House backs IRS structuring seizure reform

A victory worth cheering for due process and property rights: the U.S. House has unanimously approved a bill that would curb IRS seizure of bank accounts premised on the owners’ having engaged in a pattern of deposits or withdrawals below the $10,000 reporting threshold (“structuring forfeiture”). The measure would 1) codify a recent IRS practice of not keeping money if no underlying illegality were found such as tax evasion or income from unlawful sources; 2) assure account holders a quick hearing after a seizure, a process that can now drag out for long periods. [Institute for Justice press release; Michael Cohn, Accounting Today] The Treasury inspector general found that “in a whopping 91 percent of sampled cases, the laws were being used to forfeit assets from individuals and businesses found to have obtained their income legally.” [Michael Haugen, The Hill, April]

I’ve been writing on this issue for years. The bill, co-sponsored by Reps. Peter Roskam (R-IL) and Joseph Crowley (D-NY), is called the Clyde-Hirsch-Sowers RESPECT Act; I’ve written about the structuring case of Maryland farmer Randy Sowers here and here.

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September 6 roundup

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Defamation suit after being called patent troll

David Barcelou and his company Automated Transactions, which have sued banks charging patent infringement over their use of Internet-connected automated teller machine technologies, in December filed a defamation suit in New Hampshire state court against the American Bankers Association, Crain’s Communications, and a variety of banks and other defendants. The suit contends that the defendants have engaged in a “smear campaign” intended to discredit the plaintiffs, prominently through use of the pejorative term “patent troll.” [Automated Transactions LLC v. ABA via IP Watchdog]

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A tale of research permission

“Scott Alexander” recounts with much humor an episode in which, observing an apparent weakness in the way patients are screened for bipolar disorder, he suggested that the effectiveness of the screen be put to a study as his hospital. That meant human subjects research, which meant submitting the idea to an institutional review board, which meant a sustained encounter with the federally prescribed regulatory apparatus that empowers IRBs. [Slate Star Codex] Our earlier coverage of IRBs is here, and Philip Hamburger has a much more formal and sustained critique, with footnotes, in this 2007 Northwestern University Law Review paper (“they require the licensing of speech and the press [when directed toward] the pursuit of scientific knowledge.”) See also Zachary Schrag, “You Can’t Ask That,” Washington Monthly, 2014 and, on the recent changes in regulation, Kate Murphy/New York Times and Richard A. Shweder and Richard E. Nisbett, Chronicle of Higher Education.

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Liability roundup

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Must officials keep religion out of their social media feeds?

The Freedom from Religion Foundation claims that it’s unconstitutional for Florida Sen. Marco Rubio to tweet Bible verses, as he often does [complaint letter] The question of when officials’ social media feeds should be deemed governmental in nature as distinct from personal sidelines, and what exactly that should mean in practice, has been much in the news, especially since a federal court ruled that a county supervisor in Virginia acted improperly by banning some constituents from her Facebook page. Critics have similarly sued on the theory that President Trump’s @realdonaldtrump Twitter account is a government forum that may not block viewers based on the viewpoint of their likely responses. Eugene Volokh sorts out some of the issues and notes that the Supreme Court, including some of the most liberal members, have taken the view that elected officials are free to voice religious convictions in public speeches without fear of violating the Establishment Clause. Earlier here and here.

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“Utterly worthless,” “no better than a racket”

7th Circuit judges take carving knife to lawyers’ “footlong” class action settlement with Subway sandwich chain, after objections from Ted Frank [Lowering the Bar, CEI, earlier]

Speaking of the Seventh Circuit, Judge Richard Posner, among the most influential legal thinkers and jurists of the past half-century, is stepping down. He changed my thinking and if you hang out around law or policy probably yours too [our past coverage and tag; Evan Bernick on Twitter; Cass Sunstein (“I have my disagreements with Judge Posner, but let’s give credit where it is due: His influence has made the law much better, and the world is a lot better off as a result.”)]

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Ban the Box laws backfire badly, cont’d

“‘Ban the box’ laws, which bar employers from asking job applicants whether they have a criminal record, may be harming some of the people they are intended to help….several recent studies have found that black men, even those without a criminal history, are less likely to get called back or hired after a ban the box law is put in place.” Following a push by advocates, 29 states “prevent state and sometimes city and county employers from including a criminal history box on job applications. Nine states have extended the ban to private employers as well.” [Rebecca Beitsch, StateLine/Huffington Post] The effect was already being noticed in the policy literature a year ago. Earlier here.

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“How Washington Made Harvey Worse”

“A federal insurance program made Harvey far more costly—and Congress could have known it was coming.” [Michael Grunwald, Politico, more] And from July, “Reforming the National Flood Insurance Program: Toward Private Flood Insurance” [Ike Brannon and Ari Blask, Cato Policy Analysis]

More: “Lack of Zoning Is Not Houston’s Problem” [Vanessa Brown Calder, Cato; Nolan Gray, CityLab]

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