- “You Can’t Sue People for Being Mean to You, Bob” – ACLU brief in Robert Murray-John Oliver case. Or can he? [Lowering the Bar, Popehat]
- Eugene Volokh will keynote lunch and colleague Emily Ekins will describe results of a new survey on free speech at Cato’s inaugural conference on “The Future of the First Amendment,” that’s aside from my religious liberty panel [register or watch online]
- “Build the Wall” flyers in Washington, D.C. draw reaction: “Council member Brandon Todd has told residents to call 911 if they are handed one of the flyers.” [Liberty Unyielding]
- Is legal fate of Gawker chilling journalism about the rich and famous? [Margaret Sullivan, Washington Post, on coverage of R. Kelly story] Did ABC News really pay $177 million even after insurance reimbursement to settle pink slime case? [Jacob Gershman on Twitter citing SEC filing]
- Symposium with Richard Epstein, Heather Mac Donald, KC Johnson, John McWhorter, Jonathan Rauch, Adam White and many others: “Is Free Speech Under Threat in the United States?” [Commentary]
- Calls for a crackdown on bad guys’ political expression in 1950s and today, compared [Eugene Volokh]
When prosecutors team up, and when they don’t
I’m in today’s New York Post. Excerpt:
“Mueller teams up with New York attorney general in Manafort probe,” Politico reported Wednesday. Commentators went wild.
What could be more exciting than for the special counsel investigating the Russian matter to team up with noted Trump foe Eric Schneiderman? Neither the president nor Congress can lay a glove on him; some of the legal weapons he wields go beyond what Mueller has at his disposal; and if Schneiderman obtains convictions in state court, Trump will have no pardon power. It’s like two superheroes with coordinating capes and powers!
Around liberal Twitter, it was a total game changer. “THIS IS BIG!!!!!!” typed Amy Siskind of New Agenda, hailing the sort of news for which four or five exclamation points won’t do. “What’s Russian for ‘Trump’s goose is cooked?’” crowed Harvard’s Laurence Tribe.
In the opposite camp, the Trumpian claque at Breitbart argued that with the combative New York AG on board — Schneiderman has long feuded with Trump, and is widely disliked by Republicans — the whole Russian probe can be dismissed as tainted. The connection “undermin[es] the integrity and impartiality of Mueller’s inquiry,” wrote Joel Pollak. “There could not be a more inappropriate person to be seen working with Mueller.”
Both sides should calm down….Federal and state prosecutors are supposed to cooperate when investigations overlap. That’s what they do.
I go on to discuss sharing of grand jury information, the ripples of dismay sent by Trump’s Joe Arpaio pardon (on which more from Josh Blackman here, see also and earlier), and New York’s Martin Act. Whole thing here.
From the comments: better safe than sued
Sunday’s ADA-and-the-web post prompted some useful reader discussion. Commenter Jim Collins told this story:
A while back I went to community college. I was recovering from an injury and in a vocational rehabilitation program. Part of the program was working for the college. We had a grant for computer workstations. At that time there was a shortage of computers at the college. We had a large room assigned to us and we were to cram in as many workstations as we could. When I submitted my layout I had 60 workstations in the room. I was asked how many were wheelchair accessible? I said “The front twenty.” I was told that all of the workstations had to be wheelchair accessible because the college didn’t want to have the chance of a lawsuit. In the end we could only fit 40 workstations. We lost 20 workstations. The part that got me was that the room we were assigned was on the second floor of a building. The building was grandfathered in and didn’t have wheelchair access. Another thing was that in the history of the college the most students that they ever had in wheelchairs was five.
The patent court where you can’t check out?
Is the notorious E.D. Texas, unwilling to release its clutch, coming up with new rules that will let it keep hearing its enormous patent docket? “In a recent decision, Eastern District of Texas Judge Rodney Gilstrap developed a broadly-sweeping four-factor ‘totality’ test seemingly aimed at keeping patent-infringement suits in his jurisdiction.” [Ryley Bennett, WLF]
Federal judge dismisses Palin libel suit against NYT
Federal judge Jed Rakoff has dismissed Sarah Palin’s libel suit over an unfair and inaccurate swipe at her in a New York Times editorial [Eriq Gardner/Hollywood Reporter, Tim Cushing/TechDirt, Jacob Sullum/Reason, Tom Rogan/Washington Examiner]
We are rightly proud of the broad sweep of First Amendment protection our constitutional law gives to wide-open discussion about public figures, even when, as in the Times’s reference to Palin, it results in commentary that the Times itself recognized within a day was grossly off base and retracted. If the New York Times expects professional respect, however, it needs to hold itself to standards higher than the ideological schlock merchants of both sides, which would mean not printing such things in the first place.
Maybe the best outcome in the case would be if the Times paid $0 damages, but the editor who wrote the false words resigned in shame.
August 30 roundup
- Elected-official governance of how state university law centers sue local governments = “interference”? [J. Clara Chan, Chronicle of Higher Education; Jane Stancill, News and Observer; Ana Irizarry, UNC Daily Tarheel; James G. Martin Center for Academic Renewal, Jesse Saffron, Alex Contarino, Frank Pray]
- Zen Magnets update: “How One Man’s Quest To Save His Magnets Became A Massive Regulatory Battle” [Jeremy Kutner, Huffington Post, earlier]
- “The solar eclipse is no longer mysterious, supernatural, foreboding, or ominous.” Or cause to delay a trial [court order in U.S. v. Bishop, M.D. Fla.]
- Trump vs. business: “His recurring message is that any executive who doesn’t do as Trump wishes can expect retribution from the most powerful man on earth.” [Steve Chapman, Chicago Tribune/syndicated]
- Wales: “Mute and autistic girl was seized from family and locked up after false abuse claims” [Lucy Johnston, Express] On “facilitated communication” and the like, see earlier posts here and here;
- California bill would extend pre-litigation subpoena power, a powerful tool in inflicting cost and loss of privacy on targets, from current holders (state AG, county DAs) to city attorneys in San Francisco, L.A., San Diego, and San Jose [Civil Justice Association of California Bulletin; Amanda Robert, Legal NewsLine]
D.C. Circuit: pipeline environmental review must include impacts of eventual gas use
Before the Federal Energy Regulatory Commission can approve a new pipeline it must engage in environmental review not just of the impact of the pipeline itself on its surroundings, but of the later carbon emissions when end users burn the gas it carries. So ruled the D.C. Circuit August 24 in Sierra Club v. FERC. [Emily Flitter/Reuters, Timothy Cama/The Hill, Pace Law] Judge Janice Rogers Brown dissented in relevant part, noting that FERC’s regulatory authority in this instance does not extend to later decisions about use:
Case law is clear: When an agency “‘has no ability to prevent a certain effect due to’ [its] ‘limited statutory authority over the relevant action[],’ then that action ‘cannot be considered a legally relevant cause’” of an indirect environmental effect under the National Environmental Policy Act (“NEPA”).
One wonders whether review of the siting of new supermarkets will someday need to include the environmental impacts expected to follow after local residents consume food sold there.
Taking kids away from low-IQ parents, cont’d
I was a guest earlier this month on Glenn Beck’s radio show to discuss the Oregon case (earlier) in which where kids were taken away from parents with low IQs (but high school diplomas) in the absence of charges of abuse or neglect.
The Blaze summarizes:
Essentially, the state doesn’t have to prove anything definite to take away a child; the argument is that they are going by the expert’s recommendation for what’s best just in case something could happen. In Fabbrini’s case, her estranged father has told authorities that she is an unfit mother; however, people closer to her have vouched for her ability to parent.
“If they [authorities] want to take your child, they’ve got him,” Olson said….
“It’s been called [‘worst-first’] thinking,” he explained. “If you’re in the child protection business, then, you know, everything looks like a danger. … You always think the worst possible thing could happen.”
During the show I mentioned the Chicago-based Family Defense Center, one group that brings legal help to parents in danger of losing children to the state. And Lenore Skenazy has done an incredible job at Free-Range Kids of collecting stories around the country where harmless mix-ups turn into long nightmares of involvement with CPS.
Environment roundup
- “Will Spokane Pass an Expensive, Unenforceable Ban on Rail Shipment of Fossil Fuels?” [Erin Mundahl, Inside Sources] New York Gov. Andrew Cuomo blockades a natural gas pipeline, and New England economy pays the price [WSJ]
- “Plaintiff firms have filed some 800 complaints against marijuana businesses” alleging California Prop 65 (toxics warnings) violations [WSJ editorial, more on Prop 65]
- Encyclopedia of Libertarianism, originally published in 2008 under editorship of Ronald Hamowy and now free online at Cato Institute, has article on “Environment” by Jonathan Adler; more background here;
- Fake all the horns: entrepreneur’s scheme could make rhino poaching uneconomic, but enviro groups dead set against [John Stossel/Reason post, video]
- Yes, you are ingesting pesticides. No, it’s not a problem [Matan Shelomi, Quora/Forbes]
- The economic way of thinking tends to inoculate one against fads like the peak oil scare [Ron Bailey]
Restatement of the Law of Liability Insurance
An American Law Institute Restatement of the Law of Liability Insurance (RLLI) has stirred considerable controversy; its final draft was withdrawn on the eve of a membership vote, with further work expected [WLF: Mark Chenoweth, Kim Marrkand, Glenn Lammi; W.J. Kennedy, Legal NewsLine/Forbes] Chenoweth:
Simply put, this “Restatement” does a lot less restating and a lot more revising than ought to be seen in something traveling under this banner.
Others have done an excellent job of describing where ALI’s Restatement draft falls short in characterizing current law, so there is no need to reiterate those arguments here. But for clarity’s sake, let me say that I am referring specifically to at least the following provisions of the draft:
- Permitting policyholders to introduce extrinsic evidence in interpreting insurance contracts, which contradicts the ‘parole evidence’ rule.
- Radically shifting the consequences of breaching the duty to defend (in the absence of bad faith).
- Fee shifting; and
- Creating a duty for insurers to make a reasonable settlement offer in the absence of a demand.
Earlier here and related here (“No more of Prosser’s tricks,” and views of Justice Scalia).