Overlawyered: Chronicling The High Cost Of Our Legal System

“Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco”

As the Wall Street Journal reports, former Mississippi attorney general and longtime Overlawyered favorite Michael Moore has been collaborating with Ohio Attorney General Michael DeWine, with other elected government attorneys, and with other trial lawyers to seek lift-off of suits against painkiller makers and distributors. The headline was “Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco,” which got several of us going on Twitter:

Which in turn played off Jonathan Adler’s:

And Gabriel Malor’s:

Mine drew a number of responses, including this from Bloomberg View business columnist Joe Nocera:

And:

In a more conventional op-ed vein, there’s this from Tiger Joyce.

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Campus speech wars: the law school advantage

By demanding that students “imaginatively and sympathetically reconstruct the best argument on the other side,” a good legal education can help inoculate you against blinkered self-righteousness, which may be one reason why relatively few of the recent campus shout-downs and brawls have taken place at law schools. [Heather Gerken (dean, YLS), Time] And don’t miss John McWhorter on the essential theatricality of campus silencing, allyship, and privilege-shaming [via Conor Friedersdorf, The Atlantic]

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Land use and development roundup

  • “Expanding housing and job opportunities by cutting back on zoning” [Ilya Somin on Ed Glaeser Brookings essay]
  • Always hold back and let the government do it. That way the $550 stairs can be built for $65,000-$150,000 [CTV, CBC, sequel: city of Toronto tears down stairs] Some reasons why even without NIMBY or funding constraints, government infrastructure projects can be hard to get done [Coyote]
  • Cities dressed up retail malls as “public use” to justify land takings. Many courts went along. Not looking so good now [Gideon Kanner]
  • “Is inclusionary zoning legal?” [Emily Hamilton, Market Urbanism] Rejoinder: constitutional attacks on this type of zoning modification will make libertarians sorry if localities just go back to strict zoning [Rick Hills, PrawfsBlawg]
  • House Natural Resources Committee hears testimony on package of reforms to Endangered Species Act [Michael Sandoval, Western Wire]
  • Are takings claimants entitled to have suits heard in an Article III court? [Robert Thomas, Inverse Condemnation]

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Individual liberty and the Israel Anti-Boycott Act

A bill sponsored by roughly half the members of Congress would — so we are warned by New York magazine, at least — “make it a felony for Americans to support the international boycott against Israel” and “make avoiding the purchase of Israeli goods for political reasons a federal crime.” While those claims may be somewhat overstated, I argue in a new post at Ricochet that the proposed Israel Anti-Boycott Act “is plenty bad enough. By punishing boycott participation grounded in political belief, it would infringe on individual liberty.” And: “It is not a proper function of law to force Americans into foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad, or arbitrary. The furor would make a good occasion to revisit the 1979 law itself in light of principles of individual liberty; at a minimum, we should decline S. 720’s invitation to extend it further.”

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Higher education roundup

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Barton and Bibas, Rebooting Justice

In the mail, and on sale soon from Encounter Books: Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law by Benjamin Barton (University of Tennessee) and Stephanos Bibas (Penn). Publisher’s summary:

America is a nation founded on justice and the rule of law. But our laws are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases and immediately urges them to plead guilty. Civil litigants are even worse off; usually, they get no help at all navigating the maze of technical procedures and rules. The same is true of those seeking legal advice, like planning a will or negotiating an employment contract.

Rebooting Justice presents a novel response to longstanding problems. The answer is to use technology and procedural innovation to simplify and change the process itself. In the civil and criminal courts where ordinary Americans appear the most, we should streamline complex procedures and assume that parties will not have a lawyer, rather than the other way around. We need a cheaper, simpler, faster justice system to control costs. We cannot untie the Gordian knot by adding more strands of rope; we need to cut it, to simplify it.

And the blurb I was happy to contribute to the book’s back jacket:

“America’s legal establishment is right that our legal system is suffering an access-to-justice crisis, but dead wrong about how to fix things. In clear, energetic, skillful prose, Bibas and Barton first give the misguided crusade for Civil Gideon a decent burial. Then they go on to propose ideas that are much better ? better in moving with the times on technology, better at lowering rather than heightening the problems of cost and delay, and better at focusing the scarce talents of skilled courtroom counsel where they can make the most difference, specifically on felony charges.”

— Walter Olson, senior fellow at the Cato Institute and author of The Litigation Explosion

Other blurbs are by Deborah Rhode, Philip K. Howard, and Glenn Reynolds.

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Supreme Court could revisit forced advocacy dues for public workers

A 1977 Supreme Court decision, Abood v. Detroit Board of Education, upheld the constitutionality of forcing public employees to fund (through union dues) advocacy they might not like. More recently the Court has questioned the reasoning of Abood in Knox v. SEIU (2012) and Harris v. Quinn (2014), although the trend stalled in last year’s 4-4 split in Friedrichs v. California Teachers Association. Now the Court could revisit the issue by agreeing to review a Seventh Circuit case from Illinois, Janus v. AFSCME [Ilya Shapiro and Frank Garrison, Cato]

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Sessions to expand civil asset forfeiture

Attorney General Jeff Sessions has announced an expansion of the scope of civil asset forfeiture, under which government can seize and keep assets on suspicion without a criminal conviction or even the filing of a criminal charge. Reforms in the previous administration, which Sessions intends to roll back, limited some of the applications of the practice. [Chris Ingraham, Washington Post, Jonathan Blanks/Democracy Journal, C.J. Ciaramella/Reason, Steven Nelson/U.S. News, Dominic Holden and Zoe Tillman, BuzzFeed] There had been warning something like this might be in the works.

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