“The $1 billion NFL concussion settlement — nearly six years in the making yet still to deliver a penny to former players and their families for brain injuries stemming from football — is revealing the underbelly of the legal system to former players and their families. … Two dozen wives of former players recently sent a plea to the judge overseeing the case, asking her to address concerns that legal fees will be cutting heavily into money that was supposed to go their families. They cited lawyers charging ‘exorbitant’ retainer fees to players and their families despite the same lawyers being eligible to collect from a $112.5 million fund set aside to pay attorneys who worked on the case.” [ESPN]
Eleventh Circuit: First Amendment protects right to label skim milk as “skim milk”
Florida law allows the sale of skim milk without vitamin A and D fortification but requires that it be sold under the name “imitation milk product.” Ochiltree Creamery, a business that views the addition of other than natural ingredients as contrary to its mission, was willing to put warnings on its all-natural skim milk alerting buyers to the absence of vitamin fortification, but resisted the law’s demand that it label the product something other than “skim milk.” The Eleventh Circuit ruled that the state had not met its burden under the First Amendment. [Eugene Volokh, Baylen Linnekin, Frank Garrison]
“Opening up” libel law, cont’d
It is not clear whether a Thursday tweet from President Donald “Sue the Press” Trump should be interpreted as a serious policy proposal as distinct from an irritable gesture, but if its logic were pursued it might suggest that the chief executive favors extending defamation liability to coverage that is incomplete as opposed to untruthful and would have been fairer if it included points to be made on behalf of a covered personage. That’s not how defamation works under current First Amendment law, though [Jacob Sullum; earlier on Trump and libel]
Supreme Court and constitutional law roundup
All-Cato edition:
- SEC’s use of in-house judges violates constitutional principle of independent judiciary [Thaya Brook Knight, Ilya Shapiro, Devin Watkins, and Ari Blask]
- Have you checked out the annual Cato Supreme Court Review on the 2015-16 term, available both in-print and free online? Among the contents: Roger Pilon on Scalia’s originalism; Andrew Trask on the class action case of Tyson Foods v. Bouaphakeo (and more); Steven Calabresi on originalism and liberty; Steven Eagle on wetlands law; Harvey Silverglate and Emma Quinn-Judge on McDonnell and honest-services-fraud prosecutions of state and local officials; and Glenn Reynolds looking ahead to this (2016-17) term;
- Federal agency can’t unilaterally rewrite unambiguous statutory provision [Ilya Shapiro and Frank Garrison on Cato certiorari amicus in FLSA tip-pooling case of National Restaurant Association v. Department of Labor]
- “You Shouldn’t Be Criminally Liable If You Don’t Have a Guilty Mind” [Ilya Shapiro on Cato certiorari brief in mens rea case of Farha v. U.S.; related on mens rea, Orrin Hatch, Time]
- Court must resolve constitutionality of CFPB structure, especially now that DoJ itself agrees it’s unconstitutional [Thaya Brook Knight and Ilya Shapiro, more]
- In ineffective-assistance-of-counsel case that might hinge on whether drug defendant was bound to be convicted anyway, Court should not sidestep the historically significant phenomenon of jury nullification [Cato podcast with Tim Lynch on Lee v. U.S.; more on case from Amy Howe at SCOTUSBlog on oral argument and from Lynch at The Hill]
“Six Ways Buzzfeed Has Misled the Court (Number Two Will Amaze You) … and a Picture of a Kitten”
“Lawyers suing BuzzFeed for alleged defamation tried using the defendant’s clickbait tactics in a motion seeking to keep the case in Miami federal court.” [ABA Journal, the motion] In the view of Kevin Underhill at Lowering the Bar, while the humor in the brief is pretty good, “the argument is less than compelling.”
“Suburban Immigration Lawyer Gets 15 Months For Asylum Scam”
Fabricated persecution claims are an insult (and in practice a menace) to those who have suffered genuine persecution: “When he found a client seeking asylum in the United States, typically from Iraq, the suburban attorney would quickly forge that person’s name on an application and pepper the person’s life story with horrific hardships, including kidnappings, bombings and religious persecution — all false. He drew inspiration from news articles he collected.” A federal judge has now sentenced Robert Dekelaita to 15 months in prison. [CBS Chicago]
“Miami may target Airbnb hosts who spoke at City Hall”
“Dozens of Miami property owners who rent their homes and duplexes to visitors through home-sharing platform Airbnb spent all day at City Hall on Thursday pleading with city officials to buck a legal opinion declaring their business an illegal nuisance. Instead, Miami commissioners reaffirmed that position in a 3-2 vote, threatened to sue Airbnb for promoting clandestine activity, and then told the hosts who placed their names and addresses on the record that they had outed themselves to code compliance.” [Miami Herald, Eric Boehm/Reason]
Liability roundup
- “Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies” [U.S. Chamber Institute for Legal Reform]
- “After paying out millions, Detroit pushes new law protecting cities from claims over bad sidewalks” [WXYZ]
- Fire doors at U.N. cut and repurposed to make cabinets, court rules original manufacturers not liable for failure to warn of asbestos dust risk should doors be cut up [Lynn Lehnert, Asbestos Case Tracker]
- Woman sues bar that served her over her later drunk driving accident and injuries allegedly suffered in police custody [Penn Record]
- Can members of a class action be identified? Supreme Court should resolve circuit split on the important class-action-certification issue of “ascertainability” [David E. Sellinger and Aaron Van Nostrand, WLF]
- Federal court in the Eastern District of New York gets lots of food marketing lawsuits [Emily Saul and Danika Fears, New York Post, Elizabeth Nolan Brown]
At Cato: laws making ridesharing drivers wait, and the N.C. bathroom compromise
I’ve got two new pieces up at Cato at Liberty:
1) Following an outcry, Nevada lawmakers have dropped a plan to hobble ridesharing services like Lyft and Uber by requiring that their drivers wait at least 15 minutes before picking up a fare. The bill had been backed by a taxi union that donates heavily to lawmakers: all must be brought down to the level of the slowest in the name of a level playing field!
2) No one’s willing to come out and say that the North Carolina bathroom compromise signed yesterday by Gov. Roy Cooper is actually pretty good. But it is.
At the New York Post: too late for AGs to pose as above politics
My piece at the New York Post begins:
Having muscled their way to the front line in the nation’s political battles, state attorneys general are now in for getting roughed up along with the other partisan combatants.
The Republican Attorneys General Association, representing just over half the 50 state AGs, has voted to end a “rare bit of bipartisanship in the polarized environment of US politics,” to quote Reuters, which reported the news. It’s going to ditch an unspoken hands-off agreement with its rival Democratic Attorneys General Association under which each party targeted open seats only and held back from bankrolling challenges against the others’ incumbents.
Democrats are expected to respond in kind and start going after incumbent Republicans. If there were still any hope that the chief legal officers of the states could stay above the fray in some genteel way, it’s pretty much gone. Truth to tell, it’s been gone for years.
I run through some of the politicized doings of state AGs — from funneling lawsuit settlements to community-group chums, to organizing in packs to roam the national political scene fighting Presidents of both parties, to taking out after wrongful advocacy in such forms as “climate denial,” to the new prosecution over hidden filming of Planned Parenthood executives. Like or dislike this activity, there’s no doubt it’s political and that attorneys general need to make themselves accountable for it at election time.