Overlawyered: Chronicling The High Cost Of Our Legal System

More on liability reform in the House — and a federalism angle

I’ve got a post at Cato at Liberty catching up on House action on litigation reform bills — see last week — and comparing it in particular to the recommendations of the chapter on tort and class action law (of which I was one author) in the new 8th edition Cato Handbook for Policymakers. As I note, two measures (on sanctions and class actions) track recommendations Cato scholars have been making for years, while a third (on medical liability] has been scaled back in a way that at least nods to concerns I and others have expressed.

The last few paragraphs of the piece follow:

Finally, there has been a development worth noting on H.R. 1215, the Protecting Access To Care Act, which passed committee by an 18-17 vote on Feb. 28. I and others have repeatedly criticized federal medical liability bills on the grounds that they run into serious problems of federalism and enumerated powers, seeking to justify federal involvement by way of loose New Deal doctrines of impact on interstate commerce, and overriding the workings of state courts even as to the large mass of medical malpractice disputes in which both parties to the lawsuit are local to the state and the costs of error are apt to be local as well. As I argued in this space:

That doesn’t mean federal policymakers are to be left with no role at all. For example, if Washington is paying for a large share of hospital stays, it may make sense as a cost containment measure for it to steer beneficiaries into lower-cost ways of resolving disputes over care quality, or even to ask beneficiaries as a condition of treatment to agree not to file certain suits at all. But that would require stepping back toward a more careful—and more Constitutionally appropriate—view of the federal role.

This year, PACA includes a new limiting provision. To quote Rep. Bob Goodlatte, on the bill’s latest version:

Unlike past iterations, this bill only applies to claims concerning the provision of goods or services for which coverage is provided in whole or in part via a Federal program, subsidy, or tax benefit, giving it a clear federal nexus. Wherever federal policy affects the distribution of health care, there is a clear federal interest in reducing the costs of such federal policies.

Whether the provision in question is drafted in such a way as to pass federalist muster is a question for another day — but it does at least seem that someone on Capitol Hill may have been listening to our past critiques.

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“NJ public works employee with phobia of public places gets $400K in lawsuit”

“A borough public works employee who claimed a hostile work environment while struggling with an anxiety disorder has settled his lawsuit against the borough [of Tenafly]. Aaron Perelli will receive $400,000 and will be on paid leave until his retirement date of June 30, according to the settlement agreement reached Jan. 24. In his lawsuit, Perelli said he suffered from agoraphobia, which he said did not allow him to drive long distances to unfamiliar towns or to drive by himself.” Perelli said the borough accommodated him at first, but then the relationship went downhill. [Adam Hochron, WKXW]

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Attacks on Gorsuch — and on the rule of law

“I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea.” Judges should stand up for the law and their interpretation of the correct way for it to develop, rather than ruling consistently with the interests of a particular category of litigant. “…consider the whole point of a rule-of-law system: It establishes rules so that people can be confident in advance of how decisions are made. That creates regularity and predictability. And in the long run, it protects the little guy a lot better than a system rigged to favor one side, because such systems will naturally tend to favor the rich and powerful, not the poor and downtrodden.” So cut it out, interest groups with your stop-Gorsuch campaign [Noah Feldman, Bloomberg View] More: David Harsanyi.

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“‘Somebody’s got to stop this’: New wave of ADA lawsuits hit Colorado, Southwest U.S. hard”

ADA filing mills have hit Colorado, with mom-and-pop businesses the prime targets, according to an investigation by The Denver Channel:

Now, people who call themselves disability advocates have filed a new wave of lawsuits across the Denver metro demanding settlements and claiming businesses are inaccessible to people with disabilities. …One case in Bailey, Colorado forced a man to shut down his restaurant indefinitely.

In this latest round of litigation, a woman from Arvada has filed nearly 70 cases in less than two months. There’s evidence to show the complaints are connected to a lawsuit-filing machine across the Southwest United States….

After Denver7 approached [plaintiff Melissa] Umphenour, her attorney asked the court to seal some of her new cases. The attorney did not want them to be subject to public inspection….

H.R. 620, a bill introduced in Congress with cosponsors from both political parties, would provide that persons seeking to file accessibility lawsuits of this sort “would have to write a demand letter to a business first. They could file a lawsuit only if the business fails to respond in writing within 60 days. If the business responds, it would have 120 days to fix to compliance issues or, at the very least, show substantial progress.”

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Higher education roundup

  • “If this becomes the new normal… the intellectual thugs will take over many campuses….A minority of faculty are cowing a majority in the same way that a minority of students are cowing the majority.” Why Charles Murray is pessimistic following the Middlebury attack [AEI] Frank Bruni on the Middlebury events and “the dangerous safety of college” [New York Times]
  • “Faculty and students need to be free to express ideas and viewpoints rather than be penalized for their politics.” [letter from group of Wellesley alumnae]
  • Finally! Federal government in January opened door for universities to relax some of their IRB (institutional review board) scrutiny of human-subjects research in low-risk areas not involving medical intervention [Richard Shweder and Richard Nisbett, Chronicle of Higher Education, related Institutional Review Blog] Update: some annotations/corrections from Michelle Meyer;
  • “Colorado student expelled for raping his girlfriend, even though both he and his girlfriend both deny the charge.” [Robby Soave/Reason on CSU-Pueblo case, via (and described by) Radley Balko] “End federal micromanagement of college discipline under Title IX” [Hans Bader/CEI, and related] “Maybe I’m drunk, but this doesn’t seem fair” [The Safest Space on “both were drunk, he got charged” poster]
  • What, no taxpayer dollars to pursue favored legal causes? North Carolina proposal would bar public universities from representing lawsuit clients [Caron/TaxProf]
  • I hadn’t followed the “New Civics” movement. It sounds pretty bad [George Leef, Martin Center]

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Jim Caruso on freedom for beer makers

Jim Caruso, CEO of Frederick, Md.’s Flying Dog Brewery, talks with Cato’s Caleb Brown about legal and regulatory issues in the craft beer business. We earlier followed Flying Dog’s successful First Amendment battle with Michigan regulators over its Raging Bitch label beer, the proceeds from which the company used to endow a speaker series on free speech.

Besides that case, Caruso discusses the “three-tier” system of alcohol distribution set up after Repeal, which is “pretty loose” in much of the West but far stricter in many Eastern states where memories of rum-running lingered on (“organized crime was basically created by Prohibition”). In some states, so-called franchise laws lock manufacturers permanently into an initial choice of distributor for a territory. Some of the laws even authorize distributors to sell brand rights to each other without consulting the original maker, which thus winds up with a distributor it did not have even a notional original role in picking. Originally rationalized as a way to shield small distributors from the clout of giant national brewers, these laws live on into an era in which small craft producers may face well-heeled, politically powerful state distributors.

Earlier about the three-tier system here, here, and here.

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March 15 roundup

  • A workplace hazard? Push in Britain to “make it illegal for a company to require women to wear high heels at work.” [Elizabeth Nolan Brown, Reason]
  • Service dogs on planes: “a ‘credible verbal assurance’ books Fido a trip to San Francisco for the weekend” [David Post, Volokh Conspiracy] Australia, too, sees trend toward exotic service and emotional-support animals [Workplace Prof; earlier]
  • Trial lawyers would like Supreme Court to squash the arbitration alternative, but few signs Judge Gorsuch is on board with that plan [Edith Roberts, SCOTUSBlog]
  • New York radical lawyer Lynne Stewart, not a favorite in these columns, dead at 77 [Scott Johnson, PowerLine, earlier]
  • Baltimore police scandal, “yes means yes” bill for MoCo schools, homicide rap for overdose suppliers?, school wi-fi scare, Tom Perez, and more in my Maryland policy roundup [Free State Notes]
  • Suing so soon over White House regulatory reform, Public Citizen, and with so little show of injury? [Brian Mannix, Law and Liberty]

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Seattle law strips landlords of choice of tenants

Appalling: a new law in Seattle aims to strip property owners of all choice among tenant applicants, requiring them to take the first comer who meets their preannounced guidelines. Does it violate the Constitution? The Pacific Legal Foundation intends to find out on behalf of Chong and MariLyn Yim. [Daniel Beekman, Seattle Times] When the law was under consideration, a council member objected — on the grounds that the city should instead consider requiring the owners to institute a lottery, rather than a first-come-first-served rule. Part of the rationale of the law is to combat “unconscious bias” [Ethan Blevins, PLF] More: Jeb Kinnison in August.

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