“The New York City Police Department takes in millions of dollars in cash each year as evidence, often keeping the money through a procedure called civil forfeiture. But as New York City lawmakers pressed for greater transparency into how much was being seized and from whom, a department official claimed providing that information would be nearly impossible — because querying the 4-year old computer system that tracks evidence and property for the data would ‘lead to system crashes.'” [Sean Gallagher, ArsTechnica]
Cato audio: a stalled Supreme Court?
I join Trevor Burrus and Caleb Brown in this Cato Audio (34:32) on the Supreme Court, last term and this, in transition from the Scalia era to whatever is coming next.
Intellectual property roundup
- “Copyright Trolls Now Threatening College Students With Loss of Scholarship, Deportation” [Timothy Geigner, TechDirt]
- Use the phrase “Law Firm 2.0”? Better cease and desist [Carolyn Elefant, MyShingle]
- “How A Supreme Court Case On Cheerleader Costumes and Copyright Could Impact Prosthetic Hands” [Mike Masnick, TechDirt]
- Have you violated your competitor’s legal rights when you buy search engine advertising with its name as keyword? [Eric Goldman on Edible Arrangements case]
- Trader Joe’s keeps battling the Canadian knockoff/reseller Pirate or Irate Joe’s [Lowering the Bar]
- “Unified Patents files legal challenges against top three patent trolls of 2016” [Joe Mullin, ArsTechnica]
Ted Frank on laws named after victims
Laws named after sympathetic victims are sure-fire vote-getters, but they are usually bad laws. “A politician holds a press conference standing next to the victim’s family; this gets the bill on the news. Because of terse media coverage, voters think said law will actually do something for a victim or potential future victims, no matter what the real legal changes are.” [Ted Frank, L.A. Times]
Berkeley, facing accessibility demands, may take down free online course content
Advancing a trend we’ve been warning about, the University of California, Berkeley, said it may have to take down educational course content posted free online for the benefit of the public due to an ongoing conflict with the U.S. Department of Justice over whether it is obliged to accompany the content with expensive captioning and other technological assists to make it more accessible to disabled visitors. I’ve got a write-up at Cato. More: Robby Soave, Reason; Andrej Karpathy Twitter thread about withdrawal of computer science videos; earlier on web accessibility. And this tweet, from Prof. Sam Bagenstos responding to Soave’s article, represents the culmination of the entire civil rights model.
Don’t delegate foreign and counter-terror policy to trial lawyers
The Washington Post’s editorialists agree with former U.N. Ambassador John Bolton and former attorney general Michael Mukasey: President Obama is right to plan a veto of a bill passed in the House by a voice vote enabling lawsuits by victims of terror attacks against sovereign countries such as Saudi Arabia over conduct that allegedly contributed to the attacks. Delegating foreign and counter-terror policy to trial lawyers not only wrenches away delicate questions of negotiation and sanctions-imposition from the executive branch to which our Constitutional scheme confides them, but also invites foreign legal systems to begin opening up avenues for lawsuits against the government of the United States. There’s a reason comity and sovereign immunity have stood for centuries as pillars of international law. News coverage: Karoun Demirjian, Washington Post and more.
Where a conflict of interest policy for prosecutors would have helped
The city of Woodbury, Minn. employs a local law firm on contract to “prosecute certain criminal matters on the City’s behalf.” Lawyers from this firm filed a criminal action against Mr. Sample over an alleged domestic assault even as, at the same time, the firm was representing his alleged victim in civil actions including a restraining order. It “later asked another firm to prosecute the criminal case against Sample [on the grounds] that it had a conflict of interest.” Mr. Sample’s later section 1983 suit alleged that the law firm’s dual role at the time of the filing had violated his constitutional rights; the Eighth Circuit ruled that the prosecutors themselves enjoyed absolute personal immunity, but — such immunity not extending to towns — ordered further consideration of Sample’s claim that the town should be liable for not instituting a conflict-of-interest policy that would have headed off the problem before it happened. [Sample v. City of Woodbury et al.]
“Trump threatens to sue New York Times”
Presidential candidate Donald J. Trump, following negative coverage including a story on his use of tax breaks in real estate development [The Hill]:
My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting
— Donald J. Trump (@realDonaldTrump) September 17, 2016
Vague lawsuit threats are usually the bumptious kind: there is no cause of action for “irresponsible intent.”
U.K.: cross-examination before jury deemed too hard on vulnerable witnesses
New court reforms proposed by the U.K.’s Ministry of Justice would do away with many criminal defendants’ right to cross-examine accusers before a jury. The rules provide that what are deemed “vulnerable” victims and witnesses, mostly in sex cases, will instead be allowed to undergo cross-examination recorded in advance for later play in court. [BBC] Here in the U.S., the Sixth Amendment’s Confrontation Clause might have a thing or two to say about that.
Police and prosecution roundup
- Mississippi AG Jim Hood, a longtime Overlawyered fave, finds way to snipe at opposing death penalty counsel [Radley Balko]
- Police use forced catheterization to obtain urine samples from unwilling suspects. A constitutional issue? [Argus-Leader, South Dakota]
- “Why Gary Johnson Opposes Hate-Crime Laws (and You Should Too)” [Elizabeth Nolan Brown]
- Yes, the Baltimore aerial surveillance program should raise concerns [Matthew Feeney, Cato]
- “The Citizen as ATM: A small Missouri city has become a legal testing ground for ticketing practices and court reform” [Carla Main, City Journal]
- New Mexico, a leader on asset forfeiture reform, should now tackle mens rea reform [Paul Gessing]