Overlawyered: Chronicling The High Cost Of Our Legal System

“…a federal crime to visit a website after being told not to visit it”

Last week’s Ninth Circuit case of Facebook v. Vachani is making many observers uneasy. Orin Kerr writes:

For those of us worried about broad readings of the Computer Fraud and Abuse Act, the decision is quite troubling. Its reasoning appears to be very broad. If I’m reading it correctly, it says that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization. … This was a civil dispute, but the CFAA is also criminal statute.

It’s possible that the Circuit might clarify the ruling should it grant en banc review.

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Prosecution roundup

  • Deferred prosecution agreements are a powerful new tool of the administrative state, with a tendency toward lawlessness [James Copland and Rafael Mangual, Manhattan Institute] Expected judicial deference to corporate prosecution deals: sign of a broken system [Scott Greenfield citing my April piece]
  • Secrecy more common in criminal prosecutions: sealing of cases and documents, “gag orders… ex parte presentations, in camera submissions” [Tim Cushing, TechDirt]
  • “In my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome.” Confessions of an ex-prosecutor [Ken White (of Popehat), Reason] “Enforcement Gone Amok: The Many Faces of Over-Enforcement in the United States” [John Beisner et al, U.S. Chamber]
  • Hunt County, Texas resident Kent Grady challenges county’s hiring of contingency-fee lawyers to go after him on environmental fines that via statutory per-day multiplication could turn a wrongly placed woodpile into a liability of $2 billion [WSJ editorial via Chamber Institute for Legal Reform]
  • “Don’t Ask Us to Turn In Our Own Executives, Business Lobby Warns” [Bloomberg on Yates memo]
  • “Scientists Looking To Fix The Many Problems With Forensic Evidence” [Tim Cushing, TechDirt]

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Baltimore County to consider bill forcing landlords to take Section 8

In suburban Baltimore County, county executive Kevin Kamenetz has introduced a bill to ban “housing voucher discrimination,” that is to say, a bill requiring landlords to take Section 8 tenants. “Kamenetz is required to introduce the bill as part of a housing discrimination settlement with the federal Department of Housing and Urban Development that was reached this year. … If [it] does not pass the County Council, the HUD settlement requires it to be reintroduced in future years.” Landlords and property owners say that it is unfair to force them to enroll against their will in a program with cumbersome paperwork and inspections. [Pamela Wood, Baltimore Sun] HUD is now arm-twisting jurisdictions nationwide into enacting these bad laws; earlier here (bad renter trashes unit), here, etc.

Update: County legislature votes down bill [Baltimore Campaign for Liberty]

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When do sleazy nightclub tricks add up to federal wire fraud?

The Eleventh Circuit’s opinion in U.S. v. Takhalov will be one of the more talked of the season. Amid colorful references galore, the court “tossed the convictions of nightclub operators accused of using enticing ‘bar girls’ to lure drunken customers to pay tens of thousands of dollars for overpriced drinks.” Judge Thupar begins: “The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai. For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive.” Plus footnote 9, which says that a particular inference “hardly requires Holmesian feats of deduction (Sherlock or Oliver Wendell: either Holmes will do here.)” [ABA Journal, Miami Herald, Daily Business Review]

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Environment roundup

  • Subpoena turnabout not fair play: Congressional Republicans investigating state AGs’ climate advocacy probe are lobbing subpoenas at private enviro groups that urged the anti-speech campaign. Knock it off, two wrongs don’t make right [Eli Lehrer and earlier] “You don’t need complicated models to figure out what happens when governments censor speech. The evidence on that question is solid.” [Steve Simpson]
  • And speaking of fraud in policy advocacy (whatever that may mean) some varieties of it are plainly going to have no legal consequences whatsoever [Matt Welch channeling Virginia Postrel on California political class and high-speed rail]
  • Michigan attorney general Bill Schuette says 40 anti-pipeline activists gathered and beat on the front door of his home for 30 minutes with his wife alone there [Detroit News]
  • Pro-nuclear demonstrators blockade Greenpeace office in San Francisco, but wouldn’t the ultimate way to protest an odious environmental group be to respect the property rights of all concerned? [SFist]
  • “It’s a shotgun approach”: injury lawyers find many defendants to blame after Flint public water fiasco [NPR via Renee Krake, Legal Ethics Forum]
  • “District court voids Obama administration fracking regulations” [Jonathan Adler, Alden Abbott]

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Proposal: traditional legal ethics should yield to climate interests

Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.

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Federal judge halts Labor Department “persuader” rule

“Calling the Department of Labor’s new interpretation of its LMRDA Persuader Rule ‘defective to its core,’ the District Court for the Northern District of Texas issued a nationwide injunction” against the Final Rule published on March 24, 2016.” [Labor Relations Today, earlier] We summarized the regulations early on:

New Department of Labor regulations will require, on pain of serious criminal penalties, regular disclosures by lawyers, consultants, advisers, website developers, P.R. firms, pollsters and many others whose activities might persuade employees not to sign union cards. (Current regulations require disclosures only regarding consultants who actually meet with employees, as opposed to generating information that might reach them.)

The result would be not only to put we-know-where-you-live intimidation pressure on a much wider range of persons, and create many new tripwires for damaging liability, but also imperil attorney-client privilege, as with a provision demanding that attorneys disclose relationships with other clients.

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