Overlawyered: Chronicling The High Cost Of Our Legal System

Pronoun prescription and co-workers’ rights

We earlier this year noted the New York City Human Rights Commission guidance directing that businesses may be fined if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” Now Eugene Volokh, who wrote about the earlier story, points out a recent Oregon settlement in which pronoun issues (the employee prefers to be called “they”) appeared to play an important part:

The school district agreed to settle the claim for $60,000 “as compensation for actual damages, emotional distress and attorney fees,” and with the district promising to “develop official guidance documents for administrators/staff that address working with transgender staff”; the documents, to be developed together with “TransActive and the District equity team,” will address, among other things, “pronoun usage.” “[V]iolations of the guidance will be grounds for discipline.”

But it is not at all clear, as Volokh notes, that it is respectful of co-workers’ rights to require them on pain of official discipline to employ “highly conspicuous, nonstandard usage.” Should instances of not doing so be defined as “harassment” or “discrimination,” they can bring with them serious legal consequences. Public employers such as school districts do have some legitimate managerial interests which can call for, e.g., standardizing forms of address in their workplace. On the other hand, novel pronoun coinages relating to gender are often praised as a way “to convey an idea about language and how language should be” — put more sharply, to convey particular ideological stances about issues of gender identity. We already know that under current interpretations of First Amendment law, government cannot require ordinary non-political employees on pain of dismissal to affirm propositions such as “Live Free Or Die” or the Pledge of Allegiance. A similar principle might extend — or? — to rules exacting affirmative ideological avowals of other sorts. More: Hans Bader, CEI.

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Frontiers of forfeiture: emptying pre-paid bank cards

The Oklahoma Highway Patrol has become the latest law enforcement body to begin using “ERAD readers,” devices that allow police to freeze and seize any funds on pre-paid debit and credit cards, now used by many poorer and younger persons as a favored financial vehicle. The devices also allow police to obtain some data about conventional credit and ATM cards, but not, it appears from coverage, to freeze and seize funds in those accounts on the spot. “If you can prove can prove that you have a legitimate reason to have that money it will be given back to you,” said a police spokesman. Oklahoma “is paying ERAD Group Inc., $5,000 for the software and scanners, then 7.7 percent of all the cash the highway patrol seizes.” [Aaron Brilbeck/News 9 Oklahoma, Clifton Adcock/Oklahoma Watchdog, Scott Greenfield (highway patrol’s views of what is and is not suspicious confer a great deal of arbitrary power), Justin Gardner/Free Thought Project last October on Arizona use]

Plus: “New Mexico Ended Civil Asset Forfeiture. Why Then Is It Still Happening?” [NPR] A car is stopped for “swerving,” and soon police have confiscated the $18,000 its owner was carrying for payroll and other expenses of her southern California janitorial business [ACLU of San Diego, p. 7, “It happened to me: Janitorial business”]

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Liability roundup

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Closing costs and cartel capture

Pulling up stakes and moving is tough enough. Regulations that drive up closing costs make things worse [Naomi Schaefer Riley/New York Post, thanks for quotes]

Cato Institute Senior Fellow Walter Olson says that it’s not just the taxes that make some states more expensive than others. “States regulate real-estate transfers so as to require additional stages and the involvement of certain professionals’ services, like lawyers’, at more stages.” He says New York is “particularly bad.”

Olson notes: “The title-insurance industry is also regulated in ways that make consumers pay much more in some states, independent of any difference in underwriting risk.”

And the “high-cost methods required in some states are stoutly defended by lobbies of professionals who make a living from the expensive way of doing things.”

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June 9 roundup

  • New FDA guidelines on sodium “unnaturally low” and propose “consumption levels unheard of in any country in the world,” according to the salt guys;
  • Engineering the language: campaign under way to stop referring to car crashes with the word “accident” [Jacob Sullum]
  • Gawker mocked claim of man who has maintained he invented email as a teenager in the 1970s so he’s suing [NJ Advance Media]
  • I’ve often joined morning host Ray Dunaway on Connecticut’s WTIC and you can listen to my Monday segment here, discussing the California bill to encourage lawsuits over climate denial as well as the Wheaton, Ill. fired cop case;
  • “Dallas Pet-Sitting Firm Raises the Ante, Seeks Up to a Million Dollars in Damages for Yelp Review” [Paul Alan Levy, David Kravets/ArsTechnica]
  • In the mail: “Uber-Positive: Why Americans Love the Sharing Economy” [Jared Meyer, Encounter Books] Meyer is also in the new issue of Reason with an article on “progressive” opposition to the gig economy that includes the line (h/t Steve Horwitz): “Waging a war on lower transaction costs is the definition of fighting progress.”

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Hate speech laws and the assassin’s veto

“Should the legal system protect or punish the kind of inflammatory speech and drawings that prompted the assault on the Charlie Hebdo offices?” The U.S. Supreme Court in recent years has interpreted our First Amendment so as to ratify and strengthen protection for such speech; Europe, on the other hand, has moved toward punishing it, both from disapproval in itself and, increasingly, on the rationale that allowing it might lead to violence.

In a new Cato Policy Analysis, “Hate Speech Laws: Ratifying the Assassin’s Veto,” First Amendment litigator and Cato adjunct scholar Robert Corn-Revere defends America’s as the correct approach. Executive summary excerpt:

The United States Supreme Court has generally restricted government limits on speech. Some speech, however, does not receive protection, including expressions closely tied to violence. In the past, “fighting words” were judged unprotected by the First Amendment; the development of Court doctrine has largely eliminated this exception. American jurisprudence is based on the assumption that protections for freedom of expression will not long endure if they can be abandoned when the message is particularly repellant or its target especially sympathetic.

European law also protects freedom of expression, although in a less robust way than does U.S. law. Article 10 of the European Convention on Human Rights subjects freedom of speech to important limitations understood generally as “hate speech.” In contrast to the United States, officials may apply criminal or civil sanctions to prohibited political advocacy.

The United States faces a choice. Should it defend the right to offend, or opt instead to champion a right not to be offended? We have learned from hard experience in the United States that free expression cannot long survive without protecting outrageous and offensive speech.

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Unclaimed property: headed eventually for the Supreme Court?

I’ve got a new post at Cato at Liberty noting that Justices Samuel Alito and Clarence Thomas, in a concurrence this spring, appear to be inviting a constitutional challenge to states’ administration of escheat (unclaimed property) law on due process grounds. [More on Taylor et al. v. Yee from Daniel Fisher at Forbes] While the immediate questions posed would likely be whether states are doing too little to notify owners and using too short a period of idleness (three years is becoming common), the fact patterns might conceivably implicate some of the other problems noted by businesses on the receiving end of these laws, which we discussed back in 2013 (more): creative redefinitions of unclaimed property and outside “auditors” incentivized by contingency fees to overreach in assessments.

The Associated Press took a look at the issue last fall; more background at Maria Koklanaris, Tax Analysts and Odds and Means.

Reflecting widespread business discontent, the U.S. Chamber has addressed the issue in a series of papers and its publications have covered problems in states like Illinois, as well as in California as well as profiling the firms that specialize in these collections, which in some cases have filed qui tam (bounty-hunting) suits for a share of the proceeds.

On Delaware in particular see the Wall Street Journal (more), Forbes, and Delaware State News. And the Wilmington News-Journal has published an extensive investigation of the escheat contractors’ ties to the Delaware political class.

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Trump vs. Judge Curiel: the non-case for recusal, cont’d

Sunday’s post quoted Eugene Volokh to the effect that on current evidence there is no case, not even close, for Judge Gonzalo Curiel to recuse himself in the Trump University litigation. Now Ken White at Popehat has a short explainer of the issues, noting, inter alia, that Trump can’t “earn” recusal by stepping up his attacks on Judge Curiel. Meanwhile, Alison Frankel at Reuters gives two reasons Trump’s lawyers won’t move for recusal. First, they need to worry about their reputation; second, there’s a real possibility they’d face sanctions if they did file such a motion, given precedents such as the Second Circuit’s 1998 opinion in MacDraw Inc v. CIT Group upholding sanctions issued by then-U.S. District Judge Denny Chin against lawyers who had moved for his recusal based on his Asian ancestry.

Meanwhile, a Legal NewsLine reports that Judge Curiel recently turned down a class action settlement over jeans labeling as providing too little relief to consumers as compared with lawyers and cy pres bystanders. Tweets Adam Schulman of the Center for Class Action Fairness: “Trump’s least favorite judge seems good on class actions to me.”

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