Overlawyered: Chronicling The High Cost Of Our Legal System

Randy Barnett, “Our Republican Constitution”

Georgetown law professor Randy Barnett came to Cato April 21 for a book forum to discuss his new book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (reviews). Roger Pilon introduced and there were comments from University of Maryland law professor Robert Percival. Description in part:

The Constitution begins with the words “We the People.” But from our earliest days there have been two competing notions of “the People,” leading to two very different constitutional visions. Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a democratic constitution that allows the will of the people to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a republican constitution is needed to secure the preexisting inalienable rights of “We the People,” each and every one, against abuses by the majority. In his latest book, with a foreword by George Will, Randy Barnett explains why “We the People” would greatly benefit from the renewal of our republican Constitution, and how this can be accomplished in the courts and the political arena.

During the Q & A period, I ask a question about amending the U.S. constitution. More: Nick Gillespie interviews Barnett for Reason TV.

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May 4 roundup

  • New gun store in Arlington, Va., just outside D.C., sues neighbors as well as officials who tried to block its opening [Washington Post]
  • Good: “Amendment Could Save the Vaping Industry From Prohibitive FDA Regulations” [Jacob Sullum]
  • N.J.: “Bergen County Father Jailed For Non-Payment Of Support For Kids Who Live With Him” [Bergen Dispatch via Hans Bader]
  • Outrage over state override of local regulatory options seems to depend a lot on whose ox is gored [Aaron Renn, Urbanophile]
  • That way, they could challenge it in court? Claim that businesses would be better off if DOJ went ahead and issued regulations commanding their websites to have ADA “accessibility” [Legal NewsLine, earlier]
  • “Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants” [Timothy Geigner, TechDirt, earlier]

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An Oklahoma forfeiture story

Oklahoma is known as one of the more abusive states in the practice of civil asset forfeiture. In this astounding case, Muskogee County cops stopped a car for a broken tail light and questioned Burmese refugee Eh Wah, who was carrying $53,000 in cash following a charitable fundraising tour of 19 concerts given by the Christian rock band whose finances he managed. The county declared that it was seizing the money on suspicion that he must have been mixed up in the drug trade to have so much loose cash, even though no drugs were found, because a dog had alerted. After Dan Alban and others at the libertarian civil liberties law firm Institute For Justice raised a ruckus, with help from the Washington Post’s Christopher Ingraham, the local D.A. dropped the charges and returned the money to Mr. Wah. [Corie Stephens, Rare; Tulsa World (auto-plays)]

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Did ADA serial claimant pay taxes on his loot?

“IRS and federal prosecutors have launched a criminal investigation into serial disability access plaintiff Scott Johnson, who has moved his lawsuit operation to the Bay Area in recent months, to determine whether he has paid taxes on his alleged millions of dollars in settlements, multiple sources told this newspaper.

“Unless a plaintiff suffered physical injuries as a result of a civil settlement, that individual must pay taxes on the monetary award, tax experts said. It is unclear whether Johnson paid any taxes on any of his Americans with Disabilities Act settlements with thousands of businesses in California that he alleged obstructed his access as a paralyzed customer using a wheelchair. He and his attorney did not return requests for comment.” [San Jose Mercury-News, more of its coverage on Scott Johnson, earlier on ADA filing mills generally and on Johnson in particular here, here, here, here, and here]

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Banking and finance roundup

  • “Why We Could not Bail Out Mortgage Borrowers” [Arnold Kling]
  • Here come the Wall Street pay clawback rules [John Carney/WSJ MoneyBeat Blog, more, yet more] Jesse Fried on “Rationalizing the Dodd-Frank Clawback” [SSRN via Bainbridge]
  • Price controls on credit card interchange fees: “the folks who supported the Durbin amendment [to Dodd-Frank] should be ashamed of themselves” [Bill Isaac, quoted by Kevin Funnell]
  • New light on whether Treasury handling of Fannie and Freddie bailouts violated existing creditor or shareholder rights [Peter Van Doren, Cato]
  • “Dollar Value of Securities Class-Action Settlements Surges” [WSJ Law Blog on Cornerstone Research analysis, Insurance Journal]
  • Some reasons to think that actual tax evasion falls far short of what was speculated in the wake of the Panama Papers story [Tim Worstall] Legal confidentiality was breached in that episode. Should we be celebrating? [Tyler Cowen] Economist mag proposes more regulation of offshore, not so fast [Bainbridge first, second]

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Class action: too much ice in Starbucks iced drinks

“A consumer class claims Starbucks’ cold drinks are almost half ice and the coffee chain misrepresents the fluid ounces of its popular, and profitable, iced coffee and tea beverages….Further, Starbucks charges more for cold drinks than for comparable hot drinks, despite giving cold-drink customers less of the product than hot-drink customers; in this way, Starbucks makes higher profits off its cold beverages, Pincus claims.” [Jack Bouboushian, Courthouse News Service] “The customer is seeking $5 million in damages. ‘Our customers understand and expect that ice is an essential component of any “iced” beverage,’ Starbucks said in a response. It added that the company will happily remake any beverage until the customer is satisfied.” [Lindsay Putnam, New York Post] Another class action a few weeks ago claimed that the coffee chain does not fill hot drinks up close enough to the top of the cup.

More: “Dear plaintiffs: put your too-hot McDonalds coffee in your too-icy Starbucks coffee. Problem solved.” [David Burge]

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Labor “persuader” rule blasted at House hearing

On “Wednesday the American Bar Association joined others in asking federal lawmakers to reconsider the [Labor Department’s] revised rule [requiring more extensive disclosure of the identities of outside professionals hired to resist unionization, as well as other clients of those professionals]. Although there are a number of ways in which the rule is ‘deeply flawed,’ the overarching concern of the ABA is the negative impact it will have on attorney-client privilege, says ABA President Paulette Brown in written testimony (PDF) submitted for a Wednesday hearing by a U.S. House subcommittee.” [ABA Journal, BNA, earlier]

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First Amendment roundup

  • How the courts came to extend First Amendment protection to art, music, movies, and other expression not originally classed as “press” or “speech” [new Mark Tushnet, Alan Chen, and Joseph Blocher book via Ronald Collins]
  • Cato amicus: church enterprises should be eligible for recycling program on same terms as secular businesses [Ilya Shapiro and Jayme Weber]
  • “A Political Attack On Free Speech And Privacy Thwarted — For Now” [George Leef, Forbes on AFP v. Harris, earlier] Bill filed by Rep. Peter Roskam would keep IRS from collecting names of donors to nonprofits [Center for Competitive Politics]
  • Newly enacted Tennessee conscience exemption for psychological counselors and therapists avoids some of the dangers of compelled speech [Scott Shackford, Reason]
  • Cook County Sheriff Thomas Dart, benchslapped by Judge Richard Posner after sending credit card companies letters urging them to cut off dealings with Backpage.com, now seeks Supreme Court certiorari review [Ronald Collins, earlier here, here, and here]
  • One problem with that Mississippi law: it gives extra protection to some religious beliefs about sex and marriage but not others [Popehat; my guest appearance on Mike Slater show, San Diego’s KFMB]

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AGs redefine climate dissent as “fraud”

I joined guest host Steve Simpson on Blog Talk Radio’s Yaron Brook Show, along with guests Sam Kazman (CEI) and Alex Epstein (“The Moral Case for Fossil Fuels”) to discuss the free speech threat of attorney general climate denial investigations (“AGs United for Clean Power”). Related, and recent: “Is Eric Schneiderman colluding with other AGs in an illicit war on Exxon?” [New York Post editorial) Investigation “a flatly unconstitutional assault on speech the state dislikes. I find something terrifying in the notion” [Stephen Carter, Bloomberg View] “While I think that climate change is both human-caused to a significant extent and likely to be a problem, I would warn my environmentalist friends about the dangerous precedent the attack on CEI sets.” [Eli Lehrer, Washington Examiner] “The Climate Police Escalate” [WSJ editorial]

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