Overlawyered: Chronicling The High Cost Of Our Legal System

Federal court slaps down Kamala Harris grab for donor lists

“Today a US District Court ruled in favor of Americans for Prosperity Foundation’s lawsuit against California Attorney General Kamala Harris, ruling that her demands for the Foundation to hand over its list of members and supporters is unconstitutional.” [AFP] We’ve repeatedly covered Harris’s unprecedented drive to demand disclosure of donor lists by nonprofits that carry on activities in California, a step likely to lead to private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes.

As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charity fraud, that (contrary to assurances) her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

An ally of the plaintiff’s bar and unions, Harris recently surfaced as an apparently key player in the alliance of state attorneys general intent on using criminal investigatory powers to probe so-called climate denial at non-profit research and advocacy groups as well as at energy companies like ExxonMobil. That makes at least two episodes in which Harris has signaled interest in unprecedented and aggressive steps to pry open the internal workings of private advocacy organizations that take positions adverse to hers. Harris is a leading contender in the Democratic Senate primary to succeed California Senator Barbara Boxer.

Update: Now expanded and adapted into a longer post at Cato.

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Morgan & Morgan marches on, now with RFK Jr.

Orlando trial lawyer John Morgan, whose personal injury law firm bids for the distinction of the nation’s largest, has long been active in politics and policy (including the good libertarian cause of legalizing medical marijuana). So there isn’t much that’s newsy about his hosting an April 29 fundraiser for Hillary Clinton headlined by former President Bill Clinton. More noteworthy is that his law firm, per a March 31 announcement, is now welcoming to its practice as of counsel wayward scion Robert F. Kennedy, Jr., the celebrity environmentalist and frothing hothead long associated with the Florida firm of Levin Papantonio. Along with Kennedy, of course, comes metric tons of baggage — on anti-vaccine scaremongering, on hyperbolic crusades against farms, on demands to put his ideological adversaries behind bars, as would-be EPA administrator, and so much more.

P.S. We have often referred to RFK for short in the past as America’s Most Irresponsible Public Figure®. Is it time to retire that nickname in light of the continued rise of other public figures who might justly contend for that title?

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Campus climate roundup

  • New college freshmen show scant knowledge about or commitment to free speech. How’d that happen? [Howard Gillman and Erwin Chemerinsky, L.A. Times via Josh Blackman] New Gallup survey of students on campus speech [Knight Foundation and report] Greg Lukianoff (FIRE) interviewed [Fault Lines]
  • Senior Ohio State administrator coolly advises protesters that not retreating from their “occupied space” will involve getting arrested and expelled [Eric Owens, Daily Caller]
  • Mizzou’s chief diversity officer asked university administration to assist protesters with logistics. And it did. [Jillian Kay Melchior, Heat Street]
  • No, the regents of a public university should not be saying that “anti-Zionism” has “no place at the University of California.” [Eugene Volokh]
  • “In Her Own Words: Laura Kipnis’ ‘Title IX Inquisition’ at Northwestern” [FIRE interview, earlier] Title IX complainant at U.Va.: that mural must go [Charlotte Allen, IWF]
  • National Coalition Against Censorship, AAUP, FIRE, and Student Press Law Center voice opposition to calls to ban anonymous speech apps such as Yik Yak on campus [NCAC, College Fix, earlier]

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New York: “Bill Would Let Cops ‘Field Test’ Your Phone After an Accident”

“All you really need to know about New York Senate Bill S6325A is that it would create a law named after a person (this one would be ‘Evan’s Law’), since any law named after a person is almost always a terrible idea. (See, e.g., ‘Caylee’s Law,’ a terrible idea in 2011.) If the law were a good idea, they wouldn’t need to try to generate support by manipulating people’s emotions.” But the law — which would empower police to demand inspection of your cellphone after any auto collision, for the stated purpose of seeing whether the recent use of it had distracted you, and would provide for automatic license suspension if you refused — is in fact a very bad idea. [Lowering the Bar]

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Jon Hyman on overtime for salaried workers

At Workforce.com, attorney/blogger Jon Hyman, often linked in this space, follows up on the Mercatus Center report on the high cost of the Obama administration edict ordering overtime for mid-level salaried workers. He writes:

I’d like to focus on one such unintended consequence — lack of workplace flexibility.

From the report:

If employers are forced to record and measure employee hours, they will shift away from allowing employees to telecommute because the cost of monitoring hours for telecommuting is significantly higher, although not impossible given new technologies. The proposed regulation would create a scenario whereby telecommuters have an incentive to work overtime because they would get paid 1.5 times the regular rate and, knowing this, employers have an incentive to make sure employees do not work overtime. A mechanism will be needed by which the employer is able to track the work hours of employees such that the employer knows when an employee is working overtime. Showing up at work and clocking in is the mechanism by which employers normally track employees’ hours. With telecommuting, it is difficult for an employer to track the number of hours worked. As a result, employers may require telecommuters to start physically showing up for work so that they to track and monitor the number of hours these employees work.

Employees like being exempt. They like the flexibility of not having to track their hours. They like the flexibility that comes with a salary that compensates an employee for all hours worked in week, whether it’s 30 hours this week, or 65 hours next week, or 47 hours the week after. The new regulations will strip 5 million employees of this flexibility and convert them to time trackers. Does this change benefit employees? I bet if you polled the 5 million, you’d find that most would prefer to keep their flexibility instead of trading it in for whatever minimal additional compensation (if any) they expect to recover from a switch to non-exempt.

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April 20 roundup

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“Man Accepted by 10 Law Schools Sues for Age Bias”

“Sixty-eight-year-old Geoffrey Akers, highly accomplished both academically and professionally, has sued the University of Connecticut Law School over the school’s denying him twice into its 2012 and 2013 classes. Akers applied to 11 law schools over the past several years. U. Conn Law School was the only school that didn’t accept him.” [FindLaw]

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More state battles on religion, sex, and discrimination law

Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]

Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]

Finally, I’ve got a letter to the editor in the Wall Street Journal responding to an opinion piece the paper had run by Georgia state senator William Ligon:

Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.

Walter Olson
Cato Institute
Washington

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