Overlawyered: Chronicling The High Cost Of Our Legal System

Behind that “scientists’ letter” on climate denial as legal offense

Remember that “scientists’ letter” in which twenty or so credentialed scientists signed their names to a letter asking that so-called climate deniers be investigated, as Sen. Sheldon Whitehouse (D-R.I.) had been demanding? On inquiry, however, some of the signatories did not seem to know much about the letter or to be particularly committed to the idea. According to David Rifkin and Andrew Grossman’s new Wall Street Journal piece (ungated here), open records requests have now established that the letter was coordinated by Sen. Whitehouse himself. Background here, here, etc.

Rifkin and Grossman also announce the formation of a new, and badly needed, Free Speech in Science Project. “The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials.”

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Class action: too much air in that Starbucks latte cup

Coffee giant Starbucks is said to use too low a “fill-to” line in latte cups and a class action filed in federal court in California wants money over that [Nation’s Restaurant News via Ira Stoll, Future of Capitalism]

More, Nick Farr/Abnormal Use:

Regardless of the merits of the short-pouring allegations, one particular allegation in the suit gave us pause. The plaintiffs allege that “Starbucks refuses to fill any hot beverage to the brim of the cup. Thus, under no circumstances will Starbucks ever serve a Grande Latte that actually meets the fluid ounces represented on the menu.” If we read that correctly, it sounds like the plaintiffs are actually suggesting that hot coffee should be filled to the brim of the cup to ensure that they are getting the full bang for their buck. We are guessing that had Starbucks done so, there would be a whole other class of plaintiffs clamoring for some massive hot coffee burn litigation. Maybe the plaintiffs should demand Starbucks use bigger cups and let the not filling to the brim policy stand for those who value safety.

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Suit seeks to make tech firms pay for campaign against distracted driving

“In the lawsuit, the Coalition Against Distracted Driving and Stephen L. Joseph, as an individual, seek an injunction against Apple, Samsung, Google, and Microsoft, requiring those companies to pay $1 billion annually to fund an ‘effective and ongoing national public education campaign’ to educate drivers on the dangers of using smart phones and smart watches while driving.” The suit seeks to define the behavior at issue as a nuisance under California law. [Jared McClain, Washington Legal Foundation]

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Police and prosecution roundup

  • Amid multiple scandals, why won’t office of Orange County, Calif. District Attorney Tony Rackauckas confirm name of county investigator alleged to have beaten defense attorney in courtroom hallway? [R. Scott Moxley/OC Weekly via Radley Balko, Voice of OC]
  • And from February: “former Los Angeles sheriff Lee Baca announced that he would plead guilty to criminal charges related to systemic misconduct in his department, specifically to a charge of lying to investigators in an effort to cover up that wrongdoing.” [Kevin Williamson]
  • Post-Ferguson investigation: problems with small-town municipal courts go way beyond North St. Louis County into outstate Missouri [St. Louis Post-Dispatch]
  • Judge throws out mountain of tickets from Chicago traffic and speed cameras [TimeOut, Timothy Geigner/TechDirt, earlier]
  • Britain: following collapse of lengthy Operation Midland law enforcement inquiry into a fantasist’s wild tales of abuse (did senior Tories murder rentboys for fun?) vindicated officials and their families wonder where to turn to get their reputations back [Dan Hodges/Telegraph (citing Metropolitan Police commissioner Bernard Hogan-Howe’s favorable reference to a second official’s statement that “The presumption that a victim should always be believed should be institutionalized”); Matthew Scott/Barrister Blogger, Richard Bartholomew]
  • Supreme Court nominee: “In Criminal Rulings, [Chief Judge Merrick] Garland Has Usually Sided With Law Enforcement” [New York Times; more on Garland’s D.C. Circuit rulings]

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Economics, not competitor resentments, should guide FTC

George Mason lawprof and former Federal Trade Commission commissioner Joshua Wright, who specializes in antitrust, guestblogging at Daniel Fisher’s on FTC v. McWane:

Proving antitrust harm with rigorous economic evidence is hard. The FTC would prefer to avoid that route and instead favor an approach where lower courts would just defer to its “expert” judgment and conclude that whatever business practices the agency says are anticompetitive are in fact so. This outcome is unsurprising given that the FTC has ruled for itself in 100 percent of its cases over the past three decades – though it is reversed more often than the decisions of federal court judges. So much for unbiased rigor and expertise. But the Supreme Court has consistently rejected the view that the FTC or any antitrust plaintiff can make out a case with a stack of complaints from disgruntled rivals. Instead, the Supreme Court has made clear that the antitrust rules applied to the behavior of a single firm acting alone – that is, a firm alleged to have monopolized an industry on its own rather than joined a cartel with rivals – are to be governed by economic thinking and economic evidence instead of hand-waving and complaints from rivals alone.

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Colleges and the overtime edict

The damage from one of President Obama’s worst unilateral edicts, overtime for junior managers and other workers with middling salaries, is going to radiate through every sector of the productive economy. That includes academia: “The University of California school system, for instance, faces a $39 million-a-year tab for raises to avoid paying overtime to thousands of postdoctoral scholars, librarians and specialists. The University of Iowa says it would limit work hours of staff. And a state university in Missouri could cut some employee benefits.” [WSJ]

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“How collective bargaining undermines cybersecurity”

After the Immigration and Customs Enforcement Agency (ICE) noticed a rash of malware infections, it told employees to stop accessing personal webmail accounts from their government computers. Oh, no, said the American Federation of Government Employees (AFGE), which grieved the change as having been made without prior bargaining with the union. An arbitrator agreed, ruling that “federal law did not give federal agencies ‘sole and exclusive discretion’ to manage its information technology systems.” ICE appealed, but the Federal Labor Relations Authority (FLRA) “also sided with the union.” [Washington Times]

P.S. Reports of problems at the U.S. Embassy in London suggests that controls on employee use of at-work computers to send and receive private email might need some tightening up at the State Department too.

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Affirmative action hiring for the disabled

Notice of Proposed Rulemaking from the Equal Employment Opportunity Commission [EEOC]: “The proposed rule…would require federal agencies to adopt the goal of achieving a 12% representation rate for individuals with disabilities, and a 2% representation rate for individuals with targeted/severe disabilities.” [Workplace Prof] Comments are open through April 25.

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Garlock asbestos bankruptcy settlement

The case famous for helping crack open some of the secrets of the asbestos litigation business has reached a settlement, which will apparently include a settlement (probably without admission of wrongdoing) of civil RICO claims against several law firms. The revelations in the Garlock bankruptcy helped to bolster evidence that “some victims and their lawyers tell one story in one venue and another someplace else to ‘double dip’ the system” in cases against separate defendants. [Sara Warner, National Courts Monitor/Huffington Post; earlier]

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March 23 roundup

  • Never know who’ll benefit: supersedeas appeal bond limits, sought by tort reformers, may now save Gawker from ruin [WLF, earlier] Plus a Florida appellate court ruling on newsworthiness, and other reasons the scurrilous media outlet is hoping for better luck on appeal if it can get past the bond hurdle [Politico New York]
  • Governance in Indian country: Native American lawyer Gabe Galanda disbarred by Nooksack tribe while fighting disenrollment of some of its members [Seattle Times, followup (tribal judge rules due process was lacking, but in so doing, as employee serving at tribe’s pleasure, “potentially left herself open to being fired”)]
  • Revenge of the broken-winged pterodactyl: Maryland Democrats accuse each other of complicity in gerrymander in fight for Van Hollen’s House seat [me at Free State Notes]
  • Oh, DoJ: “enforced donation to ‘public service’ organizations that just happen to support the ruling party’s goals” [Jeb Kinnison citing this post of ours on mortgage settlements]
  • “Trump’s long trail of litigation” [Brody Mullins and Jim Oberman, WSJ; our earlier here, here, here, etc.]
  • Lansing prosecutor, an “outspoken advocate for ending human trafficking and prostitution,” now facing charges of go ahead and guess [WILX; our Eliot Spitzer coverage]

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