Overlawyered: Chronicling The High Cost Of Our Legal System

Update: Hubert Vidrine prosecution

In 2011 we wrote about the remarkable case in which Opelousas, La. plant manager Hubert Vidrine “won a rare $1.7 million verdict against the federal Environmental Protection Agency (EPA) for malicious prosecution, with a judge lambasting EPA’s enforcement apparatus for ‘reckless and callous disregard’ of Vidrine’s rights.” According to a local paper’s report, a federal officer “was accused of targeting Vidrine because of his outspokenness and choosing an investigation in Louisiana to be close to a woman with whom he was having a sexual affair.” Defenders of the agency were at pains to portray it as an “unusual situation.”

Now there’s an update to report [FindLaw, h/t Institute for Justice “Short Circuits”]. The factory’s owner, Trinity Marine Products, had also been prosecuted in the case, but was not involved in Vidrine’s personal quest for justice afterward:

According to court documents, Trinity wasn’t even aware of the federal agents’ affair and its concealment until 2011 when one of Trinity’s employees read a blog post mentioning the affair and a DOJ press release giving details. Trinity promptly filed a FTCA claim in 2012.

The question was whether the company’s claim was untimely under the statute of limitations because the prosecution had been nine years earlier. A Fifth Circuit panel has now ruled that the suit can go forward under equitable principles because the government had not established that Trinity could by reasonable diligence have learned the reason for its injury earlier. FindLaw again:

The fact of the matter is this: the blog piece was only written because there was an unsealing of court documents that had detailed the motive behind the FBI agents’ lies. And since these lies were the cause of Trinity’s eventual injury (criminal indictment), no reasonable due diligence would have uncovered them.

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Schools roundup

  • Fear of regulators drives many campuses to restrict speech [Greg Lukianoff of FIRE interviewed by Caleb Brown, Cato podcast] New UCLA Title IX policy requires faculty to inform on “possible” sex harassment, and Prof. Bainbridge objects;
  • Tributes to my much admired colleague, the late Cato Institute education scholar Andrew Coulson [Neal McCluskey and Jason Bedrick, Adam Schaeffer, Nick Gillespie/Reason]
  • “Total Law School Enrollment at Lowest Point Since 1977; 1L Class Size Lowest Since 1973” [Derek Muller]
  • New Jersey: “Elizabeth Public Schools Spend More on Attorneys than Textbooks, Heat or Electricity” [WPIX (autoplays)]
  • “I began to see the social sciences as tribal moral communities, becoming ever more committed to social justice, and ever less hospitable to dissenting views.” Jonathan Haidt interviewed by John Leo [Minding the Campus]
  • Furor continues over U.S. Department of Education funding of “facilitated communication” with profoundly disabled persons [David Auerbach, Slate]
  • “Rhode Island: Children Under 10 Shall Not Be Left Home Alone, Even Briefly” [Lenore Skenazy]

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Originalism and cell phone unlocking

In a case raising some of the same issues as the dispute over forcing Apple to unlock the San Bernardino killer’s iPhone, a federal magistrate judge in New York has ruled that the All Writs Act does not empower courts to order the unlocking of an alleged drug dealer’s phone. The legal issues are complex, but — I argue in a short piece at Ricochet — belie the notion that originalism in judicial interpretation is going to fade away with Justice Scalia no longer on the Supreme Court. More background: Sarah Jeong.

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March 2 roundup

  • Pennsylvania bill would restrict the pre-paid business cemeteries could do, which by remarkable coincidence would benefit their competitors on the funeral home side [Allentown Morning Call]
  • How to get capital out of China? Lose a lawsuit on purpose [Chuin-Wei Yap, WSJ Law Blog]
  • Arms-trafficking sting caught crusader against videogames, guns: “Judge Sentences Ex-California Senator Leland Yee to Five Years for Racketeering” [KNTV (auto-plays), earlier]
  • Workplace bias, which can mean a lot of things, would be an ethics violation for lawyers under proposed ABA model rule [ABA Journal, more]
  • Breaking: New York court denies Donald Trump’s bid to throw out AG Eric Schneiderman’s suit over Trump University [ruling, The Hill, Eric Turkewitz] More background: Lowering the Bar.
  • Grounding interstate comity: California Assemblyman Evan Low (D-Campbell) wants to ban state-funded travel to sister states with religious conscience laws [Bay Area Reporter (“discrimination of any kind …will certainly not be tolerated beyond our borders.”)]
  • “NY Times: Contaminated Property Makes For Costly Inheritance” [Paul Caron/TaxProf]

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Hillary’s chronic anti-speech instincts

While on the topic of presidential candidates’ disturbing views on speech: Matt Welch recalls the former Secretary of State’s many campaigns against controversial videogames, ads, and entertainment, her regular support for government intrusion in communications technology and social media on a rationale of national security, and her far from wholehearted defense of speech values when an inflammatory amateur YouTube video caused riots in Muslim nations [“Hail to the Censor! Hillary Clinton’s long war on free speech,” Reason] Nor should we forget the Citizens United case, which arose from a legal effort to suppress a critical movie made about her: Mrs. Clinton imagines that “allowing more campaign-related speech has made elections less competitive” [Jacob Sullum, Reason] More/update: Matt Welch.

While we’re at it: that period of his career when Bernie Sanders bent himself in knots to rationalize government censorship of opposition voices. [Michael Moynihan, Daily Beast] Bonus: Bernie sees brighter side of breadlines!

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Why regulated academics don’t identify with regulated businesspeople

Missed this outstanding Jacob Levy post from 2014, you should really read the whole thing but here’s an excerpt:

A lot of people a lot of the time underestimate how burdensome, onerous, and intrusive complicated bureaucratic rules and regulations are. …Politically we associate this kind of talk with business owners and managers complaining about government regulation, and that’s not a class to which academics are (as an overall pattern) especially warmly inclined– but goodness knows that academics understand these dynamics when it comes to the administrative micromanagement of our own professional lives. Time that we should be spending researching or teaching is instead spent asking for permission to do so, by humbly seeking to prove ourselves innocent of all sorts of potential malfeasance. No, I didn’t buy a glass of wine with that grant money. No, I haven’t given an in-class exam during the two weeks before finals. No, my study of Plato does not involve potential harm to human subjects or laboratory animals. No, I haven’t made up publications to include on my CV for my performance review. Yes, here’s the proof in triplicate.

I think this is a case in which our biases between groups we like and groups we don’t is especially strong. We are mainly honest competent adults trying our best to do what we’re supposed to do, and they keep getting in our way with these insulting burdensome rules; they don’t take seriously the cost to our time and energy of having to prove compliance constantly, both by paperwork and by subordination to the administrative officials who monitor all of us in order to detect wrongdoing by a tiny few. You are basically suspect characters to begin with, and if we let you get away with it you’d all be running wild, and the other ways you were going to spend your time we don’t really like anyways, and we’re dubious enough about you that monitoring you closely is a good idea anyway even if some of you aren’t technically violating the rules, and the moral cost of even one of you getting away with this terrible thing is so great that we simply have to prevent it, and anyway what are you complaining about, if you obey the rules like you supposed to, there’s no harm to you.

As I say, read the whole thing, which also includes an analysis of the actual likely effects of a typical venture in legislative posturing, a ban on dispensing food stamps to lottery winners.

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Lawyers see boom in cash-seeking web-ADA suits

I’ve predicted that with wider acceptance of the legal theory that the ADA requires websites to reflect the needs of blind, deaf, paralyzed, and other disabled users in their design, there will eventually emerge filing mills generating form complaints alleging lack of online accessibility, just as we see with ADA complaints in some states against brick-and-mortar stores on Main Street. Now, after years of effort from disabled advocacy groups and the Obama administration to overcome unfavorable court precedent, we may be several steps closer to that day [Amanda Robert, Legal NewsLine]:

Defense attorneys say there has been an “explosion of activity” from payment-seeking plaintiffs lawyers and their blind clients who are alleging violations of federal disabilities law in lawsuits over companies’ websites – particularly in three jurisdictions [California, New York, and Pennsylvania].

One Pittsburgh attorney representing two blind plaintiffs has brought cases against Hard Rock Café International, Toys “R” Us, and Pep Boys over their online operations, as well as a case now consolidated against 16 different defendants including Ace Hardware, Brooks Brothers, the National Basketball Association and Red Roof Inns. As for smaller businesses, they are for the most part not exempt under the law, so their time will come too.

Much more on web accessibility here and on ADA filing mills here.

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The biggest cases, without Scalia

This year’s eight-member court may reach different outcomes than had formerly been expected in Friedrichs v. California Teachers Association, the public employee union dues case; the Obamacare religious exemption cases including Little Sisters of the Poor v. Burwell; and Fisher v. Texas, the affirmative action case, among others. Also diminished: the chance that the Court will overturn its doctrine of “Auer deference” to agencies’ interpretations of their own regulations, a doctrine laid out by Scalia himself which he later came to reconsider [Adam Gustafson, Washington Examiner] Plus the trio of class action cases, the challenge to the EPA’s coal-throttling Clean Power Plan, and much more [Daniel Fisher, Forbes] (& welcome Wall Street Journal Law Blog readers)

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