- Unfounded prosecution of Texas Gov. Rick Perry dropped [Austin American-Statesman, Eugene Volokh, earlier]
- Mens rea: “The American Civil Liberties Union has discovered yet another civil liberty it isn’t interested in defending” [Robby Soave/Reason, Scott Greenfield]
- Speaking of lack of mens rea: accidentally damaging a lamp in a federal government building in D.C. could send you to jail for 6 months [40 USC §8103(b)(4) (more) via @CrimeADay]
- North Carolina cyberbullying statute criminalizes posting “personal… information pertaining to a minor” with “intent to intimidate or torment.” Constitutional? [Eugene Volokh]
- Even as doubts mount about the science behind shaken-baby prosecutions, convictions continue [Kelsi Loos, Frederick News-Post; Maryland dad gets 20-year sentence; earlier here, etc.]
- Like Clinton, Bernie Sanders in 1990s backed three-strikes, longer sentences, funds for prison expansion [Mitchell Blatt, The Federalist]
- “Most of the crime lab scandals… have occurred at crime labs that were already accredited.” [Radley Balko]
Claim: Virginia bill “not about [wanting] to have secret police”
So that you will respect us more, we now insist on being anonymous: the Virginia Senate has approved legislation exempting the names of police officers from disclosure under the state public records law. Sponsor Sen. John A. Cosgrove Jr. (R-Chesapeake), noting “that he knew many police officers and their families — said: ‘The culture is not one of respect for law enforcement anymore. It’s really, “How, how can we get these guys? What can we do?” … Police officers are much more in jeopardy.’ … Although other states have made moves to shield the identities of some officers, none would go as far as the proposal in Virginia.” A spokesman for the Fraternal Order of Police union, defending the bill, said that it “is not about trying to keep information from the public, to have secret police.” The immediate controversy that prompted the bill arose when the Virginian-Pilot newspaper in Hampton Roads filed a request for information on police employment, following up on tips that officers fired from one department would find work at another. [Washington Post]
Insta-update: Panel in Virginia House unanimously votes to kill the bill [WAMU, thanks commenter Matthew S.]
“Company wrests $100k payment from patent troll…”
“… but has no idea who paid.” Graphiq’s convincing victory against Lumen View shows how even with some recent pro-defendant shifts in the legal playing field, the economics of fighting off a patent troll are punishing. “Graphiq won its fight about as thoroughly and as quickly as possible — and forced the other side to pay up. Its total victory took advantage of both the Octane Fitness and Alice Corp. decisions, two Supreme Court decisions that tilted the playing field in favor of defendants. Yet even with those advantages, it still cost around a quarter-million dollars to win. Finally, the win shows the incredible lack of transparency in the murky world of patents. Even while Graphiq was paid $100,000, no one knows who paid the money.” [Joe Mullin, ArsTechnica]
“Federal judge: Stan Chesley’s attorneys tricked me”
Deeper and deeper for the onetime Master of Disaster: “U.S. District Judge James G. Carr ordered Chesley and his attorneys to appear next month and explain why he shouldn’t find they committed fraud on the court. Carr says in court documents that Chesley and his attorneys designed a scheme to avoid paying former clients who successfully sued him because he took far too much compensation in attorney’s fees.” [Joe Rosemeyer, WCPO, Debra Cassens Weiss, ABA Journal; earlier]
Donald Trump and libel litigation
Presidential candidate Donald Trump, speaking today: “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” Trump also said of Amazon, whose Jeff Bezos owns the Washington Post, a newspaper that just ran an editorial seeking to rally opposition to Trump: “If I become president, oh do they have problems. They’re going to have such problems.”
The President has no direct power to change libel law, which consists of state law constrained by constitutional law as laid out by the Supreme Court in New York Times v. Sullivan. A President could appoint Justices intent on overturning the press protections of Sullivan or promote a constitutional amendment to overturn it. Assuming one or the other eventually was made to happen, further changes in libel law would probably require action at the state level, short of some novel attempt to create a federal cause of action for defamation.
But although Trump is unlikely to obtain the exact set of changes he outlines, the outburst is psychologically revealing. Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O’Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune’s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be “one of the silliest things” that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.
I have been writing about the evils of litigation for something like 30 years, and following the litigious exploits of Donald Trump for very nearly that long. I think it very plausible to expect that if he were elected President, he would bring to the White House the same spirit of litigiousness he has so often shown as a public figure. (cross-posted at Cato at Liberty)
P.S. Also reprinted at Newsweek. And Ilya Somin cites further elements forming a pattern: Trump has expressed his wish to “have the FCC take some of his critics off the airwaves” and his regret that protesters at his events could not be dealt with in such a way that they “have to be carried out on a stretcher.” He also writes that should Trump proceed to appoint judges who strongly share his view of libel law, those judges “are unlikely to effectively protect other important speech rights and civil liberties.” And a late-January post from Patterico recalls Trump threats against the Washington Post (again), John Kasich, a t-shirt company, and a Jeb Bush PAC, to which might be added the Club for Growth, reporter Tim Mak, Scotland, Univision, and many more. Yet more: Mike Masnick, TechDirt.
Even the NLRB can’t comply with federal labor law
An administrative law judge has ruled that in 2014 the National Labor Relations Board, when it moved its headquarters to a different building in Washington, D.C., failed to carry out its obligation under federal labor law to fully negotiate the terms of the move with the union representing its workers. So if you’re a private company that feels constantly tripped up by the NLRB’s administration of the National Labor Relations Act, don’t feel bad: even the agency tormenting you can’t manage to comply [NLRB and NLRB Union, FLRA.gov via Jon Nadler]
Live-tweeting last night’s debate
As I’ve done a number of times, I live-tweeted last night’s Republican event under the #Cato2016 hashtag with some colleagues. Selections:
Trump boasts of sheriff Joe Arpaio's backing. Arpaio's record is one of "grave abuse of power": https://t.co/KFBulR4L3l #Cato2016 #GOPDebate
— Walter Olson (@walterolson) February 26, 2016
County paid $3.75 M over Arpaio deputies' arrest of two critical journalists at homes in middle of night https://t.co/Aj8phHviHZ #Cato2016
— Walter Olson (@walterolson) February 26, 2016
Cato's @ishapiro: I'm pro-immigration but Obama's DACA obviously violates both law & separation of powers https://t.co/kr3t1ZHawj #cato2016
— Walter Olson (@walterolson) February 26, 2016
While @tedcruz is no libertarian, Rep. @justinamash respects his brand of constitutional conservatism https://t.co/tYExgpUTZ1 #Cato2016
— Walter Olson (@walterolson) February 26, 2016
Profile by @davidlat of Trump's "impressive and path-breaking" sister, Judge Maryanne Trump Barry https://t.co/4DOrYAhmKX #Cato2016
— Walter Olson (@walterolson) February 26, 2016
"Common Core is out. We have to go local." @CatoInstitute research backs up what @realDonaldTrump said https://t.co/zQasvU4z6p #Cato2016
— Walter Olson (@walterolson) February 26, 2016
In the Trump U. case, @realdonaldtrump will face off against NY AG Eric Schneiderman. My take on him: https://t.co/VbqtdFM3g0 #Cato2016
— Walter Olson (@walterolson) February 26, 2016
Betcha can't unlock just one: “hundreds of iPhones they want Apple to unlock if the FBI wins this case.” https://t.co/TQ2gZCvF9Y #Cato2016
— Walter Olson (@walterolson) February 26, 2016
"Apple engineers are eff'ly being conscripted to build forensic software — a hacking app – for the FBI." https://t.co/r86AXyAvDc #Cato2016
— Walter Olson (@walterolson) February 26, 2016
Goal is impartial, objective law. No help when @tedcruz vows to begin criminal probe of group he dislikes on first day in office #Cato2016
— Walter Olson (@walterolson) February 26, 2016
More courtroom losses for EEOC, Labor Department
I’ve got a new post at Cato summarizing four recent cases in which judges have rebuked the Equal Employment Opportunity and Department of Labor, awarding attorneys’ fees against the agencies in two cases (Gate Guard and Freeman Cos.) and rejecting two major EEOC initiatives against wellness programs (Flambeau) and severance package language (CVS). Excerpt:
Why are independent, strong-minded courts so important to a free society? One reason is that they – and often only they – are the ones who can stop government agencies from trampling on the rights of the citizens….
Imagine what these agencies and others would be getting away with were our judiciary someday reduced to a spirit of subservience to the executive branch of government.
How one samurai judge handled positive externalities
In old Japan, it is said, the courts of Edo (now Tokyo) were presented with the complaint of a shopkeeper whose upstairs neighbor had enjoyed the delicious smell of his cooking without, as the plaintiff said would be fair, paying a price for it. To find out how the samurai judge cleverly resolved the complaint, read on…. [Dan Lewis, Now I Know]
Medical roundup
- Even into the thick of the scandal revelations, Sen. Bernie Sanders “wanted to believe that the VA was a model for government-run health care” [Tim Mak, The Daily Beast]
- Issues include state licensing, location of service for legal purposes: “How Congress Can Remove Barriers to Affordable, Quality Telemedicine” [Michael Cannon, Cato]
- “Resistance to anesthesia in the 19th century” [R. Meyer and S.P. Desai via Tyler Cowen]
- “There’s no evidence the FDA blocks innovation or makes innovation harder or makes it more costly,” claims one Harvard professor. Sens. Ted Cruz (R-Tex.) and Mike Lee (R-Utah) disagree and have introduced a FDA reciprocity bill to “make it easier for U.S. patients to access drugs and devices already approved in other developed countries” [Alex Tabarrok first, second, third (Daniel Klein and William Davis survey) posts]
- “Judge rules against Al Qaeda supporter who claimed medical malpractice against his jailers.” [Reuters]
- No, these aren’t “three parent” babies and Congress should not be talked into moral panic about them [Andrew Stuttaford]
- “Increase in nursing malpractice claims” [Nursing Services Organization and CNA Professional Liability via TortsProf]