Overlawyered: Chronicling The High Cost Of Our Legal System

More about EEOC v. Abercrombie & Fitch Stores

Cato has now posted the video of its annual Constitution Day conference including the civil rights panel, on which I spoke. My talk on EEOC v. Abercrombie & Fitch, the hijab religious-accommodation case, begins at 40:30, after presentations by William Eskridge of Yale Law School on the Obergefell (same-sex marriage) case, and Roger Clegg of the Center for Equal Opportunity on disparate impact in fair housing. Roger Pilon of Cato introduces us and moderates.

You can read my article on the Abercrombie case here, part of the newly published 2014-2015 Cato Supreme Court Review. I’m also quoted in the ABA Journal’s coverage of the case. Earlier here.

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Delaware: “Punkin Chunkin canceled for second year”

Punkin Chunkin, a ballistic pumpkin-launching event, had developed into a beloved Delaware event until a 2013 accident where an ATV overturned on a farmer’s field, leading to an injury claim. “On Oct. 8…organizers pulled the plug for a second year, saying liability insurance for the event had proven unobtainable. Even supporters of Punkin Chunkin were left wondering: Is it over for good?” [Wilmington News-Journal, our coverage last year] More: Bob Dorigo Jones.

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“Artist Sues Oakland Auto Dealer Over Mural’s Removal”

Muralist Dan Fontes “is seeking $400,000 in damages from the current and former operators of Autocom Nissan at Broadway and 27th Streets in Oakland.” His lawyer “argues that when the dealership painted over the mural in 2013, they violated the U.S. Visual Artist Rights Act (VARA), a law dating back to 1990. Among other things, the law requires a building owner to give an artist a 90-day notice before the mural is removed or painted over, so the artist can take back or at least document the work.” The mural itself predates VARA by three years — it was painted in 1987 — but the lawyer is taking the position that the 1990 law stripped rights from owners of existing mural works that had not changed ownership before the law’s passage, and reassigned them to original artists. [KQED, Contra Costa Times] We’ve covered VARA and the misnamed concept of “moral rights” before.

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Law enforcement for profit roundup

  • “Why Morristown officers seized the cars in the first place is unclear.” Maybe because it enabled an officer to pocket $6,000? [Tennessee: Watchdog] Louisiana town getting 87% of its revenue from traffic tickets has 188 people, 5 cop cars [Marshall Project via Balko] For second time, this time in Chicago case, former CEO of red light camera company cops a federal plea [Cyrus Farivar, Ars Technica]
  • Opposition from law enforcement shoots down asset forfeiture reform in California [Scott Shackford/Reason, more] Despite talk of being friendlier to forfeiture reform, Department of Justice fed talking points to reform opponents in California battle [TechDirt] “Most Americans don’t realize it’s this easy for police to take your cash” [Christopher Ingraham, Washington Post “WonkBlog”]
  • Other side of the ledger: how governments pay for claims against law enforcement [Joanna Schwartz, SSRN via TortsProf]
  • Louisville traffic school allows violators to get cases “dismissed without having to pay court costs… and generates revenue to operate the county attorney’s office” [Insurance Journal]
  • Lawsuit alleges private probation companies in Tennessee abusing power, free-marketers should be as worried as anyone else about misalignment of private, public incentives [Radley Balko, earlier]
  • Odd how feds can prevent someone resisting extradition from contesting asset forfeiture [Trevor Burrus/Cato, Ilya Somin on Kim Dotcom case]
  • Insurers often pool funds to support insurance fraud prosecution efforts, but critics say Travis County, Texas prosecutors are needlessly close to a single company [Texas Tribune]

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Medical roundup

  • Surprised this story of interstate lawsuit exposure hasn’t had national coverage: “Texas docs threaten to stop seeing New Mexico patients” [Hobbs, N.M., News]
  • More on the Daraprim episode and the fiasco of FDA generic-drug regulation [Watchdog, earlier here and here] More: Ira Stoll/N.Y. Sun;
  • Warrants, HIPAA be damned: Drug Enforcement Administration agents pose as Texas medical board to get at patient records [Jon Cassidy/Watchdog, Tim Cushing/TechDirt via Radley Balko]
  • Litigation finance and champerty: the reaction is under way [MathBabe, earlier on pelvic and transvaginal mesh surgery speculation]
  • No longer alas a surprise to see JAMA Pediatrics running lame, politicized content on topics like “youth gun carrying” [Jacob Sullum]
  • “Shame, blame, and defame”: in alcohol regulation as in other public health fields, government-funded research can look a lot like advocacy [Edward Peter Stringham, The Hill]
  • More adventures in public health: study finds dry counties in Kentucky have bigger problems with methamphetamine [Christopher Ingraham, Washington Post “WonkBlog”]

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WSJ on climate RICO

An editorial in this morning’s Wall Street Journal is blunt:

Advocates of climate regulation are urging the Obama Administration to investigate people who don’t share their views.

Last month George Mason Professor Jagadish Shukla and 19 others signed a letter to President Obama, Attorney General Loretta Lynch and White House science adviser John Holdren urging punishment for climate dissenters. “One additional tool — recently proposed by Senator Sheldon Whitehouse — is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change,” they wrote.

In other words, they want the feds to use a law created to prosecute the mafia against lawful businesses and scientists. … [RICO] can inflict treble damages upon a defendant. Enacted to stop organized crime and specifically to prosecute individuals tied to loansharking and murder-for-hire, it was long seen as so powerful a tool that the government warned prosecutors to limit its use.

The scientists’ RICO letter was “inadvertently posted” on the website of a group almost entirely funded by taxpayers [Ian Tuttle, National Review Online; Coyote] Rob Nikolewski at Watchdog.org has more on the letter and its aftermath, and quotes me:

Walter Olson, senior fellow at the libertarian Cato Institute’s Center for Constitutional Studies, thinks that’s a dangerous step to take.

“This is core political persuasion,” Olson told Watchdog.org. “If this is illegal racketeering, then potentially an awful lot of things that people debate about are also illegal racketeering … It’s a dangerous power because it won’t be used even-handedly.”

Earlier coverage here, here, etc. Some possible insight into litigation strategies of climate-RICO promoters at Inside Climate News here and here.

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Arbitration menaces class action bar. CFPB to the rescue!

Unveiling a plan to ban the use of arbitration clauses that rule out class actions, the federal Consumer Financial Protection Bureau behaves as a Plaintiff’s Lawyer Protection Bureau [Andrew Pincus, Chamber’s Institute for Legal Reform] More: Boston Globe, Alison Frankel, Reuters. Earlier and related here, here, here (California) and generally. And regarding news reports that Chrysler offers a $200 discount to car buyers who accept pre-dispute arbitration, Ted Frank:

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