Overlawyered: Chronicling The High Cost Of Our Legal System

Business, gay rights, and the law: what comes next

Following the furor over RFRA (Religious Freedom Restoration Act) legislation in Indiana and Arkansas this week, I’ve got a new piece in today’s New York Daily News on the emergence of American business as the most influential ally of gay rights. Links to follow up some of the quoted sources: Reuters on Walmart, Tony Perkins/FRC on pieces of silver, Dave Weigel on how public opinion in polls tends to side with the small business owners. I wrote last year on the Arizona mini-RFRA bill vetoed by Gov. Jan Brewer.

On the social media pile-on against a small-town Indiana pizzeria, see also the thought-provoking column by Conor Friedersdorf (more, Matt Welch). Also recommended on the general controversy: Roger Pilon, Mike Munger/Bleeding Heart Libertarians, and David Henderson on freedom of association, David Brooks on getting along, and Peter Steinfels on liberal pluralism and religious freedom.

Relatedly, Cato has now posted a podcast with my critical views (earlier) of the “Utah compromise” adding sexual orientation as a protected class while also giving employees new rights to sue employers over curbs on discussion of religion and morality in the workplace (h/t: interviewer Caleb Brown). For a view of that compromise more favorable than mine, see this Brookings panel.

Filed under: , , , , , , , ,

“LAPD officers awarded $4 million for post-shooting discrimination”

“A jury has awarded a total of $4 million to two Los Angeles police officers who sued the department alleging discrimination and retaliation after the shooting of an unarmed autistic man five years ago….They alleged that as Latinos their restrictions [to desk duty] were discrimination after the shooting of Steven Eugene Washington, who was black. Chief Charlie Beck denied that race was involved in the restrictions, saying the men were on desk duty because of the department’s potential liability.” [Southern California Public Radio]

Filed under: , ,

Medical roundup

  • “Embattled Broward Health paid law firm $10.2 million; tab included a lawyer’s M&Ms” [Miami Herald]
  • “Journalists were not very interested in the areas of vaccine policy that are actually debatable. They just wanted to find fools and laugh at them.” [Matt Welch]
  • Wider access to pharmaceutically based drug rehabilitation may be sound policy. But is it compelled by the ADA? [Huffington Post via @sbagen]
  • Kamala Harris carries water for the SEIU in a hospital deal, and Californians are the losers [John Cochrane]
  • Drug case: “Hagens Berman argument ‘gives new meaning to frivolous,’ judge says; sanctions imposed” [ABA Journal]
  • California: Kaiser Permanente “ordered to pay woman more than $28 million” [L.A. Times]
  • “Bacteria can evolve. So can McDonald’s. Maybe federal policymakers can as well, before it’s too late.” [Steve Chapman]

Filed under: , , , , ,

“You are probably breaking the law right now”

Glenn Reynolds on overcriminalization and regulation [USA Today]:

Regulatory crimes” of this sort are incredibly numerous and a category that is growing quickly. They are the ones likely to trap unwary individuals into being felons without knowing it. That is why Michael Cottone, in a just-published Tennessee Law Review article, suggests that maybe the old presumption that individuals know the law is outdated, unfair and maybe even unconstitutional. “Tellingly,” he writes, “no exact count of the number of federal statutes that impose criminal sanctions has ever been given, but estimates from the last 15 years range from 3,600 to approximately 4,500.” Meanwhile, according to recent congressional testimony, the number of federal regulations (enacted by administrative agencies under loose authority from Congress) carrying criminal penalties may be as many as 300,000.

And it gets worse. While the old-fashioned common law crimes typically required a culpable mental state — you had to realize you were doing something wrong — the regulatory crimes generally don’t require any knowledge that you’re breaking the law. This seems quite unfair.

Filed under: , ,

Fourth Circuit ruling in social anxiety disorder ADA case

A deputy clerk of court in North Carolina allegedly suffered from social anxiety disorder, characterized (per the DSM) as “marked and persistent fear of … social or performance situations in which [a] person is exposed to unfamiliar people or to possible scrutiny by others.” While these fears led her to request to be insulated from customer service responsibilities, they did not inhibit her from secretly tape recording interviews with four supervisors involved with her firing. Reversing a lower court, the Fourth Circuit allowed her ADA accommodation claims to go forward in what Robert Fitzpatrick calls a “remarkable, and potentially far-reaching decision.” Excerpts from Fitzpatrick’s account:

Similarly, in a footnote, the Court indicated that if the plaintiff, took longer than necessary to complete her microfilming work and procrastinated in returning to the front desk, as the defense had alleged, “this may constitute avoidant behavior consistent with a diagnosis of social anxiety disorder.”

The court also reasoned that because the employer, on top of the various reasons it cited in firing her, later cited additional grounds for firing when the case reached a judge, this suspicious “piling on” could be read as evidence of pretext.

Filed under: , ,

Liability roundup

  • “Judge dismisses Brady Center’s lawsuit. Ammo retailers not to blame for Aurora theater killer” [Denver Post via @davekopel]
  • “Ever been in a crowded subway car when a gunfight broke out? I have.” And it relates to slip-fall cases [Eric Turkewitz]
  • No more of Prosser’s tricks: Scalia warns modern Restatements “of questionable value, must be used with caution” [Orin Kerr]
  • Impact of revelations in Garlock document trove continues to ripple: “Insurer Claims Asbestos Fraud Tainted Pittsburgh Corning Bankruptcy” [Daniel Fisher, Forbes, earlier]
  • Trial lawyer allies want to make California’s insurer-shackling Prop 103 even (if possible) worse [Ian Adams, Insurance Journal, see also]
  • “The settlement shakedown”: Scott Shackford on the Moonlight Fire case in California [Reason, earlier]
  • This must be what they call a hellhole jurisdiction [comic book cover via Jim Dedman, Abnormal Use]

Filed under: , , , ,

Lawmaker seeks ban on home-insurance “breed discrimination”

Home insurance companies often charge higher premiums to homeowners whose breeds of dog have a bad loss experience, and that practice is unfair and even “ridiculous,” thinks Connecticut lawmaker Brenda Kupchick (R-Fairfield). If “breed discrimination” is banned, and insurers instead pass the uncovered losses on to owners of other dog breeds or policyholders generally, that would not be unfair or ridiculous, right? [AP/Insurance Journal; David Moran, Hartford Courant (reg)]

Filed under: , ,