Overlawyered: Chronicling The High Cost Of Our Legal System

In Fairfax police shooting, still no word

It’s been more than a year since police shot John Geer, and the Fairfax department still won’t release the name of the officer who killed him. This has all been happening in the national media’s own backyard, the suburbs of Washington, D.C. [Robert McCartney, WaPo] In Ferguson, Mo., a delay of several days in releasing the name of the officer who shot Michael Brown was among the grievances that set off protests and confrontations that made world news; yielding to pressure from police associations and unions, many departments have adopted policies against releasing the names of officers involved in shootings either for an initial period or even indefinitely while an investigation remains open. Writes Alexander R. Cohen: “We’ve seen more patriotism from the people of Ferguson than from the people of Fairfax on this issue.”

P.S. Also, from Slate Star Codex, how Ferguson turned into a Referendum on Everything.

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In Britain, shotgun control at your doorstep

From the United Kingdom [Camilla Swift, The Spectator]:

Police this week were granted the authority to carry out random, unannounced checks at the home of anyone who has a gun license. Why? They claim that shooters may be ‘vulnerable to criminal or terrorist groups’ and this is the way to tackle the ‘problem’. The new Home Office guidance assures us this won’t occur ‘at an unsocial hour unless there is a justified and specific requirement to do so.’ Some get-out clause.

More: CPSA. Perhaps, in our American Bill of Rights, there is more of a connection between the Second Amendment and Fourth Amendment than is at first apparent.

And: “Watervliet, NY Asks Pistol Permit Applicants for Facebook Passwords. Or Not.” [Robert Farago, The Truth About Guns]

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EEOC to court: never mind whether we use background checks too

Sean Higgins, Washington Examiner:

The Equal Employment Opportunity Commission told a district court that it should not have to reveal its own policies regarding criminal background checks because that information is not relevant to the discrimination cases it files against private companies.

Background from Jon Hyman, Ohio Employer’s Law Blog:

This argument [advanced by automaker BMW, whose policies the EEOC is challenging] is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

And a Sept. 17 House subcommittee hearing on EEOC adventurism, reported at Employee Screen, includes this on possible reforms:

Proposed legislation discussed at the hearing included H.R. 4959, the “EEOC Transparency and Accountability Act”, which would require the EEOC to maintain up-to-date information on its website regarding charges and actions brought by the EEOC; H.R. 5422, “Litigation Oversight Act of 2014”, which would require the EEOC to approve by a majority vote to begin or intervene in litigation involving multiple plaintiffs or systemic discrimination; and H.R. 5423, “Certainty in Enforcement Act of 2014”, which would protect employers from EEOC action in cases that specifically involve criminal background checks required by state or local law. …

[The subcommittee chair, Michigan Republican Rep. Tim] Walberg noted that 19 stakeholders representing a wide variety of constituents signed a letter supporting all three bills, which included the National Association of Professional Background Screeners (NAPBS), SHRM, and other professional, healthcare, retail and food service organizations.

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Scorched-pew litigation: Houston subpoenas pastors’ sermons

Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications. [KTRK, Houston Chronicle; text of subpoena request; motion to quash] The city has already backed off in part, saying it will narrow the demands to focus on the issue of whether the plaintiffs were aware of petition procedures. [Jacob Gershman, WSJ]

Eugene Volokh has a useful analysis (more) of how churches, like reporters, do have some additional First Amendment protections against being asked to disclose just anything. But a way to protect litigants and third parties more systemically would be to narrow the scope of discovery generally (e.g. to information relevant to the actual claims and defenses in the suit) and shift more burdens of cost and proof to the demanders’ side.

I hope the city is shamed into calling off the fishing expedition entirely. That having been said, I find it fascinating that so much of the coverage in the conservative press downplays or omits the fact of the ongoing litigation (Todd Starnes buries it in paragraph 8, and Ted Cruz’s statement never even mentions it) thus leaving many readers with the impression that the city is using police or administrative powers to demand the information, which would pose an entirely different set of challenges for public liberty.

[Title updated 9 a.m.]

P.S.: This contentious courtroom dispute may previously have featured troublingly broad discovery demands from the other side, if one accepts as valid the comments of “Mike in Houston” at Stephen Miller’s post: “there’s no mention of the subpoenas coming from the anti-HERO side that have targeted a whole range of city employees, private citizens, nonprofits and pastors who spoke out in favor of the ordinance (and assisted with the pro-HERO organization efforts.)” Yet more: Sarah Posner, Religion Dispatches (various liberals, moderates, church-state separationists, and pro-LGBT figures critical of requests’ overbreadth).

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Harvard law professors: stand up to feds on campus-sex courts

This is big:

As members of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration…

Amid the clamor to provide fuller remedies to complainants who file sexual assault and harassment charges, the university is preparing to trample the interests of others:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.

Among the problems: overly broad definitions of misconduct in situations like that of mutual incapacitation by alcohol, and procedures that deny “any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Had Harvard arrived at these rules as a result of purely internal deliberations, it would be one thing. But in practice it’s yielding to strong-arm pressure from the combined efforts of the Obama Department of Justice and Education Department Office for Civil Rights (for more details, see my article for Commentary last year.)  Like hundreds of other colleges and universities over the past year, Harvard responded to this pressure by meekly folding its hand:

The university’s sexual harassment policy departs dramatically from [existing] legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.

It’s especially gratifying to see that the letter’s 28 signers include prominent scholars associated over the years variously with feminist, liberal, and left-leaning causes, such as Nancy Gertner, Charles Ogletree, Charles Nesson, Janet Halley, and Elizabeth Bartholet, along with perhaps more expected names like longtime contrarian Alan Dershowitz. A turning point? Let’s hope so. The letter is here (h/t Eugene Volokh; & further Boston Globe coverage). [cross-posted from Cato at Liberty]

Also: “the danger of holding an innocent person responsible is real.” [Judith Shulevitz, New Republic, quoting Prof. Halley]

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Medical roundup

  • More on effort to blame federal budget cuts for Ebola [Chris Edwards chart at Cato; Nick Gillespie, Reason; Michael Tanner, earlier] How Firestone, rare multinational firm with a large presence in Liberia, fought the disease [NPR] More: Heck of a job, Nicole: administration already has Ebola czar [Mollie Hemingway]
  • Train wreck postponed: “Administration Delays Home-Care Worker Minimum-Wage, Overtime Protections” [Kaiser Health News, earlier here, here, etc.; California will not delay]
  • “Should it be OK to fire employee for using medical marijuana?” [Debra Saunders, San Francisco Chronicle/syndicated, and thanks for quote; Jacob Sullum on Colorado “any lawful activity” statute]
  • Venture capital interest dwindles in cardiac and orthopedic medical device sectors amid concerns over regulatory hassle, tax, reimbursement problems [WSJ (also Avalon), Arnold Kling]
  • Billing code for “repeat doctor visit after being sucked into jet engine” probably little-used [Lowering the Bar, and surprise sequel]
  • British ambulance workers’ strike will hit scheduled patient visits rather than emergencies, so that’s okay [BBC]
  • Does Takings Clause, in combination with unconstitutional-conditions doctrine, require feds to compensate hospitals for EMTALA emergency-treatment mandate? [Haavi Morreim, Regulation, PDF] EMTALA, disability discrimination, and claimed “dumping” of psychiatric patients [Alison Somin on Gail Heriot dissent]

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