May Day special: morris dance liability

So far as I can tell, this insurance page from Great Britain is entirely in earnest:

Public Liability Insurance for Morris Dance Troupes

We provide instant, on-line morris dance troupe public liability insurance quotes and cover from our panel of specialist liability insurers and our own unique underwriting facilities in the United Kingdom….

Why does a morris dance troupe need public liability insurance?

Every day morris dance troupes face the risk of legal action being taken against them in respect of their liability for personal injury or property damage arising in the course of their business activities. The awards that may be made as a result of a successful claim can be catastrophic but even the legal costs of defending the most spurious claim can cause severe financial hardship.

On the other hand, this page from the plaintiff’s side appears to have been written at least with a bit of tongue-in-cheek:

The no win no fee Elstow Morris dancing accident injury claim specialist

A little bit of Morris-dancing never hurt anybody; or did it? You might need the services of a specialist no win no fee Elstow Morris dancing accident injury claim solicitor, if, whilst strutting your stuff, you’re struck in the face by a Morris stick, or even a handkerchief, and break a bone, or sustain an eye injury. …

Launching a no win no fee Elstow Morris-dancing accident injury claim

Sometimes, shards of wood can splinter off the Morris-sticks and strike someone causing an injury, and sometimes small children can inadvertently get in the way, and sustain an injury. In cases like these, be it a Morris-dancer, or a spectator, or a child that is injured, AAH, the specialist no win no fee Elstow injury claim lawyer, can be called on to help to launch a personal injury claim. All troupes of public performers, be they acrobats or Morris-dancers, must have public liability insurance.

FDA to back off bad rule on spent brewing grains?

The Food and Drug Administration is signaling that it may rethink a much-criticized rule that would severely restrict the reuse as livestock feed of “spent” grain used in the making of beer and other fermented beverages. [WLF “Legal Pulse”] That’s good news as far as it goes, but it’s a form of exception-making that would seem to be driven at least in part by the high visibility of this one particular recycling-and-sustainability constituency (microbrewery beer is a hot leisure activity, and and craft/organic animal husbandry is a popular consumer enthusiasm these days in educated urban circles as well). The implementation of the Food Safety Modernization Act (FSMA) of 2011 is endangering a wide range of other local, non-industrial, and traditional farming and foodmaking techniques, “such as using house-made fertilizers and irrigating from creeks,” that might not enjoy the broad constituency of microbrewing. Will anyone in Washington stick up for them?

“It was a golden prison….”

“…They’d traded dignity for money. That’s what lenient retirement boards do to people.” An ex-fireman has drawn criticism by suing the city of Providence for $7 million, saying it unfairly cut off his check after a TV station filmed him “doing a muscular weightlifting workout,” calling his claimed shoulder-related disability into doubt. [Mark Patinkin, Providence Journal]

Drop that arrowhead, cont’d

Last month I wrote about a strangely aggressive FBI raid on the rural Indiana home of a retiree locally famous for collecting artifacts and curios from around the world. In a piece written then but overlooked by me at the time, Radley Balko puts this in the context of equally aggressive armed enforcement raids on Indian artifact collectors in Florida and Utah, resulting in ruin for many defendants and, according to the reporting, at least four suicides of persons under investigation. Balko:

I remember collecting arrowheads as a kid. Depending on the state and the land on which you’re finding them, that in itself may or may not be legal today. Some states began banning the practice decades ago. But the laws were rarely enforced, and when they were, authorities targeted people stealing from preserved sites or tribal lands, or selling high-dollar artifacts.

No more. Under the phalanx of state, federal, and tribal laws, it may be a felony not only to buy and sell some manmade artifacts, but also to remove them from the bottoms of creek beds or dig them from the dirt. Most of the people busted in the Florida raids were hobbyists. And it’s conceivable that some of them had no idea they were breaking the law — though it also seems likely that some probably did.

Environmental roundup

Low-balling the costs of home health carer overtime

From a casual glance at the account by the Pew Foundation’s StateLine in USA Today, you might think President Obama’s proposal to require overtime for home health carers (covered earlier here and here) was not so very costly or burdensome. “States wary home care worker rules could cost millions,” reads the headline. Paragraph 6 seems to confirm that the stakes are just in the low millions, which would be minor as health care policy changes go: “The U.S. Department of Labor estimates the rule will cost $6.8 million a year over a 10-year period, with private businesses and state Medicaid programs picking up the tab.”

On the other hand, you might find the above-cited number to be suspiciously low, what with advocates of the rule promoting it as a major boost to the take-home pay of nearly 2 million home care workers ($6.8 million works out to about three and a half bucks per year for each such worker). Thirteen paragraphs later, the tune has changed: “California, which already applies its $8 minimum wage to home care workers, but not overtime, estimates the new overtime requirements will cost the state more than $600 million in 2015-2016.” That is to say, just one state (California) gives an annual cost estimate for the rule that’s about 100 times the national cost estimate recited earlier in the piece. What gives?

This September account from Littler Mendelson, while not itself as clear as one might like, sheds some light on the discrepancy:

The DOL estimates the new regulations will affect approximately 1.9 million home care workers in the United States. The DOL contends the primary effect is “the transfer of income from home care agencies (and payers because a portion of costs will likely be passed through via price increases) to direct care workers, due to more workers being protected under the FLSA.” While described by the DOL as a “transfer of income,” in actuality the DOL’s numbers are the estimated annual cost to the home care agencies as a result of the new regulations. With respect to annual costs incurred for minimum wages, travel wages and overtime, the DOL estimates home care agencies will pay an average of $210.2 million the first year of implementation, increasing each year to an estimated $468.3 million on average by year 10. For annual regulatory familiarization, hiring costs (based on overtime hours needed to be covered by newly hired employees), and deadweight loss, the DOL projects home care agencies will incur $20.7 million on average in the first year, decreasing to an average of $5.1 million in year 10.

However, a March 2012 Navigant Economics Study: Estimating the Economic Impact of Repealing the FLSA Companion Care Exemption suggests a much higher cost to home care agencies. Although Navigant studied the economic analysis published by the DOL in the 2011 Notice of Proposed Rulemaking (NPRM), the study continues to suggest that the DOL has underestimated the compliance costs of the new regulations. According to Navigant, the DOL has: disregarded the impact on live-in workers, a group the study contends are disproportionately more likely to incur extended periods of pay at the overtime wage under the new regulations; underestimated the cost of paying home care workers for travel time; and underestimated the increased cost to the home care agencies for compliance with the minimum wage protection afforded by the FLSA. Ultimately, the study concludes the annual cost to home care agencies is significantly higher than the DOL has predicted.

It’s almost as if DoL has been doing its part to promote the president’s proposal by systematically lowballing, complicating and hiding its costs. The USA Today story has this relevant passage about some other costs that may be less readily monetized:

Joseph Bensmihen, president of United Elder Care Services, Inc., a caregiver referral service in Boca Raton, Fla., said the most likely alternative for most of his clients, besides moving into a facility [emphasis added], will be to rotate caregivers to ensure that none works more than 40 hours a week. “This means that one of the most cherished benefits of home care among the elderly, disabled, and infirm, namely continuity of care, will be lost.”

It won’t take many hapless elderly persons moving from home and family care into nursing home facilities to exceed that absurd $6.8 million cost underestimate all by itself.

April 30 roundup

  • “7 Reasons U.S. Infrastructure Projects Cost Way More Than They Should” [Scott Beyer, Atlantic Cities]
  • Gov. Jerry Brown’s appointments could reshape California Supreme Court [Mark Pulliam, City Journal]
  • Critics say hiring of outside counsel in Pennsylvania government is an insider’s game [WHTM]
  • Could “Bitcoin for contracts” replace legal drafters’ expertise? [Wired with futurist Karl Schroeder]
  • “Getting state out of marriage” makes for neat slogan but results would be messy in practice [Eugene Volokh]
  • Lobbying by auto body shops keeps Rhode Island car repair costs high [Providence Journal, PCIAA press release and report in PDF]
  • “Bipartisan, publicity-hungry members of Congress want the FTC to investigate Photoshopping in ads” [Virginia Postrel on this WaPo report; Daily Beast; earlier here, here, etc.]

New Kevin Underhill book on odd laws

Kevin Underhill, whose wonderful Lowering the Bar blog is often linked in this space, has a new book out on odd laws titled The Emergency Sasquatch Ordinance. Another of our favorite legal bloggers, Jim Dedman of Abnormal Use, has interviewed him about it and I was trying to decide which snippets to excerpt when I realized I liked the whole thing and should just ask to reprint it. So with Jim’s permission, here is the Abnormal Use interview with Kevin Underhill:

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Book Review and Author Interview:
Kevin Underhill and The Emergency Sasquatch Ordinance

underhill

As lawyers, and denizens of the Internet, we have all received those crazy emails purporting to list strange and counter-intuitive laws. Usually, these emails forwards – traditionally sent by owners of AOL accounts – offer no effort to verify the existence of the laws cited therein (forcing us, if still interested, to turn to Snopes). Recently, Kevin Underhill, a legal humor blogger and partner at the San Francisco office of Shook, Hardy & Bacon L.L.P., has done what needed to be done: he researched all of these silly laws, sifted through the urban legends, and produced a book of unusual statues from both today and days of yore. As a lawyer himself, Kevin provided the citations to these laws, thereby proving that these laws actually did – or still do – exist. The result: The Emergency Sasquatch Ordinance,  a very amusing book published earlier this year by the American Bar Association. The book is named for a 1969 Skamania County, Washington ordinance proscribing “any premeditated, wilful and wanton slaying” of a Sasquatch, Yeti, Bigfoot, or Giant Hairy Ape.

In this mighty new tome, Kevin  alerts us to ancient laws once promulgated by the Greeks, Romans and other historic cultures. However, it’s the modern laws of our American states and localities which are the most amusing (and, of course, upon getting our hands on a copy of the book, we immediately flipped to the pages dealing with the Carolinas). From Kevin, we learn of South Carolina Code § 16-17-740, which makes it a crime to “sell or possess a novelty device commonly known as a ‘cigarette load’ which may cause a cigarette or cigar to blow up or explore after being lit.” Writes Kevin: “Information on the number of South Carolinians injured by cigarette loads over the years is difficult to come by, but I assume that the number is or was at one point substantial.” He also directs us to the South Carolina statutory prohibition on minors playing pinball and billiards (found in South Carolina Code § 63-29-2420 and 63-19-2430). Our favorite part: Pinball is banned outright for minors, but they can play pool with parental supervision or consent.). Again, writes Kevin: “The moral dangers of billiards and pinball themselves are not immediately apparent, although I notice that both involve physics and so maybe this open and scandalous display of ‘science’ is considered unseemly. Assuming that the danger arises from the kind of people who are (apparently) commonly found in these locations in South Carolina, we can conclude that pinball enthusiasts are considered a much greater threat, since youth pinball is illegal even with parental consent.” There must be something to this, as we also learn from Kevin that Alabama apparently bans secret passageways in its billiard halls.  (Paging Professor Harold Hill on this point.). Finally, we learn of 17 North Carolina Administrative Code 04B.0312, which provides that “[a] rattlesnake milking exhibition for which an admission fee is charged is subject to the gross receipts tax imposed under G.S. 105-37.1.” After noting that this provision was enacted “[d]espite the risk that rattlesnake milkers might fleet the state in protest,” Kevin informs us that “rattlesnake milking for charity is not taxed, however.” We wonder what happened in 2000 to require the this 1976 rattlesnake statute to be amended. Perhaps we’ll never know.

You get the idea. The book is full of these sorts of laws and Kevin’s witty commentary on them. As you can see, this is no dry enterprise; Kevin is a funny guy, and the book can be enjoyed by lawyers and non-lawyers alike. Of course, we already knew this fact as long-time readers of his law blog, Lowering the Bar, on which he also produces amusing content on a frequent basis.

As a part of this review, Kevin was also kind enough to agree to a brief email interview with Abnormal Use.

1. What has been the response of lawyers and legislators to the books?

 Those who have read the book appear to like it very much, although that statement will be a little awkward if your review says it sucks. If that is the case, I would encourage all readers (and non-readers who have someone willing to read to them) to ignore that review and buy the book immediately. As far as legislators are concerned, I have heard that law-revision projects are now being carried out in almost every English-speaking country as a direct result of the book. But I would take that with a grain of salt since the only time I have heard that was just now when I said it out loud in my office.

2. Has there been any effort to repeal any of the current laws you identified in the book?

 Other than the effort I just mentioned, not to my knowledge. I’d have expected at least the nuclear-armed-dairy-farmer lobby to have taken some action by now. Papua New Guinea did repeal the Sorcery Act last year, but I can’t take credit for that.

3.  Of all the modern laws you mention in the book, which is your favorite, and why?

It depends to some extent what you mean by “modern.” The Guano Islands Act of 1856 is one of my favorites and is still on the books, but it hasn’t been used in a while. I am a big fan of the Brazilian law that requires cell-phone companies to give a discount to people who stutter, and the surprisingly prevalent 316-word definition of “buttocks.” And just because they have popped into my head right now, I will also mention the state laws saying that a “riot” can include as few as two people (except in Alaska, where it takes six to riot).

Obviously I can’t pick just one favorite.

4. You have written much on taco-canceling. Do you foresee the taco-canceling litigation being the subject of a future book?

Probably not, if only because the efforts to turn this into a class action are likely to fail. Everyone who cancels a taco order has his or her own individual reasons for doing so. It’s not something that can be determined on a class basis. Except possibly in California, which is good news for me.

By the way, the image depicted at the top of this post is not the actual cover of The Emergency Sasquatch Ordinance. Rather, it is a carefully constructed recreation of said cover by GWB associate and Abnormal Use blogger Batten Farrar. We were inspired by a previous recreation of the cover which Kevin Underhill posted on his Lowering The Bar blog back in early March. You can see that post here. The actual cover to Kevin’s book is here:

esqo

(Click here to read Keith Lee of the Associate’s Mind law blog’s review of The Emergency Sasquatch Ordinance.).

 
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[end of reprinted Abnormal Use blog post]