Getting placed on the vexatious-litigants list might not actually slow you down all that much in the pace of your suit-filing. A frequent Sacramento litigant has been on the list since 2003 but nonetheless obtains fee waivers by pleading poverty even as property is held in trust or in his wife’s name, uses variations of his name that throw adversaries off the track, and, according to an opponent, gets around a ban on pro se filing by using a lawyer to file and then substituting himself as counsel. [KXTV (auto-plays), ABA Journal]
Med-mal: the unreformable Northeast?
The charts in this Washington Post article get steadily more interesting as they go along, and the most informative is the last: the top nine states or state-equivalents for per-capita medical malpractice outlays are, in order, New York, Pennsylvania, New Jersey, Massachusetts, Connecticut, the District of Columbia, Maryland, Rhode Island, and New Hampshire. Basically, that describes the Boston-Washington corridor with the exception of Delaware (Vermont makes for an even more notable break in the pattern because its outlays are among the lowest.) Most states outside the Northeast have reformed their malpractice law; most states in the Northeast have too powerful a trial lawyers’ lobby to let that happen.
Fortunately for residents of the rest of the country, the inconveniences of an unreformed high-litigiousness system — things like $100,000 premiums for doctors with good records who practice high-risk specialties — seem mostly to be borne by residents of the states in question. Overall, incidentally, as the chart previous to that shows, national payouts went through a decade-long decline but now have resumed climbing.
Until recently, Florida would have been a likely pick when enumerating states with the highest medical malpractice exposure, but the Sunshine State legislature finally got tired of being a target of the derision of the national medical profession and reformed its malpractice system. Or perhaps the better phrase would be, “thought it reformed”; the Florida Supreme Court, dominated by justices cozily allied with the plaintiff’s bar in re-election campaigns, just annihilated that reform. No one will be particularly surprised if Florida vaults up to top-ten status in future payout lists.
NFL wants “restitution” over performer’s middle finger gesture
The National Football League had already been seeking $1.5 million in arbitration for alleged contractual breach against rap singer M.I.A. for extending her middle finger during a performance at the 2012 Super Bowl. “Now the NFL has added an additional claim, seeking $15.1 million more in ‘restitution’ as the alleged value of public exposure she received by appearing for an approximately two minute segment during Madonna’s performance. The figure is based on what advertisers would have paid for ads during this time.” [Hollywood Esq.]
“No link found between saturated fat and heart disease”
“Choosing What to Photograph Is a Form of Speech”
New WSJ op-ed by Eugene Volokh and my colleague Ilya Shapiro, with which I agree 100%: “We support the extension of marriage to same-sex couples. Yet too many who agree with us on that issue think little of subverting the liberties of those who oppose gay marriage. Increasingly, legislative and judicial actions sacrifice individual rights at the altar of antidiscrimination law.” Existing precedent affords a handy if narrow way to reverse New Mexico’s wrong-headed Elane Photography decision: “The Supreme Court’s ruling in Wooley guarantees the right of photographers, writers, actors, painters, actors, and singers to decide which commissions, roles or gigs they take, and which they reject.”
Related on bake-my-cake laws: in the absence of more robust rights to freedom of association, could we at least narrow what’s a public accommodation? [Scott Shackford, Reason; David Link, Independent Gay Forum (on precedent of landlord reluctance to rent to cohabitors] Earlier on photography and cake cases here, here, here, here, here, here, here, here, etc.
P.S. Cato podcast with Caleb Brown interviewing Ilya Shapiro on the topic.
EEOC roundup
- Federal judge in Buffalo “dismisses EEOC’s largest pending pattern or practice lawsuit for failure to investigate” [Gerald Maatman, Jr. and Jennifer Riley, Seyfarth Shaw] U.S. magistrate judge in North Carolina orders sanctions against agency in lawsuit against law firm Womble Carlyle [Mary Kissel, WSJ]
- Commission’s campaign against employer use of criminal background checks meets resistance from nine state attorneys general [Penelope Phillips, Minnesota Employment Law Report] Federal judge in Maryland dismisses EEOC criminal-and-credit-background-check case against Freeman Companies using words like “laughable,” “unreliable,” “mind-boggling” [Nick Fishman, Employee Screen; Eric B. Meyer]
- Is regular attendance an essential job function for ADA purposes? Commission takes a hard line against employers who insist that showing up regularly is essential to a job without building a case individualized to the particular dispute [Jon Hyman, Ohio Employer’s Law Blog]
- Missed this one in October: Cato files amicus brief in lower-court case of EEOC v. Kaplan, on disparate impacts of credit checks in hiring [Ilya Shapiro]
- More epic losses by agency last year (earlier posts on that here and here) include Evans Fruit case [AP/Seattle Times] Defendants disadvantaged by agency’s prejudicial delay [Molly DiBianca on PBM Graphics and Propak Logistics cases; Anastasia Killian, WLF] Federal judge in Iowa orders agency to pay $4.7 million in attorneys fees to defendant trucking company CRST [Gerald Maatman Jr. and Howard Wexler, Seyfarth Shaw, ABA Journal, Wall Street Journal]
- “Does the EEOC Try To Intimidate Employers?” Merrily Archer v. Robert Young [Richard Cohen, Fox Rothschild; more from Merrily Archer on agency incentives; her major 2012 victory in the Picture People case, and a dissent]
- In commission’s view, two “incidents which ended in ambulance trips to the hospital” not enough to classify employee as safety risk absent individualized ADA determination [Joe Lustig]
Lenore Skenazy in a Cato podcast
“The world is force-feeding you a horror movie [in which] you’re the star, and your kid is dead.” When Lenore Skenazy came to speak earlier this month (video of that) she also recorded this audio podcast with Caleb Brown, which has significantly different content. Among the topics: how the media, law, and police encourage helicopter parenting; the best way to break the fear cycle; and how she got turned on to Cato.
EEOC challenges “garden-variety” severance terms
To end an employment lawsuit, or more often simply as part of a non-litigious parting, employers often offer a severance package part of which consists of various terms releasing all claims and covenanting not to sue, requiring confidentiality and cooperation in the case of future litigation, and so forth. Now, in a lawsuit against CVS, the Equal Employment Opportunity Commission is taking the position that many such clauses constitute “retaliation” for protected activity and are legally invalid. Jon Hyman of Ohio Employer’s Law Blog notes that the clauses under challenge are generic ones widely used in severance packages and explains why in his view the “case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.” Daniel Schwartz at Connecticut Employment Law Blog also calls the suit “a big deal: “My gut tells me that the courts are not likely to view the government’s arguments with favor. … But for employers, that is of little solace.” More: Ameet Sachdev/Chicago Tribune (“the EEOC brought the suit even though CVS expressly protected employees’ rights under discrimination laws”), Joshua Feinstein, JD Supra (“the potential for havoc is great”), Hope Eastman/Paley Rothman (“a major shock to employers”)
Food roundup
- Warnings dismissed at time: FDA rules implementing FSMA (Food Safety Modernization Act) of 2011 imperil practices common to organic, small growers, “such as using house-made fertilizers and irrigating from creeks” [Los Angeles Times] Oh, how D.C.’s “public-interest” establishment and its co-thinkers in the press jeered when we and others tried to raise such concerns before the bill passed!
- Related: pursuit of locally grown/artisanal meat options collides with USDA regs that put squeeze on small slaughterhouses, overbroad recalls also a problem [Baylen Linnekin, earlier here, here, and here]
- “America’s Obesity Problem: Legal Mechanisms for Prevention,” Duke Law School conference I spoke at (but did not write a paper for) last year, now online [Duke Forum for Law and Social Change].
- Related: “Wellness programs addressing obesity could lead to litigation, lawyers say” [ABA Journal]
- Looser regulation of microbrewing has already proved boon to Maryland, lawmakers now consider extending it further [Beth Rodgers, Frederick News-Post]
- “Bill introduced to undo California’s ‘glove law’ for food preparers” [KPCC; earlier]
- Sorry, I’ll stay home and thumb through old cookbooks instead: recent American Studies Association Food Studies Caucus program included “Food, Debt, and the Anti-Capitalist Imagination,” “Archives of Domesticity and Dissent: Cookbooks, Cooking Culture, and the Limits of Culinary Exchange,” and “Pedagogies of Food and Eating: Teaching Debt, Dissent, and Identity through Food” [Mary Grabar, Pope Center on “food studies” fad]
A way to reduce will contests?
Margaret Ryznar at PrawfsBlawg:
…in France, there are almost no will contests brought on the grounds of a lack of capacity, fraud, or undue influence. In the United States, on the other hand, 3% and 5% of all wills executed will be contested, most commonly, on undue influence grounds. Why the difference?
Two elements of French law — mandatory shares for children and the role of specialized officers known as notaires who assist in document preparation — would be hard to duplicate here. Another institutional step that might reduce the incidence of costly probate struggles, however, would be to adopt (as three states have) what is known as antemortem probate, a right of testators to go to court during their lifetime seeking to have their testaments validated against challenge. “The proceeding allows judicial evaluation of the testator’s capacity, intent, and freedom from undue influence or fraud during the testator’s lifetime, which has the obvious benefit of the presence of the testator at the proceedings.”
It seems, however, that the antemortem probate procedure is seldom used in the American states where it is available. (Nor are official registries of wills, another aspect of the French system Ryznar describes as “easily adoptable” here and indeed in effect in some states.) Is the process going unused mostly because of unfamiliarity, or because persons whose estates will end up being contested on grounds of undue influence do not commonly recognize that? Or are there other reasons the procedure might be unpopular, such as an unwillingness to offend family members who are getting less than they might like?