Sent to Gawker by a lawyer who represents controversial Toronto mayor Rob Ford, it affords Ken at Popehat much delight: “First, nobody ever governed themselves accordingly based on a threat from a hotmail account.”
Contribute to small firm’s patent defense…
… get “I Beat Trolls” t-shirt. [Ditto.com]
In other news, “Vermont Declares War On Patent Trolls; Passes New Law And Sues Notorious Patent Troll” [Mike Masnick, TechDirt]
Supreme Court and constitutional law roundup
- Can a treaty increase the power of Congress? Cato files amicus in latest round of Bond v. U.S. [Nick Rosencranz, Ilya Shapiro/Trevor Burrus]
- SCOTUS denies certiorari, ending closely watched Kivalina climate change nuisance case [Jenner & Block, Foley Hoag, earlier]
- Jim Huffman on Arlington v. FCC, the Court’s new decision widening deference to agencies [Daily Caller, earlier] Mike Rappaport critique of Chevron deference doctrine in administrative law [Liberty and Law, more, yet more] Split among conservative justices on Arlington not free of cattiness [Tamara Tabo]
- Mixed-motive retaliation case University of Texas Southwestern Medical Center v. Nassar hasn’t gotten much press notice but will affect plenty of real-life litigation [ABA Journal]
- Town of Greece v. Galloway: “Roberts Court to Wade into Debate Over Religion’s Place in Public Square” [Jeremy Leaming, ACSBlog; SCOTUSBlog]
- Among key New Deal cases we’re allowed to object to Wickard and even Lochner but not Carolene or Erie. Why? [Michael Greve]
- Walden v. Fiore, DaimlerChrysler AG v. Bauman: “The Supreme Court Again Revisits (And May Rein In) Personal Jurisdiction” [Grant Esposito and Brian Matsui (Morrison & Foerster), JD Supra]
- “What’s the Most Important Supreme Court Case No One’s Ever Heard Of?” [symposium, The Atlantic]
Update: “EU drops olive oil jug ban after public outcry”
Even Brussels can get the message sometimes. The EU agriculture commissioner blamed public “misunderstanding.” [Telegraph via Alexander Cohen, Atlas Society; earlier] More: Kenneth Anderson.
N.Y. trial lawyers: bowling-shoe exemption must not stand
In the New York legislature, bowling alleys are hoping to win a law protecting them from slip-fall liability arising after their customers wear store-rented shoes outside the building and either slip there or track snow or other slippery matter back inside. Weather hazards have been tripping up more customers of the ordinarily indoor sport, it seems, since the state enforced a complete indoor smoking ban. The trial lawyer association is dead set against the bill; its president claims that the bill “undercuts the constitutional right to a trial by a jury” — presumably on the theory that it somehow undercuts trial by jury for a legislature to roll back any instance of liability for anyone anywhere. That’s sheer nonsense, of course — otherwise, it’d have been unconstitutional for legislatures around most of the country to have abolished the old heartbalm torts of breach of promise to marry and alienation of affection. [Albany Times-Union via Future of Capitalism] More: Lowering the Bar.
Perennial ADA filer Scott Johnson gets into a spot of bother
Never mind the colorful if creepy harassment allegations lodged by four former staffers. For purposes of the future of California-based ADA filing mills, the more salient allegation against attorney Johnson is that he cut improper corners in his assembly-line generation of accessibility complaints. [The Recorder, ABA Journal, earlier]
Guns roundup
- Andrew Cuomo threatened county sheriffs with retaliation unless they stopped publicly criticizing his gun plan [Albany Times-Union; his brutally coercive style in an earlier gun controversy]
- Quick Obama signing predicted: “USA shows strong support for new global Arms Trade Treaty” [Amnesty International] Senate less enthusiastic about it [The Hill] A dissent: non-lefty Prof. Ku doesn’t think treaty poses big gun control danger [Opinio Juris]
- “A pencil is a weapon when it is pointed at someone in a threatening way and gun noises are made” [NBC Washington] Time was when you could get the counselors on your case if you *didn’t* bring a Swiss Army knife on a nature trip [Free-Range Kids] “High School Student Expelled for Unloaded Gun Forgotten In Trunk” [same]
- “Studios fret that New York’s gun laws could hamper film production” [NYTimes]
- “Why maximal enforcement of federal gun laws is not always a good idea” [Kopel] “The Worst Gun Control Idea Has Bipartisan Support” (new mandatory minimums for firearm possession; Daniel Denvir, The New Republic)
- D.C. council holds hearing on proposal for mandatory liability insurance for gun ownership; Mayor Vincent Gray doesn’t like idea [WaPo, Eric Newcomer/Examiner, Insurance Journal, CBS Washington; earlier here, etc.]
- “Yes, They Are Coming For People’s Guns in California” [Brian Doherty]
Let non-citizens serve on juries?
Assemblyman Bob Wieckowski (D-Fremont), the sponsor of a bill in the California legislature, thinks jury service would help advance the assimilation of immigrants by exposing them to an important civic process. Ben Boychuk, at City Journal, doesn’t agree, quoting political scientist Edward Erler: “The idea that legal immigrants can learn to become citizens through jury service is a dangerous experiment on the liberties of American citizens.”
Diana Furchtgott-Roth on the “Persuader Rule”
Writing at Capital Research Center’s Labor Watch:
A shocking change in American labor relations is brewing at the U.S. Department of Labor, which is expected sometime soon to alter a major regulation. The change involves a new interpretation of the “advice exemption” of the Labor Management Reporting and Disclosure Act. Specifically, businesses would have to disclose the names of, and fees paid to, attorneys and consultants who advise them on union-organizing activities. In turn, attorneys and consultants providing such advice would be required to disclose their client lists and the fees they receive.
If that sounds like a road map for retaliation and strong-arming, with dangers for traditional attorney-client confidentiality, well, you’re getting the idea. Furchtgott-Roth says the department has evaded regulatory review by low-balling the proposal’s billions of dollars in costs. “The change has no basis in existing law or precedent.”
Prop 65: how serious are Gov. Brown’s reforms?
Not very, fears Bruce Nye at Cal Biz Lit, who notes that “The Chanler Group, the self-described ‘Largest Proposition 65 Citizen Enforcement Law Firm,’ wasted no time in announcing its support for the Governor’s proposals.” Prop 65, of course, is the famous California enactment under which an army of bounty-hunters have set forth to file suits and collect settlements from California businesses for failing to warn of the carcinogenic or mutagenic ingredients in hundreds of common products, from matches (which emit carbon monoxide) to brass knobs to roasted coffee to grilled chicken to billiard cue chalk. Gov. Brown’s reforms omit several stronger recommendations, such as “moving the burden of proof to the plaintiff to show that exposures exceed the applicable no significant risk level (‘NSRL’) or maximum allowable dose level (‘MADL’).”
Most importantly, would the private enforcer bar support Assembly Member Gatto’s AB 227, allowing a company receiving a 60 day notice to avoid prosecution by curing the violation within 14 days? Or better still, Cal Biz Lit’s proposal to allow sixty days to cure violations?
Those measures would be real reform.