- “Robo-litigation”: ethical issues of the mass-foreclosure mess [Dustin Zachs, SSRN, via Legal Ethics Forum]
- Roger Parloff on Chevron counterclaims against Patton Boggs [Fortune] “Judge Grudgingly Lets Donziger’s Lawyers Out Of Chevron Case” [Daniel Fisher; Reuters]
- Should Australia dilute or abolish the “cab rank” rule? [John Flood via LEF]
- “Ethical Limits on Civil Litigation Advocacy: A Historical Perspective” [Carol Andrews (Alabama), SSRN; Legal Ethics Forum]
- “When Is a Demand Letter (Arguably) Extortion?” [John Steele, more, ABA Journal (Martin Singer demand letter threatening to expose target’s sexual indiscretions]
- Fifth Circuit denies Dickie Scruggs’s latest appeal [YallPolitics]
- When crowdfunding meets litigation finance, watch out world [Richard Painter]
- “Judge Orders Prenda Law Group Beamed Out Into Space” [Lowering the Bar, TechDirt]
Personality Quiz: Which Supreme Court Justice Are You?
It seems I’m Justice Stephen Breyer. [humor, Kyle Graham]
City of Arlington v. FCC
By a 6-3 vote yesterday, the Supreme Court decided that agencies deserve deference in determining the scope of their own jurisdiction. Bad move, argues Ilya Shapiro at Cato:
…why should courts defer to agency determinations regarding their own authority? … Whether a government body uses its power wisely or not, it cannot possibly be the judge of whether it has that power to begin with. Yet Justice Scalia, writing for the majority, essentially says that there’s no such thing as a dispute over whether an agency has power to regulate in a given area, just clear congressional lines of authority and ambiguous ones, with agencies having free rein in the latter circumstance unless their actions are “arbitrary and capricious” (what lawyers call Chevron deference, after a foundational 1984 case involving the oil company).
That makes no sense. As Cato explained in our brief, since the theory of deference is based on Congress’s affirmative grant of power to an agency over a defined jurisdiction, it’s incoherent to say that the failure to provide such power is an equal justification for deference. Furthermore, granting an agency deference over its own jurisdiction is an open invitation for agencies to aggrandize power that Congress never intended them to have. One doesn’t need a doctorate in public choice economics to recognize that we need checks on those who wield power because it’s in their nature to husband and grow that power.
Read the whole thing here.
N.Y.: “P.I. Lawyers Are Suspended for Encouraging Client to Lie”
“Two Fordham University law school classmates who set up a law practice together a few years after graduating are now both facing nine-month suspensions for pursuing a fraudulent personal injury case.” Daniel Levy and Shane Rios represented a woman who claimed to have slipped in front of a Yonkers church; when they investigated the sidewalks, they found no problem with the church’s, but did find a trip hazard in front of a house across the street. They advised her that she would have a winning case only against the homeowner, not the church, and she changed her story accordingly. They proceeded to conceal the original stance of the case both from the court and from a third lawyer they brought in to help. To the New York courts, this misconduct merited a suspension only of nine months. [ABA Journal, New York Law Journal]
P.S. “Maryland would have disbarred these clowns.” [@BruceGodfrey]
Canada: man who killed cellmate sues jail staff
Justin Caldwell Somers, in jail for not paying a jaywalking fine, brutally murdered his sleeping cellmate by stomping him to death on the cement floor, but was found not criminally responsible because he had been acting under the influence of delusions and hallucinations. Now he is suing various personnel of the remand center for not preventing the incident, in part by not heeding the recommendation of a nurse and psychiatrist that he be housed alone: since the murder Somers “has experienced severe mental anguish and mental distress as a result of his role in causing the death of Mr. Stewart, as well as a result of the conditions of his incarceration.” [Edmonton Journal]
Free speech roundup
- Alarm over administration seizure of personal emails of Fox News chief Washington correspondent James Rosen, described as “co-conspirator” for reporting classified material [WaPo, Yahoo, ABC News, Josh Gerstein/Politico, Julian Sanchez, Glenn Greenwald] Contra: Eugene Volokh, Charles Fried.
- “VP Joe Biden Believes There’s ‘No Legal Reason’ The Government Can’t Slap A Sin Tax On ‘Violent Media'” [Tim Cushing, TechDirt]
- “Vagueness in a defamation threat is the hallmark of meritless thuggery” [Popehat] India-based science publisher threatens Scholarly Open Access blogger that criticized its practices with $1 billion suit, three years in jail [Chronicle of Higher Education] Mockery is not libel: court tosses inmate’s suit against Tennessee governor [Volokh]
- Background of famous First Amendment case New York Times v. Sullivan: officials in South had exploited plaintiff-friendly jurisdictional rules [Wasserman]
- “6 Years + 300 Lashes in Saudi Arabia for Helping Woman Convert to Christianity” [Eugene Volokh]
- “A blueprint for speech codes?” [Alison Somin on feds’ Montana letter, Fed Soc EBR; Christian Science Monitor; earlier here, here, etc.]
- Rethinking SLAPP laws? [Recorder, Alex Kozinski opinion; ABA Journal]
- Tennessee governor vetoes “ag-gag” law on farm photography as First Amendment infringement [Linnekin; related, Pittsburgh Tribune-Review (Pa.)]
33 boxes of cigars on board, cont’d
We reported last month on the federal seizure of the 46-foot sailboat Janice Ann. Now an update: in a letter to petitioner Jeffrey Southworth, the U.S. Customs and Border Protection division of the Department of Homeland Security has offered to return the boat in exchange for a hold-harmless agreement sparing Customs from any demand for attorneys’ fees, damages or other relief. If the deal is not accepted within 30 days, “administrative forfeiture proceedings will be initiated by publishing a notice of seizure and intent to forfeit for 30 consecutive days at www.forfeiture.gov. After that time, the government acquires full title to the seized property.”
The CBP letter is here (& Sailing Scuttlebutt).
EEOC: no post-offer inquiries about family medical history
Asking existing employees about their family medical history might offer safety benefits in the workplace, both by indicating vulnerabilities that might be countered by protective measures, and by helping to distinguish ailments with a strong congenital influence from those that might signal occupational disease. However, the Equal Employment Opportunity Commission says that such questioning is “genetic discrimination” and unlawful under the Genetic Information Nondiscrimination Act (GINA), which became law in 2009. Fabricut, a decorative fabrics firm, will pay $50,000 to settle charges that it improperly asked about family medical history and also that it improperly engaged in disability discrimination by refusing to employ as a clerk a woman it regarded as having carpal tunnel syndrome. [EEOC press release]
3-D printing: the legal dimension
The remarkable recent advances in make-it-yourself technology are opening up all sorts of new possibilities for users, but also have the potential to freak out the CPSC, FDA, trade agencies and intellectual property lawyers, as well as gun-control advocates. When products extruded from local printers are inevitably involved in injuries, which distant parties can be sued? [Bloomberg]
“Dead robber’s widow sues shop clerk”
Albuquerque: “The wife of an armed robbery suspect shot dead by a shop clerk said the clerk was wrong, and now she has filed a civil lawsuit claiming wrongful death….’He [deceased robber Ramon Sedillo] does bear some fault, but it’s like a pie. You divide out the fault accordingly, and [store clerk Matthew] Beasley could have done something different,’ [Sedillo family lawyer Amavalise] Jaramillo said.” [KRQE]