“The scientists and doctors would get excited….But as soon as their lawyers heard ‘sick, pregnant women,’ nothing happened,” Moore said. “There’s such a sense of liability.” [Carolyn Y. Johnson, Washington Post/Bartlesville, Okla., Examiner-Enterprise]
H.R. 1, political omnibus bill, passes House
H.R. 1, the political regulation omnibus bill, contains “provisions that unconstitutionally infringe the freedoms of speech and association,” and which “will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day.” That’s not just my opinion; it’s the view of the American Civil Liberties Union, expressed in this March 1 letter (more). For example, the bill would apply speech-chilling new restrictions to issue ads that mention individual lawmakers.
The House of Representatives nonetheless voted on Friday along party lines to pass the bill, which was sponsored by Rep. John Sarbanes (D-MD). For now, it has no prospect of passage in the Senate.
The issues raised in the ACLU letter aside, H.R. 1 contains many other provisions that likely are unconstitutional, unwise, or both. On gerrymandering, for example, an issue on which the Constitution does grant Congress a power to prescribe standards which I’ve argued it should consider using more vigorously, the bill takes the heavy-handed approach of requiring all states to create a commission of a certain format. That would likely run into the Supreme Court’s doctrine against federal “commandeering” of state government resources.
More criticism: Brad Smith on the bill’s restrictions on discussion and coordination of expenditures on speech; Ilya Shapiro and Nathan Harvey (“If ever adopted, [HR1] would give power to one slice of Washington’s elite at the expense of American democracy’s carefully crafted checks and balances”); David A. French (“At its essence, the bill federalizes control over elections to an unprecedented scale, expands government power over political speech, mandates increased disclosures of private citizens’ personal information (down to name and address), places conditions on citizen contact with legislators that inhibits citizens’ freedom of expression, and then places enforcement of most of these measures in the hands of a revamped Federal Election Commission that is far more responsive to presidential influence.”) And: Cato Daily Podcast with Caleb Brown and Luke Wachob.
Liability roundup
- “Firings and lawsuits follow discovery of secret bugging devices at law firm; ‘It’s very John Grisham'” [Palm Beach County, Fla.; Debra Cassens Weiss, ABA Journal]
- Save on lawyers’ fees, get to trial faster: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” [Judge Thomas Hardiman, echoed by Judge Amul Thapar, at Federalist Society National Lawyers Convention panel; David Lat, ABA Journal]
- “Austria: Farmer liable for hiker trampled to death by cow” [Elizabeth Schumacher, Deutsche Welle]
- “Cloned” discovery: the “name derives from the fact that the plaintiffs are attempting to clone the discovery taken by others in unrelated cases.” Courts should resist [James Beck]
- “Minnesota Supreme Court: No Primary Assumption of Risk in Skiing, Snowboarding” [Stephanie K. Jones, Insurance Journal]
- Missouri lawmakers seek to limit forum-shopping by out-of-state litigants seeking plaintiff-friendly St. Louis courts [Brian Brueggemann, St. Louis Record]
Buying a home? Feds want to know your identity
Another valued little piece of financial privacy being lost: in the name of enforcing money laundering and know your customer regulations, the Treasury Department’s Financial Crimes Enforcement Network has expanded a program the effect of which is to require disclosure of your identity if you buy a home in some parts of country [Kathleen Pender, San Francisco Chronicle]
Related: British financial regulators adopt new approach of “shifting the burden of proof onto foreign investors; they must now prove their wealth is legitimate.” [Jeffrey Miron, Cato]
Frontiers in client-chasing
An app billed as blocking unwanted calls was set up to funnel potential clients to lawyers filing suits under the bounty-hunting Telephone Consumer Protection Act (TCPA) [John O’Brien, Legal NewsLine/Forbes]
March 6 roundup
- A longtime progressive objects to the diversity pledge (applying to personal and professional lives alike) soon to be expected of Ontario lawyers and paralegals as a condition of their licenses [Murray Klippenstein with Bruce Pardy, Quillette]
- More on Cato’s First Amendment challenge to SEC gag-order settlements [Cato Daily Podcast with Clark Neily, Robert McNamara, and Caleb Brown]
- “Federal judge sanctions lead lawyer in Roundup trial for opening statement ‘misconduct'” [Debra Cassens Weiss, ABA Journal]
- Unanimous high court (Sotomayor concurring in judgment) rules Ninth Circuit may not count Judge Stephen Reinhardt’s vote in decisions issued after his decease: “Federal Judges Are Appointed for Life, Not for Eternity” [Eugene Volokh]
- Copyright law firm has “a pattern of making aggressive and, in many cases, unsupportable demands” for payment [Paul Levy, CL&P]
- “Genealogists shouldn’t have to become technophobes,” yet to spit in a cup is now to enter oneself and one’s relatives intoto a genetic panopticon for the benefit of law enforcement [Matthew Feeney, Real Clear Policy]
Toledo voters approve ballot measure giving legal rights to Lake Erie
Spoiler: all the rights created by this measure will be held by lawyers and other human beings. [Nicole Javorsky, CityLab; Daniel McGraw, Guardian]
Great moments in negligent security suits
“In his deposition, [plaintiff] Porterfield said he may have bitten someone’s ear, but he didn’t know whose.” The suit by a now-West Virginia lawmaker, still pending after years, seeks to hold a now-defunct Indiana bar legally responsible for the catastrophic injuries he suffered during the affray. [Jake Zuckerman, Gazette Mail]
Environment roundup
- “Everything would be all renewable all the time if we could just pass the right laws.” The wishful underpinnings of the Green New Deal [Cato Daily Podcast with Caleb Brown and Regulation Magazine editor Peter Van Doren]
- “The U.S. rail system is optimized for freight, vs. European and Japanese systems that are optimized for passengers (it is hard to do both well with the same network). The U.S. situation is actually better, much better, for energy conservation.” [Coyote]
- Federalist Society discussions of climate litigation based on public nuisance theories: National Lawyers Convention panel with David Bookbinder, Eric Grant, James Huffman, Mark W. Smith, moderated by Hon. John K. Bush; “Originally Speaking” written debate with John Baker, Richard Faulk, Dan Lungren, Donald Kochan, Pat Parenteau, David Bookbinder; Boston Lawyers Chapter panel on municipal litigation with Steven Ferrey, Phil Goldberg, Donald Kochan, James R. May, Kenneth Reich] Climate nuisance suits have met with an unfriendly reception in American courts and there is no good rationale for filing copycat claims in Canada [Stewart Muir, Resource Works]
- “Public Universities Exploit Eminent Domain Powers with Little Oversight” [Chris West, Martin Center]
- Many pro-market reforms would reduce the risks to life and property from natural disasters, climate-related and otherwise [Chris Edwards, Cato]
- “On patrol with the enforcer of DC’s plastic-straw ban” [Fenit Nirappil/AP via Peter Bonilla (“Welcome to the worst ride along ever”)]
How does one child end up with more than 100 foster care placements?
Naomi Schaefer Riley explains at AEI.