In New York, unlike some other states, the law permits liberal use in business lending of a device called confession of judgment, in which borrowers “sign a statement giving up their right to defend themselves if the lender takes them to court.” Among the consequences: the lender may hold the wherewithal to seize the borrower’s assets unilaterally upon filing affidavits. Following the growth of lenders who advance cash to small businesses at extremely high interest rates, tens of thousands of business borrowers have experienced enforcement actions, often filed in upstate New York counties with little connection to either lender or borrower. Sharp practices? “In dozens of interviews and court pleadings, borrowers describe lenders who’ve forged documents, lied about how much they were owed, or fabricated defaults out of thin air.” [Zachary R. Mider and Zeke Faux, Bloomberg, in what is billed as the first of a series on the merchant cash advance industry] More: Scott Greenfield.
Monopoly 911 ambulance franchise laws
In California, ambulance companies pay local governments for monopoly franchises on 911 calls, then send the bill to insurers: “So cash strapped counties are in on the business of fleecing insurance companies, and through them, people and businesses who pay premiums” [John H. Cochrane]
Philadelphia might finally clean up its forfeiture act
“If a judge accepts the agreement, Philadelphia’s process of seizing many millions of dollars in property from innocent owners will be dismantled. Darpana Sheth of the Institute for Justice explains why” in this Cato Daily Podcast with Caleb Brown. More: Tom McDonald, WHYY; C.J. Ciaramella, Reason; Tim Cushing, Techdirt, and earlier from our long-running coverage of Philadelphia’s remarkable and outrageous forfeiture practices.
November 21 roundup
- “A Decade After Realizing It Can’t Threaten A Critic Online, UCLA Returns To Threaten A Critic Online” [Mike Masnick, TechDirt; Adam Steinbaugh, FIRE]
- “D.C. Bureaucrats Are Trying to Make Parents Get a License to Let Children Play Together” [Kerry McDonald, FEE; Karin Lips, Washington Post; Lenore Skenazy, Reason]
- “If you were ripped off by a couple of companies that enrolled consumers in membership-rewards programs without their consent, congratulations, you’re entitled to a $20 credit to buy more stuff from them. Ninth Circuit: Your class counsel, however, is probably not entitled to $8.7 million in attorney’s fees for winning you a coupon.” [John Kenneth Ross, IJ “Short Circuit” on In Re EasySaver Rewards Litigation]
- Congestion highway pricing and the “Lexus Lanes” epithet, supervised injection facilities, single payer in one state and more in my new Maryland roundup at Free State Notes;
- Chain that touched off public outrage stands to gain by reaction: “Licensing pet groomers won’t help pets. It will hurt low-income groomers.” [Shoshana Weissman and Jesse Kelley, R Street]
- “A Case for an Executive Order to Rein in Guidance Documents and other ‘Regulatory Dark Matter'” [Clyde Wayne Crews, CEI]
Breaking into amusement park, taking ride on slide does not end well
Visiting Myrtle Beach for a wedding, two New York women walk by a closed amusement park in the early morning hours and resolve on a joyride:
“Even though it was closed, the plaintiffs were easily able to move the unsecured gate at the entrance to the Pipeline Slide and climb the stairs to the top of the slide,” claims the lawsuit. “Without any employees present to instruct them, the plaintiffs were not aware that they needed to have the slide sprayed with water, nor did they know that they needed a burlap sack to safely go down the side.”
“Without these safety precautions, the plaintiffs slid down the slide at a very high velocity, colliding with the metal barrier at the bottom of the slide,” the lawsuit also claims. “As a result of the collision, both plaintiffs sustained significant injuries.”
Now they want damages against the park on a variety of theories, including punitive damages. [WBTW]
How to become a judge
Man runs for Illinois county judgeship on Republican line under the name Phillip Spiwak, loses, wins after switching to Democratic line, running in Cook County, and changing name to Shannon O’Malley. [Abigail Blachman, Injustice Watch/Chicago Sun-Times]
Employment discrimination law roundup
- Employee with (per Costco) history of “serious misconduct and insubordination” wins $750K after being fired for speaking at too loud a volume, the result she said of deafness-related difficulty in modulating her voice [Jon Hyman]
- “Now What? Disciplining an Employee with a Suspected Addiction or Substance Abuse Issue” [Dale Deitchler and Jeffrey Dilger, Littler]
- ADA: “6th Circuit says full-time work is not an essential function of every full-time job” [Jon Hyman] “So, you want to change the essential functions of a particular job, do you? Let’s talk ADA.” [Eric B. Meyer]
- “Our group member has a fragrance sensitivity – and we’re supposed to be hugged to check for any scents” [Alison Green, Ask a Manager via Hyman]
- “Is the sexual harassment “groundswell” starting?” [Robin Shea, Constangy; state agency volume] “Bracing For The Deluge Of EEOC Lawsuits” [Gerald Maatman, Seyfarth Shaw; EEOC filings rise]
- “Why Doesn’t Diversity Training Work?” [Frank Dobbin and Alexandra Kalev, Anthropology Now; related, Amy Alkon (counterproductive “privilege checking”)]
- Arbitrator orders Oregon town of West Linn to pay $100,000+ to cop fired after incendiary, racially charged Facebook posts [Everton Bailey Jr., Oregonian]
Justin Driver, The Schoolhouse Gate
The Schoolhouse Gate: Public Education, The Supreme Court, and the Battle for the American Mind, a new book by Justin Driver of the University of Chicago Law School, is a cross-cutting look at the constitutional law of American public schools — a change from the usual format of broad constitutional law scholarship, which tends to stick closely to doctrinal categories such as criminal procedure or equal protection. Introduced by Will Baude, Driver guest-posted at the Volokh Conspiracy in September on why the Supreme Court has made a difference; the high-water mark and retreat of student speech rights; corporal punishment; Plyler v. Doe on the education of undocumented minors; and transgender student restroom cases. He also summed up some of his work in a New York Times op-ed.
Great moments in legal marketing: billboard pin-ups
Even in the state of Florida, can this be real? In 2018? Hat tip Rogers Turner.
Symposium at Cato Unbound: “Children, Parents, and Child Protective Services”
This month I’m participating in a Cato Unbound symposium on Child Protective Services and family rights. In its lead essay, attorney Diane Redleaf details some of the ways in which CPS agencies can arm-twist parents into so-called interim placements and safety plans that separate families with little or no judicial review. Participant James G. Dwyer, in a response essay, takes a relatively positive view of the agencies’s work. My essay, by contrast, generally backs up Redleaf’s critique of CPS as a species of government enforcement agency gone wild: far too often, these agencies seize children from parents based on flimsy evidence, second-guess everyday parental behavior and decisions, or act on misguided Drug War zeal.
Redleaf in her essay then goes on to raise distinctive objections about how the agencies negotiate with parents before a judge has ruled on their cases, which I paraphrase thus:
…what sorts of policy response should apply to agencies’ practice of proffering to parents ostensibly voluntary interim placements and “safety plans”? What happens when parents regret—the next month, or the next day—having agreed to those conditions? Can they reopen the concessions they made, and how? Does it matter whether the agency has withheld information from them or menaced them with worst-case scenarios?
In my response essay, I argue that the problems with these practices are real but that legal attack on the voluntariness of interim plans is likely to be of at best limited helpfulness because our courts follow a strong presumption of enforcing settlements as written. More promising in the long run, I argue, may be to impose direct obligations on agencies to respect families’ autonomy without attacking the settlement process as such. “Safeguarding every family’s rights will, as one of its benefits, shore up families against unwise surrenders of their rights.” [cross-posted from Cato at Liberty]