From the archives: Robert Reich on regulation through litigation

Notable from Overlawyered’s archives of 20 years ago, quoting former labor secretary Robert Reich, who was writing in the American Prospect on gun control through litigation:

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”.

Filed under: climate deniers to the wall, guns, regulation through litigation

January 8 roundup

Lenawee County, Mich. authorities have posted condemnation notices on Old Order Amish farmhouses over their use of outhouses rather than modern septic systems as required by code. Dispute now heading for court [Tom Henry, Toledo Blade]
Baltimore Mayor Young promotes white-van-abduction urban legends, police misconduct transparency, Montgomery County is watching drivers and more in my latest Maryland policy roundup [Free State Notes]
Following outcry from activists, Facebook disables as misleading ads some trial lawyer ads soliciting plaintiffs to sue over purported side effects of HIV prevention drugs [Tony Romm, Washington Post/Toronto Star, Peter Lawrence Kane, The Guardian, WTHR]
From Lowering the Bar, legal things that actually did happen in 2019;
20 years ago I warned that by trying to dictate employers’ choices, a Wisconsin law might work to impede convict re-entry into the job market rather than encourage it [Reason, from its archives]
If county and city law enforcement officials have discretion not to charge low-level drug offenders, do they also have discretion not to charge low-level gun offenders? [Cam Edwards, National Review on Virginia battle over “Second Amendment sanctuary” resolutions]

Filed under: chasing clients, criminal records and hiring, Facebook, guns, Maryland, pharmaceuticals, religious liberty

Charge-dropping, sanctuary, and the people’s voice in prosecution

If county and city law enforcers have discretion not to charge low-level drug offenses, do they also have discretion not to charge low-level gun offenses? Cam Edwards on the Virginia battle over “Second Amendment sanctuary” resolutions [National Review].

Filed under: guns, illegal drugs, immigration law, Virginia

Banking and finance roundup

Senator Elizabeth Warren and her Accountable Capitalism Act represent an attempt to revive a theory of the corporation that fell out of favor long ago, that corporate status is a grant of favor in exchange for which the state may demand services or cooperation [Abdurrahman Kayiklik, Columbia Law School Blue Sky Blog; earlier with links to Warren on corporate governance and other topics]
Bill in Congress would enlist banks in watching gun sales [Robert VerBruggen/NRO; Noah Shepardson, Reason] NRA, in litigation, contends it has evidence New York state officials negotiated with U.K.’s Lloyds to curtail insurance availability in a way specifically targeted at the association [Stephen Gutowski thread]
“The Misguided Quest to Limit Choice in Consumer Credit” [Diego Zuluaga]
“The CFPB and Payday Lending Regulations” [Peter Van Doren last February; earlier on payday lending; Federalist Society Regulatory Transparency Project video on regulation-through-investigation of payday lenders with Jamie Fulmer, Chris Peterson, and Brian Knight]
Federalist Society podcast on Community Reinvestment Act with Aaron Klein and Diego Zuluaga;
Learned a new word, lutulent, which means “muddy, turbid, thick” and is more or less the opposite of luculent (“lucid, clear, transparent”) [Keith Paul Bishop on unclarities in new California law requiring gender quotas on boards (“a lutulent mess”); earlier here, etc.]

Filed under: banks, CFPB, Elizabeth Warren, guns, New York

December 18 roundup

Examples ranging from eminent domain and free speech to racial and religious discrimination contradict Attorney General’s suggestion that it’s unusual for modern courts to scrutinize motives behind government action [Milad Emam, Institute for Justice; Ilya Somin]
Article deems it “unusual” that lawyer trying to get money out of Facebook on lurid sex-trafficking theories is a personal-injury specialist who’s pursued car-crash and insurance claims. Doesn’t take much to surprise the New York Times, does it? [Jack Nicas, New York Times]
“We learned very quickly that it was a numbers game — the more people you come in contact with, the greater your chances of getting a gun.” How Baltimore’s Gun Trace Task Force went “hunting” among city residents [Justin Fenton, Baltimore Sun this summer, earlier]
“Politically Incorrect Paper of the Day: The United Fruit Company was Good!” [Alex Tabarrok on Esteban Mendez-Chacon and Diana Van Patten paper]
“I’ve often noted to people that [lawyers who] are unethical at the start of representation are not likely to be ethical later as their interests are directed to the self and not the client” [Eric Turkewitz on NYPD 911-call-injury-referral scandal, earlier]
“The Color Magenta, Or How T-Mobile Thinks It Owns A General Color” [Timothy Geigner, TechDirt]

Filed under: Baltimore, chasing clients, Facebook, guns, trade dress

December 4 roundup

Everyday orders share same griddle, but alternate cooking method is offered for vegans: “Lawsuit claims Burger King’s Impossible Whoppers are contaminated by meat” [Jonathan Stempel and Richa Naidu, Reuters]
Court orders Canadian Senate to pay $1,500 to man who complained of language rights violation from English-only push labels on Parliament Hill drinking fountains [Jackie Dunham, CTV]
Guns N’ Mootness: Supreme Court hears challenge to New York’s Kafkaesque have-gun-can’t-travel law, since repealed [Clark Neily, Daniel Horwitz, Josh Blackman, Newsy video with Ilya Shapiro, earlier and David Kopel/Randy Barnett in SCOTUSBlog symposium; Cato brief, oral argument transcript]
Some deserved national attention for the killing of Gary Willis last year by Anne Arundel County, Md. police enforcing a “red flag” gun order [Jacob Sullum, earlier]
Profile of Ken White is first time I recall seeing explanation of Popehat as blog name [Zane Hill, Outlook Newspapers]
“When the opposition is paying [an expert’s fee in litigation], no incentive at all exists to charge anything but top dollar. That’s where the courts come in.” [Jim Beck]

Filed under: Canada, expert witnesses, guns, restaurants, Supreme Court

SCOTUS declines to intervene in Sandy Hook gunmaker case for now

I joined the Lars Larson Show on Tuesday to talk about the Supreme Court’s ruling allowing a suit against Remington over the Sandy Hook massacre to proceed for now [earlier]. The current suit, as green-lighted by the Connecticut Supreme Court earlier this year over a dissent from three of its seven justices, claims that Remington violated the broad provisions on deceptive marketing of a state consumer protection law, the Connecticut Unfair Trade Practices Act (CUTPA). It should be emphasized that the case is still at an early stage and that the Justices will probably be presented with further opportunities to pronounce on its compatibility with the federal law that pre-empts most gun suits, the Protection of Lawful Commerce in Arms Act (PLCAA).

I’ve got a new post up at Cato at Liberty taking a more extended look at the ruling and what lies ahead for gunmaker litigation.

Filed under: guns, on TV and radio, Protection of Lawful Commerce in Arms Act, Supreme Court, WO writings

Supreme Court roundup

A Cato-centric selection:

Massachusetts bans the most popular variety of self-defense firearms and that violates the Second Amendment, as SCOTUS should make clear [Ilya Shapiro and James T. Knight II on Cato Institute amicus brief in Worman v. Healey] Congress has never passed a law criminalizing the accessories known as bump stocks and the Executive branch can’t change that on its own [Trevor Burrus and James Knight, Guedes v. BATF]
Three more Cato certiorari amicus briefs: With return of Little Sisters case, Court should make clear that scope of accommodation under Religious Freedom Restoration Act is not for executive agencies to expand and contract accordion-like [Ilya Shapiro and Sam Spiegelman] Berkeley, Calif.’s ordinance requiring disclosure of the purported risks of cell phone radio frequency (RF) exposure poses First Amendment questions of forced commercial speech [Ilya Shapiro and Michael Collins on return to SCOTUS of CTIA v. Berkeley] Supreme Court has rejected attempt to use Alien Tort Statute to assert universal jurisdiction over human-rights abuses in overseas business, but Ninth Circuit still hasn’t gotten the message [Ilya Shapiro and Dennis Garcia, Nestle v. Doe]
Summing up the last Court term: speech by Miguel Estrada and a short video with Ilya Shapiro for the Federalist Society;
“Fearful that the Supreme Court will reject a broad interpretation of the CWA’s [Clean Water Act’s] scope, environmentalist groups have been seeking to settle the Maui case before the Court rules.” [Jonathan Adler on Maui v. Hawaii Wildlife Fund]
Another case of surprise plain meaning? Advocates argue that Congress didn’t really end Indian reservation status for much of the state of Oklahoma even if everyone at the time thought it did [Will Baude on Sharp v. Murphy; earlier on surprise plain meaning]
“An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know” [new book by Randy Barnett and Josh Blackman; described here, and discussed in this Cato video]

Filed under: Cato Institute, constitutional law, guns, Indian tribes, Oklahoma, Supreme Court

October 23 roundup

“Per Hailey’s Law, Washington state police are required to impound a vehicle any time they arrest the driver for a DUI, regardless of whether the car is off the road or someone else can safely drive it away. But that violates the state’s constitution, explains the Washington Supreme Court, because warrantless seizures require individualized consideration of the circumstances. This law eliminates that individualized consideration, and the legislature cannot legislate constitutional rights away.” [Institute for Justice “Short Circuit” on Washington v. Villela, in which it signed on to (IJ signed on to an amicus brief; David Rasbach, Bellingham Herald)
“The Great American Vape Panic of 2019 Is Producing Some Wild Lawsuits” [Alex Norcia, Vice; Priscilla DeGregory and Ben Feuerherd, New York Post]
Federal judge rejects state’s challenge to SALT tax revisions, push to raise minimum legal age for marriage, aerial police surveillance in Baltimore, pension funding and more in my new Maryland policy roundup [Free State Notes] Yuripzy Morgan took time on her WBAL radio show to discuss my article on the Supreme Court’s consideration of job bias law and you can listen here;
Great moments in reparations: candidates propose dropping cash from airplanes on neighborhoods that were redlined 50+ years ago. But mostly different people live there now [Robert VerBruggen, National Review; Andre M. Perry and David Harshbarger, Brookings Institution]
Full Fifth Circuit should review ruling upholding Indian Child Welfare Act against constitutional challenge [Ilya Shapiro on Cato amicus brief seeking en banc reconsideration in Brackeen v. Bernhard; earlier]
Bay Area: “Donor who gave $45K to elect sheriff got coveted gun permit from her office” [Josh Koehn, Matthias Gafni and Joaquin Palomino, San Francisco Chronicle; Santa Clara County, Calif.]

Filed under: age of majority, Bay Area, DUI, Fourth Amendment, guns, Maryland, reparations, tobacco, Washington state

“The First Amendment does not depend on whether everyone is in on the joke.”

“…when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard. The First Amendment does not depend on whether everyone is in on the joke.” — Judge Amul Thapar, Sixth Circuit, writing on behalf of a unanimous panel that “an Ohio man who was acquitted of a felony after creating a parody Facebook page that mocked a suburban Cleveland police department can sue the city and two police officers over his arrest.” [Jonathan Stempel, Reuters]

Related: everyone has the right to call politicians idiots, and that goes for gun store owners too [Eugene Volokh; North Carolina gun store owner’s billboard likened by sitting member of Congress to “inciting violence”]

Filed under: free speech, guns, parody, police, Sixth Circuit, social media