Overlawyered: Chronicling The High Cost Of Our Legal System

Michael McConnell on the Masterpiece Cakeshop case

The Stanford law professor has penned “Dressmakers, Bakers, and the Equality of Rights” for the forthcoming volume “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018). [SSRN, Volokh] Abstract:

Using recent examples involving dressmakers refusing to create designs for the First Lady at the Trump inauguration, this paper explains why Masterpiece Cakeshop should be decided in favor the baker who refuses to create a wedding cake for a same-sex wedding ceremony, and why this should be understanding as an equality of rights, rather than prioritizing free speech over nondiscrimination.

Earlier on Masterpiece Cakeshop here.

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NAFTA not nannyish enough for NYT

Advocates claiming the mantle of public health would like to introduce scary new warnings on foods high in sugar, salt, or fat, and restrict marketing, as by banning the use of cartoon characters. For years they’ve been trying to advance their schemes through the use of international organizations and institutions, but now the United States, or at least its federal government, has begun pushing back. The New York Times doesn’t like that one bit and my latest Cato post examines the difference between what a principled position might look like, and the position the Times actually takes. Excerpt:

Like international organizations, treaty administration bodies tend to draw for guidance on an elite stratum of professional diplomats, conference-goers, NGO and nonprofit specialists, and so forth, most of whom are relatively insulated from any pushback in public opinion. That might be a good reason to minimize the role of transnational panels in governance where not absolutely necessary. It is not a good reason to adopt the Times’s implicit position on lobbying for international standards, which is that it’s fine when done by our side but illegitimate when done by yours.

Related: Good piece on sugar/fat wars, with one proviso: when it’s Stanton Glantz spreading a tale, don’t just call it “University of California” [David Merritt Johns and Gerald M. Oppenheimer, Slate]

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Police misconduct roundup

  • “Law Enforcement Officer Bill of Rights” laws give police officers interrrogated over suspected misconduct a wide range of rights not enjoyed by general citizenry under like circumstances [Alex Tabarrok, earlier] Followup: “A new paper, The Effect of Collective Bargaining Rights on Law Enforcement: Evidence from Florida, suggests that police union privileges significantly increase the rate of officer misconduct” [same]
  • Courts should retain power to scrutinize arrests motivated by First Amendment retaliation even when probable cause is also present [Ilya Shapiro and Matthew Larosiere on SCOTUS case of Lozman v. Riviera Beach, Florida]
  • “Aurora police union: City should let cop fired over hidden cameras used to spy on ex-wife go back to work” [Hannah Leone, Aurora, Ill., Beacon-News]
  • “Even if consent decrees don’t do squat to fix police impropriety,” the appointed monitors make out well [Scott Greenfield]
  • “Hancock County, W.V. officer is convicted, sentenced to 18 months in prison for beating up drunk motorist who displayed insufficient respect. Officer: The trial court erred by letting the jury know about those other times I beat up people who failed to respect my authority. Fourth Circuit: We’re OK with it.” [John K. Ross, Short Circuit, on U.S. v. Cowden]
  • “Internal NYPD files show that hundreds of officers who committed the most serious offenses — from lying to grand juries to physically attacking innocent people — got to keep their jobs, their pensions, and their tremendous power over New Yorkers’ lives” [Kendall Taggart and Mike Hayes, BuzzFeed]

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Anthem data breach class action, cont’d — and a cy pres opportunity

“When you add up all the legal fees and costs, the lawyers would come out of the settlement with more money than the class members they represented. The payout to all the lawyers involved would be about $63 million.” More details on the Anthem data breach case discussed earlier here, and Ted Frank’s role in calling it into question [Bob Dorigo Jones]

Also, for those with access, Ted has written a piece for the Wall Street Journal on the need to rein in abuse of the cy pres doctrine in disbursing lawsuit proceeds, with a suitable vehicle on the horizon:

A bipartisan coalition of 16 state attorneys general is also urging the Supreme Court to hear Frank v. Gaos. They agree that the Ninth Circuit has created a standard that will make it far too easy for attorneys to siphon millions of dollars of consumers’ money into their own slush funds. Chief Justice John Roberts has previously expressed concern about cy pres abuses. We hope the Supreme Court will protect consumers who take part in class actions from being preyed upon by their attorneys.

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Free speech roundup

  • Minnesota Voters Alliance v. Mansky: SCOTUS considers state ban on political apparel at polling places [Ilya Shapiro, Cato]
  • Under American law governments cannot sue persons for defamation, and “slander of title” won’t do as substitute ploy for lawyer representing city of Sibley, Iowa [Jacob Sullum]
  • “Someone Trying to Vanish My Post About Someone Trying to Vanish Another Post” [Eugene Volokh]
  • “Free Speech and the Administrative State”, George Mason/Scalia Law Center for the Study of the Administrative State conference with videos;
  • “Influencer Marketing Remains in FTC’s Crosshairs” [M. Sean Royall, Richard H. Cunningham, and Andrew B. Blumberg, WLF]
  • Worth recalling: it was legal academia’s Critical Race movement that helped reinvigorate Left support for censorship and speech repression [Alan Dershowitz]

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Family leave pay, borrowed from future Social Security benefits?

With a political push still under way for costly mandates on employers to provide paid family leave, there is interest in proposals for family leave based on borrowing from future Social Security benefits. Under a plan proposed by Kristin Shapiro of the Independent Women’s Forum, “new parents would agree to defer their collection of Social Security benefits upon retirement for the period of time necessary to offset the cost of their parental benefits.” Some critical commentary on the idea: Vanessa Brown Calder And Chris Edwards, Cato. A more favorable view: Ramesh Ponnuru.

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March 21 roundup

  • Popehat’s Patrick tells the story of how, representing a bank, he resisted a serial litigant rather than pay her off [Twitter thread]
  • News of suits motivated by attorneys’ fees may be slow to reach Harvard [“Bill of Health”, dismissing “idea of opportunistic lawsuits to enforce the ADA” as “somewhat farfetched” since federal law does not grant damages]
  • Tim Sandefur on the Indian Child Welfare Act [Cato Regulation magazine, earlier]
  • $3.5 million gift from leading trial lawyer Elizabeth Cabraser launches new Berkeley Center for Consumer Law and Economic Justice [Berkeley Law School]
  • “The South African government will soon discover the extremely complex technical headache of expropriating land without compensation.” [Johann Kirsten and Wandile Sihlobo, Quartz]
  • Speak not of trolls: “Lawyer who filed 500-plus copyright cases in federal court calls $10K sanction ‘judicial error'” [ABA Journal]

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Ninth Circuit finds public sector contingency fees constitutional

The use of contingency fees by governmental plaintiffs incentivizes sharp practice and overzealous litigation in lawyers charged with representing the general public; it also invites corruption and end runs around democratic legislatures intended at making law through litigation. All these evils manifested themselves in the tobacco and gun rounds of mass litigation, and there are some cases offering precedent for the proposition that their use can violate defendants’ rights to due process. Nonetheless, the Ninth Circuit has lately upheld a California district attorney’s hiring of outside law firms on a contingency basis against such a challenge [Amanda Bronstad, The Recorder] And the Supreme Court last month refused to review a challenge to the New Hampshire attorney general’s use of contingency-fee counsel in an opioids suit against Endo Pharmaceuticals [Peter Hayes and Steven M. Sellers, Bloomberg, in a piece surveying current use of public contingency fees more broadly]

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Alabama law enables sheriff to eat well

Under an Alabama law passed before World War II, many county sheriffs can keep what are deemed extra sums allocated for inmate meals but not used for that purpose. Some large counties require the surplus to be turned over to general county funds. Can sheriffs of other counties convert the funds to personal use? In Etowah County (Gadsden), a local resident says he was paid to mow the sheriff’s lawn with checks from from the sheriff’s “Food Provision Account.” [Connor Sheets, Al.com] And in a followup, four days later local police arrested the resident who had told the reporter about being paid for lawn-mowing. The raid, said to have been based on an anonymous call reporting the odor of marijuana issuing from within an apartment, resulted in charges against him later bumped up to felony drug trafficking based on weight: “Once that marijuana was mixed with the butter then the whole butter becomes marijuana, and that’s what we weighed.” [Sheets, Al.com]

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