Republican presidential nominee Donald Trump spoke recently of his intent if elected to “end” political correctness on university campuses, and Steve Kolowich at Chronicle of Higher Education asks a number of observers, including some who have been critical of that phenomenon, to describe what practical changes in federal higher education policy that might entail. I’m quoted on how Trump’s intent is “not something that you could easily reduce to the four corners of a policy proposal.”
As has often been noted, the so-called American Rule on fees in litigation (prevailing party has no right to recover fees from loser) creates an incentive for businesses to refuse to pay the full sums they owe suppliers, since it would appear rational for a vendor to accept, say, 70 cents on the dollar rather than embark on the substantial cost of litigating over nonpayment. And yet deliberate vendor-stiffing (“selling out your good will”) remains uncommon in our system, rather than being the rule. Roger Parloff at Fortune, drawing on the work of the late contracts scholar Arthur Leff, explains why.
- Today at Cato, Josh Blackman discusses his new book Unraveled: Obamacare, Religious Liberty, and Executive Power with comments from Washington Post Supreme Court reporter Robert Barnes and Philip Klein of the Washington Examiner, Ilya Shapiro moderating [watch live 12 noon Eastern]
- Breed-specific laws fuel mass euthanasia: “Montreal Gearing Up To Sentence Huge Numbers Of Innocent Dogs To Death” [Huffington Post]
- Feds prepare to mandate mechanical speed governors capping road speed of tractor-trailers; truckers warn of crashes and traffic jams [AP/San Luis Obispo Tribune]
- “You have to go back to the Red Scare to find something similar,” said Rep. Eddie Bernice Johnson (D-Texas) of advocacy-group subpoenas by Hill committee in “Exxon Knew” probe. Or just five months to the CEI subpoena [Washington Post hearing coverage which oddly omits mention of CEI episode]
- “I’m not here to take away your guns.” Why Hillary Clinton’s assurances ring hollow [Jacob Sullum] Trump’s comments defending stop-and-frisk and no-fly no-buy further undercut his never-impressive claims as defender of gun liberty [AllahPundit, Leon Wolf, Ilya Somin]
- Why my Cato colleagues believe the Trans-Pacific Trade Partnership (TPP) is worth supporting as a trade liberalization measure despite some suboptimal aspects [Daniel J. Ikenson, Simon Lester, Scott Lincicome, Daniel R. Pearson, K. William Watson, Cato Trade]
Presidential candidate Donald J. Trump, following negative coverage including a story on his use of tax breaks in real estate development [The Hill]:
My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting
— Donald J. Trump (@realDonaldTrump) September 17, 2016
Vague lawsuit threats are usually the bumptious kind: there is no cause of action for “irresponsible intent.”
“If you want to make phone calls on behalf of Donald Trump’s presidential bid, you will have to agree to the terms of this contract…It’s a very peculiar document.” [David Post, Volokh] “The forms are extraordinarily broad, virtually prohibiting any volunteers from criticizing Trump or his family for the rest of their lifetimes, according to Rachel Sklar, a lawyer and CNN contributor.” [Jeff Stein, Vox] It also includes an “obligation to prevent your employees from demeaning or disparaging a Trump asset… That is surely not only absurd and unenforceable, it may well constitute abetting a violation of US labor law.” [Post] More on Trump and over-lawyering from Lawrence Cunningham (more), and generally. More on the recent Texas case in which a judge tossed a suit based on a nondisparagement clause proffered by a pet-sitting company, which then invoked it after a customer left a one-star Yelp review, from David Kravets at ArsTechnica.
- New, much-anticipated documentary Can We Take a Joke? When Outrage and Comedy Collide [on demand, Greg Lukianoff] More on the fining of comedian Mike Ward by the Quebec Human Rights Tribunal [Guardian, earlier]
- “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!” [@donaldjtrump Sunday on Twitter] 25 years ago in my stump speech on lawsuit reform I criticized Trump for his use of legal threats to silence critics. More reportage on that history, a familiar topic around here [Frances S. Sellers, Washington Post, earlier here, etc.]
- Eighth Circuit: Nebraska regulators improperly retaliated against financial adviser over (inter alia) his criticism of Obama [Eugene Volokh]
- Nine senators (Boxer, Durbin, Franken, Markey, Reid, Sanders, Schumer, Warren, Whitehouse): we demand 22 right-of-center think tanks open their donation records to us [Carolina Journal]
- “Copyright infringer issues bogus DMCA over someone calling him out. Then denies all of it” [Mike Masnick, TechDirt]
- Lawsuit demanding R ratings on films with “tobacco imagery” deserves to be hit with SLAPP sanctions; “suing the MPAA to force censorship raises the stakes.” [WSJ Law Blog, Scott Greenfield]
Over the years about thirty friends and acquaintances have contributed their talents as guestbloggers at Overlawyered, typically posting over the span of a week while I’m away from my duties. I’d like to use this week to tell what some of them are doing now, highlight a few of their contributions, and I hope at least mention the names and link the author archives of all of them.
Ron Coleman, an IP and media law attorney attorney in greater New York, writes the excellent and longstanding Likelihood of Confusion blog on trademarks, copyrights, Internet law and free speech, from which I’ve learned a lot over the years. He’s guestblogged for us twice, covering such issues as a New York male attorney’s discrimination suit against ladies’ night discounts at bars; a suit in Romania by a prison inmate purportedly against God Himself (“He has some issues, only not justiciable ones, it seems”); and a lawsuit by NBA players over depictions of their lady interests on a VH1 show called “Basketball Wives.” His full archive is here (law-oriented and personal Twitter).
When he guestblogged for us, Will Baude was a student at the University of Chicago Law School. He’s now on its faculty, teaching federal courts and constitutional law, after doing things like clerking for appellate judge Michael McConnell and Chief Justice John Roberts. Last week he was a guestblogger at Volokh Conspiracy about his work on the law of interpretation, statutory and otherwise; sample posts here and here. During his guest week at Overlawyered he covered a dispute over whether a California city should sue over a reference to its citizens as “white trash” on a popular TV show, “The O.C.”, and wrote on popular schemes (popular in philosophical circles, at least) “to extend the right to vote to children of any age.” Full archive here (Twitter).
Pasadena attorney George M. Wallace wrote the excellent insurance law blog Declarations and Exclusions through 2013, and continues to blog on non-legal subjects at A Fool in the Forest. In his time with us he covered an advisory in the L.A. city attorney’s office on “how they should recognize a newsworthy legal case. Public safety? Important public issue at stake? Nah, this is L.A. Number one is any case involving a celebrity — ‘no matter how minor’ — followed closely by a politician. Death, mutilation, child molestation or animal cruelty are also sure bets.” And he wrote — this nearly ten years ago — about the legal showdown between TV personality Rosie O’Donnell and Donald Trump. Full archive here (Twitter).
Because I’m expecting some down time in my own blogging in coming months, I invite volunteers (and of course repeat volunteers) who might like to guestblog in this space this summer and fall. Email editor – (at) – overlawyered – (dot) – com.
Sorry, Justice Ginsburg, but those comments about a candidate whose legal interests might well come before the Court this year were waaaay over the line [Dan Drezner; Bloomberg View editorial; Orin Kerr (“cringe-inducing”)] “In the unlikely (and horrifying) event of Bush-v.-Gore-like election litigation, I do not see how Justice Ginsburg could refuse to recuse after these sorts of comments.” [Jonathan Adler, more (the Justice deserves commendation for ensuring that the Court will consist of only 7 non-recused Justices, the better to speak with a clear majority voice, in case Donald Trump figures in a disputed election)] Yet more: Bob Fredericks, New York Post (thanks for quote). Some contrary views: Profs. Erwin Chemerinsky and Paul Butler, quoted in the ABA Journal; but note this from Prof. Jeff Pojanowski re: Prof. Chemerinsky’s views in 2014 (link fixed now).
More, Steve Lubet: “Political neutrality is not a facade, it’s an aspiration. When a justice begins campaigning for or against a candidate, however, it means that she has stopped trying. And that is what is wrong with Justice Ginsburg’s recent remarks.”
Update: “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.” [Washington Post]
- Vice presidential candidate Bill Weld, at Libertarian ticket town hall with Gary Johnson: trade war that followed Smoot-Hawley tariff “croaked the world economy.” Points for using “croaked” in a policy debate [CNN transcript]
- Litigator in chief? USA Today deep dive on Donald Trump’s lawsuit involvements including non-payment and tax categories [earlier]
- Lawyers and law firms had given 350 times more to pro-Clinton than pro-Trump efforts as of late May [American Lawyer, graphic] Should a lawyer work for Trump? [Josh Blackman]
- Be warned. “If Congress refuses to act, Hillary will take administrative action” against guns, her campaign vows [J.D. Tuccille]
- Raises interesting constitutional issues whatever one’s views of a #NeverTrump revolt [Washington Examiner]
- Trial lawyer/social conservative slate bid to control Texas GOP goes down in flames. [Texas Tribune, earlier]