13 years after Ross Sandler and David Schoenbrod’s groundbreaking book Democracy by Decree, small groups of litigators, experts, special masters and other insiders continue to run many government agencies under what are known as consent decrees, court-enforced agreements to resolve litigation. Children’s services are particularly affected: “the Illinois child-welfare system is burdened by 10 different consent decrees, including one that has lasted nearly 40 years.” But the decrees often work against the real interests of the intended beneficiaries, argue Maura Corrigan and John Bursch in a paper for the American Enterprise Institute. By design, it is made hard to get out from under a decree, which can leave the small controlling group in control indefinitely: Connecticut’s 25-year-old child-welfare consent decree “contains 22 outcome measures that all must be met and sustained for six months before exit,” which has never happened.
“In yesterday’s decision, the [Illinois Supreme Court] — as it did in a 2015 case dealing with state workers—relied on a clause in the Illinois Constitution that treats government pensions as ‘an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.'” It wasn’t relevant that Chicago’s pension scheme was $8 billion in the hole, or that most of the city’s public unions had agreed to a deal with Mayor Rahm Emanuel under which the city would step up its funding in exchange for lower COLAs and higher employee contributions. “The bottom line …is that, having just been whacked with a record $543 million property tax hike to pay for old city pension debt, taxpayers are going to have to dig deep again — at least $168 million more over five years, by 2020, and rising from there.” [Chicago Business] Chicago now confronts population loss, aging of resident base [Chicago Magazine, Illinois Policy, Aaron Renn, City Journal] More: “While the US Constitution is famously “not a suicide pact,” the Illinois constitution apparently is.” [Jack Henneman on Twitter]
A big win for plaintiff’s lawyers: “Rewriting decades of established law in Illinois, the [state’] high court — by a 4-3 margin — repealed the public-duty doctrine that holds local government entities, including fire and police departments, owe their duty to protect to the general public, not individual citizens. The lawsuit opens the way for individuals to sue governmental entities based on some claim of harm caused to them as a result of the public entity’s negligence.” [Champaign-Urbana News-Gazette, Cook County Record, Municipal Minute; some related issues of government duty-to-protect exposure from the state of Washington]
Under an old Illinois law, not only can persons who lose at unlawful gambling sue the winners to claw back their losses, but if they fail to act, literally any other person can sue demanding that money. Citing this law, two women sued online-poker operators seeking to recover gambling losses of men who happened to be their sons (but could as easily under the law have been strangers). A Seventh Circuit panel, Judge Posner writing, has now upheld a lower court’s dismissal of the case (an intended class action) on the grounds that the Illinois law by its terms allows suit only against the other gamblers who won the poker games in question, not the house that collected a fee for presiding. [Courthouse News, Rakebrain; opinion in Sonnenberg v. Amaya Group Holdings via John Ross, Institute for Justice “Short Circuit”]
While on the subject of Judge Posner, Harvard Magazine has a Lincoln Caplan interview with him that is worth a read.
Wineries that ship to customers nationwide are among the latest targets of a Chicago attorney who has developed a lucrative freelance enforcement niche. Steven Diamond and his firm of Schad, Diamond and Shedden “have filed hundreds of suits against various companies in industries such as cookware, flowers and motorsports” and more recently beverage makers under “an Illinois law that requires businesses to collect sales taxes for the state, not only on what they sell, but on shipping-and-handling charges. A whistleblower rule allows anyone within the state to sue in the name of Illinois and collect any recovered funds.” [Wine Spectator] While a number of other states also tax shipping charges, Illinois authorities, unable to agree on how to interpret a relevant decision by their state’s high court, have given conflicting guidance on when taxes are owed. [Wines and Vines, Tom Wark, Schiff Hardin, WTAX]
“West Virginia courts have a well-deserved reputation for favoring plaintiffs, but the state’s Supreme Court may have gone too far this year when it said drug addicts who broke the law to obtain narcotics could sue the doctors and pharmacies who supposedly fed their addiction.” Rulings like that, writes Daniel Fisher, are one reason West Virginia perennially ranks at the bottom in the U.S. Chamber’s ranking of state legal climates, and did again this year. Louisiana, Illinois, and California are other cellar-dwellers, while Alabama and Texas, despite extensive reforms and the success of business-oriented candidates in many judicial races, also languish in the lower ranks with continuing problems such as the litigation atmosphere of east Texas [Lou Ann Anderson/Watchdog Arena] More: Bob Dorigo Jones. Related, from ALEC: State Lawsuit Reform.
- Home lab butane cannabis fatality: “The Hash Oil contributory negligence lawsuit you’ve all been waiting for” [Elie Mystal, Above the Law]
- With Sheldon Silver out of the speaker’s chair, New York has better chance at reducing sky-high litigation costs [Manhattan Institute, earlier on scaffold law]
- Per Norton Rose Fulbright annual business survey, responding companies more than twice as likely to be facing five or more lawsuits if based in U.S. than if based elsewhere [Norton Rose Fulbright, Bob Dorigo Jones]
- “Hearing: H.R. 1927, the “Fairness in Class Action Litigation Act of 2015” [April House Judiciary Committee with John Beisner, Mark Behrens, Alexandra Lahav, Andrew Trask]
- Legal outlook for Illinois defendants deteriorates as Madison County sees resurgence in suits and Cook County remains itself [ICJL]
- Brown v. Nucor Corp.: did Fourth Circuit just try to gut Wal-Mart v. Dukes rules against combining bias plaintiffs in dissimilar situations into class action? [Hans Bader/Examiner, Derek Stikeleather/Maryland Appellate Blog]
- No wonder New York City consolidation trials are so popular with asbestos lawyers if they yield average of $24 million per plaintiff [Chamber-backed Legal NewsLine] Information in eye-opening Garlock asbestos bankruptcy (allegations of perjury, witness-coaching, etc.) now unsealed and online [same, earlier]
- “To the public, a car’s status is binary: it is either broken or working, flawed or functional.” But to an engineer… [Malcolm Gladwell, New Yorker; our coverage of autos and sudden acceleration]
- Canadian court awards special costs, akin to sanctions, for bad litigant conduct in “Real Housewives of Vancouver” divorce case [CBC]
- As IRS scandals grind on, lawyers defending agency meet with less than favorable reception before D.C. Circuit panel [Scott Johnson, Power Line, our earlier takes here, here, etc.]
- Gov. Larry Hogan signs Tesla bill, okay. But Maryland auto buyers should be demanding more freedom than that [my Free State Notes, related Peter Van Doren, Cato and Nick Zaiac, Maryland Public Policy Institute]
- Why one victim of Washington, D.C.’s peeping-Tom rabbi isn’t suing [Bethany S. Mandel]
- After Illinois Supreme Court rules that state constitution forbids lawmakers ever to cut public pensions for any reason, Moody’s slashes Chicago bond rating to junk status [Daniel Fisher; David Skeel, On Labor]
- Panel on Capitol Hill tomorrow (Fri., 5/22) on lessons of Baltimore with Cato’s Tim Lynch, Matthew Feeney, Michael Tanner, moderated by Peter Russo [register or watch online] Richard Epstein on Baltimore with a critique of both 1) police unions and 2) Ta-Nehisi Coates’s apologia for violence [Hoover “Defining Ideas”]
- “On what planet is it remotely constitutional to *raid someone’s home* and forbid them from speaking about it?” [Julian Sanchez on new at-length National Review account of Wisconsin John Doe raids; my earlier writing on the raids at Cato and here; Scott Shackford, Reason; Walker opponents still defending John Doe proceeding, to praise from (updated) left-leaning national Alliance for Justice and Center for American Progress]
- Virginia Gov. Terry McAuliffe vetoes bill to provide more transparency in state’s hiring of outside counsel [Legal NewsLine]
- BuckyBalls gone, Zen Magnets still standing: “Two Cheers for 10th Circuit’s Temporary Stay of CPSC’s New Magnet Safety Standard” [Mark Chenoweth, WLF]
- Arkansas governor vetoes “right of publicity” bill [Volokh]
- NY Times profiles prolific privacy lawsuit filer Jay Edelson, whose class action firm we’ve met before;
- Recusal motion gamesmanship from trial lawyers at Illinois Supreme Court [Richard Samp, WLF]
- Law faculty diversity: Republican women “were — and are — almost missing from law teaching.” [James Lindgren, SSRN via TaxProf; more from Lindgren]
I’ve now expanded Monday’s post into a longer Cato post. Among the new material, it links Petula Dvorak’s excellent WaPo column (“Our rapid march toward police-state parenting has got to end”) in which, to show how far we have moved, she quotes a checklist from a 1979 book on knowing whether your six-year-old is ready for first grade: “Can he travel alone in the neighborhood (four to eight blocks) to store, school, playground, or to a friend’s home?”
Megan McArdle notes “the kind of range of movement that those of us over 30 recall as a normal part of childhood” and names some possibilities of what social forces might have brought about such an extreme shift in attitudes, from cable news (magnifying the very-rare-in-fact peril of stranger abductions) to the lack of daytime “eyes on the street” to the ubiquity of mobile phones and report-possible-abuse lines (“It would be surprising if we lowered the price of being an officious busybody and didn’t get a lot more of it.”)
Aren’t prisoners allowed one phone call, or is that just on TV? Because the Meitiv kids were not allowed to contact their parents in the six hours they were held by the authorities.
This is probably as good a place as any to share my personal experience: by around age 9 or 10 in the early 1960s I had the run of downtown Detroit and wandered around by myself to all sorts of attractions there, returning to my mother’s place of work at the end of the business day. That was considered a little precocious and my family was proud of me on that account. Once with some extra money in my pocket I even went into a white-tablecloth Italian restaurant by myself and ordered, ate, and paid for a meal with tip, a story told for years afterward.
P.S.: “This is kind of insane — in Illinois it’s illegal to leave a 13-year-old home alone” [Christopher Ingraham, but see comments below (not illegal in Illinois as such, only potentially so depending on a range of factors)]