“Packing the Supreme Court Is a Terrible Idea”

“Democrats paid a political cost for decades after F.D.R. tried it in the 1930s. They probably would again.” [Julian E. Zelizer, New York Times]

Some writings on the left applauding or backing the idea: Ian Samuel, Guardian; E.J. Dionne, Washington Post; Mehdi Hasan/The Intercept; Jed Shugerman; Michael Klarman, Take Care Blog. Charlie Savage at the New York Times rounds up more pro and con. And as Josh Blackman noted in April 2017, similar ideas were already floating around then; see also Mark Tushnet later last year.

Critics of the idea: Megan McArdle (recalling “Impeach Earl Warren” billboards), Charles Cooke (“fringe fantasy”), Adam White, Ilya Somin. A constitutional amendment to prevent packing? [Jim Lindgren, Ilya Somin]

Labor roundup

  • Great moments in public employee unionism, cont’d: D.C. Metro track inspector charged after derailment with falsifying records wins reinstatement and back pay in arbitration [Max Smith, WTOP, earlier here (similar after fatal smoke incident) and here] Could be permanent? “Bus drivers’ union threatens strike over driverless buses” [Jason Aubry, WCMH (Columbus, Ohio)]
  • Letting guests skip housekeeping = grievance: “Union Threatens Strike over Marriott’s Green Initiative” [Darrell VanDeusen, Kollman & Saucier]
  • Stephen Bainbridge series on what’s wrong with Sen. Elizabeth Warren’s proposals [earlier, etc.] continues with a post on labor co-determination and employee involvement in corporate governance;
  • “Public Sector Unions Win Big at the California Supreme Court: California citizens must now meet and confer with union bosses before qualifying any compensation-related initiatives for the ballot.” [Steven Greenhut, Reason]
  • My Frederick News Post letter to the editor opposing Question D (mandatory binding arbitration and collective bargaining for career firefighters). More on mandatory binding arbitration in the public sector: Ivan Osorio et al on California, for Cato (see pp. 12 et seq.); Steve Eide, Public Sector Inc., 2013.
  • “Waikiki, Hawaii hotel workers decline to join union; the union demands they pay full dues anyway, starts process to garnish their wages. Does the union’s conduct amount to an unfair labor practice? NLRB: No, the union made an honest mistake. D.C. Circuit: That ‘makes no sense.’ The union never apologized or said it made a mistake. Its message to the workers was, ‘We can do this the easy way, or we can do this the hard way.'” [John Kenneth Ross, IJ “Short Circuit”]

U.K.: “Pizzas must shrink or lose their toppings under Government anti-obesity plan”

From the U.K. — and a Conservative government, at that. “Pizzas must shrink or lose their toppings under Government plans to cap the calories in thousands of meals sold in restaurants and supermarkets. Pies, ready meals and sandwiches will also be subject to the new proposed calorie limits…. Under the draft proposals, a standard pizza for one should contain no more than 928 calories – far less than many sold by takeaways, restaurants and shops.” For the moment the restrictions would not be mandatory, but in a parallel initiative concerning sweet foods failures to meet the targets “have prompted warnings from ministers that tougher steps may be taken.”

The best place to fight coercive paternalism is on principle, before it gets this far. [Laura Donnelly, Telegraph (U.K.)]

18,000 Facebook shares later: a tale of legal misinformation

How efficient is social media in spreading viral-junk misinformation about the law? Well, the following post about Tuesday’s two-page Supreme Court ruling in Brakebill v. Jaeger, a case about voting procedures in North Dakota, has gotten more than 18,000 shares as of this morning:

screen capture of Facebook post
Let’s take a look at its errors, or at least the first four biggies:

1. Brakebill was not Justice Kavanaugh’s first ruling. If you so much as glance at the Court’s opinion, it’s hard to miss its second sentence: “JUSTICE KAVANAUGH took no part in the consideration or decision of this application.”

2. There is no indication that the vote was 5 to 4. Liberal Justices Sonia Sotomayor and Stephen Breyer did not join the dissent.*

3. Justice Ginsburg’s dissent contains no language even remotely like that put within quotation marks here. Her tone is technical rather than indignant, and she does not challenge anyone’s motives as illegitimate.

4. The Court did not issue a decision upholding the laws. It was a denial of an application to vacate a stay, not a ruling on the merits.

And we haven’t even gotten to the merits! Three and a half days after posting, its author has not seen fit to correct any of his errors.

Here’s a rule of thumb about social media: the more anger, the less accuracy. More on viral junk and thinking before you share here.

* A reader on Twitter points out that in the absence of a signed majority opinion, we can’t know for sure that the vote against vacating the stay necessarily came out 6-2; we know only that if there were other Justices who wanted to vacate the stay, they declined to join the Ginsburg-Kagan dissent. I’ve corrected the text above accordingly.

Banking and finance roundup

The Fourth Amendment and food trucks

Chicago has enacted a law requiring food trucks to install GPS trackers reporting their location at all times, and the Fourth Amendment might have something to say about that [Ilya Shapiro and Aaron Barnes on Cato brief in Illinois Supreme Court case of LMP Services v. Chicago; Timothy Snowball, Pacific Legal Foundation; Foodservice Equipment Reports]

Plus: “The Fourth Amendment in the Digital Age,” conversation with Julian Sanchez, Matthew Feeney, and Caleb Brown for the Cato Daily Podcast.

October 10 roundup

  • “Heisman Trophy People Sue HeismanWatch For Using Images Of The Trophy And Stating Its Name” [Timothy Geigner, TechDirt]
  • At elite law schools, the days when a centrist liberal like Elena Kagan could offer a welcome to Federalist Society types are fast drawing to a close, writes Reihan Salam [The Atlantic]
  • Being able to link to federal court cases and legal materials would be huge: legislation from Rep. Doug Collins (R-Ga.) “would require that the courts make PACER documents available for download free of charge” [Timothy Lee, ArsTechnica]
  • “UPDATE: Judge Rules Province Has No Duty to Recognize Bigfoot” [Kevin Underhill, Lowering the Bar, earlier]
  • First state with such a law: “California governor signs bill banning sale of animal-tested cosmetics” [John Bowden, The Hill]
  • North Carolina bar says lawyer “defrauded, deceived and embezzled funds from two mentally disabled clients who were declared innocent after spending 31 years in prison” [Joseph Neff, Marshall Project]

Lawyers milk Florida accident-bill law for one-way fee entitlements

A Florida law allows persons who have undergone treatment after auto mishaps to sign over to the medical provider their right to sue their insurer under so-called PIP (personal injury protection) auto coverage. Under the provisions of this assignment of benefits (AOB) law, when the medical provider sues, it is entitled to one-way attorney’s fees (payable if it prevails, but not if it loses). These attorneys’ fees can dwarf the underlying sums being sued over — amounting to about $40,000 following a $790 win in one extreme case.

Now Florida attorneys are rolling out tens of thousands of AOB suits, many of small enough quantum that they can be filed in small claims court, even if the fee entitlement thereby triggered is not so small. In Volusia County, where small claims filings more than doubled to over 12,000 cases in 2017, “a single local law firm accounted for all of that increase — and then some — by filing 8,400 cases that year…. In one example, Advantacare of Florida, represented by Kimberly Simoes, filed a lawsuit against State Farm saying the company had not paid it for services it rendered to Stephen Smith. Advantacare was awarded $789.62 according to court files. Simoes was awarded $39,985 in attorney’s fees. Attorney Mark Cederberg was awarded $3,500 for his expert testimony regarding whether Simoes’ fees were reasonable. About a month after the attorney’s fees were awarded, Advantacare dismissed the lawsuit.” [Frank Fernandez, Daytona Beach News-Journal; earlier here and here]

As I have written elsewhere, the true two-way loser-pays systems that operate in most other legal systems take care to avoid the fee-escalation incentives that typify many one-way fee entitlement laws in the U.S. In particular, they tend to hold fee recoveries below actual outlays, and often decline to reimburse fees unnecessarily expended.