Sen. Warren: make American business more European

Massachusetts Sen. Elizabeth Warren has a new scheme to impose employee co-determination and an assortment of other forcible corporate governance alterations on American business. My new Cato post argues that it would expropriate huge sums in shareholder value while undercutting incentives for economic dynamism. Alternatives to the U.S. corporate governance system, “European or otherwise, simply do not have as good a track record of supporting a dynamic economy that generates world-beating enterprises across a wide range of business sectors.” Other views: Donald Boudreaux (“deeply truly scary”), Matt Yglesias/Vox (taking favorable view of scheme, including its destruction of perhaps 25 percent of current shareholder value).

Medical roundup

Poppy seed bagel triggers drug test (again), CPS gets involved (again)

Sitcom plots come to life: mom of newborn reported to state after poppy seed bagel triggers positive opiate test, baby kept in hospital for five days [Zuri Davis, Reason; Chaunie Brusie, Everyday Family; Baltimore County, Md.]

Longtime readers of Overlawyered know that this is not the first time around for this fact pattern. See “Mom ate poppy seed dressing, state holds baby for 75 days” and earlier; Radley Balko reported in 2014 that two lawsuits involving the same western Pennsylvania hospital and county children’s services department were both settled for substantial sums and a third case had been filed against another hospital in the same region. See also re-jailing of halfway house inmate from 2010 (Florida), as well as Dubai airport madness.

August 15 roundup

Creator royalties on art in public spaces

Creators of art displayed in parks and other public spaces have been using assertions of copyright to demand cash from, or play favorites among, private persons and groups seeking to carry on video or photography in those spaces. Aaron Renn: “Any city installing public art should ensure that the agreement with the artist provides for unconditional royalty free pictures and videos, or the art shouldn’t be installed.”

“Defendants File Non-Opposition to Plaintiff’s Motion for Leave to File Surreply to Motion for Leave to File Surreply”

“As is so often the case, the first sign of approaching disaster was a motion asking for leave to exceed the page limit….As part of the public service I provide, I have counted up the number of pages that were written, rewritten, printed, scanned, and/or filed by the lawyers during this titanic struggle, and, including exhibits, that number is 1,749. Not a single page of which will be considered by the Court or, in all likelihood, ever viewed again by any human being during the remainder of our species’ time on this planet. Perhaps eons hence some member of an alien race picking through our ruined archives will come upon it, and hurt its brain parts trying to figure it out.” [Kevin Underhill, Lowering the Bar, on E.D. Nev. class action discovery dispute]

Constitutional law roundup

  • Judge says Emoluments Clause suit based on Trump’s DC hotel can proceed [Andrew M. Harris, Bloomberg, Washington Post; two views at Volokh Conspiracy from David Post and Josh Blackman and Seth Barrett Tillman; earlier on Emoluments Clause litigation] Last year I noted the hotel-competitor fact pattern as the kind of emoluments case most likely to clear the standing hurdle;
  • Excessive fines are unconstitutional, whether levied on persons or on groups of persons [Ilya Shapiro and Matthew Larosiere and Dave Kopel on Cato/Independence Institute brief in Colorado Dept. of Labor v. Dami Hospitality]
  • Federalist Society conversation with author Joseph Tartakovsky about his new book, The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law;
  • “In 2016, Birmingham, Ala. officials imposed $10.10 minimum wage, but the next day state legislators preempted it, enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against blacks, who make up 72 percent of Birmingham and most of its City Council. Eleventh Circuit: ‘Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.’ Plaintiffs’ equal protection claim should not have been dismissed.” [John Kenneth Ross, Short Circuit, on Lewis v. Governor of Alabama]
  • “This is the old ‘why do you make him hit you?’ argument applied to civil liberties. It excuses the actions of the abuser—the state in this case—as reactions to the missteps of the abused.” [J.D. Tuccille on curious ACLU argument that maintaining expansive Second Amendment rights just provokes the state into wider crackdowns]
  • North Carolina’s constitution has a clause endorsing right to “the enjoyment of the fruits of their own labor” which might furnish ground to challenge some economic regulation [Eugene Volokh]

Followup on Cato adoption conference

Reporter Gillian Friedman at Deseret News covered our July conference on adoption [earlier here, with videos and podcasts, and more on topic] Brian K. Miller of the Center for Individual Rights has more on the proposal by panelist Robin Fretwell Wilson on voucherizing home studies (“How Vouchers can End the Culture War Over Adoption”), as does Wilson’s home institution, the University of Illinois College of Law.

The steep decline in international adoption, one theme of the conference, has been explored in places like Priceonomics. Keynote speaker Elizabeth Bartholet’s many books include Nobody’s Children, and you can find the Harvard Law Child Advocacy Program, which she directs, here; also check out this 2014 New York Times contribution. And panelist Mark Montgomery and Irene Powell’s book Saving International Adoption has been featured in outlets like The Conversation, The Academic Minute and NPR Morning Edition