- Good news for Donald Trump! Sticking with speech-protective opinion rule, New York judge dismisses libel suit by PR consultant against him based on his derogatory tweets [ABA Journal]
- “Jawboning” at FCC, under which media companies bend to commissioners’ wishes on content and hiring rather than risk their disapproval, should be recognized as danger to both First Amendment and rule of law [Brent Skorup and Christopher Koopman, Regulation via Cato Institute Tumblr summary]
- The family of Ahmed Mohamed, of schoolboy clock fame, may have to pay $200,000 or more to targets of frivolous libel suits [Popehat]
- Harsh epithets, calls for investigation and accusations of whitewashing, rhetorical comparisons to infamous persons could all lead to media liability if D.C. Court of Appeals reasoning in Michael Mann case isn’t overturned [Ilya Shapiro and Thomas Berry, Cato, earlier]
- NYC, San Francisco criminalize listing property on AirBnB except on authorized conditions. A question of commercial speech [Glenn Lammi, WLF]
- Can Colorado regulate groups that run ads with the message “call your lawmaker to support this bill”? [Ilya Shapiro and Thomas Berry]
Great moments in U.K. hate speech law
After a professor’s denunciation, West Midlands police in the United Kingdom recorded as a reported “hate incident” a cabinet minister’s speech to a Conservative Party conference. In the speech, Home Secretary Amber Rudd, whose duties include the oversight of policing itself as well as immigration and citizenship, had “suggested tightening rules that allow UK firms to recruit workers from overseas.” Oxford University professor Joshua Silver reported the speech as a hate incident, and later explained himself in a BBC2 interview, “It’s discriminating against foreigners – you pick on them and say we want to give jobs to British people and not to foreigners. It was interpreted that way.” Britain’s hate speech law is a departure from centuries of free-speech tradition in the island nation; under relevant police guidelines, “Where any person… reports a hate incident … it must be recorded regardless of whether or not they are the victim, and irrespective of whether there is any evidence to identify the hate element.” The West Midlands police are reported to have “assessed” the claim without launching a formal investigation, and say no crime was committed. [BBC]
Texas: serious litigation reform, serious results
“How tort reform helped ignite the Texas boom”:
Over the last two decades, Texas engaged in a conversation as to the purpose and role of its civil courts. When that conversation began, the state’s courts had become virtual fiefdoms of trial lawyers. Texas recognized few limits on damages claims and imposed minimal accountability on plaintiffs. The state’s litigation environment was, unsurprisingly, toxic for business. The pushback came in the early 1980s. Lawmakers started to ask whether the Texas constitution’s commitment, spelled out in Article 1, Section 13, that “all courts shall be open, and every person for an injury done him . . . shall have remedy by due course of law” precludes putting reasonable limits on liability. The state legislature’s decision to strike a balance and roll back tort excesses marked a turning point in the state’s economic rise. Together with competitive tax and regulatory policies, tort reform sowed the field so that Texas’s pro-growth policies could take root.
Comprehensive backgrounder covers such topics as the putting up of justice for sale at the pre-reform version of the elected Texas Supreme Court (the anecdote from businessman Henry J.N. Taub is especially alarming), the Texaco-Pennzoil case and the generosity to judges of the late Joe Jamail, America’s richest lawyer; early statutory enactments, struck down by the state’s high court; the turning point that came when “the general electorate finally began taking an interest in judicial elections”; the Rio Grande Valley doctor’s revolt; comprehensive reforms beginning under then-Governor George W. Bush and continuing under his successors including Rick Perry; elements of loser-pays; and the general success of tort reform, both in economic climate generally and specifically in the encouraging climate for the state’s medical sector, which includes many nationally prominent institutions. [Kathleen Hunker, City Journal]
Reuters investigates police union contracts
“Over the last 40 years, cities have bargained away the power to discipline police officers, often in closed negotiation meetings with local unions.” Contracts frequently call for discipline records to be erased at short intervals, allow officers accused of misconduct to see the opposing evidence before having to commit to a story, and require dismissal of citizen complaints not filed within a very short window, such as 30 days, or with signed affidavit. Those are among things Reuters found in its investigation, which doesn’t even get into the effect of “police bill of rights laws” enacting some of the same measures legislatively.
January 18 roundup
- Another day, another lawsuit charging a social media company with material support for terrorism. This time it’s Twitter and IS attacks in Paris, Brussels [Benjamin Wittes, Lawfare; Tim Cushing, Techdirt] More: And yet another (Dallas police officer versus Twitter, Facebook, and Google; listed as one of the filing attorneys is 1-800-LAW-FIRM, no kidding, complaint h/t Eric Goldman);
- “Woman Sues Chipotle for $2 Billion for Using a Photo of Her Without Consent” [Petapixel]
- “Hot-Yoga Guy and His Cars Are Missing” [Lowering the Bar, earlier]
- From Backpage.com to unpopular climate advocacy, state attorneys general use subpoena power to punish and chill [Ilya Shapiro]
- Dept. of awful ideas: California assemblyman proposes registry of hate crime offenders [Scott Shackford]
- But oh, so worth it otherwise: “Not one Kansas state senator is a lawyer, making compliance with obscure statute impossible” [ABA Journal]
Labor and the federal courts roundup
- “Labor law in America has reached the absurd point where the NLRB is taking the position that a company can’t tell its employees to have a positive attitude” [Ira Stoll on Trader Joe’s controversy, following on T-Mobile case last April, earlier on predecessor 2014 decision in Hills and Dales General Hospital]
- Judge Janice Rogers Brown, writing for D.C. Circuit, rips NLRB for “abusive tactics and extremism.” orders it to pay employer’s attorney fees [Jon Hyman, David Leishman and Seth Borden, McGuire Woods Labor Relations Today (citing Board’s “nonacquiescence” policy), opinion in Heartland Plymouth Court MI, LLC v. NLRB]
- Quoting John Ross’s Short Circuit: Illinois telephone company “may not have violated the rights of striking worker (who allegedly followed a non-striker onto the highway, cut him off, slowed down, and did not allow him to pass) by firing her, says the D.C. Circuit. Concurring in her own opinion, Judge Millett reprimands the NLRB for long countenancing strikers’ sexually and racially demeaning behavior.” More on Millett’s concurrence in Consolidated Communications v. NLRB: Jon Hyman, and more on the case itself from the U.S. Chamber;
- Also quoting Short Circuit: “After discussions with NLRB, Norwood, Mass. car dealership revises employee handbook. NLRB: The new dress code, which prohibits some employees from wearing ‘pins, insignias, or other message clothing,’ still restricts labor rights. First Circuit: Just so. Dissent: Pity employers who want their employees to look nice. “[T]he Board and the courts have lured businesses into a legal bog.'”
- Congress hasn’t passed ENDA. Will courts approve EEOC’s scheme of cobbling it together virtually from other legal materials? [ABA Journal, Will Baude and more, Eugene Volokh on Seventh Circuit argument]
- California agricultural-labor law creates a right to trespass for union organizers. Help, Ninth Circuit! [Ilya Shapiro and Frank Garrison]
EPA cracks down on household wood-burning
In Alaska. In winter. [John Daniel Davidson, The Federalist] Earlier here, etc. (San Francisco Bay area).
“Engineer who fell asleep sues Metro-North over derailment”
“An engineer who fell asleep at the controls of a Metro-North train and caused a derailment that killed four people in New York City sued the railroad… saying its negligence and carelessness led to the accident” [CBS News, Westchester County, N.Y. Journal News] Related: New York Post (he gets pension).
Medical roundup
- U.K.: “People who have 2 or 3 drinks a night will be sent for liver scans under plans to crack down on ‘heavy drinking'” [Katie Gibbons, The Times via Christopher Snowdon, who comments: “The line between healthcare and punishment begins to blur.”]
- Why was Sofia Vergara sued in Louisiana? It’s the only state that accords status to an embryo as “juridical person” [Naomi Cahn, Concurring Opinions]
- Scope-of-practice restrictions for certified nurse midwives primarily serve as barriers to practice rather than having effect on health outcomes [Charles Hughes, Cato]
- Has veterinary care in US avoided the upward cost pressures of (human) health care, as is often claimed? Maybe not [Arnold Kling]
- “New Zealand to compensate organ donors” [Alex Tabarrok, Ilya Somin] Federal fisc could save billions in dialysis outlays by adopting reforms along similar lines [Sally Satel, Forbes]
- Hospital takes baby to wrong mom for nursing, upwards of $50,000 balm sought [Minneapolis Star-Tribune]
About that “Trump and the Russian law firm of the year” story
You’ve probably seen the “Donald Trump represented on ethics issue by Russian law firm of the year” story. And if you paid it only fleeting attention, you may not have recognized it as a classic instance of outrage clickbait fluff.
The firm turns out to be the venerable and far-flung firm of Morgan Lewis & Bockius, eighth largest in the U.S. and thirteenth largest in the world, per the American Lawyer rankings. Sheri Dillon, a tax specialist associated with Morgan’s Washington, D.C. office, was on hand at the press conference to assist Trump in his presentation on conflict of interest avoidance. Typical of BigLaw firms, Morgan employs much high-level legal talent — Texas Senator Ted Cruz practiced there — and represents all sorts of figures in public life and the political world. Not unusually for a world BigLaw leader, Morgan has an office in Moscow among its dozens of other offices worldwide; that outpost won plaudits for its success by one private group that rates lawyers.
As Snopes soon found, “Donald Trump is not the only high-level politician to have engaged the services of Morgan Lewis. In October 2016, Hillary Clinton used the firm” to help vet potential appointees. The Barack Obama campaign also used Morgan’s services.
Outfits that saw fit to treat this tale as important news included CNN, The Daily Beast, The Week (“Just let that sink in for a second”), The Independent, and many more. In some cases, publications circled back with rewrites as word began to get out that it might be sort of a non-story after all: whatever interesting connections there might be between Trump and Russia, this wasn’t one of them. In the meantime, the story had gotten countless thousands of outrage-shares.
For a somewhat similar instance of randomly connecting BigLaw dots in a wildly misleading way that failed to go viral — it concerned the firm of Sutherland, Asbill, and Brennan, also known for its tax expertise — see this 2013 post.