Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2014

FDA issues calorie label mandate

Another hidden gift inside the Affordable Care Act: mandatory calorie labeling for many restaurant menus. Walter Olson comments on the complications and potential unintended consequences of such a mandate.

My new Cato podcast: the new FDA calorie labeling rules apply to not-so-big chains (20 +) of grocery stores and amusement facilities as well as restaurants, and make it less likely that servers and local managers will manage to vary from rigidly standardized recipes, menu listings and portion sizes based on knowledge of their local customers, temporary availability of attractive ingredients, and so forth. That won’t matter much for food servers who already design their offerings in a lab, but spells trouble for those whose offerings are more localized or unpredictable (earlier). Coverage by Ed Morrissey of what the scheme would mean for a 21-unit pizza chain is linked here.

In January, David Boaz commented on the parallel vending machine calorie label mandate:

In my experience, vending machines shuffle their offerings fairly frequently. If the machine operators have to change the calorie information displayed every time they swap potato chips for corn chips, then $2,200 [per operator per year] seems like a conservative estimate of costs. But then, as Hillary Clinton said when it was suggested that her own health care plan would bankrupt small businesses, “I can’t be responsible for every undercapitalized small business in America.”

Happy Thanksgiving!

More: Baylen Linnekin. And Julie Gunlock recalls her own days working in a supermarket deli. Goodbye, making up prepared salads in single-serving containers from whatever produce happened to be in overstock at the time. Hello, food waste!

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NAGPRA, counting by tribe, and the grave of Jim Thorpe

Bad enough for Congress to meddle in adoptions in hopes of helping out Indian tribes. But…burials? My new guest column at Jurist examines the first-of-its-kind lawsuit by which some descendants of Native American sports great Jim Thorpe are trying to use the law to require the borough of Jim Thorpe, Pa. to yield up his remains for re-interment in Oklahoma. It concludes:

In a nation where people regularly fall in love across ethnic lines, laws that assign rights differentially to some members of families based on descent or tribal affiliation are especially hard to justify under US Constitution’s Equal Protection Clause. … Say what you will about the Third Circuit’s reasoning, it at least postpones the day when tribal enmities extend into our very cemeteries, and even the dead cannot escape counting based on race.

Earlier on the Mauch Chunk/Jim Thorpe controversy; on NAGPRA and science, and the Kennewick Man affair, etc.

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Ferguson grand jury aftermath

  • Why none of the major methods for addressing claims of police excessive force — grand juries/prosecution, internal investigations, civil suits, personnel disciplinary procedures, civilian review boards, federal oversight — work very well, and what we may want to consider instead [Chase Madar, The Nation]
  • “Rand Paul Reacts to Ferguson: Reform Criminal Justice System, Petty Fines” [Robby Soave, Reason, quotes me] Incidentally, the Cato Institute has been working on police misconduct issues for more than 15 years [Cato Policy Report]
  • “As a front-line means of regulating lethal force, grand juries – which are secret, remote from the truth-finding of an adversary process, and dependent on prosecutors’ guidance – do not command broad public confidence.” [my brief reaction statement, posted at Cato] “How the Ferguson grand jury process works” [Kimberly Kindy, Washington Post] “in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.” [Ben Casselman, Five Thirty-Eight] Cato survey a few years back found only 7 percent of excessive force allegations against police resulted in indictments, 3 percent in convictions [Tim Fernholz, Quartz]
  • “What we know about who police kill in America” [Dara Lind, Vox]
  • “Anytime I’m involved in an officer involved shooting… it is always listed during my initial investigation as an assault on law enforcement” [Kevin Underhill/Lowering the Bar, who also dissected the grand jury report on Twitter] Journalists and investigators begin digging through the many volumes of transcripts and testimony released following the grand jury action [NPR on Officer Wilson’s testimony] Eyewitness testimony pointed various ways [Conor Friedersdorf]
  • Listen: Tuesday morning’s Diane Rehm show where I joined a panel discussing the Ferguson grand jury outcome, or a highlight portion;
  • “How Police Unions Stopped Congress From ‘Militarization’ Reform” [Dave Weigel, Bloomberg] Reform-blocking role of police unions part of wider, systemic problems [Ed Krayewski, Reason]

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Washington, D.C. listeners: Diane Rehm show 10 a.m.

Washington, D.C. listeners, tune in at 10 a.m. this morning (Tuesday) when I’ll be a guest again on Diane Rehm’s award-winning radio show, discussing developments in Ferguson, Mo., including a grand jury’s decision that officer Darren Wilson won’t face charges in the shooting of Michael Brown. Other guests include Julie Bosman, reporter, The New York Times; Sherrilyn Ifill, president and director-counsel, NAACP Legal Defense Fund; and Andrew Ferguson, associate professor of law, University of the District of Columbia School of Law. (bumped Tuesday morning to keep at top of page)

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“America’s Most Fee-Ridden Cities”

I’m quoted in this Reason TV segment by Zach Weissmueller on the problem of municipalities that stake their finances on overzealous fee collection:

“When you have towns like those in St. Louis County that get in some cases, 40 percent of their municipal revenue in fines and fees, they have chosen a very expensive way of taxing their population, one that creates maximum hassle and maximum hostility,” says Walter Olson, senior fellow at the Cato Institute and publisher of the blog Overlawyered.

Aside from Ferguson, Mo., the piece uses as examples the notorious Los Angeles suburb of Bell, Calif., exposed in a scandal as being run for the benefit of its managers, and — a smart choice — Detroit, a city with a long-time adversarial stance toward its small businesses and others trying to do everyday business in the town:

…what really grants Detroit this honor is “Operation Compliance,” an initiative pushed by former mayor David Bing aimed at bringing all of Detroit’s small businesses up to code through costly permitting. The initiative launched with the stated goal of shutting down 20 businesses a week.

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Food roundup

  • Hashtag #ThanksMichelleObama trends on Twitter after high schoolers tweet it with pics of unappetizing lunch trays, provoking “shut up and eat what’s put in front of you” reactions from some who support the new federally prescribed rules. Maybe better to listen instead? [Kevin Cirilli, The Hill, Rachel Zarrell, BuzzFeed]
  • “After suing a small California company for calling its eggless product ‘Just Mayo,’ Hellmann’s maker Unilever tweaked references on its websites to products that aren’t exactly mayonnaise either.” [AP/Tulsa World]
  • Mark Bittman/Michael Pollan scheme for national food policy? Send it back to the kitchen, please [Elizabeth Nolan Brown]
  • Johnny Appleseed, substance abuse enabler [Natasha Geiling, Smithsonian]
  • One factor behind drive for new GMO non-browning potato: legal pressure against acrylamide, naturally forming browning component, by way of Calif. Prop 65 lawsuits and regulations [Guardian, New York Times]
  • Costly, fussy, coercive: Minneapolis micromanages convenience food sales [Baylen Linnekin]
  • No, FSMA isn’t worth the damage it’s doing to food variety and smaller producers [same]

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For real liability reform, try freedom of contract

Six months ago the Delaware Supreme Court upheld the right of an enterprise to include a loser-pays provision in its bylaws, specifying that losing shareholder-litigants would have to contribute reasonable legal fees to compensate what would otherwise be loss to other owners. Since then there’s been a concerted campaign to overturn the ruling, either in the Delaware legislature or if necessary elsewhere. But as I argue in a new Cato post, allowing scope for freedom of contract of this sort is one of the best and most promising ways to avert an ever-rising toll of litigation. Contractually specified alternatives to courtroom wrangling have played a vital role, and are under attack for that very reason, in curbing litigation areas like workplace and consumer arbitration, shrinkwrap and click-through disclaimers of liability, and risk disclaimers at ballparks and elsewhere. (& Stephen Bainbridge).

To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward.

More on the Delaware bylaw controversy: D & O Diary (scroll), Andrew Trask on state of the merger class action, WSJ Law Blog first and second, Daniel Fisher, and ABA Journal in June, Alison Frankel/Reuters (forum selection bylaws).

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Police and community roundup

  • “As Ferguson waits, some lessons from the Rodney King riots” [Radley Balko] “ACLU wins federal court orders on right to video police in Ferguson, elsewhere” [St. Louis Post-Dispatch]
  • “What charges could the Michael Brown grand jury consider, if they choose to indict?” [Paul Cassell, Volokh; related on Missouri jury instructions regarding deadly force by police, Robert VerBruggen/Real Clear Policy]
  • Quick links: things this site has published on Ferguson, on police militarization, on police issues generally;
  • Interview with University of Illinois lawprof Andrew Leipold on grand jury process [U of I] A reminder about the surprisingly high error rates of eyewitness testimony [Balko]
  • “Judges propose wide reform of St. Louis County’s municipal courts” [StL; related, holiday warrant forgiveness] Municipal court fines and fees: “Why we need to fix St. Louis County” [Radley Balko, related (Better Together report), earlier here, here from Balko, etc.]
  • “The hurdles for indicting or convicting a uniformed officer are high, for many reasons.” Survey of police deadly force issue [L.A. Times] Police forces have strayed far from the “Peel Principles” for which London police were so admired [Tuccille, Reason]
  • Not much. “Whatever Happened To The White House Police Militarization Review?” [Evan McMorris-Santoro, BuzzFeed]

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