Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2015

Ferguson: Maybe the other guy had a point

Courageous “I was wrong” column by Jonathan Capehart in the Washington Post on having prejudged the Brown-Wilson confrontation in Ferguson, Mo.:

But this month, the Justice Department released two must-read investigations connected to the killing of Brown that filled in blanks, corrected the record and brought sunlight to dark places by revealing ugly practices that institutionalized racism and hardship. They have also forced me to deal with two uncomfortable truths: Brown never surrendered with his hands up, and Wilson was justified in shooting Brown. …

…it is imperative that we continue marching for and giving voice to those killed in racially charged incidents at the hands of police and others. But we must never allow ourselves to march under the banner of a false narrative on behalf of someone who would otherwise offend our sense of right and wrong. And when we discover that we have, we must acknowledge it, admit our error and keep on marching. That’s what I’ve done here.

Meanwhile, in recent days, writers at National Review and Red State have taken a look at DoJ’s Ferguson report (our earlier post on it) and say conservatives should be in the forefront of criticizing and calling for reform of the police and municipal-court abuses it exposes. [summarized by Conor Friedersdorf at the Atlantic; see also Charles Cooke, National Review, on race and conservatives]

Left and right admitting that the other side had a point on some aspects of Ferguson? It seems as unlikely yet welcome as the sun coming out to shine after this past Northeastern winter.

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Roger Parloff on Apple’s e-books defense

After charging hard into a market that had been almost entirely dominated by Amazon, Apple found itself facing antitrust charges filed by the U.S. Department of Justice and 33 state attorneys general, culminating in a bench-trial courtroom loss in 2013, now on appeal. I missed it at the time, but a couple of months back Roger Parloff had a write-up at Fortune on why the key Apple executive at the center of the case “says he’d ‘do it again’ – but ‘take better notes.'”

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France and its speech-throttling litigation

Jacob Sullum on why a nation that mourned the murderous attack on satirical magazine Charlie Hebdo over its provocative speech was nonetheless content to let the magazine be sued, and sued, and sued over such speech:

under French law, insulting people based on their religion is a crime punishable by a fine of 22,500 and six months in jail.

In addition to religion, that law covers insults based on race, ethnicity, national origin, sex, sexual orientation, or disability. Defamation (as opposed to mere insult) based on any of those factors is punishable by up to a year in prison, and so is incitement to discrimination, hatred, or violence.

Christopher Caldwell, Wall Street Journal ($):

In France, antiracism set itself squarely against freedom of speech. The passage of the 1990 Gayssot Law, which punished denial of the Holocaust, was a watershed. Activist lobbies sought to expand such protections by limiting discussion of a variety of historical events—the slave trade, colonialism, foreign genocides. This was backed up by institutional muscle. In the 1980s, President François Mitterrand’s Socialist party created a nongovernmental organization called SOS Racisme to rally minority voters and to hound those who worked against their interests.

Older bodies such as the communist-inspired Movement against Racism and for Friendship Among the Peoples made a specialty of threatening (and sometimes carrying out) lawsuits against European intellectuals for the slightest trespasses against political correctness: the late Italian journalist Oriana Fallaci for her post-9/11 lament “The Rage and the Pride,” the philosopher Alain Finkielkraut for doubting that the 2005 riots in France’s suburban ghettos were due to unemployment, the Russia scholar Hélène Carrère d’Encausse for speculating about the role of polygamy in the problems of West African immigrants.

Sullum again:

Other countries that criminalize “hate speech,” including Germany, the Netherlands, the U.K., Sweden, and Canada, are likewise sending the dangerous message that offending people with words or images is akin to assaulting them with fists or knives. …

Sacrilege may upset people, but it does not violate their rights. By abandoning that distinction, avowed defenders of Enlightenment values capitulate to the forces of darkness.

Earlier here, here, here, here, and generally here.

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Anti-drug-overdose compound could save lives…

…but counsel for the Maryland State Medical Society told a panel in Annapolis that doctors fear liability should they prescribe it. In recent years police and first responders have increasingly been trained in the use of the emergency drug Naloxone, which counteracts overdoses from heroin and opiates, and a proposed bill would allow physicians to prescribe the substance to users, family members, and others who might intervene in case of an overdose. [Rebecca Lessner, Maryland Reporter]

George Tolley, representing the Maryland Association of Justice, a trial lawyers group, asked that the immunity provision be taken out of the bill, over a concern that it would have “a domino effect” and could impact people administering other emergency drugs, such as for epilepsy and diabetes.

“If (doctors) exercise reasonable care, then they cannot be sued,” Tolley said.

Bill Sponsor Sen. Katherine Klausmeier, D-Baltimore County, responded “That’s the crux of this whole bill.”

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Schools roundup

  • Has it gotten too easy to breach the ordinary protections of academic freedom by charging that research is unethical? [Alice Dreger, Retraction Watch; The Guardian with more on complaints against University of Queensland economist over Brisbane, Australia bus study]
  • “Good reformist energy in NYC to decriminalize student misbehavior. Big, unreported obstacle? School security guards are all NYPD personnel.” [Chase Madar on Twitter]
  • “What is Obama’s big idea regarding day care? Well, to make it even more expensive” [Nick Gillespie citing Abby Schachter]
  • “Why no one, but no one, trusts a campus sexual assault proceeding.” [Judith Shulevitz; Volokh (16 Penn Law profs)] Remarkable story of student investigated because he reminded woman of man who had attacked her thousands of miles away [Janet Halley/Harvard Law Review, see text between footnotes 23 and 24 near end, but interesting throughout] Two views of new advocacy film The Hunting Ground [David Edelstein, New York; Lizzie Crocker, Daily Beast]
  • We never followed up at the time on what happened in the 2008 Billy Wolfe bullying story out of Fayetteville, Ark., but suffice it to say it’s not flattering to New York Times coverage [Eighth Circuit 2011 opinion; earlier here, here, and here]
  • Quaker schools in United Kingdom resist mandate that all schools teach “fundamental British values” [Guardian] Non-Oxbridge universities to be brought into line rather sharply on teach-against-terror agenda [Chris Bertram, Crooked Timber]
  • How does your pension compare? “Nearly 5,000 [New York] teachers cashing in on six-figure pensions” [New York Post]

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Abraham Lincoln, “bet the company” litigator

Friend of Overlawyered Margaret Little recently reviewed for the WSJ a new book about Abe Lincoln’s greatest law case: “While Judd, like many a flamboyant trial lawyer, opened with the big themes of crime and political influence, it was the technical case advanced by Lincoln that won the day. Mr. McGinty illustrates how central Lincoln’s understanding of river currents, bridge engineering and steamboat operation was to the success of the defense. … (Lincoln was the only president to hold a patent, for a boat-lifting device.)”

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“‘Violent sleepwalking’ defense clears father in son’s death”

Duel of the expert witnesses: “The ‘violent sleepwalking’ defense worked for a man who strangled his 4-year-old and tried to kill his other two children. A jury decided unanimously that Joseph Anthony Mitchell is not guilty of murder and attempted murder after an expert witness said he was effectively unconscious at the time of his attacks four years ago.” [AP/Fayetteville, N.C. Observer]

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Scottish man jailed for 4 months for singing sectarian song

For singing a song? “Scott Lamont, from Glasgow, was heard singing the words of the Billy Boys song on Cathcart Road on 1 February. The 24-year-old admitted the charge at Glasgow Sheriff Court.” Via Spiked Online, which has more on Scotland’s legislation against sectarian football songs. More on Scotland’s recent policing of offensive tweets and other online speech here.

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“Roanoke County police launch ‘No Refusal’ sobriety checkpoints”

“During this weekend’s St. Patrick’s Day festivities, motorists in Roanoke County who are suspected of driving while impaired and refuse breath tests could be ordered to submit to blood tests. … According to state law, anyone who operates a motor vehicle on a road has consented to have samples of blood, breath or both taken for a test to determined the level of alcohol or drugs in his blood.” [Roanoke Times; earlier on “no refusal” blood tests for drivers here, here, here, etc.]

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