A tribute to Section 230: “No other sentence in the U.S. Code, I would assert, has been responsible for the creation of more value than that one; if you have other candidates for that honor you think more worthy, please do share them.” — David Post on the fateful, intermediary-immunizing “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This bar to liability, Post writes, helped make possible “virtually every successful online venture that emerged after 1996 — including all the usual suspects, viz. Google, Facebook, Tumblr, Twitter, Reddit, Craigslist, YouTube, Instagram, eBay, Amazon.”
Archive for August, 2015
Supreme Court and constitutional law roundup
- New York Times suggests Justice Clarence Thomas’s opinions borrow too much language from briefs and lower courts. Orin Kerr on why that’s unfair;
- Prosecutors have too much leeway to request freeze on defendant’s assets pending trial [Ilya Shapiro, Cato]
- Certiorari petition arising from Newman/Chiasson prosecution: “Obama Administration Gambles On Supreme Court Review Of Insider-Trading Case” [Daniel Fisher]
- “Another Chance To Clean Up ‘Trial by Formula’ Class Actions” [Andrew Grossman/Cato, SCOTUSBlog on Tyson Foods v. Bouaphakeo]
- “Bench Memos” to the barricades: National Review builds case for “resistance” to Supreme Court decisions” [my two cents at Cato on rhetoric likening Obergefell to Dred Scott]
- Media firms including Time, Meredith, Advance, NPR jump into Spokeo case before high court, warn of Fair Credit Reporting Act litigation “quagmire” [Media Post]
- After a tainted-food episode, managers convicted without a showing of mens rea? Egg case deserves a closer look [Ilya Shapiro, Cato]
Annals of bonkers scholarship: “Trahison des Professeurs”
I’ve seen a hundred wacky and extreme papers out of legal academia, and wrote about more than one in Schools for Misrule, but this one, published by the National Security Law Journal at George Mason (whose editor-in-chief has already repudiated it) stands out. You can read the whole story at The Guardian, including links to some of the controversies that have followed author William Bradford, but it might make more sense to hand the gavel over to distinguished legal scholar and Prof. Jeremy Rabkin in his four-page rebuttal:
When an article proposes to arrest law professors and bomb law schools and nearby TV studios, it’s not engaging in “controversy,” but slipping into an alternate universe. It’s not “discomforting.” It is bonkers. The journal could not reasonably have expected readers to “respond” – unless to ask, “Are you out of your minds?”
Monday update: Bradford resigns.
The Prosser jukebox
The late Prof. William Prosser, whose enormous influence on modern tort law has made him an occasional target of my windmill-jousting, wrote a parody song “The Common Law of Texas” in the early 1960s to the tune of “The Yellow Rose of Texas.” Kyle Graham found it and nominates North Carolina, Oregon, and Hawaii as states that currently follow their own path on common-law tort doctrine.
NLRB: we’re coming after franchisors and subcontractors
In a long-feared ruling, the Obama National Labor Relations Board has ruled that a company that employs subcontractors or engages in franchising can over a wide range of situations be deemed a “joint employer” for purposes of liability for labor law violations and obligation to bargain over wages and working conditions with subcontractors’ or franchisees’ work forces. The decision imperils many of the most successful business models on the American economic scene. I’ve got a write-up at Cato observing that the ruling is likely to wreak havoc with, among many other sector, Silicon Valley and sharing-economy launches and asking “One wonders whether many of the smart New Economy people who bought into the Obama administration’s promises really knew what they were buying.”
More coverage of the NLRB’s Browning-Ferris ruling: Reuters (quotes me on the not-bright prospects for Hill action); Seyfarth Shaw; Tim Devaney, The Hill; “Good week to change name of NLRB to National Labor Resuscitation Board.” [Jonathan Segal] And, from standpoints supportive of the ruling, Al-Jazeera and Prof. Catherine Fisk/On Labor.
P.S.: At the Weekly Standard, Andrew B. Wilson notes that Obama wage/hour czar David Weil doubles as a key ideologist of the kill-outsourcing crowd.
“Pennsylvania AG, Facing Trial for Perjury, Uses Twin Sister as Courthouse Decoy”
In case you had any doubt that the Kathleen Kane ethical saga in Pennsylvania is destined for a Hollywood treatment [Kathryn Rubino, Above the Law; Beth Ethier, Slate, whence the above headline] Relatedly or otherwise, our friends at the Competitive Enterprise Institute have named their pick of the nation’s six worst state attorneys general, with Kane topping the list [Hans Bader/CEI, and thanks for link]
Magistrate recommends dismissal of Apple-made-me-watch-porn action
A federal magistrate has recommended dismissal of an action by a Tennessee attorney representing himself who “contends that he should not have been inadvertently allowed to view pornography on the Internet,” and that Apple is liable for not including a default filter against such images on its devices. The plaintiff blames the resulting viewing for a host of physical and other ills, including the breakup of his relationship with his wife, who “simply could not compete with the endless stream of ageless cyber vixens, who ‘never say no’.” His earlier litigation against Google and other defendants likewise fell short. [Sevier v. Apple] [edited Aug. 31 to clarify that plaintiff was attorney representing himself, h/t David N. in comments]
Eric Schneiderman’s herbal-supplements adventure
“Never apologize, never explain” is not a maxim to recommend for a state’s top law enforcer, and that goes for New York’s Attorney General Eric Schneiderman, the subject of my recent City Journal piece. Early this year Schneiderman charged that herbal supplements on sale at GNC, Walmart and other major retailers, when subjected to special tests arranged by his office, were found to lack DNA associated with the advertised herbs. Within days close observers and experts in the field had deduced why Schneiderman’s tests had produced such remarkable results: he had relied on testing methods badly unsuited to identifying active ingredients in substances that, like most of the supplements, had undergone extensive processing [see, e.g., Nicola Twilley, New Yorker; Live Science; Bill Hammond, New York Daily News]
Other officials might have beat a timely retreat. Schneiderman’s office instead dug in, refusing to apologize, back down or even publicly disclose key facts about its testing methods. I’ve done a Cato Daily Podcast with Caleb Brown about the whole episode, including what is perhaps the most ominous aspect: such is the legal leverage of a New York attorney general that the targets chose to settle anyway. City Journal piece, again, here.
Environment roundup
- Safe Drinking Water Act along with other federal laws helped scare consumers away from public fountains and tap water, with unintended bad consequences for health and the environment [Kendra Pierre-Louis, Washington Post]
- Austin, Tex. ban on plastic bags isn’t working out as intended [Adam Minter, Bloomberg View]
- After BP’s $18.7 billion settlement with five Gulf states, here come huge private lawyer paydays [Louisiana Record]
- Energy efficiency in durable goods: mandates “based on weak or nonexistent evidence of consumer irrationality” with government itself hardly free of behavioral biases [Tyler Cowen]
- “How Trophy Hunting Can Save Lions” [Terry Anderson and Shawn Regan, PERC/WSJ]
- CPSC’s hard line on CPSIA testing of natural materials in toys based on “precautionary principle run amuck” [Nancy Nord]
- Is the ideal of sustainability one we ultimately owe to hunter-gatherers? [Arnold Kling]
“In settlement with Southwest Airlines, lawyers got cash, plaintiffs got drink coupons.”
“A federal appeals court has upheld a settlement in which Southwest Airlines passengers got free drink vouchers but lawyers who sued the airline got $1.65 million in cash.” [AP “Big Story”]