Merry Christmas to all! Our posts will be slowing down, though not disappearing, over the next week or so. You can read some highlights from past Overlawyered coverage of the holiday here.
Archive for December, 2015
December 23 roundup
- Russian man sues developer of videogame Fallout 4, saying he lost wife and job due to addiction to playing it [BGR]
- “Indiana Briefly Considered Fining Bad Anthem Singers” [Lowering the Bar] Relatedly, if you’ve been wanting to do a dance remix of “Star-Spangled Banner,” Michigan law now permits it [Lowering the Bar]
- Is administrative law unlawful? Philip Hamburger vs. Adrian Vermeule [more, William Funk/Jotwell and David Bernstein; earlier here and here]
- Will Louisiana Attorney General Buddy Caldwell runoff loss end his office’s contracts-for-pals “Buddy System”? [Chris Butler/Louisiana Watchdog, Richard Miniter, American Media Institute/Louisiana Record, Eric Boehm/Louisiana Watchdog]
- “Let’s get rid of private housing.” The Nation never gives up, does it?
- Congress’s surrender of power of purse opened door to outrages like Department of Justice’s activist slush funds [Randal John Meyer]
- Gun-rights and marijuana advocates set themselves against liberty generally when they back discrimination-law coverage of employee “off-duty conduct.” [Ohio, Jon Hyman first (firearms) and second (pot) posts]
How to draw a certain familiar mouse
Step 3: “Receive letter from Disney Legal.” [Mauricio Abril on Tumblr]
Paternalist interventions of the Times
Well-known New York Times food and opinion writer wants to card teens buying a Dr Pepper. [Liz Crain Lucky Peach interview with Mark Bittman, who has made many appearances in these columns]
Supreme Court and constitutional law roundup
- Supreme Court agrees to review CRST Vans Expedited v. EEOC (Eighth Circuit) on standard for prevailing-party fee awards in EEOC cases, could mean help for defendants against overzealous government lawyering (and thanks for quote) [Sean Higgins, Washington Examiner, earlier here and here]
- 6-3 win for arbitration and freedom of contract in DirecTV case [Deborah LaFetra/PLF, Daniel Fisher, ABA Journal] WSJ editorial: Bravo to Justice Breyer for upholding as precedent what he’d earlier dissented from on substance [Texans for Lawsuit Reform reprint]
- OK to choke off legal defense by freezing all assets before trial, even if not criminally obtained? [Radley Balko]
- South Carolina $124 million penalty against Risperdal maker should be recognized as violating Excessive Fines clause [Ilya Shapiro and Randal John Meyer, Cato]
- “Supreme Court will review state laws making it a crime to refuse blood-alcohol tests” [ABA Journal, Reason]
- Helpless against the administrative state: revisiting SCOTUS’s awful 1944 Yakus case [James Conde and Michael Greve, SSRN via Michael Greve, Law and Liberty]
- New Akron Law Review symposium on class action jurisprudence of Roberts Court [Paul Karlsgodt]
Climate deniers as “enemy of the state”
Secretary of State John Kerry says he’ll “leave it to other people” whether ExxonMobil and the Koch brothers should be considered “an enemy of the state,” as urged by a Rolling Stone interviewer [James Taranto] The law firm of Brownstein Hyatt sees indications that the effort to prosecute ExxonMobil for wrongful advocacy on climate matters will be “the next Keystone Pipeline,” an issue seized on by environmental advocates as symbolic well beyond its practical importance. And Steve Coll, dean of Columbia’s journalism school, insists that the lefty donors behind the school’s recent support for a Los Angeles Times hit job on Exxon were “prominently disclosed” — a good case for the Internet Wayback Machine. [Michael Bastasch, Daily Caller]
“Good morning, this is your California unemployment insurance fraud hotline….”
“…How can we help you commit fraud today?” [Coyote]
Related, an entry of mine from Twitter’s #ExplainaFilmPlotBadly:
Profit-hungry insurance company resists death benefit payout despite clear policy language #ExplainAFilmPlotBadly pic.twitter.com/9N2Px6jgft
— Walter Olson (@walterolson) December 13, 2015
Crime and punishment roundup
- If tempted to idealize the U.K. justice system, be aware it was in a London court that Saudi millionaire beat rape charge by arguing that he “tripped” into sexual congress [New York mag]
- Dear Reuters: it would be great if you could report the full story behind a perp walk like Martin Shkreli’s [Ken White, Popehat]
- Better for ten innocents to be imprisoned than one businessperson go free: “The New York Times has come out against the creation of a minimum mens rea element for all federal crimes.” [Scott Greenfield, Scott Shackford] More: Orin Kerr; more Greenfield; Cato podcast on mens rea with Robert Alt.
- Obama Justice Department’s incursions on mens rea dovetail with its efforts on the responsible corporate officer doctrine [Ilya Shapiro and Randal John Meyer, National Review]
- Escalating fines and fees, as well as a probation system under an incentive not to work, drag down poorer residents of Biloxi, Miss. [Radley Balko]
- How federal law came to define “sex trafficking” to include non-coerced adult prostitution [American U. law professor Janie Chuang quoted by Glenn Kessler, Washington Post “Fact Checker”, who also debunks wildly inflated figures from Attorney General Loretta Lynch]
- If only the late Gary Becker, a towering figure in law and economics, could have been persuaded to give up one of his less happy theories… [Alex Tabarrok]
One reason contingent-fee law firms outsource a lot
An element of case management like organizing medical records, if done in-house, “cannot be expensed to the file,” as this vendor of offshore (India-based) physician services reminds attorney clients.
“To act as though every accusation must be true harms the overall credibility of assault claims.”
The makers of the controversial advocacy film on sexual assault, “The Hunting Ground,” have suggested that by criticizing the film as unfair, Harvard law professors might be creating a hostile environment at their school, which itself might violate Title IX [Samantha Harris, FIRE; The Crimson; Paul Horwitz and Howard Wasserman, PrawfsBlawg; compare recent University of Mary Washington case, in which dean was said to violate Title IX by talking back publicly against accusations]
Jeannie Suk, one of the Harvard professors who has criticized the film, now has an important piece in the New Yorker. One reason we should pay attention to the piece is that its author might soon be silenced, depending on what her institution sees as its Title IX obligations:
This is a piece on a subject about which I may soon be prevented from publishing, depending on how events unfold….If, as the filmmakers suggest, the professors’ statement about the film has created a hostile environment at the school, then, under Title IX, the professors should be investigated and potentially disciplined.
At least for now, though, Professor Suk can speak out:
Fair process for investigating sexual-misconduct cases, for which I, along with many of my colleagues, have fought, in effect violates the tenet that you must always believe the accuser. Fair process must be open to the possibility that either side might turn out to be correct. If the process is not at least open to both possibilities, we might as well put sexual-misconduct cases through no process at all.
Moreover, she points out, an “always believe” premise in the end undercuts the cause of vindicating true accusations:
“always believe” unwittingly renders the stakes of each individual case impossibly high, by linking the veracity of any one claim to the veracity of all claims…. The imperative to act as though every accusation must be true—when we all know some number will not be—harms the over-all credibility of sexual assault claims….equating critique with a hostile environment is neither safe nor helpful for victims.