Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for December, 2015

Slow down Baltimore evictions?

I’ve got a letter to the editor in today’s Washington Post. An excerpt:

The Dec. 11 Metro article “Baltimore eviction rate among highest in nation” reported on advocates’ efforts to change eviction procedures to allow Baltimore tenants to stay longer in rental housing even when they fail to pay their rent. One effect, of course, would be to make it even less attractive to offer and maintain rental properties in the hard-hit city.

Before going farther down such a road, it would help to review failures of existing Maryland housing policies….

And then I talk about Maryland lawmakers’ having enacted various legal changes to slow down foreclosures, and the unpleasant aftermath, a story told here. Why would a state want to go through a very similar wasteful, blight-encouraging exercise for rental property? (cross-posted from Free State Notes)

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U.S. government’s social media vetting for visa applicants (see update/correction)

“Fearing a civil liberties backlash and ‘bad public relations’ for the Obama administration, Homeland Security Secretary Jeh Johnson refused in early 2014 to end a secret U.S. policy that prohibited immigration officials from reviewing the social media messages of all foreign citizens applying for U.S. visas, a former senior department official said.” According to former acting DHS undersecretary John Cohen, political “optics” inhibited U.S. officials from the fully legal course of checking the social media posts of visa applicants. The process came under scrutiny after the granting of a fiance visa to Tashfeen Malik, a resident of high-terror-risk Pakistan who had extensively discussed jihad and martyrdom online. [ABC News; but see below updates/corrections, which correct significant errors in the early reporting]

It’s important to keep straight that our Constitution restricts what the U.S. government can do to U.S. persons, but imposes little if any constraint on what it can ask of those seeking to enter.

P.S. Alex Nowrasteh talks with several immigration lawyers who say they know of instances in which social media postings by persons under U.S. immigration scrutiny got vetted. More: James Taranto (quoting New York Times’s statement that “immigration officials do not routinely review social media as part of their background checks,” with “pilot programs” to do so in place since the fall of last year).

Update: contradicting widespread reports in the press, FBI Director James Comey now describes the couple as having expressed jihadist sentiment in private but not in public messages on social media [Washington Post] And the New York Times now apologizes for early, erroneous reporting based on anonymous sources which misled much of the press and commentariat into believing Malik’s extremist sentiments were in plain sight.

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Medical roundup

  • FDA and other agencies launch crackdown on more than 100 dietary supplement companies [Orange County Register editorial, thanks for quoting]
  • 14 years ago Sally Satel warned that political correctness was getting into medical schools in a big way. How prescient was that? [Yale Daily News via Dave Huber/The College Fix on Yale med-school dean’s capitulation to demands for “anti-oppressive” curriculum reform, video of Satel on C-SPAN “Book Notes” with Brian Lamb discussing “P.C., M.D.“]
  • Unexpectedly! “Insurer cutbacks squeeze patients out of high-end care” [Houston Chronicle]
  • “Deflate Drug Prices by Reforming the FDA” [Richard Morrison, CEI, thanks for quote]
  • Penny wise: Obama plan would penalize doctors who recommend routine prostate cancer tests for older men [WSJ, Betsy McCaughey/New York Post]
  • “Clearly, it would take an extraordinarily overbearing [British] state to move [sugar] consumption anywhere close to this target.” [Christopher Snowdon]
  • Widely asserted ethical prohibition on paying organ donors comes at more than a monetary price [Alex Tabarrok](link fixed)

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Climate speech: “One assumes that there is something illegal about that, but, even if there isn’t…”

Environmentalist writer Bill McKibben, often cited as a key intellectual influence behind the push to have some climate advocacy by business declared illegal, concedes to a friendly interviewer that he’s “not sure what the legality of all this is” concerning ExxonMobil’s alleged conduct: “one assumes that there is something illegal about that, but, even if there isn’t…” [Rolling Stone] William Tucker alleges, based on his account of a personal encounter some years back, that the New Yorker writer himself elects to de-emphasize as politically unhelpful (as opposed to actually false) some scientific insights favorable to nuclear generation of electricity [Real Clear Energy, no #McKibbenKnew hashtag yet]

Meanwhile, New York Attorney General Eric Schneiderman confirmed to Judy Woodruff that donations to “climate denial organizations” such as the center-right American Enterprise Institute (!) are central to his probe [PBS] I worked at AEI back in the 1980s but have no recollection of spending time on any issues related to climate change, although perhaps I had better wait for the subpoena before saying anything definitive.

Daniel Fisher at Forbes notes the likely course of the “fishing expedition”: “if you are the New York attorney general you can create public theater to bring pressure on a particular defendant.” Fisher notes that oil majors face political risks in Africa, central Asia and thanks to our feckless politicians, the United States too (duplicate link fixed now). Michael Bastasch at the Daily Caller notes evidence that Sen. Sheldon Whitehouse (D-R.I.), an impresario of the climate prosecution push, conferred behind the scenes with scientists who signed a letter endorsing the effort. And Richard Epstein discusses the various developments in a Hoover podcast.

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Kozinski vs. Wilkinson on criminal justice reform

How can you resist a debate between two of the nation’s most distinguished federal appeals judges — Alex Kozinski of the Ninth Circuit and J. Harvie Wilkinson III of the Fourth — moderated by Tim Lynch? [more; coverage, Jacob Gershman, WSJ]

P.S. More on Judge Kozinski’s recent ideas on criminal justice reform (sample: let defendants choose jury or bench trial, study exonerations in depth, go after bad prosecutors) from Eugene Volokh and Radley Balko.

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Schools roundup

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The media, and the task of covering the Supreme Court: a mismatch?

The Washington Post humors the super-silly liberal fantasy of impeaching Justice Scalia for discussing the affirmative action mismatch argument, an argument that 1) was briefed by lawyers in the case at hand, Fisher v. University of Texas; 2) has come up in the Court’s earlier racial preference jurisprudence and been endorsed by fellow Justice Clarence Thomas; 3) has been aired extensively in places like the Washington Post itself without the ceiling caving in. [Valerie Strauss, Washington Post “Answer Sheet”]

Of course the Washington Post itself would be a better newspaper if its writers on relevant beats took the time to read the paper’s own Volokh Conspiracy, which this week has been hosting a series of guest blog posts by Prof. Rick Sander, best known proponent of the mismatch theory.

Some have questioned whether Scalia was proceeding down a path irrelevant to the Court’s eventual ruling on constitutionality. Here is one possible source of relevance, per James Taranto’s discussion: “Kennedy, unlike Scalia and Thomas, endorsed [in an earlier university racial preference case] the premise that those benefits [specifically, educational benefits obtainable from greater diversity] constitute a “compelling interest” that would justify preferences if the other components of the strict-scrutiny test can be met.” Kennedy’s approach leaves open the possibility that this constitutional justification could be refuted by an empirical showing that the net benefits add up to less than a “compelling interest.”

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Silicone breast implants: “sad history of a government approved scare”

25 years ago CBS and the Food and Drug Administration, with trial lawyers and their hired experts busy in the background, kicked off a national panic over silicone breast implants. After waves of needless consumer fear and considerable disruptions to the U.S. economy– and the transfer of a great deal of money to claimants and their lawyers — the panic subsided and the general safety of the devices came to be widely accepted [Jack Fisher, ACSH; our coverage here; my book The Rule of Lawyers, which devoted a chapter to the saga]

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A life of American freedom, taken

My friend Tim Sandefur, whose work will be familiar to many readers here, lost his brother in the Islamist terrorist attack in San Bernardino. He wrote this tribute and reflection. An excerpt:

Those of us who also serve by only standing and waiting must respond in just the way that our enemy most despises: by living our lives exactly as we would have done. That means cherishing our freedom; celebrating our secular, free institutions; relishing the pleasures of life as physical beings; respecting the special spark in each individual person — here, in this world, during this life. Our values triumph each time we exercise them. Danny and I watched the attacks of September 11, 2001, together on the TV in our living room. I can say with certainty that—to the extent that so kind a man was capable of understanding such evil — he believed in defying the barbarian by living just as we choose: freely, tolerantly, skeptically, joyfully, laughingly, humanly. After the (most recent) Paris attack, Danny enjoyed watching over and over again this well-known video by Andrew Neil. It expresses very well what he believed, and what our family believes.

I urge reading the whole thing.

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