Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2017

Back at SCOTUS: limits to state court jurisdiction

The Supreme Court is set to hear oral argument Tuesday (today) on Bristol-Myers Squibb v. Superior Court and BNSF Railway Co. v. Tyrrell, enabling it to revisit its line of cases (especially Daimler AG v. Bauman, 2014) setting limits to state court jurisdiction. The recommendation in my new Cato piece: “for a united Court to say unambiguously, about its Daimler holding: we said it, and we meant it.”

More resources on the cases: SCOTUSBlog argument previews on Bristol-Myers and BNSF; Washington Legal Foundation on Bristol and BNSF; coverage of the Plavix mass litigation, of which the Bristol-Myers case is an outgrowth, in American Pharmacy News and by Sidley Austin associate Julia Zousmer in the Illinois Law Review. Earlier on Daimler here, here, etc. A case this term that presents entirely different legal issues, but also relates to forum-shopping, is the patent venue case T.C. Heartland v. Kraft Foods.

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How regulation drives up housing costs in Minnesota

“Outside coastal states like New York and California, the Twin Cities was No. 1 in housing costs among the nation’s 20 largest metro areas, according to 2014 U.S. Census data. And they have remained at or near the top of other cost-comparison surveys since then. Statewide, Twin Citians pay an average of 26 percent more than neighboring states. That price gap explodes when compared with southern states like Texas.” And regulation, broadly defined — from hyper-detailed building codes with energy efficiency mandates, to methods of land use planning and fee exaction, to the complexity of permit processes — is central to why [Bob Shaw and Tad Vezner, St. Paul Pioneer Press] As Anthony Sanders points out, some of the regulation advocates quoted in the piece seem almost proud that Minnesota laws make things more expensive compared with neighboring states. “Only thing I would have added is Milton Friedman’s adage that licensing tries making everything a Cadillac, when most can only afford a Buick.”

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Arizona Gov. Ducey signs bill curtailing ADA shakedowns

“Arizona Governor Doug Ducey just signed into law an amendment to the Arizonans with Disabilities Act (AzDA) designed to make it more difficult to bring lawsuits against businesses based on claims that they are not accessible to individuals with disabilities. The amendment requires potential plaintiffs to give business owners notice of alleged access violations and allows businesses 30-90 days to correct the issues before a lawsuit can be filed. It also excludes websites from the AzDA’s requirements and authorizes courts to impose sanctions on plaintiffs and their attorneys if the court finds that a lawsuit was brought for the primary purpose of obtaining a payment from the defendant business.” [Caroline Larsen, Ogletree Deakins; Maria Polletta, Arizona Republic; ICSC]

A similar bill is needed at the national level.

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Defund our cause litigation? We’ll have your accreditation for that

Some on the Board of Governors that oversees the University of North Carolina are unhappy with UNC law school’s Center for Civil Rights, a source of Left activism and litigation in the Tar Heel State. Now firebrand liberal UNC law professor Gene Nichol has warned the university of “serious accreditation problems in the months ahead” from the American Bar Association (ABA) and Association of American Law Schools (AALS) should it close the center. [News & Observer via Paul Caron, TaxProf]

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Workplace roundup

  • Occupational licensure reforms advance in Mississippi and Arizona [Eric Boehm, Reason, first and second posts]
  • I should live so long: “Will the New York Times’ Labor Reporting Ever Get the Facts Straight?” [Jim Epstein; coverage here of the NYT’s 2015 nail salon reporting embarrassment]
  • Silliest claim about proposed salary-history-inquiry bans is that they would advance “transparency” in hiring [Seth Barron]
  • Many states complicate offender re-entry after incarceration with needless licensing barriers and fingerprint checks [Eli Lehrer, Inside Sources]
  • H.R. 1180 (“Working Families Flexibility Act of 2017”), introduced by Rep. Martha Roby (R-AL), would curb some overtime litigation by allowing private sector comp time under some conditions [Evil HR Lady]
  • Layers of irony: “Disability Services Company to Pay $100,000 to Settle EEOC Disability Discrimination Lawsuit” [commission press release in EEOC v. ValleyLife (Arizona), h/t Roger Clegg]

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IRS back to hiring private collection agencies

We’ve posted several times about federal tax authorities’ on-again, off-again use of private tax collectors on contingency fees to collect back taxes. As with other varieties of law enforcement for profit in which the middleman is enabled to keep residual dollars, the practice seems to encourage the taking of a hard line against taxpayers, especially when the private collectors can use tactics and methods forbidden to government agents. Now, after a hiatus, the IRS is returning to the use of private collectors, a change in law for which Sens. Charles Schumer (D-N.Y.) and Chuck Grassley (R-Iowa) apparently deserve much of the credit, if credit is the right word [Alex Richards and Brad Wolverton, NerdWallet, earlier]

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Montana legislature: ABA, take a hike with that 8.4 rule

In passing Senate Joint Resolution 15, the Montana legislature has expressed its view that it would be unconstitutional for the state to adopt the ABA’s controversial Model Rule 8.4(g), which purports to ban “discrimination” and “harassment” in the legal profession in such a way as to cut into rights of lawyers’ speech and association, some of them distinctive to their role as client advocates [text, status Gavel to Gavel] Eugene Volokh has more here. We’ve previously linked Volokh’s debates with prominent lawyers on the subject, and here’s another, under Federalist Society auspices, this time against Robert Weiner of Arnold & Porter. Earlier here, here, etc.

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Steve Berman takes on pharmaceutical pricing

Profile of veteran class action and mass action lawyer Steve Berman of Hagens Berman Sobol Shapiro quotes me [Damien Garde, STAT]:

“You will search with some difficulty for people who successfully do what he does and do not have a big personality,” said Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies. “As is the case with birds, it helps both to deter competitors and intimidate enemies when you have a large feather display.”

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Progressive politicos helped hotel industry as it schemed to strangle AirBnB

At the New York Times, Katie Benner investigates documents from the hotel industry’s intensive efforts to use government regulation to derail competition from AirBnB, which focused especially on cultivating “alliances with politicians, affordable housing groups and neighborhood associations” as well as hotel unions:

The association also sought help from politicians in Washington. In its documents, the group said it had worked with Senators Brian Schatz of Hawaii, Elizabeth Warren of Massachusetts and Dianne Feinstein of California. The three Democrats sent a letter to the Federal Trade Commission in July “raising concerns about the short-term rental industry,” one of the hotel association documents said.

More: Eric Boehm, Reason.

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