Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2017

Podcast on FICALA, the class action reform bill

Andrew Grossman (Baker & Hostetler), longtime friend of this site, and Howard Erichson of Fordham spoke last month to a Federalist Society online audience on pending class action reform proposals, resulting in this podcast. Description:

On Saturday, March 11 the House passed the Fairness in Class Litigation Act by a vote of 220-201. The stated purpose of the Act is to “(1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs; (2) diminish abuses in class action and mass tort litigation; and (3) restore the intent of the framers…by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles” (H.R.985, 2017).

The Bill amends the federal judicial code’s standards for the certification of class action. For example, the bill requires that proposed class members to show that they suffered the same type and degree of injury. The bill also limits the amount and timing of attorney’s fees in a class action. Attorney’s cannot be paid more than the class members, and they must be paid after the class members receive payment….

Earlier on FICALA here and here.

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“Austin man sues date for texting during movie”

By reader acclaim: “A man is suing a Round Rock woman for texting during a movie date at the Barton Creek Square theater, according to a petition filed in small claims court in Travis County. Brandon Vezmar, 37, of Austin filed the claim Thursday against his date. He is asking for $17.31, which was the price of the movie ticket to a 3D showing of “Guardians of the Galaxy, Vol. 2,” he told the American-Statesman Tuesday.” [Austin American-Statesman] Image: Wikimedia Commons. More: Lowering the Bar (doesn’t seem like good strategy if plaintiff ever wants to date again).

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May 17 roundup

  • Deadline passes for repeal of Obama-era regulations through the Congressional Review Act, at least those that were properly reported to Congress at the time [David Jordan and Nia Prater, Medill/Charlotte Observer, I’m quoted]
  • “Removal of Trump’s Muslim Comments Raise Travel Ban Questions” [Cogan Schneier, National Law Journal, and thanks for quote]
  • What happened to the ACLU? [Wendy Kaminer/Alan Dershowitz, WSJ]
  • Canada’s Charter allows for override of judicial rulings, and 2015 Canadian Supreme CourtCanadaMapleLeaf ruling finding a constitutional right to strikes in essential public services would make a good occasion for it [Conrad Black, National Post, with a further discussion of the native residential schools issue]
  • New Jersey legislature passes a bill, which Gov. Chris Christie then vetoes, banning couples both 17 year old from marrying each other even when both sets of parents or a judge approve [Daily Caller; CBS News report quotes no critic of the idea]
  • Protesters from inauguration-trashing DisruptJ20 among those at home of FCC chairman: “Alt-left targets Ajit Pai” [Elizabeth Harrington, Washington Free Beacon]

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“Reminder: The United States Code is not the law”

If you mistakenly took the U.S. Code to be the definitive statement of federal law — even in instances in which it happens to depart from the Statutes at Large — be comforted that the U.S. Supreme Court has fallen into the very same error. Writes Will Baude: “Anyway, if you want to read more about this, I highly recommend the short and excellent article by Tobias Dorsey, ‘Some Reflections on Not Reading the Statutes,’ which rocked my world when I was in law school.” His example is the wording over the mode of appointment of the director of the FBI. And he’s right on the Dorsey article, which is really quite a read for shaking up one’s complacency on the subject of statutory interpretation.

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Free speech roundup

  • Until late night talker Stephen Colbert became a target, many people didn’t realize the FCC looks into every complaint of on-air obscenity. Time to revisit that practice? [Amy B. Wang and Callum Borchers, Washington Post; Volokh]
  • First Amendment lawyer Floyd Abrams on his new book, The Soul of the First Amendment [Cato podcast, panel discussion with Abrams, Ronald Collins, and Ilya Shapiro, Roger Pilon moderating]
  • Worth a read: promote legal liability for speech and watch it come back to bite you, time and again [Jason Harrow, Take Care Blog on purported incitement by President Trump at his rallies]
  • Irish blasphemy investigation of comedian/actor Stephen Fry, though quickly dropped, prompts major political parties in New Zealand to pledge repeal of that nation’s blasphemy law [Independent, U.K.]
  • Singing legend Joan Baez on letting the other side have its say [Facebook post]
  • On the Macron email dump shortly before the French election, Will Saletan: “All advocates of limits on campaign speech should think about this: Law-abiders can’t respond, so lawbreakers have the field to themselves.”

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Court: Kentucky print shop doesn’t have to print t-shirt it disagrees with

Freedom should mean freedom for everyone, so stop trying to use laws to force people to utter and print words in which they disbelieve:

A Kentucky appellate court on Friday ruled that the Christian owner of a printing shop in Lexington had the right to refuse to make T-shirts promoting a local gay pride festival.

[Jacob Gershman, Wall Street Journal] As Eugene Volokh notes, the “three-judge panel ruled, on a 2-1 vote, that Adamson’s actions didn’t violate the ordinance (and thus avoided having to decide whether he had a First Amendment right, under the ‘compelled speech’ doctrine, not to be forced to print messages of which he disapproved).” The majority opinion found that the ordinance did not prohibit discrimination based on “message or viewpoint”; a concurring judge also cited Kentucky’s version of RFRA, reasoning that the law as interpreted burdened the owners’ religious practice and the state had not shown it minimized burdens in the course of serving a compelling purpose.

Opinion here and earlier on the case here, here, and here. And I’m happy to report that Cato, along with UCLA law professor and First Amendment specialist Volokh, filed an amicus brief in support of this outcome (though urging it on direct First Amendment grounds). More: John Corvino at Slate, who disagrees with me on the wedding cases, but agrees that this is one of forced expression.

And much more: I’ve now written a longer piece on the case for Cato at Liberty.

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Environment roundup

  • Farmers were among leading opponents of 2015 WOTUS (Waters of the United States) rule, and for good reason [Lawrence A. Kogan, WLF, earlier]
  • “The Antiquities Act has become a tool for presidents to secure their legacies with special interests.” [Jonathan Wood/Reason, earlier] “State Officials Urge Local Consultation When Designating National Monuments” [Aileen Yeung, Western Wire, more]
  • West Hollywood imposes onerous exactions if you build multi-unit housing. Takings alert [Ilya Shapiro, David McDonald on Cato certiorari petition in case of 616 Croft Ave., LLC v. City of West Hollywood]
  • Random goofball’s letter to editor calls for violence against oil and gas workers. I wouldn’t mess with oil and gas workers, actually [Western Wire]
  • Vermont Law School, known for environmentalist mission, gets $17 million loan from U.S. Department Of Agriculture [Paul Caron/TaxProf]
  • “Is everything a crime under the Endangered Species Act?” [Jonathan Wood, related on McKittrick policy] “Vigorous Dissent from Fifth Circuit’s Denial of Rehearing Should Help ESA Frog-Habitat Case Leap to Supreme Court” [Samuel Boxerman with Katharine Falahee Newman, WLF]

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How to spear-phish a hospitality business

Suppose you’re devising an security attack on the hospitality and restaurant industry meant to get unwary email recipients to click on an infected file, thus unleashing malware capable of stealing banking records. What do you think would be a good psychological pitch for you to use? [Dan Goodin, ArsTechnica]

One variation started with an e-mail threatening a lawsuit because a visitor got sick after eating at one of the company’s restaurants. To increase the chances the attached Microsoft Word document is opened, the attackers personally follow up with a phone call encouraging the recipient to open the booby-trapped file and click inside. The attacker calls back a half-hour later to check if the recipient has opened the document. The attacker immediately hangs up in the event the answer is yes.

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“Cellino Sues Barnes. Who Gets the Jingle?”

“Ross M. Cellino Jr. and Stephen E. Barnes — known by many in New York and elsewhere simply as Cellino and Barnes, thanks to the infectious jingle that has made the two personal injury lawyers a single, household name — have been in practice together for decades.” Now they appear to be headed to court, but against each other. [Jonah Engel Bromwich, New York Times] Earlier coverage of the Buffalo-based firm, including some ethical scrapes of its principals, here, here, here, here, and generally here.

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