Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for July, 2017

“After N.F.L. Concussion Settlement, Feeding Frenzy of Lawyers and Lenders”

Following the biggest settlement in sports history, on behalf of National Football League players who were not given enough warning of the dangers of concussions and brain injury, a small army of legal, financial, claims-filing, and medical advisers are working hard to pitch retired players on their services. But “the fact that many players are cognitively impaired and may struggle to understand the terms of the services offered to them has raised alarm among player advocates, legal ethicists and the lawyers for the players who sued the N.F.L.” [Ken Belson, New York Times]

Most of the claim-service providers require players to agree to share 15 percent or more of anything they receive in return for helping them with a process that the providers portray, in stark terms, as unduly complicated. They also do not always tell players that they can call court-appointed experts to receive free advice on how to file a claim, or that they can visit doctors who will provide a free neurological exam.

Some lawyers have hosted dinners for former players at steakhouses to get them to sign up. Others have promised to get players appointments with doctors who will write diagnoses that make their medical conditions look worse than they are, according to players who have received pitches from some of the companies.

Side note: Ira Stoll has a comment about the Times’s use of the phrase “largely unregulated.”

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July 26 roundup

  • “It’s time for our justice system to embrace artificial intelligence” [Caleb Watney, Brookings]
  • Ontario woman named vexatious litigant and barred from filing lawsuits without leave tells newspaper “to hold off on publishing her story until all of her matters before the court were concluded, or else” [Jesse McLean and Emily Mathieu, Toronto Star]
  • Psittacine hearsay? Parrot said to have repeated “don’t (expletive) shoot” in murder victim’s voice; wife convicted [AP/Detroit News] “The parrot was not involved in any court proceedings.” [Evening Standard (U.K.)]
  • Pennsylvania’s abuse-of-process law, not particularly strong in the first place, survives a challenge [Hillary Hunter, WLF]
  • No, that’s not how the law works. Sanctions next? “Baton Rouge police officer injured in deadly ambush sues Black Lives Matter” and five leaders of it [CBS]
  • “When the first section heading of an opinion is ‘Design Basics and the Art of the Intellectual Property Shakedown,’ you can probably guess how things are going to turn out for Plaintiff Design Basics, LLC.” [John Ross, Short Circuit on this Seventh Circuit case]

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After a copyright verdict, creators keep mum

Two years after the Blurred Lines copyright verdict, lawyerly caution is making itself felt: “According to a BBC report last week, recording artists are now being instructed not to talk publicly about their musical influences for fear of exposure to copyright infringement claims.” [Brink Lindsey, Cato] From the BBC report:

According to forensic musicologist Peter Oxendale “everyone’s concerned that inspiration can [now be interpreted as] a catalyst for infringement.

“All of these companies are worried that if a track is referenced on another at all, there may be a claim being brought,” he explains.

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“Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco”

As the Wall Street Journal reports, former Mississippi attorney general and longtime Overlawyered favorite Michael Moore has been collaborating with Ohio Attorney General Michael DeWine, with other elected government attorneys, and with other trial lawyers to seek lift-off of suits against painkiller makers and distributors. The headline was “Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco,” which got several of us going on Twitter:

Which in turn played off Jonathan Adler’s:

And Gabriel Malor’s:

Mine drew a number of responses, including this from Bloomberg View business columnist Joe Nocera:

And:

In a more conventional op-ed vein, there’s this from Tiger Joyce.

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Campus speech wars: the law school advantage

By demanding that students “imaginatively and sympathetically reconstruct the best argument on the other side,” a good legal education can help inoculate you against blinkered self-righteousness, which may be one reason why relatively few of the recent campus shout-downs and brawls have taken place at law schools. [Heather Gerken (dean, YLS), Time] And don’t miss John McWhorter on the essential theatricality of campus silencing, allyship, and privilege-shaming [via Conor Friedersdorf, The Atlantic]

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Land use and development roundup

  • “Expanding housing and job opportunities by cutting back on zoning” [Ilya Somin on Ed Glaeser Brookings essay]
  • Always hold back and let the government do it. That way the $550 stairs can be built for $65,000-$150,000 [CTV, CBC, sequel: city of Toronto tears down stairs] Some reasons why even without NIMBY or funding constraints, government infrastructure projects can be hard to get done [Coyote]
  • Cities dressed up retail malls as “public use” to justify land takings. Many courts went along. Not looking so good now [Gideon Kanner]
  • “Is inclusionary zoning legal?” [Emily Hamilton, Market Urbanism] Rejoinder: constitutional attacks on this type of zoning modification will make libertarians sorry if localities just go back to strict zoning [Rick Hills, PrawfsBlawg]
  • House Natural Resources Committee hears testimony on package of reforms to Endangered Species Act [Michael Sandoval, Western Wire]
  • Are takings claimants entitled to have suits heard in an Article III court? [Robert Thomas, Inverse Condemnation]

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Individual liberty and the Israel Anti-Boycott Act

A bill sponsored by roughly half the members of Congress would — so we are warned by New York magazine, at least — “make it a felony for Americans to support the international boycott against Israel” and “make avoiding the purchase of Israeli goods for political reasons a federal crime.” While those claims may be somewhat overstated, I argue in a new post at Ricochet that the proposed Israel Anti-Boycott Act “is plenty bad enough. By punishing boycott participation grounded in political belief, it would infringe on individual liberty.” And: “It is not a proper function of law to force Americans into foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad, or arbitrary. The furor would make a good occasion to revisit the 1979 law itself in light of principles of individual liberty; at a minimum, we should decline S. 720’s invitation to extend it further.”

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