Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for August, 2017

From the comments: better safe than sued

Sunday’s ADA-and-the-web post prompted some useful reader discussion. Commenter Jim Collins told this story:

A while back I went to community college. I was recovering from an injury and in a vocational rehabilitation program. Part of the program was working for the college. We had a grant for computer workstations. At that time there was a shortage of computers at the college. We had a large room assigned to us and we were to cram in as many workstations as we could. When I submitted my layout I had 60 workstations in the room. I was asked how many were wheelchair accessible? I said “The front twenty.” I was told that all of the workstations had to be wheelchair accessible because the college didn’t want to have the chance of a lawsuit. In the end we could only fit 40 workstations. We lost 20 workstations. The part that got me was that the room we were assigned was on the second floor of a building. The building was grandfathered in and didn’t have wheelchair access. Another thing was that in the history of the college the most students that they ever had in wheelchairs was five.

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The patent court where you can’t check out?

Is the notorious E.D. Texas, unwilling to release its clutch, coming up with new rules that will let it keep hearing its enormous patent docket? “In a recent decision, Eastern District of Texas Judge Rodney Gilstrap developed a broadly-sweeping four-factor ‘totality’ test seemingly aimed at keeping patent-infringement suits in his jurisdiction.” [Ryley Bennett, WLF]

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Federal judge dismisses Palin libel suit against NYT

Federal judge Jed Rakoff has dismissed Sarah Palin’s libel suit over an unfair and inaccurate swipe at her in a New York Times editorial [Eriq Gardner/Hollywood Reporter, Tim Cushing/TechDirt, Jacob Sullum/Reason, Tom Rogan/Washington Examiner]

We are rightly proud of the broad sweep of First Amendment protection our constitutional law gives to wide-open discussion about public figures, even when, as in the Times’s reference to Palin, it results in commentary that the Times itself recognized within a day was grossly off base and retracted. If the New York Times expects professional respect, however, it needs to hold itself to standards higher than the ideological schlock merchants of both sides, which would mean not printing such things in the first place.

Maybe the best outcome in the case would be if the Times paid $0 damages, but the editor who wrote the false words resigned in shame.

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August 30 roundup

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D.C. Circuit: pipeline environmental review must include impacts of eventual gas use

Before the Federal Energy Regulatory Commission can approve a new pipeline it must engage in environmental review not just of the impact of the pipeline itself on its surroundings, but of the later carbon emissions when end users burn the gas it carries. So ruled the D.C. Circuit August 24 in Sierra Club v. FERC. [Emily Flitter/Reuters, Timothy Cama/The Hill, Pace Law] Judge Janice Rogers Brown dissented in relevant part, noting that FERC’s regulatory authority in this instance does not extend to later decisions about use:

Case law is clear: When an agency “‘has no ability to prevent a certain effect due to’ [its] ‘limited statutory authority over the relevant action[],’ then that action ‘cannot be considered a legally relevant cause’” of an indirect environmental effect under the National Environmental Policy Act (“NEPA”).

One wonders whether review of the siting of new supermarkets will someday need to include the environmental impacts expected to follow after local residents consume food sold there.

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Taking kids away from low-IQ parents, cont’d

I was a guest earlier this month on Glenn Beck’s radio show to discuss the Oregon case (earlier) in which where kids were taken away from parents with low IQs (but high school diplomas) in the absence of charges of abuse or neglect.

The Blaze summarizes:

Essentially, the state doesn’t have to prove anything definite to take away a child; the argument is that they are going by the expert’s recommendation for what’s best just in case something could happen. In Fabbrini’s case, her estranged father has told authorities that she is an unfit mother; however, people closer to her have vouched for her ability to parent.

“If they [authorities] want to take your child, they’ve got him,” Olson said….

“It’s been called [‘worst-first’] thinking,” he explained. “If you’re in the child protection business, then, you know, everything looks like a danger. … You always think the worst possible thing could happen.”

During the show I mentioned the Chicago-based Family Defense Center, one group that brings legal help to parents in danger of losing children to the state. And Lenore Skenazy has done an incredible job at Free-Range Kids of collecting stories around the country where harmless mix-ups turn into long nightmares of involvement with CPS.

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Environment roundup

  • “Will Spokane Pass an Expensive, Unenforceable Ban on Rail Shipment of Fossil Fuels?” [Erin Mundahl, Inside Sources] New York Gov. Andrew Cuomo blockades a natural gas pipeline, and New England economy pays the price [WSJ]
  • “Plaintiff firms have filed some 800 complaints against marijuana businesses” alleging California Prop 65 (toxics warnings) violations [WSJ editorial, more on Prop 65]
  • Encyclopedia of Libertarianism, originally published in 2008 under editorship of Ronald Hamowy and now free online at Cato Institute, has article on “Environment” by Jonathan Adler; more background here;
  • Fake all the horns: entrepreneur’s scheme could make rhino poaching uneconomic, but enviro groups dead set against [John Stossel/Reason post, video]
  • Yes, you are ingesting pesticides. No, it’s not a problem [Matan Shelomi, Quora/Forbes]
  • The economic way of thinking tends to inoculate one against fads like the peak oil scare [Ron Bailey]

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Restatement of the Law of Liability Insurance

An American Law Institute Restatement of the Law of Liability Insurance (RLLI) has stirred considerable controversy; its final draft was withdrawn on the eve of a membership vote, with further work expected [WLF: Mark Chenoweth, Kim Marrkand, Glenn Lammi; W.J. Kennedy, Legal NewsLine/Forbes] Chenoweth:

Simply put, this “Restatement” does a lot less restating and a lot more revising than ought to be seen in something traveling under this banner.

Others have done an excellent job of describing where ALI’s Restatement draft falls short in characterizing current law, so there is no need to reiterate those arguments here. But for clarity’s sake, let me say that I am referring specifically to at least the following provisions of the draft:

  • Permitting policyholders to introduce extrinsic evidence in interpreting insurance contracts, which contradicts the ‘parole evidence’ rule.
  • Radically shifting the consequences of breaching the duty to defend (in the absence of bad faith).
  • Fee shifting; and
  • Creating a duty for insurers to make a reasonable settlement offer in the absence of a demand.

Earlier here and related here (“No more of Prosser’s tricks,” and views of Justice Scalia).

Crime and punishment roundup

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Web accessibility advocates breaking through in court?

Recently the University of California, Berkeley, took down online lecture and course content that it had offered free to the public, rather than risk liability for not modifying them so as to be conveniently usable by members of the public with hearing, visual, or manual disabilities. Harvard and M.I.T. had already been sued on similar grounds.

Now imagine the Berkeley take-down times 10,000 — a world in which private commercial, educational, and non-profit entities alike have legal incentive to de-publish any web content they do not think bulletproof against claims of lack of ADA accessibility. That’s not just imagining. It’s the world we’re looking at as a number of federal courts, setting aside years-old precedent, have begun to accept plaintiffs’ arguments that the ADA applies broadly to the web. As freelance lawsuits against private defendants proliferate, the choice is plain: either act to stop this trend, or expect widening disruption and takedown of formerly free web content.

In a much noted June case against the Winn-Dixie supermarket chain, a federal court accepted the notion that the store could be sued under the ADA because its website was a “place” of public accommodation, like a brick and mortar store. As Frank Cruz-Alvarez and Rachel Canfield observe in a Washington Legal Foundation paper, “the court found that the website was ‘heavily integrated’ and a ‘gateway’ to the physical stores, notwithstanding that the website limits customer participation to acquiring in-store coupons, refilling existing prescriptions for in-store pick-up, and utilizing a store locator function.” Since then federal courts have ruled favorably on ADA-for-the-web claims in more than one other case, including a decision by Judge Jack Weinstein of the Eastern District of New York in a case against Blick Art Materials.

I’ve been warning for a long time that web accessibility has the potential to be one of the most damaging and onerous regulatory initiatives in memory. It’s true that with courts split on the issue there is a chance that at some point the U.S. Supreme Court will take a case allowing to resolve the uncertainty and — if we are lucky — uphold earlier precedents such as that in a 2002 case in which a court dismissed a lawsuit against Southwest Airlines. In the mean time, entrepreneurial lawyers have been filing hundreds of lawsuits against local and national businesses over their websites, many of which settle for money out of court, and on the current momentum will soon be suing thousands more. Millions of existing web presences are uncompliant and easy targets for litigation. The real answer is for Congress to step in.

[cross-posted from Cato at Liberty]

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