One-stop permitting, an idea with a considerable track record of success at the state level, may finally be coming to the federal government. “The agencies will work to develop a single environmental Impact Statement and sign a single record of decision and the lead agency will seek written agreement from other agencies at key points. [The memorandum] also seeks to try to quickly resolve interagency disputes.” [Reuters, Common Good]
Archive for April, 2018
April 19 roundup
- “Crash survivor sues publisher, claims he was exploited by book’s false claim of visit to heaven” [Debra Cassens Weiss, ABA Journal on William Alexander “Alex” Malarkey claim against Tyndale House Publishers] More: Lowering the Bar;
- Attorney-client privilege and the raid on Trump lawyer Michael Cohen: my Saturday chat with Yuripzy Morgan of Baltimore’s WBAL radio [listen] On the same general subject, Clark Neily chats with Caleb Brown for the Cato Daily Podcast, and Ken at Popehat has a Stormy Daniels/Michael Cohen civil litigation lawsplainer;
- “While there were many problems with the $1.3 trillion omnibus spending bill, one thing the Republican-led Congress got absolutely right was defunding Affirmatively Furthering Fair Housing” [Robert Romano, Daily Torch, earlier on AFFH]
- “The nearest Macy’s department store is several thousand miles away” but a small hair salon in Scotland will need to change its similar name or face lawyers’ wrath [Timothy Geigner, TechDirt]
- Facebook sued for allegedly allowing housing discrimination by way of ad targeting [autoplays] [Seth Fiegerman, CNN Money]
- Beverage equivalent of clear backpacks: South Carolina bill would make it a crime to let teenagers consume energy drinks [Jacob Sullum]
“Checkpoint America”
“For over 60 years, the executive branch has, through regulatory fiat, imposed a ‘border zone’ that extends as much as 100 miles into the United States.” Within this zone, the Department of Homeland Security’s Customs and Border Protection (CBP) service can set up fixed or mobile checkpoints that require travelers, whether foreign- or native-born, to stop and submit to questioning and possible search “to get to work, go to the store, or make it to a vacation destination in the American Southwest.” Were the government to try using these same techniques at frankly internal checkpoints — in Omaha, say, or Indianapolis or Cheyenne — a range of constitutional protections would come into play to limit police discretion and protect citizens’ rights to go about their business freely. But the border, or areas within 100 miles of it, are different. One problem: since the coasts count as borders too, an estimated two-thirds of the American public lives in areas that are just one executive decision away from having a checkpoint system.
The Cato Institute is launching a new online initiative, “Checkpoint America: Monitoring the Constitution-Free Zone.” Patrick G. Eddington explains in the Cato Daily Podcast above, and in this blog post.
Boulder joins suits demanding climate damages from energy companies
The litigation campaign had previously recruited several California cities and New York City, and now three local governments in Colorado, the City of Boulder, Boulder County, and San Miguel County, are joining in demanding recoupment of moneys spent because of climate change. I’m quoted in Michael Sandoval’s account in Western Wire:
Walter Olson, a Senior Fellow at the Cato Institute, told Western Wire that besides pushing for settlement, an additional objective is implementing new regulation via the courts, rather than legislation or administrative rulemaking….
The multi-state, multi-pronged approach is key, Olson said, given the differences between states on everything from recovery to discovery procedures.
“The strategy in these cases is typically to recruit as many plaintiffs as possible, with an emphasis on actions in different states. States have, e.g., different consumer laws to sue under that may allow different theories of recovery, or different procedures each of which may place the defendants at some particular kind of disadvantage,” Olson said….
“Typically the government plaintiffs are offered a deal of ‘no fee unless successful,’ just as in the ads on late-night TV,” Olson said….
Olson said that the approach in Colorado may be slightly different, given the reaction to the lawsuits filed in California and New York City that have been viewed simply as money-grabs.
“The first wave of these climate suits have gotten a reputation in the press as organized by law firms seeking contingency fees who intend to run the actions for maximum cash payout,” Olson said. “Involving EarthRights and a community like Boulder could be an effort to change this image by introducing more of an idealistic non-profit tone and maybe a suggestion that the goal isn’t just to squeeze money out in a settlement and then return to business as usual, which is basically what happened with the tobacco settlement,” he concluded.
I also mention that speculative litigation of this sort is made vastly easier by our lack of a loser-pays rule.
A very different view — and one with which, needless to say, I disagree — from the Niskanen Center, which is participating in the suits.
Lawsuit recruiters lure women into unneeded surgery
New York Times deep dive into the ethical morass of pelvic-mesh-suit recruitment, in which lawsuit shops recruit women into often unnecessary and sometimes dangerous surgery to remove implanted material, a step needed for claims to be lucrative. [Matthew Goldstein and Jessica Silver-Greenberg, New York Times] Opening paragraphs:
Jerri Plummer was at home in Arkansas, watching television with her three children, when a stranger called to warn that her life was in danger.
The caller identified herself only as Yolanda. She told Ms. Plummer that the vaginal mesh implant supporting her bladder was defective and needed to be removed. If Ms. Plummer didn’t act quickly, the caller urged, she might die.
And how, in the age of HIPAA, did the recruiter on the phone come to know so very much about the medical history of the woman being pitched? What follows is a story of conduct that is shocking, appalling, unethical — but neither surprising nor unusual to those of us who have been writing about the abuses of the litigation business for many years. Plaintiffs suing over back pain after accidents, for example, are regularly steered into unnecessary back surgery, and plaintiffs in the breast-implant litigation were steered into removal surgeries for which the only indications were legal, not medical. These alas are the incentives of injury litigation: run up the medicals (the higher the bill for testing and therapy, the higher the claim value) and if you’re suing over a drug or therapy itself, maybe disengage from it to show your fears are genuine.
All that said, congratulations to the Times and reporters Goldstein and Silver-Greenberg for an investigation that shines a bright light on the need for reform. More: Beck.
“Surprised by Neil Gorsuch’s ruling? You weren’t paying attention.”
In the case of a federal law providing for the mandatory deportation of lawful permanent residents convicted of a hazily defined “crime of violence,” Justice Neil Gorsuch steps comfortably into Nino Scalia’s shoes as the Court’s champion of void-for-vagueness invalidation of criminal laws whose contours were left overly unclear. “It doesn’t make him a squish. It makes him an originalist,” [Ilya Shapiro, Washington Examiner; opinion in Sessions v. Dimaya] More: Jay Schweikert, Cato.
In the mail: “Scorched Worth”: new book on Moonlight Fire/Sierra Pacific case
The Sierra Pacific/Moonlight Fire scandal developed after the state of California and federal governments combined legal forces to go after a forest products company seeking to recoup millions of dollars spent fighting a fire that they claimed the company helped cause. Over the course of the ensuing litigation, judges charged a California state agency with “egregious and reprehensible conduct,” blasted the office of then-California Attorney General Kamala Harris for less-than-professional conduct, and brought in question the conduct of the U.S. Department of Justice under then-AG Eric Holder. We covered the story here, here, here, here, here, here, and here.
Now a new book on the story by author Joel Engel is out entitled “Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption.” The author has an excerpt in the Weekly Standard (“What happens when the government lies about you in court?”). Here’s a fuller description of the book, from publisher Encounter:
To effect just outcomes the justice system requires that law enforcement officers, prosecutors, and judges be committed—above all—to doing justice. Those whose allegiance is to winning, regardless of evidence, do the opposite of justice: they corrupt the system. This is the jaw-dropping story of one such corruption and its surprise ending.
On Labor Day 2007, a forest fire broke out in California’s eastern Sierra Nevada and eventually burned about 65,000 acres. Investigators from the California Department of Forestry and Fire Protection and the United States Forest Service took a mere two days to conclude that the liable party was the successful forest-products company Sierra Pacific Industries (SPI), founded as a tiny sawmill nearly sixty years earlier by Red Emmerson.
The investigative report on the fire declared that SPI’s independent logging contractor had started the conflagration by driving a bulldozer over a rock, creating a spark that flew into a pile of brush. No fire had ever been proven to start that way, but based on the report the U.S. Department of Justice and California’s attorney general filed nearly identical suits against Emmerson’s company. The amount sought was nearly a billion dollars, enough to bankrupt or severely damage it. Emmerson, of course, fought back.
Week by week, month by month, year by year, his lawyers discovered that the investigators had falsified evidence, lied under oath, fabricated science, invented a narrative, and intentionally ignored a mountain of exculpatory evidence. They never pursued a known arsonist who was in the area that day, nor a young man who repeatedly volunteered alibis contradicted by facts.
Though the government lawyers had not known at the start that the investigation was tainted, they nonetheless refused to drop the suits as the discovery process continued and dozens of revelations made clear that any verdict against Emmerson’s company would be unjust.
Scorched Worth is a riveting tale that dramatizes how fragile and arbitrary justice can be when those empowered to act in the name of the people are more loyal to the bureaucracies that employ them than to the people they’re supposed to serve. It’s also the story of a man who refused to let the government take from him what he’d spent a lifetime earning.
The book can be ordered here.
“Vehicle Safety Inspections Don’t Increase Safety”
When New Jersey repealed its requirement for periodic auto safety inspections, there was no statistically meaningful rise in the frequency of accidents due to car failure, or to road fatalities whether linked to car failures or not. Alex Tabarrok: “It’s time to ditch the annual safety inspection and either move to no inspection system at all or like Maryland move to a system that requires safety inspections only at transfer. I’m not convinced that is necessary either, since at transfer is precisely when the buyer will run an inspection anyway, but at least that system would reduce the number of inspections significantly.” [Marginal Revolution, New York Post editorial; Alex Hoagland and Trevor Woolley]
An elusive asbestos memo
Now you see it, now you don’t: a famous “Preparing For Your Deposition” memo for asbestos plaintiffs, which I wrote about back when, is not quite so easy to lay one’s hands on or read about these days, though clues are still available on the web [David Yates/Southeast Texas Record, Sarah Rafique/KXAN and Sara Corcoran Warner/Huffington Post on First Amendment suit by Christine Biederman over access to court records, Yates/SETR with more, and more]
Land use and development roundup
- Bay Area, L.A., and D.C. area should take an affordable housing lesson from cities that build: “Houston, Dallas, and NYC: America’s Great 3-Way Housing Supply Race.” [Scott Beyer]
- All things bright and beautiful/All
creatures great and small/All things wise and wonderful/The Commerce Clause reaches ’em all [John-Michael Seibler, Heritage, on Supreme Court’s denial of certiorari in Tenth Circuit decision upholding as constitutional federal rules requiring owners to preserve Utah prairie dog habitat on private land; earlier on PETPO v. U.S. Fish & Wildlife Service here, here, and here] Photo: Wikimedia Commons; - WSJ editorial takes dim view of Louisiana coastal erosion suit against oil firms, earlier here, here, here, here, here, and here;
- “You’re Not a Progressive If You’re Also a NIMBY” [Robert Gammon, East Bay Express] “Density Is How the Working Poor Outbid the Rich for Urban Land” [Nolan Gray, Market Urbanism] “The absence of gentrification causes displacement” [Michael Lewyn, same]
- “Let’s Make America a Mineral Superpower” [Stephen Moore and Ned Mamula, Bakersfield.com/Cato]
- Backing off from a bad law: Washington, D.C. considers ending tenant purchase rights for single-family homes [Carolyn Gallaher, Greater Greater Washington]
