Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2018

Sentencing to serve symbolism: the Protect and Serve Act

Moving rapidly through Congress with bipartisan backing: “a new bill modeled after a federal hate crime statute would make it a crime to intentionally target a law enforcement officer based on his ‘actual or perceived status’ as one.” [Emanuella Grinberg, CNN]

I argued in 2015 that this idea is a very bad one, as well as unneeded, even at the state and local level. Beyond that, doing it as a federal enactment is of dubious constitutionality [Ilya Somin] More: office of Sen. Orrin Hatch (quoting Fraternal Order of Police chief Chuck Canterbury on bill’s being “modeled after the federal hate crime statute”). Killings of police in the line of duty declined last year and are at far lower levels than in the 1970s and 1980s, setting 50-year lows by some standards.

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“New Hampshire Court: First Amendment Protects Criticism of ‘Patent Troll'”

“A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a ‘patent troll.’ The court ruled [PDF] that the phrase ‘patent troll’ and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim.” [Daniel Nazer, Electronic Frontier Foundation, earlier]

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Union group: Amazon should be prosecuted for threatening to pull jobs over per-worker tax

A “union-backed activist group says Amazon should be charged with a crime for its threat to roll back job growth” if the Seattle City Council follows through with a controversial tax idea to assess larger firms a new per-employee tax. “The group, Working Washington, is asking Washington State Attorney General Bob Ferguson to charge Amazon with a Class B felony: ‘intimidating a public servant,’ citing the company’s move to pause some construction and leasing in the city pending the outcome of the vote on the so-called ‘head tax.’…Former state Attorney General Rob McKenna called the group’s prosecution demand absurd, saying the law in question is aimed at protecting individual public employees from personal threat, particularly of physical force.” [Jim Brunner, Seattle Times] More: John Sexton.

Commenter @Living4Winter on Twitter: “It’s so fricken weird when Ayn Rand comes true.” On Monday the Seattle city council voted 5-4 to approve the tax; a final vote will come later and Mayor Jenny Durkan has signaled that she may veto the measure. [KOMO] Update: the council unanimously adopts a tax set lower, at $275 rather than $500 per worker. [Matt Day and Daniel Beekman, Seattle Times]

More: Eugene Volokh with a more thorough First Amendment legal analysis (Working Washington’s theory “would criminalize a vast range of ordinary political action” including “an advocacy group’s threatening to boycott a city if the city council doesn’t change some law that the threatener thinks unjust.”)

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Sports gambling case reaffirms curbs on federal dictation to states

In the New Jersey sports betting case, a Supreme Court divided 7-2 confirms that the Constitution sharply limits the power of the federal government to compel states to enact laws furthering federal policy. The implications are many in fields “from environmental regulation to sanctuary cities, marijuana to guns.” [Ilya Shapiro] [Ilya Somin] It’s a “major victory for federalism….makes clear that a majority of the Court is strongly committed to the anti-commandeering principle. That bodes well for state efforts to oppose commandeering (and perhaps other types of federal coercion) in other areas.” Earlier here, here, here, etc.

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Environment roundup

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Age of sound judgment: a letter to the Washington Post

The Washington Post editorialized last month in favor of dropping the voting age to 16. I dashed off a letter to the editor, which they didn’t run, and is here adapted:

At what point are young people to be entrusted with important life responsibilities? The Post has repeatedly opposed easing the drinking age from 21 so as to allow persons of 18 or 20, who may include service members returning from combat missions, to enjoy a glass of beer. It opposes subjecting late-teen juvenile offenders to the level of accountability applied to adult criminal defendants. Its coverage suggests sympathy with proposals to raise the marriage age to 18, which would mean that a couple of 17 is not deemed mature enough to enter on binding vows of mutual support even with parental blessing and judicial ascertainment of their independent choice.

Now the Post supports slashing the voting age to 16. Perhaps the pattern here is that the Post sees 16 year olds as incapable of making decisions to govern their own lives, yet competent to govern everyone else’s.

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New floor for nuisance settlements?

Presidential attorney and former NYC mayor Rudolph Giuliani, on the Stormy Daniels payment [ABC News reporting on-air comments]:

“I never thought $130,000 — I know this sounds funny to people there at home — I never thought $130,000 was a real payment; it’s a nuisance payment,” Giuliani said. “People don’t go away for $130,000.”

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“Invalidating Quebec’s entire statute book would certainly provoke a reaction.”

“Last week, the Quebec and Montreal bar associations dropped a bombshell into the Quebec political and legislative scene with a lawsuit seeking a declaration from the courts that the statutes and laws of Quebec are invalid in their entirety because the process by which they were enacted violates the Canadian Constitution.” [Matthew P. Harrington, Montreal Gazette] The bars “state the problem is the laws are drafted in French and then translated into English only after the fact instead of simultaneously,” despite an interpretation arising from the British North America Act that laws must be enacted simultaneously in both languages. The practice also hands over to the assembly’s translators a degree of discretion over what the law should be that can properly be exercised only by lawmakers themselves. [Canadian Press/Montreal Gazette] Invalidating a province’s laws because of this issue would not be unprecedented, Harrington says: in 1985 the Supreme Court of Canada “found that Manitoba’s unilingual enactment process required that a century’s worth of statutes be declared invalid and that they be re-enacted in both official languages.”

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