- “Now the Personal Injury Lawyers Have Scooters in Their Sights” [Anousha Sakoui and Edvard Pettersson, Bloomberg]
- Jury orders Rams to pay $12.5 million for Reggie Bush injury [AP/Valley Morning News; St. Louis Post-Dispatch]
- “Lawsuit Against Snapchat Encouraging Speeding Can Proceed” [Eugene Volokh]
- “Art Imitates Life: ‘Billions’ Describes Six-Figure, Part-Time Jobs On Asbestos Trusts” [Daniel Fisher, Legal Newsline/Forbes]
- Lawsuit by insurer State Farm accuses prominent Michigan attorney of maintaining covert ties to medical imaging provider [JC Reindl, Detroit Free Press]
- “California Court Rejects Warranty Claims Where Rats Allegedly Chewed Through Soy-Coated Auto Wiring” [Neal Walters and Casey G. Watkins, Ballard Spahr]
Archive for June, 2018
Save the date: adoption and foster care conference at Cato July 19
Details and registration here:
Panelists include Walter Olson, Senior Fellow, Cato Institute, Robert A. Levy Center for Constitutional Studies; Stephanie Barclay, Assistant Professor, J. Reuben Clarke School of Law, Brigham Young University; formerly Legal Counsel, Becket Fund for Religious Liberty; Sarah Warbelow, Legal Director, Human Rights Campaign; Robin Fretwell Wilson, Roger and Stephany Joslin Professor of Law, University of Illinois College of Law; Elizabeth Bartholet, Morris Wasserstein Public Interest Professor of Law, Harvard Law School; Faculty Director, Child Advocacy Program; Margaret Brinig, Fritz Duda Family Chair in Law, Notre Dame School of Law; Mark Montgomery, Professor of Enterprise and Leadership, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; Irene Powell, Professor of Economics, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; and Ryan Hanlon, Vice President of Education, Research, and Constituent Services, National Council for Adoption.
America has developed its own decentralized and pluralist approach to adoption, with a wide variety of both private and public actors helping match children with the families they need along several paths: adoption of older children in public care, including the foster-to-adopt path; adoption of newborns; and international adoption. But services for children in public care have been swept up in controversy over what if any role is appropriate for religious and other agencies that decline to work with gay parents or that give preference to cobelievers. The rate of international adoption, once hailed as a success, has plunged in recent years. Meanwhile, the domestic foster care system has long been beset by policy challenges.
How can government policy best avoid placing obstacles in the way of finding permanent homes for children? Are there ways to respond to legitimate concerns about international adoption, such as official corruption, that do not simply close down that process? What is the role of pluralism, and can groups with differing objectives and fundamental premises work side by side?
Cato’s half-day conference, featuring keynote speaker Elizabeth Bartholet, a Harvard law professor and noted adoption expert, will air a variety of informed views. Topics will include the conflict between LGBT advocates and some conservative religious agencies over the latter’s participation in state child placement systems; sources and possible solutions of the crisis in international adoption; and the proper role and practical effect of birth mother choice.
“HUD has nearly killed the manufactured homes with their stupid regulations.”
Despite a surge in jobs in some rural states, housing hasn’t caught up, as one traditional method of meeting sudden housing demand there — manufactured housing — has floundered. One reason is the fairly recent enactment of federal regulations, say some locals [Andrew Van Dam, Washington Post/Ogden Standard-Examiner]:
In Nebraska, mobile-home retailers say it’s not just land costs that have lifted prices: It’s now more expensive to stick a mobile home into the ground. In December 2015, the Department of Housing and Urban Development began enforcing strict installation standards in Nebraska and other states that lacked local oversight.
Most notably, new homeowners are forced to spend an estimated $3,000 to $8,000 to lay a footing or foundation that will protect the home from being damaged when the ground underneath shifts as it freezes. The cost isn’t always covered by financing, which makes it unattainable to many buyers. On an entry-level home, installation cost could surpass the down payment.
Nebraska mobile-home retailers say the rules seem overzealous and appear especially cruel because the residents typically don’t own the plot of land into which they’re pouring thousands of dollars. Furthermore, the custom-built foundations aren’t guaranteed to fit the next home to use the lot, and they’ll have to go through the entire, costly process again when they move.
Keeping an overdue appointment with the Appointments Clause
Caleb Brown interviews Trevor Burrus and me for the Cato Daily Podcast on Lucia v. SEC, Thursday’s Supreme Court case on the Appointments Clause and administrative law. Crossing to join with the conservatives, Justice Elena Kagan wrote a narrowly tailored opinion invalidating the method by which the Securities and Exchange Commission had appointed its five administrative law judges at the time of the dispute (it has since fixed its appointment method). The majority opinion carefully sidesteps the issue of how ALJs may properly be removed; Justice Breyer, who largely concurred with the result on separate grounds, explored some of those issues in his opinion. See also Ilya Shapiro on June 21 as “government structure day” at the Supreme Court, and with more on the merits. Related: Federalist Society forum on Michael Rappaport proposal for replacement of ALJs with Article III judges.
Court: police use of cellphone location data generally requires warrant
In Friday’s Carpenter v. United States the Supreme Court by 5-4, with Chief Justice John Roberts writing and joined by the four liberals, held that police collection of cellphone location records covering a period of a week is a search covered by the Fourth Amendment and generally requires a warrant. Orin Kerr has first thoughts. Ilya Shapiro at Cato writes that the Court reaches “the right result for the wrong reason,” in an “artificial muddle” of a decision that carves an exception into the third-party doctrine without the more searching rethinking of search and seizure law that is needed.
More promising, Shapiro says, is Justice Neil Gorsuch’s opinion — which he styles as a dissent, but is a concurrence in all but name — which points the way to rethinking and strengthening Fourth Amendment search and seizure law along first principles of “the people’s right to be secure in their ‘persons, houses, papers, and effects’ based not on privacy expectations but on property rights, contract law, and statutory protections (all of which can certainly be applied in the modern digital age).” The alternative, says Shapiro, will be for the Court to fall back on “reinventing the Fourth Amendment with each technological revolution,” amid new ad hoc exceptions and elaborations. More background at Cato at earlier stages of the case: Matthew Feeney on oral argument, merits brief, certiorari brief.
Supreme Court roundup
A Cato-centric list:
- Supreme Court’s past refusal to enforce plain language of Contracts Clause cries out for review, but in Minnesota life insurance dispute only Gorsuch is up for the task [Roger Pilon, related Cato podcast] More: John McGinnis;
- In Collins v. Virginia, all Justices except Alito agree “that the cops need a warrant to enter your curtilage [area immediately surrounding your home] even if they are doing so to search a vehicle parked there.” [Kevin Underhill, Lowering the Bar, earlier here and here]
- SCOTUS agrees 8-1 that arrest can constitute First Amendment retaliation even if also backed by probable cause, a position urged by Cato in its brief [Lozman v. City of Riviera Beach; Heidi Kitrosser, SCOTUSBlog]
- Audio: I join Yuripzy Morgan on her WBAL radio show to discuss Husted v. A. Philip Randolph Institute, recent case on Ohio’s maintenance of voter rolls;
- Last winter I observed that neither wing of the Court seemed to be angling for a Culture War knockout at the Masterpiece Cakeshop oral argument, and predicted Kennedy might dispose of the case this way [New York Daily News flashback, more on cert grant and on Court’s decision, Cato Tumblr links on the case]
- Through pretextual police stops, government stealthily revives that hated institution of colonial days, the general warrant [Jay Schweikert on Cato cert amicus in Johnson v. U.S.]
Deep pockets to blame after shopping cart dropped onto bystander
In 2011, at the East River Plaza mall in East Harlem, two youngsters tossed a shopping cart “from a 79-foot-high landing outside a Target store,” nearly killing Marion Hedges below. Hedges and her family “sued Target, the mall and its security company for negligence in 2011, saying the businesses ignored past incidents involving kids fooling around with carts.” A jury has now awarded the family $45.2 million. “The Hedgeses previously settled with Target for a confidential sum. The six-person jury found the teens 10 percent responsible for Hedges’ injuries while assigning 65 percent of the fault to the mall and 25 percent to Planned Security Services.” [Julia Marsh and Kalah Siegel, New York Post] In 2015 the New York Post reported on the further extralegal adventures of one of the only-a-little-bit-responsible teen attackers, who had been sentenced to 6 to 16 months in a group home as punishment.
California water projects face legal slog
“Constant litigation, combined with years of legislation empowering unions and state agency bureaucrats to slow construction, have quadrupled the time required to build California’s water projects.” [Ed Ring, City Journal]
Meanwhile, on the national level: “It can take years to get a federal permit for a major infrastructure project. Congress has an opportunity to change that” [Philip Wallach and Nick Zaiac, Brookings]
Bail abolition, Google ads and holding without bond, cont’d
When I wrote last month about Google’s and Facebook’s ill-advised decision to turn away ads for bail bond services, I hadn’t seen Alex Tabarrok’s insightful post on the same topic, calling the tech giants’ decision “deeply disturbing and wrongheaded.” Excerpt:
Bail bonds are a legal service. Indeed, they are a necessary service for the legal system to function. It’s not surprising that bail bonds are used in communities of color and low income neighborhoods because it is in those neighborhoods that people most need to raise bail. We need not debate whether that is due to greater rates of crime or greater discrimination or both. Whatever the cause, preventing advertising doesn’t reduce the need to pay bail it simply makes it harder to find a lender. Restrictions on advertising in the bail industry, as elsewhere, are also likely to reduce competition and raise prices. Both of these effects mean that more people will find themselves in jail for longer….
Ian Ayres and Joel Waldfogel also found that the bail bond system can (modestly) ameliorate judicial racial bias. Ayres and Waldfogel found that in New Haven in the 1990s black and Hispanic males were assigned bail amounts that were systematically higher than equally-risky whites. The bail bondpersons, however, offered lower prices to minorities–meaning equal net prices for people of equal risk–exactly what one would expect from a competitive industry.
My own research found that defendants released on commercial bail were much more likely to show up for trial than statistical doppelgangers released by other methods. Bounty hunters were also much more likely than the police to capture and bring to justice people who did jump bail. The bail bond system thus provides an important public service at no cost to the public.
In addition to being wrongheaded, Google’s decision is disturbing because it is so obviously a political decision….[Every] time Google acts as a lawgiver instead of an open platform it invites regulation and political control.
Meanwhile, reports from Maryland confirm that (as I’ve warned in the past) that state’s unplanned experiment with curtailing cash bail, without due attention to developing alternative institutions, has led to the retaining in jail of many defendants who otherwise would have rejoined their families [Jayne Miller/WBAL, Scott Shackford/Reason] More links on bail controversies: Scott Greenfield; Daniel Dew, Buckeye Institute last year (pro-reform in Ohio).
Sixth Circuit: Stan Chesley played “shell game,” court did not err in freezing his assets
Onetime “king of torts” under siege: “Stan Chesley has defrauded hundreds of former clients through a ‘high-stakes shell game’ apparently orchestrated to avoid paying them a multimillion-dollar judgment, a federal appeals court said.” Following the settlement of a class action over diet drugs for $200 million, lawyers connived with a state judge, who has since been disbarred, to steer most of the proceeds into their own pockets. Clients have been pursuing recovery against Chesley for years, but he has dodged paying the resulting $42 million judgment. Thus far, five lawyers have been disbarred and two jailed in the saga. The Sixth Circuit has now ruled that a district court acted properly in freezing his assets. [Kevin Grasha, Cincinnati Enquirer; Daniel Gill, Bloomberg Law; McGirr v. Rehme] “All told, between his personal assets and the firm’s assets (of which he was sole owner), Chesley managed to lose over $90 million in assets over the course of a single year,” the court said. Of transfers raising “red flags,” some were made to Chesley’s wife, a federal judge; Judge Richard Suhrheinrich cited these in a footnote but said the court was not relying on them as a basis for its decision.