General incorporation laws were a huge 19th century advance, replacing favoritism-riddled corporate chartering at official pleasure with automatic operation of legal right. Sen. Elizabeth Warren’s corporate governance scheme would risk taking us back to the bad old days. I’ve got a new post at Cato, channeling Richard Epstein and other commentators on the topic. Earlier here, and some extended critique of the “stakeholder” idea in this 2002 piece by Norman Barry.
Archive for August, 2018
HUD’s Carson to localities: stop throttling housing availability
Housing and Urban Development Secretary Ben Carson is pressing local governments to ease barriers to housing construction, which might turn out to be a genuinely progressive stance in a period in which housing costs are soaring in many in-demand cities, led by the West Coast. One reason for HUD to take notice of these local barriers to building is that by artificially driving up rents and construction costs, they drive up the cost of HUD’s own programs: “the most-restrictively zoned states receive nearly twice the federal dollars per capita compared to the least-restrictively zoned states…Determining whether attaching requirements to grants is a constitutionally-sound strategy is best decided by a legal expert. However, Carson’s new focus on educating policy makers on the damaging consequences of local policy, while acknowledging HUD cannot overcome local problems by spending money, is a welcome change.” [Vanessa Brown Calder, Cato]
More/related: Tyler Cowen (on New York Times coverage), Elijah Chiland, Curbed L.A., and Ilya Somin on introduction of bill by Sen. Cory Booker, D-N.J., to discourage exclusionary zoning by attaching strings to the (itself highly dubious) $3.3 billion federal Community Development Block Grant program.
August 22 roundup
- Don’t: “Former lawyer is charged with stealing client identities to apply for litigation advances” [Debra Cassens Weiss, ABA Journal; Marietta, Georgia]
- “Website Access and Other ADA Title III Lawsuits Hit Record Numbers” [Minh Vu et al., Seyfarth Shaw; related, Julia Limitone, Fox; earlier] More compliance deadlines for movie theatres on captioning and audio description [Kevin Fritz, Seyfarth Shaw]
- Because this damaging exercise in maritime protectionism isn’t going away, Cato has launched a Project on Jones Act Reform [earlier]
- Worth keeping an eye on: proposals for “International Convention on Business and Human Rights” [Carlos Lopez, Opinio Juris, first, second posts]
- Alan Reynolds on the return of antitrust [Regulation mag via David Henderson, Econlib] A guide to Regulation mag articles on antitrust over the years [Peter Van Doren] Federalist Society conference on The Antitrust Paradox [opening remarks with Hon. Makan Delrahim and Dean Reuter first, second; panel on book’s generational impact first, second; panel on current state of play first, second]
- “Pro tip from the Tenth Circuit: Attorneys should tell the court if their clients die.” [Havens v. Colorado Department of Corrections via John Kenneth Ross/Short Circuit]
At Commentary on the Roundup verdict
My new piece at Commentary on a San Francisco jury’s verdict ordering Bayer/Monsanto to pay $289 million to a school groundskeeper who blamed Roundup herbicide for his cancer. It bids to go down in the history books alongside the lawsuits “claiming that silicone breast implants caused auto-immune disease, common childhood vaccines caused autism, the morning sickness drug Bendectin caused birth defects, one or another make of car suddenly accelerated without any input from the driver or gas pedal, and so forth.”
At the end it concludes: “Eventually, our liability system does often get around to rejecting baseless scientific claims of causation, especially since the improvement in the handling of expert evidence embraced by the U.S. Supreme Court in Daubert v. Merrell Dow (1993). Before it gets there, however, it sometimes redistributes large sums—often to claimants, even more reliably to lawyers—and often destroys large amounts of value. In the days after the San Francisco verdict, the value of Bayer stock dropped by more than 10 billion euros. It’s expensive when error prevails.” More: The Logic of Science (“Courts don’t determine scientific facts.”) Earlier on glyphosate here. And a note on the perhaps-surprising tax implications under perhaps surprising provisions of the 2017 tax reform: Robert Wood.
“County compels 91-year-old woman to tear down home wheelchair ramp”
Following the law wherever it leads in Maryland: “Prince George’s County filed a legal case against a Laurel couple in their 90s over a wheelchair ramp in their own home. To avoid legal trouble, the elderly couple’s son tore down the ramp, trapping the woman in her own home. The county permitting department said the family had no permit to build a wheelchair ramp in front of their own home.” [WJLA]
Free speech roundup
- Getting together to do a national We’re-Not-The-Enemy-Of-The-People Day might not play to the strengths of an independent press [Jack Shafer; New York Post on why it did join, and L.A. Times on why it didn’t] Kevin Williamson wishes that many in the institutional press were more than just fair-weather friends of free speech values [NRO]
- ““Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted” [Eugene Volokh]
- “Can Fake News Be Regulated?” Federalist Society policy brief video with Thomas Arnold;
- Once you get past the headline, Adam Liptak’s NYT account of First Amendment differences at the Supreme Court is well done [Roger Pilon]
- Is Internet freedom failing? [Knight Institute symposium with Jack Goldsmith et al.] How does moderation actually work at leading social media firms? [Kate Klonick, Harvard Law Review]
- The ABA’s Model Rule 8.4(g), in the name of combating harassment and discrimination, encourages states to regulate many expressions of speech and association by lawyers that have incidental professional implications. The Supreme Court in its recent NIFLA v. Becerra decision cast a shadow on that [Josh Blackman, Scott Greenfield]
“Right to be forgotten” making its way into American courts?
New Jersey court orders Google to take down newsworthy photo Chicago Tribune had run of plaintiff [Eugene Volokh; note that plaintiff subsequently voluntarily dropped the case] And courts can’t order private media outlets to expunge truthful coverage of charges against someone, can they? [Volokh on Houston judge’s order against website of broadcaster KTRK]
Sen. Warren: make American business more European
Massachusetts Sen. Elizabeth Warren has a new scheme to impose employee co-determination and an assortment of other forcible corporate governance alterations on American business. My new Cato post argues that it would expropriate huge sums in shareholder value while undercutting incentives for economic dynamism. Alternatives to the U.S. corporate governance system, “European or otherwise, simply do not have as good a track record of supporting a dynamic economy that generates world-beating enterprises across a wide range of business sectors.” Other views: Donald Boudreaux (“deeply truly scary”), Matt Yglesias/Vox (taking favorable view of scheme, including its destruction of perhaps 25 percent of current shareholder value). More on the “stakeholder” and co-determination angles: Samuel Hammond, and Megan McArdle on the latter.
Medical roundup
- “Researchers from Duke and MIT… found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent — and that those patients who got the extra care were no better off.” [Margot Sanger-Katz, New York Times]
- Cato Policy Analysis and podcasts (with Caleb Brown) by Terence Kealey: “The Feds’ Demonization of Dietary Fat” and “Why Does the Federal Government Issue Damaging Dietary Guidelines?” Related: Britain’s “food supply is being taxed, regulated and reformulated – on the pretext of a lie” [Christopher Snowdon, Spectator (U.K.)]
- New Jersey, a key state because of its volume of pharmaceutical liability litigation, joins national trend by adopting Daubert standard on expert evidence [Colleen O’Dea/N.J. Spotlight, Beck, John O’Brien/Legal NewsLine]
- “Criminal prosecution for violating HIPAA: an emerging threat to health care professionals” [Anne M. Murphy, Laura B. Angelini, and Jared Shwartz, STAT]
- Do-it-yourself workarounds for obtaining compounds blocked or restricted by FDA/pharma regulation, albeit entangled with IP issues. With bonus code-as-speech angle [Daniel Oberhaus, Vice Motherboard]
- “Hotels do want to tell you the real price. Until hospitals do too, they will find their way around disclosure regulations” [John Cochrane; related Cochrane on lack of price competition among air ambulances]
Heed the sign!
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