Did Hugo Black’s appointment to the Supreme Court in 1937 pass constitutional muster? The answer may hold a lesson for some who question the legitimacy of the present Supreme Court, I argue in my new Cato post. Despite hyperventilation over particular nominations, history shows the Court is resilient.
Archive for 2019
Free speech roundup, campaign and political speech edition
- “New legislation aimed at curbing foreign influence in U.S. elections also appears to be aimed at curbing Americans’ influence in U.S. elections.” [Cato Daily Podcast with Caleb Brown and Scott Blackburn of the Institute for Free Speech on SHIELD Act]
- “Everyone always talks about how much money there is in politics. This is the wrong framing. The right framing is… why is there so little money in politics?” [Scott Alexander]
- Free speech advances other freedoms: “Frederick Douglass’s “Plea for Freedom of Speech in Boston”” [Law and Liberty, Kurt Lash introduction] The very idea of a gay rights organization once seemed unthinkable in America, and might have remained so “in the absence of a strong and particularly libertarian First Amendment.” [Dale Carpenter, SSRN and Volokh Conspiracy summary]
- “That unlimited right to lobby the lawmakers who make decisions that affect your life, your family, and your fortune is one that Sen. Elizabeth Warren (D–Mass.) thinks American businesses should not have.” [Peter Suderman; Bradley Smith and Luke Wachob, NRO] A federal appeals court says an independent Missouri activist doesn’t have to register as a lobbyist to talk to lawmakers [Cato Daily Podcast with Caleb Brown and Zac Morgan of the Institute for Free Speech]
- “Every Democrat in the Senate Supports a Constitutional Amendment That Would Radically Curtail Freedom of Speech” [Jacob Sullum] Same bunch “Still Fundraising Off Citizens United, Still Wrong About What It Means” [Elizabeth Nolan Brown]
- “Essentially, L.A. has passed a law saying people with one interest in a decision by the council can support candidates, but the other side can’t.” [Christian Britschgi, Reason on city’s ban on contributions by developer but not anti-development interests]
AB5: California’s much-predicted freelancer disaster
“California’s new employment law has boomeranged and is starting to crush freelancers” [Elaine Pofeldt, CNBC; Kerry Flynn, CNN Business] “As with many of my colleagues today, because I live in California, I was just told that I can no longer hold a paid position with SB Nation.” [Rebecca Lawson, Mavs Moneyball; Whitson Gordon thread on Twitter] “Separately, there’s some bit of irony in the fact that just a few months ago, Vox itself had a headline celebrating AB5 calling it a ‘victory for workers everywhere.’ Except, I guess, the freelancers who worked for Vox.” [Mike Masnick, Techdirt] “These were never good jobs,” claims the measure’s sponsor, Assemblywoman Lorena Gonzalez (D-San Diego), but lots of freelancers have made clear they disagree [Billy Binion] “Mainstream politicians and pundits love to cite ‘unintended consequences’ when their preferred policies cause harm in the exact ways libertarians said they would.” [Elizabeth Nolan Brown, earlier]
More: impacts on music, theater, and the performing arts make AB5 a creative-unfriendly law [Joshua Kosman and Carolyn Said, San Francisco Chronicle]
Medical roundup
- Radiologist Saurabh Jha had me on his popular podcast a while back to discuss the history of malpractice law. Now he’s written a substantial piece (link to article, gated) on my book The Litigation Explosion (1991) for the Journal of the American College of Radiology which has in turn touched off a discussion on professional Twitter;
- Certificate-of-need (CON) laws in 35 states allow incumbent firms to raise legal objections to entry by new competitors. Bad idea generally, and especially when the service involved is ambulances [John Stossel; Cato Daily Podcast with Caleb Brown and Larry Salzman of the Pacific Legal Foundation, which is suing to challenge Kentucky law]
- Cato’s Robert A. Levy discusses some of the common law background of tort and contract, including medical misadventure [The Bob Harden Show, radio]
- Trial lawyers trying yet again to lift California MICRA limits on medical malpractice recoveries [AP/KTLA via TortsProf] “Pennsylvania high court tosses seven-year medical malpractice limit” [Harris Meyer, Modern HealthCare via TortsProf]
- Politicized social justice curriculum reaches med school [AnneMarie Schieber, Martin Center]
- No repeal of Feres doctrine, but administrative claim fund could bypass: “Military medical malpractice victims could see payouts from Defense Department under new compromise” [Leo Shane III, Military Times]
Merry Christmas, and highlights of Overlawyered past
Merry Christmas to all! Our posts will be slowing down, though not disappearing, over the next week or so. You can read some highlights from past Overlawyered coverage of the holiday here.
Law enforcement for profit roundup
- “A Louisiana DA will let you out of your community service obligation — if you donate to his nonprofit” [Radley Balko; Calcasieu Parish, La.]
- New study of law enforcement fines and fees finds they bear more heavily on rural residents and have high costs of collection. Also makes a case for periodic forgiveness of mostly-uncollectible balances of old debt [Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen, and Noah Atchison, Brennan Center/Texas Public Policy Foundation/Right on Crime]
- Oakland County, Mich. “Says Seizing Home Over $8.41 Tax Debt Was OK Because Counties Need Money” [Eric Boehm, Reason first and second posts] “The Unsung Scourge of Home Equity Theft” [Cato podcast with Christina Martin and Caleb Brown]
- Georgia: “Doraville Homeowners Win Round One in Lawsuit Challenging City’s Overzealous Ticketing Scheme” [J. Justin Wilson, Institute for Justice]
- Here’s a revisionist (though only partly so) account of the Luzerne County, Pa. cash-for-kids judicial scandal, to which we devoted multiple posts at the time [Roger DuPuis, Wilkes-Barre Times Leader]
- “Forty-four states have policies of suspending driver’s licenses over unpaid fines, fees or court debts.” Time to rethink [Jenny Kim, WSJ/Koch]
They’re doing it wrong
Lawyers in suits and ties ransacked the Punjab Institute of Cardiology in Lahore, Pakistan, “beating up staff and smashing equipment…. The lawyers had been protesting over the alleged mistreatment of some of their colleagues by hospital staff last month. But the final trigger for the violence appears to have been a video posted on social media by a doctor on Tuesday night in which he poked fun at the lawyers.” Three patients died during the riot as medical staff could not care for them. [BBC]
“Roundup suit lawyer accused of $200 million extortion plot”
“Law enforcement officials have arrested a Virginia lawyer involved in litigation over the health risks of Monsanto’s Roundup weed killer product, with prosecutors accusing him of trying to extort an unnamed company into a $200 million consulting fee with his legal firm.” The lawyer in question represented a former school groundskeeper who won a $289 million lawsuit against Monsanto last year, despite grave scientific doubts about whether glyphosate causes the harms alleged [Khristopher J. Brooks, CBS News, earlier on these cases] Related: U.S. Department of Justice release; Alex Berezow, American Council on Science and Health.
Campus climate roundup
- As part of “human rights capstone project” Yale student disrupts professors deemed not progressive enough, including law school’s estimable Akhil Amar. Time for the university to reaffirm the Woodward Report and intellectual freedom [Yale Daily News: Audrey Steinkamp, Matt Kristoffersen followup]
- “The foundational claim leveled by anti-racism protestors is that violence is ubiquitous on campus…. Violence is not meant to be taken metaphorically…. Threats to life are now commonplace accusations.” [Darel E. Paul, Areo] “What is the difference between firing tenured professors and removing them from required classes?” [Jonathan Adler]
- “Faculty at universities across the country are facing an echo of the loyalty oath, a mandatory ‘Diversity Statement’ for job applicants…. in reality it’s a political test, and it’s a political test with teeth.” [Abigail Thompson, Notices of the American Mathematical Society via Colleen Flaherty, Inside Higher Ed and thence via Bainbridge; more, Jerry Coyne and Joel Fish thread with background on new UC centralized hiring procedures; earlier and more on mandatory diversity statements]
- Not at all scary or authoritarian for rightists discontented with the political tenor of academia to call for seizing university endowments [for instance, more, a sampling of chatter on Twitter]
- Emphasis on writing quality and rigor in coursework decried as instruments of European supremacy [Arnold Kling] California Assembly passes bill requiring all undergrads to take ethnic studies course before graduating [Tony Lima critique]
- Urban Institute report claims higher education has seen rightward political shift. Really? [Phillip W. Magness, American Institute for Economic Research with a skeptical look]
The seamy side of the recovery industry — and how the law enables it
Lengthy exposé of abuses and money-chasing in the drug- and alcohol-recovery industry has many angles, some relating to the legal environment in which the abuses arise: “We kept hearing about people with substance-use disorder being exploited by bad actors who take advantage of well-intended federal laws, like the Americans with Disabilities Act and the Affordable Care Act, and that they keep them in an endless pattern of relapse to siphon off their insurance benefits.” [Colton Wooten, The New Yorker]