“Craighead County, Arkansas officials use private company to run probation for people convicted of misdemeanors. The company charges probationers monthly fees, other fees on pain of arrest, which results in more fees. (On one day in 2016, of 34 defendants brought to court, only six were charged with crimes. The remaining 28 were in jail for failing to pay the company.) Voters elect new judges who promise to cease using the company, erase outstanding debts. Company: Which violates the Contracts Clause, Takings Clause. Eighth Circuit: Can’t sue the judges over that. The judges are entitled to modify probation conditions and discharge debts.” [John Ross, Institute for Justice “Short Circuit” summarizing Eighth Circuit ruling in Justice Network v. Craighead County]
Archive for 2019
December 18 roundup
- Examples ranging from eminent domain and free speech to racial and religious discrimination contradict Attorney General’s suggestion that it’s unusual for modern courts to scrutinize motives behind government action [Milad Emam, Institute for Justice; Ilya Somin]
- Article deems it “unusual” that lawyer trying to get money out of Facebook on lurid sex-trafficking theories is a personal-injury specialist who’s pursued car-crash and insurance claims. Doesn’t take much to surprise the New York Times, does it? [Jack Nicas, New York Times]
- “We learned very quickly that it was a numbers game — the more people you come in contact with, the greater your chances of getting a gun.” How Baltimore’s Gun Trace Task Force went “hunting” among city residents [Justin Fenton, Baltimore Sun this summer, earlier]
- “Politically Incorrect Paper of the Day: The United Fruit Company was Good!” [Alex Tabarrok on Esteban Mendez-Chacon and Diana Van Patten paper]
- “I’ve often noted to people that [lawyers who] are unethical at the start of representation are not likely to be ethical later as their interests are directed to the self and not the client” [Eric Turkewitz on NYPD 911-call-injury-referral scandal, earlier]
- “The Color Magenta, Or How T-Mobile Thinks It Owns A General Color” [Timothy Geigner, TechDirt]
Talking Warren’s big antitrust plans
“Presidential candidate Elizabeth Warren wants to break up big tech firms and impose new regulation on firms with high revenues. Walter Olson discusses what that might look like in practice.” I join Caleb Brown for a Cato podcast on themes outlined in this space last week. Related: Geoffrey Manne and Alec Stapp last March on Warren’s plans for tech and antitrust (“To Warren, our most dynamic and innovative companies constitute a problem that needs solving.”)
Bonus: earlier posts on Warren and her economic plans including white-collar prosecution, exit tax, regulation of private equity, and corporate governance first, second, third posts as well as political spending and labor co-determination.
The downfall of #ExxonKnew
It was a hashtag prosecution, a social media campaign posing as a legal case: #ExxonKnew. And like yesterday’s media balloon become today’s litter, its deflated remains floated back down to earth last week in a New York courtroom.
National Review asked me to write a longer piece on last week’s Exxon acquittal (earlier, and previously):
In a 2003 case called Nike v. Kasky, no less a liberal authority than Supreme Court Justice Stephen Breyer warned that it was dangerous to freedom of speech to arm ideological adversaries with legal power to bring fraud charges against businesses based on those businesses’ public statements about contentious issues….
In his full, scathing opinion, Judge Ostrager rejected each of the state’s themes. “ExxonMobil’s public disclosures were not misleading.”…
New York’s prosecution of Exxon — a legal vendetta against a target chosen for essentially political reasons — deserves to be studied in law schools for years to come. But not for the reasons its authors once hoped.
Whole thing here.
Free speech roundup
- A new law making it a federal crime to threaten journalists? No thanks [Robby Soave, Reason]
- “In 2012, there was just one journalist in jail on fake-news charges. By 2014, there were eight…. The number rose to 27 in jail by the end of last year.” And the charge can depend simply on what news the ruling authority deems true or false [Miriam Berger, Washington Post discussing new Committee to Protect Journalists report on imprisoned journalists]
- Thread on the damaging impacts of COPPA, the children’s online privacy law [TechFreedom]
- When are refusals to deal protected by the First Amendment? See whether your intuitions are consistent across 1) boycotts of Israel, 2) wedding cake refusals, and 3) SCOTUS’s 1982 decision in NAACP v. Claiborne Hardware [Eugene Volokh first and second posts on Arkansas challenge, David Bernstein first and second posts] My own views on anti-Israel-boycott and anti-BDS laws here, and related;
- Officials in Lafayette County, Wisconsin quickly back off “completely bananas” suggestion of prosecuting news outlets that report “selectively” on water quality test results [Bruce Vielmetti, Milwaukee Journal-Sentinel, Patrick Marley update]
- Some IP claims are real killers: heirs of photographer known for famed Che Guevara image send takedown demand to maker of parody t-shirt [Paul Alan Levy]
Portland could require stores to provide outside space for homeless
Triple-distilled madness to outrun most any Portlandia script: “If a majority of the Portland Planning and Sustainability Commission has its way, new private buildings downtown will be required to include spaces where houseless Portlanders can ‘rest,’ which could include sleeping and pitching tents.” [Nigel Jaquiss, Willamette Week]
Exxon beats the New York rap
“If a state like New York can bend and twist legal concepts like that of securities fraud to carry on an essentially political vendetta against a corporate enemy, how safe are other businesses?” My new Cato post reports on a judge’s scathing rejection of a case that should never have been brought, the New York Attorney General’s attempt to hang fraud charges on Exxon over its statements on climate change.
Liability roundup
- U.S. Chamber’s annual lawsuit climate survey ranks Illinois as nation’s worst this year [Institute for Legal Reform]
- Withholding material helpful to the defense: “Time for a Brady-type disclosure requirement for federal government in False Claims Act litigation” [Stephen A. Wood, Washington Legal Foundation]
- “Both sides need to learn that frequently the best response to immature behavior is to ignore it. Don’t react, don’t sink to the other side’s level, don’t try to fight fire with fire.” Advice from a federal judge to the lawyers in a Florida case [Eugene Volokh; Doscher v. Apologetics Afield, Inc.]
- Expert witness follies: litigation funders are filling the old tort lawyer role of bankrolling dodgy research on which future litigation campaigns can be based [Jim Beck]
- Back in July I linked a grim assessment of Pennsylvania’s Oberdorf v. Amazon decision expanding product liability for retail platforms. Here’s a less grim one that came out around the same time [Gus Hurwitz, Truth on the Market]
- By South Florida standards, those $1 million lawsuit fraud charges against an ADA lawyer the other day aren’t especially big; last year feds shut down an auto-claims ring they said cleared $23 million and involved “chiropractors, attorneys, clinic owners and tow-truck drivers.” [Paula McMahon, South Florida Sun-Sentinel; Insurance Fraud Hall of Shame]
Destructive rights of student inclusion
If you have wondered how the Parkland killer could have asserted a legal right to be “mainstreamed” into Marjory Stoneman Douglas High School despite a long history of violent tendencies, this investigation by the local newspaper may provide your answer.
In an eight-month investigation, the South Florida Sun Sentinel found that a sweeping push for “inclusion” enables unstable children to attend regular classes even though school districts severely lack the support staff to manage them. … Even threatening to shoot classmates is not a lawful reason to expel the child….
“It’s just a no-win scenario right now,” said attorney Julie Weatherly, of Mobile, Alabama, who advises school districts on the legal complexities of removing aggressive students when they have a disability. “Nobody wants a Parkland, of course. It’s this huge nightmare.”
Aside from IDEA, the federal disabled-rights-in-school laws, and its sometimes even more stringent state counterparts, federal education privacy laws are involved as well. A Broward County teacher chose to break the rules after an elementary student “obsessed” over a girl, tormented her if she withheld attention, and on being removed from the classroom one day cried and screamed her name while throwing himself against a door:
The girl’s mother had no idea her daughter was being terrorized. Because of the student’s federally protected privacy rights, Budrewicz’s bosses cautioned her not to tell the mother — a warning she ultimately defied. The mom cried and thanked her and removed her daughter from the class the next day, she said.
[Brittany Wallman and Megan O’Matz, South Florida Sun-Sentinel; earlier here and here]
Appeals court strikes down Maryland law regulating online political ads
I’m in the Baltimore Sun discussing a bad Maryland law passed in response to the furor over Russian trolling on social media. I wrote about it earlier when a federal district court struck the law down, and now a Fourth Circuit panel, in an opinion by Judge J. Harvie Wilkinson, has agreed that it is unconstitutional. Excerpt:
Exposing foreign governments’ meddling in U.S. politics is a worthy goal. Infringing on First Amendment freedoms is no way to go about it….
[After the law passed] Google immediately stopped hosting political ads in Maryland, a step particularly unhelpful to newcomer candidates, for whom advertising may be one of the few effective ways to boost name recognition. Other platforms, including some Maryland newspapers, also faced a tough position as the effective date of the law drew near. Rather than publish disclosures that might expose to competitors’ eyes confidential information about their ad rates and viewer reach, they might prefer just to immunize themselves by turning down political and issue ads in the future as a category.