- Class actions: “How to pick lead counsel, Judge Alsup-style” [Alison Frankel, Reuters]
- Foiled by video: “N.J. man busted staging slip-and-fall for insurance money learns his sentence” [Noah Cohen, NJ Advance Media]
- More on the “reptile theory” of jury persuasion [Drug and Device Law: Stephen McConnell, more from James Beck; earlier here, here, etc.]
- Trial lawyer consultants are sticking with their story that Toyotas are subject to electronically induced sudden acceleration that cannot be overcome by the brakes, and the Fair Warning website is not the place to expect a skeptical reaction to that [Amy Martyn, Fair Warning, our coverage]
- Arbitration-killing bill: so-called FAIR Act is trial bar top priority in Congress [Phil Goldberg, Washington Examiner]
- “Can a new study solve Johnson & Johnson’s talc problem?” [Chuck Dinerstein, American Council on Science and Health]
Archive for January, 2020
The Equal Rights Amendment expired. Can it be revived?
Lawmakers in both houses of the Virginia legislature have approved resolutions endorsing the Equal Rights Amendment, a measure proposed by Congress in 1972. An Associated Press story, in line with proponents’ characterization, describes the actions in Richmond as a “ratification,” as “final,” and as making Virginia “the critical 38th state.” Is that the case?
Virginia legislators, waving coupon that expired more than 30 years ago: I think this is still valid and I want to speak to the manager [@kewhittington] https://t.co/CJ505sLfoq
— Walter Olson (@walterolson) January 17, 2020
The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. [Keith Whittington] The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.'”
Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval. The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, confirms that Congress did not act unconstitutionally in prescribing a time limit. [more: Michael Stokes Paulsen, Yale Law Journal, 1993]
The result before long could be a face-off in which advocates claim the ERA has been duly adopted as the 28th Amendment to the Constitution, while others say it hasn’t. [Mike Rappaport, Law and Liberty]
More: If you accept some ERA proponents’ theory that time limits don’t apply *and* that states can never rescind, then — surprise! — we may already be over the required number of states to require Congress to call a balanced budget constitutional convention [Josh Blackman]
“Punching down at dead cartoonists”
Five years have passed since the Charlie Hebdo massacre in Paris. Has anything been learned? [Jacob Siegel, Tablet; our earlier coverage]
January 29 roundup
- Authorities arrested man who stood in front of courthouse passing out leaflets encouraging jury nullification. Michigan Supreme Court should uphold his First Amendment rights [Clark Neily and Jay Schweikert on Cato Institute brief in Michigan v. Wood, earlier here, here, and here]
- Also on the topic of jury nullification, is that an appropriate metaphor for things happening with the Senate and impeachment? [Jim Galloway, Atlanta Journal-Constitution, quotes me]
- In 2018 an Eleventh Circuit panel green-lighted a suit claiming that it was unconstitutional for Alabama to enact a law pre-empting Birmingham’s local enactment of a higher minimum wage, on the claim that the white-led state lawmaking majority had acted with the purpose and effect of injuring African-Americans, who (it was argued) were more likely to be beneficiaries of the wage mandate. Now the full circuit en banc (over a dissent) has dismissed the case on standing grounds without deciding whether disparate racial impact can taint otherwise neutral laws [Lewis v. Governor of Alabama]
- New California law CCPA, promoted as giving consumers the right to see and delete their data, results in users being required to yield up more data and creates new security risks [Kashmir Hill, New York Times via Gus Hurwitz (“anyone who didn’t see this coming shouldn’t be in the business of writing laws”)]
- Wasatch Brewery’s Polygamy Porter (“take some home to the wives”) is deemed okay by regulators in its own state of Utah, but is too naughty for their counterparts in North Carolina [Hayley Fowler, Charlotte Observer]
- Symposium on “The Politicization of Antitrust” with Luigi Zingales, Alec Stapp, and others [Truth on the Market] And “The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals” with Makam Delrahim, Maureen Ohlhausen and others [Federalist Society National Lawyers Convention]
“The first portion of the rule would impose a duty on all attorneys to promote diversity and inclusion.”
Josh Blackman spots an article in the ABA Journal proposing a new ABA Model Rule 8.5 that would declare it “a lawyer’s professional responsibility to promote equality in society generally, diversity in the legal profession specifically, and encourage lawyers to devote 20 hours annually to activities directed toward promoting diversity in the profession.” Blackman writes:
The [proposed] Rule adopts a specific philosophical viewpoint–promoting diversity and inclusion–and makes it the orthodoxy for attorneys. Under this proposed rule, those who do not adopt that philosophy will be violating a “duty” and “ethical obligation.” Those who choose not to attend certain CLE classes would now be disregarding an aspirational goal….
Not every attorney agrees that “every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.” Far too many attorneys–especially academics–take this statement as an unassailable fact of life. It’s not.
Bar associations exist to promote and regulate the legal profession. They do not exist to promote specific ideologies.
Compare ABA Model Rule 8.4(g), which Blackman and many others have argued is a step toward an unconstitutional speech code for attorneys, and the mandatory statements of support for diversity, equity and inclusion in the University of California system and elsewhere in higher education.
“Great news: someone is reining in the IRB”
Institutional Review Boards (IRBs), which oversee the ethics of human subjects research, have long come under criticism for applying to social science inquiry a range of restrictive oversight practices better suited to medical experimentation [Zachary Schrag on a 2017 effort to prune back the rules] Now Omri Ben-Shahar at Regulatory Review reports on an experiment at the University of Chicago:
It is widely recognized that IRBs have exercised “mission creep,” continuously expanding the de facto scope of their oversight. Some might describe this trajectory charitably as the advance of ethical norms, but the cost of IRB expansion is undeniable: more burden on researchers, slowdown of research, fewer studies, and inevitably less progress.
Can this burden be reduced without increasing risks to subjects? The University of Chicago is about to launch a pilot reform to test this question. The reform will address the great majority of social science experiments that are classified as minimum risk—by my own count well over 95 percent of the protocols received by the social science IRBs are treated as either “exempt” or “expedited.”
The reform is propelled by a simple premise: Instead of applying for IRB approval, researchers would self-determine that their studies are low-risk and launch them without IRB review.
This reform is entirely in line with the law.
More from Adam Chilton (including headline above). Related, Australia [Paul Oslington, Quillette]
Gig/freelancer economy roundup
More on the chaotic, destructive effects of California’s AB5 (earlier here, here, etc.):
- “Non-equity theaters, music venues and jazz clubs, dance companies, small cultural festivals of all types face very real threats” [Brendan Rawson, Cal Matters] Translators and interpreters hard hit by law [Dan Plante, KUSI]
- Women-owned businesses “reeling” [Elaine Pofeldt, Forbes] Disabled workers “hugely impacted” [Markos Moulitsas, Daily Kos]
- California Assemblyman Kevin Kiley (R-Granite Bay) has asked members of the public for their stories about how AB5 has affected them. You can see the results here;
- “Ready, Fire, Aim: How State Regulators Are Threatening the Gig Economy and Millions of Workers and Consumers” [U.S. Chamber Employment Policy Division]
- “The New York Times is hiring a contractor to write about California real estate, but because of AB5 they will not be hiring anyone in California.” [Emma Gallegos on Twitter]
- Not an isolated outrage: union allies nearly got such a bill passed in New Jersey in recent weeks [Alida Kass, Star-Ledger; Jen Singer, Philadelphia Inquirer] New York’s Gov. Andrew Cuomo has now signaled support for something similar [Evie Fordham, Fox Business] And backers want to take the idea national through a bill called the PRO Act, or HR2474/S1306, in the U.S. Congress [Kim Kavin, Daily Kos; Markos Moulitsas, Daily Kos]
Panel wants to ban judges from membership in Federalist Society
“The Wall Street Journal reports that the Judicial Conference is thinking of prohibiting judges from being members of the Federalist Society. It’s too political — or so the Judicial Conference believes.
“If the Judicial Conference does ban judges from being members of the Federalist Society, it will need to do the same for the ABA. Unlike the Federalist Society, which takes no stand on any legal or political issue, the ABA weighs in on countless issues… [and] files amicus curiae briefs before the Supreme Court, again with a consistent slant to the left. The long march through the institutions infiltrated the ABA long ago.
“Similarly, membership in ‘affinity bar associations’ like the National Hispanic Bar Association and the National Bar Association (which is for African American lawyers), and the National Association of Women Lawyers will need to be prohibited. Those left-leaning organizations routinely take stands on controversial issues and file amicus briefs. The Federalist Society never does and never will.” [Gail Heriot; Wall Street Journal editorial board; earlier on Federalist Society and its critics here, here, etc.]
Rep. Tulsi Gabbard, Lawrence Lessig file defamation suits
“Democratic presidential candidate Rep. Tulsi Gabbard filed a defamation lawsuit Wednesday against Hillary Clinton seeking $50 million in damages, claiming the former Democratic presidential nominee ‘carelessly and recklessly impugned’ her reputation when she suggested in October that one of the 2020 Democratic candidates is ‘the favorite of the Russians.'” [Erik Ortiz, NBC News; Jonathan Adler (“quite skeptical” as to “whether the suit gets anywhere on the merits”); Christian Britschgi, Reason; text of complaint; Popehat] Related update, March: judge tosses Gabbard’s separate case against Google.
Harvard law professor and political activist Lawrence Lessig, who ran for the Democratic presidential nomination but withdrew before the primaries, “has filed a defamation lawsuit against the NY Times, its executive Editor Dean Baquet, its Business Editor Ellen Pollock, and reporter Nellie Bowles. Lessig is upset about the way some blog posts he made were portrayed by the NY Times…. saying this is his attack on what he calls ‘clickbait defamation.'” [Mike Masnick, TechDirt]
Pharmaceutical roundup
- “A federal judge has ordered the nation’s leading pharmacy chains to turn over billions of nationwide prescription records going back 14 years – even as the American Civil Liberties Union and some states attack similar requests by the government as overbroad and an invasion of privacy.” [Daniel Fisher, Legal NewsLine] “Without evidence and unable to make public nuisance argument, Delaware’s opioid claims against Walgreens fail” [same] “Oklahoma Opioid Ruling: Another Instance of Improper Judicial Governance Through Public Nuisance Litigation” [Eric Lasker and Jessica Lu, Washington Legal Foundation, earlier]
- “Merck v. HHS tests the limits of the federal government’s ability to control and compel commercial speech” [Ilya Shapiro and Dennis Garcia on Cato amicus brief in D.C. Circuit raising First Amendment issues]
- Let’s try correcting the New York Times on drug pricing. Where to begin? [Molly Ratty, Popehat]
- “Court Strikes Down NECC Convictions [New England Compounding Center] for Vagueness” [Stephen McConnell, Drug & Device Law]
- Defense perspective: the ten worst and best prescription drug and medical device decisions of 2019 [Jim Beck, Drug & Device Law]
- “If there are people out there with no options and they have terrible diseases, we are going to get those drugs to them as fast as feasible.” FDA approving potential breakthrough drugs more speedily [Michelle Fay Cortez and Cristin Flanagan, Bloomberg/MSN; related, Alex Tabarrok]