- Lenawee County, Mich. authorities have posted condemnation notices on Old Order Amish farmhouses over their use of outhouses rather than modern septic systems as required by code. Dispute now heading for court [Tom Henry, Toledo Blade]
- Baltimore Mayor Young promotes white-van-abduction urban legends, police misconduct transparency, Montgomery County is watching drivers and more in my latest Maryland policy roundup [Free State Notes]
- Following outcry from activists, Facebook disables as misleading ads some trial lawyer ads soliciting plaintiffs to sue over purported side effects of HIV prevention drugs [Tony Romm, Washington Post/Toronto Star, Peter Lawrence Kane, The Guardian, WTHR]
- From Lowering the Bar, legal things that actually did happen in 2019;
- 20 years ago I warned that by trying to dictate employers’ choices, a Wisconsin law might work to impede convict re-entry into the job market rather than encourage it [Reason, from its archives]
- If county and city law enforcement officials have discretion not to charge low-level drug offenders, do they also have discretion not to charge low-level gun offenders? [Cam Edwards, National Review on Virginia battle over “Second Amendment sanctuary” resolutions]
Archive for January, 2020
“Inside the Mass-Tort Machine That Powers Thousands of Roundup Lawsuits”
Eye-opening investigation by Wall Street Journal reporters of the machine that markets injury lawsuits over Bayer/Monsanto’s Roundup herbicide: “Individual plaintiffs can become commodities that are bought and sold by marketers, with prices based on demand.” [Sara Randazzo and Jacob Bunge, WSJ/Morningstar] “Misinformation about one of the safest herbicides ever produced has created a lucrative business for ambulance-chasing lawyers and NGOs—at the expense of native species.” [Ted Williams, Slate; Geoffrey Kabat/Issues in Science and Technology; earlier] The U.S. Department of Justice along with several states and California medical, dental, and hospital associations are all supporting Bayer’s appeal of a $25 million verdict before the Ninth Circuit [Rich Peters, Legal NewsLine]
Charge-dropping, sanctuary, and the people’s voice in prosecution
If county and city law enforcers have discretion not to charge low-level drug offenses, do they also have discretion not to charge low-level gun offenses? Cam Edwards on the Virginia battle over “Second Amendment sanctuary” resolutions [National Review].
Supreme Court roundup
- Hosanna-Tabor sequel: Court agrees to review Ninth Circuit decisions taking narrow view of “ministerial exception,” which restricts court review of some decisions by religious employers [SCOTUSBlog, Eric Rassbach; Joseph Cosby on Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel]
- Once again the Court is being asked to green-light open-ended claims of disparate impact liability in mortgage lending. Proximate cause principles offer a way to hold the line [Ilya Shapiro, Trevor Burrus, and Sam Spiegelman on Cato amicus in Bank of America v. Miami]
- Article I, Section 3 of the Constitution provides that the Chief Justice shall preside over an impeachment trial of the President in the Senate. Should it wish, however, the Senate will have wide latitude to overrule Roberts’s rulings [John Kruzel, The Hill]
- Regulatory agencies whose officials are unremovable amount to an unaccountable fourth (or fifth?) branch of government [Ilya Shapiro and James Knight on Cato amicus brief in Seila Law v. CFPB]
- Comcast Corp. v. National Association of African American-Owned Media, argued before the Court Nov. 13, originally appeared to hinge on the Ninth Circuit’s adopting a looser standard for allegations of race discrimination in contracting than did other circuits; as it has evolved, however, it may be decided on questions of pleading [Washington Legal Foundation and more from WLF’s Richard Samp, ABA Journal; Dominic Patten and Mike Fleming Jr., Deadline on underlying dispute; Howard Wasserman and followup]
- Nearly two years after joining the Court, Justice Neil Gorsuch now has a track record [Jacob Sullum, Michael Greve] Gorsuch may be joining Thomas in the position that a federal agency’s considered decision *not* to regulate should not be interpreted to pre-empt state regulatory power [James Beck on concurrence in Lipschultz v. Charter Advanced Services (MN), LLC]
“Woman Upset She Didn’t Lose Weight Loses ‘Diet’ Dr Pepper Lawsuit Appeal”
The Ninth Circuit has “refused to reinstate a class-action lawsuit by a woman who argued that the makers of Diet Dr Pepper committed fraud.” “No reasonable consumer would assume that Diet Dr Pepper’s use of the term ‘diet’ promises weight loss or management,” wrote Judge Jay Bybee. The unanimous three-judge panel also declined to accept of lawyers for named plaintiff Shana Becerra that the depiction of “attractive, fit models in the ads implies that Diet Dr Pepper will help its consumers achieve those bodies.” [AP/NBC Los Angeles; opinion in Becerra v. Dr Pepper/SevenUp at Court Listener]
Also: “Woman sues Blue Buffalo dog food company for making her pooch fat” [Emily Saul, New York Post]
Ted Frank reviews “A Conservative Case for Class Actions”
Brian Fitzpatrick’s new book A Conservative Case for Class Actions isn’t particularly conservative in its recommendations, and is based on a faulty premise as to the business model of the class action as currently pursued in American courts, writes Ted Frank [National Review]
Banking and finance roundup
- Senator Elizabeth Warren and her Accountable Capitalism Act represent an attempt to revive a theory of the corporation that fell out of favor long ago, that corporate status is a grant of favor in exchange for which the state may demand services or cooperation [Abdurrahman Kayiklik, Columbia Law School Blue Sky Blog; earlier with links to Warren on corporate governance and other topics]
- Bill in Congress would enlist banks in watching gun sales [Robert VerBruggen/NRO; Noah Shepardson, Reason] NRA, in litigation, contends it has evidence New York state officials negotiated with U.K.’s Lloyds to curtail insurance availability in a way specifically targeted at the association [Stephen Gutowski thread]
- “The Misguided Quest to Limit Choice in Consumer Credit” [Diego Zuluaga]
- “The CFPB and Payday Lending Regulations” [Peter Van Doren last February; earlier on payday lending; Federalist Society Regulatory Transparency Project video on regulation-through-investigation of payday lenders with Jamie Fulmer, Chris Peterson, and Brian Knight]
- Federalist Society podcast on Community Reinvestment Act with Aaron Klein and Diego Zuluaga;
- Learned a new word, lutulent, which means “muddy, turbid, thick” and is more or less the opposite of luculent (“lucid, clear, transparent”) [Keith Paul Bishop on unclarities in new California law requiring gender quotas on boards (“a lutulent mess”); earlier here, etc.]
Doe v. Mckesson: liability for foreseeable injury from unlawful protest
Racial activist Deray Mckesson led a Black Lives Matter demonstration in Baton Rouge, Louisiana that illegally occupied a roadway; in the ensuing confrontations, an unidentified person threw a missile that seriously injured a police officer. Can the officer sue Mckesson for lawbreaking acts that foreseeably created dangerous conditions that led to his injury?
In August a panel of the Fifth Circuit ruled unanimously that the First Amendment did not block such a suit; earlier this month the panel reissued an altered opinion after one of its members, Judge Don Willett, changed his mind and wrote a partial dissent finding Mckesson to have a First Amendment defense. [Jonathan Adler, Volokh Conspiracy] Central to the constitutional issues at play here is the 1982 case of NAACP v. Claiborne Hardware, in which a unanimous Supreme Court held that the First Amendment can bar the imposition of civil liability on organizers of protests even when some participants commit, or threaten, acts of violence.
Eugene Volokh has now written a series of posts on the case. Part I asks: why didn’t Mckesson’s lawyers invoke doctrines precluding recovery by rescue professionals (“firefighters’ rule”) to bar the officer’s claim? Part II is on the tort law side of the case (independent of the First Amendment angle), and so far as I can see Volokh and Willett reach different conclusions. In Part III, Volokh addresses the First Amendment issues, in the light of precedents like Claiborne Hardware. While the analysis is not a simple one, Volokh is “inclined to say that the First Amendment doesn’t require” immunity for foreseeable civil harms resulting from unlawful blocking of public roads as a protest.
“What Does California’s New Data Privacy Law Mean? Nobody Agrees”
The new California law on consumer data is stringent but, as is so often the case with that state’s legislation, less than pellucidly clear [Natasha Singer, New York Times] :
“Companies have different interpretations, and depending on which lawyer they are using, they’re going to get different advice,” said Kabir Barday, the chief executive of OneTrust, a privacy management software service that has worked with more than 4,000 companies to prepare for the law. “I’ll call it a religious war.”
The new law has national implications because many companies, like Microsoft, say they will apply their changes to all users in the United States rather than give Californians special treatment.