Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2020

Federalism comes through on virus response

I’m in the Wall Street Journal today with this paywalled piece on the triumph of federalism on pandemic response: would-be modernizers aren’t scoffing at state government any more, as governors lead the way.

The piece briefly mentions that after surviving yellow fever Alexander Hamilton and his wife Eliza underwent quarantine in the Schuyler Mansion on the order of Albany officials. That was a fun one to research. The essentials are found briefly stated in item number 10 of this list or in this longer narrative. Hamilton wrote a letter griping about the conditions of his confinement. And this article recounts how after the yellow fever outbreak of 1793, Congress expanded the federal government’s role in epidemic response, seen as a helper to the states.

More: responsive thoughts on federalism and the virus emergency from Ilya Somin.

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Disabled advocates: no teaching new content to at-home students

Some disabled rights advocates say until schools can adapt online lessons to assist every special ed kid, schools should not be allowed to use remote learning to finish this year’s curriculum. Fortunately, Education Secretary Betsy DeVos said no to that bit of zealotry — even if it did carry the day in school systems like Chicago’s. My new Cato post argues that the advancement of the student body as a whole should not be held hostage to anti-discrimination principles.

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From the FedSoc archives: “The Death of Contract and the Rise of Tort”

What good is sitting alone in your room without catching up on your video watching? This newly released panel discussion from the 1991 (!) Federalist Society National Lawyers Convention tackles the then-afoot trend to diminish the domain of traditional principles of contract in favor of prescribed duties under tort law, a trend I had discussed in my book The Litigation Explosion in that year. That particular trend, like some of the others I criticized, was to turn around in later years; contract did not die and in fact came back strong as it remains today.

It was quite a line-up that day:

Featuring:

Walter Olson, Manhattan Institute
Hon. Joseph R. Grodin, University of California Hastings College of Law and former Associate Justice, California Supreme Court
Prof. Randy E. Barnett, Chicago-Kent College of Law
Prof. E. Allan Farnsworth, Columbia Law School
Moderator: Hon. Robert Bork, American Enterprise Institute and former Supreme Court nominee

A direct YouTube link is here.

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From prison, Tiger King star seeks $94 million

The former owner of a roadside exotic-animal zoo, currently serving a 22 year prison sentence after being found guilty of a murder-for-hire plot targeting an animal rights activist as well as other violations of law, is now suing the federal Interior Department and Wildlife Service as well as other persons involved in the case. The details of his claims are, well, exotic [Zoe Shenton, Cosmopolitan]

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COVID-19 pandemic roundup

  • Bonfire of the regulations, continued: feds and states ditch trucking rules to keep the deliveries rolling [Christian Britschgi, earlier on bonfire of the regs]
  • Poll finds U.S. public approving extraordinarily coercive measures to combat epidemic, in many cases with little if any gap between parties [Adam Chilton, Summary, Judgment]
  • Could the emergency spur a shift to online video notarization, already authorized in 10 states? [Eugene Volokh]
  • “It must really be the apocalypse if the state of Oregon is letting drivers fill their own tanks. My favorite moment in this FAQ: ‘How will I know how to pump my own gas?'” [Jesse Walker linking Eugene Register-Guard]
  • Legal resources related to the crisis, from the UCLA law library;
  • Eggs in one basket: tsunami of unemployment claims should force rethink of monopoly state fund idea practiced by four states (Washington, Ohio, North Dakota, Wyoming) [Ray Lehmann, R Street Institute]

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Don’t deprecate off-label drug prescribing

Is it questionable and suspicious for doctors to administer a medication that has not been proved effective for the use in question? Nope. It’s perfectly normal. I explain “off-label prescribing” in a new opinion piece at the Washington Examiner, the news hook being the recent flap about chloroquine/hydroxychloroquine as possible treatments for COVID-19. A related Twitter thread is here as well as here, and here’s our earlier coverage of off-label prescribing.

Also related, this recent line from Scott Alexander is so apt: “Just like the legal term for ‘not proven guilty beyond a reasonable doubt’ is ‘not guilty’, the medical communication term for ‘not proven effective beyond a reasonable doubt’ is ‘not effective'”.

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Medical roundup

  • Telemedicine has become a crucial tool during the crisis. 2017 paper discusses the regulatory barriers that had constrained it [Shirley Svorny, Cato Policy Analysis; earlier here, here, and here]
  • “Wondered why it’s been so hard to ramp up production of surgical masks and respirators? Why haven’t private companies flooded into the market to meet peak demand? Because they are regulated medical devices and new versions require FDA approval which can take months to obtain.” [Paul Matzko thread on Twitter]
  • Asking former health care workers to “dust off their scrubs” and return for the emergency raises possible liability exposures [Lori Rosen Semlies, Wilson Elser] “Coronavirus could affect med mal rates: Experts” [Judy Greenwald, Business Insurance]
  • A closer look at certificate of need laws, which suppress hospital bed supply [Eric Boehm, related audio clip with Jeffrey Singer, earlier and more]
  • More on the relaxation of occupational licensure in medical jobs during the emergency [Michael Abramowicz, Jeffrey Singer, earlier]
  • Return with us now to those days not so long ago when public health specialists seemed to be in the paper every day inveighing against alcohol, dietary choices, and such like [Elaine Ruth Fletcher, Health Policy Watch last year on World Health Organization (WHO) rumblings against alcohol; JAMA on furious fight over red-meat recommendations]

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Intellectual property law roundup

  • The ethics (and law) of emergencies: heroic efforts to shore up medical equipment on the run, such as using 3-D printing to supply a missing ventilator valve in an Italian hospital, can run into knotty problems of IP rights [Jay Peters, The Verge]
  • “Plaintiff recognizes that the community is in the midst of a ‘coronavirus pandemic.’ But Plaintiff argues that it will suffer an ‘irreparable injury’ if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves…. The world is facing a real emergency. Plaintiff is not.” [Lowering the Bar on federal Northern District of Illinois case]
  • As churches scramble to shift their worship services online, a gnawing question: are you sure you have the right to stream that song of praise? [The Gospel Coalition] Beating hasty retreat, Disney apologizes for having sought $250 licensing fine against arents at California school who’d screened “Lion King” video to entertain kids during PTA event [Nat Orenstein, Berkeleyside; Isabel McCormick, ScreenRant]
  • “It’s still early in 2020. But this is my vote for most annoying copyright complaint so far: a map (thin copyright!) shown (apparently only in passing; I haven’t watched yet) in the background of a movie that not only flopped but did so 8 years ago” [Zahr Said on coverage by Kyle Jahner, Bloomberg Law]
  • Jury awards $1 billion to music labels against cable and internet giant Cox, after claims it didn’t do enough to combat infringement by its users [Chris Eggertsen, Billboard]
  • “Newspaper Can Talk About ‘Derby Pies’ Without Infringing Trademarks–Rupp v. Courier Journal” [Eric Goldman; my Cato podcast on that subject with Caleb Brown back in 2016]
  • “Musicians Algorithmically Generate Every Possible Melody, Release Them to Public Domain” [Samantha Cole, Vice “Motherboard”]

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