Archive for April, 2020

Bad ideas in our time: emergency merger moratorium

I’m quoted in Jack Arnholz’s report for ABC News on some of the problems with a very bad new scheme from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez for a ban on corporate mergers . Excerpt:

“A bill like this would harm the economy in general. It would in particular threaten workers, consumers, investors and those affected by the coronavirus,” Walter Olson, a senior fellow at the Cato Institute, told ABC News.

“In crisis conditions especially, mergers are a way for companies with a relevant strength, such as a strong balance sheet or superior distribution channels, to combine with others that may be weaker yet have vital assets such as promising research, a loyal consumer base, or a superior product line. If mergers are blocked, some weaker, yet valuable companies, will flounder, discontinue research, furlough workers or even enter bankruptcy,” he added.

Despite its prominent sponsors, the proposal is unlikely to pass a Republican-controlled Senate and White House. Olson said that the possibility the bill becomes law is unlikely.

“This bill is an exercise in political symbolism, not the way an advanced democratic country should approach antitrust policy. It’s the equivalent of a Trump tweet — it lets off steam, everyone can take sides, and it allows momentary domination of a not especially meaningful conversation until everyone moves on to the next,” Olson said.

Mergers are also a main means by which successful tech startups hit the mainstream and win wide distribution for their products; absent the prospect of being able to exit this way, fewer funders and principals will be interested in going the startup route.

Targets of fake subpoenas can sue Louisiana D.A., underlings

“A federal appellate court … ruled that a Louisiana district attorney and several prosecutors in his office violated the law by using fake ‘subpoenas’ to pressure the victims and witnesses of crimes to meet with them, finding that the attorneys were not entitled to “absolute immunity” from legal liability.” [Jerry Lambe, Law and Crime; earlier (“Even though the subpoenas were unlawful, he really did jail people who didn’t obey them.”)]

COVID-19 pandemic roundup

  • As country eyes path to reopening, restart of non-COVID-19 medical care, including postponed surgeries, is desperately needed [Hans Bader, James Bacon (Virginia governor’s “statewide ban on elective surgery is a sledgehammer which may be appropriate for the hardest-hit parts of the state but is wildly inappropriate for others.”]
  • Michigan’s Gov. Whitmer rolls back some of the more arbitrary and controversial restrictions in her stay-at-home order [Billy Binion, Reason]
  • Tech firms among the first to respond when the virus appeared here: “So, the approximate order of events was: private sector response, then local government response in the west, then response in the east and by the Federal government.” [Arnold Kling]
  • We previously linked our Cato online panel on the pandemic and the Constitution; now our friends at Competitive Enterprise Institute have written a very nice review and summary of it [Richard Morrison, CEI]
  • Especially given its conduct during this outbreak, expenditures on the World Health Organization deserve top-to-bottom reevaluation [Lyman Stone, The Dispatch; Anish Koka]
  • “COVID-19 Exposes the Shallowness of Our Privacy Theories” [Jane Bambauer, Truth on the Market]

Small business could use some advance funding. Too bad gift cards are a legal mess.

Gift cards make a nice way to support your favorite business during the pandemic shutdown. They also make a compliance trap that can mire that same business in years of expensive hassle. My new piece at Reason explores the many legal exposures, from ADA lawsuits over lack of Braille translation to class actions over fine print and even exposure to money-laundering liability.

One durable problem, in some states at least, is state unclaimed-property law. Thinking of tossing a gift card into a drawer and never using it, as a kind of tip to an enterprise that’s brought you happiness over the years? Depending on what state you live in, you might actually be tipping your state tax authorities, and laying only future legal hassle on the merchant you wanted to help. I’ve covered state unclaimed-property law both here and at Cato. (More on its intersection with gift cards: Michael Waters, The Atlantic last fall.)

Delaware’s ambitious claims over unclaimed property have resulted in pitched courtroom battles for years, only a portion of which has been over gift cards specifically. Last year a jury awarded the state more than $7 million in a triple-damage unused gift card proceeding against just one national retailer, Overstock.com.

The Blue Hen State had to rewrite its unclaimed property law after a 2016 ruling by a federal court found its existing law a violation of due process and concluded that Delaware authorities had “engaged in a game of ‘gotcha’ that shocks the conscience.” The replacement law, which explicitly lays out a claim to gift cards rather than relying on older and more uncertain language, doesn’t have a long track record yet.

“Russian roulette” in nursing home placements

State authorities in New York, New Jersey, and California direct nursing homes to take in COVID-19 patients, even if they’ve otherwise managed to keep the virus out. Connecticut and Massachusetts instead designate some facilities as being for patients with the novel virus. At least one group of states, it would seem, is making a mistake [Kim Barker and Amy Julia Harris, New York Times; Bernadette Hogan and Bruce Golding, New York Post]

Schools roundup

Religious liberty and public health orders

“History buffs may recall that the first Free Exercise Clause case in Supreme Court history, in 1845, involved the prohibition of open-coffin funeral services in a New Orleans church during a yellow fever outbreak.” Any piece from Prof. Mike McConnell on religious liberty is likely to be worth reading and this is no exception (with Max Raskin) [New York Times, though I’m not fond of the clickbait-y headline]

Several courts have already heard challenges to governors’ and mayors’ closing and assembly orders; churches have won rulings in Louisville, Kentucky (strongly worded federal court opinion; case then settled; mayor says police will take down license plates of Easter churchgoers) and Kansas (analysis by Stuart Levine), while states have won rulings in New Hampshire (no evidence that ban on gatherings of 50 or more people “intended to target any religion or specific religious practice”) and New Mexico. More: Bonnie Kristian, Christianity Today; and here is a website on religion, law, and the COVID-19 emergency.

Occupational licensure roundup