Overlawyered: Chronicling The High Cost Of Our Legal System

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Ninth Circuit judge tees off on colleagues’ environmentalism

As green czars go, the powers of the Environmental Protection Agency and its administrator are at least circumscribed by law, the powers of the Ninth Circuit U.S. Court of Appeals much less so. When a majority of the circuit ruled the other day that California could not resume permitting suction panning of riverbeds for traces of gold, Judge Milan Smith Jr. along with three colleagues dissented with some asperity. “Here we go again,” he began, and went on to cite Gulliver bound by the Lilliputians. To quote the WSJ Law Blog:

No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.

“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”

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“Fan Sues Pittsburgh Penguins For Sending Him Too Many Text Messages”

It might be more accurate to identify the protagonist in this little tale as a class action law firm, rather than as a California “fan”:

Fred Weiss is the only plaintiff named in the class-action suit. In it, he claims he suffered “actual harm” because he was “subjected to the aggravation that necessarily accompanies the invasion of privacy caused by unsolicited text message calls, but also because consumers have to pay their cell phone service providers for the receipt of such wireless calls.” Weiss is bringing the suit under a federal law that prohibits unsolicited texts. …

The terms and conditions of the text program said the Pens would send no more than three messages per week for those who chose to subscribe. In his first week as a subscriber, Weiss claims the Pens sent him five texts. In the second week, Weiss says he got four.

The Edelson class-action firm of Chicago is one we have met before. [DeadSpin]

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Neiman Marcus sued in personal-shopper triangle

Luxury department store Neiman Marcus has a famously liberal returns policy, but apparently extends it only so far. A Texas woman is suing the chain alleging that she discovered that her ex was carrying on an affair with her personal shopper which, like a mini-economic-stimulus plan all in itself, resulted in $1.4 million in store purchases, with commissions going to the shopper. She says the store has declined her request to refund the money paid on the goodies and is suing [ABC News (auto-plays video); Staci Zaretsky, Above the Law]

Bloomberg’s soda grab: reactions

The NYC mayor’s plan to limit sizes of sweetened drinks meets with a hail of dead cats from commentators:

  • “Bloomberg is right when he says there will still be lots of opportunities for New Yorkers to consume large quantities of high-calorie drinks, which means he does not even have a sound paternalistic justification for his meddling. … it is patently absurd for Bloomberg to claim he is not limiting freedom when he uses force to stop people from doing something that violate no one’s rights.” [Jacob Sullum]
  • “Trans-fats –- we were told by New York City Mayor Bloomberg –- are an exceptional case because even the smallest intake hurts the human body. Ditto, it would seem, of salt and alcohol. But we all knew he wouldn’t stop there. And he didn’t.” [Stephen Richer, WLF]
  • “It’s well known, for example, that the heaviest consumers of sugary drinks are adolescent males — who also tend to be the thinnest and most active members of the population. (‘Unfortunately, increasing sugar consumption [is] unlikely to make anyone thinner, younger—or male,’ [researcher Adam] Drenowski notes.)” [“Bloomberg’s Attack On Big Soda Lacks One Thing: Scientific Evidence,” Daniel Fisher, Forbes]
  • “[Bloomberg’s] sarcasm about the inconvenience of buying two sodas is ironic, since that inconvenience is one thing that he’s counting on to drive the success of his plan.” [Mark White, Economics and Ethics]
  • “I’m afraid this proposal is targeted more at class than obesity.” — Cornell economist David Just, quoted on NPR.
  • “And speaking of the mayor’s commitment to freedom, who exactly is going to impose this sweeping ban? Not the people, in a referendum. Not a constitutional convention. Not even the city council. This ‘far-reaching ban,’ as the Times describes it, will be imposed on 8 million free citizens of New York by the city’s unelected Board of Health, all of whose members are appointed by . . . the mayor.” [David Boaz, Cato]
  • And the inevitable Twitter hashtag, #BloombergMovieTitles: The Appropriately Sized Lebowski, I Know What You Ate Last Summer, The Taking of Pepsi One Two Three, There Will Be Blood Sugar Tests, Diet! Diet! My Darling, Star Trek II: The Wrath of Flan, Sixteen Carrots, No Country for Old Menus, and All That Bloomberg Allows (h/t @JoshGreenman, @bethanyshondark, @AnthonyBialy, @robsolo, @RobGeorge, @JoshGreenman again, @KerryPicket, @Fausta, and @Ericatwitts).

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Debate on law school faculty diversity

In the light of the ongoing controversy over Harvard law professor Elizabeth Warren’s ill-documented claims of Native American status, Point of Law — the website I launched and ran back when I was at the Manhattan Institute — has begun a featured discussion on the effects on legal academia of the ongoing pressure to hire by race (and sex and several other categories). Following an introduction by James Copland, I’ve kicked off the discussion with an opening post (“Better Scholarship Through Diversity?”). There’s plenty on the subject, of course, in my book Schools for Misrule from last year. Other participants in the discussion will include Hans Bader of the Competitive Enterprise Institute and, most likely disagreeing with us, Gerald Torres of the University of Texas.

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June 1 roundup

  • Most embarrassing lawsuit Hall of Fame (plaintiff’s decedent division) [Atlanta Journal-Constitution, cardiology med-mal; more]
  • Latest twist in ongoing speech-chilling saga worthy of attention from PEN: attorney Aaron Walker is charged in Rockville, Md. after a court interprets his blogging about an adversary as a violation of a peace order [Hans Bader and more, Eugene Volokh, Scott Greenfield with comments from Maryland lawyer Bruce Godfrey, Patterico, Popehat, and many others; earlier here, here, and here.] And Ken at Popehat, in a perhaps not unrelated development, puts out a call for a pro bono criminal lawyer to protect a blogger in M.D. Fla. and M.D. Tenn.
  • California lament: Facebook must pay hefty bribe to be allowed to hire more employees [Coyote]
  • “The burdens of e-discovery” [Ted Frank/PoL]
  • Strangest judicial campaign video of the year? [Jim Foley, candidate for Washington Court of Appeals, Olympia; Above the Law, followup]
  • Massive wave of disability claims among returning vets [AP]
  • We keep loading up company compliance/ethics folk with new regulatory responsibilities. How’s that working out? [Compliance Week]

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Update: South Mountain Creamery settles structuring charges

In news that reached me after my Baltimore Sun op-ed yesterday was already in print, owners Randy and Karen Sowers of Middletown, Md. have settled the federal charges against their South Mountain Creamery over “structuring” of bank deposits. They “will get back a little more than half of $62,936 seized by the government earlier this year, according to court documents filed late Tuesday. … ‘I didn’t do anything wrong, but we had to settle because we had no other choice,’ Sowers said.” [Courtney Mabeus, Frederick News-Post; earlier here, etc.]

P.S. And welcome Don Boudreaux/Cafe Hayek readers (no, I’m not related to Mancur Olson); Coyote.

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D.C.: regulating secondhand shops as pawnshops

Used and vintage dealers in Adams-Morgan and other in-town Washington, D.C. neighborhoods are aghast at city regulations that would require secondhand dealers “to submit to MPD’s [the Metropolitan Police Department’s] pawn unit a detailed list of goods acquired each time they make a purchase. Additionally, MPD wants the stores to hold items for 15 days for police inspection before they can be sold.” Whether or not such regulations make sense as applied to traditional pawnshops, dealers in vintage apparel, records and books say it would make their business uneconomic or drive them to the suburbs. [Prince of Petworth, DCist]

Update: Via Twitter, the D.C. government says after talking with business owners it is proposing to exempt book, record and apparel resellers from having to get a secondhand goods license; they would need only a general business license. It also says the regulations to the contrary are not new but have simply gone unenforced before now (via Alexander Cohen, Business Rights Center).

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Feet hurt from “repetitive walking?” Claim compensation

Illinois: “If you are a state employee and your feet hurt, you could be in line to receive medical care, including surgery, paid time off plus a tax-free disability settlement that might exceed your annual salary — all paid for by taxpayers. You also would keep your job.” Arbitration awards for trauma inflicted by “repetitive walking” and other seemingly common workplace stresses have caused enough concern that state attorney general Lisa Madigan has called for tightening up causation standards. [Belleville News-Democrat]

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