- Outcry among British doctors after trainee pediatrician convicted of negligent homicide in death of patient following systemic errors at understaffed hospital [Telegraph, Saurabh Jha, Medscape, General Medical Council]
- “There’s no particular reason to think that smokers will be happier with denatured tobacco than drinkers have been with weak beer.” [J.D. Tuccille on FDA plans to reduce nicotine level in cigarettes]
- “Why Doesn’t the Surgeon General Seek FDA Reclassification of Naloxone to OTC?” [Jeffrey Singer, Cato]
- “1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit” [Kevin B. O’Reilly, AMA Wire] “Best and worst states for doctors” [John S Kiernan, WalletHub]
- “Soon came a ‘routine’ urine drug test, ostensibly to ensure she didn’t abuse the powerful drug. A year later, she got the bill for that test. It was $17,850.” [Beth Mole, ArsTechnica]
- Milkshakes could be next as sugar-tax Tories in Britain pursue the logic of joylessness [Andrew Stuttaford, National Review]
New Jersey high court: uninjured complainants can’t enforce consumer law
An unusually strong New Jersey law, the Truth-in-Consumer Contract, Notice and Warranty Act (“TCCWNA”), “prohibits consumer documents from containing provisions that violate clearly established rights or responsibilities,” whether or not the business that distributed the document then acts on the provision. Businesses that imprudently employ standard-form contracts available from office-supply stores, for example, may violate the law if the language deviates (as it often will) from more pro-consumer New Jersey doctrines. The law carries a $100 per-infraction fee that can be multiplied to large numbers applied across a range of transactions. A cottage industry of entrepreneurial suit-filing has grown up under the statute but now, in the case of Spade v. Select Comfort, a unanimous New Jersey Supreme Court has ruled that only consumers who have suffered actual damage can sue under the law, though damages can be non-monetary. The decision is likely to cut back on entrepreneurial uses of the law and in particular class actions where no evidence can be shown that a document’s improper wording harmed many members of a putative class. [Ryan P. Phair and Emily K. Bolles (Hunton & Williams), Lexology; earlier here, here, and related]
A headline we couldn’t resist clicking
“Association for Honest Attorneys loses its tax-exempt status after founder can’t find a lawyer” [Debra Cassens Weiss, ABA Journal]
“Congress whiffs on curbing civil forfeiture”
“When Congress passed that big spending plan, an anticipated reform to civil forfeiture had been curiously abandoned. Darpana Sheth of the Institute for Justice comments” in this Cato Daily Podcast with Caleb Brown.
On the other hand, there’s this from the state level: “Wisconsin joins Minnesota in signing law saying authorities now have to convict you of a crime before they can take your cash” [Christopher Ingraham, Washington Post/Grand Forks Herald]
“The Politicization of the MCAT”
Should gatekeepers to the medical profession test prospective doctors on their adherence to tenets of social justice? [Devorah Goldman, Weekly Standard]
First Amendment roundup
- Dangerous and misguided: Michigan pursues prosecution on charges of jury tampering of man who handed out “jury nullification” pamphlets on public sidewalk outside courthouse [Jay Schweikert, Cato; Jacob Sullum, earlier here, here, etc.]
- “‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration” [Eric Goldman] Among first casualties: Craigslist personals [Merrit Kennedy/NPR, Elizabeth Nolan Brown] And Elizabeth Nolan Brown joins (no relation) Caleb Brown on a Cato Daily Podcast;
- Is reprinting thumbnail headshots fair use? [Mike Masnick, TechDirt]
- “16 Pulse survivors sue Google, Facebook, Twitter for ‘supporting’ ISIS” [Daniel Dahm, WKMG Orlando]
- Not the group it used to be: ACLU calls for government-owned broadband, claims First Amendment may require as opposed to forbid state-operated communications infrastructure [Randolph May and Theodore Bolema, Free State Foundation] More: Scott Greenfield;
- Cato amicus commercial speech triple-header: Virginia’s ban on promoting happy hours (bars may hold them, but not promote them off premises) is an irrational leftover of Prohibition [Ilya Shapiro] While some commercial speech can be mandated, Ninth Circuit goes too far in upholding government-ordered scripts [Shapiro and Meggan Dewitt on structured-mortgage-payment case Nationwide Biweekly Administration v. Hubanks] Sign laws face tough scrutiny under 2015’s Reed v. Town of Gilbert, and Tennessee’s billboard law, which applies even to noncommercial speech, may run into trouble [Shapiro and Aaron Barnes]
Advance toward one-stop federal permitting
One-stop permitting, an idea with a considerable track record of success at the state level, may finally be coming to the federal government. “The agencies will work to develop a single environmental Impact Statement and sign a single record of decision and the lead agency will seek written agreement from other agencies at key points. [The memorandum] also seeks to try to quickly resolve interagency disputes.” [Reuters, Common Good]
April 19 roundup
- “Crash survivor sues publisher, claims he was exploited by book’s false claim of visit to heaven” [Debra Cassens Weiss, ABA Journal on William Alexander “Alex” Malarkey claim against Tyndale House Publishers] More: Lowering the Bar;
- Attorney-client privilege and the raid on Trump lawyer Michael Cohen: my Saturday chat with Yuripzy Morgan of Baltimore’s WBAL radio [listen] On the same general subject, Clark Neily chats with Caleb Brown for the Cato Daily Podcast, and Ken at Popehat has a Stormy Daniels/Michael Cohen civil litigation lawsplainer;
- “While there were many problems with the $1.3 trillion omnibus spending bill, one thing the Republican-led Congress got absolutely right was defunding Affirmatively Furthering Fair Housing” [Robert Romano, Daily Torch, earlier on AFFH]
- “The nearest Macy’s department store is several thousand miles away” but a small hair salon in Scotland will need to change its similar name or face lawyers’ wrath [Timothy Geigner, TechDirt]
- Facebook sued for allegedly allowing housing discrimination by way of ad targeting [autoplays] [Seth Fiegerman, CNN Money]
- Beverage equivalent of clear backpacks: South Carolina bill would make it a crime to let teenagers consume energy drinks [Jacob Sullum]
“Checkpoint America”
“For over 60 years, the executive branch has, through regulatory fiat, imposed a ‘border zone’ that extends as much as 100 miles into the United States.” Within this zone, the Department of Homeland Security’s Customs and Border Protection (CBP) service can set up fixed or mobile checkpoints that require travelers, whether foreign- or native-born, to stop and submit to questioning and possible search “to get to work, go to the store, or make it to a vacation destination in the American Southwest.” Were the government to try using these same techniques at frankly internal checkpoints — in Omaha, say, or Indianapolis or Cheyenne — a range of constitutional protections would come into play to limit police discretion and protect citizens’ rights to go about their business freely. But the border, or areas within 100 miles of it, are different. One problem: since the coasts count as borders too, an estimated two-thirds of the American public lives in areas that are just one executive decision away from having a checkpoint system.
The Cato Institute is launching a new online initiative, “Checkpoint America: Monitoring the Constitution-Free Zone.” Patrick G. Eddington explains in the Cato Daily Podcast above, and in this blog post.
Boulder joins suits demanding climate damages from energy companies
The litigation campaign had previously recruited several California cities and New York City, and now three local governments in Colorado, the City of Boulder, Boulder County, and San Miguel County, are joining in demanding recoupment of moneys spent because of climate change. I’m quoted in Michael Sandoval’s account in Western Wire:
Walter Olson, a Senior Fellow at the Cato Institute, told Western Wire that besides pushing for settlement, an additional objective is implementing new regulation via the courts, rather than legislation or administrative rulemaking….
The multi-state, multi-pronged approach is key, Olson said, given the differences between states on everything from recovery to discovery procedures.
“The strategy in these cases is typically to recruit as many plaintiffs as possible, with an emphasis on actions in different states. States have, e.g., different consumer laws to sue under that may allow different theories of recovery, or different procedures each of which may place the defendants at some particular kind of disadvantage,” Olson said….
“Typically the government plaintiffs are offered a deal of ‘no fee unless successful,’ just as in the ads on late-night TV,” Olson said….
Olson said that the approach in Colorado may be slightly different, given the reaction to the lawsuits filed in California and New York City that have been viewed simply as money-grabs.
“The first wave of these climate suits have gotten a reputation in the press as organized by law firms seeking contingency fees who intend to run the actions for maximum cash payout,” Olson said. “Involving EarthRights and a community like Boulder could be an effort to change this image by introducing more of an idealistic non-profit tone and maybe a suggestion that the goal isn’t just to squeeze money out in a settlement and then return to business as usual, which is basically what happened with the tobacco settlement,” he concluded.
I also mention that speculative litigation of this sort is made vastly easier by our lack of a loser-pays rule.
A very different view — and one with which, needless to say, I disagree — from the Niskanen Center, which is participating in the suits.