After a push from (among others) Texas Attorney General Ken Paxton, one elaborate scheme using dummy litigants and deceptively staged court orders to get Google to de-index some articles appears to have been knocked offline. Eugene Volokh and Paul Alan Levy have been among those recently exposing as fraudulent some practitioners of the art known as “libel takedown” or “de-indexing injunctions.” [Dave Lieber/Dallas News, Volokh in September and related on similar schemes here (takedown request against one of Volokh’s own posts) and here (private default judgment cited in request to Google to deindex government documents), earlier here, etc.]
November 8 roundup
- California initiative that would expand rent control draws on magical thinking [Steven Greenhut]
- “Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to.” [Ilya Somin]
- “82-year-old sues Red Lobster over getting drunk and breaking hip” [Fox News]
- “Chefs react angrily as federal appeals court upholds California ban on foie gras” [Maura Dolan, Jenn Harris, and Geoffrey Mohan, L.A. Times]
- NYC: “Anti-Boozy Brunch Lawsuit Is Bogus, State Says” [Stefanie Tuder, Eater New York, earlier]
- “Courts have consistently pointed to the unique nature of haunted houses to prevent those injured from recovering” [Randy Maniloff, USA Today]
Weinstein’s investigations — and settlements
Harvey Weinstein, assisted by the law firm of celebrated attorney David Boies, “hired private investigators, including ex-Mossad agents, to track actresses and journalists.” At least one agent used false names and identities to insinuate herself into accusers’ and journalists’ circles. “Techniques like the ones used by the agencies on Weinstein’s behalf are almost always kept secret, and, because such relationships are often run through law firms, the investigations are theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court.” [Ronan Farrow, The New Yorker]
Would it help to abolish confidentiality in settlements, as some urge? “California State Sen. Connie Leyva… said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.” [Danielle Paquette, Washington Post “WonkBlog”] “Getting rid of NDAs reduces accusers’ bargaining power so they end up with lower money settlements or perhaps no settlements,” notes HLS Prof. Jeannie Suk Gersen on Twitter and at more length in The New Yorker. Might that impair their chance of getting a private lawyer interested in their case in the first place? “[We would be choosing] to impair the ability of private parties to resolve a dispute in favor of the public interest.” [Scott Greenfield]
Dividing the cake: high court briefs show First Amendment split
Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]
SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]
While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.
Watch today: when prosecutors go wrong
Live today (Tuesday) at 4 Eastern, and watchable online, a Cato forum with three authors of books on runaway prosecution: Rob Cary, partner at Williams & Connolly, and author of Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens; Howard Root, Former CEO, Vascular Solutions, and author of Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit-List; and Michael J. Daugherty, founder and president, LabMD, and author of The Devil Inside the Beltway: The Shocking Exposé of the U.S. Government’s Surveillance and Overreach into Cybersecurity, Medicine and Small Business; moderated by Clark Neily, Vice President for Criminal Justice, Cato Institute. More details:
Prosecutors and other government lawyers who enforce our nation’s laws wield vast power and exercise tremendous discretion with little oversight or accountability. For example, more than 95 percent of criminal convictions are now obtained through plea bargaining instead of jury trials. As a result, citizen participation in our criminal justice system has effectively been eliminated and with it much of the oversight that the Constitution’s framers intended. Even when cases do go to trial, it is possible — and, some have argued, disturbingly common — for prosecutors to further tilt the playing field in their favor by failing to disclose potentially exculpatory evidence, influencing witnesses with threats or inducements, and manipulating juries with improper arguments. Unfortunately, when government lawyers do commit misconduct, it is extremely rare for them to be punished or indeed even publicly identified. Finally, the U.S. Supreme Court has held that prosecutors are absolutely immune from civil lawsuits, even for willful violations of people’s rights, such as deliberately prosecuting someone they know to be innocent and suborning perjury to obtain an unjust conviction.
As a result, two important questions arise: (1) Are the existing checks on prosecutorial misconduct strong enough to ensure fairness in criminal and regulatory proceedings; and (2) are Americans well-served by our current system of near-zero accountability for prosecutors and other government lawyers? Our panelists have written powerful and often deeply shocking books about their firsthand experiences with that system and the damage it does to the cause of justice.
Gerrymandering: a libertarian perspective
I’ve got the lead essay in the November Cato Unbound, on the theme of redistricting reform. I talk about why classical liberals and libertarians might have something to contribute to the national debate on that topic.
When I mention that I am active in efforts to curb gerrymandering, some people react with surprise: “Oh, is that that a libertarian issue?”
It should be, I think. Libertarians are in some ways especially well situated to spot the harms that can result when politicians get to select which constituents they would like to represent rather than vice versa. And the issue fits well into a long tradition of classical liberal thinking about electoral process and representation, among the goals of which is to restrain existing establishments from gathering too much power unto themselves.
Contributors Eric McGhee, Michael McDonald, and Ray La Raja will be weighing in with responsive essays as the month proceeds.
Environment roundup
- Texans tangle over municipal ordinances requiring preservation of trees on private land [Mindy Fetterman, Huffington Post]
- WOTUS, SCOTUS, and POTUS: “The Supreme Court wrestles again with the Clean Water Act’s due process deficit” [Jonathan Wood, earlier]
- Florida turned land into bird sanctuary without owners’ consent. As compensation it gave them “points.” Takings review needed [Ilya Shapiro and Meggan DeWitt, Cato on Ganson v. City of Marathon and Trevor Burrus’s first official brief] Alas, SCOTUS has denied certiorari on two other property rights cases, 616 Croft Ave. v. City of West Hollywood and Wayside Church v. Van Buren County;
- “How Suburban Parking Requirements Hold Back Downtown” [Nolan Gray, Market Urbanism]
- “Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?” [Andrew R. Varcoe, WLF]
- Short Circuit: “Does Texas’ delegation of its eminent domain power to private pipeline companies violate the Due Process Clause? Probably not, according to this Fifth Circuit panel.” [John Ross, Short Circuit, on Boerschig v. Trans-Pecos Pipeline]
“If the Law Is This Complicated, Why Shouldn’t Ignorance Be an Excuse?”
Sharing a Netflix password might be a violation of federal law; so might picking a feather up off the ground, or freeing a whale that has become caught in one’s fishing gear. “America’s judges still cling to the proposition that it’s perfectly fine to lock people up for doing something they had no idea was illegal. But it’s not fine, and the justifications for that palpably unfair rule have only grown more threadbare with time.” [Clark Neily, TownHall] More: Stephen Carter, Bloomberg View.
“So What If You Can’t Join A Class Action?”
Megan McArdle writes at Bloomberg on the downfall of the CFPB’s anti-arbitration rule, and why the results of most class actions, though expensive to provide, are not greatly valued by consumers. She also quotes me on one reason why surveys find (paradoxically or otherwise) higher consumer satisfaction with the experience of arbitration that you’d think from the campaign against it:
The alternative to lawsuits, arbitration, is supposed to follow the same laws as courts, and to do so more quickly and without a lot of the costly procedure. As a result, says Walter Olson of the Cato Institute, consumers are in general surprisingly satisfied with the arbitration experience, because it provides the kind of justice we imagine courts will: You sit down and tell your story in your own words. In court, by contrast, everything has to proceed according to complicated rules of evidence, with opposing counsel interrupting to tell the court that you can’t say certain things.:
More on the recent Congressional rejection of the CFPB’s regulation: Thaya Brook Knight. And in a new paper, David Noll (Rutgers) finds the new administration’s rollback of anti-arbitration rules to be piecemeal in nature and of only middling success so far. Earlier here.
Disrupt the pipeline? We had to do it, Your Honor
Environmental protesters charged with trespassing and turning off valves at a Minnesota pipeline, as part of a coordinated “Shut It Down” direct action campaign, have proffered a “necessity defense.” But the necessity defense is a narrow one that has seldom prevailed in past civil disobedience prosecutions, and it shouldn’t prevail here. [Stephen Bainbridge]