April 17 roundup

  • Estonia introduces artificial intelligence algorithms to adjudicate small claims disputes [Eric Niiler, Wired]
  • “The Connecticut Ruling: Another Attempt to Blame the Gun for Gun Crime” [Joyce Lee Malcolm, Law and Liberty on 4-3 Connecticut Supreme Court ruling finding state consumer law not preempted by federal PLCAA (Protection of Lawful Commerce in Arms Act)] “But will the Supreme Court allow Connecticut to circumvent federal law?” [Scott Greenfield] Remington will seek certiorari review at U.S. Supreme Court [Dave Collins, AP/WTIC]
  • In Pennsylvania, there’s “a feeling that law firms can get judges fired” after a worker’s comp judge who angered “one of the state’s most politically connected law firms…quickly lost her job” [William Bender, Philadelphia Daily News]
  • Nanny staters vs. comptroller’s moves to modernize alcohol marketing regulation, no action on Sixth District gerrymander, Angelos asbestos bill tripped up, critics are right to oppose push to abolish child-abuse statute of limitation, heads should roll in business lobby after minimum wage fiasco, and more in a Sine Die (end of legislative term) roundup at my Maryland blog Free State Notes;
  • “Harm Reduction: Shifting from a War on Drugs to a War on Drug-Related Deaths,” videos of Cato Institute conference with Jeffrey Singer, Maia Szalavitz, Ed Rendell, Clark Neily, Jeffrey Miron, Michael Cannon, and others [parts one, two, three, four, Jeffrey Singer overview blog post] and related Cato podcasts with Daniel Ciccarone on prohibition as crisis driver, Scott MacDonald on heroin-assisted treatment, Darwin Fisher on supervised injection, and Adrianne Wilson-Poe on cannabis and opioid overdose;
  • “How Are State Supreme Court Justices Selected?” [Federalist Society Policy Brief video with Chris Bonneau and Brian Fitzpatrick]

Virginia lawmakers say no to Bloomberg embeds in AG’s office

I wrote in October about “a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes.” Now the Virginia legislature has approved a provision apparently aimed at heading off the practice in that state, the relevant provision reading: “The sole source of compensation paid to employees of the Office of the Attorney General for performing legal services on behalf of the Commonwealth shall be from the appropriations provided under this act.” Chris Horner of the Competitive Enterprise Institute has campaigned against the practice. [Todd Shepherd, Free Beacon; Charmaine Little, Legal NewsLine]

Facebook now welcomes social media regulation

In a Cato Podcast with Caleb Brown, John Samples discusses his new Cato policy analysis, “Why the Government Should Not Regulate Content Moderation of Social Media.” One thing that changed just lately: Facebook founder and CEO Mark Zuckerberg, in the words of Nick Gillespie,

is explicitly calling for government regulation of specifically political speech on his platform and beyond. In his quest to limit expression on social media, Zuckerberg is joined not only by progressive Democrats such as Sen. Elizabeth Warren (D-Mass.) but conservative Republicans such as Sen. Ted Cruz (R-Texas) and Sen. Josh Hawley (R-Mo.), who are calling for the equivalent of a Fairness Doctrine for Twitter and similar services.

For those of us who believe in freedom of expression, this is a revolting development.

More: “Will a Free Press Cheer on Government Censorship of the Internet?” [Scott Shackford, Hans Bader] Several commentators note that having made Facebook the big success in its market, Zuckerberg can now ask for regulations that would tend to lock in its dominance by heaping compliance burdens on rising competitors [Coyote, Andrea O’Sullivan, Mercatus]

Labor roundup

  • Not headed to Gotham after all: “The RWDSU union was interested in organizing the Whole Foods grocery store workers, a subsidiary owned by Amazon, and they deployed several ‘community based organizations’ (which RWDSU funds) to oppose the Amazon transaction as negotiation leverage. It backfired.” [Alex Tabarrok]
  • “NLRB reverses course and restores some sense to its concerted activity rules” [Jon Hyman, earlier]
  • Among papers at the Hoover Institution’s conference last summer on “Land, Labor, and the Rule of Law”: Diana Furchtgott-Roth, “Executive Branch Overreach in Labor Regulation” discusses persuader, fiduciary, overtime, joint employer, independent contractor, federal contract blacklist, campus recruitment as age discrimination, and more; Price Fishback, “Rule of Law in Labor Relations, 1898-1940” on how reducing violence was a key objective of pro-union laws, anti-union laws, and arbitration laws; and related video; Christos Andreas Makridis, “Do Right-to-Work Laws Work? Evidence from Individual Well-being and Economic Sentiment” (“Contrary to conventional wisdom, RTW laws raise employee well-being and sentiment by improving workplace conditions and culture”) and related video;
  • Relief coming on NLRB’s Browning-Ferris joint employer initiative? [Federalist Society panel video with Richard Epstein, Richard F. Griffin, Jr., Philip Miscimarra, moderated by Judge Timothy Tymkovich; Philip Rosen et al., Jackson Lewis; earlier]
  • “Production company hires union labor after Boston officials allegedly threaten to withhold permits for music festivals. District court: Can’t try the officials for extortion because they didn’t obtain any personal benefit; the alleged benefits went to the union. First Circuit: The indictment should not have been dismissed.” [John K. Ross, IJ “Short Circuit,” on U.S. v. Brissette, earlier]
  • In 1922 a brutal mob attack resulted in the slaughter of 23 strikebreakers in Herrin, Illinois. Maybe something that should be taught in schools? [Robby Soave, Reason]

“The Terrible Toll of the Kidney Shortage”

“Many Americans die every year because they need kidney transplants, in large part due to federal laws banning organ sales. …an average of over 30,000 Americans have died each year, because the ban prevented them from getting transplants in time.” [Ilya Somin; Frank McCormick, Philip J. Held, and Glenn M. Chertow, Journal of the American Society of Nephrology] More: Michael Huemer (“I don’t know what ‘commodification’ is or why anyone should care about it. But it would have to be incredibly terrible to justify imposing death on people to prevent them from doing it.”); Emily Largent, Petrie-Flom “Bill of Health” (“unmet need for hearts, lungs, livers, and other vital organs” is also dire; “real-world test of regulated payments is needed”); Ike Brannon, Cato Regulation magazine (unneeded multivisceral transplants).

Environment roundup

  • The high cost of feel-good laws: why bans on disposable plastic grocery bags are bad for the environment [Greg Rosalsky, NPR “Planet Money”] Not a good move for public health either [Hans Bader on New York’s second-in-the-nation statewide ban, following California] Enjoy your tepid pad thai: Maryland lawmakers move to ban polystyrene (Styrofoam) cups and containers for ready-to-go food [Michelle Santiago Cortés, Refinery 21]
  • A future President who declared a national emergency over climate change might unlock some far-reaching powers [Jackie Flynn Mogenson, Mother Jones]
  • “Waking the Litigation Monster: The Misuse of Public Nuisance,” 48-page report on attempts to legislate by means of novel public nuisance suits [Joshua Payne and Jess Nix, U.S. Chamber Institute for Legal Reform]
  • Dim and dimmer: the Washington Post “argues that the policy of imposing energy efficiency standards on lightbulbs ‘has no downside.'” [Peter Van Doren, Cato; earlier] “Appliance Standards Are Expensive, And Regressive Too” [Susan Dudley, Forbes, earlier here, here, etc.]
  • Supreme Court “should clarify that courts should consider a property’s prospective economic value when evaluating the just compensation due from regulatory takings” [Ilya Shapiro and Nathan Harvey on Cato amicus in Love Field terminal gate case]
  • The “most expensive and least effective environmental law” of all: ideas for fixing NEPA, the National Environmental Policy Act of 1970, which mandates environmental impact statements [Mark Rutzick, Federalist Society]

Illinois high court nixes collective-geographic-liability law on drug overdoses

Over a dissent from two of its justices, the Illinois Supreme Court has struck down a law purporting to establish collectivized liability for drug overdoses: “Illinois state law allows family members of people who overdose to sue anyone within a given geographic area who sold or distributed the same kind of drug. Illinois Supreme Court: It violates due process for a plaintiff to recover a lot of money from a person who had no connection at all to the drug user. Dissent: Although the law ‘pushes the boundary of civil liability by dispensing with traditional notions of causation,’ we’re meant to be more deferential to the legislature under the rational basis test.'” [John K. Ross, IJ “Short Circuit” on Wingert v. Hradisky (citing parallel “market share liability” doctrines; “At least 18 states and one territory of the United States have adopted the Model Act or some version of [the Model Drug Dealer Liability Act]”)]

Elizabeth Warren on white-collar prosecution — and what to do instead

My new piece at Cato, citing Carissa Byrne Hessick and Benjamin Levin at Slate, discusses Sen. Elizabeth Warren’s proposal to lower the standard for criminal culpability in many white-collar prosecutions to simple negligence. It begins:

Presidential candidate and Sen. Elizabeth Warren (D-Massachusetts) wants to see more business people behind bars, and she’s not fussy about how to make that happen. In a Washington Post op-ed last week she unveiled a new Corporate Executive Accountability Act, which in her words would expand “criminal liability to any corporate executive who negligently oversees a giant company causing severe harm to U.S. families.” She says she wants top executives to know that they can be (again in her own words) “hauled out in handcuffs for failing to reasonably oversee the companies they run.”

And ends:

The civil courts already hear many thousands of cases seeking damages over claims that serious harm arose from industry conduct that falls short of being reckless or deliberately wrongful. Not infrequently – as with claims over supposed “sudden acceleration” in cars, cancer from Roundup, and autoimmune disease from silicone breast implants – large sums get paid even when science finds no basis for concluding the products caused the harms alleged, such is our legal system’s tendency to tilt against business defendants as unsympathetic. Under the Warren standard, complaints that driverless cars have gotten into avoidable accidents or vaccines have caused side effects – maybe even that cheeseburgers, supersize sodas, and margaritas have worsened the harms of obesity – will put business people at risk for long prison terms. To her backers, will this count as a bug? Or a feature?

Aside from the propriety of criminalizing simple negligence, the issue is not so much that individuals as such are the wrong target for white-collar prosecution — as Stephen Bainbridge has argued, holding them personally culpable will often make more sense than prosecuting the corporate entity — as that notions of collective guilt must not be used to impute criminal culpability to others within an organization not proved to have committed wrong acts or acted with wrong mind. While the Warren proposal would march off in the wrong direction, in the Cato Handbook for Policymakers two years ago,
I contributed a chapter on white-collar prosecution with the following recommendations:

Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should

  • review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible;
  • enact reforms such as the model Criminal Intent Protection Act to bolster recognition of mens rea (punishment should ordinarily require a guilty state of mind, not inadvertent noncompliance) as well as the related mistake of law defense in criminal law;
  • codify the common law rule of lenity (ambiguity in law should be resolved against finding guilt), as Texas joined other states in doing in 2015;
  • devise safe harbor provisions that enable economic actors to avoid criminal liability by behaving reasonably and in intended compliance with the law;
  • limit agency discretion to create new crimes without an act of the legislature;
  • enact guidelines to strengthen judicial oversight of deferred prosecution agreements and nonprosecution agreements (explicit court approval, not the unilateral say-so of government prosecutors, should be required for appointment of corporate monitors or the extension of time under supervision);
  • enact asset forfeiture reforms such as Rep. Jim Sensenbrenner’s (R-WI) Due Process Act, including requiring that conviction be a prerequisite for forfeiture; review and, where appropriate, reduce or coordinate per offense fines and sanctions to avoid levying penalties disproportionate to the gravity of misconduct;
  • prohibit, as a proposed New Mexico law would do, the allocation of settlement moneys (cy pres) to charities, nonprofits, or advocacy groups not themselves injured;
  • assign penalties, forfeitures, and settlement proceeds to the public treasury or, where appropriate in certain cases, to private parties who can show specific individual injury from the offense (penalties should not fund particular government agencies in ways that incentivize zealous enforcement or insulate the agencies from appropriations oversight);
  • prohibit the payment of public lawyers and forensics experts on contingency, that is, in ways dependent on case outcome or the magnitude of penalties (this principle should apply alike to career prosecutors, other staff public lawyers, experts, and outside law firms); existing contingency arrangements should be terminated; and
  • impose transparent principles of selection and payment on outside contracting for legal services.

April 10 roundup