Overlawyered: Chronicling The High Cost Of Our Legal System

This Land Is My Land copyright challenge

As I went walking I saw a sign there.
And on the sign it said “(C) — Guthrie estate”
But on the other side it didn’t say nothing,
That side was made for you and me.

“Following their successful actions to bring the songs ‘Happy Birthday’ and ‘We Shall Overcome’ into the public domain, New York law firm Wolf Haldenstein Adler Freeman & Herz are now taking on a similar action for the Woody Guthrie classic, ‘This Land Is Your Land.'” [IP Flow/Mimesis Law]

Back in 2004, when the successors in interest of Guthrie’s heirs threatened the writers of a politically oriented parody with copyright litigation, Fred von Lohmann of the Electronic Frontier Foundation wondered what Guthrie himself would have thought of the action, given that he once used a copyright notice that said:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

The lyrics of “My Land,” including the “No Trespassing” verse lightly altered above, are here, complete with copyright assertion.

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The IRS targeting scandal: merely “thoughtless” and “careless”?

The Washington Post has published my letter to the editor responding to an editorial that had depicted the Internal Revenue Service targeting episode as merely the “thoughtless” result of “carelessness” and “incompetence.” Yet the scandal wasn’t just the flagging of right-of-center (c)(4) groups for challenge not faced by their left-of-center counterparts, but the outrageous information demands placed on many of those groups, including copies of all literature distributed, transcripts of speeches and radio guest appearances, printouts of all social media output, names of both donors and family members, and more.

Earlier coverage here.

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June 22 roundup

  • Funny how the government sometimes regards our time as necessarily worth $15 an hour or more, and other times as worth far less [Coyote]
  • “Trademark lawsuit over LARP archery gets thrown out of court” for lack of personal jurisdiction [Joe Mullin/ArsTechnica, earlier here, etc.]
  • A sucker deal? Consumer class action alleges substitution of squid for canned octopus [Nick Farr, Abnormal Use]
  • Those who knowingly send texts that distract drivers could face liability in Pennsylvania [ABA Journal]
  • Zach Graves, “Optometrists Push For State Laws Blocking Online Eye Exams” [TechDirt]
  • D.C. Circuit upholds net neutrality regulations in a “majority opinion…dripping with agency deference.” [Daniel Lyons, Jonathan Adler, Michael Greve]

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See something, say something, then get ready for bias charges or a lawsuit

“The common thread among suspects in these mass shootings and terroristic incidents is not merely that they had mental health issues and an attraction to extremist political ideologies. In each case, the concerned people in those killers’ lives failed to speak up or their warnings were dismissed when they did.” And the structure of legal incentives created by wide-sweeping high-penalty discrimination and privacy laws (which cover categories like mental illness by way of the ADA) may not be entirely unrelated to that phenomenon. [Noah Rothman, Commentary] “No Psych Exam for Orlando Shooter Despite Odd Behavior, FBI Probes” [NBC News]

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The furor over Judge Persky’s sentence

“More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list.” How is the furor likely to affect the justice system? Three views from law professors: Jeannie Suk (from whom the above quote is taken), Howard Wasserman, Stephen Bainbridge.

Workplace roundup

  • The proportion of jobs requiring a license has risen from roughly 5 percent in the 1950s to 25 percent now, and why that matters [Edward Rodrigue and Richard V. Reeves, Brookings] Signs of bipartisan agreement that occupational licensing has gone too far [J.D. Tuccille, Reason] And surprisingly or not, it’s emerged as an Obama administration cause [Matt Yglesias, Vox]
  • “25 quick takes (no kidding!) on the EEOC’s proposed national origin guidance” [Robin Shea]
  • “Trial lawyers’ pecuniary interests have shifted our focus toward termination decisions, instead of hiring and promotion practices” [Merrily Archer]
  • Is it lawful to move full-time employees to part-time work to avoid ObamaCare mandates? [Jon Hyman, related]
  • Florida Supreme Court decision spells Christmas for workers’ comp lawyers, and insurers proceed to file 17 percent rate increase, so everyone’s happy [Insurance Journal]
  • “Uber and the gig economy’s existential litigation threat” [Alison Frankel] Labor union grip on state legislature imperils benefits of sharing economy [Steven Greenhut]

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FIRE backs suit over Dear Colleague letter

With help from FIRE (the Foundation for Individual Rights in Education), a former University of Virginia law student has sued the U.S. Department of Education Office for Civil Rights arguing that it violated the law in its notorious 2011 Dear Colleague letter requiring many campuses to roll back the procedural rights of students accused of sexual assault. The John Doe complainant argues that the department should at a minimum have put the policy shifts proclaimed in the letter through the notice-and-comment process prescribed for rulemaking, rather than in effect proclaiming them by decree through subregulatory guidance. The letter affected the student’s own case, he argues, because of comments from the retired judge deciding the case that she viewed the evidence as falling short of a clear and convincing threshold, the standard formerly in use, and ruled against him only because the university had complied with federal guidance by dropping its standard to preponderance of the evidence. [Susan Svrluga, Washington Post; Hans Bader, CEI]

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“Man pleads guilty in auto crash, then sues city alleging police siren and lights distracted him”

“A man who pleaded guilty to reckless driving in a suburban Chicago accident that injured multiple people last year is now pursuing a lawsuit over the crash.” William Kivit contends in his Cook County lawsuit that the city of Park Ridge “is to blame for the accident, because a city police officer distracted him by activating his siren and lights, causing him to run a red light and strike a car that was legally proceeding through the intersection.” The pursuing officer was himself found to have violated city policy on high speed chases and was terminated; a “police investigation had determined that Kivit was traveling between 79 and 90 mph at the time of the crash.” [ABA Journal]

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Environmental roundup

  • Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
  • Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
  • Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
  • “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
  • And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
  • Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]

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“They oughta be investigated for RICO!”

“[Disliked person or institution] should be investigated for racketeering!” is the sort of slogan “waved around by morons like a big foam finger at a ball game.” But RICO, or the Racketeer Influenced and Corrupt Organizations Act, is a law requiring proof of “the commission of a whole bunch of very specific federal crimes… not just any crime [but] only the ones on the list.” It “is not a … frown emoji. It’s not an exclamation point. It’s not a rhetorical tool to convey you are upset about something…. RICO doesn’t mean ‘this organization advocates things that are bad for society.'” Wait, there’s no RICO predicate act for climate denial or for being the NRA?

Ken White’s RICO explainer at Popehat observes that civil RICO is overused in court both by pro se litigants and by plaintiff’s lawyers who employ it as “a scare tactic and a propaganda tool.” So overused is it that “judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that’s something judges don’t do for almost any other cause of action…. So why do we still have civil RICO? Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.” Incidentally, the cutesy acronym for an anything-but-cutesy law is because “Congress likes acronyms like your great-aunt likes porcelain cats.”

P.S. From Jonathan Adler, Greenpeace, RICO, and what goes around comes around.

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