Overlawyered: Chronicling The High Cost Of Our Legal System

Feds and states bless ABA’s gatekeeper status in law school accreditation. Why?

The American Bar Association (ABA)

has been granted monopoly status over the accreditation of law schools by the U.S. Department of Education (for purposes of determining eligibility for federal student loans) and nearly all state supreme courts (for purposes of determining eligibility to take the bar exam). Monopoly status is inevitably prone to abuse, and in recent decades the ABA has gone far beyond its original mission of establishing minimum standards for legal education to protect the public. Professor John Baker maintains that “the ABA is an ideological organization forcing its ideology into the standards on accreditation.”

I found while researching my book on legal academia, Schools for Misrule, that the ABA’s and AALS’s (Association of American Law Schools) role as accreditors has had far-reaching structural effects on law schools and probably ideological effects too, as well as restricting competition and discouraging innovation. I agree with Mark Pulliam that the federal government and states should refrain from artificially promoting these groups’ gatekeeper role or, worse, conferring monopoly status on them [Law and Liberty]

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Sweden advertising ombudsman: “Distracted Boyfriend Meme” is sexist

Sweden’s advertising ombudsman has ruled the much-shared “Distracted Boyfriend Meme” improperly presents women as “sex objects” and is “a stereotypical picture of men seeing women as interchangeable”. While the industry panel itself has no power to impose a legal ban, its views might prove consequential since the Stockholm city council has enacted a ban on sexist billboards in public spaces. [Catherine Edwards, The Local]

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October 3 roundup

  • “Rejected Applicant Sues Law Schools for Violating Magna Carta” [Kevin Underhill, Lowering the Bar]
  • “Attorney sued for malpractice is suspended after releasing client’s psychiatric records” [Stephanie Francis Ward, ABA Journal]
  • Moving state and local alcohol regulation past the bootlegger/Baptist era [Cato Daily Podcast with Jeremy Horpedahl]
  • In Charlottesville today? I’ll be on a University of Virginia School of Law panel discussing redistricting / gerrymandering reform, campaign and election law, Maryland politics and more [Ele(Q)t Project]
  • Rejecting ADA claim, Georgia Supreme Court says man cannot blame sleep apnea for “alleged inability to be truthful, accurate, and forthcoming” in bar application [Legal Profession Blog]
  • Update: after national outcry, county D.A. in North Carolina drops charges of unlicensed veterinary practice against Good Samaritan who took in pets during Hurricane Florence [Wilson Times]

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Previews of the new Supreme Court term (and backward looks)

Erin Murphy at the Cato Supreme Court Review looks at what are likely to be some of the big cases of the next term. The Supreme Court Institute at Georgetown Law has its own preview, while Washington Legal Foundation has a webinar with John Yoo, Shay Dvoretzky, Beth Brinkmann, and Thomas Goldstein moderating, as does the Federalist Society with John Adams, Tom Goldstein, Jennifer Mascott, Elizabeth Papez, and Pete Williams as moderator.

For a broad look back at the 2017-18 term, check out the introductory essays by Roger Pilon and Ilya Shapiro at the Cato Supreme Court Review. And the Federalist Society has posted Miguel Estrada’s summing up of the last term.

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Feds: we’ll be watching for asbestos-bankruptcy chicanery

For well over a decade it’s been apparent that the distinctive arrangements by which asbestos plaintiff’s lawyers acquire control of the bankrupt remains of defendant corporations they’ve sued, and then exercise control over those firms’ claims, disbursements, and general management, is fraught with self-dealing and sometimes fraud, ranging from the charging of unnaturally high fees to the concealment of double- and triple-dipping by claimants. Business interests have pursued a campaign in the states and Congress to require more transparency and better judicial oversight of asbestos bankruptcy trusts. Now they may have a powerful ally indeed in the federal government, which has weighed in with an early statement of interest in one such bankruptcy to insist on better controls against fraud and abuse. Its standing for such an intervention arises in part from its role as Medicare and Medicaid payor (entitled by law to recoup some health-related outlays) rather than merely from any interest it might have in heading off fraud generally. [Daniel Fisher, Forbes; Daniel Gill, Bloomberg Law] Fisher:

In the Trump administration, at least, the government will no longer look the other way as asbestos lawyers negotiate lenient terms that make it easy for their current clients to get money at the expense of future claimants and federal entitlement programs….

The government’s unusually blunt statement of interest in the Kaiser Gypsum bankruptcy, long before any plan of reorganization has been approved, warns lawyers against including terms that make it hard to ferret out fraud and abuse, including confidentiality requirements that make it impossible to determine how much claimants have been paid and the basis for their claims….

The Justice Department also warned it will be looking for excessive fees and may not allow claimants to deduct those fees from reimbursement due the government for Medicare and Medicaid expenses.

Sequel: Feds object to trustee candidate in Duro Dyne bankruptcy.

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Free speech roundup

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“The Indian Child Welfare Act at 40”

“Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race-based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect.”

On September 20 I moderated a Cato discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of Escaping the ICWA Penalty Box; Matthew McGill, attorney for plaintiffs in Brackeen v. Zinke, a major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case Adoptive Couple v. Baby Girl. Earlier on ICWA here.

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Government oversight of social media moderation would infringe First Amendment liberties

Mike Masnick, TechDirt:

[J]ust after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:

We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.

The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.

There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.

More: “How Regulating Platforms’ Content Moderation Means Regulating Speech – Even Yours” [Cathy Gellis]; John Samples, Cato Daily Podcast on Trump’s comments about Google searches; Federalist Society debate on social media antitrust; “if you’re going to make an allegation that there’s a big [anti-conservative] conspiracy [on search engine results], you should do your due diligence.” [Zachary Graves] Earlier here, etc.

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Patented meat cuts

Not a new story, but new to me: Oklahoma State University says it has been awarded patent as well as trademark protection on what is called the Vegas Strip Steak, a part of the cow previously consigned to ground beef and other humble uses. [John Klein, Tulsa World last October; Drovers, John Ewoldt, Minneapolis Star-Tribune in 2012]

Kal Raustiala and Chris Sprigman wrote at Freakonomics in 2012:

There’s no way OSU could patent the steak itself. The steak is just a piece of a cow. It is, in other words, a product of nature, which cannot be patented.

Wisely, OSU’s patent apparently isn’t on the steak itself, but on the knife cuts necessary to extract the steak. But that approach is dubious as well. Once you know where the steak is, the cuts necessary to get at it may be obvious to a skilled butcher. Things that are obvious cannot be patented.

The Patent and Trademark Office presumably accepted the methods for producing the cut as other than obvious. More on patented meat items from Article One Partners.

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