- “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.” [Eugene Volokh on freedom of assembly during an epidemic] Suits against quarantine seldom prevail [Chris Dolmetsch and Malathi Nayak, Bloomberg/Claims Journal] Quarantine and public health measures set important precedents in overcoming judges’ suspicion of delegations of power [Keith Whittington]
- If the federal government decided it wanted to block movement between different states to combat virus transmission, where would it get the legal authority, and what means could it lawfully use? [Gene Healy, Cato] The constitutional background on freedom to travel, as well as search and seizure, during an epidemic [Volokh]
- “The common law also appears not to be a good alternative. One can imagine the litigation nightmare if everyone who got the virus attempted to identify and sue some defendant for damages.” [Tim Brennan, Truth on the Market]
- Cracking down on putatively deceptive accounting practices, SEC penalized “‘bill-and-hold’ transaction orders in which a product is not immediately delivered to its customer.” And that was terrible news for anyone in the business of trying to build public health stockpiles — of vaccines, equipment, PPE — that might be needed in a contagious-disease emergency [John Berlau, CEI] Better than compulsory purchase orders: “Using Purchase Guarantees and Targeted Deregulation to Boost Production of Essential Medical Equipment” [Caleb Watney and Alec Stapp, Mercatus Center]
- Flashpoints include drive-in services, curfews, ID and quarantine of churchgoers: “Religious Freedom Clashes With Public Health Enforcers” [Elizabeth Nolan Brown]
- “FDA Denaturing Rules Are Toxic for Small Distillers” [Jacob Grier]
- New report estimates state and national economic costs of occupational licensing [Morris Kleiner and Evgeny Vorotnikov, Institute for Justice] Reform efforts proceed at both state and federal levels [Angela Erickson, Cato Policy Report] Another study: licensing reduces labor supply significantly [Peter Blair and Bobby Chung, NBER]
- Cosmetology schools serve as lobbying force behind high prerequisites before newcomers can practice in field [Meredith Kolodner and Sarah Butrymowicz, New York Times]
- “Occupational Licensing and Accountant Quality: Evidence from the 150-Hour Rule” [John M. Barrios, Cato Research Briefs in Economic Policy]
- “At public meeting, hydrogeologist criticizes Albuquerque, N.M.-based water district for fortifying ditch roads with rock rubble. District employee complains to the state professional engineer board, claiming that hydrogeologist’s critique amounted to the unlicensed practice of engineering. Correct, says the board. New Mexico Court of Appeals (2013): Actually, the First Amendment is pretty clear that state agencies can’t punish folks for talking at public meetings without a license. Tenth Circuit (2018): Sadly, though, the hydrogeologist is now time-barred from seeking damages over this contretemps.” [John K. Ross, Short Circuit on Turner v. Middle Rio Grande Conservancy District, see related Oregon case of Mats Järlström covered earlier here and here, and an update] On the other hand, New Mexico making genuine progress on licensing thanks to executive order signed by outgoing Gov. Susana Martinez [Cato podcast with Paul Gessing]
- Opening up new practitioner categories could help reach underserved dentistry markets [Cato podcast with Sal Nuzzo] Letting the feds get involved in licensing issues is fraught with risk [Cato Daily Podcast with Caleb Brown and Lee McGrath]
- 1758 pamphlet on Edinburgh barbers’ exclusive right to cut hair sheds light on issues that are still with us [Daniel Klein]
- “The real-world impact of Dodd-Frank, stress tests and other regs” [M&T Bank slideshow, American Banker] “Six feet of new mortgage regulations help explain slower housing market” [Ira Stoll]
- Will Trump administration allow banking for cannabis-related businesses? [Kevin Funnell]
- “‘Sustainability Standards’ Open A Pandora’s Box Of Politically Correct Accounting” [Howard Husock and Jim Copland]
- An assumption of complete transparency would take away “the reason for financial intermediation in the first place” [Arnold Kling]
- Statutes of repose in securities actions are important in protecting interests on both sides [WLF on CalPERS v. ANZ Securities, Inc.]
- Encrypted messaging services allow Wall Streeters to bypass all sorts of regulatory scrutiny and speak freely, can’t have that [Bloomberg]
On July 24 Cato held a book forum on Sidney Powell’s new book, “Licensed to Lie: Exposing Corruption in the Department of Justice” (earlier). Participants included the author Sidney Powell, with comments by Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit; and Ronald Weich, Dean, University of Baltimore Law School. My colleague Tim Lynch, who directs Cato’s work on criminal justice issues, moderated. From the description:
In Licensed to Lie, attorney Sidney Powell takes readers through a series of disturbing events, missteps, and cover-ups in our federal criminal justice system. According to Powell, the malfeasance stretches across all three branches of our government — from the White House to the U.S. Senate, to members of the judiciary. Even worse, the law itself is becoming pernicious. Americans can now be prosecuted, convicted, and imprisoned for actions that are not crimes. And if acquitted, there is no recourse against prosecutors who hid evidence vital to the defense.
Powell gives a detailed account of the prosecution and imprisonment of individual executives of well-known firms such as Merrill Lynch based on creative new theories of criminal liability, following dubious prosecutorial conduct including the withholding of evidence favorable to the defense, so-called Brady violations.
- Does new Obama directive gut 1996 welfare reform law? [Mickey Kaus (“in 2008, Barack Obama didn’t dare suggest that he wanted to do what he has done today”), Bader]
- Ringling Bros. v. animal rights activists: court throws out champerty claim, allows racketeering claim to proceed [BLT]
- Iqbal, Twombly, and Lance Armstrong [DeadSpin, Howard Wasserman/Prawfs and more]
- Abuse claims: “Retain the statute of limitations” [New Jersey Law Journal editorial] Insurance costs squeeze NYC social services working with kids, elderly [NYDN]
- Court upholds sanctions vs. “staggering chutzpah” copyright lawyer Evan Stone [Paul Alan Levy, Eugene Volokh, earlier here and here]
- Court says board members of NYC apartment co-ops can be sued personally over alleged bias [Reuters]
- “FASB retreats from disastrous litigation disclosure requirement proposal” [Alison Frankel, Reuters via PoL, earlier]
- Eugene Volokh on Lineage II “addictive videogame” lawsuit [Volokh Conspiracy, earlier]
- New “Trial Lawyers Inc.” report on environmental litigation [Manhattan Institute, related from Jim Copland on a Richard Blumenthal suit]
- Furor continues over Philadelphia’s $300 “business privilege tax” on bloggers and other low-revenue businesses [City Paper, Instapundit, Atlantic Wire, Kennerly]
- “DoJ seeks Ebonics translators” story affords glimpse of oft-abused market for prosecution experts [Ken at Popehat]
- Much more on FASB show-the-adversary-your-cards litigation accounting proposals [Cal Biz Lit and more, Beck, Hartley, ShopFloor, PoL (with Chamber views), earlier]
- “The Many Ways In Which Fashion Copyrights Will Harm The Fashion Industry” [Masnick, TechDirt, on the Innovative Design Protection and Piracy Prevention Act, earlier links here]
- Denmark carries out a real-world experiment in the incentive effects of unemployment compensation [Stossel]
- “Junk fax” suit demands $2 trillion [eight years ago at Overlawyered]
- Real-life Lysistrata: “Kenyan man sues over sex boycott ‘stress'” [Telegraph]
- Kagan record not reassuring on campaign-speech issues [Allison Hayward, CCP, Daniel Shuchman/Reason] A “fair-weather originalist”? [Ilya Shapiro, Cato]
- Eugene Volokh thinks the Court made the right call in the student-group-recognition Christian Legal Society case, while Richard Epstein thinks it didn’t;
- Coverage of Ted Frank’s objection in A.G. Edwards settlement [Daniel Fisher, Forbes; Bill McClellan, St. Louis Post-Dispatch]
- West Virginia: “Was DuPont railroaded in Harrison County?” [Don Surber]
- “Predicate” approach hasn’t always worked well as way to curb government privacy incursions [Stewart Baker]
- “Florida Court Tosses Out $522 Million Verdict Against Accounting Firm” [Daily Business Review]
- Justice Department dereliction? “Inside the Black Panther case” [J. Christian Adams, Washington Times]
A week ago I briefly noted that now-imprisoned securities class action king Mel Weiss appeared on the list of Bernard Madoff victims (163-pp. PDF courtesy WSJ, via Christopher Fountain) and observed how ironic it seemed that someone who made great claims to expertise in sniffing out stock fraud should have been taken in by it.
According to correspondence from New York securities lawyer (and longtime Weiss critic) Howard Sirota, however, there might be to the story than that:
I wouldn’t be so quick to jump to the conclusion that Mel Weiss [fouled] up investing with Madoff.
Weiss’ wife and son Stephen A. Weiss invested with Madoff, as did [Milberg Weiss partners] David Bershad and Pat Hynes.
In addition, convicted serial Milberg plaintiff Howard Vogel invested with Madoff.
Buchbinder Tunick, Milberg’s accountants and ironically Milberg’s principal forensic accounting experts, appear on the list, although the entries may be clients of the Buchbinder firm.
Class action firms Wolf Popper and Wolf Haldenstein also appear.
Sirota believes that other persons and entities on the Madoff victims list have also served as lead plaintiffs in securities litigation or as plaintiffs in other litigation handled by class-action firms. All of which could be mere coincidence, or could suggest that either Madoff himself or others in his circle might have played some role in funneling lead plaintiffs to the class-action bar. (Particularly in the “race to the courthouse” era that preceded the Private Securities Litigation Reform Act, having a stable of cooperative repeat plaintiffs was vital to the success of many plaintiff’s firms.)
One way to check this thesis, Sirota suggests, would be to check the names on the Madoff victims list against those on the list of plaintiffs maintained by the Stanford Law School securities class action clearinghouse to see whether there are any other noteworthy matches and if so whether they follow any particular pattern. He also asks whether some of the law firms that have been organizing task forces to recruit and represent plaintiffs in the Madoff scandals — they include the Milberg firm and Wolf Haldenstein — have adequately disclosed to potential clients in their literature that their firms’ own names figure on the Madoff victims list. More: Gary Weiss, Larry Ribstein.
Further: Yet more views. And in comments, a visitor says Wolf Haldenstein is on the list because clients of the firm invested with Madoff, not because the firm itself did.