Sentences worth pondering, from coverage of the U.S. Department of Justice’s employment-practices suit against Baltimore County: “The exams tested reading, grammar, logic and other skills that the suit alleges are not related to the job of being a police officer or police cadet.” Critics take heart, however: “County Executive Johnny Olszewski Jr. issued a statement saying the police department has discontinued the test.” [Pamela Wood and Wilborn P. Nobles III, Baltimore Sun]
My new post at Cato finds some real progress in grappling with a longstanding problem of the administrative state:
Since my update post last year, there have been a number of new developments. Soon after then-Attorney General Jeff Sessions’s announcement of the new policy, followed by the revocation of dozens of existing guidance documents, then-Associate Attorney General Rachel Brand issued a January 2018 directive telling Department of Justice attorneys not to rely on allegations of noncompliance with agency guidance, in and of themselves, as reason to initiate civil enforcement actions. And this past winter, DOJ updated its Justice Manual to limit the use of guidance as a basis for direct liability in both civil and criminal enforcement. “Guidance is not law. It’s not binding. And it shouldn’t be given the force or effect of law,” said Deputy Assistant Attorney General Charles Cox in a January speech.
Plus OMB guidance on the Congressional Review Act (it applies to some guidance documents) and a new study by Prof. Nicholas Parrillo for the Administrative Conference, which found that
regulated parties are most likely to feel that they have no real choice but to obey guidance 1) when they need to obtain preapproval before doing business, 2) when repeat interactions with regulators are inevitable and full compliance all the time is unlikely no matter how hard they try; 3) when the consequences of agency enforcement, or even the opening of an enforcement action, are severe; and 4) when the regulated party employs a large dedicated compliance staff.
These might serve as interesting guideposts in looking for ways to revamp regulatory schemes in such a way that agencies’ whims will no longer be received as law.
- Supreme Court remands Frank v. Gaos to lower court on standing issue, thus sidestepping cy pres question; dissenting from per curiam ruling, Justice Clarence Thomas writes that cy pres payments are “not a form of relief to the absent class members and should not be treated as such (including when calculating attorney’s fees)” [opinion; Ronald Mann, SCOTUSBlog]
- New Manhattan Institute report details problems with cy pres, including its use to support ideologically fraught groups and those advancing plaintiffs’-side interests [James Copland, Trial Lawyers Inc. Update 2019: Cy Pres]
- “Apricot scrub” product was marketed as an exfoliant, court recognizes, and abrasive properties of crushed walnut shells as ingredient are feature not bug [Eric Alexander, Drug and Device Law]
- Cough drop action could provide soothing relief for counsel’s bank account [David Andreatta, Rochester Democrat and Chronicle]
- “Don’t import US-style class action abuses – think-tank” [Law Society Gazette, Ireland]
- As part of its newly active stance on class action oversight, U.S. Department of Justice intervenes in cookie labeling settlement [Amanda Bronstad, Law.com; U.S. Statement of Interest in Cowen v. Lenny and Larry’s]
My piece of two weeks ago for National Review about consent decrees, police, and the Jeff Sessions memo (briefly summarized here) drew a detailed response from Radley Balko in the Washington Post, whose writings on police misconduct I often link here. I’ve now responded in a second NR piece, arguing that while there is much common ground to be found on the issues here, I will stick with seeing the memo as generally on the right track in articulating proper limits to the feds’ constitutional role (especially under the post-Civil War Amendments) in restraining misconduct by lower levels of government. “The very real and sometimes dire failings of local governments do not change the most important fact about our federal government, which is that it is one of limited powers.”
The feds plan to be less heavy-handed in using consent decrees to micromanage states and cities, and there’s a good case for that, I argue at National Review. Alas, as I explain, national media bungled the story in November by characterizing Jeff Sessions’s memo as if it were primarily aimed at reducing oversight of police. “Not once in its seven pages does the word ‘police’ even appear.”
My short piece doesn’t take up the question of how the well-documented problems of consent decrees in other areas are to be weighed against the possible advantages of the device in curbing abuse-prone police departments. But at least some advocates of police reform and accountability have expressed doubts about whether the process, which can sometimes take political pressure off the local authority, really works as advertised [David Meyer Lindenberg, Tim Lynch, Scott Greenfield; see also John McGinnis]
What are the implications of the Constitution’s Appointments Clause for the tenure of acting attorney general Matthew Whitaker? Thomas Berry, recently a legal associate at the Cato Institute and now at the Pacific Legal Foundation, takes up the question in the Yale Journal of Regulation. More: Michael Rappaport; and earlier at Overlawyered on other Appointments Clause controversies.
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.
[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.
- North Carolina’s heartbalm law strikes again, as judge orders man who slept with married woman to pay jilted husband $8.8 million [Virginia Bridges, Raleigh News & Observer, more on homewrecker tort]
- Cornell economist Rick Geddes explains the federal government’s postal monopoly [David Henderson]
- Trademark swagger: “Chicago Poke Chain Sends C&D To Hawaiian Poke Joint Demanding It Not Be Named ‘Aloha Poke'” [Timothy Geigner, Techdirt] “Shipyard Brewing Loses Its Lawsuit Over Ships and The Word ‘Head'” [same]
- “Man files lawsuit under False Claims Act against manufacturer of batteries for use in intercontinental ballistic missile launch controls, asks for $30 mil, settles for $1.7 mil. What follows is—in the trial court’s words—a “hellish” dispute over the man’s attorneys’ fees. Third Circuit: We feel you; the order reducing requested fees is affirmed in almost every respect.” [John K. Ross, Short Circuit, on U.S. ex rel. Palmer v. C&D Technologies]
- Using the law to suppress one’s competition: New York Taxi Workers Alliance cheers City Council’s move to cap Uber and ridesharing [Reuters] It’s totally normal and not at all suspicious that the city council president who wants tougher enforcement against Airbnb is also president of the state’s hotel lobby [Eric Boehm, Reason; Biloxi, Mississippi]
- For those still keeping score, it’s improper and prejudicial for the head of the nation’s law enforcement apparatus to declaim publicly against a criminal trial in progress, whether or not the defendant happens to be his own campaign manager [David Post, Volokh; April Post and podcast on inapplicable “fruit of the poisonous tree” claim]
The citizen-suit provision of the Clean Water Act (CWA) “allows any individual or organization that can establish standing to bring litigation against both private parties and the Environmental Protection Agency (EPA),” and incentivizes such suits by allowing filers to collect attorney’s fees. While some valuable enforcement actions may result, writes Marc Robertson for the Washington Legal Foundation,
it is not difficult for shakedown litigators to identify targets. One especially easy theory to advance in citizen-suit litigation is unlawful stormwater pollution. Stormwater regulations are exceedingly broad, and almost any business whose production process generates as a by-product anything that could be classified as a pollutant is vulnerable to a lawsuit. In many cases, attorneys’ fees can far exceed the damage from the alleged violations, leading companies to settle rather than litigate.
Recently, DOJ filed statements in three ongoing lawsuits that allege violations of stormwater discharge limits. … those suits are just three of more than 150 notices of violation submitted by this same law firm since 2016.
The similarly worded complaints, against industrial facilities in the Los Angeles area, alleged that pollutants at each facility washed off the property during rainstorms. While the government seldom exercises its right to intervene in citizen suits, DoJ in its three filings asked the court to examine whether the actions were truly an effective way to enforce the CWA or were serving other, less public goals. [Alfonso Lares v. Reliable Wholesale Lumber Inc. filing]