- State by state survey of 140 bills around the country on hot topics related to religious accommodation, including adoption, service refusals, campus speech, health care, etc. [Kelsey Dallas, Deseret News] And don’t forget to mark your calendar for two weeks from today when Cato will host our half-day conference on adoption, foster care, and pluralism with an array of fine speakers;
- What ails long-haul trucking in a time of prosperity? Federal break regulations, electronic monitoring, artificial constraints on parking among factors [Virginia Postrel, Bloomberg]
- Antitrust debates cut across political spectrum [Daniel A. Crane, Cato Regulation magazine] “Solicitor General Inveighs Against Antitrust-Law Revolution in SCOTUS ‘Apple v. Pepper’ Amicus Brief” [Corbin Barthold, WLF]
- These seem like well-planned-out laws: Google suspends running campaign ads in Washington and Maryland following states’ enactment of new disclosure laws [Michael Dresser, Baltimore Sun, Jim Brunner and Christine Clarridge, Seattle Times, Scott Shackford]
- “Missouri appeals court tosses $55 million Johnson & Johnson talc-powder verdict” [Reuters, earlier (courts reverse two other big verdicts) and generally]
- “What Secretary Carson Should Know about Affirmatively Furthering Fair Housing (AFFH)” [Vanessa Brown Calder, earlier]
The European Union’s new privacy law, the General Data Protection Regulation, or GDPR, is sometimes defended as a response to the prospect that too much data will concentrate in the hands of the biggest corporate data users. Per the WSJ, however, one of its earliest effects “is drawing advertising money toward Google’s online-ad services and away from competitors that are straining to show they’re complying with the sweeping regulation.” In particular, Google is showing a higher rate of success in gathering individuals’ consents to be marketed to. [Tyler Cowen] With bonus mention of CPSIA: “The Inevitable Lifecycle of Government Regulation Benefiting the Very Companies Whose Actions Triggered It” [Coyote]
When I wrote last month about Google’s and Facebook’s ill-advised decision to turn away ads for bail bond services, I hadn’t seen Alex Tabarrok’s insightful post on the same topic, calling the tech giants’ decision “deeply disturbing and wrongheaded.” Excerpt:
Bail bonds are a legal service. Indeed, they are a necessary service for the legal system to function. It’s not surprising that bail bonds are used in communities of color and low income neighborhoods because it is in those neighborhoods that people most need to raise bail. We need not debate whether that is due to greater rates of crime or greater discrimination or both. Whatever the cause, preventing advertising doesn’t reduce the need to pay bail it simply makes it harder to find a lender. Restrictions on advertising in the bail industry, as elsewhere, are also likely to reduce competition and raise prices. Both of these effects mean that more people will find themselves in jail for longer….
Ian Ayres and Joel Waldfogel also found that the bail bond system can (modestly) ameliorate judicial racial bias. Ayres and Waldfogel found that in New Haven in the 1990s black and Hispanic males were assigned bail amounts that were systematically higher than equally-risky whites. The bail bondpersons, however, offered lower prices to minorities–meaning equal net prices for people of equal risk–exactly what one would expect from a competitive industry.
My own research found that defendants released on commercial bail were much more likely to show up for trial than statistical doppelgangers released by other methods. Bounty hunters were also much more likely than the police to capture and bring to justice people who did jump bail. The bail bond system thus provides an important public service at no cost to the public.
In addition to being wrongheaded, Google’s decision is disturbing because it is so obviously a political decision….[Every] time Google acts as a lawgiver instead of an open platform it invites regulation and political control.
Meanwhile, reports from Maryland confirm that (as I’ve warned in the past) that state’s unplanned experiment with curtailing cash bail, without due attention to developing alternative institutions, has led to the retaining in jail of many defendants who otherwise would have rejoined their families [Jayne Miller/WBAL, Scott Shackford/Reason] More links on bail controversies: Scott Greenfield; Daniel Dew, Buckeye Institute last year (pro-reform in Ohio).
Data portability mandates on tech companies like Facebook are sometimes conceived as a way to bring about more competitive market structures pleasing to antitrust enforcers by engineering a less “sticky” consumer experience. But is it really much of a solution to anything? [Alex Tabarrok citing Will Rinehart, American Action Forum; more, Tyler Cowen]
- “A Lawyer Who Helped an Exoneree Blow Through $750,000 Is Under Investigation” [Joseph Neff, Marshall Project]
- Department of State agency accreditation delays help worsen decline in international adoption [Kim Phagan-Hansel, Chronicle of Social Change]
- Fifth Circuit affirms sanctions award against ADA attorney Omar Rosales over “reprehensible misconduct” including “fabricating evidence” and “fraud on the court.” [Deutsch v. Phil’s Icehouse]
- Baltimore’s school mismanagement, GOP delegates cool on beer reform, non-citizen voting, Metro subway decay and more in my new Maryland roundup [Free State Notes]
- Eccentric English judge of olden days: “The Incoherence of Serjeant Arabin” [Bryan A. Garner]
- “L.A. Lawmakers Looking To Take Legal Action Against Google For Not Solving Long-Running City Traffic Problems” [Tim Cushing, TechDirt on controversy over Waze routing of traffic onto steep-graded street]
Two things that can both be true:
1) we should find a better system than cash bail;
2) in the mean time bail bond services provide a needed service for some families.
Or as I put it in my new National Review piece:
This week Google and Facebook announced that they would stop accepting ads for bail-bond services. It’s the perfect moral gesture for our times: It makes a grand statement, keeps pressure groups happy, reminds us that the tech giants have weight to throw around, and leaves its intended beneficiaries no better and perhaps imperceptibly worse off.
I go on to discuss stigmatization as a substitute for policy, which sorts of practices if adopted would probably serve as a substitute for cash bail, and the widely held notion that mass incarceration in the contemporary U.S. arose from a plot to expand business revenue. The piece concludes:
If one is going to be suspicious of mercenary motives in the justice system, I recommend starting with the providers among whom defendants’ families do not get to pick and choose in their hour of need in a relatively competitive market. That would include probation providers and jail phone-call providers — and, yes, some firms involved with private prisons.
Of course, those companies aren’t big advertisers, since the only customer they need to convince is the law-enforcement agency. So Google and Facebook are spared the need to worry about what posture to strike toward them.
Whole thing here. For a different view, here’s Google’s Senior Counsel on Civil and Human Rights writing together with the chairman of Freedom Partners Chamber of Commerce and general counsel for Koch Industries. [Malika Saada Saar and Mark Holden]
The Supreme Court has agreed to review Frank v. Gaos, a case in which Ted Frank is objecting to a Google class action settlement. [Barbara Leonard, Courthouse News; Kieren McCarthy, The Register (U.K.)] From the latter piece:
Of the $8.5m that Google has agreed to pay out, not a single cent will go to the actual users whose privacy was violated. It will instead go to the lawyers that brought the case on behalf of those users ($2.125m, no less) and a group of seven organizations that the lawyers, along with Google executives, decided should become “cy pres” recipients.
Those recipients have been controversial from the moment they were named: three of them are law schools, and just so happen to be the same law schools that the lead lawyers went to; and the remaining four are organizations that Google has repeatedly given money to, in large part because they share the same values and goals as Google itself….
His position is quite clear: the use of cy pres – pronounced, fittingly, “sigh, pray” – should be a last resort, and if used, there should be no conflict of interests or even the appearance of a conflict, for those involved in drawing up the list for who gets the money.
Dubious use of cy pres has been a regular topic here at Overlawyered, even before the years when Ted blogged here:
Will revelations over data use by Cambridge Analytica lead to more intense government regulation of Facebook? Julian Sanchez and I talk to Caleb Brown at the Cato Daily Podcast. Separately, Sanchez writes that we shouldn’t expect regulatory micromanagement to do a good job of safeguarding user privacy. “How Cambridge Analytica’s Facebook targeting model really worked – according to the person who built it” [Matthew Hindman, The Conversation] Note that regulation tends to entrench incumbents [Tyler Cowen linking Stratechery (one consequence of outcry is that social media providers may make it harder for users to export their data to other platforms)]
Related: “In Europe, platforms are incentivized to take down first, ask questions second.” [William Echikson, Politico Europe] Pro-censorship UNC professor and New York Times contributing op-ed writer (and what a phrase that is to type) recalls days when media had but one throat to squeeze [David Henderson on Zeynep Tufekci in Wired] How Facebook recently navigated pressures on hosting a group whose leaders were prosecuted under British hate-speech laws [John Samples, Cato] From LBJ and Nixon to Trump and Elizabeth Warren, “regulation is an inherently political act.” So maybe think twice before putting Facebook and Google under the thumb of your worst political foe? [Donald E. Graham]
It’s a cy pres special: members of the injured class will get no part of an $8.5 million settlement Google negotiated with plaintiff’s lawyers over a data privacy lapse. “Instead, the money is to be split among the plaintiffs’ attorneys, who billed their time at $1,000 an hour, and others. The others are cy pres recipients, or organizations that are not parties in the suit: Carnegie Mellon University; World Privacy Forum; the Center for Information, Society and Policy at the Chicago-Kent College of Law; Stanford Center for Internet and Society; Harvard University’s Berkman Center; and AARP Inc.” Ted Frank’s Center for Class Action Fairness is asking the Supreme Court for a writ of certiorari after its objections were turned down by lower courts. [Dee Thompson, Legal NewsLine, earlier here and here (Beck: “cy pres abuse poster child”)]
Plus: Bank of America settlement will now yield cy pres windfall for five University of California law schools of $150,000 rather than $20 million. Easy come, easy go? [ABA Journal]