- “Will Spokane Pass an Expensive, Unenforceable Ban on Rail Shipment of Fossil Fuels?” [Erin Mundahl, Inside Sources] New York Gov. Andrew Cuomo blockades a natural gas pipeline, and New England economy pays the price [WSJ]
- “Plaintiff firms have filed some 800 complaints against marijuana businesses” alleging California Prop 65 (toxics warnings) violations [WSJ editorial, more on Prop 65]
- Encyclopedia of Libertarianism, originally published in 2008 under editorship of Ronald Hamowy and now free online at Cato Institute, has article on “Environment” by Jonathan Adler; more background here;
- Fake all the horns: entrepreneur’s scheme could make rhino poaching uneconomic, but enviro groups dead set against [John Stossel/Reason post, video]
- Yes, you are ingesting pesticides. No, it’s not a problem [Matan Shelomi, Quora/Forbes]
- The economic way of thinking tends to inoculate one against fads like the peak oil scare [Ron Bailey]
- “This Massachusetts Lawmaker Wants to Throw Folks in Prison for Having Secret Car Compartments” [Scott Shackford; earlier on compartment bans here, here, and here]
- Traffic stops dangerous and intrusive. Why not focus them where they’re most needed? [Steve Chapman] More: a different view from Scott Greenfield;
- Why is AG Sessions enabling forfeiture end runs by police around their own state lawmakers? It’s not good federalism [Natalie Delgadillo, Governing] Angling to end suit, Philadelphia offers to end use of asset forfeiture funds for law enforcement [Robert Moran, Philadelphia Inquirer]
- White-collar prosecution: “Time To Revisit The Yates Memo?” [Robert Bork, Jr.]
- What happened when Rhode Island inadvertently legalized indoor prostitution [Elana Gordon, NewsWorks]
- What if U.S. Department of Justice policies had to be run through OIRA regulatory review for cost-benefit comparison, as many other agencies’ do? [Mark Osler, Marshall Project]
- What if law firms advertising about drugs had to live with the same set of rules as drug firms advertising about drugs? [Beck, Drug and Device Law]
- Jury: no injury damages for testosterone-gel plaintiff, but lawyer got us upset at AbbVie so here’s $150 million anyway [Lisa Schencker, Chicago Tribune]
- “Plaintiff’s design defect claim was that the defendant shouldn’t have used ibuprofen at all, but rather [an alternative compound] even though the FDA has not approved [that compound] for sale in the United States.” That won’t fly even in California [Beck]
- Sky-high prices: “The pharmaceutical market is anything but free at present” [Marc Joffe, Reason]
- Opioids epidemic poses a policy challenge but no time to panic [Jeffrey Singer/Cato, related podcast, op-ed, panel; an ACA angle?]
- “Gene editing isn’t about designer babies, it’s about hope for people like me” [Alex Lee, Guardian]
A hydroponic-tomato setup and the finding of soggy tea leaves in discarded trash led heavily armed cops to stage an early morning surprise raid on a Kansas family’s home, part of a police venture called Operation Constant Gardener. As noted earlier, my colleagues at the Cato Institute filed an amicus brief urging the Tenth Circuit to uphold the family’s rights by applying “the knock-and-announce rule… an ancient one rooted in the English common law dating back to the early 17th century.”
…this week a three-judge panel on the U.S. Court of Appeals for the 10th Circuit ruled that the family could move forward in court. The decision has larger implications for Fourth Amendment litigation and legislation targeting badly behaving police officers.
The scorching judicial pronouncement blasted authorities for laziness and possible fabrication, the kind of overzealous police work that’s become a sometimes deadly facet of the drug war….
“The defendants in this case caused an unjustified governmental intrusion into the Hartes’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt,” Judge Carlos Lucero wrote in his opinion. “The Fourth Amendment does not condone this conduct, and neither can I.”…
The appellate win, if not successfully appealed, means the Hartes will be able to press their case in district court.
And this from Ilya Shapiro on the new Tenth Circuit decision:
Even if the court didn’t fully address the issues Cato raised in our brief, the ruling in Harte v. Board of Commissioners of Johnson County, Kansas is a step forward….
The Tenth Circuit mostly agreed with Cato on the Fourth Amendment issue. Two judges on the three-judge panel found that the district court had been wrong to grant summary judgment to the police on the search and seizure issue, with Judge Carlos Lucero alluding briefly to the knock-and-announce requirement. It was a convoluted opinion that took a long time to produce because of each judge writing separately and different sets of judges coming together on different parts of the ruling. Most importantly, Judge Gregory Phillips, joined by Judge Lucero, found that “what the deputies learned early on in the search dissipated any probable cause to continue searching.”
Ultimately, the judges only discussed in passing the police-militarization and general-warrant concerns raised by Cato and sided with the police on the excessive-force claims. Nevertheless, the court held that what the Hartes experienced qualified as unreasonable search and seizure – and also let them continue with their state-law claims – so Harte v. Board of Commissioners represents a positive development in the jurisprudence surrounding dynamic police raids.
Law enforcement officials in some states are seeking warrantless access to prescription databases. A New Jersey bill “would require officials to ‘certify’ that they are engaged in a specific investigation,” seeking to calm fears that enforcers will begin trawling data for people to investigate. Rhode Island Gov. Gina Raimondo has already signed a similar bill. “In California, the Supreme Court ruled recently that the state Medical Board can dig through prescription drug records without a warrant or subpoena.” [Associated Press via Scott Shackford, Reason]
As the Wall Street Journal reports, former Mississippi attorney general and longtime Overlawyered favorite Michael Moore has been collaborating with Ohio Attorney General Michael DeWine, with other elected government attorneys, and with other trial lawyers to seek lift-off of suits against painkiller makers and distributors. The headline was “Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco,” which got several of us going on Twitter:
Parlay sweetheart attorney general contracts into multi-billion-$-fees? https://t.co/t9OQ2zupwm
— Walter Olson (@walterolson) July 24, 2017
Which in turn played off Jonathan Adler’s:
Create a highly profitable cartel that funds state projects & is protected by federal regulations? https://t.co/2Vxf9ujp2W
— Jonathan H. Adler (@jadler1969) July 24, 2017
And Gabriel Malor’s:
Get astoundingly rich with the help of Congress? https://t.co/VUxoX9bC6P
— Gabriel Malor (@gabrielmalor) July 24, 2017
Mine drew a number of responses, including this from Bloomberg View business columnist Joe Nocera:
Damn straight! That's the business model.
— Joe Nocera (@NoceraBV) July 24, 2017
Don't forget: …and actually secure the future of the manufacturers, with the consumers the only ones who lose anything.
— Carl V Phillips (@carlvphillips) July 24, 2017
Woo Hoo! I can't wait until I get to tell a cancer patient all I can give her is a Tylenol! ?
— Bona Felis (@scsloan01) July 25, 2017
In a more conventional op-ed vein, there’s this from Tiger Joyce.
Plaintiffs sued a New Mexico pharmacist for selling them opioids, resulting in their addiction. One big problem, however: “the plaintiffs had conspired with a nurse practitioner to write up fraudulent prescriptions.” And New Mexico adheres to a rule followed by various states in various forms known as the in pari delicto rule. It “is based on a public policy to preclude anyone who injures him or herself in the course of criminal activity from recovering in tort for those injuries. Put another way, perhaps more appetizing for those of you who delight in legal jargon, criminal conduct is an intervening act that cuts off liability.” [Stephen McConnell, Drug & Device Law]
- New Treasury report lambastes CFPB, calls for reforming its powers [Thaya Brook Knight, Alex Spanko/Reverse Mortgage Daily, text of report]
- Very likely headed for Supreme Court: “En banc D.C. Circuit splits over constitutionality of SEC administrative law judges” [Jonathan Adler, Thaya Brook Knight] “One Loss before ALJ Doesn’t Unmake SEC’s Home-Court Advantage” [Stephen Bainbridge, WLF] Earlier here;
- “The case for pruning the shareholder proposal regime” [Stephen Bainbridge]
- Amid feds’ push to cut banking access for cannabis business, PNC Bank closes long-term accounts of advocacy group Marijuana Policy Project [Washington Post]
- “House member launches fintech lending investigation” [Ballard Spahr]
- Overregulation of small banks and credit unions: “Financial Reform Both Parties Can Agree On” [Mark Rambler, Bloomberg]
- “Law Professors: Three Centuries of Shaping American Law”: The Economist favorably reviews new Stephen Presser book;
- Profile of Texas Supreme Court notes that its members regularly face opposition at election time from alliance of plaintiffs’ bar with some social conservatives [Mark Pulliam]
- 10 lawyers, 6 others charged in alleged workers’ comp fraud scheme targeting Latinos in California [Associated Press]
- Employee’s ADA case against Novartis backfires, court orders her to pay nearly $2 million; her attorney quit case after discrepancies in her background were discovered [Kathleen O’Brien, NJ.com]
- To protect the children, feds ban a product one of whose functions is to keep drugs out of hands of children [Christian Britschgi, Reason]
- Budget choices and trade-offs faced by advocacy groups don’t give them constitutionally required standing to sue [Daniel E. Jones and Archis Parasharami, WLF]
They capitalize on widespread public anger and frustration at the addiction epidemic, but face formidable legal hurdles — among them the fact that the marketing practices and language the suits assail as unlawful were often specifically approved by the federal Food and Drug Administration. Much impetus for the suits comes from private law firms that pitch the actions to governments as free, while setting themselves up for gigantic contingency fees after the eventual settlement. [Nate Raymond, Reuters]