- How feckless for an editorial board to undermine institutional legitimacy of a key check on executive power, the Supreme Court, by spreading notion that some of its seats are “stolen” [New York Times]
- Eastern District of Tumbleweeds? High court asked to curtail forum shopping in patent suits [Washington Legal Foundation on TC Heartland LLC v. Kraft Foods Group Brands LLC, more on E.D. Tex.]
- Federal charges result in plea deal. State then charges defendant over same conduct. Ought to call it double jeopardy, even if that means overturning misguided “dual sovereignty” doctrine [Ilya Shapiro and Thomas Berry on cert petition in Walker v. Texas]
- “Justices Struggle With Cheerleader Uniform Case That Holds Big Implications For Fashion” [Daniel Fisher on Star Athletica v. Varsity Brands]
- More Federalist panels on Justice Scalia’s influence: showcase panel on his constitutional influence; federalism and separation of powers with Roger Pilon et al.; the impact of his writing style; criminal law and the Fourth Amendment; Heller, guns, and the Second Amendment;
- Appointments Clause makes one of few checks on unaccountable-by-design CFPB, Court should enforce it seriously [Ilya Shapiro on cert petition in Gordon v. CFPB]
Presidential candidate Donald J. Trump, following negative coverage including a story on his use of tax breaks in real estate development [The Hill]:
My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting
— Donald J. Trump (@realDonaldTrump) September 17, 2016
Vague lawsuit threats are usually the bumptious kind: there is no cause of action for “irresponsible intent.”
Presidential candidate Donald Trump, speaking today: “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” Trump also said of Amazon, whose Jeff Bezos owns the Washington Post, a newspaper that just ran an editorial seeking to rally opposition to Trump: “If I become president, oh do they have problems. They’re going to have such problems.”
The President has no direct power to change libel law, which consists of state law constrained by constitutional law as laid out by the Supreme Court in New York Times v. Sullivan. A President could appoint Justices intent on overturning the press protections of Sullivan or promote a constitutional amendment to overturn it. Assuming one or the other eventually was made to happen, further changes in libel law would probably require action at the state level, short of some novel attempt to create a federal cause of action for defamation.
But although Trump is unlikely to obtain the exact set of changes he outlines, the outburst is psychologically revealing. Donald Trump has been filing and threatening lawsuits to shut up critics and adversaries over the whole course of his career. He dragged reporter Tim O’Brien through years of litigation over a relatively favorable Trump biography that assigned a lower valuation to his net worth than he thought it should have. He sued the Chicago Tribune’s architecture critic over a piece arguing that a planned Trump skyscraper in lower Manhattan would be “one of the silliest things” that could be built in the city. He used the threat of litigation to get an investment firm to fire an analyst who correctly predicted that the Taj Mahal casino would not be a financial success. He sued comedian Bill Maher over a joke.
I have been writing about the evils of litigation for something like 30 years, and following the litigious exploits of Donald Trump for very nearly that long. I think it very plausible to expect that if he were elected President, he would bring to the White House the same spirit of litigiousness he has so often shown as a public figure. (cross-posted at Cato at Liberty)
P.S. Also reprinted at Newsweek. And Ilya Somin cites further elements forming a pattern: Trump has expressed his wish to “have the FCC take some of his critics off the airwaves” and his regret that protesters at his events could not be dealt with in such a way that they “have to be carried out on a stretcher.” He also writes that should Trump proceed to appoint judges who strongly share his view of libel law, those judges “are unlikely to effectively protect other important speech rights and civil liberties.” And a late-January post from Patterico recalls Trump threats against the Washington Post (again), John Kasich, a t-shirt company, and a Jeb Bush PAC, to which might be added the Club for Growth, reporter Tim Mak, Scotland, Univision, and many more. Yet more: Mike Masnick, TechDirt.
- To what extent should law schools pursue missions other than that of training lawyers to practice competently? [Ken at Popehat]
- Survivors of woman slain in terror attack seek $200 million from county of San Bernardino [Courthouse News] A pertinent 2001 Elizabeth Cabraser quote about terrorism and litigation: “If we sue each other, the terrorists win. We need to be united.”
- Self-driving car revolution is coming quickly, but there might still be time for feds to mess it up [Randal O’Toole]
- “NYT throws hissy-fit, sues over use of thumbnails in critical book” [Rebecca Tushnet via Mike Masnick, TechDirt]
- New laws from Brussels could endanger thousands of historic guns in British museums [Telegraph]
- Drawing on the organization’s entire moral authority, i.e. none at all, United Nations panel calls for U.S. to pay slavery reparations [Independent, Vice]
- Aviary Attorney: “The hottest bird lawyering game to come out of 1840s France!” [Steampowered via Lowering the Bar]
In its long-running campaign against arbitration as a contractually chosen alternative to its own services, the Litigation Lobby recently scored a coup in the form of a New York Times series intensely negative on the practice. I joined radio host Bob Zadek recently for a discussion of the issue.
More on arbitration recently from Jim Copland in the Wall Street Journal, from Daniel Fisher (“New York Times Cites The Wrong Case To Support Class Actions”) and Greg Herbers, Washington Legal Foundation (“Rebuffed Twice in Texas, the NLRB Takes its Crusade Against [Class-Action] Arbitration [Agreements] to California”).
- Now watch out for the next phase of the “ban the box” effort, which will demand that private employers not be allowed to ask about applicants’ criminal records [Open Society via @georgesoros]
- “We have one restaurant in Seattle, and we probably won’t be expanding there. That’s true of San Francisco and Los Angeles, too.” [Buffalo Wild Wings CEO Sally Smith via David Boaz]
- New York Times reporting vs. nail salons: the video [Reason, earlier] The other Greenhouse effect, in this case Steven: Times “sees the labor beat as having essentially an advocacy mission.” [Adam Ozimek]
- The lawsuits of September: “the EEOC has once again rushed to file a blitz of federal court complaints just under the fiscal year wire” [Matthew Gagnon, Christopher DeGroff, and Gerald Maatman, Jr., Seyfarth Shaw]
- I was a guest on Ray Dunaway’s morning drive time show on WTIC (Hartford) talking about cop fitness tests and the blind barber suit, you can listen here:
- NYC Commission on Human Rights — with an assist from Demos and New Economy Project — runs public ads saying “There’s no evidence that shows a link between credit reports and job performance. That’s why NYC made it illegal to use credit reports in employment decisions.” The “Suburbanist” responds: “We will punish those who depart from our null hypotheses regarding their business. Human rights indeed.”
- What are the biggest legal questions facing employers? “What is work?” and “Who is an employee?” are a start [Jon Hyman]
Poynter: “A blockbuster investigation from The New York Times that provoked officials to intervene in poor workplace conditions in nail salons throughout New York ‘went too far in generalizing about an entire industry,’ Public Editor Margaret Sullivan wrote Friday morning.” That’s, well, cautiously worded: as critics have demonstrated, the series got basic facts wrong and its falsehoods have hurt thousands of New Yorkers, especially struggling immigrants, in multiple ways.
Major congratulations to Jim Epstein, Elizabeth Nolan Brown, and the others at Reason and elsewhere who relentlessly exposed the faults in the Times coverage. And Sullivan’s letter is revealing about just why editors until now ignored Epstein’s Reason coverage, which blew up some of the series’ central allegations about advertised pay rates in the Chinese-language press and about supposed clusters of health effects. “The Times has not responded [because] editors think the magazine, which generally opposes regulation, [is] biased.” Some Twitter responses:
— Michael Calderone (@mlcalderone) November 6, 2015
— Virginia Postrel (@vpostrel) November 6, 2015