- “Unthinkable”: Cuomo executive order protects New York medical professionals from liability for much care extended during the emergency [Robert Gavin, Albany Times-Union] Will liability capsize the nursing home business? [AP/WBFF, Maggie Flynn/Skilled Nursing News; Lydia Wheeler and Valerie Bauman, Bloomberg]
- To raise hospital capacity, flatten certificate-of-need laws [Matthew D. Mitchell, Thomas Stratmann, and James Bailey, Mercatus, earlier]
- Cato Daily Podcasts with Will Rinehart on regime uncertainty for developers of COVID-19 tests and Jeffrey Singer on telemedicine, hosted by Caleb Brown;
- As virus cut swath through nursing home population, states like Virginia and Maryland cited health privacy laws as reason not to release data breakdowns [Kate Masters, Virginia Mercury] “And, despite not knowing what threat the [info would be used] for, the group had pre-emptive ethical clearance to immediately gather samples from patients – something which would take weeks or months in other countries.” Seems to have served Australians well [Tyler Cowen]
- From early in crisis: ways in which feds relaxed hospital rules [Valerie Bauman and Lydia Wheeler, Bloomberg Law]
- Some pre-crisis links: “Must an employer pay for medical marijuana? Apparently yes – at least in New Jersey.” [Alexander Castelli, LexBlog] “The ACA Expanded Insurance Coverage of Contraceptives. Prices Soared.” [Michael Cannon, Cato at Liberty] Vaccines, birth control, Accutane: as plaintiff’s lawyers kept winning, the public kept losing [Beck]
- As country eyes path to reopening, restart of non-COVID-19 medical care, including postponed surgeries, is desperately needed [Hans Bader, James Bacon (Virginia governor’s “statewide ban on elective surgery is a sledgehammer which may be appropriate for the hardest-hit parts of the state but is wildly inappropriate for others.”]
- Michigan’s Gov. Whitmer rolls back some of the more arbitrary and controversial restrictions in her stay-at-home order [Billy Binion, Reason]
- Tech firms among the first to respond when the virus appeared here: “So, the approximate order of events was: private sector response, then local government response in the west, then response in the east and by the Federal government.” [Arnold Kling]
- We previously linked our Cato online panel on the pandemic and the Constitution; now our friends at Competitive Enterprise Institute have written a very nice review and summary of it [Richard Morrison, CEI]
- Especially given its conduct during this outbreak, expenditures on the World Health Organization deserve top-to-bottom reevaluation [Lyman Stone, The Dispatch; Anish Koka]
- “COVID-19 Exposes the Shallowness of Our Privacy Theories” [Jane Bambauer, Truth on the Market]
As demand for videoconferencing and other online services soars in the pandemic emergency, European policymakers “are now eating crow and entreating video platforms to downgrade the quality of their streams, an about face from the regulatory dogma that ‘all data is equal'” You mean net neutrality wasn’t all it was cracked up to be? On dubious European concepts of data privacy, meanwhile: “The GDPR’s forced data minimization has dulled the effectiveness and granularity of data from mobile apps, devices, and networks which can help manage quarantine efforts and ideally lessen restrictions in uninfected zones.” [Roslyn Layton, AEI; Stewart Baker on the phone location app used in Singapore’s contact tracing efforts] Related: Alec Stapp thread (greater U.S. investment in broadband). More: Thomas Firey, Cato.
- Authorities arrested man who stood in front of courthouse passing out leaflets encouraging jury nullification. Michigan Supreme Court should uphold his First Amendment rights [Clark Neily and Jay Schweikert on Cato Institute brief in Michigan v. Wood, earlier here, here, and here]
- Also on the topic of jury nullification, is that an appropriate metaphor for things happening with the Senate and impeachment? [Jim Galloway, Atlanta Journal-Constitution, quotes me]
- In 2018 an Eleventh Circuit panel green-lighted a suit claiming that it was unconstitutional for Alabama to enact a law pre-empting Birmingham’s local enactment of a higher minimum wage, on the claim that the white-led state lawmaking majority had acted with the purpose and effect of injuring African-Americans, who (it was argued) were more likely to be beneficiaries of the wage mandate. Now the full circuit en banc (over a dissent) has dismissed the case on standing grounds without deciding whether disparate racial impact can taint otherwise neutral laws [Lewis v. Governor of Alabama]
- New California law CCPA, promoted as giving consumers the right to see and delete their data, results in users being required to yield up more data and creates new security risks [Kashmir Hill, New York Times via Gus Hurwitz (“anyone who didn’t see this coming shouldn’t be in the business of writing laws”)]
- Wasatch Brewery’s Polygamy Porter (“take some home to the wives”) is deemed okay by regulators in its own state of Utah, but is too naughty for their counterparts in North Carolina [Hayley Fowler, Charlotte Observer]
- Symposium on “The Politicization of Antitrust” with Luigi Zingales, Alec Stapp, and others [Truth on the Market] And “The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals” with Makam Delrahim, Maureen Ohlhausen and others [Federalist Society National Lawyers Convention]
The new California law on consumer data is stringent but, as is so often the case with that state’s legislation, less than pellucidly clear [Natasha Singer, New York Times] :
“Companies have different interpretations, and depending on which lawyer they are using, they’re going to get different advice,” said Kabir Barday, the chief executive of OneTrust, a privacy management software service that has worked with more than 4,000 companies to prepare for the law. “I’ll call it a religious war.”
The new law has national implications because many companies, like Microsoft, say they will apply their changes to all users in the United States rather than give Californians special treatment.
If you have wondered how the Parkland killer could have asserted a legal right to be “mainstreamed” into Marjory Stoneman Douglas High School despite a long history of violent tendencies, this investigation by the local newspaper may provide your answer.
In an eight-month investigation, the South Florida Sun Sentinel found that a sweeping push for “inclusion” enables unstable children to attend regular classes even though school districts severely lack the support staff to manage them. … Even threatening to shoot classmates is not a lawful reason to expel the child….
“It’s just a no-win scenario right now,” said attorney Julie Weatherly, of Mobile, Alabama, who advises school districts on the legal complexities of removing aggressive students when they have a disability. “Nobody wants a Parkland, of course. It’s this huge nightmare.”
Aside from IDEA, the federal disabled-rights-in-school laws, and its sometimes even more stringent state counterparts, federal education privacy laws are involved as well. A Broward County teacher chose to break the rules after an elementary student “obsessed” over a girl, tormented her if she withheld attention, and on being removed from the classroom one day cried and screamed her name while throwing himself against a door:
The girl’s mother had no idea her daughter was being terrorized. Because of the student’s federally protected privacy rights, Budrewicz’s bosses cautioned her not to tell the mother — a warning she ultimately defied. The mom cried and thanked her and removed her daughter from the class the next day, she said.
In case you were wondering exactly where the supposed “right to be forgotten” leads in Internet regulation:
A convicted murderer in Germany has the right to get all mention of his crime deleted from internet search results under the EU’s “right to be forgotten” provision, Germany’s highest court has ruled.
Let’s hope the United States never decides to follow Europe’s path by restricting speech rights in the name of personal data erasure. [Bill Bostock, Business Insider]
- “Prices may vary” disclaimer said too small: “A Couple Is Suing Taco Bell for Overcharging Them $2.18 for Chalupas” [Jelisa Castrodale, Vice] “Bronx man sues NBC Universal over ‘unlimited’ soda refills at theme park” [Emily Saul and Natalie O’Neill, New York Post]
- An old Florida law bans the use in alcoholic beverages of grains of paradise, a spice widely available online, resulting in a class action lawsuit against makers of a well-known British gin [Baylen Linnekin]
- Post-decision Federalist Society podcast on Frank v. Gaos (Supreme Court remands on standing issue without resolving issue of cy pres adequacy) with the eponymous Ted Frank;
- “FTC’s comprehensive study finds median consumer class action claims rate is 9%” [Alison Frankel, Reuters]
- A recent Ted Frank win: “U.S. appeals court voids Google ‘cookie’ privacy settlement that paid users nothing” [Jonathan Stempel, Reuters] “Zappos data breach settlement: users get 10% store discount, lawyers get $1.6m” [Catalin Cimpanu, ZDNet] “Worse, 10% code doesn’t stack w/ existing discounts.” [@tedfrank on Twitter]
- California privacy law fuels class actions over smart speakers such as Amazon’s Alexa, Google Home and Apple’s Siri [Alicia A. Baiardo & Christine M. Mastromonaco, Class Action Countermeasures]
- Philadelphia Common Pleas Court, long a forum-shopping destination, draws lawyers to sue over cladding after London’s Grenfell Tower fire [David Murrell, Philadelphia magazine]
- Georgia lawprof Elizabeth Chamblee Burch argues in new book that lawyers are enriching themselves at the expense of their clients in mass tort multidistrict litigation [her site; Katheryn Tucker, Fulton County Daily Report; Leigh Beeson, UGA Today, more]
- “Court cases reveal secret litigation networks for trucking accidents” [Aaron Huff, Commercial Carrier Journal]
- U.S. Chamber report on private rights of action and privacy claims by Mark Brennan, Adam Cooke, and Alicia Paller of Hogan Lovells;
- “Is PFAS the next asbestos? Probably not, lawyers say, but it may come close” [Daniel Fisher, Legal NewsLine]
- Uh-oh: “Progressive advocates have recently begun working with legislators in a handful of states to provide a qui tam mechanism for enforcing state statutory rights.” [Myriam Gilles and Gary Friedman, SSRN]
Judge William Alsup of the federal court in San Francisco has refused a motion to certify a privacy class action in which the named plaintiff would be a man who has “filed 10 other California Invasion of Privacy Act actions, none of which ever reached the class certification stage” but instead concluded with private settlements [Mario Marroquin, Legal NewsLine; Alison Frankel, Reuters]
“Wuest’s litigation history is more than unusual,” Alsup wrote. “This order finds that it shows a pattern of using the threat of class action to extract an undeserved premium on an individual claim. This pattern is further evidenced by the fact that in several of the bases, both Wuest and his counsel received settlement amounts disproportionate to maximum recovery allowed under the statute.
“The pattern is quite clear. The premium was something rightfully due to the ‘class’ but no absent putative class member ever got anything. Wuest and his counsel got it all.”