My new post at Cato describes how a pro-Drug-War group is using civil RICO to go after banks, bonding companies, landlords, and other commercial vendors that do business with marijuana facilities legalized under Colorado’s Amendment 64. Whatever you think of the underlying Colorado law, RICO (I argue) puts too much power in the hands of bounty-hunting private lawyers. More: Josh Blackman.
Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?
Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:
In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.
By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.
Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”
Some lawyers have filed attempted mass suits (earlier here, here, etc. on Mohawk Industries case) claiming that by hiring undocumented workers employers have engaged in “racketeering” for which they should owe money under the RICO law to other workers, above and beyond whatever wages were agreed to at the time or prescribed by statute. It was always a strained theory, and now is said to be encountering tougher going because courts are being more particular about requiring that plaintiffs’ pleadings spell out plausible theories of proximate cause, injury and damages, under the Twombly/Iqbal standard by which the U.S. Supreme Court has toughened early scrutiny of lawsuits. If that’s so, chalk up one more Twiqbal victory for common sense and restraint in litigation. [Workplace Prof, from the Spring]
An attorney dad in Dallas “says a group of coaches coerced wealthy parents to pay thousands of dollars for their sons to play lacrosse”; his own son’s varsity involvement, however, proved a disappointment. His suit invokes the federal RICO (racketeering) statute. [KDFW]
Dividing 11-5: “Plaintiffs who failed in their state worker’s compensation claim cannot sue their employers and their medical experts under federal civil racketeering laws, the en banc 6th U.S. Circuit Court of Appeals has ruled.” [Jackson et al. v. Sedgwick Claims Management et al., PDF; Miller Canfield; Business Insurance; Steven Schwinn, Constitutional Law Prof Blog]
Prof. Mark Osler, who specializes in criminal law at University of St. Thomas Law School in the Twin Cities, interviewed at Abnormal Use:
The pairing of civil and criminal RICO was one of the worst ideas a law professor ever had (yes, one of us dreamed that one up). The extensive rule-making by courts in civil RICO cases has made interpretation and use of the statute so confusing and inefficient that prosecutors avoid it if they can, preferring to charge money laundering or something under the fraud statutes. Given the current state of the law, in which civil RICO is used to tie people up in endless litigation, we would be better off without RICO in the federal code.
The suit against Mohawk Industries had been billed as a test case for private litigation extracting cash from employers over use of illegal immigrant labor. An insurer will pay $13 million and the company said the remainder of the settlement was less than the legal costs of continuing to fight. [Fulton County Daily Report, earlier, etc.]
Soon, baby soon. Walter Olson’s new year’s resolution is to return to blogging at Overlawyered.
- International adoption is always a risky business, fraught with uncertainty: now aspriring parents, burned by changes in Guatemalan law, are suing adoption agencies alleging civil RICO liability;
- Some tasks can’t be delegated. New Jersey attorney sanctioned for sending paralegal to domestic court, where she appeared as “counsel” and advocated on behalf of the client;
- Some tasks can’t be delegated, part II: Las Vegas personal injury lawyer Glen “The Heavy Hitter” Lerner complains that he can’t understand rules prohibiting Nevada lawyers from allowing attorneys not licensed in Nevada to sign up Nevada clients, prepare demands, negotiate claims, and serve as the clients’ sole contact within the firm. The Nevada Supreme Court disciplines Lerner anyway, figuring that after multiple past reprimands Lerner could take a hint;
- Some tasks shouldn’t be delegated: Arkansas authorities investigating attorney Terry Lynn Smith, who “invested” a client’s substantial personal injury settlement, then admitted that “all of her money was gone.”
- And then some tasks should definitely be delegated: Top Obama aides are “lawyering up” in response to the Blagojevich probe;
- The fall of Dickie Scruggs has been named as the top story of the year in Mississippi, by the Associated Press;
- God told me to beat you up. Texas church claims first amendment immunity from tort liability arising from an exorcism gone horribly awry (via WSJ Law Blog);
- Rise and Fall of the Great Powers: former Republican presidential candidate Ron Paul believes that the recessed economy is a blessing in disguise. Meanwhile, Paul continues to accept the franking privilege and his salary from taxpayers.
What are you resolving to accomplish in the new year?