- “Photos of Your Meal Could be Copyright Infringement in Germany” [Petapixel]
- National Labor Relations Board opts to dodge a fight with college football [Daniel Fisher, Forbes]
- Governor’s commission charged with recommending new redistricting system in Maryland includes possibly recognizable name [Washington Post, Southern Maryland Newspapers; thanks to Jen Fifield for nice profile at Frederick News-Post]
- Trial bar’s assault on arbitration falls short: California Supreme Court won’t overturn auto dealers’ standard arbitration clause [Cal Biz Lit]
- Ontario lawyer on trial after prosecutors say sting operation revealed willingness to draft false refugee application [Windsor Star, more]
- “Vaping shops say FDA regulation could put them out of business” [L.A. Times, The Hill] Meanwhile: “e-cigarettes safer than smoking, says Public Health England” [Guardian]
- I was honored to be a panelist last month in NYC at the 15th annual Michael R. Diehl Civil Rights Forum, sponsored by the law firm of Fried, Frank, alongside Prof. Marci Hamilton (Cardozo) and Rose Saxe (ACLU) discussing the intersection of religious accommodation and gay rights [Fried, Frank] Also related to that very current topic, the Southern California Law Review has a symposium on “Religious Accommodation in the Age of Civil Rights” [Paul Horwitz, PrawfsBlawg]
- Please just don’t: “Should Happy Hour be banned?” [New York Times “Room for Debate”]
- “This furniture must be affixed to the wall with the enclosed wall fastener.” Ikea liable for tip-over hazard anyway? [Nick Farr, Abnormal Use, Pennsylvania]
- Oh, great: making writers declare as taxable income the (face?) value of review-copy books they’re sent [Ira Stoll, Future of Capitalism]
- “Every state county or municipality…should think long and hard before taking a dime in HUD money.” [Richard Epstein, Hoover “Defining Ideas”, “The Folly of ‘Fair’ Housing”] “Confusion and uncertainty” in housing sector as to what disparate impact liability actually will mean, after Supreme Court ruling [Hans Bader, CEI; earlier]
- And he’ll take the low road: “Donald Trump sued Scotland” [Lowering the Bar, earlier]
- Garlock database shows “staggering” amount of money changing hands in asbestos litigation [Madison County Record]
- Harm reduction and its enemies: “Two Surveys Find That Almost All Regular Vapers Are Smokers” [Jacob Sullum, earlier]
- Analyzing the Norton Rose survey numbers: US business faced the most litigation, followed by UK, Canada had least [Above the Law, earlier]
- Daimler doomsday? “Under the proposed law, any claim against a foreign company that registers with the New York secretary of state could be filed in New York courts, regardless of where the alleged wrongdoing took place or who was harmed.” [W$J, Alison Frankel last year, defense of bill]
- BP Gulf spill: “Seafood companies owned by man previously convicted of fraud accused of perpetrating $3 million Deepwater Horizon fraud” [Louisiana Record]
- “Facing Sanctions, Law Firm Tries To Block Interviews With Thalidomide Clients” [Daniel Fisher]
- Litigation finance: speculator’s handling of Beirut car bombing payout raises eyebrows [W$J via Biz Insider]
- “American Energy Companies Latest Victims of TCPA Lawsuit Abuse” [Chamber’s Institute for Legal Reform] “FCC Has A New Robocall Ruling, And It Doesn’t Look Pretty for Business” [Henry Pietrkowski]
- Bad US idea reaches Canada well after peaking here: “Tobacco companies ordered to pay $15B in damages” [CBC]
- Alan Dershowitz, Harvard lawprof, suing TD Garden over slip and fall in bathroom three years back [Boston Globe]
- “Harsh Sanction Proposed For Attorney Who Blogged About Probate Case” [Mike Frisch, Legal Profession Blog]
- Maryland veto sets back reform: “Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive” [Adam Bates, Cato]
- “‘Vape’ bans have little to do with public health” [Jacob Grier, Oregonian in February]
- Academics prosper through expert witness work, part one zillion [Ira Stoll]
- Sounds good: call for civil procedure reform includes fact-based pleading, strict discovery limits, case-specific rules, and more [Jordy Singer, Prawfs, on recommendations from American College of Trial Lawyers Task Force on Discovery and Civil Justice and Institute for the Advancement of the American Legal System]
- Draft plan would arm FTC with vast power over data practices [James C. Cooper, Morning Consult, via @geoffmanne]
Which won’t, of course, be the last step as prohibitionists work out the implications of what they call a “tobacco-free” America. But it does at least raise a slogan-atic question: Old enough to fight, old enough to vote, why not old enough to drink and smoke too? [Debra Saunders, San Francisco Chronicle, who also reminds us that for all the nostalgic talk of Reagan and individual liberty, Reagan was the one who signed the bill (passed by a GOP Senate) arm-twisting states into putting the drinking age up to 21]
- Ohio appeals court: code enforcement officers in town of Riverside can be personally liable for towing cars off man’s property without due process [The Newspaper; Vlcek v. Chodkowski, Second Appellate District, Montgomery County]
- “FDA’s proposed cigar crackdown could effectively ban up to 80% of stogies currently sold in US” [James Bovard, Washington Times; earlier here, here]
- Don’t decriminalize subway farebeating, says Nicole Gelinas, it’s a deliberate theft and a damaging one (though “enforcing the fare helps enforce New York gun laws” may not work as an argument unless you admire those gun laws) [New York Post]
- Lawyers take Fifth and (via their attorney) blame paralegal over DUI setup of a trial opponent [ABA Journal; Adams and Diaco, Florida]
- “The Questionable History of Regulatory Reform Since the APA” [Stuart Shapiro and Deanna Moran, Mercatus]
- Did American rebels of 1776 fight for English liberties, or universal Rights of Man? [David Boaz, Cato, taking issue with Daniel Hannan]
- “Appeals court scolds Apple monitor, but does not remove him” [Jeff John Roberts, Fortune; Eriq Gardner, THR; Colin Lecher, The Verge; earlier]
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.”
- “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
- New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
- Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
- “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
- CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
- “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
- The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]
Actual cigarette smoking among teens, the kind that requires inhaling carcinogenic products of combustion, is down a startling 25 percent in one year and nearly 42 percent since 2011. The reason is the rapid substitution of vaping or e-cigarettes, which hold singular promise as a harm-reduction measure for those drawn to the nicotine habit. Great news, right? Not if you listen to Thomas Frieden of the Centers for Disease Control, who’s doing his best to disguise good tidings as bad so as to stoke the officially encouraged panic about vaping. New York Times columnist Joe Nocera nails Frieden on the issue [h/t @jackshafer], providing a model of appropriately skeptical press scrutiny of someone who hardly ever gets subjected to that. More on Frieden; David Henderson on how FDA hostility to vaping could slow the shift from more-toxic alternatives; related, Greg Gutfeld on California ads trashing e-cigs.
P.S. Andrew Stuttaford thinks Frieden’s not in denial, he knows better.
Lawyers Brendan and Nessa Coppinger moved into their row house in Washington, D.C.’s Capitol Hill neighborhood last September. They have now gotten a judge to agree to a temporary restraining order prohibiting their neighbor, Edwin Gray, from smoking or allowing anyone to smoke on his property. The Coppingers say the smoke is getting onto their premises through openings between the connected structures and “is harming them and their children”; they also want cash damages. The Gray family has owned the house next door for 50 years. [AP/ABC13 via ABA Journal; Washington Post]
Benjamin Freed at Washingtonian was kind enough to quote me at length making several points about this and similar litigation: 1) it would have been thrown out over most of the course of legal history because courts insisted that nuisance and similar claims (in this case couched as “negligence, nuisance, and trespassing”) exceed a de minimis standard and, in a claim for damages, required proof of actual harm going well beyond “you hit me with a molecule and that could kill me”; 2) smoking is uniquely disapproved nowadays which means some courts are willing to entertain de minimis claims that they would not for other common neighborhood nuisances; 3) if carcinogenic smoke drifting across property lines is to be stopped, both backyard grills and barbecues and common fireplaces are in trouble, at least if courts behaved logically — a very big if, of course. (It should be noted that the lawsuit includes some claims — such as that an unrepaired chimney at the Grays’ is contributing to the smoke problem — that might fit more readily into traditional legal categories.)
The temporary court order, incidentally, also bars the Gray family from allowing any smoking of now-legal marijuana in their house, which prompts this additional thought:
“It does make you wonder why conservative opponents of marijuana would bother to fight legalization in DC when instead they can let it go through and get rich suing over it,” Olson says.
Whole thing here.