- Cato Daily Podcast on changes in the Endangered Species Act with Jonathan Wood of the Pacific Legal Foundation and Cato’s Caleb Brown;
- In 1971 Judge J. Skelly Wright of the D.C. Circuit let loose the craziness by reading NEPA, passed a year earlier, as giving private parties the right to challenge government actions [Richard Epstein, Hoover “Defining Ideas” via John Cochrane]
- Ambassador Nikki Haley says U.S. will not support U.N. global pact on environment [Ben Evansky, Fox News]
- Recent Federalist Society audio features on Clean Water Act include Jonathan Adler and Timothy Bishop on deference and Peter Prows, Tyler Welti, Jonathan Wood, and Tony Francois on exemptions;
- Tree, tree, go away: some of what’s wrong with the California scheme to mandate solar panels on all new homes [John Cochrane]
- “The Defeat of California Senate Bill 827 and the Future of the Struggle to Curb Zoning” [Ilya Somin]
- Texans tangle over municipal ordinances requiring preservation of trees on private land [Mindy Fetterman, Huffington Post]
- WOTUS, SCOTUS, and POTUS: “The Supreme Court wrestles again with the Clean Water Act’s due process deficit” [Jonathan Wood, earlier]
- Florida turned land into bird sanctuary without owners’ consent. As compensation it gave them “points.” Takings review needed [Ilya Shapiro and Meggan DeWitt, Cato on Ganson v. City of Marathon and Trevor Burrus’s first official brief] Alas, SCOTUS has denied certiorari on two other property rights cases, 616 Croft Ave. v. City of West Hollywood and Wayside Church v. Van Buren County;
- “How Suburban Parking Requirements Hold Back Downtown” [Nolan Gray, Market Urbanism]
- “Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?” [Andrew R. Varcoe, WLF]
- Short Circuit: “Does Texas’ delegation of its eminent domain power to private pipeline companies violate the Due Process Clause? Probably not, according to this Fifth Circuit panel.” [John Ross, Short Circuit, on Boerschig v. Trans-Pecos Pipeline]
I joined Thomas Stebbins and host Liz Patterson on Wednesday to discuss municipal liability on New York Time Warner Cable’s Capital Tonight, with the conversation reaching such perennial Overlawyered topics as trees and playgrounds. I was in Albany to keynote (and sign books at) the annual meeting of the Lawsuit Reform Alliance of New York, which Stebbins directs; my talk mentioned the recent Saratoga County case in which an adult woman sued her brother after a trampoline injury, Ralph Nader’s Museum of American Tort Law, and many other topics.
The $720 million that New York City paid out in judgments and claims in fiscal 2016 amounts to more than the payouts of the next 19 biggest cities combined, writes Thomas Stebbins in a piece for the Progressive Policy Institute based on a new Governing magazine article by Mike Maciag on the burdens of municipal liability. (Four of the nation’s 24 biggest cities did not respond to the Governing survey and are not included in the calculation.) Trial lawyers’ political clout in New York — which has preserved such throwbacks as the notorious “scaffold law” in construction — is a prime reason, and it doesn’t help that the state’s highest court has begun regularly handing down verdicts driving the law in a pro-plaintiff direction. While serious police brutality suits are only too common in the city, flimsy ones are too:
In past years, New York often agreed to pay out small settlements just to make cases go away. Elizabeth Daitz, who heads the police department’s legal unit, says it got to the point to where protesters would taunt police officers at rallies, telling them about settlements they’d received and threatening to sue again. One settlement in early 2015 drew particular ire from officials. A man wielding a machete had threatened police officers and was shot in the leg during an altercation; the man then accused the police of wrongdoing. The city agreed to a $5,000 settlement, even though the man had plead guilty to menacing an officer. Mayor Bill de Blasio vowed to make changes. “Unfortunately, the reality is, if we stand and fight, we will be spending a lot of time in court, using up a lot of lawyers, and it will cost a lot of money,” he told reporters after the settlement was announced. “But it’s worth it to end the madness of these frivolous lawsuits, which are not fair to the city, and not fair to the officers involved.”
One favorable trend for New York City: payouts by its Health and Hospitals Corporation declined somewhat after the city put the entity in charge of its own legal cases.
- Federal Circuit court of appeals says government can’t deny trademark as “disparaging” just because it frowns on its expressive content, implications are favorable for Washington Redskins in their legal case [Eugene Volokh, Paul Alan Levy, In Re Simon Shiao Tam opinion, case won by past Overlawyered guestblogger Ron Coleman]
- Mentally ill man walks into San Diego county recorder’s office, submits properly filled-out deed transferring major sports stadium to his name, chaos ensues [San Diego Union Tribune]
- Lawsuit against prolific California class action firm includes details on how it allegedly recruits plaintiffs, shapes testimony [Daniel Fisher]
- New Jersey: “Man Sues Because Alimony Checks Were Mean To Him” [Elie Mystal/Above the Law, ABA Journal]
- Blustery Texan Joe Jamail, “greatest lawyer who ever lived” or not, was no stranger to Overlawyered coverage [Houston Chronicle, Texas Monthly (“We only overpaid by a factor of five, and that felt like a win”), Daniel Fisher (city should have cut down beloved oak tree in road median because “it isn’t open season on drunks”)] Jamail’s best-known case gave me chance to write what still might be my all-time favorite headline, for a Richard Epstein article in what is now Cato’s (and was then AEI’s) Regulation magazine: “The Pirates of Pennzoil.”
- Hotel security camera footage may help decide whether Eloise tainted-sandwich tale will end up shelved as fiction [New York Post]
- Your War on Drugs: shopping at garden store, throwing loose tea in trash after brewing combine with police goofs to generate probable cause for SWAT raid on Kansas family’s home [Radley Balko] More: Orin Kerr.
“A tourist visiting the Bay Area for Fleet Week last year was doing nothing more than reading and napping under a tree in a federal waterfront park in San Francisco when a 16-pound pine cone fell on him and crushed his skull, his lawyer said Monday.” According to the suit, coniferous Araucaria bidwillii trees, “more commonly known as bunya pines or false monkey puzzle trees…are not indigenous to the area” and their “seedpods, or pine cones, can grow to enormous sizes, reaching nearly 16 inches in diameter and weighing up to 40 pounds.” [SFGate] “Living under Bunya Pines is not for the faint hearted,” advises one 2014 account from Australia, where the trees are native. “You get a little bit of warning when they fall, says a farmer who has five old ones near his house. “They clatter through the branches, and you just start running.”
Discontent at a land-use control process perceived as “condescending and obnoxious” helped fuel a surprise voter revolt in affluent Chevy Chase, Md., just across the D.C. border in Montgomery County. [Washington Post] Aside from intensive review of requests to expand a deck or convert a screened-in porch to year-round space, there are the many tree battles:
[Insurgents] cite the regulations surrounding tree removal as especially onerous. Property owners seeking to cut down any tree 24 inches or larger in circumference must have a permit approved by the town arborist and town manager attesting that the tree is dead, dying or hazardous.
If turned down, residents can appeal to a Tree Ordinance Board, which applies a series of nine criteria to its decision, including the overall effect on the town’s tree canopy, the “uniqueness” or “desirability” of the tree in question and the applicant’s willingness to plant replacement trees.
While in a perfect world all risks could be avoided, in the actual world we live in, life comes with risks that may be unavoidable, obvious, or both, Ontario’s highest court has unanimously ruled. It declined to assign liability to the town of Cayuga over a 2001 incident in which a teenager climbed a popular climbing tree in a public park, fell off, and was rendered a paraplegic. He sued, saying the town should have taken measures such as prohibiting climbing or warning of danger.
“Trees, being by their very nature things which can be climbed and therefore fallen from, are potentially harmful,” the court said. “Any danger posed by this tree was an obvious one. If you chose to climb it, you could fall and be injured.”
A lower court judge dismissing the suit in 2013 declined to create a municipal duty to prevent injuries by developing and enforcing a ban on tree climbing in the park. “There has to be a reasonable limit to such prohibitions on human activity,” he said. [Toronto Star; note the pioneering 2003 English case Tomlinson v. Congleton Borough Council discussed here and here]
- Price of California eggs soars following animal-rights measure [WSJ via Michael Greve] “An Orangutan Has (Some) Human Rights, Argentine Court Rules” [Brandon Keim, Wired via Althouse, related U.S.]
- Trees cut down by utility “are priceless — each one I could value at $100K,” Fieger said” [Detroit Free Press via @jamestaranto, more on Geoffrey Fieger; henceforth sums of $100,000 will be known as “one Fieger-tree”]
- As New Englanders struggle with energy costs, pols kill the gas pipelines that could bring relief [Urbanophile]
- Power-plant regs from EPA, based on flimsy science, show “federal agency twisting statutory language to aggrandize its own power.” [Andrew Grossman; Cato brief in Michigan v. EPA]
- California state agency proposes regulations purportedly easing burdens of notorious Prop 65 warning law [Cal Biz Lit]
- “When I got there, there were people in SWAT attire that evacuated our entire factory.” [Chamber’s Faces of Lawsuit Abuse on Gibson Guitar raid]
- Would a minimalist state funded by Pigouvian taxes run a budget surplus? [Bryan Caplan]
- Falling tree limb injures woman, jury orders city of Savannah to pay $12 million [Insurance Journal]
- Dept. of Interior mulls lowering threshold for federal recognition of Indian tribes [AP]
- Section 230: “The Law that Gave Us the Modern Internet, and the Campaign to Kill It” [Derek Khanna, The Atlantic]
- Interview with false-memory expert Elizabeth Loftus [Slate]
- “No meaningful costs or downsides” to the Microsoft antitrust case? Really? [Tom Bowden]
- NSA covertly intervened in standards making process to weaken encryption standards [Mike Masnick, TechDirt] After being rebuffed by public opinion in quest for dragnet surveillance programs, NSA quietly put programs in place through other channels [Jack Shafer; related, Ken at Popehat]
- Given the limitations of litigation, better not to lament the shortcomings of the NFL concussion settlement [Howard Wasserman]