Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘WO writings’

A Baltimore cookie drama, in two acts

Act I: In a widely read Nov. 15 piece in Atlas Obscura, Priya Krishna reports on “the quest to save Baltimore’s Berger Cookie,” a beloved local food institution. “One of the most essential ingredients in the Berger Cookie is trans fats. Trans fats are what make the chocolate super creamy, prevent the fat and the water in the dough from separating (which would yield an overly crumbly cookie), and keep the cookie stable in both very warm and very cold settings.” However, the Obama administration enacted a federal ban on trans fats — for your own good, you know — which goes into effect next year.

Cookie producer Charlie DeBaufre, interviewed by Krishna, “refers to the past year as ‘frustrating and scary,’ as so many of his trans fat-free experiments have been failures. ‘I have spent $10,000 trying to get this worked out. I am not a big business. I don’t have an R&D Department. I have to shut down production for a few hours, still pay people for labor, and then most of the product gets trashed. It’s tough.'” More background in a piece I wrote for Cato last week.

Act II: Then a twist, reported by Sarah Meehan in the Baltimore Sun Nov. 21: the fudge supplier had managed to replace trans fats months ago and didn’t tell Berger’s. While early attempts to reformulate fudge frosting without trans fats had suffered from various quality defects, the new recipe was much improved to the point where neither consumers nor Berger’s had noticed.

So a happy if unexpected ending, at least for this one company, right? But the regulatory downside — you just knew there had to be one — was that in changing its recipe the fudge supplier had added more sugar, which appears to have boosted the calorie count and might have changed other things reported in the Nutrition Facts box as well. Since Berger’s says it didn’t know about the new formula, one inference might be that for a while it has been shipping cookies with a faulty calorie/nutrition count on the package. Hello to class action woes and, if the FDA is in a bad mood, regulatory liability?

Filed under: , , , ,

Gerrymandering discussion continues at Cato Unbound

Our discussion, kicked off with my opening essay earlier this month, continues with Michael McDonald and Raymond La Raja and now my response to them. (& welcome Election Law Blog/Rick Hasen readers). In other news, I played a bit part (as guest speaker) in this William & Mary project using GIS tools to redraw Virginia house districts, thanks to Profs. Rebecca Green and Robert Rose.

Filed under: , ,

Gerrymandering: a libertarian perspective

I’ve got the lead essay in the November Cato Unbound, on the theme of redistricting reform. I talk about why classical liberals and libertarians might have something to contribute to the national debate on that topic.

When I mention that I am active in efforts to curb gerrymandering, some people react with surprise: “Oh, is that that a libertarian issue?”

It should be, I think. Libertarians are in some ways especially well situated to spot the harms that can result when politicians get to select which constituents they would like to represent rather than vice versa. And the issue fits well into a long tradition of classical liberal thinking about electoral process and representation, among the goals of which is to restrain existing establishments from gathering too much power unto themselves.

Contributors Eric McGhee, Michael McDonald, and Ray La Raja will be weighing in with responsive essays as the month proceeds.

Filed under: ,

Turning the legal screws on retail wine-over-the-net

The powerful alcohol wholesalers’ lobby has been putting the legal squeeze on consumers’ access to retail wine across state lines. I explain in a new Cato post.

More: Also possibly relevant, this 2012 paper by Omer Gokcekus and Dennis Nottebaum, abstract:

This study develops thirteen criteria to detail diverging direct shipping laws of the U.S. states. It also investigates why some states have prohibitive laws by utilizing a logit regression model. Regression results provide strong support for public finance and special interest arguments: It appears that states concerned about incurring losses in tax revenues, that is, that are heavily dependent on federal aid and have low state revenues, and protecting the wholesalers and retailers that benefit from the three-tier system (at the expense of wineries and wine drinkers) are most likely to have a prohibitive law.

Filed under: ,

After many a workplace enactment, is D.C. experiencing mandate fatigue?

Washington, D.C. “Council Chairman Phil Mendelson …has proposed a moratorium through the end of 2018 on [labor-law] bills that would negatively affect businesses.” About time, too: “While D.C., like Seattle and San Francisco, has the slack to absorb large-scale folly thanks to its role in hosting a booming sector of today’s economy, it is not entirely immune from nearby competition, a few miles away in Virginia and Maryland.” Let’s hope this snaps the recent streak of employer mandate legislation in cities and states that see themselves as progressive. I discuss in my new Cato post.

Filed under: , , ,

Constitution Day at Cato

September 17 marks Constitution Day. One of the wonderful things about being at Cato is that my work encourages me to write about constitutional law regularly, which means constantly learning new things about the founding document by studying it and commentaries on it.

Over the past year I’ve written about the Emoluments Clause; the No Religious Tests clause; limits on presidential power as defined in the steel seizure case; the meaning of the oath of office; how the Appropriations Clause constrains lawsuit settlements involving the federal government; how and whether gerrymandering by race and for partisan advantage affects constitutional rights; judicial independence; the decline and fall of the Contracts Clause; the application of Obergefell to issues of public employees and birth certificates; Article V procedure for calling a new constitutional convention; and too many First, Second, Fourth, and Fifth Amendment controversies to list.

The U.S. Constitution is very much alive, not in the Living Constitution caricature of a document emptied of most durable or objective meaning, but in the sense that most persons in charge of all three major branches of the federal government and state and local government, whichever their party, continue to try to act by its guidance according to their lights, however unnerving and lamentable the occasional exceptions may be.

Today (Monday) you can tune in online to Cato’s annual Constitution Day symposium. I’ll be moderating the afternoon panel on property rights and religious liberty (the Murr and Trinity Lutheran cases, and no, it’s not clear that we need to find any actual connection between them).

Filed under: , ,

In which I defend the national anthem

Not quite an Overlawyered topic, but: The crazies who defaced the Francis Scott Key statue in Baltimore the other day weren’t just lawless goons — they were wrong about the song too. I explain at National Review.

I might have added countless other examples of songs, poems, and nationalist rhetoric in which “slave” was employed 1) as an epithet, 2) to signify subjection to kingly or other un-republican authority, or 3) both, everywhere from Patrick Henry’s famous speech to Schiller’s Wilhelm Tell to Rule, Britannia! to La Marseillaise. Suffice it to say that the word’s occurrence in a poem — even one penned by a slaveholder — needs to be read in context to determine whether American chattel slavery was the intended reference, and in the case of the third verse of the national anthem, there are plenty of reasons to think it was not.

Filed under: , , ,

September 13 roundup

  • Scranton, Pa. federal judge “denies ‘exorbitant’ request for nearly $1M in attorney fees after $125K recovery” [ABA Journal; arose from bad faith insurance action on underlying uninsured motorist claim that settled for $25,000]
  • As PETA settles monkey selfie case with hapless photographer, details confirm that “Naruto is really just a prop to be deployed in the case as PETA sees fit.” [Ted Folkman, Eriq Gardner, earlier] A sad catalogue of litigation abuse enabled by PETA’s donors [Frank Bednarz thread]
  • Lively First Circuit opinion upholds extortion conviction of small town police chief [Bob Dunn, Berkshire Eagle, U.S. v. Buffis via IJ’s John Ross, “Short Circuit“; Lee, Mass.]
  • She beat DOMA and the IRS too, and all in great style. My appreciation of Edith Windsor [Cato at Liberty]
  • “North Carolina’s Fickle Finger of Redistricting” [also by me at Cato at Liberty]
  • Me: “Posner was the judge lawyers really didn’t want to run into if they had bad class action settlements to defend” [Jonathan Bilyk, Cook County Record, earlier]

Filed under: , , , , , , , , ,

Yes, feds need to rethink campus sexual misconduct policies

A series of tweets I did about Thursday’s major announcement on Title IX policy from Secretary of Education Betsy DeVos:

I went on to explain that it all starts with the Department of Education’s OCR (Office for Civil Rights) 2011 Dear Colleague letter, and the further guidance that followed, which I wrote up here.

That’s a quote by Yoffe from a California Law Review article by Jacob Gersen and Jeannie Suk Gersen previously noted in this space here and here.

The courageous Harvard Law professors who called for a rethink of the Obama-era policy — Janet Halley, Elizabeth Bartholet, Jeannie Suk Gersen and Nancy Gertner — were profiled in a recent issue of The Crimson and in earlier coverage in this space here and here.

More coverage of DeVos’s speech and initiative, in which she pledged to use appropriate notice-and-comment methods rather than Dear Colleague guidance to introduce changes (“The era of ‘rule by letter’ is over”): Christina Hoff Sommers/Chronicle of Higher Education, Benjamin Wermund/Politico, Jeannie Suk Gersen/New Yorker, KC Johnson and Stuart Taylor, Jr./WSJ and cases going against universities, Johnson/City Journal, Bret Stephens/NYT (“no campus administrator was going to risk his federal funds for the sake of holding dear the innocence of students accused of rape”), Foundation for Individual Rights in Education, Hans Bader/CEI, Scott Greenfield and more (no basis in law to begin with), Robby Soave/Reason and more.

Filed under: , , , , ,

When prosecutors team up, and when they don’t

I’m in today’s New York Post. Excerpt:

“Mueller teams up with New York attorney general in Manafort probe,” Politico reported Wednesday. Commentators went wild.

What could be more exciting than for the special counsel investigating the Russian matter to team up with noted Trump foe Eric Schneiderman? Neither the president nor Congress can lay a glove on him; some of the legal weapons he wields go beyond what Mueller has at his disposal; and if Schneiderman obtains convictions in state court, Trump will have no pardon power. It’s like two superheroes with coordinating capes and powers!

Around liberal Twitter, it was a total game changer. “THIS IS BIG!!!!!!” typed Amy Siskind of New Agenda, hailing the sort of news for which four or five exclamation points won’t do. “What’s Russian for ‘Trump’s goose is cooked?’” crowed Harvard’s Laurence Tribe.

In the opposite camp, the Trumpian claque at Breitbart argued that with the combative New York AG on board — Schneiderman has long feuded with Trump, and is widely disliked by Republicans — the whole Russian probe can be dismissed as tainted. The connection “undermin[es] the integrity and impartiality of Mueller’s inquiry,” wrote Joel Pollak. “There could not be a more inappropriate person to be seen working with Mueller.”

Both sides should calm down….Federal and state prosecutors are supposed to cooperate when investigations overlap. That’s what they do.

I go on to discuss sharing of grand jury information, the ripples of dismay sent by Trump’s Joe Arpaio pardon (on which more from Josh Blackman here, see also and earlier), and New York’s Martin Act. Whole thing here.

Filed under: , , , ,