John Culbreath Blog

For the past 20 years, I have worked for an insurance company that insures lawyers for their malpractice. Trust me when I say I get it. There are going to be times when an insured doesn’t necessarily agree with every decision the company must make in trying to resolve his or her claim. That’s going to happen. What I don’t get is when an insured makes a decision to prevent us from helping at all. Written by Mark Bassingthwaighte When Responding to a Malpractice Claim, Please Try Not to Make It Worse. curated from Solo Practice University®

Eighth Circuit Cato amicus defends right of videographer couple in Minnesota not to film same-sex weddings for hire if they don’t care to [ Ilya Shapiro and Reilly Stephens ] Meanwhile: “California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding” [ Eugene Volokh , who takes a different side from Cato on expressive status of cake creation] “It’s all about the shared love for Disney.” Is that why they’re suing? [ Hugo Martin, Los Angeles Times ] “Whistleblower Lawyers See a Growth Area: Customs Fraud” [ Henry Cutter, WSJ ] Supreme Court hears oral argument in Janus, the public employee union fees First Amendment case [ Ilya Shapiro/Washington Examiner , SCOTUSBlog coverage by various authors, Amelia Thomson-DeVeaux/538 , earlier ] Copyright: “US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal'” [ Mark Savage, BBC ] Dangerous for an advice letter from an NLRB lawyer to say that references to gender-based differences in James Damore memo “were ...

Class 13 – 9/26/17 Slavery Watch Dred Scott v. Sandford Video on Casebook Connect Slavery, Citizenship, and the Due Process of Law (773-775) Dred Scott v. Sandford (775-799) The Adoption of the Thirteenth and Fourteenth Amendment (811-816) The lecture notes are here . Dred Scott v. Sandford This is Dred Scott. This is a cover sheet by the Supreme Court, summarizing the lower court disposition from Missouri, filed on December 30, 1854. This is the Court’s judgment in Dred Scott, dated March 7, 1857. The Dred Scott decision found unconstitutional the Missouri Compromise of 1820, which designated all new states north of 36 degrees, 30 minutes (except Missouri) to be free states. This map illustrates the free and slaves states in America. Plessy ConLaw Class 13 – Slavery curated from Josh Blackman's Blog

Class 13 – Future Interests I: Interests in Transferor and Transferrees Introduction, 313-315 Future Interests in the Transferor, 315-317 Future Interests in the Transferees, 317-321 Problems, 321 (1-4) (Read these pages very, very carefully).   The lectures notes are  here . Example 1. O conveys Blackacre “to A for life.” 0 has a reversion in fee simple that is certain to become possessory. At A’s death, either 0 or O’s successors in interest will be entitled to possession Example 2. 0 conveys Whiteacre “to A for life, then to B and her heirs if B survives A. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at A’s death. On the other hand, if A dies before B, O’s reversion is divested on A’s death and will never become possessory. O conveys Blackacre “to Hartford School Board so long as used for school purposes.” Prop1 Class 13 – Future Interests I: I...

The city of Saginaw, Mich. has ordered businesses in a long list of categories, including bars, phone sellers, and secondhand merchants, to install video surveillance systems whose output is to be made available on demand to the police [ Isis Simpson-Mersha, MLive via Scott Shackford, Reason ] Earlier proposals in Detroit and Maryland called for requiring gas station owners to install surveillance video systems, but this extends the idea to many other types of business. Tags: Michigan , surveillance Eyes on the community, and your business must participate is a post from Overlawyered - Chronicling the high cost of our legal system Eyes on the community, and your business must participate curated from Overlawyered

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“The dominant narrative about pain treatment being a major pathway to addiction is wrong, [and] an agenda heavily weighted toward pill control is not enough.” [ Sally Satel on origins of opioid crisis] The press gets it wrong: “A Young Mother Died Because Her Flu Meds Were Too Expensive – Or Did She?” [ Josh Bloom, ACSH ] New research brief: tort reform could have effects in both directions on innovation [ Alberto Galasso and Hong Luo, Cato ] Appalling: editor of The Lancet extols Marx as a guide to understanding medical science [ Theodore Dalrymple, Law and Liberty ] “We harbor a suspicion that half the drug/device tort cases we encounter are really medical malpractice cases in search of a deeper pocket” [ Stephen McConnell, Drug & Device Law Blog ] Should the Food and Drug Administration concern itself with the effect of its decisions on drug prices? [ David Hyman and William Kovacic, Regulation mag ] Tags: FDA , illegal drugs , medical , opioids , pharmaceuticals , tort...

Suspects in possession of 4,000 kilos of oranges, or four metric tons, said they had no idea where they came from [ Lowering the Bar , Spain] Tags: blue-ribbon excuses , crime and punishment , Spain Great moments in what-I-told-the-officer is a post from Overlawyered - Chronicling the high cost of our legal system Great moments in what-I-told-the-officer curated from Overlawyered

Amid horrendous misbehavior attributed to his emotional and behavioral disabilities, the future shooter was shuttled among various Broward County schools, including an episode being “mainstreamed” at Marjory Stoneman Douglas HS, scene of his later atrocity. Under the U.S. Rehabilitation Act of 1973, which has been intensively litigated over the years, “school districts are required to provide kids with physical, emotional or intellectual disabilities a free education in the ‘least restrictive’ setting, and to accommodate the needs of such students.” [ Carol Marbin Miller and Kyra Gurney, Miami Herald ] He “was well-known to school and mental health authorities and was entrenched in the process for getting students help rather than referring them to law enforcement….Beginning in 2013, Broward stopped referring students to police for about a dozen infractions ranging from alcohol and drug use to bullying, harassment and assault,” under influence of national campaign against “school-to-pr...

I have favorable words in this Fox News special report for the Trump administration’s push to streamline infrastructure permitting. Currently, even relatively straightforward projects can currently get stalled for years; states and cities have helped show the way with one-stop permitting, “concierge” service, shorter decision deadlines, and rules that reduce handles for litigation. Philip K. Howard’s Common Good organization, which has been working on this issue for years, likes the push too . Tags: Donald Trump , environment , regulation and its reform Cutting project red tape is a post from Overlawyered - Chronicling the high cost of our legal system Cutting project red tape curated from Overlawyered

You don’t have to think porn’s OK, or that speech never does harm, to see that Ross Douthat’s censorship ideas will fall flat on their face [ Rick Garnett/Prawfs , Taylor Millard/Hot Air quoting me, Elizabeth Nolan Brown , Tyler Cowen ] Group libel theory meets nationalism in Europe’s censorship creep: “Poland Passes Bill Criminalizing Claims Of Its Complicity In The Holocaust” [ Colin Dwyer/NPR , Eugene Volokh , Jacob Sullum ] “Arizona Bar Accuses Libel Lawyers of Suing Fake Defendants” [ Eugene Volokh ; related Paul Alan Levy ] First Amendment should protect t-shirt shop that refused to print gay pride message [ Ilya Shapiro on Cato amicus in Hands-On Originals case, involving Lexington, Ky. anti-discrimination law; earlier here , etc.] Federal judge rules Electronic Frontier Foundation need not obey an Australian court order directing it to take down a “Stupid Patent of the Month” blog post, finding the order “repugnant to the United States Constitution.” [ Kurt Opsahl, EFF ]...

On Sept. 24, 2017, President Trump signed a proclamation , better known as “travel ban 3.0,” which would have denied entry to aliens from six predominantly-Muslim nations. In doing so, he invoked “the authority vested in me by the Constitution and the laws of the United States of America.” In previous iterations of the travel ban, the president also cited both sources of power: constitutional and statutory. Several courts have ruled that the Immigration and Nationality Act (INA) does not give the president the statutory power to implement the travel bans. Yet, none of these courts engaged with the far more pressing question: Does Article II give the president the inherent power to issue the proclamation? In his concurring opinion to the Fourth Circuit’s en banc opinion , handed down on Feb. 15, 2018 Chief Judge Roger Gregory answers this question in the negative. He finds that the president had neither the constitutional nor the statutory authority to issue the proclamation. Other j...

Class 12 – 9/22/17 (Note Change of Date) The Separation of Powers II – Presidential Privileges and Immunities United States v. Nixon (682-688) Nixon v. Fitzgerald (688-696) Clinton v. Jones (696-704) Can the President be indicted? Can the President pardon himself? The lecture notes are here . Class 12 – The Separation of Powers II – Presidential Privileges and Immunities curated from Josh Blackman's Blog

Class 12  Estates III: Leasehold and Defeasible Estates Leasehold estates, 282-283 Defeasible Estates, 283-286 Mahrenholz v. County Board of School Trustees, 286-292 Notes, 292-294 Mountain Brow Lodge No. 82 v.  Toscano, 296-301 Notes, 301-302 Review Problems 1-4, 310 The lectures notes are here . This diagram represents the Fee Simple Defeasible , which comes with a Possibility or Reverter . For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action. This diagram represents the  Fee Simple Subject to Condition Subsequent, which comes with a  Right of Re-Entry . For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land. This diagram repres...

“When you find yourself threatening to find more reasons to put even more citizens in jail in order to protect your revenue stream, it’s maybe time to take a step back and think about what you’re doing.” [ Scott Shackford on Alabama forfeiture debate] How IRS spent $20 million on debt collection program that generated $6.7 million in payments [ Howard Gleckman, Tax Policy Center ] “Federal Judge Strikes Down New York City’s Dragnet That Seized Thousands Of Cars Without Warrants” [ Nick Sibilla, IJ/Forbes ] Prison phone calls and other captive markets: “Stop squeezing prisoners’ families for cash” [ Megan McArdle ] “The high price of being wrongly accused in Alabama’s ‘monetized’ criminal justice system” [ Ashley Remkus, Al.com ] “Cop Who Called Asset Forfeiture ‘A Tax-Liberating Goldmine’ Sued for Illegal Traffic Stop and Seizure” [ C.J. Ciaramella ; Kane County, Ill.] Tags: Alabama , forfeiture , Illinois , law enforcement for profit , NYC , prisoners , taxes Law enforcement...

Minimum 18 age for marriage, stadium subsidies, bill requiring landlords to distribute voter registration material, dollar-home programs, and more in my latest Maryland policy roundup [ Free State Notes ; earlier on NJ first-in-nation ban on under-18 marriage] Now shuttered by California regulation: startup that allowed home cooks to sell meals directly to neighbors [ Baylen Linnekin ] Guess who’s hosting a program of his own on Russia’s RT network ? Tub-thumping plaintiff’s lawyer, sometime RFK Jr. pal and longtime Overlawyered favorite Michael Papantonio; “Should the governments give LGBT-owned businesses a leg up in public contracts?” (Answer: no. Set-asides and preferences are unfair in themselves and deprive taxpayers and those served of the best price/value proposition.) [ Bobby Allyn, NPR Marketplace ] “Network effects” bogeyman gets deployed to bolster many an antitrust nostrum [ David S. Evans and Richard Schmalensee, Cato “Regulation” ] “The Future of Antitrust” Fed...

Class 11 – 9/19/17 The Separation of Powers I – The Appointment and Removal Power The Appointment Power (627-629) Morrison v. Olson (629-650) National Labor Relations Board v. Noel Canning (650-673) Could Trump Remove Special Counsel Robert Mueller? Lessons from Watergate The lecture notes are here . Saturday Night Massacre The headline of the New York Times on Sunday, October 21, 1973, the day after the Saturday Night Massacre. This helpful graphic explains the sequence of events on Saturday, October 20, 1973.   Morrison v. Olson This is Ted Olson, who at the time was the Assistant Attorney General for the Office of Legal Counsel. Olson would later serve as President George W. Bush’s Solicitor General. This is Alexia Morrison, who served as the Independent Counsel to investigate whether Olson violated federal law.   NLRB v. Noel Canning Gridlock and Executive Power from Josh Blackman This is the video of the Senate’s pro forma session on J...

Class 11 – 2/20/18 Estates II Fee Simple, Continued Inheritances, 258-260 Notes and Problems, 260-261 Fee Tail, 261-265 (skim) The Life Estate The Life Estate, 265 White v. Brown, 266-271 Baker v. Weedon, 274-278 Notes, 278-280 (skip note 4 on waste).     The lecture note are here . This diagram illustrates the life estate. Here is Jessica Lide’s will: April 19, 1972 I, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my niece Sandra White Perry to be the executrix of my estate. I wish Evelyn White to have my home to live in and not to be sold . I also leave my personal property to Sandra White Perry. My house is not to be sold. Jessie Lide (Underscoring by testatrix) Here is a picture of Jessica Lide’s home. Jessica Lide is on the right, Sandra White is in the middle.  Here is the current life expectancy table. If you were born in 1984, your life expectancy is 74.56 Here is the ...

“One year ago, Portland enacted inclusionary zoning. One year later, “apartment construction in Portland has fallen off a cliff.”” [ @michael_hendrix citing Dirk VanderHart, Portland Mercury ] Better policy is to focus on building supposedly unaffordable housing [ Scott Sumner ] Intractable problems of residential zoning and of public schooling in the U.S. have a great deal to do with each other [ Salim Furth, American Affairs ] New NBER study “suggests building energy codes hurt the poor, too” [ Vanessa Brown Calder, Cato ] Upzoning of Dumbo helped catalyze Brooklyn’s revival [ Ira Stoll ] How Henry George and followers influenced NYC property and tax policy, and the tax deal that helped touch off the Manhattan building boom of the 1920s [ Daniel Wortel-London, The Metropole ] How to live in some apartments forever without paying, and more tips for unscrupulous NYC tenants [ Jeremiah Budin, Curbed ] For “but,” read “therefore”: “Marin County has long resisted growth in the name...

To quote John K. Ross’s summary for Short Circuit : In 2002, owner of dilapidated industrial property in Queens, N.Y. entrusts its care to a group of artists, who improve its condition and cover it in graffiti, turning it into a tourist attraction and cultural site. In 2013, the owner, who plans to demolish the warehouses and build luxury condos, whitewashes over the art. District court : Which violated the Visual Artists Rights Act; pay $6.75 mil in damages to 21 artists. If the owner had waited a few more months while he got his building permits in order, he’d have been assessed a far more modest penalty. More: Alan Feuer, New York Times , ABA Journal . More on the Visual Artists Rights Act of 1990 here . Tags: art and artists , real estate NYC: 5Pointz building owner must pay graffiti artists is a post from Overlawyered - Chronicling the high cost of our legal system NYC: 5Pointz building owner must pay graffiti artists curated from Overlawyered

So, after much discussion, the ABA has proposed changes to the model rules relating to attorney advertising . Some of these changes are good. In particular, the proposed new solicitation rule focuses on substance (“is the attorney being overbearing?”) rather than the traditional blanket prohibition on in-person solicitation. But bold change? More like incremental adjustments. And the biggest whiff is that the ABA ethics committee didn’t take the opportunity to get rid of Rule 7.2. The Awful Rule 7.2 Rule 7.2 is the “specific restrictions on lawyer advertising” rule, and the core of this Rule predates Bates v. Arizona , the seminal 1977 case that found that lawyers have a First Amendment right to advertise. And pre-Bates, it stood for the proposition that lawyers could not advertise: A lawyer shall not give anything of value to a person for recommending the lawyer’s services. Instead of recognizing the change represented by Bates, the ABA simply added a caveat to Rule 7.2: A ...