John Culbreath Blog

Here are my commentaries, media hits, and speaking engagements from March 5, 2018 through May 30, 2018. The bulk of these hits concern the CUNY protest, as well as the travel ban.   Articles Defiance and Surrender , 59 So. Texas L. Rev. (2018).   Commentary Conservative and Libertarian Lawyers in the Era of Trump , Lawfare (May 29, 2018). Dueling Cosmic Injunctions, DACA and Departmentalism , Lawfare (May 22, 2018). The Easy Way Forward on Trump v. Hawaii , Lawfare (Apr. 25, 2018). CUNY Law students heckled my talk on campus free speech , NY Daily News (Apr. 21, 2018). Students at CUNY Law Protested and Heckled My Lecture about Free Speech on Campus , National Review (Apr. 12, 2018). Testing California’s “Sanctuary Law,” Wall Street Journal (Mar. 13, 2018) (with Ilya Shapiro) ( Reproduction ). Analysis of IRAP v. Trump Part I: The Fourth Circuit’s Reliance on Pre- and Post-Inauguration Statement s, Lawfare (May 27, 2017). Analysis of IRAP v. Trump Part II: The Fourth

“Back in 2015, two cases were decided within days of each other that allowed claims to go forward suggesting that a pharmacy could be potentially liable for both filling suspect prescriptions (see here ) and for not filling suspect prescriptions (see here ). Hence ‘damned if you do (question a prescription) and damned if you don’t.'” A key element on one side: pharmacies that refuse to fill prescriptions that they believe show red flags are apt to explain themselves to customers, and those explanations can expose them to defamation actions filed by the doctors who wrote the scripts. [ Michelle Yeary, Drug and Device Law ] Tags: libel slander and defamation , opioids , pharmaceuticals , sued if you do On filling dicey prescriptions, sued if you do… is a post from Overlawyered - Chronicling the high cost of our legal system On filling dicey prescriptions, sued if you do… curated from Overlawyered

The ease of the internet has allowed us to instantly satisfy any curiosity. What happens when a judge is curious to learn more about facts beyond what the parties have presented? Consider the following scenario. Written by Allison Wood Help Keep Your Judge Out of Trouble curated from Solo Practice University®

“Leave your 13-year-old home alone? Police can take her into custody under Illinois law” [ Jeffrey Schwab, Illinois Policy ] So many stars to sue: Huang v. leading Hollywood names [ Kevin Underhill, Lowering the Bar ] Morgan Spurlock’s claim in 2004’s Super Size Me of eating only McDonald’s food for a month and coming out as a physical wreck with liver damage was one that later researchers failed to replicate ; now confessional memoir sheds further doubt on baseline assertions essential to the famous documentary [ Phelim McAleer, WSJ ] If you’ve seen those “1500 missing immigrant kids” stories — and especially if you’ve helped spread them — you might want to check out some of these threads and links [ Josie Duffy Rice , Dara Lind , Rich Lowry ] “Antitrust Enforcement by State Attorney Generals,” Federalist Society podcast with Adam Biegel, Vic Domen, Jennifer Thomson, Jeffrey Oliver, and Ian Conner] “The lopsided House vote for treating assaults on cops as federal crimes is a bi

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 ] Tags: California , endangered species , environment , international law ,

The right of publicity, or right to control the commercial use of one’s identity, has developed as judge-made law and in state statutes; it also figures in many other nations’ law, often under the heading of “personality rights.” Together with the convention of treating it as a form of property rather than a personal right it leads to some practically dubious consequences, discussed by guest blogger Jennifer Rothman in a series of Volokh Conspiracy posts based on a new book. Among them are legal risks for reporting on and depictions of both living and deceased persons, including biographies and discussion of public figures; proposals for transferability and alienability of the right would also mean that persons can in some circumstances lose control over their identities while alive . Tags: publishers , right of publicity Some problems with the right of publicity is a post from Overlawyered - Chronicling the high cost of our legal system Some problems with the right of publicity

Paradoxically or otherwise, makers of products like perfume cannot trademark their scents, because the fragrance needs to be “nonfunctional.” The Play-Doh scent is “one of only about a dozen scent trademarks that the [U.S. Patent and Trademark Office] has recognized to date, including Verizon’s ‘flowery musk’ store scent, the bubble-gum smell of Grendene jelly sandals, and the scent of strawberries with which Lactona toothbrushes are ‘impregnated.'” [ Lowering the Bar ] Tags: trademarks “Play-Doh Smell Trademarked” is a post from Overlawyered - Chronicling the high cost of our legal system “Play-Doh Smell Trademarked” curated from Overlawyered

Some McDonald’s stores used to charge separate prices for Quarter Pounders depending on whether they did or did not include cheese, but then moved to a policy of charging the same price either way. Lawyers have now filed an intended class action claiming that two South Florida clients “have suffered injury” because under the new pricing scheme they “were required to pay for cheese… that they did not want and did not receive.”” [ Howard Cohen, Miami Herald ] Tags: class actions , McDonald's “They like a Quarter Pounder without cheese. So they’re suing McDonald’s for $5 million” is a post from Overlawyered - Chronicling the high cost of our legal system “They like a Quarter Pounder without cheese. So they’re suing McDonald’s for $5 million” curated from Overlawyered

HBO has prevailed in a copyright and trademark lawsuit brought by the creator of a piece of graffiti on a dumpster that was briefly glimpsed (for two or three seconds) in a show. [ Timothy Geigner, Techdirt ] Tags: art and artists , copyright , movies film and videos HBO sued over three-second shot of graffiti is a post from Overlawyered - Chronicling the high cost of our legal system HBO sued over three-second shot of graffiti curated from Overlawyered

Prisoners die of drug overdoses at a high rate in their first week after release. That’s in part a prohibition-related problem [ Jeffrey Miron, Cato ] “Drug testing kits can detect the presence of fentanyl and other contaminants — but in many places, including Illinois, they are classified as illegal drug paraphernalia.” [ Steve Chapman ] “Hospitalized Patients Are Civilian Casualties in the Government’s War on Opioids” [ Jeffrey A. Singer, Cato , more ] Texas: “Opioid lawyers pumped $110K into LaHood’s campaign after Bexar County DA hired them” [ David Yates, Southeast Texas Record ] “State senator working with Watts on home turf opioid lawsuit, lawyers billing Hidalgo County $3,800 an hour” [ SE Texas Record ] “Cities Vs. States: A Looming Battle For Control Of High-Stakes Opioid Litigation” [ Daniel Fisher on Tennessee AG’s intervention] All 50 states have now adopted prescription drug monitoring programs, but do they work as intended? [ Jeffrey Singer , Jacob Sullum ] Tags

Your dog can get vaccinated against Lyme disease, but you can’t. Thanks for nothing, anti-vaxxers and trial lawyers! [ Brian Resnick, Vox ; earlier ] The article touches only briefly on the role of lawyers and litigation in this episode, but it’s been documented at more length by, among others, Paul Offit in his book The Cutter Incident . Tags: vaccines “The incredibly frustrating reason there’s no Lyme disease vaccine” is a post from Overlawyered - Chronicling the high cost of our legal system “The incredibly frustrating reason there’s no Lyme disease vaccine” curated from Overlawyered

Driver of pickup truck loses control on Texas interstate, crosses median and strikes oncoming semi-trailer truck. Among passengers in pickup truck are two kids, one killed and one horribly injured. Driver of oncoming semi was in own lane, did not lose control, and was driving under speed limit. Plaintiff’s creative theory: there might have been ice on the road, the Werner Enterprises manual tells drivers not to drive during icy conditions; so the driver should not have been on the road at all, and if he hadn’t it would have averted that particular collision. Werner, in its defense: not only was evidence contradictory as to whether conditions were icy or just damp, but driver guidelines do not somehow create legally binding obligations to third parties or prove negligence that could not be shown otherwise. Jury to Werner Enterprises: pay $89.6 million. [ Michael O’Connor, Omaha World-Herald ] Tags: autos , deep pocket Pickup crosses interstate median, strikes oncoming vehicle. Guess w

I had lunch recently with a young lawyer who has been out of work for a while. She had worked for a BigLaw firm for a couple of years before getting caught up in a layoff. Several months later, she was still searching for a law firm that wanted to hire her. She was, quite frankly, a little desperate. I suggested to her that perhaps she needed to hang a shingle instead of sending out more résumés. ”I’m not like you,” she told me. “I can’t hang a shingle. I need a JOB. I need a steady paycheck. I don’t know how to start a firm. I don’t WANT to.” I get it. Not everyone wants to run a business. Some people just want to work for someone else. My sister, a pediatrician, has resisted starting her own practice for over 20 years despite being worked to death by her employers. She would rather deal with ridiculous expectations about seeing a patient every 15 minutes, signing off hundreds of charts a week, and dealing with CMEs, credentialing, insurance billing, etc. than have to manage a m

Judge denies motion to dismiss Title IX suit against Laura Kipnis [ Maddie Burakoff, Daily Northwestern , KC Johnson thread on Twitter] First Circuit appeal considers whether persons unconnected with a university can initiate Title IX complaints against it [ District of Rhode Island decision in Doe v. Brown via Nicholas Wolfinger thread on Twitter] “Do we really need to tell you how a rent control regulatory takings claim fared in the Ninth Circuit? We didn’t think so.” [ Robert Thomas, Inverse Condemnation , on Colony Cove Properties, LLC v. City of Carson ] Judge boots 30-year-old who refused to move out of parents’ house [ Douglass Dowty, Syracuse Post-Standard ] As the Supreme Court narrows the gate for Alien Tort claims, here come the inevitable proposals to widen it again by statute, as by FCPA-izing ATS [ Pierre-Hugues Verdier and Paul Stephan, Lawfare ] “Theatre Must Provide Captioning For All Live Performances Says Federal Judge” [ Minh Vu, Seyfarth Shaw ; Fabulous Fox

District courts in  San Francisco  and  Brooklyn  have issued nationwide injunctions barring the Trump administration from rescinding the Deferred Action for Childhood Arrivals program , President Obama’s 2012 deferred-action policy to protect certain young immigrants from deportation. Earlier this month, Texas and six other states challenged the legality of DACA in the U.S. District Court for the Southern District of Texas in Brownsville. In light of the  2015 precedent from the Fifth Circuit,  which  invalidated the closely related Deferred Action for Parents of Americans program (DAPA) , I suspect that Texas’s challenge will succeed. If the district court issues an injunction that is not stayed by a higher court, the Trump administration will face an immediate conflict between  dueling nationwide injunctions . What would the government do? When asked, during a recent  oral argument  before the Ninth Circuit, a Justice Department lawyer candidly replied, “What we would do in that c

More on this to come, but Epic Systems , the workplace arbitration decision, is an epic win for contractual freedom and a big loss for the class action bar [earlier here and here ] SCOTUS will revisit 1985 Williamson decision, which “makes it very difficult to bring takings cases in federal court.” [ Ilya Somin on cert grant in Knick v. Township of Scott, earlier ] Gorsuch and Thomas: similar originalist methods, which do not always arrive at similar results [ Ilya Shapiro ] “Can Agencies Adjudicate Patentability?” Two views of the recent case Oil States Energy Services v. Greene’s Energy Group [ Cato “Regulation,” Jonathan Barnett and Jonathan Stroud via Peter Van Doren] “Victory for Defendant Autonomy and the Criminal Jury Trial in McCoy v. Louisiana” [ Jay Schweikert ] Quantitative analysis of amicus brief success at Supreme Court tells many stories, one of them is the sterling success record of the Cato Institute’s amicus program [ Adam Feldman, Empirical SCOTUS ] Tags:

The great scholar Richard Pipes, known above all for his work on Russia and the Bolshevik Revolution, has died at 94. In 1999 I favorably reviewed his book on property as an institution, Property and Freedom: The Story of How through the Centuries Private Ownership Has Promoted Liberty and the Rule of Law. I’ve got a new post at Cato pulling together a few highlights of his work on property, along with miscellaneous links. Tags: property law , Russia , WO writings RIP Richard Pipes is a post from Overlawyered - Chronicling the high cost of our legal system RIP Richard Pipes curated from Overlawyered

The San Francisco District Attorney’s Office announced it will use an algorithm to help determine expungement eligibility for those with some marijuana convictions going back… San Francisco District Attorney to use algorithm to aid marijuana expungements curated from ABA Journal Daily News - Business of Law

Some people could only hear Yanny. Others could only hear Laurel. Yet, they were listening to the same exact sound waves. The only distinction was how their brains treated different frequencies. The New York Times added a new feature that lets you adjust the frequency of the recording\ to determine at what point Laurel switches to Yanny. It warped my mind. When I start off playing a clear “Yanny,” I hear “Yanny” at virtually all of the frequencies. When I start off playing a clear “Laurel,” I hear “Laurel” at virtually all of the frequencies. The same exact sounds waves that enter my ear register as completely different words, based on what information I primed myself with beforehand. This meme afforded me an opportunity to reconsider broader debates about politics, constitutional theory, and legal interpretation. Two people can be confronted with the same exact situation, yet perceive totally different realities. Neither approach is necessarily right or wrong, but is premised on c