John Culbreath Blog

The way Duane Forrester sees it, digital voice assistants like Amazon’s Alexa or Google Home are just the beginning. The voice recognition technology and UI will continue to improve—and to infiltrate every area of our lives, including how we search for businesses large and small online. Unlike paid search, though, there’s currently no paid shortcut into the voice search landscape, meaning companies with the deepest pockets can’t get a leg up just because they pay to play. Duane is the Vice President of Industry Insights at Yext. Watch his full presentation, The Power of Voice Search + Digital Knowledge Management, here: “To be crystal clear on this, the sexiest part of voice today is the UI,” Forrester says. “It’s being able to speak to your device and issue a command without having to type. In order to actually be spoken out loud, there is not one thing you have to do; you have to meet a very long list of requirements.” Currently, search rankings for all businesses are influenced

In recent years, data has infiltrated everything we do. To adapt to current consumer trends, lawyers must improve their firm’s internal processes. Jack Newton, Clio CEO and Co-Founder, and Patrick Palace, owner of Palace Law, are here to usher lawyers into the age of data-driven law and to help answer questions around how lawyers can be more data focused in their law practices. Watch the full presentation, The Age of Data-Driven Law, here: “Why isn’t the law something like a process that we’re continually trying to measure, optimize, and re-measure?” says Newton. “You want to measure what your state is at one point in time, make some improvements and see how you’ve evolved and how you’ve been able to improve that business process.” This thinking led inspired Newton and Clio to create the Legal Trends Report to identify data at a granular level, so lawyers can see a swath of relevant and timely information—from average billable rates per practice area to how those rates compare bet

“They Shared Drugs. Someone Died. Does That Make Them Killers?” [ Rosa Goldensohn, New York Times in May, earlier on overdose prosecutions here , etc.] Also from May, missed this good Jill Lepore piece on rise of victims’ rights revolution, powered by both feminist and conservative impulses [ The New Yorker ; my comment on victim impact statements] UK: sexual assault cases collapse after prosecution shown to have held back material helpful to defense [ Sky News ] “The ongoing problem of conveniently malfunctioning police cameras” [ Radley Balko ] Bail reform activists shift focus toward problems with/tradeoffs of risk assessment algorithms, suggesting that previous “whole problem is private actors making a buck” theme might have been oversimplified [ Scott Shackford , earlier here , here , here , etc.] Calif. Gov. Jerry Brown signs comprehensive bail reform bill [ Jazmine Ulloa, L.A. Times ] Second Circuit: New York’s gravity-knife law isn’t unconstitutionally vague [ opinion

“You don’t auction professional services,” said Terry O’Rourke, assistant county attorney for Harris County (Houston), Texas, in charge of the opioid litigation, regarding the hefty 35% fee plus expenses the county has contractually agreed to pay to its contingency-fee outside counsel. Meanwhile, Dallas County for its representation in the same litigation “sets the contingent fee at the lesser of 12.5% or a “base fee,” calculated as four times hourly rates ranging from $900 an hour for partners to $200 for paralegals.” Some of the lawyers hired by Harris County have been active political donors: “It’s not uncommon for elected officials to hire their political allies for contingency fee work.” Harris County’s contract with three outside law firms also requires the county to pay a fee based on its total recovery before expenses, while many municipal clients have negotiated more favorable deals in which the contingency fee is a percentage of the recovery after expenses…. The fact that

The New York Times report, by Anemona Hartocollis, is here . In the background, legal incentives: universities often get sued for major sums after students commit suicide. No enrolled student status? No lawsuit exposure. We have been covering this interplay of bad legal incentives since at least as far back as 2006 , 2007 and 2009 , and have reported on enough litigation in this area to have a tag for the issue of campus suicide. Filed under: student suicide Students at risk for suicide asked to leave universities curated from Overlawyered

Today’s lecture notes are  here . Today we will continue our discussion of deeds and warranties. We will reference this  Texas General Warranty Deed  in class. Here is a  sample warranty deed from Texas , an  earnest money contract . Today we will be covering mortgages. You can view samples of Texas mortgages here: Texas home equity fixed note Texas mortgage deed of trust Texas’s Anti-deficiency statute is here . (c)  If the court determines that the fair market value is greater than the sale price of the real property at the foreclosure sale, the persons against whom recovery of the deficiency is sought are entitled to an offset against the deficiency in the amount by which the fair market value, less the amount of any claim, indebtedness, or obligation of any kind that is secured by a lien or encumbrance on the real property that was not extinguished by the foreclosure, exceeds the sale price. If no party requests the determination of fair market value or if such a request

The lecture notes are here . Unprecedented: The Constitutional Challenge to Obamacare from Josh Blackman ConLaw Class 6 – Enumerated Powers III – The Affordable Care Act (“Obamacare”) curated from Josh Blackman's Blog

Everyone makes mistakes. Some are minor errors like a typo. Some are more significant and can jeopardize your client’s case. The question arises as to what duty a lawyer has to tell the client they made a mistake. Consider the following scenario. Written by Allison Wood Do You Have an Ethical Duty to Tell the Client You Made a Mistake? curated from Solo Practice University®

Astonishing investigation into feds’ “235 school shootings a year” statistic: “NPR reached out to every one of those schools repeatedly over the course of three months and found that more than two-thirds of these reported incidents never happened. …We were able to confirm just 11 reported incidents.” [ Anya Kamenetz, Alexis Arnold, and Emily Cardinali, NPR ] Sentences that make you go back and read twice: “Mister Cookie Face lawyer Blake Hannafan also applauds the verdict and says 600 lb Gorillas ‘overreached.’” [ AP/WHEC , Metro West Daily News on legal battle between Massachusetts dessert company and ice cream supplier] “In-N-Out Burger sends pun-filled letter to beer maker to address ‘brewing’ trademark issue” [ ABA Journal ] In Arkansas, socially conservative Family Council Action Committee enlists in the ranks against liability reform, and some less-than-charitable souls wonder whether $150,000 in donations from a Little Rock law firm might have had anything to do with that [

Here is my Fall 2018 lecture circuit schedule: 8/28/18 – Federalist Society Chapter at Samford School of Law, Cumberland University. 8/29/18 – Federalist Society Chapter at University of Houston Law Center 8/30/18 – Federalist Society Chapter at University of Arizona College of Law 9/6/18 – Federalist Society Chapter at Texas A&M School of Law 9/13/18 – Federalist Society Chapter at Case Western School of Law 9/14/18 – “International Law and Policy in the Age of Trump” at Case Western Reserve School of Law 9/17/18 – Federalist Society Chapter at George Washington University Law School 9/17/18 – Cato Institute Constitution Day 9/18/18 – Federalist Society Chapter at Georgetown University Law Center 9/21/18 – The 14th Amendment at 150 Symposium, at George Mason University Scalia Law School 9/27/18 – American University Federalist Society Chapter 9/27/18 – Cato Institute Digital Event 10/2/18 – Federalist Society Chapter at University of Texas School of Law 10/4/18 – F

Simone and Lyder Johnson say they were drawn to Ponce Inlet, Florida, where they bought land and made plans to construct their dream home. Sensing that the town may be able to benefit, Ponce Inlet persuaded the Johnsons to expand their plans into “a delightful mixed-use waterfront development.” Over several years, the Johnsons bought additional parcels while working hand-in-hand with the town. They were amenable to providing everything the town asked for, like a nature preserve and boat slip. After millions of dollars were spent, the town changed its mind, halted all work, denied permits, and went so far as to pass legislation prohibiting all development on the Johnsons’ property. Under current regulatory takings law, government is hardly ever required to pay compensation when it forbids the use of land. Is the injustice in this case extreme enough to tempt SCOTUS to revisit the issue? [ Ilya Shapiro, Trevor Burrus, and Meggan DeWitt on Cato certiorari brief in Pacetta v. Ponce

From Martyn Reding on Twitter : When the design team loses a debate with the legal team. pic.twitter.com/oYTnvNVqQ0 — Martyn Reding (@martynreding) August 21, 2018 Tags: humor , overwarning “When the design team loses a debate with the legal team…” curated from Overlawyered

A win for class action objector Ted Frank as Seventh Circuit allows him to challenge what he described as “objector blackmail” payments to other intervenors [ Amanda Bronstad, National Law Journal , Pearson v. NBTY] City of Seattle pays $13 million to settle suit alleging negligent probation supervision of drunk driver [ Jessica Lee, Seattle Times , Brian Flores, KCPQ , my 2005 take on Washington’s unique rules on sovereign immunity and more ] “Family sues Dum Dum lollipop maker over son’s alleged choking incident” [ Alexandra Hein, Fox News ] Thanks to New York’s Scaffold Law, co-op and condo boards “can be held liable for millions of dollars in damages – even if the injured worker was drunk or failed to use safety equipment.” [ Habitat mag ] “Coverage for East Side Access [infrastructure project] has surpassed half a billion dollars” [ Will Bredderman, Crain’s New York ] As Brett Kavanaugh’s SeaWorld dissent shows, he’s a judge who takes assumption of risk seriously [ ABA Journ

Today we will talk about implied warranties of quality, and introduce the concept of the deeds. The lecture notes are available  here . This  story  about whether a seller has a duty to disclose that a previous owner of a home died from a drug overdose ties into our lecture from last class. Also this  story , explores whether a buyer in New York City can recover a $5 million downpayment for a luxury home. This  article  talks about a Pennsylvania case where a buyer seeks to rescind a contract to purchase a house because the seller failed to disclose there was a murder-suicide in the home. Finally, we will reference this  Texas General Warranty Deed  in class. Here is a  sample warranty deed from Texas , an  earnest money contract .   Prop2 Class 5 – Deeds & Warranties of Title I curated from Josh Blackman's Blog

The lecture notes are here . South Dakota v. Dole This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996. United States v. Lopez This is Thomas Edison High School in San Antonio, Texas, the site where Alfonso Lopez, Jr., brought a gun to school in violation of the Gun-Free School Zones Act of 1990. I obtained these (blurry) photographs from Lopez’s high school yearbook. The caption reads “Rushing down the field, Alfonzo Lopez warms up before the game.” United States v. Morrison This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford. Gonzales v. Raich This is Angel Raich, the lead plaintiff in Gonzales v. Raich. Here is a photograph of Raich using a marijuana vaporizer. Right to Left: Robert Raich, Angel McClary Raich, (a younger

End of the road at last for Steven Donziger, impresario of Chevron/Ecuador litigation? [ Joe Nocera, Bloomberg ] Building expensive housing improves housing availability at every income level [ Sonja Trauss, Market Urbanism Report ] “Ms. Durst did what any law-abiding citizen would do: She demolished the structure and tossed the twigs, moss and shells into the woods…. The fairy house wasn’t up to code.” [ Ellen Byron, WSJ , courtesy Regulatory Transparency Project] Last month’s judicial rejection of NYC climate suit came after plenty of foreshadowing [ Daniel Fisher (“persuasive authorities” were two overturned court decisions); New York Daily News and New York Post editorials] Ban on smoking in public housing reflects truism that unless you own property, your home isn’t really your castle [ Shane Ferro, Above the Law ] Obama-era Waters of the U.S. regulations are a power grab asserting EPA control over farmers’ ditches, seasonal moist depressions, and watering holes; on

Don’t: “Former lawyer is charged with stealing client identities to apply for litigation advances” [ Debra Cassens Weiss, ABA Journal ; Marietta, Georgia] “Website Access and Other ADA Title III Lawsuits Hit Record Numbers” [ Minh Vu et al., Seyfarth Shaw ; related, Julia Limitone, Fox ; earlier ] More compliance deadlines for movie theatres on captioning and audio description [ Kevin Fritz, Seyfarth Shaw ] Because this damaging exercise in maritime protectionism isn’t going away, Cato has launched a Project on Jones Act Reform [ earlier ] Worth keeping an eye on: proposals for “International Convention on Business and Human Rights” [Carlos Lopez, Opinio Juris, first , second posts] Alan Reynolds on the return of antitrust [ Regulation mag via David Henderson, Econlib ] A guide to Regulation mag articles on antitrust over the years [ Peter Van Doren ] Federalist Society conference on The Antitrust Paradox [opening remarks with Hon. Makan Delrahim and Dean Reuter first , seco

My new piece at Commentary on a San Francisco jury’s verdict ordering Bayer/Monsanto to pay $289 million to a school groundskeeper who blamed Roundup herbicide for his cancer. It bids to go down in the history books alongside the lawsuits “claiming that silicone breast implants caused auto-immune disease, common childhood vaccines caused autism, the morning sickness drug Bendectin caused birth defects, one or another make of car suddenly accelerated without any input from the driver or gas pedal, and so forth.” At the end it concludes: “Eventually, our liability system does often get around to rejecting baseless scientific claims of causation, especially since the improvement in the handling of expert evidence embraced by the U.S. Supreme Court in Daubert v. Merrell Dow (1993). Before it gets there, however, it sometimes redistributes large sums—often to claimants, even more reliably to lawyers—and often destroys large amounts of value. In the days after the San Francisco verdict,

Following the law wherever it leads in Maryland: “Prince George’s County filed a legal case against a Laurel couple in their 90s over a wheelchair ramp in their own home. To avoid legal trouble, the elderly couple’s son tore down the ramp, trapping the woman in her own home. The county permitting department said the family had no permit to build a wheelchair ramp in front of their own home.” [ WJLA ] Filed under: disabled rights , land use and zoning “County compels 91-year-old woman to tear down home wheelchair ramp” curated from Overlawyered

Getting together to do a national We’re-Not-The-Enemy-Of-The-People Day might not play to the strengths of an independent press [ Jack Shafer ; New York Post on why it did join, and L.A. Times on why it didn’t] Kevin Williamson wishes that many in the institutional press were more than just fair-weather friends of free speech values [ NRO ] ““Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted” [ Eugene Volokh ] “Can Fake News Be Regulated?” Federalist Society policy brief video with Thomas Arnold; Once you get past the headline, Adam Liptak’s NYT account of First Amendment differences at the Supreme Court is well done [ Roger Pilon ] Is Internet freedom failing? [ Knight Institute symposium with Jack Goldsmith et al.] How does moderation actually work at leading social media firms? [ Kate Klonick, Harvard Law Review ] The ABA’s Model Rule 8.4(g) , in the name of combating harassment and discrimination, encourages states to regulate many expressions o

New Jersey court orders Google to take down newsworthy photo Chicago Tribune had run of plaintiff [ Eugene Volokh ; note that plaintiff subsequently voluntarily dropped the case ] And courts can’t order private media outlets to expunge truthful coverage of charges against someone, can they? [ Volokh on Houston judge’s order against website of broadcaster KTRK] Filed under: free speech , online speech “Right to be forgotten” making its way into American courts? curated from Overlawyered

Massachusetts Sen. Elizabeth Warren has a new scheme to impose employee co-determination and an assortment of other forcible corporate governance alterations on American business. My new Cato post argues that it would expropriate huge sums in shareholder value while undercutting incentives for economic dynamism. Alternatives to the U.S. corporate governance system, “European or otherwise, simply do not have as good a track record of supporting a dynamic economy that generates world-beating enterprises across a wide range of business sectors.” Other views: Donald Boudreaux (“deeply truly scary”), Matt Yglesias/Vox (taking favorable view of scheme, including its destruction of perhaps 25 percent of current shareholder value). More on the “stakeholder” and co-determination angles: Samuel Hammond , and Megan McArdle on the latter. Filed under: corporate governance , Denmark , Elizabeth Warren , Germany , WO writings Sen. Warren: make American business more European curated fr

“Researchers from Duke and MIT… found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent — and that those patients who got the extra care were no better off.” [ Margot Sanger-Katz, New York Times ] Cato Policy Analysis and podcasts (with Caleb Brown) by Terence Kealey: “ The Feds’ Demonization of Dietary Fat ” and “ Why Does the Federal Government Issue Damaging Dietary Guidelines ?” Related: Britain’s “food supply is being taxed, regulated and reformulated – on the pretext of a lie” [ Christopher Snowdon, Spectator (U.K.)] New Jersey, a key state because of its volume of pharmaceutical liability litigation, joins national trend by adopting Daubert standard on expert evidence [ Colleen O’Dea/N.J. Spotlight , Beck , John O’Brien/Legal NewsLine ] “Criminal prosecution for violating HIPAA: an emerging threat to health care professionals” [ Anne M. Murphy, Laura B. Angelini, and Jared Shwartz, STAT ]

Via TortsProf . You do follow Overlawyered on Twitter and Facebook , don’t you? You can also follow my personal Twitter and professional Facebook if you like, which have mostly different content. Filed under: Facebook , Twitter , wacky warnings Heed the sign! curated from Overlawyered

Sitcom plots come to life: mom of newborn reported to state after poppy seed bagel triggers positive opiate test, baby kept in hospital for five days [ Zuri Davis, Reason ; Chaunie Brusie, Everyday Family ; Baltimore County, Md.] Longtime readers of Overlawyered know that this is not the first time around for this fact pattern. See “Mom ate poppy seed dressing, state holds baby for 75 days ” and earlier ; Radley Balko reported in 2014 that two lawsuits involving the same western Pennsylvania hospital and county children’s services department were both settled for substantial sums and a third case had been filed against another hospital in the same region. See also re-jailing of halfway house inmate from 2010 (Florida), as well as Dubai airport madness . Filed under: Child Protective Services , illegal drugs Poppy seed bagel triggers drug test (again), CPS gets involved (again) curated from Overlawyered

I’ve been critical of the ACLU lately but its amicus-brief defense of the NRA’s First Amendment rights against New York Gov. Andrew Cuomo’s strong-arm use of insurance and bank regulation is vital, timely, and right: Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity. Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If Cuomo can do this to the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. The First Ame

Defense lawyer Stephen McConnell reviews the shame-on-business documentary The Bleeding Edge. There were few surprises: “We had been fully warned that the film was a thoroughly one-sided screed against the medical device industry….We also hear from ubiquitous plaintiff expert David Kessler, a former head of the FDA.” And see: our coverage back when of other one-sided documentaries including “ The Hunting Ground ” (college sexual assault), “ Super Size Me ,” the one on the (fraud-riddled) banana pesticide litigation , and above all the trial-lawyer-backed “ Hot Coffee ” ( much more on which ). Tags: hot coffee , medical , movies film and videos , product liability “Needless to say, the film-makers employed no such editing maneuvers during the interviews of the plaintiff litigation team.” is a post from Overlawyered - Chronicling the high cost of our legal system “Needless to say, the film-makers employed no such editing maneuvers during the interviews of the plaintiff litigation t

End of the road at last for Steven Donziger, impresario of Chevron/Ecuador litigation? [ Joe Nocera, Bloomberg ] Building expensive housing improves housing availability at every income level [ Sonja Trauss, Market Urbanism Report ] “Ms. Durst did what any law-abiding citizen would do: She demolished the structure and tossed the twigs, moss and shells into the woods…. The fairy house wasn’t up to code.” [ Ellen Byron, WSJ , courtesy Regulatory Transparency Project] Last month’s judicial rejection of NYC climate suit came after plenty of foreshadowing [ Daniel Fisher (“persuasive authorities” were two overturned court decisions); New York Daily News and New York Post editorials] Ban on smoking in public housing reflects truism that unless you own property, your home isn’t really your castle [ Shane Ferro, Above the Law ] Obama-era Waters of the U.S. regulations are a power grab asserting EPA control over farmers’ ditches, seasonal moist depressions, and watering holes; one f

General incorporation laws were a huge 19th century advance, replacing favoritism-riddled corporate chartering at official pleasure with automatic operation of legal right. Sen. Elizabeth Warren’s corporate governance scheme would risk taking us back to the bad old days. I’ve got a new post at Cato , channeling Richard Epstein and other commentators on the topic. Earlier here , and some extended critique of the “stakeholder” idea in this 2002 piece by Norman Barry . Tags: corporate governance , Elizabeth Warren , WO writings Warren’s corporate governance scheme, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system Warren’s corporate governance scheme, cont’d curated from Overlawyered

Housing and Urban Development Secretary Ben Carson is pressing local governments to ease barriers to housing construction, which might turn out to be a genuinely progressive stance in a period in which housing costs are soaring in many in-demand cities, led by the West Coast. One reason for HUD to take notice of these local barriers to building is that by artificially driving up rents and construction costs, they drive up the cost of HUD’s own programs: “the most-restrictively zoned states receive nearly twice the federal dollars per capita compared to the least-restrictively zoned states…Determining whether attaching requirements to grants is a constitutionally-sound strategy is best decided by a legal expert. However, Carson’s new focus on educating policy makers on the damaging consequences of local policy, while acknowledging HUD cannot overcome local problems by spending money, is a welcome change.” [ Vanessa Brown Calder, Cato ] More/related: Tyler Cowen (on New York Times cov

The lecture notes are here . Schechter Poultry Corp. v. United States In Schechter Poultry , often referred to as the Sick Chicken Case, the Supreme Court unanimously invalidated the National Recovery Act, which was a centrla plank of President Roosevelt’s New Deal program.   The  Brooklyn Daily  Eagle  from May 28, 1935, after  Schechter Poultry was decided . The caption reads: “Pictorial flashes in the life of the Blue Eagle [the symbol of the National Recovery Act]. Left—Thousands line the streets of New York, hundreds march to honor the birth of a new national bird in September, 1933. After the parade the banner bearing the image of the Roosevelt recovery program is hoisted above buildings throughout the land. But in Brooklyn, the Schechter brothers, Alex and Joseph (upper right), put the NRA’s authority to the test. The Plymouth Rock (lower right) is about to be slaughtered. Into the courts go the hen, and the eagle—to highest court of the land. In the Supreme Court decis