Heeding Criticism from Many Corners, ALI Pulls Liability Insurance Restatement Before Membership Vote

white flagEarlier this month in Insurance Liability Project Exemplifies American Law Institute’s Mission Drift, we discussed an especially troubling instance of where the American Law Institute (ALI), a private organization known for its “Restatements” of common law in areas such as torts, products liability, and contracts, was instead revising the law. On Tuesday, May 23, ALI announced at its annual meeting that rather than hold a final vote on the Restatement of Law, Liability Insurance as scheduled, the draft’s Reporters (i.e. authors) “agreed that another year of work” was needed on the project. Continue reading

Insurance Liability Project Exemplifies American Law Institute’s Mission Drift

scales of justiceIn an April 28, 2015 post, Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?, we questioned whether ALI had strayed from its mission of summarizing and clarifying specific areas of common law. Two years later, concerns over ALI’s drift toward lawmaking have grown. Not only has ALI continued to develop a wayward “Restatement of the Law, Copyright,” it is also taking an ambitious, aspirational approach in addressing other critical areas of common law. With its May 22 annual meeting rapidly approaching, now is the time for ALI’s members and the main consumers of its work—judges—to assess how the organization’s recent penchant for rewrites, rather than Restatements, is tainting its brand. Continue reading

What Does Nullifying FCC’s Broadband Privacy Rules Mean for Consumers?

FCCPresident Trump signed a Congressional Review Act (CRA) resolution on April 3, 2017 that nullified the Federal Communication Commission’s (FCC) privacy rule aimed at Internet Service Providers (ISPs).  As discussed in the WLF Legal Pulse’s reading list for FCC regulators last month, the Commission adopted the rule just before the 2016 election over the opposition of two Commissioners (including one who has since become FCC Chairman).  WLF filed comments last May opposing the proposed rule.  Many media commentators and self-styled consumer advocates proclaimed that the proverbial sky was falling due to the nullification.  Such ideologically-fueled Chicken-Little rhetoric, however, does not reflect reality.

Post-nullification analyses bemoaned ISPs’ collection of consumers’ “personal information” and the ability of these companies to sell such information to expand their businesses.  Nay-sayers’ complaints essentially boiled down to the bromide offered in the Washington Post:  the CRA resolution “wipe[d] away landmark privacy protections for Internet users.” Continue reading

Eye Drops, Water Fountains for Cats, and the Demise of a No-Injury Class Action

cat fountain

In creating the federal judicial branch, the Framers of the US Constitution did not intend that courts would right every possible wrong. Article III authorizes federal courts to resolve “Cases” and “Controversies.” The US Supreme Court has interpreted that power to mean that civil-litigation plaintiffs must prove they suffered an “injury in fact,” which is concrete and particularized, and not speculative. We’ve discussed Article III standing jurisprudence here in numerous contexts, most frequently in consumer class actions targeting food labels or data-security breaches, areas where the ever-amorphous concept of “economic harm” is often alleged. A March 6, 2017 Seventh Circuit decision, Eike v. Allergan, Inc. et al., shot down an especially outlandish attempt to expand standing based on an alleged economic injury. Continue reading

FTC Must Refocus on Harm to Consumers and Competition

FTC_Man_Controlling_Trade

Federal agencies regularly use statistics to demonstrate their relevance and justify their exorbitant budgets. The Justice Department, for instance, boasts about the billions it brought in from False Claims Act lawsuits last year. The Environmental Protection Agency brags about the amount of fines and years in jail resulting from its enforcement actions in 2016. But the public is rarely provided concrete evidence of how those incarcerations and billions in fines, say, actually reduce contracting fraud or improve the environment.

So, too, with the Federal Trade Commission. In recent years, FTC hasn’t missed an opportunity to tout its statistical successes to the public and congressional appropriators. In the process of piling up the number of cases brought and fines extracted trumpeted by Chairwoman Edith Ramirez in her resignation press release, however, a critical limitation on FTC’s mission and authority has taken a backseat: the need to prove consumer harm. Continue reading

Fifth Circuit Rejects Rigid Interpretation of Removal Statute in Asbestos-Liability Case

5thCirWhen attempting to remove civil lawsuits from state to federal court, business defendants often must contend with not one, but two opponents. One opponent, of course, is the plaintiff, who prefers the home cooking of a local judge and jury. The second opponent is the federal district court judge, who may be loath to inflate the size of his docket. The US Court of Appeals for the Fifth Circuit late last month reversed one district court judge’s crabbed interpretation of a removal statute which consigned an asbestos-liability defendant to the notoriously pro-plaintiff Louisiana state courts. Continue reading

FEDERAL REGULATORY READING LIST: Resources for New Employment and Workplace Agency Leaders

*Note: This is the first in a planned series of  posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies.

For the past eight years, employers have faced a dizzying array of new employment and workplace-safety regulations, guidance documents, and enforcement policies from the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB). Some of those new rules and directives departed dramatically from decades-old agency policies and practices.

Through its public-interest litigating, publishing, and communications capabilities, WLF influenced debates over those agencies’ policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in those agencies.  We provide a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas. Continue reading