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From Magistrate Judge Kimberly A. Jolson’s opinion yesterday in Ewalt v. Gatehouse Media Ohio Holding II, Inc. (S.D. Ohio):

This case concerns Defendants’ alleged deceptive trade practices that damaged subscribers to the Columbus Dispatch. According to Plaintiffs, “the GateHouse Defendants advertise and offer term subscriptions to The Dispatch … for specific prices, and their customers enter into these agreements … reasonably expecting that the GateHouse Defendants will provide The Dispatch for the number of weeks stated in those Subscription Agreements.” Instead, Plaintiffs allege, “the GateHouse Defendants reduce their customers’ term subscriptions by sending their customers unsolicited ‘premium editions’ and decreasing the length of those subscriptions based on the value the GateHouse Defendants arbitrarily assign to these premium editions.” …

The parties’ dispute concerns a series of Defendants’ internal emails and Plaintiffs’ use of those emails in their Opposition. Defendants contend that portions of Plaintiffs’ Opposition and Exhibit C containing those emails should be redacted because they contain trade secrets…. Generally, [the e-mails] discuss the number of premium editions to be issued, the price of those premium editions, Dispatch subscribers’ frustration with the premium-edition policy, and Dispatch employees’ opinions regarding the same….

[But, first,] Defendants have not demonstrated that the specific information they seek to redact from Plaintiffs’ Opposition is, in fact, a trade secret…. [And, second,] Defendants are required to show that “disclosure will work a clearly defined and serious injury … And in delineating the injury to be prevented, specificity is essential.” General representations of some potential undefined harm, like those made by Defendants, are insufficient to justify redacting the information in question.

Ultimately, “[o]nly the most compelling reasons can justify non-disclosure of judicial records.” Even “[w]here a party can show a compelling reason for sealing, the party must [still] show why those reasons outweigh the public interest in access to those records and that the seal is narrowly tailored to serve that reason.” “[I]n class actions—where by definition some members of the public are also parties to the case—the standards for denying public access to the record should be applied…with particular strictness.”

Defendants have not demonstrated that the information contained in Plaintiffs’ Opposition is a trade secret. And, because this is a purported class action concerning central Ohio’s primary newspaper, the public has at least a moderate interest in viewing the information in question. The relevant portion of Plaintiffs’ Opposition contains information regarding the Dispatch’s subscription policies and Dispatch employees’ opinions regarding the same. On the record before the Court, there is no reason for the Court to prevent the public from viewing that information….

The public has a right to know ….

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From nippon.com:

Japan’s Supreme Court for the first time has ruled that tattooing people without a medical license does not constitute a violation of the medical practitioners law….

[T]he top court’s Second Petty Bench turned down an appeal by public prosecutors over a suit against a 32-year-old man who tattooed three people. It finalizes a high court ruling that overturned a district court verdict fining the man 150,000 yen.

The Second Petty Bench … said that “tattoos require artistic skills different from medicine, and that it cannot be assumed that doctors do the act exclusively,” concluding that the practice is not a medical act.

Thanks to Jenny Wilson for the pointer.

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A planned House vote on a bill to decriminalize the possession of marijuana was canceled on Thursday under pressure from law enforcement lobbyists and other pro-prohibition special interests.

The expected floor vote on the Marijuana Opportunity Reinvestment and Expungement (MORE) Act would have been the biggest accomplishment yet for cannabis reformers, but the effort has been postponed until after Election Day, Politico reports. Democrats have gotten weak-kneed about a bill that they once saw as a major criminal justice reform.

Indeed, it would have been. The MORE Act, sponsored by Rep. Jerry Nadler (D–N.Y.), would remove cannabis from the schedules of the Controlled Substances Act and make that change retroactive, effectively expunging any federal marijuana offenses and convictions. The bill also orders federal courts to lift all sentences for people currently locked up due to a marijuana conviction.

As Reason‘s Jacob Sullum explained when the bill was introduced last year, the MORE Act was in many ways superior to other marijuana legislation, because it “completely deschedules marijuana rather than moving it to a lower schedule or making exceptions to the ban for state-legal conduct, and it seeks to lift the burdens that prohibition has imposed on people caught growing, distributing, or possessing cannabis, a vital project that too often has been treated as an afterthought.”

This year, the bill had collected more than 100 co-sponsorships in the House—it even had support from three Republicans—and appeared on track to pass the lower chamber. Even though the bill was expected to die in the Senate, that House vote would have been historic.

Unfortunately, cop lobbyists seem to have convinced House Democratic leaders that it would also be a liability. A coalition of law enforcement special interests and other proponents of the drug war sent a letter to congressional leaders last week warning about the potential dangers associated with legalizing and “commercializing” marijuana.

That, combined with vague fears about how Republicans might weaponize the legalization vote for negative ads in swing districts, was apparently enough to convince Democrats to scuttle the vote.

That isn’t just disappointing: It’s pretty pathetic. Democrats were right to position the MORE Act as a vehicle for racial justice and a key step toward addressing the problems of America’s criminal justice system. The war on drugs is deliberately racist, and it always has been. Decriminalizing marijuana would a pretty good first step towards righting those wrongs.

But even after everything that happened this summer to put criminal justice in the foreground of the national conversation, and even with polls showing that most Americans (and a larger share of Democrats) support the legalization of marijuana, Democratic leaders were still too spooked to take an important and historic vote. That’s just sad.

If police interests find it this easy to shut down marijuana reform—which doesn’t even really affect the way cops do their jobs, aside from removing one of the excuses they might use to stop, search, and seize an innocent person’s stuff—how can House Democrats talk about passing policing reforms with a straight face?

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When the government uses civil asset forfeiture laws to steal the property of innocent people, it often backs down upon encountering unexpected resistance, as bullies tend to do. But as Gerardo Serrano’s experience with legalized larceny illustrates, those victories do not necessarily help other people who find themselves in the same Kafkaesque situation.

Five years ago, Serrano was on his way to visit his cousin in Mexico when Customs and Border Protection (CBP) agents in Eagle Pass, Texas, found a magazine containing five .380-caliber rounds in the center console of his pickup truck. Serrano, a U.S. citizen with a Kentucky concealed-carry permit, said he did not realize the magazine was in the vehicle and offered to leave it behind as he continued on his journey. But as far as the CBP agents were concerned, those five cartridges made Serrano an international arms smuggler. Although he was never charged with a crime, the agents seized the truck, a 2014 Ford F-250.

After Serrano paid a $3,800 cash bond for the privilege of trying to get his truck back, two years went by without a hearing. Then in October 2017, a month after the Institute for Justice helped him file a lawsuit arguing that the government’s forfeiture practices violated his Fifth Amendment right to due process, CBP suddenly decided to return his vehicle, which the government had never officially tried to keep. Serrano continued to pursue his lawsuit, which aimed to qualify as a class action, because he wanted to stop this sort of thing from happening again. A federal judge shot him down two years ago, and yesterday the U.S. Court of Appeals for the 5th Circuit agreed that Serrano had failed to state a due process claim.

That conclusion is astonishing when you consider the options that Serrano confronted after CBP took his truck. The notice that the agency sent him 10 days after the seizure explained that he could do one of six things:

1. He could file a “remission petition” begging the same agency that took his truck to give it back instead of selling it and keeping the money.

2. He could submit an “offer in compromise,” agreeing to pay the government part of his truck’s value in exchange for its return.

3. He could “abandon any interest in the property,” letting the government keep it.

4. He could “request court action and have his case referred to the U.S. Attorney for institution of judicial forfeiture proceedings.”

5. He could “do nothing,” leading to the same result as Option 3.

6. He could “offer to substitute release of the seized property on payment,” meaning he would get the truck back after paying the government its full market value.

Serrano’s only realistic hope of getting his truck back without succumbing to government extortion was Option 4, which was the one he picked. Yet he waited two years as the government dragged its feet, neither returning the truck nor filing a forfeiture complaint that Serrano could then challenge. In fact, Serrano never got that opportunity, since CBP evidently decided that proceeding with the forfeiture was not worth the effort, expense, legal risk, and bad publicity. Call that Option 7.

After surveying this confusing, intimidating, infuriating, expensive, and time-consuming process, the Fifth Circuit concluded that nothing was amiss.

The three-judge panel conceded that “the seizure of a vehicle implicates an important private interest,” which weighed in Serrano’s favor. But it deemed “the risk of erroneous deprivation of such interest” to be “minimal,” because of all “the remedial procedures”—every one of them rigged in the government’s favor—that theoretically “permit a claimant to contest the deprivation of his vehicle.”

The third factor that the appeals court considered, guided by the 1976 Supreme Court case Mathews v. Eldridge, was “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” That factor, the panel concluded, favored the government.

“We cannot ignore the context of the underlying seizure,” the court said. “The Government’s interest in preventing the unlawful exportation of munitions, drugs, and other contraband is significant.”

You might think that the relevant “context” in this case was that Serrano lost his truck simply because he forgot about the five handgun rounds he had left in the center console. Although CBP claimed “the truck was used in an attempt to illegally export munitions from the United States, in violation of federal law,” it is obvious that Serrano, who never even crossed the border with his “munitions” and offered to leave them behind when he realized his mistake, was not involved in any such activity. Serrano was never charged with violating federal law, and neither was his truck, since the government did not actually file a forfeiture complaint. Given the situation, the 5th Circuit’s invocation of the government’s interest in preventing international arms smuggling is comical.

The judges also noted that “a significant administrative burden would be placed on the Government if it was required to provide prompt post-seizure hearings in every vehicle seizure.” Due process undeniably imposes a burden on the government; that is the whole point. If the government is worried about that burden, maybe it should stop stealing people’s stuff on the slightest pretext.

The Institute for Justice says it will appeal the 5th Circuit’s decision to the Supreme Court. “When the government takes someone’s property, the owners should have an opportunity to challenge the seizure in court immediately, not wait days, months, or, as in Gerardo’s case, even years,” said Institute for Justice attorney Anya Bidwell. “The Supreme Court has already said that there must be a prompt hearing when you’re arrested. It also requires pre-seizure hearings for real estate. It makes no sense for the Fifth Circuit to hold that a car is somehow different and you are not entitled to quickly see a judge and contest its seizure.”

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In a recent USA Today op ed coauthored with former Colorado Supreme Court justice Rebecca Love Kourlis, conservative Supreme Court Justice Neil Gorsuch takes up a cause traditionally associated with the political left: expanding access to legal services. As they explain, we can do much to make legal services more affordable for the poor and lower middle class by breaking down barriers to entry into the market:

Sooner or later, almost all of us face a need for legal advice. Maybe we want a will drafted, find ourselves in a divorce, or disagree with our landlord about a lease.  Property disputes, tax questions, automobile accidents: The list goes on. And it’s no secret that, even to accomplish the simplest task, hiring a lawyer is expensive — too expensive.

As a result, more and more people today find themselves forced to go it alone in court.  A national study in 2015 found that in 76% of civil cases, at least one party was self-represented…..

As lawyers and judges, we cannot ignore that the problem is partly of our own making. Consider two examples. First, lawyers have historically enjoyed the unusual privilege of regulating themselves, under the authority of state supreme courts. In most states, the profession has used this privilege to erect rules allowing only lawyers to provide “legal services”— no matter how basic the job may be….

Second, the profession has generally insulated the legal industry from market competition. Only lawyers may own or invest in law firms. This restriction on capital investment reduces the number of market participants, which in turn prevents competition from reducing costs.  At your local superstore you may be able to find tax-preparation services or an eye doctor, but you will find no help there for even the simplest legal chore. Both of these longstanding practices protect the entrenched interests of the legal profession at the expense of the clients we are meant to serve..

Fortunately, some states are now trying to address these problems. Just last month, the supreme courts of both Utah and Arizona took bold steps to increase access to justice.  Beginning in 2021, Arizona will recognize a new category of trained, non-lawyer legal professionals who will now be permitted to represent clients in various areas of the law…. Utah took similar steps as part of a two-year pilot program.

Gorsuch and Kourlis are right: Protectionist measures established at the behest of the organized legal profession have too often insulated lawyers from competition. As a result, they have made even basic legal services so expensive that many Americans often cannot afford them.

The reforms they propose are not new. Economists and legal scholars have long advocated reducing barriers to entry into the legal services market and deregulating the legal profession in ways that would increase competition. We can also reduce the cost of legal services by allowing corporate entities to provide legal services, as advocated by legal scholar Gillian Hadfield. This would be an extension of the Arizona-Utah reforms mentioned by Gorsuch and Kourlis, which would allow non-lawyers to have ownership stakes in law firms. The idea that we must bar non-lawyers and corporations from controlling providers of legal services because otherwise the ethics of lawyers might be “corrupted” is silly.  For my part, I have argued for reducing barriers to entry by abolishing the requirement of taking a bar exam, and reducing the number of years would-be lawyers must spend in law school. Many of the reform proposals advanced by scholars actually go much further than the more modest measures Gorsuch and Kourlis endorse.

While Gorsuch and Kourlis’ op ed doesn’t break much new ground, they have provided a valuable service by giving these ideas such a high-profile endorsement. Hopefully, the support of a prominent Supreme Court justice will help break down the resistance to reform of many in the organized legal profession. Gorsuch’s endorsement might also lead more people on the political right to take this important issue seriously.

The sorts of measures Gorsuch and Kourlis advocate are not fool-proof. In some cases, there will be devils lurking in the details. For example, allowing non-lawyers to provide some types of legal services won’t help much if the licensing process they have to go through is so onerous, that very few people will actually qualify. Nonetheless, these ideas are worth pursuing. Gorsuch and Kourlis rightly point out that similar reforms have worked well in the UK and elsewhere.

Gorsuch is not the first current Supreme Court Justice to call attention to the need to expand access to legal services. In 2016, Justice Sonia Sotomayor addressed the same issue, and advocated imposing “forced labor” (her term, not mine) on lawyers to require them to provide free services to the poor. While Sotomayor was right to focus on this important problem, her proposed solution has very serious moral and practical flaws, which I summarized here. Gorsuch and Kourlis’ approach is more promising. We should not impose forced labor on lawyers—or anyone else. But we should expose them to greater competition.

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New York City was slated to reopen public schools on Monday, but that’s now on hold due to Mayor Bill de Blasio’s 11th-hour decision to delay.

“We are doing this to make sure that all the standards we’ve set can be achieved,” he said during a news conference on Thursday, according to The New York Times.

The new plan is for pre-K students to return to school next week, with everyone else waiting until later in September or early October. For now, the school year will begin virtually for K–12.

No plan is set in stone, of course. Government officials, under constant pressure to satisfy teachers unions that have threatened to strike unless their demands for greater caution are met, can always decide to keep kids at home even longer—no matter how inconvenient and frustrating for parents.

If de Blasio is sorry for making life tougher for working-class parents—many of whom rely on public school’s day care function—he isn’t saying so. The mayor specifically declined to apologize during his news conference. Many parents, as well as principals and teachers, were blindsided by the last-minute decision.

Principal “I’m embarrassed by the city’s response to this. We have been crying for the last half hour…if you have friends who you can form pods with…DO IT…Ineffective, inadequate leadership has made a mess of all of this.” @NY1

— Amanda Farinacci (@amandafarinacci) September 17, 2020

Note that for all the concern about being able to reopen safely, New York City arguably has a better handle on COVID-19 than any other major city in the U.S. The early days of the pandemic were obviously a disaster for New York, but the situation has improved dramatically since June.

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