In a highly influential 1936 essay, “The Unanticipated Consequences of Purposive Social Action,” sociologist Robert K. Merton explained that there were five sources of unintended consequences. One is the “imperious immediacy of interest:” someone wants the intended consequences of an action so badly that they consciously ignore any unintended effects. One can find many examples of this in government regulation. In fact, the Securities and Exchange Commission (SEC) provided an ideal illustration recently with its final rule that requires each listed company to express, in a ratio, how its workforce’s median pay compares with its CEO’s compensation. Continue reading
David Debold, Partner, Gibson, Dunn & Crutcher LLP
Editor’s Note: This is the first in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties.
Two developments identified in WLF’s helpful Timeline—the proliferation of new criminal laws affecting businesses, and the evolution of federal sentencing law over time—would be topics of significant interest if either had unfolded without the other. The combination of the two, however, has posed a serious threat to the civil liberties of the American business community. Not only have vastly greater categories of conduct become eligible for criminal prosecution, the stakes in such prosecutions—for businesses, their owners, and their leadership—have increased substantially. As a result, conduct that had long been either lawful or merely the basis for a civil or administrative proceeding can now trigger a criminal investigation and prosecution ending with very substantial fines and lengthy prison terms. Continue reading
Ed. Note: This morning at a press conference (the video on-demand for which can be accessed here), Washington Legal Foundation released the third edition of its Timeline: Federal Erosion of Business Civil Liberties. Joining the author of this post, WLF General Counsel Mark Chenoweth, at the briefing were former Associate Attorney General of the U.S. Jay Stephens and National Association of Criminal Defense Lawyers’ Executive Director Norman Reimer. Over the next six days, the WLF Legal Pulse will be featuring commentary by leading white-collar criminal law voices on each of the six topics covered in the Timeline.
Overcriminalization is a term that came into vogue about ten or so years ago as a catch-all phrase to describe several interrelated legal policy problems. Washington Legal Foundation (WLF) has been at the forefront of the debate on overcriminalization, helping to popularize the term and offering thought leadership to policymakers, judges, and other participants in the criminal justice system. One concrete manifestation of this leadership is the new third edition of WLF’s Overcriminalization Timeline, which tracks the federal erosion of business civil liberties. Continue reading
Speaker: H. Michael O’Brien, Wilson Elser Moskowitz Edelman & Dicker LLP
Mr. O’Brien’s Powerpoint slides are available here.
Program description: The rapid proliferation of objects equipped with sensors and wireless capability, colloquially known as the “Internet of Things,” has inspired privacy and data-security concerns. Less considered, but no less serious, are the tort-liability risks that accompany these technologically-complex products. This program assessed how networked products could give rise to both traditional and unique failure-to-warn, design-defect, and other product-liability claims, and how businesses in the chain of supply, production, and sales can manage such risks.
After nearly three years, United States District Judge Edward J. Davila issued an order granting Facebook, Inc.’s (Facebook’s) motion to dismiss a $15 billion lawsuit accusing the social media company of improperly embedding cookies on Plaintiffs’ computers to collect and transmit their web browsing history. Order Granting Defendant’s Motion to Dismiss at 1-2, 19, In re Facebook Internet Tracking Litigation, Case No. 5:12-md-02314-EJD (N.D. Cal. Oct. 23, 2015).
The multi-district lawsuit arose from numerous cases challenging Facebook’s tracking practices. These cases were filed in various districts and subsequently transferred to the Northern District of California where they were consolidated. Id. at 6. Plaintiffs filed the lawsuit on behalf of Facebook members in ten different states that had active accounts from May 2010 through September 2011. Id. Continue reading
By Richard O. Faulk, Hollingsworth LLP
Can a public-nuisance lawsuit be based solely on property owners’ fear that their property values will be diminished by proximity to an adjacent contaminated tract? The U.S. Court of Appeals for the Eighth Circuit recently—and correctly—rejected a creative, but flawed, attempt by landowners to recover damages for such claims in Smith v. ConocoPhillips Pipeline Co.
The use of public nuisance litigation to redress environmental claims has proven extraordinarily controversial—and generally unsuccessful. Perhaps the most famous failure occurred when plaintiffs employed nuisance theories to redress environmental contamination at Love Canal, in which case over a decade of litigation failed to produce a solution.1 Thereafter, appellate courts generally rejected the tort’s use for a wide variety of claims ranging from lead paint contamination to climate change.2 Continue reading
Officials at the U.S. Department of Agriculture and the U.S. Department of Health and Human Services are currently finalizing the 2015 Dietary Guidelines for Americans (DGA). Those agencies will rely quite heavily on the Scientific Report of a USDA/HHS advisory panel—the Dietary Guidelines Advisory Committee (DGAC)—that Washington Legal Foundation and many other interested parties have criticized as driven more by ideology than sound science. The USDA and HHS Secretaries recently assured the public that the DGA will provide “nutritional and dietary information … based on a preponderance of the evidence.” One test of the Secretaries’ fidelity to that statutorily-mandated criterion will be whether the Dietary Guidelines embrace the Scientific Report’s thoroughly unscientific conclusions on caffeine. Continue reading