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Wednesday, April 8. 2015

More on Charles Murray's legal revolution

His speech on the topic: Let’s Render Some Federal Codes Unenforceable


I am on board. I'm the guy who had to litigate being required to rebuild the fence around my pool by the town after a flood knocked it down, but was forbidden to replace the fence around the pool by the state EPA because the area was technically wetlands. It cost me $12,000 in legal costs to finally get a waiver from the EPA. The new fence was installed in one day for $1500.


Next time, I will just quietly hire some Mexicans to put the fence back.


Mind you, just 60' from the end of my pool there is a highly-dangerous - and unfenced - small river with steep banks. A true attractive nuisance and a nice trout stream too.

Posted by The Barrister in Hot News & Misc. Short Subjects, Our Essays, Politics at 13:56 | Comments (9) | Trackbacks (0)

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Why that pool is an attractive nuisance, you are clearly in the wrong.

But hitting back consistently is indeed the best method. We once had a 9 hole golf course in the area owned by two 90 year old brothers. They let everyone sled there in the winter. I once asked how they escaped being sued for injuries. They said the lawyer brother fought every claim no matter how small. Soon the trial lawyers learned not to go after him.

This will work with federal agencies, if they had a real risk of well thought out effective lawsuits, the seriousness of their regulatory process and compliance with statute law would increase.
#1 DirtyJobsGuy on 2015-04-08 15:08 (Reply)
But it's not their $, so why should bureaucrats care?
#1.1 Bird Dog on 2015-04-08 15:14 (Reply)
They don't BD, as it does not affect the bureaucrats personally.

I have for decades been unable to understand how school alumni or fans of the school that are not alumni put Sports over the prime purpose of the School. But they do, in a frightenly lock-step manner. When I was in school I went to the games, when I was graduated I could not care less about the teams. I stopped giving money to my Alma Mater when they started bending to Muslim demands.

Heck, there are still alumni, fans, students that want to wash what Sandusky did under the rug, and just say "What does it matter now?"
#1.1.1 ron snyder on 2015-04-08 15:58 (Reply)
Sheepish Grin -meant to be under "The End of the University"
#1.1.1.1 ron snyder on 2015-04-08 16:58 (Reply)
have fun. first you have to litigate in an administrative court, and follow any of their review/appeals procedures. then usually but not always you can sue in federal court, where the court will presume that the administrative judge was right.

have you any idea how expensive this is?

that's a rhetorical question. you don't, or you wouldn't propose this as a sane idea.

and if the lawyer brother/golf course owner fought every claim, then he either values his time as zero or they're uninsured and don't care how much they lose fighting lawsuits.

and while fighting every claim might winnow out the spurious claims, it won't prevent legitimate ones. the world of litigation is not like a Matlock rerun. a 90 year old lawyer facing a motivated plaintiff's attorney taking a piece of the recovery is going to get buried.
#1.2 The Poetry of Violence on 2015-04-08 17:19 (Reply)
I like the idea, but I don't think that insurance companies as they are normally constituted. It seems to me that insurance companies are usually quick to settle rather than enter into prolonged litigation because it's expensive. Rather than insurance companies, a bulldog non profit in the model of the ACLU (yeesh!) or even conservative/libertarian legal organizations like IJ, or FIRE are needed.
#2 mudbug on 2015-04-08 16:23 (Reply)
In addition to fighting existing regulation at every opportunity, which I whole heartedly endorse, we should look at prevention of more silly rules and regulations. It's difficult at the national level. We may have to fight with organized groups. At the local level an individual can make a difference. Letters to the editor, direct communications with legislators, and even on line comments to the often rather ignorant and biased offerings of traditional media can be effective.
Attending and speaking out at regulatory board meetings is free and fun. You may not be liked for it, but then what would a freedom loving rational person care about a quasi-governmental body that is too willing to apply the power of the state to simple human activities? We're talking about open fire bans, mandatory recycling, lawn maintenance, Christmas decorations on homes, ad nauseam. School Boards, Licensing Boards, Town Government meetings, Village meeting, Zoning Boards, are all good. We shouldn't disrupt, but surely should speak up. What will you be missing, a TV show?
#3 Guaman on 2015-04-08 16:34 (Reply)
One change that needs to be implemented by legislation, since the courts won't do it:

Burden of proof on enforcement agency in an Admin law case needs to be lifted to : CLEAR and CONVINCING!

They are supposedly the "experts" after all, and should have little issue meeting that burden, if their position is correct. Now, all they have to generally show is that their position is supported by a "scintilla" of evidence, the lowest level of burden of proof.

One small change would effect a world of difference upon the bureaucracy.
#4 Earl T on 2015-04-09 09:23 (Reply)
wrong.

the typical admin law standard is that government has the burden of producing evidence and proving its case by a preponderance of the evidence and the individual has the burden of proving any affirmative defenses. in some states, the burden may be higher (clear and convincing) if the rule has criminal-like consequences.

you're using "a scintilla of evidence" in a misleading way. this is not part of this burden, in the non-Matlock world it usually means that there's enough evidence in a civil case to let the jury rather than the court decide contested facts.
#4.1 The Poetry of Violence on 2015-04-09 12:33 (Reply)

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