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OpenMarket: July 2010

  • In defending Kagan, Media Matters embraces Bush Justice Department

    July 31, 2010
    Well, who woulda thunk it?! George W. Bush's Justice Department is now considered a citadel of wisdom by the legal eagles at the liberal Media Matters for America. On Thursday, I outlined in National Review how Elena Kagan's position as solicitor general that "regulated firms" must "exhaust" the administrative review process at a regulatory agency before judicial review - if adopted by a future Supreme Court -- would likely mean that small businesses challenging Obamacare and other laws would never see their day in court. Hours later, Media Matters blasted my piece as "the latest bogus attack on Kagan." My criticism was "bogus," according to the site, because "the Bush administration Justice Department made the same...
  • Give & Take: Fifth Amendment Complicates Net Neutrality

    July 30, 2010

    Opponents of net neutrality, including the Competitive Enterprise Institute, have pointed to numerous grounds upon which the detrimental scheme could be challenged. These include its deterrent effect on investment, its unsatisfactory grounding in FCC statutory authority, and that it violates the First Amendment.

    Via the Free State Foundation's...

  • The Open Internet and Lessons from the Ma Bell Era

    July 30, 2010
    [youtube:http://www.youtube.com/watch?v=ZS_udd5K91o 285 234]
  • CEI Weekly: The History of Environmentalism

    July 30, 2010
    CEI weekly is a compilation of articles and blogs from CEI's staff. This week features CEI's RJ Smith in his own short film on the history of the environmental movement.
  • Want to be a pro bono economic expert? In re Apple & ATTM Antitrust Litig.

    July 30, 2010
    When Apple introduced its iPhone into a smartphone market where it had 0% market share, it cut a deal with AT&T Mobility to make it the exclusive provider of cell phone service.  In exchange, ATTM subsidized the price of every iPhone by $450, thus ensuring that more consumers would be able to purchase iPhones, and introducing additional competition into the smartphone market. 

    Nonetheless, trial lawyers sued, bringing a class action alleging that this basic business arrangement violated the antitrust laws because it threatened to monopolize the previously non-existent market for "iPhone telephone service." 

    This is ludicrous on its face.  The smartphone market is more competitive than ever: in addition to the longstanding Blackberry, there's new entrants Droid and HTC Evo (and vis-a-vis the latter, see this...
  • NOAA to Skeptics: We're Right, You Can't Deny It

    July 29, 2010
    A recent report by the National Oceanic and Atmospheric Administration, which has received wide media attention, has come to the conclusion that evidence for anthropogenic global warming is "undeniable." This has, of course, been seized on by alarmists as confirming that all of their proposed solutions to future warming must therefore be undeniably correct as well. The conclusions of the report are also being used in attempts to try to bury the Climategate scandal of recent months. Fiona Harvey of the Financial Times reported on this story (reg. req'd.) for the front page of today's print edition and has the good sense to quote our very own Myron Ebell for a rebuttal:
    Sceptics remain...
  • Understanding the Health Care System

    July 29, 2010
    Check out this flow chart of what the health care system will look like once Obamacare is implemented.
  • Obama Hypocritically Embraces Legal Doctrine He Earlier Attacked

    July 29, 2010
    In response to a lawsuit by the Obama Justice Department, a federal judge appointed by Bill Clinton has enjoined parts of Arizona's new law cracking down on illegal immigrants, finding them to be "preempted" by federal law.  While most parts of Arizona's law are unwise (like its citizen suit provision), the claim that it violates federal law is just wrong, as I explained earlier.  Federal law prohibits illegal immigration,...
  • A tort reform advocate's dream, my article in Forbes.com

    July 29, 2010
    It's a tort reform advocate's dream--meaning a defendant’s worst nightmare. As I write in my Forbes.com article, "California Trial Lawyers Find A Geezer Goldmine," the class action suit was based entirely on wording so tortuous that the nine members of the Supreme Court would have 10 different interpretations. An earlier case in the same state was tossed out because of that wording. Yet this defendant was slammed with a massive $671 million penalty, vastly beyond its ability to pay. And punitive damages are still pending. And the decision caused the defendant's stock value to plummet 75 percent. Oh, and just one other thing. The very size of the verdict effectively prevents an appeal. But besides all that . . . This is the inner layer of hell in which Skilled Healthcare California LLC finds itself. The nation’s 10th largest...
  • Dewey v. Volkswagen, Water Ingress Settlement fairness hearing

    July 29, 2010
    A tiny percentage of Volkswagen and Audi sunroofs will leak into the vehicle unless care is taken to keep the plenum clear of debris; a class action was brought over this.  Let's assume for the moment that plaintiffs are correct that this is something that Volkswagen is liable for, and that there are contractual remedies for VW not foolproofing the cars against this problem.  What's remarkable is how the parties settled the case in such a way so that wildly inefficient remedies would maximize attorneys' fees at the expense of the class.  The settlement is structured as follows:
    1. A million class members will get nothing but a letter telling them to check the plenum when they go for their 40,000-mile service.
    2. VW will perform an expensive preventative service action on some, but not all, VWs that might suffer this...

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