The Second Circuit has ruled that Chevron must challenge the Ecuadorian judgment against it jurisdiction by jurisdiction rather than asking a US court to enjoin enforcement globally. The ruling is likely to have an adverse effect on Chevron's collateral RICO litigation against the plaintiffs. Meanwhile, you wouldn't know anything was fishy going on if you relied on Time Magazine's one-sided coverage instead of Alison Frankel's. [Frankel; Frankel; Frankel; Time; NYLJ; New Yorker via OL]

• That amendments to the Lacey Act make it impossible for American businesses to comply with importation regulations (as in the case of Gibson Guitar) without risking draconian criminal consequences is viewed by environmentalists and domestic producer special interests as a feature, rather than a bug. [Strassel]
• The Engle progeny tobacco cases and their curious view of claim preclusion start to arrive in the U.S. Supreme Court. [SCOTUSBlog; Lahav]

• Dumb class action against Nutella now looks to reward attorneys with millions. [Jackson; OL]

• Business groups seeking change to Philadelphia courts' unfair reverse bifurcation procedures. [LNL]
• Judge McConnell not impressed by OLC opinion on recess appointments. [AFS]
• Loudoun County, Virginia taxpayers on hook for tens of thousands of dollars because governmental body's scorched-earth litigation against citizen who took a legal photo of a Board of Equalization meeting. [WaPo (h/t D.A.)]
• Government-created shortage of Adderall and Ritalin; meanwhile, some trial lawyers putting profits ahead of people and seeking to ban entirely. [Star-Tribune; OL; Alkon; LA Weekly; L&S]

• Mitt Romney's true tax rate is over 44%. [Tax Prof]
• Annals of the improbable alibi. [ABAJ]

Michael Greve and Michael Rappaport are now blogging at a new site called the Liberty Law Blog, which immediately leaps into the must-reads of the day. Recent posts include a discussion of how Federalist No. 15 predicted the inherent constitutional flaws of the European Union and an analysis of the "state coercion" argument against PPACA. And don't miss that site's podcasts with Michael Greve and Walter Olson about their new books.

My latest Manhattan Moment column discusses the SOPA legislation fiasco, the successful protest against it, and why this experience can serve as a teaching moment of the importance of limited-government principles.

An excellent Mark Hemingway Weekly Standard piece explored the intellectual dishonesty of supposedly neutral "fact-checking," which often turns into a way for reporters to insert their opinions into a contentious political debate. Recently, I noted hypocrisy in President Obama's State of the Union speech: "It is ironic that Obama is calling for a 90-day 'simple up or down' vote on judicial nominees when he is the only sitting president in American history who has voted to filibuster a judicial nomination." Reuters decided to fact-check this. Of course, a fact check that is a fact-check would be a single word long: "true." Obama is the only sitting president in American history who has voted to filibuster a judicial nomination. Even aside from a discussion of the Fortas nomination controversy that never mentions the severe ethical issues that caused him to resign from the Court entirely (instead it was the opposition of "Republicans as well as Southern Democrats"), the article is a nice demonstration of how much in the tank the media will be for Obama this year. Reuters went on at length how my analysis was "disingenuous"; after all, many presidents were never senators, so never had the opportunity to vote against cloture on a judicial nomination. Which misses the point. Obama isn't any less hypocritical if JFK or Warren Harding had also filibustered judicial nominations. But anything to discredit criticism of Obama.

Litigation-lobby front Center for Justice and Democracy is still falsely claiming that McDonald's "coffee was as hot as a car radiator." As we've previously noted, "A car radiator temperature, between chemical coolants and pressurization, is between 195 and 225 degrees Fahrenheit. Stella Liebeck's coffee was between 170 and 180 degrees, and would rapidly cool when exposed to room temperature."

Note also the humor in CJD's use of the passive voice: Liebeck was injured when "McDonald's coffee spilled in her lap." Well, who could complain about a lawsuit where coffee magically spilled itself? Oh, Stella Liebeck spilled the coffee on herself? Gee, that would seem a fact relevant to the assignation of proximate causation when evaluating whether it's appropriate to criticize a court that allowed this case to get to a jury, unlike over 90% of other courts that have dealt with cases similarly claiming that hot coffee was a "defective product."

Liebeck's injuries came from dumping an entire cup of coffee in her own lap while sitting in a car without a cup-holder, and then sitting in that hot coffee for well over a minute while wearing absorbent clothing. As Liebeck's own lawyer claimed, any coffee hotter than 140 degrees would be "unsafe" in those conditions. Unless you wish juries to have the power to punish vendors like McDonald's and Starbucks and Dunkin Donuts and everyone else that commercially sells coffee, that's no more McDonald's fault than it is Liebeck's auto manufacturer or sweatpants manufacturer.

That CJD and Susan Saladoff single out the poster child of abusive litigation as the point of attack on the tort reform movement—without ever fairly addressing the actual arguments tort reformers make—shows the bankruptcy of that attack.

Update, January 27: Welcome, readers of the dishonest "Pop Tort" blog. Note how they cherry-pick a couple of websites that say that radiator temperatures are 190 degrees. Of course, 190 degrees is hotter than Stella Liebeck's coffee (which, even if was "held" at 190 degrees, which there was no evidence of, would rapidly drop in temperature as soon as it stopped being held at that temperature); moreover, most websites give much higher temperatures for car radiators: "Most engines today are designed to operate within a "normal" temperature range of about 195 to 220 degrees F"; (same); many thermostats are set at 195 degrees for car radiators, etc. The only reason to use the "car radiator" analogy is to mislead. At best, a car radiator has such a wide range of temperatures that it is meaningless to use the analogy; if you're saying that Stella Liebeck's coffee is as "hot as a car radiator" because you're claiming that car radiators are 160 degrees, well, Starbucks and Dunkin Donuts and McDonald's and Burger King and Wendy's and Caribou Coffee and 7-Eleven and Cosi are selling coffee today that's hotter than 160 degrees—much less the 140 degrees that Stella Liebeck's lawyer claims makes coffee "unreasonably dangerous."

Note further how Pop Tort makes up a brand new theory of liability for McDonald's—that the cups were not capable of holding hot coffee—that not even Stella Liebeck's lawyer had the chutzpah to argue. Of course, there's no evidence for the proposition that McDonald's was selling coffee in cups that would collapse if "poked by a finger"; if they were, then the rate of injury from coffee spills would be far higher than 1-in-23-million cups (i.e., several times less likely than being struck by lightning).

Note further that CJD still has no answers for the actual arguments tort reformers make against the Liebeck verdict and the judge's erroneous legal decision to let the case get to a jury. Instead, all their website offers is ignorant snark. The question remains: if CJD is in the right, why can't they simply address the issues? Their reliance on dishonest arguments and misleading non sequiturs seems to be part of their business model.

Some thoughts on Barack Obama's State of the Union speech, which was more of a stump speech than anything else:

• It is ironic that Obama is calling for a 90-day "simple up or down" vote on judicial nominees when he is the only sitting president in American history who has voted to filibuster a judicial nomination—and that was for someone well within the mainstream like Justice Alito.

• We've previously commented on the faux populism of the "Buffett Rule" that Obama has made the centerpiece of his tax policy.
• The fundamental economic unsoundness and ignorance of Obama is demonstrated by lines like "Over a thousand Americans are working today because we stopped a surge in Chinese tires." How much poorer are Americans and how many Americans lost their jobs because Americans are now paying higher prices for tires? How much less competitive are American vehicle exports because Americans are paying higher prices for tires? How much displacement of private investment will occur because Obama wishes to incur more public debt by creating a new bureaucracy, a "Trade Enforcement Unit," to raise prices on Americans?
• Obama "call[s] on every State to require that all students stay in high school until they graduate or turn eighteen." The public schools of the District of Columbia are already unable to teach their students because teachers have no power to discipline bad actors in the classroom. How much worse will that subpar education be when teenage thugs who don't want to be in school are instead disrupting classes? How much will schools have to water down their curriculum to "pass" that bottom decile who don't have the intellectual firepower to handle high school classes at the expense of the other 90% of students?
• I'd be more impressed that Obama calls for "[tearing] down regulations that prevent aspiring entrepreneurs from getting the financing to grow" if he weren't proposing and implementing so many new regulations that do just that. PPACA in particular is a job-killer.
• The idea that we need a government program to help "manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings" strikes me as insane. If manufacturers can profitably cut energy waste and build in energy efficiency, they don't need a government incentive to do so; if the government incentive is for making unprofitable energy-saving decisions, then that's just burning taxpayer dollars. If you think that reducing energy consumption is a good thing, then have the guts to implement a Pigouvian tax on energy consumption (which will by itself incentivize spending on energy savings) instead of increasing taxes on earning income and investment.

A WSJ article finds that top patent attorneys are discovering that it's more lucrative to vertically integrate and represent their own patent-holding companies. So John Desmarais, with the help of venture capitalists, has formed Round Rock Research LLC, purchased Micron Technologies' portfolio of 4200 patents, and is making more money licensing and suing over it than he was in private practice. A troll can more effectively use a patent—valid or invalid—offensively in litigation than a business that actually makes things: the cost of a troll to litigate is less because it does not have the same sort of defensive discovery costs, or adverse collateral business consequences that might come from suing its customers. Thus, a legitimate business like Micron can unlock some of the unrealized value of its patent portfolio by selling it to a patent troll. This increases the returns to invention, but at the cost of increased transactions costs to the industry, and it is far from clear that the benefits outweigh the costs.

If nothing else, defendants will find that they have to pay their patent attorneys more as both demand increases and supply decreases. Too, as the returns to a science education plus legal education increase, we will see more human capital diverted from scientifically-productive positions to legal jobs that are simply societal transactions costs.

There is an interesting divorce of interests in a transaction like Micron's. Patent-litigation defendants can challenge the validity of a patent, and that often entails discovery of the inventors, which is a real cost to the inventors' employers. If the details of the Micron-Round Rock transaction ever become public, it would be interesting to see who is bearing the costs of that discovery, and how the contractual terms govern Micron's long-term obligations to Round Rock or the risk of patent invalidation.

Andrew Sullivan and others sneer at Romney's debate proposal that illegal immigration can be resolved through "self-deporting," but the idea is sound. If enforcing regulations on employers means that illegal aliens face worse economic conditions by their presence in the United States than they would by staying south of the border, there won't be illegal aliens because they won't come in the first place, and leave if they're already here. There's certainly evidence that the recession reduced illegal immigration over the last four years; there's no reason to think that illegal aliens don't respond to economic incentives. (Indeed, the main problem with amnesty proposals is that they encourage future illegal immigration in the hopes that they'll receive the next generation's amnesty.) Federal policy can make a big difference here. The Obama administration's hypocritical upside-down-federalism lawsuits against Arizona and Alabama for attempting to reduce the costs of illegal immigration, refusal to enforce deportation law, and attempts to encourage voting fraud by suing states that dare to require ID at the polls are all examples of the policy going 180 degrees the wrong way.

Of course, Romney discussing the issue in jargon that even pundits don't understand and the fact that the political discourse is so debased that ignorant pundits feel it appropriate to use snark in response are two obstacles that he faces in the road to the White House.

After successfully growing its mortgage unit, MetLife has decided to shut the division down firing 4, 300 workers in the process. The reason cited by the Fortune 50 company was an "uncertain marketplace and regulatory environment."

Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, identified a distinct culprit for this large job loss: the Dodd-Frank Wall Street Reform and Consumer Protection Act.

MetLife entered the mortgage market in 2008, and managed to achieve a "rising market share" despite a difficult economy and the collapse of the housing market. "Then came Dodd-Frank," and other new legal and regulatory risks and burdens for mortgage lenders. MetLife as a whole was hit with restrictions harmful to shareholders because of its mortgage business, even though "mortgages were less than 1% of MetLife's overall business." So it wanted to sell the mortgage unit to Bank of America or Wells Fargo to escape from those regulations. But it couldn't sell the mortgage unit, because those big banks don't want a new mortgage unit, since their existing mortgage business is already unattractive due to "the Obama Administration's various efforts to halt foreclosures" through government pressure, and "the robo-signing pseudo-scandal" involving the nation's biggest banks -- which will soon have to pay billions to state attorney generals and certain mortgage borrowers even though no one current on their mortgage payments has ever been foreclosed upon due to robo-signing. "So MetLife concluded it was better to shut down its [mortgage] operations, take a $90 million to $110 million after-tax charge, and move on." Its "investors cheered" its escape from Dodd-Frank's tentacles, and its stock price rose in response.