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October 2005 Archives

Alito rapid reaction

Julian Sanchez offers a quick summary/deflation of some of the potted anti-Alito talking points being circulated by groups like ThinkProgress.org (more of the same: PFAW and Alliance for Justice, both PDF). The New York Times (yes, the New York Times!) has a quick and useful summary of blogger reaction. Evan Schaeffer passes along the reviews Alito got (generally quite favorable) from lawyers commenting anonymously in the Almanac of the Federal Judiciary.

More Refutation of Angoff's Report

While the PIAA  and the HCLA have gone after the easily disputable report by Mr. Angoff (see here and here), the American Academy of Actuaries  which normally stays above the fray has also put in their two cents.

Historically, the subcommittee has not commented on individual medical liability studies. However, the July 2005 study by Jay Angoff commissioned by the Center for Justice & Democracy entitled Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry is an exception because of the public attention it has received, the apparent credibility ascribed to its conclusions and, in our view, the poor quality of the analysis.   …

In our opinion, the report is incomplete, actuarially unsound, and misleading. The report uses improper data comparisons, incomplete information and appears to misuse certain insurance industry benchmarks. Besides reviewing the report, we have reviewed studies commenting on the report and concur with various points made in these studies. Key among these are that the report: contains misleading and inappropriate comparisons of financial data presented in insurance company Annual Financial Statements; does not include all costs associated with providing the insurance product (e.g., costs of defending claims, administrative expenses, etc.); does not adjust for growth in insureds over time; misrepresents and misuses Risk Based Capital (RBC); in addition to other mischaracterizations and misinterpretations.

On Dennis Prager Show

I'll be on the Dennis Prager Show at about 1 pm Eastern (10 Pacific), discussing the Alito nomination.

Specter and Alito

Pennsylvania is one of the states in the Third Circuit, which makes it unsurprising that Sen. Arlen Specter has a bit of a history with the nominee -- exactly what that portends for the nomination being not entirely clear, though.

Another Alito tea leaf

Additional good news for consumers: Alito joined Judge Greenberg's dissent in the 7-3 en banc decision by the Third Circuit in LePages v. 3M, where the majority substantially expanded the law of "predatory pricing" and monopolization by upholding a $68 million verdict against 3M for daring to offer products at lower prices through volume discounts. A competitor who had been unable to match 3M's prices and thus lost in the marketplace sued and, after the Supreme Court refused to review the decision, 3M was victimized by several copycat suits. A number of other businesses have used the LePage's precedent to attempt to litigate their way out of competition. The Rehnquist Court notoriously ignored these "run-of-the-mill" cases; in his confirmation hearing, John Roberts made noises that a Roberts Court would be more willing to grant certiorari than the tiny docket of eighty cases a year that the Rehnquist Court heard.

Per David Kopel:

In United States v. Rybar, Judge Alito wrote a blistering dissent from the majority opinion which held that, notwithstanding United States v. Lopez, Congress had the power to use the Interstate Commerce power to prohibit the mere possession of machine guns manufactured after May 1986, even though Congress had made no findings about the effect of such machine guns on interstate commerce. Judge Alito's dissent did not address the majority's assertion that Rybar had no Second Amendment rights because Rybar was not a member of the militia.

This does not mean, Kopel notes, that Judge Alito necessarily favors an individual-rights view of the Second Amendment, but it does suggest, he thinks, that the judge is,

at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.

On the other hand, Jeff Rosen has blasted Alito's opinion in the case as embodying "the logic of the Constitution in Exile", no doubt suggesting one likely line of attack by Senate liberals in the weeks ahead.

AP, Reuters, CNN: It's Alito

President Bush is expected to announce at 8 a.m. that he is nominating Judge Samuel Alito of the Third Circuit for the U.S. Supreme Court. Larry Ribstein explores his business-law jurisprudence and likes what he sees. Here's a US News & World Report profile, and the Scotus-blog profile. Alito is noted for his fidelity to the First Amendment protections for freedom of speech—which may make the recent 5-4 evisceration of those protections by the Court in McConnell v. FEC at issue (O'Connor was in the majority on the entire opinion, and Rehnquist in the majority on the constitutionality of Titles III and IV of McCain-Feingold), far more so than Roe v. Wade, which still had a 5-2 majority from previously sitting justices after Chief Justice Rehnquist's death and Justice O'Connor's retirement.


Jeffrey Rosen in the New York Times Magazine tries to resuscitate the much-chortled-at theory of "super" precedents that should be extra-hard for the Supreme Court to overturn (chortled at by us, among others). "Before the Roberts confirmation hearings," we learn, "Mr. Specter talked informally to several law professors, including [Prof. Rosen himself], who mentioned the theory of super-stare decisis. ...And Mr. Specter adopted this theory."

Rosen places a great deal of weight in his article on the fact that Fourth Circuit appeals judge J. Michael Luttig, a conservative favorite, wrote in a 2000 opinion that he understood the Supreme Court's decision in Planned Parenthood v. Casey to be "a decision of super-stare decisis". So is Luttig endorsing the novel concept, as Rosen seems to think? Ann Althouse (very persuasively in my view) argues not only that Luttig was doing no such thing, but "may have even been subtly mocking the Casey Court" by describing its intent in such a manner:

How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.

Refuting Angoff on medical liability

In work sponsored by the Health Coalition on Liability and Access, Rob Hoyt of the University of Georgia and Lars Powell of the University of Arkansas offer another critique ("Profitability in Medical Professional Liability Insurance", PDF) of the much-criticized Center for Justice and Democracy (CJD)/Jay Angoff report claiming that insurers are overcharging for medical malpractice coverage. Martin Grace thinks this critique is more thorough and devastating than the one cited in these columns a couple of weeks ago done by actuaries with the Towers Perrin firm.

More power to state AGs?

In recent years more state attorneys general have been brushing closer to the practice of suing officers and entities of their own states, notwithstanding older views of the AG's role (and lawyer-client relationship) which are generally interpreted to bar such actions. Now a contribution to the Columbia Journal of Law and Social Problems recommends removing the old prohibition on AGs suing their own governments (PDF). Just don't call it a power grab: it's so that "the public interest can be further advanced," you see.

"Plagued by Missteps from the Start"

Wash. Post has a ticktock on the Miers nomination.

Sarbox discussed

Symposium in progress at the NYU Journal of Law and Liberty (via Zywicki).


There's a lot of echo-chamber buzz over Third Circuit judge Samuel Alito being the nominee, and he's now an odds-on favorite in the predictions market, which in turn feeds the buzz (which includes a Tom Goldstein prediction). Alito was allegedly one of the final three candidates when Miers was picked. The Chicago Tribune's Jan Crawford Greenburg reports that McConnell is not in the running. Article III Groupie thinks all the Alito buzz is to deflect attention from Michael Luttig, but I think Luttig's vote with the 2-1 majority in Pinney v. Nokia, 402 F.3d 430 (4th Cir. 2005), has cost him important support. I'll discuss the case further next week: the Supreme Court is voting on the certiorari petition today (now styled Nokia v. Naquin) and will announce its decision Monday.

Next time, a sex-blind choice

Our own Heather Mac Donald, in today's Los Angeles Times:

Now, to avoid a similar debacle in the future, the president should remove from his decision-making process the misguided principle that helped drive the Miers fiasco: the idea that gender (or, in other cases, race) should play a role in Supreme Court nominations.... The Supreme Court is too important an institution for us to allow it to fall victim to identity politics.

Assumption of risk

The Washington Examiner is on it with an editorial which discusses the recent New Jersey foul-ball case.

Won't be disappointed if I'm wrong

Ted Frank makes excellent points, and I won't be disappointed if he's right -- Michael McConnell is a friend and a great mind.

But the Supreme Court is more than a substantive body. It is also, quite legitimately, a symbolic body. Naming two Christian White males with Brahmin law pedigrees will confirm, in the minds of many Americans the GOP wishes to woo, that the party is unconcerned with those who have emerged from less distinguished backgrounds. Is that a reason to name an incompetent woman, black or Latino? Of course not. But it may well be a reason to name a highly competent woman, black or Latino.

I say, the President should gear up for a fight for his highly competent, conservative, female, black or Latino-heritage judge. Let the left bray over this -- the President will have renewed allegiance from his base and renewed appreciation from Americans.

Realistic options?

I disagree with Professor Krauss; I think a McConnell nomination cuts the Gordian knot:

  • There's no question of qualifications.
  • There's no question of cronyism: see Two-and-a-Half Cheers for Bush v. Gore, 68 U. Chi. L. Rev. 659 (2001).
  • There's no question of a conservative split: "business" conservatives would like McConnell; religious conservatives would like him; the elitist/movement conservatives clearly like him.
  • How can the Democrats filibuster a nominee they approved just three years ago by voice vote? (I don't see any of the "Gang of 14" defecting.) How can liberal law professors retract their support given the petition to give him the seat? (Yes, it's possible to craft an intellectually honest argument why one would support McConnell for the Tenth Circuit and not for the Supreme Court, but, even assuming defectors from the petition do so, is it possible to make that argument in a manner that appeals to more than just the base?)
  • So the PFAW and Senator Kennedy would oppose him. A battle like that strengthens Bush and helps him rebuild bridges with his base, rather than weakens him.

The counterargument? McConnell is a white male. How much weight does that really carry? It didn't affect the Roberts nomination—and McConnell is Roberts-plus, with a sterling academic career in addition to a sterling appellate record. Is any swing senator going to oppose McConnell on the grounds of his gender or race? Does the quota matter to any significant number of citizens who'd support a Hispanic version of McConnell, but not the white version?

Now, it's entirely possible that it's important to Bush that he nominate a woman or a Hispanic, and that factor outweighs the political advantages McConnell presents. A Jones or Batchelder or Corrigan (and maybe a Boggs, who is half-Cuban) would be a good justice and gives Bush the diversity points and hits many (though not all) of McConnell's advantages. But that doesn't make McConnell an unrealistic option, as opposed to an option Bush may miss the opportunity to make. Hugh Hewitt makes a similar point.

Realistic Options

Michael McConnell would be an excellent Justice, but I don't think this will happen: The President is, I think, too weak right now to name a second Anglo white male with relatively little judicial experience.

Other options include (alphabetical order):

Judge Samuel Alito, 3rd Circuit (apparently the Pres.'s #2 choice after Ms. Miers, last go-round)
Judge Alice Batchelder, 6th Circuit (U. of Akron Law school grad with lots of experience)
Chief Judge Danny J. Boggs, 6th Circuit (hero of Grutter fame; born in Havana, Cuba, by the way)
Judge Edith Jones, 5th Circuit (instrumental in the recent bankruptcy reform; will her being a Texan now hurt her chances?)

I know the latter three personally, and hereby vouch that all of them are simply excellent jurists.

I had thought about Larry Thompson, as well, and still think he would have been a good choice after Roberts, but I think the President will want to avoid "cronyism" accusations for awhile.

"How to save the Bush administration"

Liberal Matthew Yglesias agrees:

[I]f George W. Bush wants to save his flagging presidency, he needs to do what he should have done in the first place and submit Michael McConnell's name to the Senate as associate justice of the Supreme Court.

McConnell is an early (if longshot) favorite in the thinly-traded on-line betting markets, which have shown no inclination to be especially efficient.

Neutral experts in Chattanooga

Chattanooga is attempting a pilot program of court-appointed neutral experts to evaluate the testimony of medical experts in malpractice cases. The local Trial Lawyers Association, of course, opposes any effort to give courts more accurate information. (The Chattanoogan, "Judge Thomas Leads Effort On Streamlining Malpractice Cases", Oct. 26; Oct. 26 press release; Bill Poovey, "Doctors, Lawyers Develop Credibility Test for Expert Testimony", AP, Oct. 27).

Today's Wall Street Journal ($) has an editorial on the grand jury investigation. Alabama doctor George Martindale (Dec. 21), who diagnosed 3,617 plaintiffs with silicosis in 48 days, apparently wrote in a letter to Texas attorney Billy H. Davis, Jr.:

"I was soon contacted by you [Mr. Davis]. You said you wanted to retain me as an expert witness before the deposition. I declined. During this conversation, I learned that you had cited me as the diagnosing physician in certain silicosis cases. I told you that I personally had made no diagnoses, that I had not examined any of the patients, and that I had only determined whether the readings were consistent with the disease previously diagnosed. Your response was 'I certainly would hate to hear you say that at your deposition.'"

I'm a little more skeptical than the Wall Street Journal about Martindale's attempt to clear his name. His reports each included the following sentence:

On the basis of the medical history review, which is inclusive of a significant occupational exposure to silica dust, physical exam and the chest radiograph, the diagnosis of silicosis is established within a reasonable degree of medical certainty.

In his deposition, which took place one year ago Saturday, Martindale admitted that he did not know the criteria for making a diagnosis of silicosis, that he knew this language was false, but that the N&M Screening Company requested it to be included, and he "acquiesced." I've posted George Martindale's deposition transcript at the AEI Liability Project site: take a look at pages 101-103 (page 45-46 in the pdf).

Previous entries in the series.

Miers withdraws

I was having breakfast with Jim Copland when Lindsay Young came up to us to let us know that Harriet Miers withdrew her nomination under the Krauthammer cover. Orin Kerr repeats the case for McConnell.

Back in the olden days, vicious killers might have been seen to break the causal chain, and to be responsible to their victims. Today, those who operate the garage where the killers chose to park are liable because they didn't close it. This case is one where, it is to be hoped, the doctrine of proximate causation will again prevail at the Court of Appeals level.

Sociopathically litigious, cont'd

Following up on his earlier post about the high prevalence of "sociopathic" clients encountered in an employment-law practice, Norm Pattis has more:

I wonder whether there is a correlation between litigiousness and sociopathy, and whether there are reliable cross-cultural studies correlating the two. Of course, such data would be difficult to gather. Not all legal systems are the same.

But if it is, in fact, true, that as much as four percent of the American population suffers sociopathy, that may help explain our love of litigation.

He goes on to recommend Martha Stout's The Sociopath Next Door (Broadway Books, 2005) "for any lawyer struggling to understand the sometimes bizarre behavior of their clients." See also Ted Frank's Overlawyered post of Jun. 23 quoting a pseudonymous blogger's assertion: "I like employment law because it revolves entirely around crazy people."

Bowing to pressure from a coalition led by labor unions, the Bush administration announced that it will reinstate the antediluvian Davis-Bacon Act in the hurricane recovery zone, thus guaranteeing that the federal billions being shipped to the Gulf Coast will buy less reconstruction and be wrapped in more red tape than otherwise. See here, here and here.

The anti-Miers site Americans for Better Justice lists Point of Law as one of its "recommended blogs." Our coverage of the Roberts and Miers nominations is here.

Trial Lawyers, Inc.: Health Care

Today, at the Legal Reform Summit Walter mentioned yesterday, the Manhattan Institute Center for Legal Policy released a report entitled Trial Lawyers, Inc.: Health Care, The Lawsuit Industry's Effect on American Health 2005. The report is the third in a series documenting how trial lawyers operate as a business, following a September 2003 report looking at trial lawyers in America and an April 2005 report focusing on our nation's largest state, California. This latest effort looks at how litigation affects all aspects of health care provision in the U.S. -- drugs, medical devices, doctors, hospitals, and insurers. The full report, and the two previous entries, are available here.

Thursday Vote on LARA Possible

The Lawsuit Abuse Reduction Act may come to a vote in the House on Thursday.

(Past coverage)

18000 Vioxx lawsuits

...are waiting to be filed by a team of plaintiffs' attorneys and firms led by Mark Lanier, Lanier claims. They'll seek to file cases in state court to avoid the multi-district litigation procedures of federal court. (Linda A. Johnson, AP, Oct. 24).

Most plaintiffs' attorneys are likely waiting to see how the first couple of New Jersey cases go before deciding where to file their cases. If Judge Higbee's courtroom looks to be a plaintiff-friendly venue, expect to see a tremendous deluge of cases filed in September 2006, since the plaintiffs will argue that a two-year New Jersey statute of limitations does not start to run until Merck withdrew Vioxx from the market.

Wisconsin Supreme Court

Jessica McBride (via Althouse) has some scuttlebutt on the machinations by which a trial-lawyer-friendly majority was secured on that once-reasonable panel of jurists:

Wisconsin is unique in that we have TWO Democratic senators on the Senate Judiciary Committee. Both voted for [Bush 7th Circuit appointment Diane] Sykes [formerly a Wisconsin Supreme Court justice] last time. But they did more than that; they actively pushed her for the federal appeals court. And they were liberally quoted lavishing praise on her, saying they couldn't think of a reason to oppose her and citing the fact that she was so highly qualified blah blah blah. The humorous part is that I didn't believe [Sens. Herbert] Kohl and [Russ] Feingold one bit that they think the Conservative Diane Sykes is the best thing since sliced bread. They just wanted Wisconsin Gov. Jim Doyle to get an appointment to the state Supreme Court. He appointed Louis Butler, who has solidified a new liberal majority on the court that is responsible for the decision on medical malpractice, among others.

When government trashes science

Author Chris Mooney makes a plausible case that it happens a lot, says reviewer Sally Satel; he is not so persuasive when he makes the Right out as being guiltier than the Left.

Ernst v. Merck jurors, cont'd

Reader Chris Morrison writes:

I'm a lawyer in Florida and a daily reader of Overlawyered and Point Of Law. I find them both informative and incisive. On the payments to the Vioxx jurors (previous post), I thought you might be interested in the following citation from New York's Penal Laws, which makes it a criminal offense for parties to civil or criminal actions to pay jurors. This is the so-called "Hirschfeld's Law," with which I'm sure you're familiar. Maybe it's time for other states to follow New York's lead in this area.

NY CLS Penal � 215.22 (2005)
� 215.22. Providing a juror with a gratuity

A person is guilty of providing a juror with a gratuity when he or she, having been a party in a concluded civil or criminal action or proceeding or having been a person with regard to whom a grand jury has taken action pursuant to any subdivision of section 190.60 of the criminal procedure law (or acting on behalf of such a party or such a person), directly or indirectly confers, offers to confer or agrees to confer upon a person whom he or she knows has served as a juror in such action or proceeding or on such grand jury any benefit with intent to reward such person for such service.

Providing a juror with a gratuity is a class A misdemeanor.

Ted Frank responds: Note the critical "intent to reward such person for such service." The attorneys in question would almost certainly argue that the intent is to compensate the juror for their time and insight in participating in the phone call/conference/lecture series. (And Mealey's is likely to make a nice profit on the affair.) So I doubt that even the NY statute is enough to help here.

FWIW, ATLA's been trumpeting the public comments of the jurors in a press release. For more on the Hirschfeld affair, see OL, Sept. 24, 2004 and links therein.

Ernst v. Merck jurors cash in

Mealey's is paying four jurors (including the infamous "Oprah juror" (Aug. 20/22, Aug. 22)) $500 each to participate in a 90-minute teleconference on November 2, being sold for $199. An attorney with Mark Lanier's law firm is moderating.

The teleconference is the second event in which [juror Derrick] Chizer will participate. In late September, he and two other Ernst case jurors were flown to New York City and put up at the Hilton by Ernst's law firm for a private seminar with more than 100 lawyers, he said. They were also given a per-diem for expenses during the trip, Chizer said. The jurors, in interviews last week, declined to say how much.

(Ed Silverman and Jeff May, "Vioxx jurors cashing in as trial advisers", The Star-Ledger, Oct. 23).

Legal Reform Summit tomorrow in D.C.

Tomorrow (Wed., Oct. 26) in Washington, D.C. there will take place the Sixth Annual Legal Reform Summit, bringing together many advocates of litigation overhaul from around the country. It will be held at the U.S. Chamber of Commerce and is co-sponsored by the Chamber's Institute for Legal Reform, the Doctor's Company, and the law firm of Mayer Brown Rowe & Maw (details/agenda in PDF format). The Chamber will be releasing a study of securities class actions as part of the event. And our own Jim Copland will be part of a 9 a.m. panel on "Trial Lawyers, Inc.: How Litigation Shapes the Way We Receive Healthcare".

Drawbacks of employment-law practice

According to Norm Pattis, one of them is that a significant percentage of the clients are sociopathic.

Miers as "pro-business" pick

Matt Bodie of Prawfsblawg (via Blawg Review #29):

I think it's important to separate out expertise from ideology here. ...Moreover, beyond a few basics, it's hard to say what a "pro-business" legal ideology would be. Sure, it might be easier to ascertain what a Chamber of Commerce nominee would support, but the Chamber of Commerce does not equal "business." Of the seven cases that Harriet Miers argued on appeal, three involved a business against another business (e.g., Disney v. Esprit Finance). In these cases, which outcome was "pro-business"?

To me, Harriet Miers doesn't look like a pro-business nominee; she looks like a big-law-firm nominee. There's a difference. Big law firms are likely to cater to big, institutional clients on a variety of matters. To generalize a bit, they bill by the hour, spend a lot of time and attention on matters, and prize their client relationships. They are influential in local and state bar associations. They may like business, but they like the practice of law as well. So in the areas that a wide range of businesses might most be looking for help -- tort reform, damage caps, harsher pleading requirements -- a big-firm nominee (with ABA leadership experience) might feel a twinge in restricting or limiting the role of lawyers in the process.

More: Legal Times has substantial reporting on her career as a business lawyer.

Reports American Lawyer: "The so-called phantom epidemic of silicosis has become a hot potato for the plaintiffs bar. ... [Judge Janis Graham Jack] has ordered defense lawyers to notify state courts that they may have received fraudulent asbestos claims." Mississippi defense lawyer Daniel Mulholland has compiled a list of plaintiffs who sued over both asbestosis and silicosis "and the lawyers who represented them in previous asbestos claims. The list, a who's-who of the Mississippi plaintiffs bar, includes its dean, Richard Scruggs, whose Scruggs Law Firm is based in Oxford, Miss."

Parade of new blogs

The Yale Law Journal has launched a new blog called "The Pocket Part" (via Joe Miller, Conglomerate). Daniel Solove, formerly of Prawfsblawg, has now set up shop independently at ConcurringOpinions.com. Richard Epstein, as well as many colleagues, has been observed posting on the new University of Chicago Law Faculty Blog, although we had him first. And historian John Steele Gordon, a friend and occasional contributor to both this site and Overlawyered, is among the regulars at a new blog sponsored by the magazine American Heritage.

Paul Rubin on NAM Podcast

Paul Rubin discusses his empirical work on the effect of civil justice reform on fatal accident rates (Oct. 11 and links therein) on a National Association of Manufacturers podcast. The podcast also discusses current legislative efforts in the area.

Rubin and Joanna Shepherd also discussed their paper in an on-line audio interview with the American Justice Partnership.

A Valentine to Sarbanes-Oxley

That's what the W$J news side offered up the other day. Larry Ribstein provides a corrective.

Miers nomination in trouble?

Byron York repeats some explosive claims alleging that Miers is being kept away from one-on-one Senate interviews for fear of making a bad situation worse; alas, we're unlikely to know whether these rumors are true until books get written about the subject years from now.

The Cheeseburger bill, more properly known as the Personal Responsibility in Food Consumption Act of 2005, passed the U.S. House by a bipartisan majority of 306-120.

As James Copland noted yesterday, this bill is an industry-specific reaction to a series of lawsuits brought by plaintiffs' lawyers seeking to regulate an industry through litigation.

The food industry, much like the gun industry, has been a target of "regulation through litigation" in recent years, as witnessed by the California AG's recent lawsuit over the labeling of french fries.

(Obesity litigation background).

More on gun bill

I agree with Jonathan that industry-specific reform proposals are generally suboptimal from a political perspective. As Jonathan acknowledges, however, the gun lawsuits are of particular concern: they are egregious examples of "regulation through litigation" (since the gun manufacturers don't have much money to go after, the clear implication is that the suits are designed solely to effect public policy through the courts) and, significantly, these suits implicate a constitutional right, i.e., the Second Amendment right to bear arms.

Our editor Walter Olson testified in the House in support of this bill in the preceding Congress, see here. He and Michael Krauss debated the merits of the legislation--with Krauss objecting on grounds of federalism--in our first featured discussion, here.

The House today passed the Protection of Lawful Commerce in Arms Act, shielding gun manufacturers from liability. The legislation follows nearly a decade of litigation in which individuals, and with increasing frequency, municipalities, have tried to twist the tort law to impose liability on manufacturers for persons injured in gun violence.

David Kopel at Volokh has extensive coverage. Background on Overlawyered.

While the tactic of industry-specific tort reform is less politically effective, in my view, than reforms that modify the rules of litigation generally, the arms manufacturing industry is one that has been under assault by special interest groups. That assault, in some quarters, has been aided by compliant judges willing to make new law in the interests of social policy.

Mississippi AG Katrina suit

David Stratton comments on the jurisdictional issues in Jim Hood's lawsuit against Mississippi insurers over the flood exclusion clauses in homeowners' policies (Oct. 14 and links therein).

The removal papers and remand motion are on the AEI Liability Project's "Documents in the News" page. The complaint is, of course, attached as an exhibit to the removal papers.

Evan Schaeffer has criticized the tone of a post I wrote this weekend, and deserves a response. But I need to preface it with a true story about the litigation decisions an attorney faces.

Bork on Miers

Judge Bork speaks out:

By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists.

Is Blood Thicker than Water v. Wind?

From the Times Picayune  (10/19):

Sen. Trent Lott, R-Miss., said he was "a little apprehensive" about Taylor's insurance buy-in bill.[*]  Lott said he supported setting up a disaster fund to cover uninsured damage in future disasters, an idea that insurance companies have pushed for years. But Lott said that the industry should bear a financial burden for residents who thought their homeowners' policies covered hurricane flood damage.

If insurance companies don't do it willingly, Lott predicted, the lawsuit filed by Scruggs, his brother-in-law, could force them to.”

 * A bill that would allow those not on flood maps and who had flood damage to obtain retroactive insurance for a hefty fee and a promise to stay in the flood program.  (See previous discussion here.)

Insurance Journal:

Independent actuaries with the firm Towers Perrin say that a July 2005 report released by the Center for Justice and Democracy and five other "consumer groups" is incomplete and unsound.

Jay Angoff, an attorney employed by a personal injury law firm, performed the analysis for the six "consumer groups" and claimed that medical liability insurers have overcharged doctors and hospitals and accumulated record amounts of surplus over the last three years.

However, an analysis of Angoff's report by actuaries James Hurley and Gail Tverberg reportedly finds that those claims are not supported by the data, nor do they pass a common sense test.

Details, and a link to the new report (PDF), at the Tillinghast/Towers Perrin site. "The Physician Insurers Association of America (PIAA) brought the Angoff report to the attention of the Tillinghast business of Towers Perrin, and asked if Tillinghast would be interested in providing an independent review of the report," which review was carried out without compensation from any source, according to authors Hurley and Tverberg.

The Angoff/CJD report, to which the New York Times gave credulous coverage, was earlier taken to task by our own Jim Copland and Martin Grace. More on Angoff here and here. Update Oct. 31: another study refutes report.

Last year, the LawPundit blog was especially impressed by a speech David C. Johnson gave to ATLA. In it, he makes the standard litany of accusations of a right-wing conspiracy, with the devastating tag line that, when it comes to liability reform, for the think tanks that support it,

Honesty and truth are not part of that equation � only winning.

This is an ironic accusation to make in front of ATLA, of all groups. But let's take a look at David C. Johnson's own work, which has gotten a small foothold on the far left. In a 2003 report, he attempts to smear the liability reform movement as extremist:

These foundations [that fund tort reform] are associated with the extreme right of the political spectrum. The Bradley Foundation's money comes from Lynde Bradley, a member of the John Birch Society.

This is fascinating on many levels. First, the logic is ridiculous: are we also to assume that because the Ford Foundation's money came from Henry Ford, a prominent anti-Semite, that the liberal organizations the Ford Foundation supports are necessarily anti-Semitic? The attempt to affiliate tort reformers with conspiracy theorists is also ironic, given ATLA's support for vaccine conspiracy theories reminiscent of the scare over fluoridization.

But the premise isn't even true. The Lynde and Harry Bradley Foundation was founded in 1985, almost entirely funded from the proceeds of that year's sale of the Allen-Bradley Company to Rockwell International.

The John Birch Society was founded in 1958.

Lynde Bradley died in 1942.

"Honesty and truth are not part of the equation" indeed.

No. 28. Judicial Activism: Please discuss your views on the following criticism involving "judicial activism."

The role of the Federal judiciary within the Federal government, and within society, generally, has become the subject of increasing controversy in recent years. It has become the target of both popular and academic criticism that alleges that the judicial branch has usurped many of the prerogatives of other branches and levels of government.

Some of the characteristics of this "judicial activism" have been said to include:

a. a tendency by the judiciary toward problem-solution rather than grievance-resolution;
b. a tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals;
c. a tendency by the judiciary to impose broad, affirmative duties upon governments and society;
d. a tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness; and
e. a tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities.

Answer: The role of the judiciary in our system of government is limited. While its role and its independence are essential to the proper functioning of our tripartite system of government, the courts cannot be the solution to society's ills, and the independence of the courts provides no license for them to be free-wheeling. And, of course, parties should not be able to establish social policy through court action, having failed to persuade the legislative branch or the executive branch of the wisdom and correctness of their preferred course. Courts are to be arbiters of disputes, not policy makers. As has been said many times, the role of the courts is to interpret law and not to make it. My own beliefs about these issues have been formed over many years, and find their roots in the beginning of my legal career.

Beginning during my two years as a Federal district court clerk, I was taught by the judge for whom I clerked, Judge Joe E. Estes, the importance of Federal courts' keeping to their limited role. His first task -- and therefore mine in assisting him -- in every case before him was to examine whether the case was properly in court. Was there a party with standing? Did subject matter jurisdiction exist? Was venue proper? These were all questions -- and all related questions going to whether the court had subject matter jurisdiction -- that he wanted answered before any others. If the answer was "no" to any of them, the case was dismissed promptly. These basic rules of Article III impose a clear responsibility on courts to maintain their limited role.

"Judicial activism" can result from a court's reaching beyond its intended jurisdiction to hear disputes that are not ripe, not brought by a party with standing, not brought in the proper court, or otherwise not properly before the court because of the case's subject matter. An additional element of judicial restraint is to be sure only to decide the case before the court, and not to reach out to decide unnecessary questions. The courts have the essential role of acting as the final arbiter of constitutional meaning, including drawing the appropriate lines between the competing branches of government. But that role is limited to circumstances in which the resolution of a contested case or controversy requires the courts to act.

As I entered private practice, I grew to appreciate even more the importance of predictability and stability in the law, and came to believe that those values are best served by a rigorous and focused approach to the law. For the legal system to be predictable, the words are vital -- whether they are agreed upon by parties to a contract or are the product of legislative compromise. Many times in practice I found myself stressing to clients the importance of getting the words exactly right if their interests were to be protected in the future. Legal practice also taught me the importance of stability in the law. A lawyer must be able to advise her clients based upon the existing case law. Courts should give proper consideration to the text as agreed upon, the law as written, and applicable precedent. Then our system of justice can achieve appropriate stability, clarity, and predictability. Those values cannot be effectively pursued unless the law and the facts determine the outcome of a case, rather than the identity of the judge before whom a case is brought. Time and again, I saw that principle in real world cases. The importance of the rule of law, as opposed to peculiarities of specific judges, was just as critical in small matters involving individuals as it was big litigation involving millions of dollars.

"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling.

As my career progressed, I became an elected official charged with legislative power. In that role, I was able fully to appreciate the difference between the role of those who are to make the law and those who are to interpret it. On the Dallas City Council, we dealt frequently with the legal issues facing the City, and with the legal and constitutional implications of our actions. We set policy for the City by, among other devices, passing ordinances. We understood our role, and we expected the courts to understand theirs -- part of which was to respect the policy-making prerogatives of the City Council. There was a vast difference between our vote as a policy matter to prevent the desecration of the American flag, and the job of the courts (including the Supreme Court) to rule whether such an ordinance was constitutional.

Finally, my time serving in the White House, particularly as Counsel to the President, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the Executive Power. And by necessity my work has required that I deal with the power of Congress in relation to the Executive. The remaining, and essential, component in our system is of course the power of the Judiciary. The Judicial Branch has its own role to play in the separation of powers. It is part of the system of checks and balances. In interpreting the law in the course of deciding contested cases and controversies, the Supreme Court holds the Executive and Legislative Branches to their respective constitutional roles.

Judicial review by the Supreme Court, including determining the meaning of the Constitution and declaring unconstitutional the actions of another branch of government, is a tremendous power exercised by judges who are not accountable to the electorate. Because their power is so great, and because it is largely unchecked, judges must be vigilant in exercising their power in a humble, prudent, and limited way. The courts must always be ready to decide cases according to the Constitution and laws of the United States, and to do so fairly and without regard to the wealth or power of the litigants before them. But it is just as important for the courts to stand ready not to decide in instances that do not call for a decision.

My experience working for Judge Estes provided another valuable lesson. He decided every case according to the law and facts, and he did not worry about the potential for a negative reaction to his decisions. He felt no pressure to please anyone. His only lodestar was the law. The example of Judge Estes helped to instill in me an appreciation for the importance of judicial independence that has only grown stronger over time. Criticism of courts that overstep their role is justified. We must zealously guard, however, the independence of the courts. While legitimate criticism of judicial activism is healthy, even essential, we must be wary of unduly criticizing judges merely because we disagree with the result in a particular case. Judges are given life tenure and independence to shield them from the potential tyranny of the majority. While life tenure and independence should not be a license to usurp the rule of law in favor of a rule of man, they provide an essential structural protection to ensure that judges are able to make decisions based only on the fundamental vision of the Founders -- the rule of law.

Does anyone know how Souter answered a similar question?

WSJ.com - Justices Won't Hear Tobacco Case [Wall St. Journal registration required]

The Justice Department had attempted to claim $280 billion of tobacco company profits in the suit, which contends tobacco companies misled the American public about the dangers of smoking over the course of 50 years. But its case sustained a major blow in February when a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit voted 2-1 to bar the government request for the "disgorgement" of past tobacco profits. The appeals court ruling said the government couldn't use federal racketeering laws to go after the companies' past profits.

After the decision, the Justice Department sought a reversal from the high court. In its filings, the government argued that the lower courts had wrongly closed off its ability to seek the past profits.

I, and others, had written extensively about the legal absurdity of this government money-grab. [For one of my contributions, see here.] This doesn't put an end to the litigation, but I'm hoping it will shame Administration officials into euthanizing this suit.

The New York Times reports: a Third Circuit panel has ruled that bankrupt floor coverings maker Congoleum should not have hired to advise it on resolving asbestos claims the Washington, D.C. law firm of Gilbert, Heintz & Randolph (GHR), which suffered a rather drastic conflict of interest in the matter since it already represented asbestos claimants with interests adverse to Congoleum's. The ruling appears to add fuel to suspicions that plaintiff's law firms sometimes get cut into favorable positions in asbestos bankruptcies at the expense of other affected parties (more, more, more (PDF)). For an earlier case in which asbestos plaintiff's counsel came in for criticism for profitably working both sides of the street, see OL Mar. 15-16, 2003 (South Carolina's Joe Rice cut deal for $20 million personal fee payable by an asbestos defendant, the Combustion Engineering subsidiary of ABB).

And: Shannon P. Duffy at Philadelphia's Legal Intelligencer has much more, including extensive quotes from our own Prof. Lester Brickman, the number one expert in this area.

Med-mal paid claims, by state

Numbers for 2003 are available at Kaiser StateHealthFacts.org. "Hotbed" states with high numbers of claims per 1000 doctors include Pennsylvania, Florida, Arizona, Wyoming, Montana, and (perhaps more surprisingly) Delaware and Indiana. States with relatively low claim rates include Alabama, Wisconsin, Minnesota, North Carolina, Virginia, Massachusetts, and Maine.

Miers on Texas legal-fee curbs, cont'd

Bill Dyer has much more background on the 1995 controversy we covered last week. While "it would be a mistake to read [the letter] too broadly," he says, it "represents Harriet Miers' commitment to, among other things, preserving future options for tort reform."

AJP's "Legal Reform Speaker's Resource"

The pro-reform American Justice Partnership has been developing an interesting project it calls the "Legal Reform Speaker's Resource". It consists of chapters assembling facts and observations on each of various themes in the legal reform debate, mostly consisting of short clips from cited sources (including, for example, the Manhattan Institute's Trial Lawyers Inc. series). Each theme is itself divided into subthemes, so that, for example, the chapter on Class Actions includes subsections on "The Clientless Practice" and "Examples of Coupon Settlements". Other chapters currently up and running: "Lawsuit Abuse", "Costs of Lawsuit Abuse", "The Healthcare Crisis", "The Plaintiffs Bar", and "Punitive Damages".

It's not just here:

The State Government [of New South Wales, Australia's most populous state] is considering further limits on the use of paid witnesses in court cases after an inquiry found biased evidence from experts was a "pervasive and persisting" problem.

The inquiry, by the NSW Law Reform Commission, found the rules encouraged "partisan and polarised expert evidence". It recommended giving courts extra powers to try to eliminate bias. The proposals would require any litigant who wanted to produce expert evidence to seek the court's permission....

The commission found bias could be avoided by encouraging litigants to agree on the appointment of a single expert witness.... Litigants would share the payment for the expert and would not be able to call other witnesses without the court's permission.

The commission's inquiry followed reports in the Herald that thousands of experts, including engineers, accountants and medical specialists, were charging up to [A]$10,000 a day to give evidence. Some experts have begun to provide expert evidence on a no-win, no-fee basis -- a practice outlawed in the US because it led to misleading and dishonest evidence.

Then... and now
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Police: Ohio Riot Was Worse Than Expected - Yahoo! News

It seems that Neo-Nazis protested, then left quickly, after which local residents rioted. Maybe Nazi saboteurs staged the post-rally riot, but that's not the way this is being portrayed. As the story is being told by Toledo's mayor, neighborhood residents were "highly angry over the idea that someone from outside the community could come in and insult them" -- so they decided to trash the neighborhood....

This tragic story is also a valuable modern (post-modern?) vignette, sez me. A "then" and "now" story, as it were:

Then: rioters are liable for battery and trespass.

Now: the city is liable, the police are liable, the neo-Nazis are liable, everyone is liable except the miscreants who actually committed the misdeeds. Note the valuable comment, oblivious both to the 1st Amendment and to normal theories of causation and of personal responsibility.

Keith White criticized city officials for allowing the march: "They let them come here and expect this not to happen?" said White, 29. Yes, Mr. White. We expect the citizens to behave as free and responsible human beings. Is that too much to expect? Isn't that what it means to be a citizen?

I'm reminded of the famous California case where a radio station was held liable for organizing a contest (first one to spot "The Real Don Steele" at the various locations where he shows up wins $100) because the contest "forced" two idiots to drag-race, killing an innocent third party. Different components of the 1st Amendment, same disregard for principles of individual responsibility.

Shame on you, Mr. White.

9/11 fund bad, suing good, cont'd

Regarding our Sept. 30 item on the 9/11 fund, our original correspondent writes back to say:

Actually, the victim compensation fund was probably good from a "bipartisan" perspective, because it's not as if the plaintiffs' bar is unreservedly in favor of litigation when it is unlikely that available insurance coverage will suffice to fund even reasonably generous settlement offers. I heard at the time (although I certainly can't vouch for the truth of the claim) that no one in the subset of the plaintiffs' bar that focuses on airplane crashes could remember an aviation disaster involving a U.S. airline which was not resolved well within policy limits. In his critique, Henderson does not mention that the primary (sole?) purpose of the hastily-enacted legislation was to keep the airlines out of Chapter 11. (For a little while longer, at least! Even assuming that event to be inevitable, Chapter 11s where the liabilities are not hotly disputed or contingent are much easier to sort out.) Since the airline-protection motivation has been buried in subsequent public hoopla, however, the bad precedent point does have significant force.

FedEx race-bias suit

Federal judge Susan Illston has certified a class action against the giant package hauler. "Among other things, the litigation seeks to stop FedEx from requiring workers to take a 'basic skills test' in order to get certain promotions. Class counsel contend that blacks and Latinos are failing the test more often than their counterparts, and by a statistically significant margin."

If it is true, as my current colleague Jonathan Adler has found, that Sixth Circuit Judge Alice Batchelder was dismissed from consideration for the recent SCOTUS position for reasons of "judicial actvism", then the indictment of those who do the vetting is complete.

Judge Batchelder, and her Sixth Circuit colleague Danny J. Boggs, are clearly among the most principled, competent, and restrained jurists in the country. Both remain principled, competent, and restrained even when this gets them into trouble -- witness their comportment during the infamous Grutter case. Indeed, I suspect that it was their restrained insistence on the Rule of Law in Grutter that got them disqualified -- especially given recent revelations (http://bench.nationalreview.com/) that Harriet Miers was and is a vibrant defender of racial preferences.

Forum-shopping and Vioxx litigation

Twenty-one Illinois plaintiffs have sued Merck in state court in St. Clair County, the similarly poorly reputationed next-door neighbor to Madison County. Not much of a surprise by itself. But Illinois plaintiffs and a New Jersey defendant would seem to permit Merck, an out-of-state defendant, to remove the case to federal court. Aha, the plaintiffs theorize, we'll also sue Walgreens as the pharmacy that sold Vioxx. Because Walgreens is an Illinois resident, there is no complete diversity and the case gets to stay in state court. (Just disregard for the moment that Walgreens' only duty is to accurately fill a doctor's prescription, and that imposing any other duty on the pharmacist would astronomically increase healthcare costs. Also ignore the problems that would arise if a pharmacist refuses to fill a prescription. Also disregard the fact that any theory of liability that blames Walgreens for Vioxx injuries necessarily exonerates Merck because of the learned intermediary doctrine, so it's exceedingly unlikely that a Walgreens attorney will ever address a jury over Vioxx.)

But what of the Illinois plaintiffs who didn't have the forum-shopping foresight to shop at an in-state pharmacy, and instead purchased their Vioxx at K-Mart (Michigan) or Wal-Mart (Arkansas)? Just glom them into the same case as the Walgreens plaintiff! It's highly doubtful that Gloria Jackson, Raymond Weems, Alberta Powell, Mary Lindsay, James Larsen, Raymond Gifford, Virgil Wayne Deboer, Joseph Giertuga, Mary Scott and James McMullin ever met each other; without having the complaint in front of me, I suspect a strong likelihood that as many of nine of them don't live in St. Clair County.

Yet all ten of them, who have ten different medical histories, find themselves plaintiffs in the same single suit. The only reasons for this artificial hydra of a suit are forum-shopping and the hope of confusing the jury into ignoring the individualized medical circumstances, and thus bypassing serious inquiry of causation. Now, a defendant can remove a case nonetheless by showing this fraudulent joinder. Unfortunately, some federal judges apply fraudulent joinder standards unduly narrowly; because remand orders are unappealable, defendants are often faced with such shenanigans have little recourse. (Ann Knef, "New round of Vioxx suits filed in St. Clair County", Madison County Record, Oct. 13). (If, as you read the newspaper article, one of the plaintiffs' attorneys sounds familiar to you, there's a reason for that.)

(Update: an October 20 follow-up post discusses the concept of zealous representation more generally.)

Doctors return to southern Illinois

[Jan] Vest said his firm's decision to expand to Belleville stemmed in large part from Gov. Rod Blagojevich's signing into law in August a landmark tort reform bill. It caps damage awards for "pain and suffering" in malpractice lawsuits at $500,000 for doctors and $1 million for hospitals.

"I have to say honestly that did make a difference," Vest said of the new law.

(Mike Fitzgerald, "Belleville, O'Fallon Get New Doctors", Belleville News-Democrat, Oct. 14) (via ICJL).

Miers: Frum's response to Scully

It didn't take David Frum long to draft a devastating and scathing response to Matthew Scully's New York Times op-ed defending Miers, which Walter noted as interesting.

The first and most famous slogan of the American conservative movement was: "Ideas have consequences." But if Matt fairly represents the state of mind inside the Bush White House, and on this I fear he does, then the main consequence of ideas seems to be ineligibility for service on the nation's highest court. ...

That line about the critics of the Miers nomination and their $20,000 speaking fees - is that really, um, well-considered? Does Matt expect anyone to take seriously the claim that those of us who oppose Miers are self-serving cynics, while those who silence their doubts and say "yes sir" to an erring president are self-sacrificing idealists? We're supposed to believe that Robert Bork is in it for the cash, while Ed Gillespie fights for the principle of the thing

It's bad enough that Bush made this nomination, but it's very disturbing that the Bush White House strategy for defending the decision is a bunker mentality of taking the conservative movement down with it.

Politics of law school faculties

Pretty much what you'd expect: Columbia Law School has 46 registered Democrats to 2 Republicans, Stanford has 28 Democrats to 1 Republican. Prof. Bainbridge has more.

Apparently the case between Mississippi's Attorney General Hood and the insurance industry has been removed to Federal Court. (Clarion Ledger 10/14)  (See here, here and here and here for other discussion of this lawsuit.) Not being an expert in the intricacies of the federal removal statute, it nonetheless seems wrong to remove this dispute to Federal Court as the state has to waive its sovereign immunity in some way under the 11th Amendment . While the lawsuit's basis is suspect, the Mr. Hood is attempting to enforce Mississippi law and as an agent of the state it would seem like the state court is the proper forum under principles of federalism for this dispute.

Miers as bar-defender

Back in 1992-93, at least, it seems she came across as a wagon-circler, decrying those who would criticize our great litigation system and legal profession, which should instead be admired as the finest in the world, etc., etc. It must be said that pronouncements of this sort are entirely unsurprising appearing in the monthly column of a bar association president; indeed, they typify the tenor of pretty much every such column I've ever read. And, as the L.A. Times reports, Miers "is believed to have undergone something of a political evolution since then," an evolution which may have begun fairly soon after 1993, as indicated by her role in the 1995 legal-fee controversy we linked the other day.

Matthew Scully has an interesting op-ed supporting Miers in today's New York Times.

More: A letter to the editor in today's Times from Ross E. Heller of Bethesda, Md., who is described as "the publisher of CustomNews, which issues a weekly trade newspaper that provides news and information about national and local trade and professional associations", cautions against identifying Miers too closely with "prose affixed to her name while president of the Texas Bar Association," as David Brooks did in a column earlier in the week:

If Ms. Miers's term as president of the bar association was like that of most state, local and even national association presidents, it's unlikely that she spent much time pondering what to say in her monthly missive to members.

The drafting of such content is usually delegated to the junior member of the organization's communications department, occasionally followed by a look-see from another association official.

Of course, it is possible that Miers did not follow standard bar association practice in this respect. Several accounts of her public career, including Scully's, describe her as unusually attentive to the details of draft public pronouncements that passed through her office.

Jury questioning in Humeston v. Merck

One wildcard in the Humeston v. Merck Vioxx case: Judge Higbee is permitting jurors to pose questions. The questions are written, anonymously submitted, and screened by the judge; follow-ups are not allowed. To date, the questions have been creative, sophisticated, and skeptical of both sides. One thing everyone agrees upon: the questions don't add predictive power to outside observers trying to guess how the jury will decide. But attorneys on each side can ignore the jurors' questions only at their own peril. (Heather Won Tesoriero, Barbara Martinez, and Paul Davies, "Jurors Play Lawyer in Vioxx Case, Asking Tough Questions", Wall Street Journal, Oct. 14 ($); Lisa Brennan, "Keen Questioning by Jurors Demystifies Vioxx Trial", New Jersey Law Journal, Oct. 5).

Colo. official vs. tobacco deal

Competitive Enterprise Institute has details on the stance taken by acting Colorado Treasurer Mark Hillman against the notorious tobacco deal.

The tricky valuation of human lives

A Tim Cavanaugh article on ReasonOnline on the difficulty of creating compensation schemes for lost life—and the higher monetary value America places on life—quotes heavily from our editor, Walter Olson.

Hail! Hail! to Michigan

Don't miss the well-earned tribute to the Michigan Supreme Court on Opinion Journal today, written by the Mackinac Institute's Patrick Wright.


New York State Attorney General Eliot Spitzer suffered a double defeat on Wednesday in what may be his biggest setback since turning his attention to Wall Street more than four years ago.

A U.S. District Court judge ruled that Spitzer had stepped outside his turf with a probe into home-lending practices at major banks, declaring that enforcing bank laws was a matter of federal, not state jurisdiction.

In a separate matter, Spitzer's office dropped four remaining criminal charges against former Bank of America Corp. broker Theodore Sihpol, whom he had accused of helping a hedge fund trade mutual funds illegally.

The WSJ has an editorial today (sub) on the lending dismissal:

This was an absolute victory for the Office of the Comptroller of the Currency -- the federal body charged with regulating national banks -- as well as the Clearing House Association, a commercial banking group. Both bodies had filed lawsuits arguing Mr. Spitzer was meddling in matters over which he had zero jurisdiction, and [U.S. District Judge Sidney] Stein wholeheartedly agreed....

Given how few organizations have been willing to resist Mr. Spitzer's bullying methods, the OCC deserves extra credit for stopping this power grab dead in its tracks.

Among the organizations that have been largely unwilling to resist Spitzer's methods are some in his back yard. Here's Reuters again:

Major business advocates have been reluctant to take the attorney general on on other issues though, at least partly out of concerns about appearing to support wrongdoing.

"We have worked closely and well with him since his first months in office," said Matthew Maguire, director of communications for the Business Council of New York State, a lobbying group with 3,500 corporate members. "Some of our members have reservations about some of his tactics, but institutionally, we have worked well with him and are optimistic about that continuing. That includes should he run for and become governor."

Tom Kirkendall has more.


John Fund of the WSJ doesn't name his White House source on this, and of course the possibility remains that it's entirely mistaken:

"[B]usiness may not be getting quite what the White House packagers are touting. ... One White House source says the positions she took in staff meetings might surprise her business supporters. He said she leaned conservative on social questions and liberal on economic issues. Bruce Packard, a former partner at Ms. Miers' law firm, also cautions that she may be more complicated than people expect. 'She is very reticent to ever discuss her own views and liberal on issues other than abortion,' he told me."

Ramesh Ponnuru adds: "Of course, business doesn't always deserve to get what it wants from the Supreme Court." On Miers's appeal as a "pro-business" nominee, see also Gordon Smith and Larry Ribstein.

Lowe on FDA advisory panels

Derek Lowe, known for his "Pipeline" blog at Corante on pharmaceutical issues, has a piece at Medical Progress Today -- which, like this site, is produced by the Manhattan Institute -- commenting on proposals to ban from Food and Drug Administration advisory panels all scientists who have dealings with companies whose drugs are under consideration. Lowe thinks the proposals likely to do more harm than good.

"Davis-Bacon Confidential"

Mickey Kaus has more on the sacrifices displaced Louisianans would have to make to keep the unions happy on the "prevailing-wage" law governing federal construction. More on Katrina and Davis-Bacon: Sept. 15, Sept. 21.

Silicosis affair -- typical?

Evan Schaeffer argues that the problems brought to light in the silicosis affair are not necessarily typical of other mass-tort litigation over products such as fen-phen or Vioxx, and that corporate defense lawyers can and do succeed in turning back questionable claims in many of these other areas. Ted joins in in the comments section, and a discussion of asbestos and fen-phen ensues.

Miss. med-mal moderating

Magnolia State lawmakers enacted medical liability reform in 2004, and the Medical Assurance Company of Mississippi, which insures 70 percent of the state's physicians, has now announced a 5 percent rate cut for next year.

The Bush White House case for Miers

A left-wing anti-Miers site has posted the entire transcript of an October 6 White House conference call selling Miers to the base. The main argument: she's a good Christian.

David Frum comments on the Hugh Hewitt show:

I think they are making exactly the same mistake that Mario Cuomo made when he endorsed Antonin Scalia. As you'll remember, that in 1986, Ronald Reagan nominated Antonin Scalia, a very conservative Italian-American. And Mario Cuomo endorsed him because he thought being a fellow Italian-American was more important than being a fellow liberal or conservative. And as a result, Scalia passed with like 90 plus voted in the U.S. Senate, thanks to Mario Cuomo. Well if Cuomo had that to do all over again, he would say you know what? Identity matters less than conviction. And so I think there are people like Dobson who are saying there aren't evangelical Christians represented in proportion on the Court. And I think they're right to feel hey. You know, we'd like to see...it's not like there are very few of us. We're a big part of America, and we have a right to be represented, and they're right about that. The president's nominated one of us, so just like Mario Cuomo endorsing Antonin Scalia, they are putting too little impact on what's in somebody's head, and too much weight on what is on somebody's biography.

AEI event: Can Tort Reform Save Lives?

Tomorrow morning at 9, the AEI Liability Project will hold a panel discussing Paul Rubin's and Joanna Shepherd's paper seeking to measure the effect of tort reform on accident rates (discussed Aug. 15). Discussants include Jon Klick, Marginal Revolution's Alex Tabarrok, and me. See also Paul Rubin, "Tort Reform Saves Lives", OpinionJournal.com, Oct. 8.

The ABA Journal (online edition) has a short piece on Muenster v. Suh, the recent case in which a Georgia trial court struck down as unconstitutional the recently-adopted Georgia offer-of-judgment rule.

Predictably, the ABA quotes the plaintiff's lawyer and a law professor who supports the Superior Court's decision. The piece quotes without analysis the blanket statement of the plaintiff's lawyer, Vincent Sowerby, that the Rule would have "shut down tort plaintiffs, shut down their lawyers and helped big business."

What makes this so remarkable is that the defendants in Muenster v. Suh were the three individual members of the Suh family who were involved in the motor vehicle collision that sparked the litigation.

After passage of Georgia's tort reform bill in early 2005 the Suh family offered to settle the plaintiff's claims for $6,300. The plaintiff, perhaps believing he might get lucky in the litigation lottery, declined the offer and insisted on a jury trial. At trial, the jury awarded the plaintiff only $2,859.93.

The cost to the defendants of placating the plaintiff's ego and desire for a potential windfall was $4,590.85 in attorneys' fees from the time the settlement offer was declined through trial. Under Georgia's Rule 68 the defendants were entitled to have the plaintiff pay those excess attorneys' fees (less the amount of the verdict).

To the media (or at least the pro-plaintiff ABA Journal), this outcome somehow benefits "big business." In reality, of course, it benefits defendants of all sizes, including the Suh family, who promptly try to settle cases for a reasonable amount. The only beneficiaries of the Muenster ruling are the plaintiffs' lawyers who will safely persist in counseling their clients to reject reasonable settlement offers in the hopes of a windfall from the jury.

The losers in this scenario are everyone else. Each of us who buys goods and services in the U.S. economy pays a portion of the "tort tax" through higher prices as producers increase the price of their products to defray the cost of excess litigation.

Sadly, the ABA Journal missed that part of the story.


"Et tu, W?"

Dylan of the "Still Angry" blog makes the case that the Miers nomination is a tragedy of Shakespearean proportions.

Paul Caron tries to taint Miers with a questionable tax shelter her law firm concocted for its tax clients. The smear is unfair. A litigation partner, even one who is the "managing partner," has no effective oversight over what the tax department of a law firm is doing. The way every major law firm in America is structured, the managing partner has a choice of getting rid of the tax department or trusting the judgment of the partners managing that department—and, depending on the structure of the firm management, sometimes not even that first option. While a law firm can create a number of internal policies with varying effectiveness in preventing problems, at the end of the day it's impossible to provide oversight over every single partner's every single transaction. There are plenty of reasons to object to Miers without trying to tar her with things she had nothing to do with.

(Both links via A3G.)

Miers and legal-fee curbs

I linked in passing yesterday to a particularly jejune Associated Press story rehashing a 1995 controversy over whether the Texas Supreme Court should retain its historic power to limit legal fees; AP reporter Sharon Theimer basically gave Dallas attorney Fred Baron a platform with which to air his decade-old grudge against Harriet Miers for having weighed in at the time in favor of preserving the court's right to limit fees. (A copy of the letter she sent is here, PDF). Now Evan Schaeffer (Oct. 10) steps in to correct a couple of the misimpressions left by the article:

It's common for state courts to regulate a state's lawyers; to call this "legislating from the bench" [as did Baron -- W.O.] is not an apt description. And Miers' supposed attack on "greedy trial lawyers" didn't happen either; she wasn't describing all plaintiffs' lawyers, but only those who were pushing [the bill to restrain the court].

The AP also engages in a further bit of Miers-smearing worth noting: it describes her as having "lobbied" then-Gov. Bush to veto the measure and pointedly mentions that her law firm of Locke Liddell "represented several major companies", strongly suggesting that she was acting on behalf of paying clients. Later on, however, it notes that Miers specified in the letter "that she was speaking only in her capacity as a former president of the State Bar of Texas." Many readers will be left with the overall impression that she wasn't playing straight about the capacity in which she wrote the letter -- although the AP provides zero evidence to back up that innuendo, and although there is no sign they gave anyone from the Miers camp a chance to rebut it.

Miers on affirmative action

Don't expect her to line up with the Scalia/Thomas wing on that one.

Press coverage on Miers's wealth wrong

An AP report, mentioned by Walter below, suggests that Miers's wealth has declined precipitously because she reported half as many assets in 2004 as she did in 2000.

The AP has made two foolish mistakes.

First, it omitted from its calculations a disclosure on the 2000 form that Miers owed between $250,000 and $500,000 on a 10% promissory note. She did not owe this money in 2001, and must have paid it off, along with another debt between $50,000 and $100,000; the two combined would explain the decline in her assets.

Second, the disclosure reports do not include the value of real estate. Miers purchased a condominium in Virginia outside of Washington in 2001, after filing her first disclosure report, but before filing the most recent one. If she paid cash instead of obtaining a mortgage, it would easily explain the difference in asset values between 2000 and 2004. (She also still owns her large home in Dallas.) Meanwhile, I can personally attest that condominium values in the area have increased at least 50% since then. It is quite likely that, despite taking a pay-cut of over 70%, and incurring the additional expense of paying property taxes in a second (and much more expensive) jurisdiction, Miers is better off financially today than she was four years ago.

Eight or nine things we know about her

She's made some choice enemies among high-powered Texas plaintiff's lawyers; among those happy to snipe at her in the press are legal ethics poster boy Fred Baron and Democratic Party chairman Charles Soechting of John O'Quinn's firm. While on the Dallas city council, she said "she 'wouldn't belong to the Federalist Society' or other 'politically charged' groups because they 'seem to color your view one way or another'"; when she got to the Oval Office, according to an ex-lawyer there who spoke to columnist Jim Pinkerton, she "was shocked to discover the lawyers in the White House counsel's office were Federalist Society types, all of them scornful of the ABA -- her ABA" (more). Prominent Southern Baptist leader Richard Land, apparently intending the remarks as praise, predicted that she "will 'vote the way he [President Bush] would want her to vote' and that as a Texan she would consider anything else disloyal. 'If someone is disloyal in Texas, they're right down there with child molesters and ax murderers'." While she's acted as attorney of record on behalf of national corporations in various lawsuits, it would be hasty to assume that she was necessarily calling the legal shots in all those cases. Praised by colleagues for her generosity toward church, family and charities, she has accumulated far less wealth over her career than would be expected of a partner at a big law firm. Longtime friend Rena Pederson, retired editorial page editor of the Dallas Morning News, describes her as "not an ideologue" and predicts a record "in the mold of Sandra Day O'Connor." While in law school she interned with famed San Francisco gunslinger Melvin Belli, where her supervisor was Robert Lieff of later Lieff Cabraser class-action fame, but she turned down a job offer there and returned to Dallas; these days, friends consider her a likely backer of tort reform in some version. Like John Roberts she has been called client-oriented and a "lawyer's lawyer", a phrase not everyone however regards as complimentary. The Boston Globe reports that she may represent "something new in the contentious world of judicial nominations: a nominee who ...who may not hold strong views on controversial issues": "friends and colleagues suggest that Miers so embodies the ideal of lawyerly rectitude that her own views on constitutional issues may either have been repressed or never existed in the first place."

Update: Jasper popcorn suits settle

The Associated Press is reporting that nineteen plaintiffs who sued in Jasper, Missouri, alleging lung damage from exposure to diacetyl, the artificial butter flavoring in popcorn, have settled their cases. Four cases were tried to a jury for a total of $53 million in verdicts against the manufacturers, who protest that it was the employer's responsibility to follow safety instructions, but the defendants had success in demonstrating fraudulent joinder and were able to remove the other cases to federal court. No details on what's been settled and for how much. Our coverage: Jun. 30, 2004, Mar. 28, and Jul. 20; see also the Overlawyered letters column, May 7, 2004.

NY Times on the silicosis scandal

The New York Times wakes up to the silicosis scandal that this web site has been covering for ten months. The extensive article has a dramatic graph juxtaposing the steady decline in silicosis deaths with the astronomical increase in silicosis lawsuits. (Jonathan D. Glater, "The Tort Wars, at a Turning Point", New York Times, Oct. 9).

Distinction on the high court

Dwight Meredith, contradicting Kevin Drum and Matthew Yglesias, makes the case for insisting on outstanding powers of legal reasoning in a Supreme Court nominee.

Trouble at Thunderhead Ranch

All is not well in paradise at Gerry Spence's Trial Lawyers College, reports Norm Pattis. For more, see OL, Apr. 5. Incidentally, Spence's outfit is among the trial lawyers groups that holds periodic seminar/retreats for judges (its 2004 and 2005 programs, PDF format) but seems untouched by the controversy ginned up by activists against FREE in neighboring Montana.

Miers paper trail

The University of Michigan's reasonably comprehensive collation of her published work, litigated cases, and biographical information is here.

P.S. Whoops, didn't realize Ted had already linked this repository below.

Ramesh Ponnuru on Kevin Martin on Miers

Kevin Martin, a former Scalia clerk, concludes:

Conservatives are doing Harriet Miers a grave disservice by their immediate opposition to her. Indeed, the opposition could ultimately prove self-defeating if she is confirmed and begrudges the assaults on her competence and integrity from the right.

Which leads Ramesh Ponnuru to note:

So she's the right person for the job. Although she may be the kind of person who will change her views about what the Constitution means out of spite. One of Martin's two concluding sentences has to be wrong, doesn't it?

Colbert King on Miers

Colbert King on Miers plays "the enemy of my enemy is my friend."

King might have a point about the unseemliness of plumbing Miers's church's documents—if it wasn't for the fact that it is Miers's supporters asking us to draw inferences from her religion. Too, all this Kremlinology wouldn't be needed if the nominee was someone who had ever spoken out about the Supreme Court and the issues in front of it.

Ron Cass's defense of Harriet Miers

Ron Cass's defense of Harriet Miers (via Volokh).

Cass is lukewarm, at best, about Miers as a nominee, but argues that the appropriate conservative thing to do is to defer to the president's choice. No one's claiming that Bush doesn't have the right to nominate Miers. I'm not even arguing that Bush's nomination doesn't deserve presumptive weight. The argument is that the presumption's been rebutted.

In terms of the originalist argument, I think Federalist No. 76 is fairly persuasive that this is precisely the kind of nomination the president should be sufficiently embarrassed to make that the Senate should have no regrets in rejecting the nomination. This isn't an argument that no one from SMU Law can be nominated. It's not an argument that Miers can't be nominated because she has no judicial experience—by that standard, John Roberts would be unqualified. It's not even an argument that her failure to ever argue a Supreme Court case disqualifies her, because I don't believe that, either. I wouldn't have any objection to her nomination to the Northern District of Texas or the Fifth Circuit.

First, her nomination merits additional scrutiny because of the means by which it was decided. Miers was in charge of screening judicial nominees. Who vetted the vetter? Can we believe that Miers gave a fair assessment of the strengths and weaknesses of her nomination to the president? Can we believe that other people, who would have to work with Miers if they objected, presented forthright opinions to the president? (Tom Smith made this point ably, as has Matthew Franck and Randy Barnett.)

What does disqualify her in my mind is the utter failure to participate in the constitutional debates of her era, and the consequences for debate in this country if we have a bipartisan consensus that publicly thinking about the Constitution disqualifies one for the Court. We've noted others who made this point, so I won't repeat it here. But Cass doesn't acknowledge the argument—or Federalist No. 76—at all. I'm unhappy that John Roberts ran away from admitting an association with the Federalist Society, but at least he demonstrated that he was an impeccable legal mind who deserved to be on the Court. Miers hasn't shown that skill yet. Perhaps Miers will surprise me with a stellar performance at the Judiciary Committee Hearings that changes my mind, though early accounts of her meet-and-greets with Senators, if accurate, would imply that that is unlikely.

Cass is absolutely correct that the current makeup of the court risks misdeciding a case on the current docket challenging its International Salt precedent. But that's an argument for nominating Frank Easterbrook, who's both a leading light of the judiciary and a leading light of business and antitrust law, rather than Harriet Miers, who is neither.

Miers as a Dallas litigator

The Dallas Morning News has a run-down of some of her cases; some had substantial stakes, but few were high-profile (via Virginia Postrel). A 1996 Texas Lawyer profile, not online, presents what sounds like a more admiring appraisal; Evan Schaeffer and Bill Dyer summarize its contents.

The Miers paradox

The job of the White House Counsel is to keep the president free from embarrassment over legal issues. And, for the first few months of her tenure, Harriet Miers, unlike Alberto Gonzales before her, did just that, staying as anonymous as a White House Counsel should be.

But Harriet Miers the White House Counsel, as the attorney in charge of vetting Supreme Court nominees, has not done her job with respect to Harriet Miers the nominee. Given the importance of this nomination, the precedent set by the original courageous and bold nomination of John Roberts to fill O'Connor's seat, and the promise of Bush to his supporters to nominate another Scalia or Thomas, a good White House Counsel would've looked at Miers's resume, and not let it even get to the president for consideration. A White House Counsel looking out for the president's best interests would have fought much harder to keep Bush from making this kind of mistake; such a White House Counsel, faced with such strong opposition from her own side, would recommend that the candidate withdraw her nomination. And the failure of Miers to do so is all the evidence one needs that she isn't suited for this job.

David Frum gives the political argument for withdrawing the nomination. Unfortunately, it appears that the Bush administration will do the opposite, and argue that Miers's evangelical Christianity is what qualifies her for the job, an appalling breach of the decorum and norms of civilized discourse in American politics. Professor Bainbridge explains the problems of playing the faith card.

R.J. Lehmann Julian Sanchez saddles Miers with the nickname of Incitatus, which is rather unfair, but quite humorous.

The University of Michigan has a repository of Miers documents—articles she's written, reported opinions of cases she's litigated—that's mandatory reading (via Volokh).

I suggested back in July that corporate defendants have it tough at trial, because they have to precisely toe the line with little margin for error when it comes to procedural and discovery rules because of the potentially disastrous consequences of sanctions, while plaintiffs can be more aggressive in attempts to take advantage of nominally impermissible tactics such as surprise witnesses. And, indeed, in Ernst, the plaintiff was permitted to introduce a surprise witness that, with previously undisclosed expert testimony, contradicted the opening statement of the Merck lawyer who had foolishly thought that the judge would enforce the rules and that he could argue in reliance upon what the plaintiff had disclosed.

Now, in Humeston, the shoe is on the other foot. Merck introduced a fact witness, Briggs Morrison, to testify about a 1997 e-mail he had written, the same e-mail that implausibly moved plaintiffs' expert Benedict Lucchesi to tears. However, then Merck also used Morrison to give expert testimony about studies Merck had performed about the effect of Vioxx on prostacyclin, studies that refuted Lucchesi's theory of causation and knowledge. The plaintiff objected on the grounds that Merck had not disclosed that Morrison was going to give expert opinion testimony. Judge Higbee has struck Morrison's testimony—not just the arguably impermissible testimony about the prostacyclin tests, but all of his testimony, including the critical question of what was meant by his 1997 e-mail and why Lucchesi's interpretation was incorrect. It's not clear that Merck has other means to get this evidence in; while the court is permitting Merck to play the videotape of his deposition, it's not the usual practice for corporate defendants to preserve their planned rebuttal direct examination in the course of a videotaped deposition, not least because the deposition was taken before Lucchesi testified as to his attenuated understanding of Morrison's intentions. (Jon Hurdle, "Judge strikes Merck witness testimony in Vioxx case", Reuters, Oct. 7; New Jersey Star-Ledger Vioxx blog, Oct. 7; Ed Silverman, "First Merck witness prompts fight", New Jersey Star-Ledger, Oct. 7).

This isn't quite a double-standard, because, after all, it's a different judge. (Judge Higbee did reject a Merck argument that the plaintiffs had introduced undisclosed expert evidence in their affirmative case, but press accounts have not given sufficient detail to know whether that decision was correct or incorrect.) But the striking of Morrison's entire testimony, which may cost Merck the case, is a good illustration of the original problem I described in July.

Update: Merck's stock lost about $2 billion in market value today, which strikes me as an accurate assessment of what today says about Judge Higbee's likelihood of providing Merck, who has 2500 cases in front of her, with a fair trial. Judge Higbee and Merck's lead attorney, Diane Sullivan, were in a shouting match over the exclusion order today, with Higbee refusing to permit Sullivan to make a statement for the record objecting to the decision. (Heather Won Tesoriero, "Merck Faces Setback in Vioxx Trial After Judge Strikes Key Testimony", Wall Street Journal, Oct. 7).

Update, Oct.9: Alex Berenson, "Testimony by Witness for Merck Disallowed", New York Times, Oct. 8.

Update, Oct. 10: Paul Davies and Heather Won Tesoriero, "Merck in Limbo After Outburst At Vioxx Trial", Wall Street Journal, Oct. 10.

Ninomania's David Wagner on the Miers nomination:

No, my concern is not that there may now be an SMU grad on the Court. That's to the good. My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them. Assuming, that is, that it even wants to find them.

Overlawyered back up and running

My other site, Overlawyered.com, is now back up and running after a two-week hiatus occasioned by a need to move to a new hosting service and a simultaneous upgrade to Movable Type 3.2. Check it out.

Terror in Tater Tot Town

If you're up for a five-part series on the scare over acrylamide, the substance formed naturally by browning in foods and assailed as a menace to health by various consumer groups and lawyers, you can find it at TechCentralStation (parts one, two, three, four, five; the last of these kindly gives a mention to my writing on California's Proposition 65, which empowers lawyers to file freelance suits over chemical labeling). More on the acrylamide scare, Sept. 27; OL May 26 and Aug. 29, etc.

Miers' ABA involvement

Don't hold it against her, says Bill Dyer, she was trying to light a candle in the darkness.

Trial lawyers' war on arbitration

Latest skirmish is in the Ninth Circuit.

AGs profiled, scathingly

Be sure to catch John Gizzi's lengthy article on state attorneys general in the September issue (PDF) of the Capital Research Center's publication Organization Trends. After sketching the changing role of state AGs in recent years Gizzi critically profiles several high-profile members of the club including Connecticut's Richard Blumenthal, Illinois's Lisa Madigan and (especially) Oklahoma's Drew Edmondson. He mentions New York's Eliot Spitzer in passing and has relatively favorable things to say about Michigan's Mike Cox. (He's also kind enough to quote me regarding the AGs' most dubious collective accomplishment, the tobacco deal).

While on the topic of Drew Edmondson, Will Wilson at AEI's AGWatch has some fun at the expense of the Oklahoma AG's lawsuit against Arkansas chicken farms on account of the pollution to interstate rivers occasioned by poultry droppings. He notes:

[Attorney General] Edmondson has farmed out the litigation for the suit to campaign contributors; one-third of the booty from the case will go to firms whose letterheads coincide happily with the Edmondson donor list (Riggs, Orbison, Turpen, Neal).

Picked up by L of C

Speaking of kudos, the Library of Congress last month approached us to ask permission to collect and display this site's Supreme Court nomination coverage "for inclusion in the historic collection of Internet materials related to the Supreme Court", the Supreme Court Web Archive, and to redisplay our content there. We were happy to agree, of course.

Pluck "RSS Feed of the Day"

Point of Law has been picked as today's "RSS Feed of the Day" by Pluck, which bills itself as "the #1 browser-based RSS reader". It says this site "takes a look into the activities of one of the most prominent rent-seeking professions -- litigators -- and blogs about the US legal system, with a keen eye towards what's happening with our unfortunately lawsuit-happy country." The economic term rent-seeking, incidentally, "is defined as 'cutting yourself a bigger slice of the cake without making the cake bigger', i.e. trying to make more money without producing economic value for society."

CAFA blog

The law firm of McGlinchey Stafford has launched what it bills as the world's only weblog keeping track of new developments relating to the Class Action Fairness Act of 2005 (via NLJ).

Forbes: Miers "good for business"

Wishful thinking about Miers II

Professor Bainbridge persuasively explains why my tongue-in-cheek stalking-horse theory about Miers ain't so. Then go to his October page, where he has lots of other good posts on the nomination, including a quote from a free WSJ op-ed piece:

Is the President sending a message that these distinguished conservatives are too controversial to be nominated for the High Court, even with a Senate containing 55 Republicans? The lesson this nomination in particular will send to younger lawyers is to keep your opinions to yourself, don't join the Federalist Society, and, heaven forbid, never write an op-ed piece. This isn't healthy in a democracy, and in this sense a Supreme Court fight over legal philosophy that ended in a conservative victory would have demonstrated to the left that Borking no longer works.

Smart Plaintiffs/Foolish Lawsuits?

The author of the bestselling self-help volume "Smart Women/Foolish Choices", Beverly Hills psychologist Melvyn Kinder, "served as a lead plaintiff for Milberg Weiss in securities suits in the 1990s" and testified late last month before the Los Angeles grand jury probing the giant law firm's dealings, reports Law.com.

Newsday column on Miers

I have a column in today's Newsday discussing the nomination of Harriet Miers to the Supreme Court. My thoughts, formed independently, are pretty similar to those Ted expressed here yesterday, minus the "wishful thinking" hypothesis.

I tend to agree with Ted that Miers's business law experience is a plus: "as a lawyer with deep experience as an actual litigator of business issues, she would bring a useful expertise to a court filled with academics and government lawyers." And I agree with him that it's disappointing that she's the nominee, given so many more obviously able candidates out there:

[S]he is undeniably less qualified than many others the president passed by. . . . [N]o objective observer could claim that Miers is another Roberts, who is hailed as the top lawyer of his generation. No objective observer could claim that she is as well prepared for the Supreme Court as, say, Michael McConnell, Frank Easterbrook, Samuel Alito or Michael Luttig, who have impeccable records on the bench or are the undisputed leaders of major fields of jurisprudence.

I point out, as David Bernstein noted yesterday, that the problem with this nomination isn't that Miers hasn't been a federal judge and didn't go to an elite law school--and that her lack of D.C. life experience could be a positive--but that the total sum of her life experience makes her what Hugh Hewitt yesterday called "a solid, B+ pick." The Supreme Court, though, should be reserved for the A+ types. John Roberts fits that bill. Harriet Miers doesn't. She's not a lightweight, but she is moving up in weight class, and those who watched the Roy Jones fight Saturday night saw what happens when even the most skilled practitioner tries that too late in life.

Don't get me wrong: Miers might vote on the Court just the way I would, perhaps more than Roberts. But that isn't the point for those of us who don't ascribe to the results-oriented jurisprudence of either the right or the left. My conclusion:

Miers is a fine lawyer, and she broke the glass ceiling for women in Texas. But it's impossible to conclude that she would be the president's nominee but for their close personal ties, her gender and her lack of a discernible paper trail.

And there's the rub: Not merely does President George W. Bush's choice smack of personal favoritism and a capitulation to the identity politics his party professes to reject, but in nominating Miers, the president has cowed to the Democrats' outcome-based view of the law, and their belief that as a minority party they have the right to scuttle any potential justice who has a known opinion that contradicts their preferred results.

Harriet Miers may yet turn out to fit the mold of Justices Clarence Thomas and Antonin Scalia, whom Bush held out as his ideal jurists on the campaign trail, but her chief virtue as a nominee is that she lacks written opinions that shed any light on her theory of jurisprudence. The president's decision to nominate someone with such a lack of a record is disappointing, since it implies that he's not willing to make a vigorous, public defense of the consistent conservative critique of judicial activism.

Indeed, over the last 50 years, even while losing at the polls, the ideological left has maintained its power by dominating the legal process and supplanting the people's elected officials with judges who legislate from the bench. Yesterday, a Republican president, with a Republican Senate, tacitly acquiesced to this state of the world by eschewing the many stellar potential Supreme Court nominees with conservative judicial records, in favor of his personal confidante whose known legal thinking is hidden from the public eye.

I'd also encourage our readers to check out Randy Barnett's much more scathing assessment in his Wall Street Journal column today, "Cronyism." I think Randy places too much stock in one's having been a professor or federal judge, but he's clearly on point in wanting a Supreme Court nominee to have worked on developing "considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people." And I like Randy's citations to Federalist 76, which I quoted myself in the draft of my column (before Ted had pointed us to Larry Solum's relevant citation yesterday--and before the Newsday editors deleted my reference due to space constraints). There's nothing inherently wrong with a president picking someone with whom he has extensive, long-standing experience--it certainly gives the chief executive a fuller insight into the person's thinking and character--but whenever an appointee is as personally close to the president as this one, the appointee should face a higher burden of proof.

Damning with faint praise

Progress for America has put up a support-Harriet-Miers website, but the about page is... tepid, with such minimal accomplishments as "Miers Was A Commercial Litigator" and "She is licensed to practice law in... the District of Columbia" and "Miers Encouraged Bar Members 'To Do Pro Bono Work.'" By that standard, I could be nominated to the Supreme Court.

Of greater concern is a 2004 Legal Times article (cited on the same PFA page) that noted that, in 2001, Miers argued "against eliminating the American Bar Association's 50-year-old role of vetting potential federal judiciary nominations, a move led by [then-White House Counsel] Gonzales." As we noted on July 23, this move was a no-brainer because of the ABA's historical ideological bias.

The first signs of a paper trail have appeared in the form of a questionnaire that Miers answered when running for Dallas City Council in 1989. AMERICAblog is trying to claim that Miers supported gay rights in 1989, but a look at the actual questionnaire shows that Miers opposed repeal of laws criminalizing private sexual behavior between consenting gays, which would not only seem to be a vote with the dissent in Lawrence v. Texas, but would make Miers more socially conservative than Justice Thomas.

Toxically blonde

The Supreme Court of Canada has unanimously upheld a law enacted by the province of British Columbia which announces a retroactive right to recoup from tobacco companies money spent on illnesses due to smoking. (commentary: Edmonton Sun, Ezra Levant). Canada thus becomes the first country to emulate the principle announced by state attorneys general in the U.S., which culminated in the notorious $246 billion state-tobacco settlement. As parents used to say: if you saw your friend jump off a cliff, would you do that too? More: op-ed in National Post by Hans Bader of CEI.

Some wishful Miers thinking

Here's the sinister conspiracy theory behind the Miers nomination:

1. Bush nominates Miers.
2. Conservatives howl with outrage.
3. Democrats, sensing an opportunity to deal a defeat to Bush, decide to oppose the nomination.
4. The Democrats seize the best reed available to them: Miers is under-experienced, doesn't have an intellectual background, and is a Bush crony.
5. Brownback and a number of Republicans express their opposition.
6. With the nomination looking doomed, Miers withdraws her name.
7. Bush now nominates Michael McConnell—and the Democrats can't possibly filibuster, because they just demanded Bush nominate based on quality rather than on political considerations.

Harriet Miers nomination

I'm being interviewed on Seattle's KOMO radio (1000 AM) at 11:45 AM Pacific time and Corpus Christi's KEYS radio (1440 AM) at 3:05 PM Central regarding the Harriet Miers nomination.

My thoughts? It's tremendously disappointing to see a president pass up the all-too-rare opportunity to nominate a Frank Easterbrook or Michael McConnell. On the bright side, in-the-trenches experience in corporate litigation is an important perspective that's missing from the current Court. With the Rehnquist Court largely taking a hands-off approach to contentious issues of civil procedure and business litigation in favor of the sexier criminal and constitutional cases, an expanded docket on the Roberts Court is potentially a good thing—if Miers is a good justice. And one can't be comforted by Orin Kerr's accurate observation that Miers "has no history of having thought deeply about the role of judges in a constitutional democracy." One hopes that more than cronyism and Harry Reid's approval was behind this nomination. Larry Solum has a relevant quote. Prawfsblawg has interesting commentary that you might not see when browsing the usual suspects. As Hillel Levin comes close to without actually saying, a Miers confirmation will ensure that inscrutability is the main criterion for picking a justice for the foreseeable future.

Spitzer's "social compact"

Too bad we can't get our hands on a copy to see what's in it, notes Bill Dyer. Tom Kirkendall has some related thoughts.

Byron York at National Review points up an interesting sidelight to the Tom DeLay affair:

Ronnie Earle, the Texas prosecutor who has indicted associates of House Majority Leader Tom DeLay in an ongoing campaign-finance investigation, dropped felony charges against several corporations indicted in the probe in return for the corporations' agreement to make five- and six-figure contributions to one of Earle's pet causes....[Earle] agreed to dismiss charges against four of the companies -- retail giant Sears, the restaurant chain Cracker Barrel, the Internet company Questerra, and the collection company Diversified Collection Services -- after the companies pledged to contribute to a program designed to publicize Earle's belief that corporate involvement in politics is harmful to American democracy.

According to Sears sources who spoke to York, Earle insisted at first that they donate to an anti-business project run by a Stanford University professor which would produce a program intended for airing on public television criticizing business involvement in politics, but Earle later consented to let the money go to a University of Texas project which some on the defense side regarded as less egregiously anti-business in its tilt.

Joseph DiGenova, a former United States Attorney, calls Earle's maneuver "an extortionate use of the indictment power." As readers of this site know, however, it's by no means an isolated such use: the dollars-for-dismissals theme has surfaced before in deals negotiated by California AG Bill Lockyer and by Westchester County, N.Y. D.A. Jeanine Pirro which specified that settlement moneys be funneled to stridently partisan private activists.

Schumer's glass house

Set your TiVos; C-SPAN2 will broadcast live the panel that I'm moderating at AEI on the Scruggs and Mississippi AG lawsuits coming out of Katrina, Monday morning at 9:15 am Eastern. There's perhaps $15 billion at stake in the litigation (Sep. 25 and links therein) over the flood exclusion clauses. The speakers will be Robert Klein and Martin Grace of Georgia State University; Adam Scales of Washington and Lee University; and Joanne Doroshow of the Center for Justice & Democracy.

The panel was mentioned by Ron Nessen's Think Tank Town column on washingtonpost.com, which also refers to an Alabama Policy Institute discussion of the litigation. (Gary Palmer, "The Storm After The Storm", Sep. 15).

(Bumped and updated from Sep. 30.)

Judge Manuel Real, of the Central District of California, lawlessly intervened in a bankruptcy case of a probationer he was supervising, and made a muck of it, including engaging in ex parte communications. "Real twice denied motions that would have permitted the trust to evict [Deborah] Canter. When asked for an explanation, he responded: 'Because I said it,' according to court records." Nevertheless, on the promise of Real's attorney that Real would never do it again, the Ninth Circuit, apparently used to lawless judge behavior, decided not to sanction him. Judge Kozinski was one of two dissenters:

Real "offered nothing at all to justify his actions � not a case, not a statute, not a bankruptcy treatise, not a law review article � not even a [blog]," 9th Circuit Judge Alex Kozinski, based in Pasadena, wrote in his dissent.

"I also believe that the aggrieved creditors are entitled to an apology from the judges of our circuit for the cost, grief and inconvenience they suffered in one of our courts because of [Real's] unprofessional behavior," Kozinski wrote.

"The judge who committed the misconduct refuses to offer such an apology, and it is therefore up to us. Because I cannot speak for the Judicial Council, a majority of whose members see far too little wrong with what [Real] here did, I offer mine." [...]

"A federal courtroom is not Sherwood Forest," Kozinski wrote. "A judge may not take property from one party and give it to another, except by following established rules of procedure."

(Henry Weinstein, "L.A. Judge Avoids Sanctions by Panel", Los Angeles Times, Oct. 1; In re Judicial Misconduct, No. 03-89037 (9th Cir., Sep. 29, 2005)).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.