In the recent dispute in which Judge Rakoff expressed chagrin over the incentives created by law firms' "portfolio monitoring services", he wound up giving lead status to the Public Employees' Retirement System of Mississippi (MissPERS, represented by Bernstein Litowitz) as lead plaintiff, rather than its rival in the case, Iron Workers Local No. 25 Pension Fund; he said (to quote Kevin LaCroix) "that because of 'problematic relationships' between plaintiffs and their counsel, he was faced with a choice between 'two less-than-perfect plaintiffs'". For Tom Freeland, the episode stirred memories of the considerable sensations that have arisen over the years about the relations between Mississippi officials and the outside lawyers they hire.
May 2009 Archives
In the recent dispute in which Judge Rakoff expressed chagrin over the incentives created by law firms' "portfolio monitoring services", he wound up giving lead status to the Public Employees' Retirement System of Mississippi (MissPERS, represented by Bernstein Litowitz) as lead plaintiff, rather than its rival in the case, Iron Workers Local No. 25 Pension Fund; he said (to quote Kevin LaCroix) "that because of 'problematic relationships' between plaintiffs and their counsel, he was faced with a choice between 'two less-than-perfect plaintiffs'". For Tom Freeland, the episode stirred memories of the considerable sensations that have arisen over the years about the relations between Mississippi officials and the outside lawyers they hire.
John Schwartz quoted me yesterday in the New York Times on Sonia Sotomayor's opinions in civil litigation, where she comes across as generally on the liberal side, but not an anti-business crusader (see also Adam Liptak's Times account). Here's what I said:
Some of the attacks against the judge's business rulings turn a complex legal record into a caricature, said Walter K. Olson, a senior fellow at the Manhattan Institute, a conservative organization, and the editor of a blog, Overlawyered.com. While expressing some qualms about Judge Sotomayor's views, Mr. Olson said "she will not be as liberal as many of the Republicans are saying -- but no one could be that liberal, even if they tried."
And in today's San Francisco Chronicle, Carolyn Lochhead quotes me with some further thoughts:
"It's not as if I think Obama's incapable of nominating someone who is more adventurous and more activist by nature," said Walter Olson, a senior fellow at the conservative Manhattan Institute. "Maybe we should save the all-out blast for when he nominates that one."
I also mention Ricci v. DeStefano, the lawsuit that arose from relatively blatant discrimination by the city of New Haven against non-minority firefighter applicants. I would not be surprised to learn that Sotomayor's views on reverse discrimination differed widely from my own, but still note that it's vaguely incongruous to treat as Exhibit A for a charge of judicial activism an instance in which the judge and her colleagues ducked a case.
P.S. And from Beck & Herrmann comes word that the new bill includes a change welcome to class action defendants:
Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003) ... is the leading (and nearly only) case in the country to adopt "principal place of business" as a choice of law principle in class action cases. The Ysbrand ruling has made Oklahoma a magnet for all sorts of multi-state class actions that couldn't be certified anywhere else due to manageability problems created by the applicability of multiple state laws.
Apparently that will be changing soon, as the new law limits the extent to which claims by non-state residents can be folded into Oklahoma class actions.
In case Californians were still wondering more than 30 years after the landmark med-mal law's enactment: "The 5th District [California] Court of Appeal in an unpublished opinion unanimously upheld the constitutionality of the state's landmark Medical Injury Compensation Reform Act of 1975." [California Civil Justice] More: Gordon Ownby at CCJ.
- Behind the now-famous 2001 Berkeley speech (on which, see Ilya Somin and Rod Dreher), lurk the issues raised by Legal Realism, and no, just because many prominent legal scholars from Jerome Frank through Richard Posner have adopted Realism doesn't mean the debate on that is over.
- "I strive never to forget the real-world consequences of my decisions on individuals, businesses and government," she said. Perhaps I'm reaching, but my first reaction was that it would have been easy enough for her to stop that sentence at "individuals"; by not stopping there, Sotomayor was signaling that she does not want to be taken for the sort of empathy-driven jurist that some commentators dread and others hope for.
- "Appointed by Republican President Bush Sr." one of the less impressive White House talking points, it was as part of the Dems' share of a Rep/Dem appointment deal [McCarthy/NRO]
- Let's hope so: on international law, is Judge Sotomayor a "closet sovereigntist"? [Julian Ku, Opinio Juris; via]
- The one case of hers of which I've been most sharply critical over the years is Bartlett v. Bar Examiners, the famously long-drawn-out disabled-rights case in which Judge Sotomayor ruled that a seriously learning-disabled bar applicant who'd already failed the bar exam several times with extensive accommodations was legally entitled to yet further chances and accommodations. I wrote up the case here and here, among other places; Jim Dwyer of the Times has an account that is much more sympathetic to Bartlett's cause.
- Arroz, gandoles y pernil: Her reasonably cool designer-handbag civil practice [NLJ]; Obama's advise-and-consent milestone [Turkewitz]. And Prof. Bainbridge, whose conservative credentials few would dispute, takes much the same view as seems reasonable to me.
David Wagner finds her concurrence in a Connecticut high-school-speech case called Doninger v. Niehoff (PDF) not only right on the legal merits, but just plain right, period. The unanimous panel opinion in Doninger was written by Judge Debra Livingston and joined by Sotomayor and (longtime Point of Law favorite) Judge Loretta Preska. Critics of Sotomayor have their say in this AP/NBC Connecticut piece and this New Britain (Ct.) Herald News piece; see also Citizen Media Law. More: NSBA.
A WSJ editorial today on the lots and lots and lots of things wrong with EFCA's provision for federally imposed arbitration:
...Knowing that contracts are destined for arbitration, both sides would have every incentive to make maximum demands. Unions in particular will be inclined to ask for the moon, knowing they will do well even if an arbitrator merely splits the difference. At least when the Detroit auto makers signed too-rich contracts, they did it of their free will. ...
The binding arbitration rule would also strip workers of valuable rights. They would no longer be able to vote on a contract that their unions negotiated with management and submitted back for rank-and-file approval. This will make union leaders less accountable. ... [The new narrowing of options for union decertification] also provides a form of job protection -- for unions, not workers.
We would have thought there would have been a few of the gossipy, "insider" kind of stories about his departure, especially since AAJ is powerfully ascendant in a Washington during the Age of Obama. Consider how AAJ's campaign against federal preemption set the stage for President Obama's memorandum to executive branch agencies to abjure the principle in the writing of regulations. But the major media and their Beltway cohort appeared uninterested.
Since then, nothing public from AAJ about its leadership, even though Tom Henderson, its longtime executive director, has returned as Interim CEO. (As you can see from the Contact Us page at AAJ's website.) It was understandably a BIG deal when Henderson retired in 2004, as he had led the Association of Trial Lawyers of America for 17 years. The tributes were enthusiastic. When Henderson was succeeded by Haber, that too was a big deal, well worthy of media coverage.
We've looked around the various legal sites and other sources (here, here, and here) for news about Henderson and found nothing. The Leadership Directories did note Henderson's new/old job in an alert last week.
AAJ is a powerful group, has an aggressive legislative agenda and is clearly recognized by the White House as an ally. Obviously AAJ isn't publicizing its leadership moves, but shouldn't the beat reporters be paying a little closer attention to the goings on there?
Getting at the actual makers in China will often be at best difficult (maybe "next to impossible"), so watch out, installers and middlemen. Lawyers are advertising heavily. Carter at ShopFloor has a further roundup, and note this from the Construction Litigation Law Blog: "Chinese Drywall Class Action Suit May Not Help Homeowners For Years If Ever".
- Connecticut high court makes it easier to sue employers over internal reports critical of employees [Daniel Schwartz]
- When Can A Disqualified Class Representative Conduct Discovery To Find a Better Plaintiff? [Cal Biz Lit]
- Ten Things You May or May Not Know about Caperton (the W.V. constitutionalized recusal standards case) [Alex Long/Legal Ethics Forum, first, second posts]
- NYU Annual Conference on Labor Jun. 4-5 [Hirsch/Workplace Prof]
- If you're one who pays off balance in full each month, new credit card law might not be so helpful [Felix Salmon] Austan Goolsbee interviewed on credit card reform [Consumerist]
- Adam Mossoff on antitrust, patents, and the Sewing Machine Combination [Volokh]
Her defenders (and less-severe critics) do make some interesting points about a judge whose friend, Yale lawprof Stephen Carter, calls her a "moderate, with liberal leanings" but not a "firebrand on a mission":
- Alarms over Dabit v. Merrill Lynch notwithstanding, Paul Karlsgodt at Class Action Watch finds Sotomayor's rulings in class action and securities cases mostly unexceptional (more here). Jonathan Adler summarizes what he's found, good and bad.
- Conservative California lawyer-blogger Patterico says the nominee, a former prosecutor, "appears to be OK on criminal law issues".
- And at Volokh Conspiracy, libertarians David Bernstein and Ilya Somin have good words for rulings by the judge on public-employee discipline for off-job racist speech and seizure of the vehicles of persons charged with DUI.
More: Daniel Hemel defends Sotomayor's record on the Didden v. Village of Port Chester condemnation case, earlier criticized by Richard Epstein and Ilya Somin (& welcome Prof. Bainbridge readers).
Canada's finest handcuffed and fined a woman on May 13th for having "disobeyed a directive or pictogram" requiring her to hold onto an escalator handrail because it was dirty, the National Post reports. "I cannot believe I was handcuffed - like a prisoner. Like I committed a crime," complained the visiting Ms. Kosoian, who resides in Eastern Europe.
Rates of violent crime in Canada are low, but surely the police had something better to do that day.
Lawyers will be driving tomorrow's media coverage of Chevron annual shareholders meeting in San Ramon, Calif., Wednesday, but we bet they spend very little time in front of the camera. Instead, we expect to see Amazonian Indians, the predictable celebrity or two, and many enraged activists as the campaign against Chevron for past environmental damage in Ecuador reaches an even higher pitch. Driving this PR explosion is the $27 billion lawsuit filed in the United States, Aguinda v. Chevron-Texaco.
It's a well-organized (or orchestrated) alliance, a combine of trial lawyers, activists and the Ecuadorian government. The combine has certainly been successful getting sympathetic, incomplete media coverage from places like "60 Minutes" -- "Amazon Crude" -- and the New York Times.
As Chevron's general counsel and executive vice president, Charles James, commented on a bloggers' conference call today:
I think that everything you are seeing now that is transpiring here is really aimed at pressuring a settlement, and not having to confront the reality of trying to enforce this case. ...I've asked people to ask themselves a very simple question: If these plaintiffs thought for just one second that they were going to get an enforceable judgment out of the courts of Ecuador for some multibillion dollar amount, why this show? Why is all of this going on? Why are they attempting to pressure the investors? Why all this media stuff?
This is, you know, Plaintiff's Lawyers 101, which is to try to settle it. In virtually every case of this type that I have been involved with since I have been at Chevron, at some point when we got discovery, we got an e-mail that said, "Don't worry, they'll never take this case to court. We're going to settle it."
Richard Garnett, who mostly posts at Prawfsblawg, in a note at NRO Bench Memos surveys the ever-shifting landscape of high court confirmation battles, in which one year's "President has a right to his qualified nominees" maxim transforms smoothly into the next year's "troublesome judicial philosophy is reason to reject", while the dirt-diggers of one round turn into the guardians of high-mindedness of the next.
Judge Sotomayor and I were students at Yale Law at the same time. I didn't know her personally, but she seemed to be a quite nice, typical Yale Law student.
I have two main worries about her, and no, they don't concern the items mentioned in Jeffrey Rosen's New Republic piece. The first is the 2001 taped interview where Judge Sotomayor clearly appeared to heap scorn on those who distinguish the judicial function from policy-making. Either she was sincere in that talk (in which case she is disqualified from elevation to the Supremes, in my view, as she does not understand the judicial function) or she was dishonestly pandering to an activist audience (in which case she is a panderer: and then why should the Senate Judiciary committee members believe anything she says to them?) My second concern is her pitiful Ricci opinion, currently about (I hope) to be overturned by the Supreme Court. It evidences a shallow knee-jerk jurisprudence, at least on matters pertaining to race. As Marie points out below, her Maloney decision is downright silly -- maybe another sign of a reflexive knee-jerk leftism, but (most favorable option) maybe just thoughtlessly joining a decision she did not think about.
A word about race, etc. I actually think there are hundreds, likely thousands, of people with the judicial temperament and intellectual ability to be very good Supreme Court justices. Picking among THE QUALIFIED could quite legitimately be done using "affirmative action" standards -- thereby ensuring that various parts (geographic, ethnic, sexual) of the nation know they are not excluded from consideration. Partly symbolic positions such as these are precisely ones where representativity is relevant. Of course I am talking about using symbolic factors (race, sex, state of residence, etc.)IN ADDITION TO merit, not INSTEAD OF merit. Whether Judge Sotomayor has the temperament and the intelligence for the job is indeed the question -- but I do think her ethnicity and great personal story are legitimate plusses.
My esteemed colleague Walter Olson offers a quick reaction to Obama's nomination of Sonia Sotomayor to the U.S. Supreme Court at Forbes Online. Money quote:
Some of her backers say they expect that Sotomayor will emerge as a liberal in the less than fiery, relatively "legalistic" Ginsburg/Breyer mold. Even assuming that happens, some outcomes will soon change in a direction most businesses will find adverse. And in coming weeks, both friends and foes will be going over her published opinions--some with hope, others with dread--for clues to whether she might form the nucleus of some future new and more seriously left-wing faction on the court.
Friend and property law scholar Ilya Somin worries about Sotomayor's role in issuing an unpublished 2nd Circuit opinion in the case of Didden v. Village of Port Chester. The decision validated a plainly pretextual taking of private property under the Constitution in a move that arguably stretched the Supreme Court's already distended interpretation, in Kelo v. City of New London, of the "public use" language in the Takings Clause even further.
UPDATE: University of Chicago law professor and frequent Manhattan Institute visiting scholar Richard Epstein shares Somin's concern.
UPDATE II: In the interest of fairness, Somin reports that Sotomayor authored a strong opinion striking down New York City's former practice of indefinitely impounding vehicles belonging to criminal suspects without commencing any civil forfeiture proceedings. Clearly, she is willing to enforce some constitutional limits on state interference with property rights.
Despite a lengthy tenure on the federal bench (about six years as a federal district court judge and 11 years on the 2nd Circuit Court of Appeals) Obama's SCOTUS nominee, Sonia Sotomayor, has decided few controversial constitutional cases. The thinness of her constitutional record may draw senatorial attention to a recent per curium opinion in which she and two other 2nd Circuit Court judges held that the Second Amendment right to keep and bear arms - recently declared an individual right by the Supreme Court in District of Columbia v. Heller - does not apply to the states.
The panel makes what superficially appears to be a strong argument: the Supreme Court directly held in Presser v. Illinois, 116 U.S. 252 (1886) that the Second Amendment does not bind the states, it reasoned, and lower courts are obligated to follow even antiquated SCOTUS precedent if it is directly on point.
What the panel missed, however, was the significance of the fact that Presser was decided before the development of modern incorporation doctrine, which applies most of the bill of rights to the states through the Due Process Clause of the 14th Amendment. The Presser court therefore addressed only the issue of whether the Second Amendment applies to the states directly, and did not consider the question of whether the Second Amendment is incorporated by the 14th Amendment.
A Ninth Circuit panel recently took this better view, holding that Presser did not control the question of incorporation and that the individual right to keep and bear arms does indeed apply to the states via the 14th Amendment's Due Process Clause.
The legal argument for incorporation of the Second Amendment is pretty strong, and it's hard not to see the 2nd Circuit panel's opinion as deliberately ducking a question about which its members, including Sotomayor, might have had public policy misgivings. Look for some close questioning about the Second Amendment during Sotomayor's confirmation hearings from senators close to the NRA and other gun rights groups.
In today's WSJ, Bernard Marcus of Home Depot has a warning:
...According to ABC News, an Obama replacement "would be unlikely to tip the balance of the court." The Los Angeles Times echoed, "Souter's retirement is not likely to change the court's ideological balance."
Can we be so sure? Justice Souter frequently signed onto 5-4 majority opinions ensuring the fair, just and efficient resolution of legal disputes for entrepreneurs and business owners....
The proposal by Gov. Jim Doyle, a favorite with the state's trial lawyer lobby, would potentially stick a defendant who was 1 percent to blame with 100 percent of the plaintiff's damages. A business coalition is fighting hard against the measure. [Green Bay Press-Gazette, Milwaukee BizTimes, WMC]. The state's biggest paper, the Milwaukee Journal Sentinel, has editorialized against the measure. On Gov. Doyle's ties to Habush, Habush & Rottier and other trial lawyers, see this column by the J-S's Daniel Bice. More: Boots and Sabers.
The measure dramatically expands the scope of bounty-hunting litigation, providing, for example, that relators can invoke the whistleblower statute against not only purported frauds committed in direct dealings with the government itself and its agents, but also those arising from dealings "with a third party contractor, grantee, or other recipient of such money or property." Analysis: Hans von Spakovsky & Brian Walsh, "Correcting False Claims about the New False Claims Act Legislation" [Heritage via ShopFloor]
Charismatic race car driver (and 2007 Dancing With the Stars winner) Helio Castroneves is happier than usual to be competing in the Indy 500 this weekend. He was acquitted of 6 counts of federal tax evasion only three weeks ago.
For most kinds of crime, "ignorance of the law is no excuse." But the U.S. Supreme Court held in Cheek v. United States that the tax code was so darn complicated that a good faith belief that one was correctly interpreting the law was a defense to charges of tax evasion. We may not all have corporations in Panama, but we can surely relate to the task of puzzling over a deduction.
The Los Angeles police union is investing in a fund for press properties which it says makes it a part owner of the San Diego Union-Tribune. It's now demanded the firing of editorialists there for writings insufficiently friendly to public-employee interests. [L.A. Times, letter in PDF courtesy Poynter, via Romenesko]
It's at Reason magazine, and I'm among the contributors. Here's the text of my contribution:
Who should Barack Obama nominate for the Supreme Court and why?
Walter Dellinger III is a Duke law professor and former Clinton Justice official whose expertise in separation of powers, civil liberties, and business law would seem to match those of any likely liberal Democrat. By praising him, I'm afraid, I've utterly doomed any chances he may have had. Sorry, Prof. Dellinger.
Who will Obama nominate and why?
Obama is grounded in today's legal academia, so the candidates he's most comfortable with would fit recognizably in the academic milieu. Like all presidents, though, he'll consult the political winds and constituency demands. Elana Kagan would breeze to confirmation.
Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?
The "empathy" theme is politically golden for him, since on one level almost anyone agrees that judges benefit from having empathy, dealing constantly as they do with the stuff of human nature. Others, of course, will discern a signal that he wants judges who will rule for the little guy. I suppose we'll find out later which he meant.
What issue(s) will dominate the court over the next three years and why?
Replacing David Souter by a (marginally more liberal?) newcomer isn't the main game here. Every few years some new type of legal case arrives with the potential to shake up the old Court line-up. With the federal government rapidly grabbing quasi-executive authority over industries like finance and auto production, will--and should--the Court's conservatives uphold as an ideal the importance of deferring to the elected branches?
And a furor erupts in academic and [not necessarily entirely overlapping] plaintiff-oriented circles:
- Michael Dorf, FindLaw;
- Howard Wasserman in a series of critical posts at Prawfsblawg: first, second, third (implications for Bivens and "supervisory liability" claims), fourth.
- Tony Mauro, NLJ; ABA Journal (Souter dissent: to overcome motion to dismiss, allegations "need not be plausible" and anything short of rants about "little green men" should do it);
- Richard Bales, Workplace Law Prof;
- Scott Dodson, Civil Procedure Prof;
- Alexandra Lahaf, Mass Tort Litigation;
- Andrew Longstreth, American Lawyer (decision could affect securities litigation, in particular cutting down on "fraud-by-hindsight" actions);
- WSJ Law Blog (quoting some reactions from the defense side: some had imagined Twombly would be restricted to antitrust claims, but the Court clearly means to apply it across the board; bare "notice pleading", in which the only requirement of pleadings is that they place a defendant on notice of the nature of the dispute, now a thing of the past in federal courts).
To declare my own sympathies: in my first book, The Litigation Explosion (1991), I argued at length that the system of notice pleading, in which the barest and least informative allegations are enough to get into court, is high on the list of factors contributing to our national oversupply of litigation. That doesn't necessarily imply that any one way of fixing things, or of narrowing or winnowing out lawsuits at the pleadings stage, is the right way; interestingly, no less a figure than Richard Epstein has written a SSRN paper somewhat critical of the high court's Twombly decision, of which Iqbal is an extension. But it does mean I tend toward impatience with the notion that everything was fine in the Conley v. Gibson era, and that if opponents who have done nothing wrong happen to be ruined by the cost of responding to vague, conclusory and shifting allegations, well, you can't make an omelet without breaking eggs etc.
President Obama's memo to the Executive Branch on preemption is online at the White House here.
The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
The American Association for Justice issued a joyful noise news release, "Obama Memo on Complete Immunity Preemption Makes Clear Rule of Law Prevails Over Rule of Politics." The Medical Device Safety Act gets a new push in Congress, to say the least. (Earlier post.)
UPDATE (10 a.m.) On Tuesday President Obama became the nation's No. 1 promoter of national standards as a way to end lawsuits (in this case, vehicle emissions). On Wednesday, he undermines national standards and invites lawsuits through a presidential memo. Pragmatism, apparently.
- President Obama issues policy memo on preemption, tilts toward allowing more scope for state-law litigation [UPI]
- Syracuse prof Mark Obbie discontinuing his blog on legal journalism, though a successor might choose to resume it [LawBeat, Ambrogi]
- Widest filament dept.: "The most conservative law faculties" [Bainbridge]
- Fine print from Washington pushes bigger government: "If state cuts too deep, it loses stimulus funds" [San Francisco Chronicle]
- Are state auto dealership tenure laws vulnerable to a Dormant Commerce Clause challenge? [Magliocca, ConcurOp]
- Dueling headlines: did chemical-company defendants win or lose a big Modesto groundwater contamination case? [Cal Biz Lit]
From the Senate Committee on Homeland Security and Government Affairs, a news release announcing the committee's approval by voice vote of Cass Sunstein to head the Office of Information and Regulatory Affairs.
Advocates of the expansive regulatory state are accepting Sunstein's inevitable confirmation to the post overseeing the Obama Administration's regulatory activities. Still, they're not terribly happy if we are to judge from this report of the confirmation hearing by Rena Steinzor, University of Maryland law professor and president of the Center for Progressive Reform. (We see that Professor Steinzor spent her sabbatical year as the Academic Fellow at the Natural Resources Defense Council)
On a more discouraging note, Sunstein also reiterated the "principle" of "looking before you leap" as inspiring his view of regulatory policymaking. Since he has written so extensively and so very critically about fundamental regulations to control toxics in the workplace and the environment (as just one example, the EPA rule adopted by Bush II Administrator Christine Todd Whitman to remove arsenic from drinking water), this reiteration of the strange perception that we are in an era of mindless and excessive regulation was disconcerting, to say the least. For most of the last decade, agencies have not been lining up to leap cheerfully into the abyss of overly costly regulation, but rather have been staring into space, immobilized by just such a canard.
And that's the world view of progressive reform. Or is is reformist progressivism?
"An effort to overturn a 59-year-old Supreme Court decision barring service members from suing the government for negligence inched forward Tuesday when a House subcommittee approved the Carmelo Rodriguez Military Medical Accountability Act." [Navy Times] The Norfolk Virginian-Pilot is also lending a reportorial hand to the plaintiffs' cause. The legislation would curtail the Feres doctrine, which restrains uniformed personnel from filing negligence lawsuits against the armed services. In effect, the doctrine requires that injured personnel be content to accept whatever benefits package the armed services (and ultimately Congress) choose to provide for death, disability or other losses (earlier here and here).
It seems to me that the controversy over Feres repeal would make a good place to draw a line in the sand for those who favor administered-compensation alternatives to medical liability litigation -- whether that happens to mean the Harvard-style school of no-fault proposals with relatively generous definitions of eligibility, or the Common Good emphasis on health courts with credible expertise on causation, or the various other possibilities modeled on vaccine or infant-brain-damage no-fault programs, workers' comp, New Zealand social insurance, or European practices. If administered compensation without the high overhead and acrimony of litigation can't work in the context of military medicine -- in which the parties already have intense and ongoing legal relations with each other, in which complications arising from multiple sources of health care are at a minimum, and in which the prospective defendant is already providing a comprehensive, lifelong package of benefits to the prospective plaintiff -- then it probably can't be made to work anywhere.
Of course the lobbying push in Congress never seems to take the form of "let's liberalize benefits for service families who find themselves in this situation, but in ways that don't require them to go through lawsuits". It's almost as if expanding litigation is a goal in itself.
Recoupment suits by particular payors (such as state governments) have enjoyed much success, but class actions on behalf of drug users generally seeking refunds over allegedly faulty pharmaceutical marketing are losing at the class certification stage, because questions of what would have happened with different or no marketing are too individualized. Beck and Herrmann explain.
From the Times-Picayune: "The [Louisiana] Senate voted 36-1 today to protect health-care providers and their employees from certain civil lawsuits related to their work in hurricane or other emergency evacuations. Senate Bill 106 by Sen. Sherry Cheek, R-Shreveport, would leave open civil lawsuits against the responders, volunteers and emergency personnel only in the cases of 'gross negligence' or 'willful misconduct.'"
The conveyance is not without controversy, it seems (NY Post: "Sometimes crime does pay.") Former city official Henry Stern views the episode as sui generis: "giving away buildings in lower Manhattan to people who break into them and declare themselves owners should not be considered the new public policy of the city of New York."
Liability for contaminated Chinese drywall was just one topic in extensive legal discussions this morning during a Senate Judiciary Committee's subcommittee hearing, "Leveling the Playing Field and Protecting Americans: Holding Foreign Manufacturers Accountable." (Earlier post.) Prepared statements:
- The Honorable Sheldon Whitehouse, subcommittee chairman.
- Louise Ellen Teitz, Roger Williams University School of Law, Bristol, R.I.
- Thomas L. Gowen, Locks Law Firm, Philadelphia.
- Chuck Stefan, The Mitchell Company, Mobile, Alabama.
- Victor E. Schwartz, Esq., Shook, Hardy & Bacon, representing the U.S. Chamber's Institute for Legal Reform.
The Washington post reports that the Supreme Court will hear media mogul Conrad Black's appeal of his 2007 conviction for federal mail fraud and obstruction of justice. Black's attorney argues that there is no evidence that the executive compensation scheme deemed illegal in Black's case cost Hollinger, now re-named Sun-Times Media Group, any money. SCOTUS may take this opportunity to limit the exceptionally broad reach of the federal mail fraud law, which was originally intended primarily to limit political corruption.
One of the Obama administration's tax proposals would end the deductibility of punitive damages, a step previously advanced in Congress without success. [Reuters] The conventionally offered reason for such a change is that punitive damages, like criminal fines, should convey a stigma and not just be handled as something in the course of business. Some proponents may also hope that such a tax change will turn punitive damages into more of a "hammer"; PoL contributor Ted Frank says the move "looks like an indirect giveaway to the trial bar". [Southeast Texas Record]
Whatever the motivation, I suspect the actual practical effects of the proposed tax change will fall far short of what proponents hope, for much the same reason that the popular reform idea of splitting punitive damage awards with the state has put little if any money into state coffers where it has been tried. Nearly all money that changes hands in litigation where punitive damages are demanded does so through settlement at some stage short of enforcement of a final judgment. Even if a jury has in fact voted to award punitive damages, a settlement in-lieu-of-appeal can typically characterize the sums changing hands as compensatory in nature, and thus not subject to the more unfavorable tax treatment (or to splitting with the state, as the case may be). In both cases it will be strongly in one side's interest to insist on the "compensatory" characterization, and not in the other side's interest to insist otherwise.
For the sake of federal budget credibility, I hope Washington is not expecting this change to bring in any great sums in new tax revenues.
More: Ted has now posted at Overlawyered.
The House Energy and Commerce Committee has just begun marking up H.R. 2454, the American Clean Energy and Climate Security Act, in its latest form just 946 pages of directives, mandates, ukases, orders and some credits thrown in for negotiating purposes.
One provision that's missing from earlier versions is the "citizen lawsuit" language that would have invited activists groups and their allies in the litigation world to sue for violations of the Clean Air Act. The committee staff of Sen. Jim Inhofe (R-OK) had a quick summary of why that language would have been so objectionable here, and the Competitive Enterprise Institute's Marlo Lewis warned against it here. However, CEI's Myron Ebell, who chairs the Cooler Heads Coalition, reports its absence from the latest draft.
Any legislation that seeks to regulate economic activity that emits carbon dioxide will by its very command-and-control nature invite litigation, but at least the most obvious avenue has been excised. For now.
Beck & Herrmann believe that the supposed justifications for Albany's proposed abolition of the "learned-intermediary defense" (which essentially requires only that prescribing doctors be warned adequately of risks) "in all likelihood ... only serve as a fig leaf for what's really just a hand out to the plaintiffs' bar."Alberto Bernabe defends the proposal. Earlier here.
...One would think that any discussions concerning an EFCA "compromise" would include those senators who voted against EFCA the last time it was introduced, but it appears only those who supported EFCA are involved in the negotiations. ...
To overcome the unpopularity of card check and its abridgement of the secret ballot, Kirsanow says one idea being floated is that of mail-in ballots, but, he says, "mail ballots retain many of the same infirmities as card check". Jennifer Rubin warns against "an innocuous sounding compromise that will permanently tip the scales in favor of increased unionization."
The AM Law Litigation Daily declared David Bernick of Kirkland & Ellis its "Litigator of the Week" for his defense and closing arguments on behalf of W.R. Grace. Bernick said he sought to win the case of the merits, but the reporter notes he didn't let the prosecution's errors go unremarked. The article is a good quick review, and especially appreciated is a link to the transcript of the closing arguments.
Next Tuesday, a hearing in the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Court, "Leveling the Playing Field and Protecting Americans: Holding Foreign Manufacturers Accountable." Presiding over the hearing is Sen. Sheldon Whitehouse (D-RI), who as Rhode Island's attorney general initiated the public nuisance, contingency-lawyer lawsuit against the paint manufacturers.
Litigation in response to Chinese drywall contamination will certainly be a topic of discussion, and the hearing could even return to the Chinese toy issue that gave birth to the Consumer Product Safety Improvement Act. The witness list (with links where available.)
Louise Ellen Teitz
Professor of Law
Roger Williams University School of Law
Bristol, Rhode Island
Thomas L. Gowen
Locks Law Firm
The Mitchell Company
Victor E. Schwartz
Shook, Hardy & Bacon, LLP, Public Policy Group
On behalf of the Institute for Legal Reform, U.S. Chamber of Commerce
Gowan does both complex personal injury and civil litigation, as well as commercial real estate law. The Mitchell Company, its construction arm, recently filed a class-action suit against a German firm, Knauf, for supplying high-sulfur Chinese-made drywall to U.S. construction companies.
Another hearing should attract heavy media coverage next week, especially from the Southern states where contaminated drywall is concentrated. A Senate Commerce subcommittee meets Thursday, "Health and Product Safety Issues Associated with Imported Drywall."
- Claim: medical device industry "is completely immune from liability for injuring people" [Center for Justice and Democracy]
- "London Delays Its Decision on Pleural Plaques Legislation" [Hartley, GlobalTort]
- Nevada trial lawyers see opportunity in hepatitis outbreak to roll back state's med-mal reform [Las Vegas Review-Journal]
- "Deceptively-named Arbitration Fairness Act of 2009 ... could nullify millions of existing contracts" [California Civil Justice]
- "Oklahoma tort reform compromise forged" [Robinette, TortsProf, ShopFloor]
- Litigation finance, cont'd: "How are these settlement loans not a dictionary definition of predatory lending?" [Ron Miller, Maryland Personal Injury]
Larry Ribstein takes a first look at some truly remarkable, and disturbing, ideas coming out of Washington: "The key difference in the stories is in the lead paragraph of the NYT story that the Obama administration was considering 'moving beyond banks to include more loosely regulated hedge funds and private equity firms.'"
On Friday Maryland's highest court, confirming its intermediate appellate court, made it more difficult for plaintiffs to qualify as expert witnesses in future vaccine cases -- this is yet another thimerosal suit against Wyeth.
Jamarr Blackwell is both autistic and mentally retarded. His parents sued, claiming that his disabilities were caused by thimerosal-containing vaccines administered when he was a baby. They had FIVE expert witnesses to support their theory of causation.
Wyeth's attorneys responded that the causal connection between thimerosal and autism is not generally accepted by the scientific community, and that the Blackwells' experts were not qualified to testify under Maryland's version of the "Frye rule." Maryland's High Court held that although Dr. Geier, the Blackwells' expert in epidemiology, may have used data collected in generally accepted ways, the "analytical gap" between the data and the experts' conclusion on causation was too great to justify the results. The Court, moreover, concluded that neither Dr. Geier's methods nor his theory of causation were generally accepted in the relative scientific community. Finally, the court found that none of the experts had sufficient "knowledge, skill, experience, training, or education, primarily in the field of epidemiology, to proffer reliable expert testimony on matters of complex and novel scientific inquiry...." This should prove to be a powerful precedent in the many states still using the Frye rule.
Here's the link to the AmLaw Daily summary of the ruling.
- Columnist Michael Kinsley warns Congress against legislative folly of repealing medical device preemption [Washington Times, WSJ Health Blog, testimony, PDF; ShopFloor]
- CBS "60 Minutes" enlists on the plaintiff's side in Chevron/Ecuador battle [Washington Times, CEI OpenMarket, Business & Media Institute, ShopFloor; earlier posts]
- Both GOP candidates for New Jersey governor, Chris Christie and Steve Lonegan, include litigation/court reform in their platforms [NJLRA]
- Not easy to get Judge Weinstein to exclude scientific testimony on a Daubert motion, but he did it in a Zyprexa case [Beck & Herrmann]
- More on economic effects of unionization [Goldberg/NRO]
- Arizona, Idaho, Utah, Vermont best, and Florida, Hawaii, Louisiana, Maryland, Massachusetts, New York worst: the 50 states ranked according to the freedom of their property/casualty insurance markets [CEI/Heartland]
The Colorado Civil Justice League reports (not yet online) that the state's trial lawyers fell far short this session of enacting the ambitious legislative agenda they had envisioned:
Despite the fervent efforts of the various trial lawyer groups to erode Colorado's generally favorable civil litigation climate, the Colorado Civil Justice League had an exceptional 2009 legislative session. The Colorado plaintiffs bar attempted to expand business liability in a number of areas this year (employment law, construction defects, medical malpractice, health insurance, among others) but largely came up short.
Of six bills, only one that was relatively minor (reducing bonding requirements for court costs) made it into law.
The Senate confirmation hearing Tuesday for Harvard law professor Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs (OIRA) was noncontroversial, cordial, positive, and ran less than an hour. OIRA is the key office that the White House uses to bring consistency and efficiency to executive branch rulemaking, and in Republican Administrations has been seen as an office that helps rein in regulatory-happy agencies.
Sen. Joe Lieberman (I[D]-CT), chairman of the Senate Committee on Homeland Security and Government Affairs, ran the hearing with ranking Republican Sen. Susan Collins of Maine also in attendance. Sen. Daniel Akaka (D-HI) stopped by, and Sunstein was introduced by Sen. Amy Klobuchar (D-MN), a former law student of his at the University of Chicago. Lieberman concluded the hearing by saying he supported Sunstein's confirmation.
A source we respect highlights the key regulatory discussion points:
James Sherk of Heritage challenges the endlessly repeated contention that the current rules on union representation elections are unfairly biased toward management:
In fact, as I have written before, labor law heavily tilts the scales in favor of unions during organizing drives:
* Unions control the election timing, so workers do not vote until union support peaks.
* Employers rarely learn of the organizing drive until unions ask for an election, so unions have months to build support while employers have just one month to present the other side.
* Employers may not ask employees if they support the union. Unions may ask employees how they will vote and focus their efforts on persuading undecided workers.
* The law severely restricts employer speech while allowing unions to say almost anything they want. Employers may not promise to improve working conditions if workers vote down the union. The union may promise anything it wants, even if it knows it cannot keep those promises.
* Employers may not even ask workers what problems they have in the workplace and why they want a union. Unions can ask workers about anything they want.
* Unions may not campaign while workers are on company property and on company time. However the company must give unions the addresses of every worker and unions can visit workers at their homes. Employers are legally prohibited from visiting workers homes to campaign.
No wonder unions have a 2-1 win rate under the current rules.
Today's lead editorial in the Wall Street Journal is on Judge Victoria Chaney's sensational denunciation of what she characterized as perjury-coaching, injury-faking, intimidation and more in the prosecution of claims against Dole, Dow and other defendants alleging injury from a pesticide used on banana plantations in Nicaragua (see Apr. 27 and earlier coverage at Overlawyered). The Journal has strong words for the trend toward opening the U.S. legal system to tort claims from around the world, saying it has created a "torts-for-import business, whereby U.S. tort lawyers travel abroad [and] join with local lawyers to manufacture claims" whose factual basis can be "nearly impossible to challenge" later in U.S. court given the hurdles posed to evidence-gathering. It also raises a point I haven't seen mentioned much in the coverage so far:
In a related case involving Dole, the Texas plaintiffs firm Provost Umphrey is asking a federal judge in Miami to enforce a $98.5 million judgment obtained by banana farm workers in Nicaragua. Never mind that the Nicaraguan judge who made the initial ruling is the same one cited by Judge Chaney for allegedly taking bribes and fixing cases against U.S. firms.
We've seen this quite a few times before: advocacy efforts to call attention to problems of unfounded or abusive litigation getting called "jury tampering". Jury tampering, as we know, is a very serious matter ordinarily punished by the criminal law. Are we dealing here with a mere overheated metaphor, or is there some plan afoot to criminalize such speech? And if so, will the new strictures also apply to trial lawyers who, say, contrive to get "60 Minutes" to pass on an uncritical dramatized version of their client's case in the lead-up to trial? More on U.S. Chamber movie trailers here.
A Federalist Society/Heritage lunchtime panel discussion today (Wednesday) in Washington, D.C. with panelists that include Roger Clegg (Center for Equal Opportunity), Gail Heriot (U. San Diego/U.S. Commission on Civil Rights), Jocelyn Samuels (National Women's Law Center), and Theodore Shaw (Columbia, formerly NAACP Legal Defense and Educational Fund). Todd Gaziano will moderate. Details here.
They're already happening, based on argued failure to disclose the risks of global warming to investors, and they serve the twin purposes of 1) ramping up pressure on utilities, energy companies and other targets; 2) extracting monetary class action settlements. New York Attorney General Andrew Cuomo has lent a hand to the environmentalist/plaintiffs' side (Carol Zacharias, John Liner Review (Advisen)(PDF) via Mason Power and Kevin LaCroix (scroll))
Speaking of Freeland, a recent announcement of his provides what we must take as a case of "attorney/blogger makes good"; after years as a much-read observer of the Scruggs affair (at Folo and more recently Northern Mississippi Commentor), he's now been retained to represent one of the most mysterious and much-speculated-about principals in that affair, P.L. Blake.
- After strikeout of Nigerians-v.-Chevron case, and worse-than-strikeout of Nicaraguans-v.-Dole case, next high-profile Alien Tort Statute trial may be Nigerians-v.-Shell [Hartley/Global Tort]
- Some in Congress wouldn't know a "tax cheat" if they found one staring back at them in the mirror [Geraghty via Balko]
- Tracking and labeling requirements, due to hit in August, are the next phase in small-business annihilation to emerge from the Consumer Product Safety Improvement Act (CPSIA) [Overlawyered]
- EFCA's imposed-arbitration provisions draw fire from George McGovern [WSJ] and Manhattan Institute's own Diana Furchtgott-Roth [Real Clear Politics]
- As legal coils tighten, some payday lenders go offshore or hold themselves out as controlled by Indian tribes [Hartley/Global Tort]
- Quin Hillyer has been a clarion voice on litigation reform at The Examiner, now Washington Times has grabbed him [MediaBistro "Fishbowl DC"]
The House Energy and Commerce Committee, Subcommittee on Health, holds a hearing Tuesday on H.R. 1346, the Medical Device Safety Act, the bill to eliminate federal preemption in civil suits involving FDA-approved medical devices. As described in this earlier post, this bill would invite a flood of suits in state courts, creating a jury-determined, patchwork regulatory regime that would discourage innovation and investment.
The witness list, now out, suggests regulatory policy is being determined based on who makes the best PR pitch.
- David Vladeck, J.D., Professor of Law, Georgetown University Law Center
- William H. Maisel, M.D., M.P.H., Director, Medical Device Safety Institute, Department of Medicine, Beth Israel Deaconess Medical Center, Boston
- Gregory Curfman, M.D., Editor, New England Journal of Medicine
- Bridget Robb, Gwynedd, Pennsylvania
- Richard Cooper, Partner, Williams & Connolly LLP
- Michael Kinsley, Seattle, Washington
David Vladeck? He was just appointed to Director of the Bureau of Consumer Protection in the Federal Trade Commission. (FTC news release.) How strange to have him wearing different policy/regulatory hats.
Dr. Curfman's appearance shows the New England Journal of Medicine continuing its transformation into an advocacy organization. The publication submitted an amicus brief in the prominent preemption case, Wyeth v. Levine, so you can't really call it a disinterested journal of science.
Bridget Robb is a Pennsylvania woman who fills the sympathetic Diana Levine role for medical devices. Robb has testified in the Senate before on her defibrillator malfunction; ABC's "Good Morning America" told her story last June under the headline, "Young Daughter: 'Mommy's Dying'"
Michael Kinsley, the liberal columnist, wrote a Washington Post commentary last year, "Drug Regulators in the Jury Box," criticizing the Supreme Court's ruling in Wyeth v. Levine. Litigation is a flawed method of regulating drugs, he argued.
Who will get the bulk of the media coverage, we wonder.
Andrea Peacock is a vociferous anti-W.R. Grace writer and she's writing in the hard-left Counterpunch, but her analysis of last week's jury decision in the U.S. District Court criminal trial of Grace and its former executives still contains interesting detail about the defense and prosecution arguments. The column is "No Justice for Libby." The second headline is, "Corporate Poisoners Walk in Sickening Verdict," so you get the drift.
Peacock now proposes state prosecution of Grace for criminally negligent homicide. One Libby activist, Norita Skramstad, whose husband Les died in 2007 of mesothelioma, reacts: "I think we'll just go on with our lives," she says.
A useful reminder: W.R. Grace reached a settlement with the EPA to pay $250 million for a Superfund clean-up of Libby and has proposed a $2.4 billion asbestos trust fund as part of its Chapter 11 reorganization.
There were many reasons criminal charges should not have been brought or allowed to continue by the 9th Circuit.
Per Ben Hallman at American Lawyer, the Mississippi Public Employees Retirement System gets around in securities litigation, the latest instance of which is its appearance as co-lead plaintiff against Royal Bank of Scotland, in which it's represented by Wolf Popper and Labaton Sucharow. Much more on the Mississippi fund from Andrew Longstreth at American Lawyer in the magazine's May issue (state's "active caseload has brought charges that [Attorney General Jim] Hood is essentially running a pay-to-play state"). More: Bloomberg.
Per the Chamber-backed West Virginia Record, Pittsburgh lawyer Robert Peirce says it would be too burdensome for him to go back and produce details on thousands of asbestos lawsuits he filed, many of which, contends adversary CSX, were based on medical testimony from Dr. Ray Harron, who is accused of churning out fraudulent x-ray reports.
A reporter's account of the jury deliberations in the W.R. Grace asbestos trial noted the complicated issue of timing. From the Cops and Courts blog of The Missoulian:
The jury of six men and six women received the criminal case Wednesday evening and reached their verdicts Friday morning. They faced the onerous task of interpreting evidence and testimony that was presented over the course of 35 days, as well as determining whether the alleged crimes conduct occurred within an applicable time frame. The criminal provision to the Clean Air Act, for example, wasn't enacted until 1990, the same year the Libby mine ceased operations.
We can well imagine a debate around the jury room centered on this question: "How could they have conspired to violate a law that hadn't been written yet?"
More powerfully persuasive in a mens rea sort of way might have been this witness:
The defense then called Mike McCaig to the stand, son of former Grace manager and defendant in this case, William McCaig. Mike McCaig is a computer programmer from Simpsonville, S.C. He grew up in Libby and graduated from Libby High School in 1989.
Through Mike McCaig's testimony, the defense showed that William McCaig brought his family up to the mine, used mine products in the family garden and wouldn't have done so had he known the health risk of breathing dust from the contaminated vermiculite.
Juror A asks, "If they knew it was dangerous, they never would have let their kids hang around the mine, would they?" Juror B responds. "Yes, that's hard to imagine."
"This is a joke and a travesty of our justice system. This judge should be impeached," said Brent Skramstad, who lost his father, Les, to mesothelioma in January 2007.
Supporters of the criminal prosecution of W.R. Grace and its former executives in Libby, Montana, have decided it's U.S. District Court Judge Donald Molloy fault. From the website of Andrew Schneider, a former investigative reporter for the Seattle Post-Intelligencer, which made the Libby asbestos story a cause celebre, "Jury acquits W.R. Grace of all criminal charges. Many wonder how it happened."
The verdict, joyful to some and painful to many, was no surprise. Most of the observers in the court gallery expected, at the most, a guilty verdict on only one of the eight counts, such as obstruction of justice.
The heavy charges of conspiracy and knowing endangerment that carried long prison sentences were taken out of play early as Molloy imposed repeated restrictions and limitations on what evidence and witnesses the prosecution could use.
Senator Patty Murray (D-WA) issued a statement upon the jury's decision in the federal criminal trial of W.R. Grace and its former executives for covering up the health damage caused by mining of asbestos-laden vermiculite in Libby, Montana. "Disappointing verdict," she says. So the jury was wrong?
Today's disappointing verdict is a reminder of the urgent need to ban asbestos in America. The families of Libby, Montana have suffered enough and my thoughts are with them today. The terrible sacrifices they have endured are shared by the families of more than 10,000 Americans who die every year from asbestos-related diseases - deaths that are preventable.
Asbestos destroys lives and the tragedy at Libby has shown that it can
devastate entire communities. We must move forward to protect America's workers and families once and for all.
A Hartmarx men's-suit-making plant in suburban Des Plaines, Ill. is being groomed as the next potential scene of union-led illegal plant occupation, encouraged by brass-knuckled Chicago and Illinois pols, and premised on the notion that bank lenders (in this case Wells Fargo) are under a government-imposed obligation to throw good money after bad to bail out union jobs, in this case SEIU. Coverage: Tribune, NY Times, Progress Illinois (noting involvement of Rep. Jan Schakowsky), Chicago Daily Observer. Our coverage of the Republic Windows episode, besides the City Journal piece: Dec. 9, Dec. 11, Dec. 18, Dec. 23, Jan. 27, Mar. 27, May 6.
The Wall St. Journal Legal Blog reports that Arkansas plaintiffs' lawyer Gene Cauley "cannot find" over $9 million due to his clients, according to federal court records. Cauley was one of the lead plaintiffs' lawyers in a 2004 securities suit that settled in 2006 for $65.8 million.
According to an April 20 Federal court transcript, Cauley informed co-counsel that he could not produce about $9.3 million in settlement funds. He told Judge Jed Rakoff that the missing funds "are presently unavailable." but declined to elaborate, citing his privilege against self-incrimination.
"The inference I'm drawing is that Mr. Cauley has either misappropriated or otherwise misallocated these funds," Rakoff announced. "I trust there will be a prompt investigation of this matter by the U.S. Attorney's office."..."When I hear people cracking lawyer jokes, I always take umbrage and point out that the profession of Lincoln, the profession of Madison and Jefferson often represents the highest ideals in our society," the judge said. "But recent events give me pause about how true that is."
A quick verdict of not guilty in the federal criminal trial of W.R. Grace and
five, four, three former executives for conspiring to cover up health damage from asbestos in a Libby, Montana, vermiculite mine. Walter notes the verdict at Overlawyered.
W.R. Grace has issued a statement from Fred Festa, Chairman, President and CEO. Excerpt:
We at Grace are gratified by today's verdict and thank the men and women of the jury who were open to hearing the facts. We always believed that Grace and its former executives had acted properly and that a jury would come to the same conclusion when confronted with the evidence.
AP story, "Jury acquits W.R. Grace, 3 execs in asbestos case." And from The Missoulian, "UPDATE ON W.R. GRACE VERDICT: Libby reacts to news of not guilty verdicts":
"This is the longest trial that I have been involved in," said U.S. District Judge Donald Molloy of the 35-day trial that began in February. "It is I think truly a reflection of how we are supposed to govern ourselves. Ultimately it is the people of the community who have to make a decision. This is a case in which very few people who know all of the evidence, and you do. We appreciate your service."
The defense repeatedly claimed prosecutorial misconduct, and the prosecution asked for dismissal of charges against two of the original defendants, admitting they lacked evidence to make the case.
The Senate Homeland Security and Governmental Affairs Committee has scheduled a hearing on the nomination Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs for 10 a.m. Tuesday. (Details.) Sunstein will be introduced by Sen. Dick Durbin (D-IL), who counts as his homestate Senator from Sunstein's time at the University of Chicago (1981 to 2008), and by Sen. Amy Klobuchar (D-MN). Klobuchar earned her J.D. from the University of Chicago in 1985, so that's a connection.
Coincidentally, Sunstein and Klobuchar are both listed as possible Obama Supreme Court nominees at today's NBC News First Read blog.
Given Sunstein's record and critical thinking on regulatory matters, as well as his friendship with President Obama, it's unlikely he'll face any confirmation difficulties. Nevertheless, the zealous advocates of the regulatory state at OMB Watch are making some noise. From The Fine Print blog:
Sunstein's nomination raised eyebrows. While he is a respected legal scholar, he holds controversial views on the regulatory process. Sunstein is a proponent of cost-benefit analysis in rulemaking whereby agencies try to show that hard-to-calculate benefits (like deaths avoided or ecosystems saved) exceed the regulation's potential cost to industry.
We've heard rumors that Sunstein may also support the controversial "does it make any sense" standard.
UPDATE (Saturday): Sunstein is mentioned in an op-ed in today's WSJ, "When It Comes to Judges, 'Pragmatic' Means Unprincipled" by David Lewis Schaefer, a political science professor at the College of the Holy Cross:
Interestingly, Mr. Obama's wish to use the courts as an instrument for economic redistribution echoes the views of one of the leading candidates to replace Justice Souter -- Cass Sunstein. In a 1985 article titled "Interest Groups in American Public Law," Mr. Sunstein, a former colleague of Mr. Obama's on the University of Chicago law faculty, called for "vigorous . . . judicial intrusions" into the political process on behalf of such causes as income redistribution so as to overcome the supposed domination of the legislative process by "powerful private groups."
The House Energy and Commerce Committee, Subcommittee on Health, has a hearing scheduled Tuesday, May 12th, on H. R. 1346, the Medical Device Safety Act. This is the bill that would end federal preemption for FDA-approved medical devices, allowing (encouraging, inviting, definitely producing) more product liability suits in state courts. The bill (and its Senate companion, S. 560) come in response to the U.S. Supreme Court's ruling in Riegel v. Medtronic. (Opinion.)
Wyeth v. Levine was the wedge ruling, energizing the political and PR campaign to undermine preemption. The May issue of "Trial," the AAJ's magazine, has several articles devoted to the topic. As the AAJ summarizes in this recent news release, "FDA 'Internal Meeting' on Devices Shows Patient Safety at Risk": "AAJ has been working in a large coalition of consumer and patient safety groups to enact the Medical Device Safety Act (MDSA), legislation that would restore the rights of medical device patients to seek justice in state courts when they have been harmed by unsafe medical devices."
The goal for the lawyers and consumer and patient safety groups is to replace a federal regulatory regime with 50 different and changeable state regimes, determined by litigation and jury awards. Damaged as a result would be consumer and patient safety.
No witnesses listed yet for the hearing: May 12, Subcommittee on Health, hearing on H.R. 1346, Medical Device Safety Act of 2009, 2 p.m., 2123 Rayburn
A new ban on the insect foggers (except when used by professional exterminators) will take away a inexpensive and effective option from many homeowners because a relative few ignored application instructions and as a result suffered minor injuries. Of course, living with bugs because calling an exterminator is too expensive has its own health implications.
My post earlier today describing the misleading tactics of a pro-EFCA Twitter account mentioned in passing (in a P.S.) that "One Twitter user associated with the SEIU does not seem terribly outraged by the tactic."
Readers interested in the question should be sure to check out the links in question which, to me at least, tell quite a different story: 1) On Monday morning, Whitney did mildly rebuke (as "not helpful") the anonymous account over a separate, shabby habit it has of "seeding" posts with oft-searched terms unrelated to immediate content, such as "WSJ" and "SEIU". (By doing the latter, it is in effect spamming users who would prefer getting relatively clean Twitter search results on "SEIU".) 2) Later that afternoon, Whitney called the anonymous account "annoying", without more explanation; I see no reason to assume that his sense of annoyance would not be adequately explained by 1). 3) Still later in the day, after Philadelphia lawyer Eric B. Meyer expressed outrage over the account's ripely fraudulent invitation to "join [Newt Gingrich and Saul Anuzis]" in supporting the ARAW (American Rights at Work) petition, Whitney's response was as follows: "@Eric_B_Meyer it directs people to @araw petition page, not a fake petition - once you click, it's up to the person to read correctly." The inference I draw is that -- suckers! -- it's their own fault for not putting on their reading glasses and noticing that the petition was the opposite of what they thought they were signing.
Under the circumstances, I think my description of Whitney as not seeming terribly outraged by the tactic was pretty mild.
Felix Salmon notes efforts by lawmakers in both the U.S. (Rep. Maxine Waters) and the U.K. to ban "vulture" investing in international debt, that is, the buying up of debt at a steep discounts from par value in hopes of collecting on it:
In other words, the single greatest innovation in the history of debt capital markets -- the idea that obligations can be traded, rather than just being held to maturity or litigated upon default -- is destroyed at a stroke.
It's just posturing with no chance of enactment, he argues -- but it betrays at best a well-intentioned paternalism, especially since developing countries "want no part of any act which might hinder their access to capital or their equal-player status on the world stage."
- The Missoulian, "W.R. Grace trial: Jury now in control of case"
- Grace Case blog, "Case goes to the jury after rebuttal argument" (University of Montana law, journalism blog.)
- Associated Press, "Jurors receive cases in WR Grace trial"
"Lost"-like time-shifting may be required by the jurors. From The Missoulian story:
Jurors now face the difficult task of determining whether the evidence proves that Grace's alleged criminal conduct occurred within an applicable time frame. For example, the criminal provision to the Clean Air Act, which charges knowing endangerment, wasn't enacted until 1990, the same year the Libby mine ceased operations.
In order to convict, then, the jury must find that Grace committed overt criminal acts not only after 1990, but also after 1999. That's when the contamination was discovered in Libby, triggering a five-year statute of limitations.
A busy Twitter account of undisclosed sponsorship has been beaming out messages with texts like "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition at ...[URL]" Unwary fans of Republican leaders Newt Gingrich and Saul Anuzis who click through and sign are in fact signing a pro-union group's petition in favor of EFCA, a position of course strenuously opposed by Gingrich and Anuzis. [The Hill; incidentally, Point of Law can itself be found on Twitter at @pointoflaw]
This strikes me as a really counterproductive tactic to use in support of the card-check bill, above all because it will tend to remind people of the many attested instances in which organizers have gotten unwary workers to sign union-authorization cards by leading them to believe they're signing something entirely different. And if people think too much about those instances, they're likely to be even less keen on replacing secret ballots with "sign here" card procedures, don't you think?
Sounding the alarm about Sen. Kohl's S. 537 ("Sunshine in Litigation Act"), and the ways it would turn ultra-broad lawyerly discovery requests into mechanisms for ultra-broad public dissemination of confidential business information [Barry Bauman and Tim Doescher (Lawyers for Civil Justice), Metropolitan Corporate Counsel]
Larry Ribstein has some pertinent comments about the rolling reinvention of debtor-creditor law going on as the Administration redistributes bankruptcy priorities away from traditional creditors and toward the UAW. And Mickey Kaus credits me with perhaps more prescience than I actually possess about the union role (not that I always venture the cynical prediction...) (cross-posted at Overlawyered). More: Michael Barone, Ken Silber.
P.S. Joe Weisenthal is reminded of an episode of lawlessness that I wrote about a few months back: "Before The Chrysler Mess, There Was Republic Windows". Incidentally, those who wonder what sort of signals the incoming Administration was sending last December about the illegal Chicago plant occupation may be interested to learn that late last month Vice President Joe Biden and Illinois Sen. Dick Durbin paid a visit to the reopened Republic Windows plant, a visit which from a news account sounds as if it might fairly be described as "triumphal" in tone.
Senate Judiciary Republicans voted Tuesday to make Sen. Jeff Sessions of Alabama the ranking member on the committee, meaning he will lead the public Republican review of President Obama's judicial nominees. He's a philosophically rigorous if not particularly aggressive conservative who was blocked from appointment to a federal judgeship in 1986, the victim of partisan and activist attacks for being "racially insensitive." Depending on the Supreme Court nominee, those attacks will return as means of weakening Sessions' position.
- Montgomery Advisor, "Sessions wins Judiciary Committee post"
- Politico, "Jeff Sessions is the GOP's new point man"
- The Hill, "Sessions less likely to opt for filibuster"
As for Sen. Specter (D-PA), Democratic leadership stuck it to him. The Washington Post reports that Specter was placed in junior positions on Judiciary and Appropriations. From "Senate Democrats Deny Specter Committee Seniority":
When Supreme Court nomination hearings are held later this summer, Specter will be the last senator to ask questions of the eventual nominee -- a dramatically lower profile than in 2005 and 2006, when he chaired the committee and ran the confirmations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
A lawsuit by an attorney who claims he was done out of his share of fees may shed light on the prominent class-action firm's relations with politicians in the state of New Mexico. "Eventually, the complaint says, Labaton generated $118 million in fees from litigation on behalf of New Mexico funds in securities class actions against St. Paul Travelers and HealthSouth." [Nate Raymond, AmLaw Litigation Daily] Update Apr. 2010: he withdraws suit.
Mike McConnell is departing the Tenth Circuit for the Stanford law faculty.
Tri-state area edition:
- Lawyers squabble over Staten Island ferry crash fees [NY Daily News]
- Connecticut is among states considering creating special criminal courts for veterans [Connecticut Forum, text of proposed bill 676 (PDF)]
- New York City has paid $540 million in claims of improper police actions since 1998, and last year outlays hit a new high [NY Post]
- NYT wraps up its series on "costly legal swamp" of New York workers' comp system [overview page]
- NYC physician tries to offer free care clinic, more easily said than done [KevinMD]
- Rep. Rosa DeLauro obtains $143,000 earmark for labor history in New Haven [Schwartz]
- Lessor of car liable in $40 million award to upstate athlete in crash where brother was driver; Congress has since moved to override New York's uniquely punitive lessor-liability rules [Buffalo News, background]
- The New Jersey Lawsuit Reform Alliance now has its own blog.
The Volokh Conspiracy is your one-stop shop: Jonathan Adler finds examples of cases where Souter cast a deciding majority vote that an Obama-picked replacement might reverse -- including, very notably, cases applying limits to punitive damages. (He also cites mini-symposia on the vacancy in the Washington Post and New York Times). Orin Kerr makes the case for understanding Souter not as centrist-to-liberal, but as, well, just plain liberal; he and Justice Ginsburg voted together more than any other two Justices. Other posts offer insights about the views of such frequently mentioned candidates as Elena Kagan and Merrick Garland, while David Kopel briefly notes the Second Amendment views of Garland, Sonia Sotomayor, Cass Sunstein et al. (which mostly signal narrow, if any, support for an individual-rights view of the Amendment).
Separately, Stuart Taylor, Jr. devotes a National Journal column to the topic; as he notes, Second Circuit Judge Sonia Sotomayor is drawing particularly heavy fire from critics, in part because of her role in reviewing the New Haven reverse-discrimination case, Ricci v. DeStefano, now before the U.S. Supreme Court.
Megan McArdle on the administration's tactics to cut the UAW in ahead of conventional creditors: "Let's pretend that the most important thing in the world, far more interesting than stupid concepts like the rule of law, is saving unions. What do you think this is going to do to the supply of credit for industries with powerful unions?"
P.S. Note, for the record, that the administration is disputing some accounts of how far it went privately in pressuring Chrysler creditors (though there is no doubt that it did apply public pressure to them). More: Coyote.
Press accounts often characterize Justice David Souter as simply one of the Court's liberal voices. That may be true on some issues, but on questions of restraining the overuse of litigation (as also on, say, many criminal law issues) Souter has been much more of a centrist. He deserves high applause, for example, for his authorship of one of the most important Court opinions on litigation reform in many years, the 2007 Bell Atlantic v. Twombly case tightening pleading standards and thus curbing many "fishing expedition" suits. It is grounds for real worry that a replacement named by President Obama might have very different views on these subjects. Robert Alt has more at the New York Post, as does Hans Bader at OpenMarket, and the WSJ law blog interviews Evan Tager of Mayer Brown.
Asbestos-litigation edition, with a special nod to the Global Tort blog, which has been providing much coverage of the subject:
- Controversy heats up in Scotland and London over Scottish legislation to open up compensation over pleural plaques [March, April posts, plus latest]
- Attorney Mark Behrens of Shook Hardy has a new article in the Texas Review of Litigation entitled "What's New in Asbestos Litigation?" (PDF, courtesy TortsProf). The plaintiff's bar, he notes, is developing new theories and defendants; with judicial scrutiny at last being applied to the mass recruitment of uninjured plaintiffs, he says lawyers are now focusing instead on plaintiffs with actual injury;
- More reading material: Southwestern U. Law Review symposium [Mass Tort Prof] Skadden Arps litigation report [Cal Biz Lit]
- "Manville Asbestos Trust Reducing Transparency on its Asbestos Claims Data" [Global Tort, March, April followup]
- American lawyers developing overseas shipyard claims [Global Tort, Legal NewsLine]
- Suit charging docs with bogus diagnoses could hit some of biggest plaintiff's firms [Forbes]
Confusion reigns over the validity of last year's decisions by National Labor Relations Board. From AP, May 1:
In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.
The NLRB statutorily comprises five members, but Senate Democrats last year would not consider Bush nominees, effectively running out the clock until Barack Obama's election.
The two cases:
- Laurel Baye Healthcare of Lake Lanier Inc. v. NLRB, D.C. Cir., No. 08-1214, 5/1/09 (opinion in .pdf)
- New Process Steel LP v. NLRB, 7th Cir., No. 08-3517, 5/1/09 (opinion in .pdf)
And in March, the First Circuit upheld the validity of two-member rulings: Northeastern Land Services Ltd. d/b/a NLS Group v. NLRB, 560 F.3d 36, 185 LRRM 3390 (1st Cir. 2009) (opinion in .pdf)
Every once in a while an injustice of extreme proportions is vanquished in our legal system, thanks to idealistic lawyers and courageous judges. From macro issues such as the fight against racial segregation to micro issues like the acquittal of the PC-defying Duke Lacrosse students and the exposure of their outlaw prosecutor, such instances remind American jurists of the majesty of this system.
Today's Wall Street Journal has an editorial describing a recent, if little-known, triumph of precisely this order. It is a portrait of Tom Ulzio, CEO of U.S. Silica, and of United States District Judge Janis Jack. It reminds us how they, spurred on by determined and talented attorneys, uncovered and destroyed a massive fraudulent scheme (a criminal enterprise, perhaps?) by a small number of despicable plaintiffs' lawyers in search of the "new asbestos." Those plaintiffs' lawyers decided to destroy the silica industry, and fabricated thousands of bogus claims against it.
Ulzio, "the son of a Pennsylvania steel worker, is blunt-spoken, works in a little-noticed industry, and likes to point out he's a Democrat ("probably the only one in the building.") What a cursory observation of Mr. Ulizio misses is his own law degree, and his steely sense of right and wrong." Read this inspiring editorial and remember (or discover, as the case may be) how a relatively small number of lawyers, executives and judges preserved the Rule of Law. From 20,000 lawsuits in 2003 to one claim so far this year -- this CEO saved his company and helped save American law.
Arkansas News, "Court: Two provisions in 2003 tort reform law unconstitutional": "Responding to questions submitted to the court by U.S. District Judge Leon Holmes, the court said portions of Act 649 of 2003, also known as the Civil Justice Reform Act, are unconstitutional because they affect procedural issues that are the province of the state Supreme Court, in violation of the separation-of-powers clause of the Arkansas Constitution...."Rules regarding (legal) pleading, practice and procedure are solely the responsibility of this court," Justice Paul Danielson wrote in the high court's answer."
The case dealt with a worker at an Eastman Chemical plant, Darrell Johnson, who sued Rockwell Automation over the design of a "starter bucket" he blamed for the injuries. At issue was "deep pocket" joint liability versus "fair share" several liability, and a separate question of the "collateral source rule" -- when a plaintiff is compensated not just by the primary wrongdoer but by collateral sources (insurance companies).
The opinion in Johnson v. Rockwell Automation, Inc is available here. My employers at the NAM joined with a broad coalition of business and insurance associations in an amicus brief supporting the constitutionality of the Arkansas law. You can read the brief and case summary at the Legal Beagle entry.
Federal prosecutors moved to drop criminal charges against another former W.R. Grace executive in Missoula yesterday, and District Court Judge Donald Malloy quickly agreed. From AP:
A day earlier, Molloy questioned how the prosecution intended to prove a conspiracy charge against McCaig, who left Libby in 1988.
"You can't have a conspiracy to do something illegal, can you, if there is no law that makes your conduct illegal?" Molloy asked, referring to the Clean Air Act's criminal statute, which wasn't enacted until 1990.
Three former Grace executives and the company itself remain defendants in the case, charged with covering up the damage to human health from asbestos-containing vermiculite mined near Libby, Mont.
Earlier posts on Libby trial here. The case could go to the jury next week, if it gets that far.
Here in D.C., the EPA has released a government memo on the clean-up of the site, just a week after Public Employees for Environmental Responsibility filed suit. Quick work. PEER issued a news release, which included praise for the Obama Administration:
This quick resolution of the PEER lawsuit was the first indication that the pledges by President Obama and Attorney General Holder of a new openness and presumption of disclosure in administering the Freedom of Information Act will be honored.
"We are encouraged that the Freedom of Information Act may become an even more powerful tool for government accountability," remarked PEER Staff Counsel Christine Erickson, who filed the lawsuit. "We have many more dirty bureaucratic closets that we intend to air out."
True enough. And the Obama Administration -- as with any Administration -- will eagerly air out the ones it wants aired out.
Jennifer Rubin at Commentary wonders whether opponents of the now-stymied Employee Free Choice Act are prepared for a second battle of "EFCA-lite" proposals that would aim at strengthening union organization without either card check or compulsorily imposed federal contracts. Such preparation, she argues, might call for one of two strategies: a "bipartisan/balanced" approach that would grant some of the requested new powers to unions in exchange for greater transparency and accountability on unions' part; and a more fundamental challenge which would involve trying to show that EFCA is unneeded in the first place and that there is neither crisis nor unfairness in the current set of rules unions must follow in their efforts to organize.
Michael Dorf (via Legal Insurrection) points out that the Pennsylvania Senator's party switch might actually assist Republicans in mounting opposition to judicial nominations because of a peculiar Judiciary Committee rule: "breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?"
Center for Legal Policy at the