I'm in today's New York Post with a second take on yesterday's Ricci (New Haven firefighters) case. Link thanks: Instapundit. My first take on the decision, at Forbes.com yesterday, is linked here, and see also comments on it by Daniel Schwartz, Jon Hyman, Ohio Employment Law (to whom thanks for the kind comments as well), and Scott Greenfield (cross-posted, slightly adapted, from Overlawyered).
June 2009 Archives
You're worried about Cass Sunstein as a regulator? Please, now. Let's look at a more alarming law professor already in the halls of regulatory power.
In April, Chairman Jon Leibowitz of the Federal Trade Commission named David C. Vladeck to be Director of the Bureau of Consumer Protection. Vladeck came over from Georgetown University, but he's much better known for having spent nearly 30 years with Public Citizen Litigation Group -- an activist, lawsuit-filing group that seeks to expand the power of government at every turn.
Vladeck didn't start at the FTC immediately, giving him time to testify as a Georgetown prof at a May 14 House committee hearing on medical devices and federal preemption. He condemned the Supreme Court's decision in Riegel v. Medtronic, putting his personal views forward even though he had already been named a federal regulator. It was intemperate.
Now that he's at the FTC, we see a desire to accrue regulatory power. At a speech to an ABA gathering at Georgetown Law Center last week, Vladeck said the FTC should "be placed on equal footing with the other consumer protection agencies." From the Blog of the Legal Times:
He said that means the FTC should get expanded civil penalty authority, as well as independent civil litigation authority. Currently, the Department of Justice brings many FTC-related civil cases.
Economic fraud and advertising issues will be priority areas, he said.
Many regulatory expansionists share the goal of an FTC reaching for more power.
A WSJ editorial discusses yesterday's preemption surprise at the Supreme Court, in which Justice Scalia crossed over to join the liberal wing in holding that the National Bank Act and its enforcing regulations do not, after all, oust the states from regulating lending by federally chartered banks:
Justice Scalia's opinion distinguishes between "visitorial" and "prosecutorial" power over national banks. By visitorial he means the power to demand whatever information may be necessary to regulate an institution. Mr. Scalia argues that while the federal Office of the Comptroller of the Currency (OCC) has sole visitorial power over federal banks, state AGs may nonetheless "prosecute" those banks for violations of state law.
There's nothing wrong with this argument as it pertains to, say, state employment law, fraud or other laws of general applicability. But as Justice Clarence Thomas points out in his dissent, lending, including mortgage lending, is a core banking activity authorized by the 1864 National Bank Act and already regulated by the OCC. It is exactly the kind of banking that national banks are supposed to have the freedom to do under a law designed to create a uniform regulatory environment across the entire country.
Richard Epstein surveys the ways other systems handle litigation, and medical litigation in particular:
Even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren't the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.
American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere -- in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.
It's not clear what we're getting from our exorbitantly expensive way of doing things:
More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgoode Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. -- for about 10% the total cost. In other words, our costly system doesn't seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.
More: Some thoughts from MedRants (citing this 2003 Medical Economics piece by Robert Lowes) and from John Stossel. And Eric Turkewitz takes issue with many of Epstein's contentions, deeming "flat out false" the assertion that courts commonly allow juries to infer medical negligence from injury, and saying Epstein "misses the mark, at least in New York" in asserting that juries need not link up particular negligent acts with injury. Max Kennerly echoes these criticisms and adds others as well. And yet more criticism: Day on Torts.
I've got an opinion piece up at Forbes.com on today's Supreme Court decision in Ricci v. DiStefano, the New Haven firefighter reverse-discrimination case. The title: "Sued If You Do, Sued If You Don't: Through the Looking Glass on Affirmative Action" (cross-posted from Overlawyered).
The Hill reports that Sen. Saxby Chambliss (R-GA) is blocking confirmation of Harvard law professor Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs. As described in "Chambliss blocks regulatory pick over animal lawsuits," farm groups are also raising warning flags about Sunstein, and the American Conservative Union has created a StopSunstein website.
Sen. Susan Collins (R-ME) asked Sunstein about these hot button issues -- and the Second Amendment -- during his May 12 confirmation hearing before the Senate Homeland Security and Government Affairs Committee. Sunstein stressed his belief that his role at OIRA would be to implement the statutes, and explained his discussion of animal rights was theoretical and academic. We've transcribed the exchange, which includes this from Sunstein:
In terms of my own academic writings, the suggestion, which was meant as a suggestion for contemplation, was that under state law that prevents cruelty to animals, it might be that the enforcement by criminal prosecutors could be supplemented by suits by private people protecting animals from violations of existing state law, very much like under the Endangered Species Act, where people, rather than elephants, initiate lawsuits.
The idea was actually very conventional and a little boring, but maybe my rhetoric made it seem less so.
That's not such a great idea, using the litigation-inviting Endangered Species Act as a model for further legislation. But stopping his confirmation is a bum idea, too.
- Mark McKinnon, "All arbitration is not created equal" [National Journal "Hotline on Call"]
- They owe it to themselves: "Conn. Supreme Court Orders Trash Utility to Pay Towns $36 Million", though the utility's a quasi-public entity run as a consortium of towns [Connecticut Law Tribune]
- Statute of limitations was just one problem for these Zyprexa plaintiffs, another was how obviously the drug had done well for them [Beck & Herrmann]
- Mark Geistfeld (NYU) on products liability & consumer choice [SSRN, Mass Tort Prof]
- "BPA is the 'Toxin du Jour,' Banning It Means Lawsuits Tout de Suite" [California Civil Justice, Elizabeth Whelan/Forbes]
- With ABA support, Congress hastens to strip away funding curbs on federal Legal Services class actions and law-reform efforts [ABA Journal]
June 19, www.naag.org, "Nebraska Attorney General Jon Bruning Elected NAAG President":
Colorado Springs, Colo.--Nebraska Attorney General Jon Bruning was unanimously elected yesterday by the members of the National Association of Attorneys General (NAAG) to become the Association's 102nd president.
"Attorneys general are uniquely situated to lead the way in building a stronger and safer future for our states and our families," said President Bruning. "Serving as president of NAAG is an honor, and I look forward to working with my colleagues on issues that affect us on both the state and national level."
June 19, from the attorney general's office, Nebraska, "AG Bruning Files Objection in GM Bankruptcy Proceedings on Behalf of Nebraska and 36 Other States":
(Lincoln, Neb) Attorney General Jon Bruning today filed an objection in the General Motors (GM) Bankruptcy proceedings on behalf of Nebraska and 36 other states. The federal court action comes after GM's recent claims that it can ignore state laws that protect dealerships.
It has been, as we all know, a celebrity news week to make Ahmadinejad cheer. First, South Carolina Governor Mark Sanford returned from a mysterious disappearance to confess, on Wednesday, to an extramarital affair with a woman in Argentina. Then, a day later, Michael Jackson died of sudden cardiac arrest.
As a lawyer currently researching the exceptional breadth of the federal wire fraud law, my first thought upon watching Sanford's halting confession this Wednesday was: this man could be indicted for leading his staff to incorrectly believe that he was hiking the Appalachian trail this past week. Of course, I don't know whether Sanford did any such thing. If there is enough evidence to convince a grand jury that he might have, though, he could face charges under a federal law that criminalizes "any scheme or artifice" involving any phone or email communication that is designed "to deprive another of the intangible right to honest services," regardless of whether any victim was concretely harmed and regardless of whether any benefit was inappropriately gained by the deception. The so-called "honest services" extension of the federal wire fraud law was explicitly intended to police the fiduciary relationship between state and local pols and their constituents, though it is now frequently invoked against private employees as well.
Sanford seemed very careful, during his press conference, not to admit that he may have intentionally misled his staff so that they might pass the "Appalachian trail" story along to the voting public, which leads me to believe that he may be getting legal advice. If you think that lying to voters for political advantage is such ubiquitous behavior that it can't possibly be illegal, you are only half right. Not only does the wire fraud law probably cover such conduct, but it prescribes a prison sentence of up to 20 years - ironically, the same maximum sentence faced by Jackson when he was indicted (though later acquitted) in 2003 on 14 counts of child molestation, provision of alcohol to minors, and similar offenses.
This comparison raises troubling questions about both the scope of federal wire fraud law and about the proportionality of sentencing to the blameworthiness of a crime. Surely, the crimes of which Michael Jackson was accused are far more reprehensible than a lie offered to staff over the telephone by a desperate pol. But as Justice Scalia has warned, "this expansive phrase [in the wire fraud law] invites abuse by headline-seeking prosecutors in pursuit of local officials ... who engage in any manner of unappealing or ethically questionable conduct." Let's hope that that federal prosecutors exercise better sense in the case of Mark Sanford.
"With far less fanfare than it generated when it was launched, California's battle to hold six car companies liable for contributing to global warming has come to an end. In a ruling on Wednesday, the U.S. Court of Appeals for the Ninth Circuit granted the state's June 19 motion for voluntary dismissal, ending California's three-year fight to extract hundreds of millions of dollars from the auto industry." [David Bario, AmLaw; Amanda Bronstad, NLJ] Our earlier coverage of the Bill Lockyer/Jerry Brown nuisance-law folly is here, here, here, and here.
Young child receives whooping cough vaccine, and thereafter develops seizures. The Court of Claims held that there was no evidence that the seizures were caused by the vaccine, making the child ineligible for National Childhood Vaccine Injury Act compensation. But the Federal Circuit has just reversed (see decision here), in a decision that comes very close to saying that "post hoc, ergo propter hoc" is good enough evidence for the NCVIA.
Note, for example, the following quote by the court: "Here, the testimony of Deray, the pediatric neurologist who has treated Enrique since 1996, was sufficient to establish a logical sequence of cause and effect between the DPT vaccine Enrique received on October 31, 1995, and the seizure he experienced the next day. Deray stated unequivocally that he believed that the DPT inoculation caused Enrique's seizures, and explained that there were "[t]wo things" which caused him to reach this conclusion. First, although he was able to identify a cause for seizures in 70 to 75 percent of his patients, Deray had found no cause--other than the DPT vaccination--to explain the seizures that Enrique experienced." In other words, if we don't know what caused the seizure, and the seizure happened after the DPT exam, the plaintiff has met his burden to prove that the DPT exam caused the seizure. The fact that the child had had no observable fever before the vaccination (fever is a contra-indication, because it is established that feverish children can develop seizures from vaccines) was also deemed irrelevant by the court, because fevers are not always noted or checked.
The procedural posture of this case is important (overturning the Claims court implied that the Special Master on whom the Claims Court had relied made a "clear error" in his causation finding). It seems obvious to me that the Federal Circuit has a much more claimant-friendly attitude toward alleged vaccine victims than does the Court of Claims.
"Is a worker an employee or independent contractor? The legal distinction between the two often is clear as mud, but the consequence for guessing 'independent contractor' when the answer is 'employee' can be a huge bill to employers for back wages (especially overtime) and back taxes." And states, just like class action lawyers, stand to make a fortune through aggressive efforts to convince courts that employers have guessed wrong [Workplace Prof, Slate "BizBox"]
- Talking real money: "old" GM said to be carrying $2.2 billion in liability claims [Detroit Free Press, Automobile Mag]
- Judge Harry Edwards and Michael Livermore of NYU: appellate decisions not as ideologically polarized as some scholars think [Duke Law Journal, Legal Workshop]
- "False Claims Act Case Makes Second Trip to Supreme Court" [Alison Frankel, AmLaw]
- "Federal Circuit Allows But Discourages Court-Appointed Experts" [Bernstein, Volokh]
- Some opinions on the race to succeed Robert Morgenthau as Manhattan D.A. [Scott Greenfield]
- Symposium brings together "progressive" views of property law [Cornell LR, Concur Op]
...Barack Obama indicated a willingness to break ranks with his trial lawyer supporters and consider limits on medical malpractice awards last week. Our poll shows that the public supports limits on malpractice awards by a 42%-24% margin with 34% unsure. Hardly anyone (12%) believe malpractice damage awards are too low and a plurality believe they are too high.
Kelly Holleran at the Madison County Record reports that attorneys Thomas Maag and Peter Maag have filed a putative class action against Whitehaven Settlement Fund, a litigation funding firm that lent money to Illinois litigants in defiance (they say) of Illinois policy against assigning litigation claims. They say the firm employed a choice-of-law clause purporting to bring the dealings under New York law, as well as a requirement that disputes be arbitrated in New York. Apparently this is not the first class action to be aimed at a litigation settlement funding firm; Popehat cites the 2005 North Carolina case of Odell v Legal Bucks LLC, which led to this mixed ruling last September by an appeals court in that state.
The Washington-based group headed by Grover Norquist has a new paper entitled "Medical Tort Reform: A Comprehensive Guide to Federal and State Efforts". The paper (PDF), by ATR federal affairs manager Brian M. Johnson, covers, among other topics, the state of medical liability reform in Arizona, California, Florida, Mississippi, and Texas.
Doing some idle word-searching in the latest, 1201-page version of the Waxman-Markey cap-and-trade-and-command-and-control bill, we plugged in the word "litigation." It takes us to Section 198, the Office of Consumer Advocacy, amending 319 of the Federal Power Act, which regulates utilities and natural gas companies.
The earlier version of H.R. 2554 also created the advocacy office (in Section 194). But THIS is a new creation (starting on page 291):
The Office of Administrative Litigation within the Commission shall be incorporated into the Office of Consumer Advocacy.
''(2) DIRECTOR.--The Office shall be headed by a Director to be appointed by the President by and with the advice and consent of the Senate from among individuals who are licensed attorneys admitted to the Bar of any State or of the District of Columbia and who have experience in public utility proceedings.
So the proposed office of advocacy has expanded its role from advocacy to litigation, with the power to engage in investigations, file amicus briefs, advise and otherwise employ more government attorneys in Washington. More green jobs...
That's the only use of the term "litigation" in the bill we find. There may be synonyms.
Reviewing the American Association for Justice's schedule for its summer convention in San Francisco, we see a brace of proposed litigation groups, those AAJ mutual aid societies for lawyers wanting to learn the tricks of product liability and class action trade. So might these new targets be?
- Fleet Phospho-Soda Litigation Group (Proposed) Meeting
- Chinese Drywall Litigation Group (Proposed) Meeting
- Denture Cream Litigation Group (Proposed) Meeting
- Durom Cup Litigation Group (Proposed) Meeting
- Bankruptcy Litigation Group (Proposed) Meeting
- Outbreak of Disease Litigation Group (Proposed) Meeting
- Hydroxycut Litigation Group (Proposed) Meeting
- Reglan Litigation Group (Proposed) Meeting
- Cable Set-Top Box Litigation Group (Proposed) Meeting
- Yaz/Yasmin Litigation Group (Proposed) Meeting
Chinese drywall and bankruptcy are obvious enough choices, and others are familiar from lawyers' web ads. But there's always something new. Cable set-top boxes. Denture cream. Huh. Guess there's some fan of The Lawrence Welk Show just waiting to cash in.
Summer is upon us and with it a wider opening for guestbloggers to join us for what is usually a week of posting. Authors of newly published books and scholarly articles in our fields of interest are particularly welcome. If you're interested, contact editor - at - thisdomainname.com.
Kirk Hartley, writing on the international spread of entrepreneurial litigation models -- including in business representation -- notes that it will be "harder for corporate America to complain credibly about contingent fees and 'trial lawyers' when corporate America is using the same approach."
The AALS Torts Section is doing a panel on the work of this influential scholar at AALS's 2010 annual meeting. [TortsProf] The Manhattan Institute has been delighted to be associated with various aspects of Prof. Epstein's work for many years; you can also hear him on a number of podcasts available at Point of Law's audio page.
Asbestos litigation edition:
- Nonmalignant asbestos claims headed back up, per Manville trust data? [Hartley] Asbestos suits targeting new defendants [MC Record and more ("take-home" liability)]
- One-industry town of Asbest, in Russia, stoutly defends its production of the mineral [Shaun Walker/Slate, Hartley]
- CSX moving toward trial on its bogus-diagnosis claims against Peirce and Harron [Hartley] Asbestos deponent turns out to know little about his case against the railroad [WV Record]
- New generation of asbestos trusts "tempts plaintiffs' lawyers to seek double recoveries by concealing their clients' trust recoveries from tort defendants" [Jacob Cohn and Joseph Arnold/Daily Journal, PDF, via California Civil Justice]
The Las Vegas Sun this weekend published a major piece on this session's big lobbying battle in Carson City, pitting the trial lawyers against the construction industry over lawsuits claiming construction defects (governed by Chapter 40 in Nevada statutes). It's a good political post mortem: "On home defect legislation, lobbyists went to the wire."
Included was this side note:
In an ongoing investigation, the FBI appears to be looking into whether homeowner associations and their elections have been corrupted by businesses -- including possibly construction defect law firms -- so they could bring suits against builders and win those guaranteed legal fees.
In these alleged schemes, people would buy 1 percent stakes in homes and then win seats on homeowner boards, after which they would bring construction defect lawsuits and steer the legal work to favored firms.
Last September, the FBI searched the offices of homeowners associations as part of the investigation. See Las Vegas Review Journal here.
Meanwhile, "The Nevada Supreme Court will decide whether homeowners associations have the right to sue on behalf of individual homeowners in a case that could have a major impact on the number of construction defect cases filed in the state."
Provincial lawmakers imposed limits on payouts of non-economic damages in cases of strain, sprain and whiplash; as Colby Cosh notes at Canada's National Post, a trial judge proceeded to pluck the rule in question "from its setting of incentives and other regulations, and found that, considered in isolation, it tended to discriminate against the Charter-protected class of soft-tissue injury sufferers. The Court of Appeal was unimpressed by this method of analysis" and reinstated the limit, noting that it was part of a larger scheme of regulation that included advantages for injury victims.
Something called the Clean Water Restoration Act has just sailed through the Senate Environment and Public Works Committee which would restore a very, very liberal reading to the scope of federal wetlands regulation. Remember how "navigable waters of the U.S." was interpreted to include seasonally moist prairie patches, and how the courts eventually balked at that? Well, the bill solves that problem by just eliminating the concept of navigability, leaving the government free to regulate as wetlands "such things as puddles on farms and other private property around the nation". R.J. Smith at CEI "Open Market" explains.
All sorts of defendants, from newspaper magnate Conrad Black to Illinois Gov. Rod Blagojevich, have been prosecuted on grounds that they violated the federal fraud statute by depriving stockholders or voters of their right to "honest services". "But the U.S. Supreme Court's May decision to review Black's 2007 conviction may put the brakes on the honest services provision. The U.S. Department of Justice is likely to rein in use of the provision, 18 U.S.C. 1346, until the high court rules on Black's appeal next term, former federal prosecutors say." That's welcome news; as Justice Scalia noted in one case, "Without some coherent limiting principle to define what the 'intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct." [Lynne Marek, NLJ] Orin Kerr and Brian Walsh have more on the Scalia dissent, while Walsh notes the progress of a bill in Congress, the Public Corruption Prosecution Improvements Act of 2009, which seems aimed at intensifying the pace of such prosecutions.
... some GOP members want curbs on the union practice of "salting". Ohio Employer's Law:
"Salting" is a common organizing tactic used by labor unions. It refers to union organizers applying for jobs with non-union employers. The organizers then attempt to organize the employer's workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one [of] the more underhanded methods of organizing used by labor unions. ...
The proposed Truth in Employment Act of 2009 would include findings deeming salting an "aggressive form of harassment" and would establish a right on employers' part to turn down job applicants with motivations of this sort.
Michael Kinsley finds that when it comes to the topic of reverse discrimination, Judge Sotomayor is given to evasive fictions, which should make her "feel right at home on" the current Court and for that matter in the nation's political culture generally (via Sullum, Reason "Hit and Run"). Not unrelatedly, her expressed views on standardized testing and cultural bias are drawing fire from critics. Meanwhile, Matthew Franck finds that the nominee has given unimpressive stock speeches, while Ken Starr has only good things to say on her behalf.
P.S. Never going to live this one down: a White House press release quotes my comments on the judge.
The House Energy and Commerce Committee, Subcommittee on Health, held a hearing on the regulatory approval process for medical devices Thursday, presumably as preparation for action on H.R. 1346, the Medical Device Safety Act -- sponsored by the committee's chairman, Rep. Frank Pallone (D-NJ). The American Association for Justice certainly regarded the hearing as serving that purpose, specifically citing the legislation in its news release, "Questions about FDA Oversight of Medical Devices Leave Patients Vulnerable."
Yet there are regulatory inefficiencies and ineptitude at the Food and Drug Administration independent of the question whether federal preemption is wise public policy. Witnesses' prepared testimony examined some of these issues, and the GAO submitted a report that described "shortcomings in both premarket and postmarket activities [that] raise serious concerns about FDA's regulation of medical devices." Even though the GAO tends to identify problems committee chairmen want identified, there's still useful detail in the report, "Medical Devices: Shortcomings in FDA's Premarket Review, Postmarket Surveillance, and Inspections of Device Manufacturing Establishments."
- Chair Pallone's Opening Statement
- Testimony of Marcia Crosse
- Testimony of William H. Maisel
- Testimony of Phillip J. Phillips
- Testimony of Peter Lurie
We do not find any testimony of a White House official urging caution when considering regulatory changes that would encourage costly lawsuits. Health care reform only goes so far.
As California moves to license dozens of huge solar power plants to meet the state's renewable energy goals, some developers contend they are being pressured to sign agreements pledging to use union labor. If they refuse, they say, they can count on the union group to demand costly environmental studies and deliver hostile testimony at public hearings.
If they commit at the outset to use union labor, they say, the environmental objections never materialize.
"This does stress the limits of credibility to some extent," the California energy commissioner, Jeffrey Byron, said at one contentious hearing, "when an attorney representing a labor union is so focused on the potential impact of a solar power plant on birds."
It seems Bob Balgenorth, chairman of the labor group accused of exploiting the environmental laws this way, "has cultivated strong ties with conservation groups". I wonder whether there's a tie-in with the Sierra Club's and NRDC's endorsement of EFCA? Further thoughts from Carter @ ShopFloor.
A high court divided 5-4 gives employers a surprise victory, ruling that plaintiffs cannot prevail on the same "mixed-motive" analysis under which they could win a race or sex discrimination suit. But Congress could override the Court as it did with Ledbetter and ADA rulings, and Daniel Schwartz warns that "vast majority of ADEA cases never used the mixed motive analysis anyway. If there is circumstantial evidence of discrimination, courts traditionally allow those claims to proceed to trial."
The Minneapolis Star-Tribune reports that a jury has condemned Jammie Thomas-Rasset to pay almost $2 million, or $80,000 per song, for having downloaded and freely distributed on a web site 24 songs. Seeming unrepentant, Thomas-Rasset testified her children or ex-boyfriend might have downloaded songs to her file-sharing site without her knowledge. But the jury didn't buy it and took only five hours to deliberate. "Good luck getting it from me", she is reported to have said after she turned aggressive after the announcement of the verdict.
This is the first and only suit brought by the Recording Industry Association of America against file-sharers to go to trial, and in fact it was tried twice (the trial judge ordered a retrial after admitting that his jury instructions during the first trial were erroneous).
- "Green warfare: A change-committed administration could redefine the shape of environmental litigation" [Inside Counsel]
- Arkansas high court's striking down of liability reform could be issue in 2010 elections [Under the Dome]
- Securities industry group defends arbitration against the campaign for a ban [Forbes]
- Case could undermine Maryland limits on med-mal awards [Gazette.net]
- Virginia governor and DNC chairman Tim Kaine keynotes AAJ leadership breakfast [ShopFloor]
- Funny and believable "Trial Lawyer's Prayer" by Evan Schaeffer [Day on Torts]
AP (here via Canadian Press) reports that Jose Canseco plans to sue Major League Baseball and the MLB players' union.
In what looks to me like a report straight out of The Onion, Canseco announces that he will enlist Sammy Sosa and Rafael Palmeiro and others (it will be a "class action", so presumably unnamed players will be plaintiffs) in the suit. The grounds? "lost wages - in some cases, defamation of character." To wit (numerous sics spared):
"Because I used steroids and I came out with a book, I was kicked out of the game, but I have not been inducted into the Hall of Fame. A lot of these players have not been inducted into the Hall of Fame: Mark McGwire and so forth. They're losing salaries, because obviously when you're inducted into the Hall of Fame, you get asked to do certain, you know, appearances and shows and so forth, which incorporates income. So there is a major income loss... Not even that, baseball blackballs you from their family, meaning you can't have a future proper reference from them, a job, no managerial jobs, no coaching jobs, nothing. They completely sever you."
Let's wait and see which lawyer has "consulted" with Canseco, which other players will team up with him, and which jurist is prepared to make a straight-faced claim to a court that a player has the right to get into the Hall of Fame, and that truth is no longer a defense to a defamation suit.
- Trying to defend your product in public debate? Connecticut AG Richard Blumenthal wants to see your internal correspondence [press release from his office] (& Created Things)
- Union partisans can't figure out why anyone might support employment arbitration when it's agreed to beforehand by those it would bind, but oppose when it's imposed by government without consent [Puffington Host]
- Catskills construction injury: defendant makes very big settlement offer, plaintiff goes to trial and gets less, is now suing first lawyer [Hochfelder]
- D.C. bar is holding June 30 lunchtime event on third party funding in arbitration [details]
- Is Seroquel mass tort fizzling? [AmLaw and counterview]
- Change in New York state law could mean two court appearances rather than one for motorists fighting tickets [Times Herald-Record]
It's easily done here. And while we're at it, remember that you can follow the Manhattan Institute on Twitter, as well as Point of Law, Overlawyered, and my own personal account. Overlawyered has a fan page on Facebook too.
Also while we're on the subject, please take a moment to add Point of Law's feed to your RSS reader.
And the relevant state agency announces that it "cannot consider scientific arguments concerning the weight or quality of the evidence and will not respond to such comments if they are submitted". Per Bruce Nye, "This is even more 'through the looking glass' than is usual with Proposition 65."
State by state, emergency physicians are winning added protections against malpractice suits through new laws that can provide near-immunity from most emergency department mistakes. ...
Ohio is the latest state to introduce new legislation that would dramatically increase the legal standard to win a civil suit against a doctor working at an emergency department. It also offers the same protection for doctors helping after floods, tornadoes or other disasters.
The bill says physicians would have qualified civil immunity while working in emergency rooms and be subject only to lawsuits if they showed "willful or wanton misconduct" -- a high standard for liability usually reserved to determine punitive damages.
Walter noted on Tuesday that the powerful Albama trial lawyer Jere Beasley has announced his choice for governor, U.S. Rep. Artur Davis, a Democrat. Coincidently, we had just been reading up on one of the bills sponsored by Rep. Davis, H.R. 2519, a tax deduction for expenses and court costs advanced in a contingency fee case -- in effect, about a 40 percent tax benefit for trial lawyers to stimulate the filing of civil suits.
You could see how Rep. Davis might be Beasley's guy.
Davis' bill is the companion legislation to S. 437, introduced by Sen. Arlen Specter in his Republican days. Last year, Ways & Means Chairman Charlie Rangel tried to include the same language the energy and tax extenders bill last year (Section 311 in H.R. 6049). As we noted earlier, The Wall Street Journal called the provision, "The Bill Lerach Tax Cut."
The disinfecting sunlight of public attention killed the provision in 2008, and one hopes for a similar heliofatal blow this year. Victor Schwartz and Chris Appel of Shook, Hardy & Bacon help aim the light in a recent Washington Legal Foundation piece, "Federal Government Bailout For Trial Lawyers."
Rep. Bennie Thompson (D-MS), chairman of the House Homeland Security Committee, introduced his long-anticipated chemical industry security bill this week, H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009. On Tuesday the committee held a hearing on the bill, and on Thursday the mark-up is scheduled.
The chemical industry, already disadvantaged in the United States by energy costs and the U.S. regulatory and legal climate, is alarmed by the legislation. We note that the bill's cosponsors include the zealous regulators Reps. Sheila Jackson-Lee of Texas, Ed Markey of Massachusetts and Henry Waxman of California. Reason for alarm, we'd say.
The bill also marks the continued political and legislative advance of the litigation industry with addition of a private right of action contained in Section 2216, "Citizen Suit." In his prepared statement, Chairman Thompson mentioned the new language but did not address what would seem to be a key question, that is: Why?
From Sec. 2116, "Citizen Suits":
The IOM [Institute of Medicine] numbers on medical errors are not only soft, they were repudiated by the author of one of the studies that they based their estimate on. You can get a rough idea of why from my comment on the Aug 21 post on the John Goodman Health Policy blog here. It is an excerpt of a more complete discussion from a paper (PDF) I wrote in October 2006 precisely because these sorts of false claims were getting out of hand (see below). A longer, more academic, explanation, including quotes, by someone else in 2004 is here.
Another question that could usefully be asked is: since no system in fact reduces the rate of adverse patient events to zero, how is the U.S. health system doing when compared with that of similar advanced industrial democracies? On p. 17 of her October 2006 paper, Gorman has a "Table 7" entitled "International Comparisons of Adverse Events in Hospital Patients" which sheds some light on this question. The Harvard study of New York hospitals, from which the IOM estimate is extrapolated, found a 3.7 percent rate of adverse events, while a separate study of health care in Utah and Colorado found a 2.9 percent rate. Both of these numbers are better than the numbers found in any of the four other nations listed in the table: a study of care in Canada found a 7.5 percent adverse event rate, a small London study found a 10.8 percent rate, and studies in Australia and New Zealand returned numbers higher still, though those numbers in part reflect looser measures of adverse event causation. When adjusted for that fact, the Australian number came in comparable to the British, at 10.6 percent.
From The Missoulian, "Prosecutors dismiss charges against final Grace defendant":
Last month, Grace and three individual defendants - Robert Bettacchi, Jack Wolter and Henry Eschenbach - were acquitted of charges relating to a criminal conspiracy involving Clean Air Act violations and obstruction of justice. A fourth defendant, the company's in-house legal counsel, O. Mario Favorito, was severed from the case due to potential conflicts with his defense, and he was slated to stand trial separately in September.
However, prosecutors decided to forego efforts to bring Favorito's case to trial, apparently because of the not guilty verdicts. The jury of six men and six women heard 35 days' worth of testimony over the course of several months before finding the defendants innocent on all counts.
The Missoulian quotes the government's order, which is not yet posted at the court's document site for the case.
Earlier POL posts on the trial here. Whatever the motivation, prosecutors overreached by attempting to turn a regulatory and civil matter into a criminal one.
President Obama himself in his speech cited the "100,000 deaths a year" figure as if it's reliable and well established, as did yesterday's New York Times. And of course it's a figure eagerly spread by the Litigation Lobby. But as Zachary F. Meisel and Jesse M. Pines note in Slate, it's a really, really, really soft number:
...one of the biggest headlines of all was the 1999 Institute of Medicine report To Err Is Human, which announced that up to 98,000 preventable deaths occur each year in U.S. hospitals. Since then, health care improvement organizations such as Leapfrog Group have invested copious resources in reducing preventable errors. But a key issue has been overlooked in this movement: The original estimate -- the 98,000 deaths -- may have been way off. In fact, some of the researchers who conducted the original studies used in the IOM report re-evaluated their data in 2002 and reported that had they used a different calculation method, the number of estimated deaths would have been less than 10 percent of the original. Oops.
A statement released by Les Weisbrod, president of the American Association for Justice, the national trial lawyers' lobby, "AAJ Response to President Obama's Comments at the AMA." Excerpt:
Empirically-based practice guidelines, developed by independent experts, is an idea we can support, as long as it does not lower quality or standards of care. Instead, these guidelines should lead to greater patient safety.
According to the Institute of Medicine, 98,000 people die every year because of medical errors. Eliminating these errors, not further hurting the victims of negligence, is where lawmakers should focus their attention. By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously.
The subject of "empirically based practice guidelines" is beyond our ken, but based on the number of syllables in the phrase, its being invoked is probably just political deflection.
UPDATE: The White House has now posted a transcript of the President's remarks.
From the President's remarks at the American Medical Association's meeting in Chicago. The audience was certainly engaged, as you can tell more clearly from the sound clip.
Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause) Don't get too excited yet. (Applause, cheers, standing ovation.)
All right...Now, I understand that some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. Now...just hold onto your horses here, guys. (Laughter.)
I want to be honest with you. I'm not advocating caps on malpractice awards (murmurs, laughter) which I personally believe can be unfair to people who have been wrongfully harmed. But I personally I think we need to explore a range of ideas about how to put patients' safety first, how to let doctors focus on practicing medicine, how to encourage a broader use of evidence-based guidelines.
As Chrysler emerges from bankruptcy and GM prepares to swallow the same very bitter pro-union pill its rival had to consume, a very interesting phenomenon is developing. Suddenly journalists and lawyers who had no problem with the destruction of bondholders' assets are complaining that potential tort victims are "unfairly" being targeted by the bankruptcy. See, for example, here and here.
Wait a minute. On the one hand, it is recognized that many people lost much (in some cases all) of their savings when their bonds, supposed to have priority over union claims, suddenly lost that priority as a result of government intervention. [This Washington Times piece gives several examples.] Why should claims that do not necessarily even validly exist (they have not yet been adjudicated in most instances; even when plaintiffs win automobile product liability suits their or others' misbehavior is often the chief cause of their injury) be treated more preferentially than explicit and preferential promises to pay?
When one is injured by a product produced by an insolvent, bankrupted, or liquidated firm, one may well have no recourse -- this is "unfair" only in the general sense that life is unfair. According to Clarence Ditlow, the executive director of the Center for Auto Safety, "the [bankruptcy] plans are unusual in that they would prevent anyone from bringing a future liability claim against GM or Chrysler if a car already purchased from either company is defective and results in an accident causing death or serious injury." Mr. Ditlow further stated that "it was...unusual for no money to be set aside for liability claims." Unusual perhaps, unheard of not at all; and what is NOT unusual about these nationalizations-cum-bankruptcies?
As soon as government became the main shareholder of the new corporations, we could guess it would not play by "usual" rules. Those Chrysler promisees who explicitly relied on pre-existing law have already seen their hopes dashed. Again all (alleged tort victims and real contract victims) are reminded of the value of first-party insurance.
Confirming earlier reports: "In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits -- a goal of many doctors and Republicans -- can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials." One positive factor for reformers: presidential aide Dr. Ezekiel Emanuel has written that there is "no doubt" that "monumental change" in the malpractice system is called for. [New York Times]
In 2004, Obama was quoted as saying, "Anyone who denies there's a crisis with medical malpractice insurance is probably a trial lawyer". Other coverage here, here (Ted at PoL, taking skeptical view) and here. The Times characterizes former Senate leader Tom Daschle as being these days "a strong proponent of linking evidence-based medicine with protections against lawsuits"; it's not clear how new this development is, or how comfortably it meshes with Daschle's role as a reliable longtime ally of organized trial lawyers (cross-posted from Overlawyered).
To get around the Class Action Fairness Act (CAFA) and its requirements that most interstate class actions be taken to federal court, just couch your class action as a counterclaim in response to some low-amount collections proceeding. You can even implead (perhaps as your real targets) new defendants who were not the ones who filed the original claim and thus had no role in selecting the state-court forum. That logic was enough to convince the Fourth Circuit, over a dissent from Judge Niemeyer, who also dissented from denial of en banc rehearing. [Dan Himmelfarb (Mayer Brown), "Fourth Circuit Ruling Permits Broad Circumvention of Class Action Fairness Act" (PDF), Washington Legal Foundation]
Among the unstable aspects of the current labor scene: many union-sponsored pension plans (so-called "multiemployer" plans, paid into by many employers in a unionized industry) are badly underwater, seriously short of the assets they need to pay promised pensions. The hope in some quarters is that a rush of new union organization made possible by EFCA will stabllize these plans by adding many new employer-contributors. For any particular employer facing an organizing drive, however, the prospect is unsettling at best: a successful "card check" signup (followed if necessary by a federally selected arbitrator's imposition of a first union contract) will require the company to start contributing not only on behalf of its own workers, but also to cover the shortfalls left by other employers, including some that are departed or defunct. Manhattan Institute fellow Diana Furchtgott-Roth explains at Real Clear Politics. More: ShopFloor and followup, CEI "Open Market".
It's May 8, 2004. The Oakland A's play the Minnesota Twins on Mothers' Day and Breast Cancer Awareness Day, offering a prize to the first 7500 women in attendance. A male lawyer from San Diego makes his way to Oakland, pays his admission, then sues and obtains $510,000 (roughly half to him, half to "victims" who will receive $50 in damages if they can prove they attended the game) for violation of a California anti-discrimination suit. [A similar suit against the L.A. Angels of Anaheim was thrown out, the judge in that case being of the view that recognizing women on Mother's Day was not an "arbitrary, class-based" distinction prohibited by law.]
"Gee, I wonder what a sue-happy lawyer from San Diego would be doing at an A's-Twins game the very day that they were holding a women-only giveaway?", wonders ESPN's Rick Reilly... Herewith a snippet of Reilly's prose: "I'm surprised he didn't want his free mammogram, too. Personally, I find Mr. Rava as odorous as a bag of dyspeptic hamsters. He's a greasy manipulator who has found a small leak in American law and stuck an open wallet under it."
A few highlights from the new issue, dated last month:
- Troy Yoshino and Patrick Perez, "Recent Wave of Case Law Rejects "Concealed Defect" Class Actions";
- Karl Neudorfer and Erika Birg, "After Bridge: RICO Class Actions at a Crossing";
- Randy Maniloff, "Fifth Circuit Expands False Claims Act Qui Tam Provisions in Time for Debate over Stimulus Package Fraud".
And other topics: CAFA & Katrina; certification in the Third Circuit; "foreign-cubed" actions; and mortgage-backed securities. The full issue is available in PDF form here.
The federal government has long claimed a right to recoup medical outlays made for the benefit of persons who later obtain lawsuit settlements; now it's loading new burdens onto lawsuit defendants in an effort to simplify the process of collection, and neither the defense nor the plaintiff's bar is very happy about that. Bruce Nye, Cal Biz Lit:
The issue is this: Congress has enacted legislation (42 U.S.C. 1395y(b)(7) & (8)) requiring that every insurer or self-insured company that settles a personal injury case with a Medicare beneficiary submit an electronic report of the settlement to CMS, the Center for Medicare and Medicaid Administration, so that Medicare's recovery contractor can recover every last dime of the benefits it has paid. And if the recovery contractor can't get the money from the plaintiff, it's coming after the defendant or its insurer -- even if they've already paid the plaintiff.
The federal judge identified more than any other with mass-tort innovation recalls highlights of the field's development in the Cardozo Law Review's new online supplement. Weinstein credits brilliant lawyering with saving the tobacco industry (so far) from ruin, continues to begrudge the consensus of national opinion (as expressed through Congress) its right to cut off the handgun suits, and lays blame in multiple directions for the many failures of asbestos litigation. And he speaks up strongly at several points for judges' obligation to prevent the charging of excessive attorneys' fees. Also of note: "The breast implant litigation was largely based on a litigation fraud."
- Wisconsin lawmakers drop proposed return of all-out joint and several liability, but governor signs into law big damages expansion in workplace litigation [WTMJ, WRN, Wisconsin Business, Insurance Journal]
- Federalist Society Online Debate series tackles Employee Free Choice Act with Thomas Kochan and Patrick Szymanski pro, Richard Epstein and Eugene Scalia con [print version now online]
- Motley Rice brief in Santa Clara case urges California high court to uphold contingency fees [Genova, part of a series on the briefs, more here and here]
- Lawyers' insistence on punitive damages derails New Jersey push for bad faith auto insurance cause of action [NJLRA]
- Mississippi AG Jim Hood extracts $40 million from Microsoft, and his contract lawyers should be happy too [Clarion-Ledger, N. Miss. Commentor] More: YallPolitics on settlement deal including roles of Susman Godfrey and Boies Schiller: first, second, third, fourth.
- Behrens, Fowler, & Kim, "Global Litigation Trends" [Michigan State Journal of International Law, PDF courtesy Robinette/TortsProf]
CBS news reports that a union official asked for protective vests for guards at the U.S. Holocaust Memorial Museum two years ago, but that the vests were never purchased by Wackenhut Security, the guards' employer.
The racist pig who killed Stephen T. Johns (of blessed memory) will very likely prove to be insolvent. Will we see a lawsuit against Wackenhut, testing the Workers' Compensation immunity doctrine? Or maybe a suit against the museum itself (if it "negligently" declined to pay Wackenhut extra to purchase vests), testing sovereign immunity doctrines?
Insolvency of the bad guy is at the root of the expansion of many a tort doctrine...
House Republicans led by Rep. Mike Pence of Indiana on Wednesday released details of their energy plan, a response to the Waxman-Markey cap-and-trade legislation. The GOP's American Energy Act embraces a broad approach toward producing more energy, calls for building 100 new nuclear power plants, and encourages conservation.
The sponsors describe the plan in a Wall Street Journal op-ed today, "The GOP's Energy Alternative." Included are provisions to discourage excessive litigation designed solely to delay and harass project approvals.
While ensuring plaintiffs their day in court, our bill stops frivolous lawsuits designed to obstruct energy exploration. It does so by establishing a 60-day deadline on legal challenges and by requiring cases to be filed in the D.C. District Court, which has a particular expertise in energy litigation.
John Hochfelder predicts the award, for injuries which included the loss of a leg, is destined to be reduced or settled for a lesser amount. A jury agreed with the woman's attorneys at Gair, Gair, Conason, Steigman & Mackauf in finding "the bus driver 100% at fault for the accident (even though it also found plaintiff negligent for not looking when she crossed the street)".
...per Workplace Law Prof (which heartily disapproves), "two Republicans have introduced identical bills in the Senate and House that would permit employers to pay higher wages to individual employees who work under a collective bargaining agreement". Paying more than the union-bargained rate is currently unlawful, even in cases where an employer wishes to reward outstanding performance or avoid losing a key worker.
This past Monday, June 8, the Manhattan Institute hosted a forum on the problems arising from criminalization of corporate conduct, featuring Home Depot co-founder Ken Langone and former U.S. Attorney General and Pennsylvania governor Dick Thornburgh. The moderator/interviewer was J.P. Donlon, editor-in-chief of Chief Executive, and the program will also be adapted for publication in that magazine. A video of the discussion is now available here, and Jim Copland, director of MI's Center for Legal Policy, did audio podcast interviews on the topic with both participants: Thornburgh, Langone.
Former Texas Supreme Court Justice Thomas Phillips acknowledges that there'll be more motions challenging nonrecusal ("Caperton" motions), but there "just aren't a lot of cases" where the new constitutional standard will require the judge to step aside: "The holding, as I read it, is that due process is only violated when ' a person  with a personal stake in a particular case  had a significant  and disproportionate influence  in placing the judge on the case ...  when the case was pending or imminent.' Given how narrow that holding is, I'm not sure Caperton will ever be direct precedent for another recusal." [Interview with Tony Mauro, NLJ] More coverage: John Schwartz, NYT; Nathan Koppel, WSJ. Earlier here, here, etc.
American legal history furnishes more precedent than is generally realized for the use of investigational ("inquisitorial") judicial procedure, special masters and distinctive procedure to handle complex cases, according to Prawfsblawg guest poster John Pfaff (Fordham), drawing heavily on a paper by Amalia Kessler (Stanford), "Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial", 90 Cornell L Rev 1181 (2005). From the SSRN summary of Kessler's article:
some of the worst abuses of modern litigation, and in particular, our discovery practice, can be traced to the ill-considered way in which inquisitorial devices were imported into a common-law based adversarial framework. ... We must recognize that the monstrosity of modern litigation is the product of a botched marriage between inquisitorial and adversarial traditions.
- Legal scholarship too often irrelevant to legal practice? Prof. Aaron Twerski's remarks on winning award from ABA's torts/insurance section [O'Hear, Prawfsblawg]
- Indiana high court might be chipping away at collateral source rule [Maryland Injury Lawyer]
- A defense of the emerging litigation finance industry [Max Kennerly]
- NYU's Catherine Sharkey on federalism and the next rounds in the battle over preemption [SSRN, Beck & Herrmann]
- Wisconsin businesses continue to rally against return of full joint and several liability [ShopFloor, earlier, more]
- Europe eyes class actions: "The American Export You Don't Want" [Lisa Rickard, U.S. Chamber]
- I'm still not quite sure how I got typecast as the big supporter of Sotomayor around here -- I expect I'll disagree with her positions most of the time in close-fought cases, just as I tend to disagree with Souter's or Ginsburg's -- but at any rate I see that I'm in good company: Jonathan Adler at Volokh has written a new post ("Anti-Anti-Sotomayor") that almost exactly expresses my own feelings on the matter.
- "Legal Realist?" It takes more than "judges' backgrounds affect their decisions" to qualify as that [Rick Hills, Prawfsblawg]
- A "zealous prosecutor" seen by some, at least [L.A. Times], as "something of a law-and-order judge, especially when it comes to police searches and the use of evidence". Given the pervasive trend toward overcriminalization of American life and the pervasive dangers occasioned by prosecutorial zeal, let's not rush to score that as a "plus" without further inquiry.
- David Brooks also offers some theories as to why her actual record as a judge has been less unsettling than you might expect from reading those now-famous speeches.
- We've posted Marie Gryphon's "Judge Sotomayor's not-so-liberal moments" as our newest featured column.
Despite a victory by American Chevron Corp. in a similar case, Royal Dutch Shell (a foreign corporation) has settled an Alien Tort Claims Act suit for $15,500,000. The settlement admits no responsibility, as usual, but nonetheless represents a striking victory for attorneys who had sued a foreign corporation in US courts for actions allegedly committed abroad.
The suit, scheduled to be heard before a jury and Judge Kimba Wood in U.S. District Court in New York, claimed that Shell had colluded with Nigeria's former military government to silence environmental activists in the country's oil-producing Ogoni region, resulting in the execution by hanging of writer Ken Saro-Wiwa and six others.
The act lay almost dormant until June 30, 1980, when the 2nd U.S. Circuit Court of Appeals ruled that U.S. courts had jurisdiction over a case where the international norm that was violated was the prohibition on torture in Filartiga v. Pena-Irala, 630 F.2d 876 (1980).
Plaintiffs have never taken an ATCA claim to a jury and prevailed, though several settlements like this one have intervened.
Here's the WSJ report of the settlement.
St. Louis Cards manager Tony La Russa and his attorney claimed last Friday that he had settled his suit against Twitter over an impersonator using his name to Tweet nasty comments. But Twitter now says there was no deal.
After ignoring La Russa's initial complaints, Twitter apparently agreed to pull the fake profile within thirty minutes of suit being brought on May 6. The suit alleged that an unknown person had been using his name and image by tweeting as "TonyLaRussa." Besides claiming that La Russa's right of privacy had been violated, it asserts that Twitter is damaging trademark rights to his nationally famous name. The fake La Russa had, for example, noted the manager's DWI arrest and the highway death of a Cardinals pitcher thusly: "Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher ..."
On Friday afternoon, the two sides reached a settlement -- or so La Russa's attorney thought. La Russa told media outlets that Twitter had agreed to pay his legal fees and to make a donation to the Animal Rescue Foundation that he famously runs.
But Twitter evidently had second thoughts. CEO Biz Stone has posted "Not Playing Ball" on the company's blog. "Twitter has not settled, nor do we plan to settle or pay. With due respect to the man and his notable work, Mr. La Russa's lawsuit was an unnecessary waste of judicial resources bordering on frivolous." Twitter claims, perhaps, that the fake tweets are a parody protected by the First Amendment. There was no obvious notice of parody, however... This may be an important suit, as there are likely hundreds if not thousands of fake Twitter identities out there.
I was particularly interested in Michael Krauss's Crunchberries posts (here and here), not only because I happen to like artificially sweetened cereals but also because I take special interest in consumer-fraud class actions. In this instance, the class action is based on California's infamous section 17200, about which we have previously written at length.
That the plaintiffs' lawyer in this case actually thought his claim was sufficiently meritorious to warrant urging Michael to take another look at the case demonstrates just how pernicious that statute remains, even after Twombly, and even after the 2004 passage of Proposition 64, which purported to limit such abusive suits by enacting actual injury requirements. Indeed, the Ninth Circuit last year overturned a district court's dismissal of a similarly silly claim launched against Gerber's "Fruit Juice Snacks." In that case, the court felt that "the statement that Fruit Juice Snacks was made with 'fruit juice and other all natural ingredients' could easily be interpreted by consumers as a claim that all the ingredients in the product were natural, which appears to be false."
The American Tort Reform Association has published this extensive report on consumer fraud class actions, and the Manhattan Institute discussed section 17200 at this conference in 2002, before Proposition 64 was passed.
The political contribution in Caperton certainly was unseemly. And it was on the outer bound of what we typically see in contested judicial elections. But I question whether it was as "extraordinary" as Justice Kennedy and the justices in the majority seemed to think. For instance, the following part of Chief Justice Roberts's dissent caught my eye: "'Consumers for Justice'--an independent group that received large contributions from the plaintiffs' bar--spent approximately $2 million in this race."
Such oversized contributions from plaintiffs' lawyers in judicial campaigns are the norm, rather than the exception. And it is quite often the case that a single lawyer or firm will dominate such expenditures. For instance, in the Center for Legal Policy's Trial Lawyers, Inc.: Illinois report, we noted that of the $1.3 million raised/spent by the so-called "Justice for All" PAC erected to support the election of Gordon Maag to the state supreme court, "Madison County asbestos lawyer Randy Bono gave Justice for All almost $400,000, while the law firm with which he's affiliated, Simmons Cooper, chipped in $275,000." All told, the Simmons Cooper firm poured over $1 million into supporting Maag's campaign.
Had Maag been elected, would he have had to recuse himself in all cases involving Simmons Cooper? If not, why not?
Surely, a lawyer could come up with a possible distinction. But would such distinctions really be compelling? Is the answer perhaps that Simmons Cooper has multiple matters before the courts, such that independent expenditures on judicial campaigns are perversely disqualifying in inverse proportion to one's litigiousness? Or perhaps the answer is that, however much Simmons Cooper gave to Maag, its share of total expenditures was less than that West Virginia contributor Blankenship's, who gave "approximately two-thirds" of the money given to the "And for the Sake of the Kids" PAC? In the latter case, we must conclude that one's ability to compromise a judge for purposes of the U.S. Constitution is dependant on one's political fundraising prowess, so that a complete defense against constitutional violation might emanate from one's effective use of direct mail.
I think Justice Scalia has it right:
Divinely inspired text may contain the answers to all earthly questions, but the DueProcess Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed--which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.
It's a 5-4 decision (PDF) written by Justice Kennedy and joined by the Court's liberal wing. Coverage of Caperton v. Massey Coal: Jonathan Adler, the WSJ Law Blog, Legal Ethics Forum and the Chamber-backed West Virginia Record. Our earlier coverage is here, here, and here.
Some early commentary: Rick Pildes, Balkinization (case highlights division between justices who want bright-line rules, and those more comfortable with vague standards requiring ongoing judicial intervention), Volokh commentators David Nieporent (con) and Dilan Esper (pro).
The major legislation in Congress this week with sweeping implications for business and the litigation crowd is H.R. 1256, the Family Smoking Prevention and Tobacco Control Act, i.e., FDA regulation of tobacco. The Senate debates the bill today, with a cloture vote pending.
Mark Berlind, a partner at A.T. Kearney, essays a critique of the legislation in today's Wall Street Journal, "Tobacco and the Tort Bar," commenting, "Antitobacco activists are cheering, while some tobacco companies are raising the specter of First Amendment violations. Lost in the debate is the fact that this bill will continue to allow consumers to sue manufacturers that fully comply with the FDA's content and labeling rules."
There are other items of interest in Congressional committee rooms this week, including a hearing Tuesday by the House Judiciary Committee, Subcommittee on Commercial and Administrative Law, on H.R. 1521, the Cell Tax Fairness Act. As the CRS summary puts it, the bill: "Prohibits states or local governments from imposing any new discriminatory tax on mobile services, mobile service providers, or mobile service property for five years after the enactment of this Act. Defines 'new discriminatory tax' as a tax imposed on mobile services, providers, or property that is not generally imposed on other types of services or property, or that is generally imposed at a lower rate."
The bill was introduced by Rep. Zoe Lofgren (D-CA) and has 112 cosponsors from both parties, including opponents of federal preemption in other contexts.
Regarding the discussion over pseudonym-outing, Matthew Franck at NRO points to a very good rationale for why Madison's use of the pseudonym Publius mattered significantly to the young, Southern politician in discussing the issue of slavery.
I do think it's worth noting that the political leaders of the Founding Era adopted pseudonyms in significant part because the "cloak" was one actually encouraged by the "customary" ethos of the time, "behind which nearly every office-holding polemicist retreated":
Although the rules of republican discourse permitted public servants to promote ideas, this prevailing public etiquette did not allow them to promote themselves. As a result, charges of demagoguery could fall on those who signed their names to political publications . . . .Robert M.S. McDonald, The Hamiltonian Invention of Thomas Jefferson, in The Many Faces of Alexander Hamilton 57 (2006).
The pseudonymous writings of the time also of course varied from the august (as witnessed in the Federalist papers) to the inflammatory (as seen in Hamilton's attacks, as "An American" or Catullus, on Thomas Jefferson--who himself of course rather openly embraced inflammatory attacks on Hamilton under the pen of his patron Philip Freneau in the National Gazette).
So too do modern communications vary widely, on blogs or otherwise. Although Brian Leiter took obvious offense to Jonathan Adler's posts (here and here), it's hard for me to see how Jonathan actually insulted Brian personally, as opposed to his ideas. In contrast, John Blevins essentially called Ed Whelan a liar by suggesting that he "enjoys playing the role of know-nothing demagogue" and crediting a description of Ed as a "legal hitman." In other words, Blevins was accusing Whelan of disingenuously advancing arguments he knew to be false merely to provide cover for "the right wing echo chamber." That seems to me a pretty serious assault on Ed's integrity that goes beyond merely attacking his argument (which I also criticized, here) or even the common name-calling snarks on an opponent's intelligence, etc.
None of which is to say that I myself would have chosen to "out" Blevins, or necessarily agree with it. I tend to agree with Walter that there is substantial value in anonymous speech and to disagree with Michael that it is "illegitimate . . . unless there is a force majeure involved." But Glenn Reynolds is also correct that "if you appoint yourself someone's anonymous blogging nemesis, you can probably expect to be outed." Glass houses, stones, and all that.
Update: Eugene Volokh has typically thoughtful commentary here. I take no position on how law school tenure committees should function, a question on which Michael and Eugene are in a far better position to opine than am I. But I do strongly agree with Eugene that outing a pseudonymous blogger shouldn't be tortious.
After the not-unexpected bad news for bailed-out institutions -- yes, Washington will be controlling their top earners' pay -- comes this third paragraph in the Times account, which can be taken for the really newsy one (emphasis added):
[Other federal rules,] which are being described as broad principles, would set standards that the government would like the entire financial industry to observe as banks and other companies compensate their highest-paid executives, though it is not clear how stringent regulators will make them.
More: Megan McArdle.
An Ohio pharmacist has pleaded no contest to charges of involuntary manslaughter after failing to properly supervise a subordinate who wrongly formulated a chemotherapy preparation, resulting in the death of a two-year-old child. [Cleveland Plain Dealer via MedCityNews]. Scott Greenfield comments. Per MedCityNews, "Criminal prosecution for medical malpractice [...] is extremely rare in the United States, but maybe that's starting to change; more than half of the criminal cases since 1809 have been filed since 1984."
[Cross-posted from Overlawyered]
A majority of right-leaning bloggers (as well as virtually all the left-leaning) agree with me in predicting (at least on current evidence) that the Sonia Sotomayor nomination will prove more politically helpful to the Democrats than to the Republicans. The poll, also picked up in National Journal's Ninth Justice column, quotes me as saying, "Her actual rulings don't bear out the 'scary radical' meme. That Senate Dems were equally unfair to Miguel Estrada will, along with $3.26, buy you a latte at Starbucks."
Relatedly, I can't vouch for the methodology, which is not one that would have occurred to me, but this analysis by Corey Yung of five federal appellate circuits, based on an attempt to quantify what is meant by "activist" behavior in judges, tends to back up my sense that among judges with a liberal reputation, Obama could have found many who have shown a more adventurous disregard for precedent, less deference to other constitutional actors, etc. More: Marcia Coyle, National Law Journal.
- Overexposure to zinc from denture cream eyed as new mass tort [Maryland Injury Lawyer, WSJ Law Blog, Qualters/NLJ]
- The donations of Madison County: "Metro East Litigation Giant Floods [Illinois] Senate Candidate Giannoulias with Cash" [Post-Dispatch courtesy American Towns, Madison County Record]
- Proposed expansion of federal gratuities statute could criminalize much innocuous behavior in dealings with public officials [Brian Walsh, Heritage]
- "Supreme Court of Canada Deals Setback to Nationwide Class Action Settlements" [Karlsgodt]
- Wachovia pays $39 million to settle stockbroker overtime class action [Bronstad, NLJ]
- Noteworthy amicus brief in Santa Clara case: California District Attorneys Association weighs in against government retention of contingent-fee counsel [Lisa Perrochet, Nuisance Blog]
POL readers have much better things to do than to read a debate about the ethics of anonymous blogging. So I will be very brief in my response to Walter's critique. And I will start by reciprocating my great admiration for Walter in all things blog-related.
To me, anonymous blogging (and, more generally, other anonymous communications) are indeed justified at times. But those times involve dire consequences to the blogger. The state will kill me or imprison me if I sign this legitimate samisdat. It will blow my legitimate anonymous cover if the outlaw gang finds out who phoned the cops on them. Or, trivially, Joe's girl friend will be hurt if she finds out who wrote the helpful anonymous note telling her that her party dress is two sizes too small. I will add that the more widespread the readership and more critical the communication (blogging has a way wider readership than Joe's note to his girlfriend) the more compelling the circumstances must be to morally justify anonymity.
None of those kinds of justifications are met by the belief that one's colleagues, friends and family will be ashamed to know one's real views. Nor, in my opinion (and with great respect to my friend and former student Jon Adler) is it acceptable to try to trick tenure committees by hiding one's true views until one gets tenure. One must think little of one's law school colleagues if one believes he will be censured for the expression (and not the quality of expression) of political views. Should one stay on the faculty until "gotcha" happens? I don't think so -- that encourages misrepresentation. Confront your colleagues, or your friends, or your family, and convince them that your voice is a legitimate one.
This may be one of those areas where libertarians and conservatives disagree. For the former, no fraud or coercion is involved in anonymous blogging and that's that. [An anonymous blog posting is not necessarily itself a lie, even if the anonymity is motivated by a desire to misrepresent oneself to third parties.] For the latter, arguments are illegitimately launched when they are launched from behind a hood, as it were, unless there is a force majeure involved. We have the moral (not legal -- I'm making no argument here about legislating any of this) right to confront our virtual accusers when they confront us, I think. Ed Whelan was deprived of that right until someone (who? I have no idea, but that would be an interesting story) had enough and removed Blevins' hood.
For the record, let me say my views on the Ed Whelan/"Publius"/John Blevins affair differ widely from those of my valued co-blogger Michael Krauss. I understand why "hiding behind a pseudonym while sniping at a critic who is out in the open", in Michael's words, will often provoke wrath, as it provoked Whelan's. But I can't go along with the seeming implication that 1) only those of us willing to attach real names to our opinions should consider participating in online controversy; 2) publicly outing hitherto anonymous commentators is the deserved response to their hopes of anonymity; 3) tenure committees should intensify their scrutiny of candidates' unsigned postings, and perhaps attach negative weight to the fact of blogging anonymously.
* No more anonymous blogging? Well, there would go most of the good medical blogs, especially in the emergency room genre. There would go a great many blogs by practicing lawyers who don't feel like identifying themselves, including A Public Defender by Connecticut's "Gideon", not to mention Popehat. I've been in the writing business a long time, and I am aware of and mostly agree with the traditional reasons to deprecate anonymous content, which is one reason such contributors have been rare as guestbloggers (and entirely absent as permanent bloggers) both here and at Overlawyered. But I also acknowledge that the particular motives for anonymity in most of the instances I know about are more complicated and less illegitimate than one would imagine from the simple charge of cowardice.
* Outing as weapon. Wishing that certain personalities would publicly identify themselves, tweaking them publicly for not doing so, or vowing to ignore them until they do, are quite different from triumphantly announcing their secret in public, thus inflicting on them the train of personal consequences they had sought to avoid. I am reminded of the controversy four years ago over "Juan Non-Volokh", a then-untenured contributor to the Volokh Conspiracy (later acknowledged to be Jonathan Adler of Case Western, who now posts there under his own name). In that case, the ideological polarities were more or less the opposite of those in the latest episode (I'm regularly enthusiastic about Adler's work, as readers may suspect from my many links to it). At any rate, Brian Leiter, a big cheese in legal-academy blogging, was enraged at "Juan Non-Volokh" over a particular post and vowed to uncover his real identity, with less success than Whelan had. At the time, Eugene Volokh wrote:
I will let you folks be the judges of whether this is good behavior on Prof. Leiter's part. In my view, the nicer thing to do is to respect people's preference for anonymity, at least unless there are some unusual circumstances (more than just disagreement with their views) that are absent here.
See also his follow-up on tenure considerations.
* Cringing before tenure committees. Getting younger law professors into trouble for their unsigned blogging will not, of course, usher in some new generation of lawprofs who lack passionate views about politics or a zest for going after opponents; it will simply reward those who master the game of not publicly unleashing those proclivities until their tenure vote.
I'm sure I disagree with Blevins about a hundred other things, but I agree with him that if we're going to wade into nomination controversies and other touchy matters in the first place, it does not behoove us to act thin-skinned when others criticize us with similar vigor. More views: James Joyner, Anonymous Liberal, Dan Riehl, Just One Minute, Rick Moran, Kevin Jon Heller/Opinio Juris (via Memeorandum).
Further: Michael Krauss's response is here. And welcome readers from Instapundit, Feddie @ Southern Appeal, Joe Gandelman @ The Moderate Voice, "Deuce Geary" @ Skepticrats, Scott Greenfield, Patrick @ Popehat, and Jonathan Adler @ Volokh. I also added a link at Overlawyered, which unlike this site has comments.
Over on National Review Online, Ed Whelan of the Ethics and Public Policy Center has been quite appropriately attacking comments made by Judge Sotomayor, which seem to undermine the constitutional distinction between judging and legislating. He has been constantly attacked by an anonymous blogger on a website called Obsidinan Wings. Now, Ed has unmasked this blogger -- he is professor John Blevins of South Texas School of Law.
Incredibly, Blevins has defended his anonymous sniping as ethical: he didn't want to get in trouble with his law school, he didn't want to embarrass his family, he didn't want to offend his students. What Blevins didn't want to do, sez me, is take responsibility for his opinions. When you attack someone by name, you name yourself -- we are not in revolutionary times where the original Publius could go appropriately unnamed.
On the substantive debate between Blevins and Whelan, I think Whelan easily has the upper hand, but readers can decide this for themselves. On the propriety of hiding behind a pseudonym while sniping at a critic who is out in the open, I see no redeeming argument. I hope the South Texas tenure committee is watching and taking note.
After my earlier post on the now-infamous "crunchberries" case, plaintiff's attorney Harold Hewell emailed me to ask that I re-examine the case. I did, and now let me quote more extensively from the 12b6 ruling itself:
"The Crunchberries are pieces of cereal in bright fruit colors, shaped to resemble berries. While close inspection reveals that the Crunchberries are not really berries, Plaintiff contends that the colorful Crunchberries, combined with use of the word "berry" in the Product name, convey the message that Cap'n Crunch is not all sugar and starch, but contains redeeming fruit." [my emphasis]
Had plaintiff bothered even once to read the list of ingredients during her long-term consumption of the cereal, however, the court notes that "she will discover that the only fruit content is a touch of strawberry fruit concentrate, twelfth in order on the ingredient list."
So this was a class action based on the fact that the name, a fictitious one, denoted a nutritious content belied by the explicit list of ingredients. [True, the plaintiff did not allege that she thought the cereal contained whole berries, just that it had fruit content.]
I think the judge was correct to grant the motion to dismiss.
I think Eugene is right. There are many cases in which text and intent are far from clear, and many areas of law in which judges are invited to make policy choices. Even aside from the fact that Judge Sotomayor was telling a joke -- and that her characterization of the Supreme Court strikes me as positive rather than normative -- her comments here hardly strike me as objectionable.
- Positively, she seems supportive of Daubert and skeptical of hired-hand experts, which is reassuring even though the Daubert line of cases are not polarizing decisions among the members of the current Court.
- Ominously, however, she characterizes at least some tort reform laws as "overreactions that undermine the principles of our judicial system": "For example, legislators have introduced bills that place arbitrary limits on jury verdicts in personal injury cases. But to do this is inconsistent with the premise of the jury system." (citing as an example of such legislation the Common Sense Product Liability Legal Reform Act of 1996) (footnotes omitted)
Sotomayor's statements are deeply troubling given the shenanigans through which state supreme courts have regularly stricken down legislative tort reforms on dubious state constitutional grounds. (For good discussions, see Victor E. Schwartz, Judicial Nullification of Tort Reform: Ignoring History, Logic, and Fundamentals of Constitutional Law, 31 Seton Hall. L. Rev. 688 (2001); Victor E. Schwartz & Leah Lorber, Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance, 32 Rutgers L. J. 907 (2001).)
Even if Judge Sotomayor's comments are read merely to express policy disagreement, they are troubling. If her notion is even stronger -- that tort reforms such as the Common Sense Product Liability Legal Reform Act of 1996 are in fact unconstitutional -- then I agree with Ted's conclusion that her "argument is not just a statement of judicial activism, it's a disturbing statement of judicial supremacy over the other branches of government." Given the strength of her claims -- that such laws "undermine the principles of our judicial system" and are "inconsistent with the premise of the jury system" -- the less charitable reading seems more than plausible. In any event, I echo Ted's "hope [that] someone on the Senate Judiciary Committee inquires into it."
Shortly after Sonia Sotomayor's nomination was announced, I noted to a colleague that she, positively in my view, seemed to be a very strong First Amendment advocate. See, e.g., her dissent in Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002) (arguing against the majority's opinion that the New York Police Department was justified in firing an employee for privately disseminating racist materials). I suggested hope that she might apply such strong free-speech views to cases involving campaign finance restrictions.
The tolerance in this country for questionable behavior by public officials is illustrated by the persistence of extremely troubling--but legal-- practices in the public arena. In one of the murkiest and least well-controlled areas, we find ourselves debating what the quid pro quo's are for campaign contributions. Here we have abandoned standards we would surely apply in any other context. We would never condone private gifts to judges about to decide a case implicating the gift-givers' interests. Yet our system of election financing permits extensive private, including corporate, financing of candidates' campaigns, raising again and again the question what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate. Can elected officials say with credibility that they are carrying out the mandate of a "democratic" society, representing only the general public good, when private money plays such a large role in their campaigns? If they cannot, the public must demand a change in the role of private money or find other ways, such as through strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced in their legislative or executive decision-making by the interests that give them contributions. (footnotes omitted)
As I read her comments, Sotomayor seems either woefully ignorant of or utterly unconcerned by the centrality of political speech to the First Amendment, and the pretty self-evident notion that monies spent on or donated to campaigns constitute political speech. See Buckley v. Valeo 424 U.S. 1, 14 (1976) ("[C]ontribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."); see also John Hart Ely, Democracy and Distrust 93-94 (1980) ("The expression-related provisions of the First Amendment . . . were centrally intended . . . to ensure the open and informed discussion of political issues.") (emphasis added).
Inviting million-dollar claims based on recovered memories of events in the 1960s:
Under the version of the bill the bishop opposes, any plaintiffs, regardless of age, would have a one-year period to sue over child-abuse charges that took place at any point in their lives, no matter how long ago.
And careful what you wish for: a major argument levied by Roman Catholic opponents of the bill was that it would reinstate long-since-lapsed suits against churches but not similarly situated public agencies. Now the bill's sponsor, Queens Democrat Margaret Markey, has announced she's going to address that disparity by extending the new litigation climate to everyone:
The change would give people who say they were abused in public schools, for example, the same opportunities to sue as those claiming abuse in religious or private schools.
Cardozo lawprof Marci Hamilton has been among major public advocates of suspending statutes of limitation; for a sampling of critical viewpoints, see First Things, Crisis/Inside Catholic, and this Queens blog. Earlier here and here. More: WSJ.
Yes, someone actually sued PepsiCo (maker of Cap'n Crunch cereal) for misrepresentation. Poor Janine Sugawara claimed that she thought "Cap'n Crunch's Crunchberries" cereal really contained a fruit named "crunchberry." Alas, she discovered to her horror that the "crunchberries" were colorful cereal balls impregnated with strawberry fruit concentrate. Ms. Sugawara naturally filed a putative class action on behalf of all persons similarly duped, but the Eastern District of Califonia granted Defendant's motion to dismiss, after consulting its dictionary and finding no fruit named "crunchberry."
The court's dismissal of the case contains the following sentence: "The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen."
Plaintiff's attorney was one Harold Marion Hewell of San Diego.
Mortgage securitization wasn't just a way for Wall Street to fob off risk on naive investors; big firms on the Street loaded up on the unsound bonds for their own holdings. The designers of the new mortgage tools didn't think housing prices could only go up. Executive compensation practices weren't just a "heads we win, tails you lose" game. And more [Hoover Policy Review via Business Insider]
More: In an energetic response, Felix Salmon says "Jenkins's attempts to let Wall Street off lightly simply don't hold water"; Wall Street firms never expected to eat as much of their own dog food as they wound up having to, the structure of securitization discouraged fundamental analysis of what widespread defaults would do, and the perversities of compensation are not limited to problems of inadequate "skin in the game" (or to executives as such, given the central role of traders).
AP rounds up the bunch of Alien Tort actions in the headlines, including Shell/Nigeria, Chevron/Ecuador, Chevron/Nigeria (resolved recently with a defense verdict), and an ExxonMobil/Indonesia case pending in Washington state court (after a federal-court claim was dismissed). Although the Shell/Nigeria headlines raise charges of political repression, the settlement objectives are apparently a bit more, well, tangible in nature: "Steve Kretzmann, executive director of Oil Change International and a former adviser for Wiwa, said the plaintiffs are hoping to force Shell to repay residents of Nigeria for decades of pollution related to oil drilling." No cases have won verdicts, but settlements are a possibility, and organizers keep bringing new actions: "Another, against an Alabama-based coal company that operates in Colombia, was filed Thursday." More: ShopFloor.
More background on the Alien Tort statute, and some of the above cases, at our International Human Rights Law category.
- Return of the rickety "medical crises cause most consumer bankruptcies" meme [McArdle, more; earlier here, here, etc.]
- Texas: bill advances that would make it easier for injured contract workers to sue property owners [San Antonio Express-News]
- Minnesota county officials denounce "one-way loser-pays" insurance proposal in legislature [Minneapolis St. Paul Business Journal]
- Plenty on the docket for lead as legal issue [Law and More/Cordrey, Mealey's]
- Imagine a legislative "compromise" on union organizing that in practice resulted in unions winning most organizational elections. Actually, that describes the current system [ShopFloor]
- When it comes to dubious Alien Tort Statute cases, bogus banana-worker claims are just the start [IBD editorial, related]
Having observed Sonia Sotomayor since I clerked on the Second Circuit during her first year on that court, I've generally taken a more skeptical stance on her nomination than my friend and colleague Walter Olson. I certainly agree with him on this point, though:
"It's not as if I think Obama's incapable of nominating someone who is more adventurous and more activist by nature."
Case in point: my old Civ-Pro professor, Harold Koh, whom the POTUS has selected to serve as top lawyer in the State Department (a nomination that is still awaiting a hearing before the full Senate). Dave Kopel writes about some of Koh's Second Amendment views here.
As I mentioned last week:
The one case of [Sotomayor's] 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....
Now a post by Anthony Dick at NRO "Bench Memos" gives a quick summary of why the case is so controversial:
you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker's lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a "reasonable accommodation." But that would be a decidedly unempathetic point of view. Such an attitude is in fact "invidious," according to Sotomayor's opinion.
It is far from clear that any of this will constitute so much as a speed bump on the path to Senate confirmation for Sotomayor, since lawmakers on the Hill have shown little or no interest in reining in adventurous interpretations of the Americans with Disabilities Act -- indeed, when the Supreme Court moved on its own to rein some of them in, Congress responded with legislation to overturn the decisions and re-liberalize rights to sue under the law. (cross-posted, slightly adapted, from Overlawyered). A different view: Larry Ribstein.
Lost in the discussion of bondholders, dealers and layoffs is the effect of bankruptcy filings on product liability suits against GM and Chrysler, typically launched by victims of automobile accidents who claim that they would have been less injured than they were if only their vehicle had been "correctly designed." Thousands of such suits are pending at any one time -- either our auto designers are remarkably inept or this kind of liability is remarkably open-ended and lawless (guess which option I choose?). The Washington Times reports that plaintiffs' lawyers are outraged that their clients must now compete for the few cents on each dollar that unsecured creditors get.
Recently out from Pacific Research Institute (PDF), authored by Nicole V. Crain, W. Mark Crain, Lawrence J. McQuillan, and Hovannes Abramyan, "Tort Law Tally: How State Tort reforms affect Tort Losses and Tort Insurance Premiums". From the executive summary:
Of the 25 tort reforms that we examine, the statistical analysis identifies 18 reforms to state civil-justice systems that significantly reduced tort losses and tort insurance premiums from 1996 through 2006. For some categories of tort cases, specific reforms cut payouts by more than 50 percent. The cumulative effect of reforms across all tort categories is a 47-percent reduction in losses and a 16-percent reduction in insurance premiums for consumers. Some tort reforms are highly effective at reducing costs in certain tort categories, but are ineffective in other tort categories. It is important that reformers pick the right tool for each problem. If we order the tort reforms according to each reform's ability to reduce aggregate tort losses, the top eight reforms are: attorney-retention sunshine (12 percent), Daubert/Frye (10 percent), frivolous lawsuits (7 percent), jury service (6 percent), appeal-bond caps (4 percent), negligence standard (3 percent), non-economic-damage caps (2 percent), and medical-malpractice damage caps (1 percent).
Related op-ed: PRI president Sally Pipes in D.C. Examiner.
- "Lerach disbarred, but could return for Armageddon" [CalLaw Legal Pad]
- Calif. Supreme Court decision banning balance billing will harm emergency room care [Mark Morocco, L.A. Times via White Coat]
- Distinguishing the injured from the uninjured in the MoistureLoc contact lens cleaner mass tort [Beck & Herrmann]
- New pressure on New York Assembly Speaker Sheldon Silver to disclose his earnings from tort firm Weitz & Luxenberg [NY Post]
- "How dare you petition the government?" New lobbying restrictions will curb unwanted advocacy in the capital [ShopFloor]
- Salon.com columnist Glenn Greenwald, of the ever-accusatory manner, had case before Sotomayor as lawyer, got 1/3 loaf [WSJ Law Blog, scroll]
Walter earlier linked to a Forbes.com article by Daniel Hemel that took issue with property-rights-expert Richard Epstein's characterization of Didden v. Village of Port Chester, an unpublished order written by a Second Circuit panel including Judge Sotomayor (note: because Judge Sotomayor was the senior active judge on the panel, the unsigned order almost certainly emanated from her chamber, under standard Second Circuit practice).
Hemel is obviously a smart guy, and he's written some good pieces for Forbes, but the 2007 graduate of Harvard College has no apparent legal training or experience, so he can perhaps be excused for failing to understand that it makes no sense to do what he does -- credit the defendant's characterization of the facts as true -- in a 12(b)(6) motion on the pleadings, under which a judge is supposed to credit as true the plaintiff's allegations. (This isn't a case of merely conclusory allegations as in Twombly; Didden at least seems to allege facts that would trigger the rather confused pretext analysis that the court would have to undertake under Justice Kennedy's Kelo concurrence, and for which a factual record could rather easily be built by deposing the parties.)
Note: It's important to point out, I think, that the court didn't really engage in any extended takings analysis in Didden. It did summarily opine on the takings issue as an alternative rationale -- which isn't unusual in an unpublished opinion, which lacks any precedential weight -- but it appeared to rest its decision first and foremost on a statute-of-limitations question. That question: whether Didden's case was time-barred in 2004 because he'd failed to file a claim in 1999 after the town originally drew up the economic development plan that could have ultimately included his property (as the court found), or whether the statute-of-limitations clock actually started clicking only when the town decided to condemn his property in 2003.
The answer isn't self-evident to me; a reasonable case could be made that Didden's claim in 1999 would have suffered from ripeness and exhaustion problems. Ideally, the court would have given the statute-of-limitations claim a deeper analysis, and if it still found the case time-barred, published an opinion on the matter, without reaching a conclusion on the underlying takings claim. Unfortunately, as with Ricci, the panel essentially ducked a potentially controversial question. (In case anyone would assume that I'm accusing Judge Sotomayor herself of willfully ducking tough constitutional cases, I want to emphasize that I'm not; regardless, there were three judges on each of these panels, and I doubt if Sonia Sotomayor could persuade her fellow Article III jurists to duck a constitutional issue that they thought deserved fuller treatment.)
Walter has generally been a critic of the erosion of traditional restrictions on maintenance and champerty, dating back to his wonderful discussion of contingency fees in The Litigation Explosion (the chapter is available here). Like Walter, Lester Brickman, and others, I'm generally troubled by the perverse effects contigency fees can generate (for more, see my discussion with Alex Tabarrok here), though I wouldn't go so far as to eliminate such arrangements entirely, even assuming such were politically feasible.
In his post, Larry notes that we should distinguish among types of litigation and that outside funding helps to "eliminate the potential conflict of interest between a corporate client with diversified investors and a risk-averse lawyer who may have an incentive to settle cases that could be productively litigated," excellent points that shouldn't be ignored. I also think Larry is largely correct in stating that legal-system problems would best be remedied "directly by rules constraining improper litigation practices [than] indirectly by constraining firms' ability to pursue the litigation."
The question remains, however, to what degree "outside litigation financing might increase the amount of socially inefficient litigation." As Walter perhaps would, I would tend to believe that the answer could be, "significantly."
In her December paper on loser pays, my colleague Marie Gryphon describes how our current system of litigation encourages what she calls "abusive litigation." She defines "abusive lawsuits" as those that have "have little legal merit, regardless of the magnitude of the recovery sought." Abusive suits in turn break down into "lottery suits" -- those that combine "low legal merit and very high stakes" -- and "nuisance suits" -- those that combine "modest stakes and little legal merit."
Lottery suits include class action and birth-defect litigation: the stakes are so high that such suits have a substantial settlement value, even if the probability of ultimate success is very low. By reducing barriers to entry, outside litigation financing would probably encourage more such suits.
What I'd worry about even more, though, are nuisance suits, which consist primarily of small-value "shakedown suits" and mass-tort "manufactured suits." As a theoretical matter, the existence of such suits at all is a bit of a puzzle, as Marie explains in her paper. The mass-tort context is perhaps easiest to see. If a lawyer has a portfolio of some cases -- say, asbestos claims -- that are valid, but others that are bunk, he can collect on the bunk cases precisely because it is too expensive for a corporate defendant to litigate each case through to final judgment, since his costs are never reimbursed under the American Rule. Outside financing improves the lot of legitimate plaintiffs in mass-tort situations precisely because it would get rid of risk aversion that leads plaintiffs' lawyers to settle such claims on the cheap; but for the same reason it improves the credible threat presented by manufactured claims and thus increases their settlement value. So the total cost of such litigation rises. How one might view this problem depends on how one views such litigation, but the evidence from asbestos, silicosis, and Fen-Phen suggests that the ratio of bad to good cases is actually quite high.
So where are we left? If we limited large-award contingency fees and adopted loser-pays principles, there's much to be said for outside litigation financing. Indeed, Marie's proposal itself calls for eliminating maintenance and champerty barriers to outside insurance, an important access need for a loser-pays reform. (In separate conversations, Tony Sebok has expressed to me a tentative embrace of loser pays combined with outside financing.) Absent such reforms, however, I share Walter's worry about the real-world consequences that outside litigation financing brings.
PSLRA, the class-action reform legislation, was intended to -- and has -- drawn large institutional investors such as pension funds and universities into much more important roles as players in securities litigation, in contrast with the earlier model in which such suits were almost entirely driven by an entrepreneurial bar. Now a new study on SSRN by Agnes Cheng (LSU), Henry He Huang (Prairie View A&M), Yinghua Li (Purdue), and Gerald Lobo (U. of Houston), summarized by Kevin LaCroix, suggests that the results of this shift have been largely favorable as to corporate governance objectives, and have also tended to raise payouts to investors in the litigation itself.
- "Court of Appeals Affirms Exclusion of Junk Science In Mold Case" [Cal Biz Lit]
- "GM Bankruptcy Underway and the Asbestos Plaintiffs' Lawyers Already Have Appeared in Force" [Hartley]
- On Thursday, House Judiciary holds hearing on trial-lawyer-backed bill to crack open settlement confidentiality and protective orders [Wood, ShopFloor]
- Institutional investors vs. Royal Dutch Shell: sign of things to come in European class actions? [Ben Hallman/AmLaw Litigation Daily, Karlsgodt]
- In hot pursuit of drywall: "Florida builders and the not-so-Great Wall of China" [James Thorner, Popular Mechanics via ShopFloor]
- Jump into a schoolyard fight? You probably can't win damages from the school for your injury [Hochfelder]
The New York Times covers the burgeoning business of lawsuit finance, profiling Juridica Capital Management and other new ventures that purchase stakes in the outcome of litigation (mostly commercial litigation, it seems) -- a practice long illegal at common law, before recent ethical loosenings. This innovation will, of course, encourage the filing of more litigation, and Prof. Sebok is quoted as being pleased with that: there'll be "funding available for cases that are good cases, cases that from a God's-eye point of view, so to speak, should've been brought". Don't you love that "God's-eye" wording, with its premise that God wants us to bring lawsuits when we have legal grounds to do so, and is disappointed when we instead decide to forgive, or shy away from the process for fear of hurting someone, or just want to get on with our lives? [see below for correction]
P.S. From Eric Turkewitz in email: "This is a phrase that I've also used. But it doesn't have the meaning you have given it, of what God wants to do. Rather, it is a view of the facts as they actually happened, as opposed to the way facts sometimes get spun by advocates for one side or the other." More: Ted at Overlawyered (including a response from Richard Fields of Juridica in comments), Larry Ribstein (disinclined to regulate the funds), and Jim Copland, above. And (update) Prof. Sebok himself writes to advise that he intended the "God's-eye" phrase in the uncontroversial sense described by Eric Turkewitz above, thus leaving my reaction above as a case of misplaced snark. Sorry.
MI's Jim Copland has a new opinion piece in the National Law Journal, "What of Impartiality?", scrutinizing the nominee's record in such cases as Dabit v. Merrill Lynch (giving a narrow reading to federal preemption and thus allowing certain state securities lawsuits to go forward) and Gant v. Wallingford Board of Education (dissenting from dismissal of lawsuit over black first-grader's demotion to kindergarten). The problem, he suggests, is not entirely the sympathy that Sotomayor has expressed for the style of Legal Realism symbolized by Jerome Frank, but also the question of which social and sociological consequences of judicial action she recognizes. Relatedly, John Hasnas (via Adler) invokes Bastiat's celebrated essay on "the seen and the unseen" consequences of government action.
Separately, Jim Copland hosts a podcast with Ilya Somin on the current state of Supreme Court property rights/eminent domain jurisprudence and how Sotomayor's ascension might change matters.
P.S. Also, Andrew Sullivan yesterday sent this site about eleventy-billion new visitors. Thanks!
In July 2002 Russell Christoff, a California teacher and former model, was amazed he saw his picture on a jar of Taster's Choice Coffee. The photo had been taken at a 1986 photo shoot in Canada and Christoff had forgotten about it. Christoff had given permission for the use of the photos in Canada only. But apparently Nestle USA obtained his photo from Nestle Canada and featured it on Taster's Choice labels -- as well as in newspaper coupons and ads on buses, in magazines and on the Internet -- in 22 countries. Nestle USA claims it mistakenly believed the company had authority to use Christoff's image worldwide.
Christoff sued for violation of his right of publicity. At trial a jury awarded him $15.6 million plus attorneys' fees of $600,000. But the intermediate appeals court threw the suit out because of the state's single-publication rule, which provides that the publication of a defamatory statement in numerous copies constitutes a single cause of action for statute of limitations purposes (though of course damages may increase with the number of instances of the tort). In other words, subsequently distributed jars of coffee or advertisements over the years do not trigger the running of new limitations periods for each jar.
Christoff v. Nestle USA Inc. will be argued before the California Supreme Court on Wednesday, June 3. The case considers whether the single-publication rule (codified in state Civil Code §3425.3) applies to the right of publicity (created by Civil Code §3344) or (as Christoff claims) only to common law torts such as defamation. This is a huge case in California because of the entertainment industry. Nestle has amici curiae briefs from major news organizations and from the Motion Picture Association of America, while Christoff has briefs from the Screen Actors Guild and other actors' groups.
Nestle notes that had Christoff had asserted his right of publicity claim in a timely manner, it could have replaced his image immediately at a cost of about $150,000. "Instead, because of Christoff's delay in asserting his rights, Nestle unwittingly continued to use his image without authorization...."
The Intermediate Appellate Court held that when the state Legislature enacted the right of publicity it understood that the tort was was a form of invasion of privacy, thus governed by the single-publication rule. Plaintiff's brief in opposition to this decision is here. If plaintiff prevails, the right of publicity will have been distinguished from other privacy torts in a new and in my opinion unprecedented way.
Kirk Hartley has the story on a Western District of Pennsylvania bankruptcy judge's decision. For a few samples of our criticism of less-than-fully-adversarial practices in asbestos bankruptcies, see links here, here, and here. Related post here (summarizing article in Columbia Business Law Journal by S. Todd Brown of Temple). More: ABA Journal.
Over at SCOTUSBlog, Tom Goldstein argues:
[I]n an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. . . . Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.
Indeed. Looking at summary statistics considering overall case disposition, I would argue, does little more than confuse the issue. Particularly at the Court of Appeals level, most cases are clearly dictated by precedent. It's true, of course, that any critic might be accused of unfairly cherry-picking controversial cases. But still, it doesn't say much at all to say that Sotomayor has only disagreed with her colleagues in 4 of 96 cases. As the president nominating her once noted:
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult.
That statement was made in then-Senator Obama's formal statement opposing the appointment of Chief Justice Roberts.
I emphasize that I am not accusing Judge Sotomayor of "allow[ing] race to infect her decisionmaking." But even if the president and I may disagree in how those 5 percent of cases should be resolved, I clearly agree with him that those 5 percent of cases upon which Scalia and Ginsburg might disagree on a Circuit Court are not insignificant -- and I agree with the POTUS that an analysis focusing on those particularly close cases would not be "absurd."
The Obama administration backed away from a plan to sell the automaker to Fiat free and clear of tort claims, after an intense campaign by you-know-who. "A vow to wreck the new business by suing dealers and suppliers helped, too." [Steve Korris, Legal NewsLine/W.V. Record]
- Uh-oh: British report proposes seriously curtailing centuries-old loser-pays protections for defendants [Times Online]
- Trial lawyers' drive to curtail predispute arbitration agreements endangers employers' interests [Jottings By an Employer's Lawyer]
- Louisiana gasket maker facing torrent of asbestos suits is latest in U.S. Chamber's featured "Faces of Lawsuit Abuse" [video, more]
- Malcolm Carlisle, "Collective Redress Without Collective Action Litigation: The Challenge for Europe" [WLF, PDF]
- "Parade of Amici in Santa Clara Lead Lawsuit" [Cordrey, Lexis/Nexis] Civil Justice Association of California amicus filing is kind enough to cite my writing, see p. 10 [brief, PDF, more]
- MBTA, the Boston-area transit agency, budgets $7 to $9 million a year for settling employee lawsuits [Globe]
So argued former State Department legal adviser John Bellinger III in the WSJ last week, with special reference to the overreaching, extraterritorial Alien Tort Statute. But it's not as if the efforts to turn the U.S. into the courtroom for the world are slackening at all:
- As Curtis Bradley and Jack Goldsmith note in the Washington Post, a federal court recently allowed to proceed a lawsuit seeking to blame the evils of South African apartheid on Western multinationals, even despite strong opposition to the suit from both the U.S. government's executive branch and today's duly elected multiracial South African government. Unfortunately, the State Department's up-to-now-staunch opposition to this and similar lawsuits is imperiled by the installment of Harold Koh as legal adviser at Foggy Bottom: "Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability."
- If asked what should happen to frozen Cuban-government assets under U.S. control, reasonable possibility #1 might be "hold them against the eventual day when a non-tyrannical regime emerges there, it will need help." Reasonable possibility #2 might be "divide the assets among Castro's many victims in some deliberate and step-by-step way, knowing that their injuries are so numerous and severe that even very deserving victims will get only small payments". The answer you'd think makes no sense at all is "encourage first-come-first-served tort lawsuits, so that the first couple of cases to maneuver their way through the legal process get handsome compensation, while no money is left for either #1 or #2". So naturally, the latter is what our legal system is doing, previously in $188 million and $253 million verdicts involving single incidents or families, and now in a new case in which the family of Gustavo Villoldo has been awarded $1.179 billion. One of the plaintiff's lawyers in the case actually boasts that the new award may obstruct a warming of relations between the U.S. and a post-Castro successor regime: "with the opening of relations between the U.S. and Cuba to come, there are debts to society to be paid before that happens" (more on Che Guevara, via).
- On the brighter side, the Obama administration has joined its Bush predecessors in correctly drawing a line against litigation by some September 11 victims and insurance companies: under the Foreign Sovereign Immunity Act, the courts are no place to pursue theories trying to link the rulers of Saudi Arabia to the terrorist attacks.