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Quin Hillyer Archives

Trial Lawyer Tax Break Update

Even though this Washington Times editorial was being drafter before Walter posted last night, citing Victor Schwartz, the item about the trial lawyer tax break, it now serves to advance the conversation begun in Walter's post. Here's the deal: What the trial lawyers ask for, from Nancy Pelosi, the trial lawyers get.

In one of the most cogent, readily understandable explanations of the importance of federal pre-emption, Jeff Rosen and Jay Lefkowitz write in the Washington Post today a column taking President Obama to task for kowtowing to the trial lawyers. Good stuff.

At a speech last night sponsored by RegularFolksUnited.com at the Army-Navy Club in DC, British Member of European Parliament Daniel Hannan wowed a crowd of conservative activists on multiple fronts. He spent a great deal of time using the British Health System's failures to argue against President Obama's plans for greater government involvement in US health care. Of interest to this blog, however, came when, in answering a question about how the British system handles lawsuits, he switched gears and said, effectively, that one of the few areas where Britain does it better (on health care and in general) is in its greater aversion to jackpot justice lawsuits. "I think your [health care] system could be improved if there were less litigation," he said.

In his excellent speech during floor debate about Judge Sotomayor, Alabama's Jeff Sessions touched on what should be one of the most disturbing parts of the judge's record:
"Within the last three years, Judge Sotomayor has heard three monumentally important cases involving: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the Fifth Amendment right to one's private property. In all three of these cases, Judge Sotomayor joined or authored very brief opinions that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. And in each case, Judge Sotomayor reached conclusions that denied individual Americans their rights against government power. "
Later: "Judge Sotomayor repeatedly stated, including in her opening statement, that litigants deserve explanations. That she looks into the facts, delves into the record, and explains to litigants why she rules for or against them. I have read the one-paragraph Ricci opinion. And Judge Sotomayor did not afford the firefighters the respect they deserved."
And: "After Maloney was decided, the Seventh Circuit also addressed this issue. Although the Seventh Circuit agreed with the Second Circuit, it reached this conclusion in a much more thorough and thoughtful manner that showed that the judges appreciated the significance of whether to apply the Second Amendment to the states. "
Likewise, he said, on the Didden v. Port Chester case involving eminent domain, "Judge Sotomayor's panel dismissed the merits of the plaintiffs' case in one paragraph."
And: "In these three recent cases, the litigants did not have their rights properly listened to nor protected, in my opinion. Is it because she would have preferred different results from the promotional exam for firefighters? Is it because she does not believe in the rights protected by the Second Amendment? Is it because she favors redevelopment? We are left to wonder, because the cases were certainly not decided based on the plain text of the Constitution and did not openly and thoroughly discuss the serious nature of the issues raised."
He also could have added that her opinion was equally and obnoxiously brief in the case of Hayden v. Pataki, where she would have ruled that currently incarcerated murderers and rapists have a right to vote while behind bars.
We at the Washington Times blasted this tendency to hide behind bizarrely brief opinions in the most controversial (and unpopular) of her decisions in this editorial. The problem is that litigants, lawyers, and the public cannot leave the courtroom understanding WHY a case was decided the way it was if the judge hides behind such brief explanations. On every level, this is an abdication of a judge's responsibility.

Heritage on medical devices

Carter Wood yesterday mentioned a congressional hearing slanted in favor of those who want to change pre-emption laws governing medical devices. Hans von Spakovsky at Heritage now has a good paper on the subject. Bottom line:
"The chaos and confusion caused by subjecting manufacturers of medical devices to the varying and conflicting rules generated by individual verdicts rendered by nonmedical experts would severely damage America's health system." Good stuff.

I wish I knew how to insert a file here, because the CATO Institute's amicus brief (joined by Goldwater Institute, Reason Foundation and Scharf-Norton Foundation for Constitutional Litigation) in the case of Alvarez v. Smith makes for quite interesting reading. It's a civil forfeiture case, and the amici argue that this is one case, like "many state forfeiture statutes, [that] provides powerful, dangerous, and unconstitutional financial incentives for law enforcement agencies and prosecutors offices to overreach. When the police department and the district attorney's office derive a significant part of their funds from forfeitures, the invitation to overreach is overwhelming. Marshall v. Jerrico, Inc., 446 U.S. 238, 250 (1980) (unconstitutional prosecutorial bias exists if there is "a realistic possibility that the [prosecutor's] judgment will be distorted by the prospect of institutional gain as a result of zealous enforcement efforts."). Where law enforcement agencies have such a direct and powerful pecuniary incentive to seize more than the law permits, it makes sense to impose more procedural safeguards to prevent abuse and protect private property rights."

Even if one is "tough on crime," that stance doesn't justify abuses of property rights. At first glance, based just on this brief, this is a case well worth watching -- and (again, reserving the right to revisit this original judgment pending deeper review) apparently worth rooting for the respondents, Chermane Smith, et al.

Walter Olson kindly asked me to guest-blog here all week, for which I am very grateful. I've gotten a slow start, but plan to make up for it. Anyway, it's worth noting that John McCain's somewhat surprising decision to vote against confirmation of Sonia Sotomayor to the Supreme Court showed not just a well-expressed sense of what the role of the court is, but an admirably thorough amount of research and analysis of Judge Sotomayor's record.

Most interesting, perhaps, is that McCain focused more on Sotomayor's District Court record than just about any other senator, rather than just analyzing her record on the Second Circuit Court of Appeals -- and that his analysis noted several rulings of particular interest to businesses and to property rights:

She was reversed due to her reliance on foreign law rather than U.S. law. She was reversed because the Second Circuit found she exceeded her jurisdiction in deciding a case involving a state law claim. She was reversed for trying to impose a settlement in a dispute between businesses. And she was reversed for unnecessarily limiting the intellectual property rights of freelance authors. These are but a few examples that led me to vote against her nomination to the Second Circuit in 1992 because of her troubling record of being an activist judge who strayed beyond the rule of law.

(NOTE: He obviously meant 1998, not 1992.)

In another forum, I have drafted pieces particularly critical of Sotomayor's decision in Merrill Lynch v. Dabit, summarized concisely by Ed Whelan: "In Merrill Lynch v. Dabit (2006), the Court, in an opinion by Justice Stevens, unanimously (8-0) reversed Sotomayor's ruling that certain state-law securities claims were not preempted by federal law. Stevens pointed out that the Court had rejected Sotomayor's interpretation in cases from 1971 forward."

I think honest businesses will rue the day Sotomayor gets on the high court. And I think McCain is right in his analysis overall.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.