After being reversed twice by the U.S. Supreme Court, including in last term's Philip Morris v. Williams case (Oct. 26, 2006; Feb. 20, 2007; much more), the Oregon Supreme Court has once again reaffirmed the $79.5 million punitive damages award. Steenson has details. SCOTUS avoided addressing the issue of excessiveness of damages, so the Oregon Supreme Court's decision is a direct challenge to that jurisprudence. The Court is going to be faced with the need to write a "No, this time we really mean it" reversal, or effectively undo its precedents in the area. (Update: Turkewitz suggests the latter outcome is likely.)
It's true, as the plaintiffs say: New York's judicial selection methods are at best opaque and outdated, at worst hackish and corrupt (more). But as the U.S. Supreme Court has now just unanimously confirmed, the way to fix that is for New Yorkers to muster the democratic energy and will to force the needed changes, not ask an unelected federal judiciary to do it for them. More: NY Sun.
Arbino v. Johnson & Johnson was a 5-2 decision, and joins at least 19 other state courts that recognize that it is within the power of a legislature to regulate civil remedies. [AP/Law.com]
Volokh conspirators are calling attention to the pending bill with its disturbing implications: federal judges would find themselves in large measure barred from attending conferences not "sponsored by any bar association, any judicial association (including the National Judicial College and Federal Judicial Center), subject-matter bar associations, and the ABA's Judicial Division." After all, the organized legal profession and judicial bureaucracy has the best interests of us all at heart, so why permit judges to turn elsewhere for possible sources of ideas or analysis?
It's hard to see the proposal as anything other than an example of the Jacobs thesis come to life and parading itself around unashamedly for all to see. Earlier here, here, here, and here.
Today is the tenth anniversary of Best v. Taylor Machine Works, where the Illinois Supreme Court undid legislative tort reform on the grounds that only the state courts could legislate in this area, with the chutzpah to claim that the legislature was violating the separation of powers. (It also struck the statute under a disingenuous application of rational-basis review.) This illegal judicial aggrandizement (still on the books) has a lot to do with why there were so many judicial hellholes in the state: the legislature is nearly powerless to constrain them. As Ed Whelan notes, the dissent correctly said:
“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”
A provision in the judicial pay raise act would revive earlier attempts to shut down judicial seminars of the law-and-economics variety, and also torpedo a lot of judicial travel for other purposes, such as the giving of speeches at law schools, reports John Fund in the WSJ.
He has predictably robust opinions on the subject, as Anne Reed recounts:
Although he was never a trial judge, he has presided by designation over "15 or so" trials, and told the Chicago Tribune, "I think I've learned a lot." ...
In a recent dissent, he wasn't satisfied with the model of umpireal passivity for judges:
Trial judges can and should control long trials by quizzing lawyers on their witness lists and documentary evidence ("Why do you want to call this witness? If you do call him, what (in general terms) will he be testifying about? What will that testimony add to your case? How lengthy would his testimony be and what would he cover that requires that length of time? Do you really need witness X to discuss topic A when you already have Y to discuss it? Can the parties agree to a stipulation in lieu of some of the evidence?"), putting time limits on trials, and holding active pretrial conferences, Judge Posner and the others went on. And they should do it before they're asked to...
Normally, persuading the legislature and the executive to pass a law reforming problems is sufficient, but when it comes to tort reform, the trial bar has a well-funded arm that takes the battle to the third branch of government, the judiciary, which, dozens of times, has asserted its own legislative authority to strike down laws. The December 10 National Law Journal covers ATLA/AAJ's Center for Constitutional Litigation and its battles. POL's Richard Epstein and Michael Krauss are quoted.
A lengthy story by Joseph Goldstein in today's New York Sun (via WSJ Law Blog) explores how plaintiffs' attorneys in gun and tobacco cases have used the related-case doctrine to judge-shop for Judge Weinstein, a phenomenon I noted in my March Liability Outlook.
Distinguished visiting scholar Richard Epstein has recorded the second in his series of podcasts for the Manhattan Institute, once again interviewed by our own Jim Copland. The topic this time: Epstein's lecture entitled, "Neither Liberal Nor Conservative: A Maverick's View of the Supreme Court." Check it out here. The earlier podcast on the Stoneridge securities case is here.