Wachtell, Lipton associate Andrew A. Schwartz, writing in Sidebar, a newly launched informal companion to the Columbia Law Review:
There is something deeply disturbing about granting a private citizen a monopoly, enforceable by the courts, over a method of complying with the tax code or, for that matter, any other law. Moreover, no attorney wants to pause before advising a client in order to run a patent search to make sure that no one owns the advice she is about to give. And what client wants to pay extra to their lawyer to cover licensing fees?
You can't say we didn't warn you about the dangers in lawyers' efforts to develop elastic, inventive "public nuisance" theories for suing unpopular businesses (gunmakers, makers of lead paint in 1920, global warming contributors, etc.) And now, shortly after Baltimore's lawsuit (PDF) seeking recovery from subprime lenders for various sins and insults, the mayor of Cleveland has followed with a yet more absurd and yet more dangerous lawsuit (PDF), this time invoking public nuisance law against not merely originators of mortgage loans, but even financial institutions that later bought the mortgages from their originators. The Cleveland Plain Dealer, in an astoundingly irresponsible editorial for a newspaper of its once-high reputation, actually cheers: "Wall Street should pay", though it concedes the shakiness of the actual filing: "The one-count complaint contains not one legal citation".
Meanwhile, the Baltimore Sun reported over the weekend that "Baltimore's lawsuit against Wells Fargo for its subprime mortgages has stirred up frustration among industry players, who say they're increasingly taking heat for offering loans in poorer and minority neighborhoods despite being urged for years to do just that." Some legal academics are applauding the emerging city lawsuits; see, for example, this post at Credit Slips. Earlier here.
T. Leigh Anenson (Maryland Business) in the Pepperdine Law Review:
The common law doctrine of absolute immunity provided to litigation lawyers is said to be “as old as law.” This centuries-old doctrine protects litigators from lawsuits instigated by the adversaries of their clients. It is typically invoked, irrespective of any nefarious or malicious motives, so long as the course of action taken bears some reasonable relation to the lawsuit. This Article examines the historical antecedents of the litigation privilege as well as the policies motivating its creation. It also provides a comprehensive description of the doctrine of absolute immunity, explores the circumstances in which it has been applied, and discusses potential legal issues that may effect its application in any given case. After considering its venerable jurisprudence, the Article derives an analytical framework for future cases of absolute immunity and details the determinants of the doctrine given prominence in the precedents. The paradigm is intended to assist in the development of the lawyer's litigation privilege and support its continued existence in the twenty-first century.
Perhaps related: Aug. 29 and Apr. 3.
We've posted the latest in our series of podcasts with distinguished Manhattan Institute scholar (and U. of Chicago lawprof) Richard Epstein. This one is entitled "The New Antitrust: Reexamining Microsoft and Other Consent Decrees," and is once again introduced by MI's (and Point of Law's) Jim Copland.
P.S. Ted notes that AEI has more of related interest here and here.
A Yale Law School clinic sues Yale-New Haven Hospital. Is that why they call it "collegiality"?
Stuart Buck recalls verses he wrote in law school encapsulating one of the most famous of all liability opinions, Learned Hand's in The T.J. Hooper:
Defer to custom? No sirree.
The PL here was more than B.
As any idiot would find,
The industry had lagged behind
We summarize Richard Epstein's seminal article on the case here, and an early version of the article itself can be found here (PDF).
Because you just know that more lawyers is what New York needs (more).
Justice Scalia: ""We thought we were just planting a wildflower among the weeds of academic liberalism and it turned out to be an oak."
The European Union paid about $1 million to the American Bar Association to promote opposition to the death penalty. John Rosenthal has details on this and other European-taxpayer-funded leftist and anti-American activity on World Politics Review.