Recently in Institutional Reform Litigation Category

The House Judiciary Subcommittee on the Constitution has a hearing scheduled for Friday, March 11, on the yet to be introduced Lawsuit Abuse Reduction Act, legislation that would amend Rule 11 of the Federal Rules of Civil Procedure to discourage frivolous lawsuits.

The Lawsuit Abuse Reduction Act was one of the high-profile pieces of legislation promoted by civil justice reform activists in the previous decade. Rep. Lamar Smith (R-TX), now chairman of the full Judiciary Committee, was sponsor in 2005 of H.R. 420, which passed the House 228-184 (16 House Democrats voted yes along with the Republicans) before stalling in the Senate.

The primary provision of the 2005 bill applied to the federal courts:

(Sec. 2) Amends Rule 11 of the Federal Rules of Civil Procedure (Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions) to: (1) require courts to impose sanctions on attorneys, law firms, or parties who file frivolous lawsuits (currently, discretionary); (2) disallow the withdrawal or correction of pleadings to avoid Rule 11 sanctions; (3) require courts to award parties prevailing on Rule 11 motions reasonable expenses and attorney's fees, if warranted; and (4) authorize courts to impose Rule 11 sanctions that include reimbursement of a party's reasonable litigation costs in connection with frivolous lawsuits.

However, the bill also sought to apply the new Rule 11 standards to state civil actions involving matters that substantially affected interstate commerce, and it had other provisions directed at state courts. That kind of language raises objections from federalism-minded conservatives (e.g. new "Tea Party" aligned House Republicans), who would otherwise support tort reform.

Accordingly, it's our understanding that the upcoming version of the bill will drop the state-specific language to apply only to the federal courts.

In the most recent issue of the Manhattan Institute's City Journal, Jim Manzi has a fascinating piece on the limits of social science. I posted my initial reaction to the piece on Marquette University Law School's faculty blog. His observation are particularly timely in light of the recent decision of a district court judge in Perry v. Schwarzenegger striking down California's constitutional amendment limiting marriage to one man and one woman.

My point relates not to same sex marriage itself, but Judge Walker's use of social science evidence and how that might relate to constitutional litigation generally. The key question is the extent to which courts ought to rely on social science evidence to overturn the laws enacted by voters and their elected representatives. This question extends well beyond the matter of same sex marriage.

According to Judge Walker, social science evidence has proven that same sex marriage will have no impact on the mores and vitality of marriage between heterosexuals and that it has proven "beyond any doubt that parents' genders are irrelevant to children's developmental outcomes."

It is certainly true that most academics who have devoted themselves to the study of gay and lesbian isses believe these assertions. But it is quite another matter to say that they have proven them. Our experience with same sex marriage is quite recent and limited. It is not clear that there is enough data to draw any conclusions about its long term impact.

As for the "genderless" nature of parenting, there are severe methodological difficulties in obtaining randomly selected comparable samples of gay and lesbian couples raising children. Comparision groups of heterosexual parents are often not limited to intact married couples raising their biological tradition and there are very few, if any, adequate longitundinal studies.

But beyond this, Manzi's article suggests that it may be difficult to ever say - at least by the standards of the physical science - what the impacts of same sex marriage are or will be. While his article focused on implications for policy making, there are lessons for judicial decisionmaking as well. A large part of Judge Walker's decision is given over to declaring the judgment of a majority of California's voters as irrational because social science purports to establish that what they believe to be true is not.

The question is not an easy one. Traditional equal protection analysis requires some scrutiny of the justificaton for legal distinctions. But it may well be that social science evidence needs to be viewed with greater skepticism than shown by Judge Walker in Perry. Constitutional litigation ought not to be seen as a battle of experts who attempt to claim the dispassion and robustness of the physical sciences to resolve contested issues of social policy.

The state wants out from under two-decade-old institutional reform litigation, and Children's Rights Inc., its adversary, is predictably seeking to block its escape. [Hartford Courant] For more on the big business of children's rights litigation, see this earlier post and this one, on a Georgia fee controversy resolved by the U.S. Supreme Court just this week.

• By 4-3 margin Connecticut Supreme Court finds state's constitution guarantees all children "suitable" education, finance decrees to follow [CLT]
• Welcome Mark Steyn readers (he linked to Rick Esenberg's post on health care and the constitution);
• Comer v. Murphy Oil: "Suing our way to a carbon-free world" [David Freddoso, Examiner]
• Dellinger: after Stevens retirement, seniority wrinkle might tip Justice Kennedy to side more often with liberal bloc [WSJ Law Blog]
• Gender wage gap can be fully explained, yet advocates claim critical need for Paycheck Fairness Act [Mark Perry]
• Critics say proposed compromise in Florida legislature wouldn't really restore reliable parental waivers of liability over kids' recreation [Orlando Sentinel] Trial lawyers playing defense on several other issues in Tallahassee including slip/fall suits, AG's use of outside counsel [Sentinel, Miami Herald, AP]

[cross-posted from Overlawyered, where comments are open]

If blogging has been lighter than usual, one reason is that I've been racing forward on my new book on law schools and their influence, tentatively entitled Schools for Misrule: Legal Academia and an Overlawyered America, which is in the catalogue for Winter/Spring (a year hence) from Encounter Books. I reached first draft in December and am rapidly whipping that rough copy into something closer to final shape.

My original nickname for the book was Ten Bad Ideas from the Law Schools -- and How They Changed The World. We decided to go with something a little more dignified, but the book still tries to answer the underlying question of why so many bad ideas -- and certain kinds of bad ideas, especially -- keep emerging from the law schools. Along the way it looks at some sociological and political angles, such as why modern liberal-left leadership so often is formed in the elite law school milieu (Barack Obama, Bill and Hillary Clinton, etc.) Then it takes up a series of issues -- from institutional reform litigation and school finance to slavery reparations and international law -- in which legal academia has led campaigns to challenge and redefine the nature of government sovereignty, with consequences that have been usually unforeseen and sometimes calamitous.

I'll be blogging more on all those points over the coming year, but in the mean time I've got a request ("bleg" = blog request, or begging post) for this site's well-informed readers. One of my chapters takes up the now-ubiquitous phenomenon of law school clinics in which students represent outside clients, sometimes in "cause" litigation and sometimes not. I trace the origins of this movement (a big philanthropic push from the Ford Foundation made the difference), the resistance it met from law-school traditionalists and its eventual triumph, as well as some of its present-day manifestations, which are not always those foreseen by the circa-1970 visionaries who started the programs. The chapter is pretty good as is, I think, but I'd like to add a little more illustrative detail about the clinics, especially vignettes from the early years shedding light on what it was expected they would accomplish in changing society (a subject that isn't as well documented on the web as I'd like). Responses can be made in comments or by email to editor - at - overlawyered - dot - com. (And, yes, I've already read Heather Mac Donald's interesting City Journal critique and some of the responses it provoked.)

In a paper for the Federalist Society, longtime school-finance-watchers Eric Hanushek (Hoover) and Alfred Lindseth (Sutherland Asbill) perceive a trend toward judicial rejection of "adequacy" lawsuits that advance a state-constitutional rationale for ordering hikes in school budgets.

There's a good chance the next governor could reshape it with as many as four appointments on a seven-seat court. [Mary Fuchs, Star-Ledger via NJLRA]

P.S. And why, asks Paul Mulshine in the WSJ, does Republican candidate Chris Christie keep ducking the need to confront the state supreme court over its long, disastrous venture into redesigning the state's school finance system?

The suit had dragged on through twenty-three years of intensive judicial management of New York City's homeless programs, which are (in no small part due to that management) by far the nation's most expensive. Homeless advocates claimed victory in getting the city to concede their goal of establishing a broad "right to shelter", a legal concept that has generally not been accepted by courts outside New York. The city, meanwhile, expressed satisfaction that it would be allowed to reassert substantial control over the programs' management, and that some key legal vulnerabilities would be scheduled to sunset in 2010. Sewell Chan in the NYT:

Under the settlement, the parties agreed a new case would be filed and, following a class action settlement hearing, all cases against the city and state, as well as the new one, would be dismissed. The city will regain full control and oversight of its family services system, "no longer having to enforce over 40 highly-detailed court orders or spend precious staff time and agency resources complying with or litigating these cases," City Hall said in a statement.

The classic account of the litigation appeared eleven years ago, by Peter Hellman in City Journal, and is very much worth reading today to get a sense of the extraordinary way in which it transferred power over billions of dollars in municipal expenditures from elected officials to the private lawyers suing the city, most prominently in recent years the Legal Aid Society with the assistance of the celebrated law firm of Cravath, Swaine & Moore. More: Heather Mac Donald, City Journal.

The New York Post's editorialists detect some good news for the city in Judge Helen Freedman's ascent to the appeals bench, in that she'll have to stop running the city's homeless programs via decree the way she's been doing for the past 25 years. But the bad news...

• Insurers fight Referendum 67 with TV ads invoking fictional law firm of Sooem Settle & Kashin, Washington State Trial Lawyers Association says that's "slanderous" [Seattle Times, NW Republican]


• Missouri judge rejects state-constitution challenge to school finance [AP/SEMissourian]


• Touting of lawsuits to recoup public costs of meth abuse from OTC drug makers "sounds like a commercial for the Publishers Clearing House Sweepstakes" [Coyote]


• When to settle your malpractice case as a defendant (even if you feel you did everything right) [Medical Economics via KevinMD]


• Reactions to court's dismissal of the California automaker/greenhouse gas suit [WSJ Energy Blog, attorney Richard Faulk @ Law and More, Dan Walters]


• "Very likely" that Madison County "will not be listed as a judicial hellhole this year," says ATRA's Darren McKinney [Post-Dispatch]


• Law.com takes a look at Justice Department's stepped-up use of corporate monitoring in plea deals [Corporate Counsel]