Recently in Around the Web Category

A couple of recent media appearances behind the paywall:

• I'm quoted in the January 26 Los Angeles Daily Journal expressing skepticism about the ability of small-claims court proceedings to adequately substitute for consumer class actions in the Honda hybrid class action (where CCAF successfully objected to a substantially inferior version of the coupon settlement pending). Of course, Peters then won her small-claims action, though it's hard to see how Honda could have defended itself based on how the judge ruled. We'll see if Honda appeals or takes its lumps given the lack of collateral estoppel.
• In Law360, I express skepticism about a pending Toyota sudden acceleration lawsuit, which can't be a surprise to any reader of this blog. The first California state case involves a fatality of a 66-year-old female driver Noriko Uno, whose husband decided years after the fact was a victim of Toyota Camry sudden acceleration; this was not the case the plaintiffs' steering committee wanted to go first, so one suspects it's even weaker than the other meritless cases being propounded. Trial is scheduled for September 17, 2012.
• Not behind the paywall, I'll be on the Chuck Wilder Show this afternoon talking about my SOPA op-ed.

• That amendments to the Lacey Act make it impossible for American businesses to comply with importation regulations (as in the case of Gibson Guitar) without risking draconian criminal consequences is viewed by environmentalists and domestic producer special interests as a feature, rather than a bug. [Strassel]
• The Engle progeny tobacco cases and their curious view of claim preclusion start to arrive in the U.S. Supreme Court. [SCOTUSBlog; Lahav]

• Dumb class action against Nutella now looks to reward attorneys with millions. [Jackson; OL]

• Business groups seeking change to Philadelphia courts' unfair reverse bifurcation procedures. [LNL]
• Judge McConnell not impressed by OLC opinion on recess appointments. [AFS]
• Loudoun County, Virginia taxpayers on hook for tens of thousands of dollars because governmental body's scorched-earth litigation against citizen who took a legal photo of a Board of Equalization meeting. [WaPo (h/t D.A.)]
• Government-created shortage of Adderall and Ritalin; meanwhile, some trial lawyers putting profits ahead of people and seeking to ban entirely. [Star-Tribune; OL; Alkon; LA Weekly; L&S]

• Mitt Romney's true tax rate is over 44%. [Tax Prof]
• Annals of the improbable alibi. [ABAJ]

Michael Greve and Michael Rappaport are now blogging at a new site called the Liberty Law Blog, which immediately leaps into the must-reads of the day. Recent posts include a discussion of how Federalist No. 15 predicted the inherent constitutional flaws of the European Union and an analysis of the "state coercion" argument against PPACA. And don't miss that site's podcasts with Michael Greve and Walter Olson about their new books.

• Our coverage of (and my litigation against) coupon settlements earns Missouri an dishonorable mention in the 2011-12 Judicial Hellholes report. Philadelphia gets the #1 spot. [Report; website]
• Thom Lambert is skeptical of the American Antitrust Institute's jury instruction project, given that institution's poor track record in favoring plaintiffs' lawyers over consumers. [TOTM]

• Engineer criminally prosecuted under Clean Water Act without mens rea for mistakenly diverting sewage from flooding a military retirement home into waterway. [WSJ via Right on Crime]
• Republican legislators tied to trial bar blocking needed tort reform in North Carolina and Pennsylvania. [Armstrong Williams @ WaTi]
• Arkansas Supreme Court turns itself into legislature, strikes down 2003 legislative cap on punitive damages. [Times Record]
• New York City elevator fatality will likely result in liability (as it should), but let's remember that elevators are much safer than they used to be despite the product liability system. [NYT; earlier on POL]
• Was going to cover this, but already well-covered: "Posner: lawyers appeared more likely to run junk-fax suit for own interests than clients'." [OL; Beck; Trask]
• Speaking of Philadelphia, Pfizer will settle jackpot justice Philadelphia HRT verdicts for undisclosed amounts rather than risk punitive damages. [law.com; earlier]

• Coverage of Monday's Nachsin v. AOL cy pres victory for CCAF. [Zywicki @ Volokh; Fisher @ Forbes; BLD; law.com; Metropolitan News-Enterprise; Litigation Daily ($); Law360 ($); Wolfman]
• Video of my Federalist Society National Lawyers Convention panel (including Lester Brickman, Brian Fitzpatrick, Alan Morrison, and Jeffrey Jacobson) is on line. Judge Kavanaugh moderated and there were good audience questions.
• Someone seems to agree with me about the NBA. [Orange County Register]
• Great link roundup on the job-killing litigation expansion aspect of the Obama American Jobs Act. [OL; earlier]

• Federal Circuit demands valid scientific evidence before opening up National Vaccine Injury Compensation Program fund. [NLJ; Porter v. HHS]
• Texas generously permits its citizens to buy home-baked goods. [Austin Chronicle (h/t B.C.)]
• A 57,000-page $0 tax return for the highly profitable General Electric demonstrates why corporate tax rates are both too high, too low, and definitely too inefficient. [MR]

U.S. District Judge Richard Leon stayed the implementation of a Federal requirement effective next year which mandates tobacco companies to put graphic images on their cigarette packages. Judge Leon blocked the requirement in order "to evaluate on merits the constitutionality of the commercial speech that these graphic images compel. "

"Although it is true that Congress mandated the new images to occupy the top 50% of the front and back panels of all cigarette packages and the top 20% of printed advertising, Act § 201(a) (amending 15 U.S.C. § 1333(a)(2),(b)(2)), and charged the FDA with implementing a final rule consistent with its mandate doing so does not enable this requirement to somehow automatically pass constitutional muster. Appropriating the top 50% of the front and back of all cigarette packages manufactured and distributed in the United States is hardly a directive narrowly designed to achieve the Government's purpose (whatever it might be). To the contrary, the dimensions alone strongly suggest that the Rule was designed to achieve the very objective articulated by the Secretary of Health and Human Services: to "rebrand[ ] our cigarette packs," treating (as the FDA Commissioner announced last year) "every single pack of cigarettes in our country" as a "mini-billboard. A "mini-billboard," indeed, for its obvious anti-smoking agenda!"

The case is R.J. Reynolds Tobacco Co. v. FDA, No. 11-1482 (RJL), slip op. (D.D.C. Nov. 7, 2011).

• DRI overcriminalization panel: Executives, "are now living 'in fear of losing everything' not for personal conduct but for what someone else may have done." [BLT]

• LIRR disability mills generate indictments for what would have been a $1 billion fraud. The question is why functionally identical mass tort mills aren't facing criminal consequences. [Overlawyered]
• The late William Stuntz's The Collapse of American Criminal Justice: why the justice system does a bad job of separating defendants who deserve punishment from those who don't. [Cassell @ WSJ via Volokh; Stevens, J., @ NYRB; Chronicle of Higher Ed]
• The hypocritical attack by Congressional Democrats on Justice Thomas. [Wash Times]
• Pero criticizes Soros's anti-judicial elections campaign. [Wash Times]
• NYT Paul Clement profile.
• How California drives away jobs and business. [Malanga @ WSJ, coming soon to CIty Journal]
• Utah: you can serve alcohol, you can show movies with nudity, you can't do both simultaneously. [ABAJ]

Available at the #ILRSummit hashtag, and the ILR blog is discussing, too.

Lester Brickman and I are on a panel about class actions at the National Lawyers Convention November 10, but other speakers include Justices Scalia and Thomas, Judge Easterbrook, Michael McConnell, Michael Mukasey, Senator Rubio, Senator Lee, Lawrence Tribe, Paul Clement, Walter Dellinger, Ed Meese, Eugene Volokh, and Paul Singer. Deadline for discounted lodging in Washington, DC, is tomorrow.

I see a bit of a tabula rasa effect in those on the right who think that OWS can be co-opted to the cause of freedom if only they understood the difference between free markets and crony capitalism; what many OWS protestors really have in common with the Tea Party is an amorphous economically irrational grievance about the lack of free ponies, and they aren't going to be receptive to being told that libertarians dislike bailouts and Obama's corporatism.

More Occupy Wall Street commentary: Gelinas @ City Journal; Barro; Krauthammer; Will; Manne; Wallison @ WSJ; Jim Harper.