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Ramseyer on product liability in Japan
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J. Mark Ramseyer, Liability for Defective Products: Comparative Hypotheses and Evidence from Japan, 61 Am. J. Comparative L. 617 (2013):

Americans file 80,000 product liability suits a year; Japanese file perhaps 100-300; and most countries more closely resemble Japan than the United States. Based on reports and articles from forty-five countries, Mathias Reimann has advanced several thoughtful and subtle hypotheses about this contrast. In this article, I apply Reimann's hypotheses to Japan and explore what they might tell us about law in the two countries. As Reimann suggested, the reason for the Japanese-American contrast does not lie in legal doctrine: on the substantive law of products liability, the United States and Japan are quite close. Instead, the reasons for the contrast seem to turn on aspects of American procedure that encourage meritless demands. Litigation rates are not lower in Japan because the law prevents victims from recovering their damages; Japanese law does not deter valid claims. Instead, the rates are higher in the United States because American law helps claimants collect amounts to which they are not legally entitled.

On the Competitive Enterprise Institute's blog OpenMarket.org, senior attorney and counsel for special projects Hans Bader asks, Will "International" Norms Override Civil Liberties and Protections Against Violent Crime?

Hans makes a compelling case (extended article) that the Supreme Court sets a dangerous precedent when it relies on "international opinion" in deciding a case. The risk according to Hans, is that these "international norms" are usually hostile to our basic civil liberties and are "vague and manipulable" and therefore, can be applied selectively to push a particular ideology/agenda.

Hans expands on this point,

Courts should not rely on "international opinion" to decide cases, since it is vague and manipulable. So-called international law is applied selectively by lawyers and judges, who cite real or imagined "international law" to push the ideological goals they support, while ignoring actual international court rulings they don't like, like foreign court rulings barring punitive damages or limiting damages under the Warsaw Convention (as in Olympic Airways v. Husain).

Left-wing lawyers take vague international treaties and interpret them as mandating liberals' ideological wishlists, like restricting criticism of Islam and minority religions as "hate speech," banning Mother's Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring "redistribution of wealth," "affirmative action," "gender studies" classes, government-sponsored "access to rapid and easy abortion," and "the application of quotas and numerical goals." Never mind that most countries don't even have affirmative action.

But left-wing lawyers ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries' courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden. But you will never see a liberal Supreme Court justice talk about "international law" or "international opinion" when it comes to punitive damages, which are sacrosanct in the eyes of some liberal judges.

What do you think about courts relying on "international norms"? Join the discussion on Twitter via #PoLforum

The Fox Business Channel, in addition to last night's televised Stossel show on "The Trouble with Lawyers," filmed a separate audience question-and-answer session with John, me, and guest Crystal Chodes. It's available only on the web:

Topics covered include the reasons for American legal exceptionalism, the cost of litigation, lawyers' political influence, and tort liability for environmental catastrophes like the BP oil spill.

The full televised show is re-running tonight at 10pm EST; Saturday, July 10, at 9pm and midnight EST; and Sunday, July 11, at 10pm EST on Fox Business Channel.

But you can be sure, it's not an apology tour.

William Lerach, who made hundreds of millions of dollars in class-action securities litigation and then went to prison, was one of scores of speakers today at America's Future Now! conference, a gathering of left-leaning activists organized by the Campaign for America's Future.

He held down a meeting room at the Omni Shoreham for an hour over lunchtime to present a "special issue briefing" entitled "America's Broken Retirement Plans and Retirement Systems: Another 'Gift' From Wall Street." (From the conference agenda.)

We always knew that Lerach believed in wealth redistribution, but in a more self-serving sort of way. Now he's apparently selling himself as a progressive redistributor. It's a tough sell, as the alt-weekly San Diego Reader made clear in a recent piece, "Out of Prison, Living in Luxury." The author, Don Bauder, has no truck with banks, whom he scores for "plutocratic thievery," but neither is Lerach a hero in his view.

Lerach, who recently emerged from an almost two-year stretch in prison, is greatly responsible for this rigged game. As an attorney who filed hundreds of class-action suits against corporations, he became a bigger fraudster than a lot of the companies he was pursuing. First, he filed many dubious suits, rejoicing when 90 percent of the companies decided to settle for millions of dollars rather than spend the time and money fighting. That stratagem wasn't illegal, but it was grossly unethical -- the classic shakedown. Companies called it getting "Lerached." Second, Lerach and his firms paid fat kickbacks to shifty characters to become plaintiffs in those lawsuits. That was illegal, landing Lerach in prison.

Now he is out, residing comfortably in one of the county's most luxurious spreads, a cliffside villa in La Jolla. He is worth an estimated $700 million. The government made him pay a mere $7.5 million for his crimes.

Right. Here's the Sept. 18, 2007, news release from the U.S. Attorney's Office in San Diego after Lerach agreed to plead guilty. Why would self-styled progressive reformers hang out with a convicted felon? Oh, right, he is worth an estimated $700 million. No enemies on the monied left.

We have yet to see any blog reports and just a few Tweets from Lerach's remarks, but will continue looking. In the meantime, we marvel at his audacious brazenness as captured in his conference bio:

William S. Lerach - lecturer, writer and investor advocate.

For decades, Mr. Lerach was one of the leading securities lawyers in the United States. He headed up the prosecution of hundreds of securities class and stockholder derivative actions which resulted in billions of dollars of recoveries for defrauded shareholders from Wall Street banks, big accounting firms, corporations and insurance companies. Mr. Lerach has been the subject of considerable media attention and is a frequent commentator on economic and political matters and securities and corporate law. His career was recently chronicled in the best-selling book "Circle of Greed."

The subject of considerable media attention!


Around the web, April 30

  • Obama: maybe liberal court activism wasn't figment of conservatives' imaginations [NYTimes]
  • "Judge Posner on conflicts of law, statutes of repose and limitations, and forum non conveniens" [Beck et al, Wajert; Taiwanese plaintiffs suing over blood products]
  • Maryland legislature raises minimum auto insurance rates, Baltimore Sun calls attention to trial bar's influence, blog polemics ensue [Andy Green, Jay Hancock, John Bratt (attorney deems Sun "local fishwrap"), Ronald Miller (questioning Hancock's "license ... to blog"), and more]
  • Higher rates of public sector unionization correlate with less efficient public management [Chris Edwards, Cato at Liberty]
  • Lawyers capture lion's share in settlement of harassment claims against Middlesex County, N.J. sheriff's department [NJLRA]
  • "Comparative Law - Various National Approaches to Personal Injury Compensation" [Hartley, Global Tort]

Around the web, April 27

  • Spring issue of Federalist Society's State Court Docket Watch includes articles on Illinois liability reform, California furlough suits, Washington school finance reform, Caperton and recusal;
  • Judge Manuel Real hammers generic product liability complaint re: pain pumps [Beck et al]
  • Sen. Lautenberg's bill would tighten TSCA chemical regulation [Wajert, ShopFloor]
  • Good news for Maryland trial lawyers, state enacts a False Claims Act [Baltimore Sun]
  • "Litigation Funding in Australia" [Vischer, Legal Ethics Forum]
  • "Sentences Get Harsher in White-Collar Cases" [Henning, NYT DealBook via Greenfield]

Canada's class action bust

Canada began its experience with the class action format much more recently than we did, but the results are similar: few class members actually file claims for recovery, and secrecy enshrouds the resulting "take-up rates" and the disposition of unclaimed funds. "The lack of application for relief to the funds by directly affected plaintiffs indicates to me that there isn't a great social need for these actions," says William Vanveen, formerly of the University of Windsor law faculty and now in private practice. [Luis Millan, Lawyers Weekly]

Around the web, March 19

Comparative law edition:

"If you just can't get enough of personal injury ads on daytime TV, then Bott & Co solicitors has launched a new iPhone application designed to win compensation should you suffer a car crash or 'incident.' Would be claimants will get instant access to a personal injury solicitor if they have been involved in an accident with the 'Car Incident Assistant' application." [MacWorld UK; Bott & Co., PR Newswire]

Around the web, February 5

  • One-way injury fee shifts? More on ominous procedural proposals in England and Wales [Burch, Mass Tort Lit]
  • Client-chasing legal "news services" often inaccurately recount air mishaps [Aero-News.net via Steele, LEF]
  • Feds to probe alleged cluster of cleft palate cases near Kettleman City, Calif. waste dump [L.A. Times, more]
  • Saying "So..." in a certain way might let slip your Yale Law background [Horwitz, Prawfs]
  • In an unfree country, corrupt officialdom may be better than the alternative [FCPA Blog, more]
  • Lots of trade associations expressing policy views in one place: Biz Central (via Pat Cleary)







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The Manhattan Insitute's Center for Legal Policy.