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Recently in Regulation Through Litigation Category

Note on format; latest posting

July 20, 2004 9:23 AM

Attention readers: in contrast to the usual weblog format, new entries in this exchange are posted at the bottom rather than the top of the page. So scroll down. Thanks!

Table of contents of the discussion: Jul. 20 Olson/Krauss; Jul. 21 Olson/Krauss; Jul. 22 Olson/Krauss; Jul. 23 Olson/Krauss.

None of Congress's business?

July 20, 2004 10:05 AM

In launching what�s intended as a regular monthly feature at Point of Law, I had in mind adapting a format perfected over at Slate, often under the heading �Breakfast Table�. It allows a couple of writers to bat things back and forth in an informal way over the course of three or four days, reacting in turn to each other�s posts, the way Walter Dellinger and Dahlia Lithwick do here (discussing the Supreme Court�s latest decisions) or David Brooks and Susan Estrich here, or Anthony Lewis and Stuart Taylor Jr. here. As someone who�s working to build up a new website, I can appreciate the way this format stimulates traffic (once readers get drawn in, they may want to check back often to see whether a new response is up). And the exchanges at Slate have managed to elicit an almost eerily high level of civility from the participants, even from those who seldom show the best of manners in their writing elsewhere.

I doubt that civility will be a problem for the two of us here, if only because the topics we can expect to contest, important though they may be, are gently lapped on all sides by a sea of agreement. To begin with, we agree in decrying the ongoing legal assault on gun makers; if anything, you�ve been more outspoken than I have about it. In your articles with Cato's Robert Levy, you�ve called the gun-suit campaign "a parody of tort law" and written that "most lawsuits against firearms manufacturers for anything other than manufacturing defects are barely disguised extortion attempts." (Your language reflects the fact that in relatively rare instances, a gun blows up in its owner�s face or otherwise behaves as no sane user could have intended. Such cases are a different kettle of fish legally from the newer suits against the maker of a lawfully sold gun which works exactly as expected mechanically but was used later in a crime. Some anti-gun activists and press outlets have claimed that the federal pre-emption bill would give gunmakers a complete free pass from being sued under any and all theories, which is baldly untrue.)

So far so good. But while we agree in condemning the campaign to make gunmakers pay for criminal misuse of their products, we disagree on what can be properly done about it. I think it�s entirely appropriate for Congress to step in and put an end to the campaign, as it nearly did this year (such a bill passed the House and was sponsored by a substantial majority of Senators, but failed on the floor there when opponents attached �poison pills�). You and Bob Levy of Cato have argued, on the other hand, that a nationwide pre-emption bill �offends basic tenets of federalism� and that �tort law is an issue for the states to resolve�. In March, when the bill failed (for this year) in the Senate, you and Bob cheered, calling the outcome a �win for the Constitution� and �good news for federalism�.

And that just baffles me. Because if there�s anything the gun-control-through-litigation campaign is not intended to do, it�s safeguard each of the fifty states� power to hew to its own gun policy (assuming that�s a worthwhile goal or one consistent with the Second Amendment). The 30+ big-city suits, as well as the almost as carefully orchestrated private suits, have been filed disproportionately in court districts where gun ownership is politically unpopular, and a major part of activists� strategy is to keep trying different courts and theories until they break through somewhere -- most likely, in a state that is significantly less friendly toward Second Amendment values than the average state. The result (or so the activists hope) will be some combination of liability verdicts, court decrees and coerced settlements which will significantly curtail access to guns not just in the state or court district where the lawyers broke through, but across the nation. In other words, the aim is to use the courts of one or a few states to obtain controls which will shut down or constrict gun availability in other states which were never consulted on the matter -- all without the need to win any sort of up-or-down vote in Congress.

This can�t possibly be the sort of thing the Framers envisioned as appropriate when they devised the Constitution. But if not, under which enumerated powers can Congress act? I expect we�ll be exploring that question in the days ahead. You�ve criticized the use of the Commerce Clause as a possible source of authority, but -- as you acknowledge -- that clause is only one of several Constitutional provisions that may bestow relevant powers on the federal government. For now, I�ll just note that from the start -- not just since the New Deal revolution, but since the Constitution�s adoption -- the feds have been knee-deep in overseeing important aspects of the operation of the state courts. The most salient common thread in these interventions has been the need to watch the state courts when they start trying to project their power to persons, policies and pocketbooks in other states -- exactly what the gun controllers are trying to get them to do here. That�s the best explanation of why the Constitution asserts national authority over controversies arising in �diversity� between citizens of different states, over bankruptcy, over admiralty and maritime law, and over numerous other sorts of cases. Virtually every significant anti-gunmaker suit, it should be noted, is either aimed at an out-of-state entity, or seeks to assign liability to out-of-state conduct, or both.

But before I turn the floor over to you, I have a question. I noticed what I thought was a small but significant difference between your longer Cato paper (PDF), which I assume was drafted first, and the shorter National Review Online knock-off. In the longer paper, your rejection of federal pre-emption is couched in something closer to absolute language: it�s unconstitutional, and that�s that. In NRO, on the other hand, you instead call it �premature�, and acknowledge that �things might one day get out of hand. If a state, or the District of Columbia, eventually does endanger Americans' Second Amendment rights through bogus damage awards against gun makers, those excesses will indeed justify federal intervention under the 14th Amendment. But we�re not there yet.�

I was delighted to see what seemed to be a movement toward my own position, but perhaps I should first ask: have your views indeed evolved, or am I reading too much into this? And if it�s now a question of timing -- federal intervention is not yet constitutional but will ripen into constitutionality once things reach crisis stage -- my next question is: how will we know when things have gotten out of hand? The first time the plaintiffs score a favorable appellate court ruling? (That�s happened.) The first gunmaker bankruptcy occasioned by the cost of litigation? (There have already been a couple.) The first settlement by a gun supplier under duress? (That�s happened already, too.) The first check written to plaintiffs? Does it have to be a big check? How big? How much damage to innocent businesses, to the right to bear arms, and to the rule of law, must be endured before we can intervene? Or would it be okay to legislate beforehand to forestall at least some of these evils before they occur?

Ball�s in your court. Thanks for agreeing to take part in this.

The states' commerce claws

July 21, 2004 10:04 AM

I share your frustration with the difficulties in ascertaining the exact scope of the Commerce Clause: it�s the kind of constitutional provision that can give accordions a bad name (though I�m not one to share the usual musical prejudice against that fine instrument). At the high point of New Deal expansion, the clause was thought to empower Washington to regulate a farmer�s growing of grain to feed his own animals. At the other extreme, some libertarians seem to envision a Skinny Minnie sort of Commerce Clause that would amount to little more than a sort of domestic GATT arrangement, empowering Congress to step in if Maryland erects a tariff against Delaware or that sort of thing.

As we all know, in recent years the U.S. Supreme Court has let a bit of air out of the hyper-extended New Deal view of the clause. But the Rehnquist Court is still a lot closer to the �covers nearly everything� interpretation of the clause than to its �covers hardly anything� opposite. True, the present Court may call foul when Congress tries to federalize, say, domestic violence law on little more than an assertion that crime of that sort has an impact on commerce. But when the nexus with actual commerce is not so strained, today�s Court nearly always concedes Congress� authority to regulate. And there simply is no doubt based on the record -- even diehard foes of tort reform would scarcely bother to dispute it -- that product liability has a direct and substantial effect on interstate commerce, and on the gun trade in particular.

If I read your argument rightly, however, I don�t think you�re actually predicting that the presently constituted Supreme Court would find the gun pre-emption bill anything but a proper exercise of Commerce Clause power. (If I err on that, let me know, and I�ll go back to arguing the point.) Instead, I interpret your comments as proceeding from either a prudential sort of federalism -- the Court might not deem the pre-emption bill unconstitutional, but we still would be wise to refrain from passing it -- or perhaps a loyalty to what you perceive as earlier and more legitimate readings of the Commerce Clause.

In a draft paper available at his Federalism Project, Michael Greve of the American Enterprise Institute has offered what strikes me as a powerful riposte to both of those ideas. He argues that the tradition of a strong Commerce Clause, affording a wide-ranging charter for Congress to displace state law in areas relating to interstate commerce, has roots that go much deeper than the New Deal, extending back not only to the controversial Lochner era but indeed to the earliest years of the Republic and Chief Justice Marshall�s opinion in Gibbons v. Ogden (1824). The battles back then did not involve federal oversight of products liability, for the very good reason that that kind of liability scarcely existed at the time (besides which, most products were made locally). Since the 1950s, however, product liability has developed into a huge body of litigation which in the typical case invites a state to second-guess design or marketing decisions made in a faraway company headquarters. If liability is found, one of the state�s own voter/citizens will normally reap the financial benefits, while shareholders and others in distant states will pay the price. Do states respond to these incentives by tilting the playing field in favor of plaintiffs? You bet they do. You write that each state should be left to make laws in its own foolish way �so long as [it] internalizes the costs of its behavior�. But in products liability that doesn�t happen (PDF).

Let me return to my observation from the previous round about the Framers� views and intentions. As the Constitution�s text shows, they were well aware of state governments� tendency to engage in beggar-thy-neighbor games, nor were they the least bit shy about ousting state courts from wide sectors of commercial litigation that might tempt them into such game-playing. They chose to kick the state courts out of bankruptcy, maritime and (at Congress�s discretion) diversity-of-citizenship cases, even though the predictable result was to involve the federal courts from the start in hearing many disputes that are both very small and very local. If a s�ance were to be conducted to summon the opinion of the reincarnated Framers today, you may be quite right that they�d want to leave most of tort law on the �local� side of the line; car crashes, slip-falls and medical errors are usually primarily intrastate in their legal implications. But I�m equally confident that they�d assign today�s product liability to the �national/commercial� side of the line.

Okay, I�ve talked the Commerce Clause into the ground, which leaves little time this round to examine the other enumerated powers on which Congress might rely in intervening against the gun suits. You mention, for example, the Full Faith and Credit Clause and the authority it gives Congress to prescribe �choice-of-law� rules (and perhaps other decisional rules) to state courts. I�ll defer discussion of that one because I sense a lurking danger we�ll wind up agreeing, and you know how dull readers find it when that happens. The other is the Second Amendment itself, which you agree might be implicated (in conjunction with the Fourteenth Amendment�s Due Process clause) in extremity should gun rights become endangered. In fact the pre-emption bill in Congress does cite the Second Amendment as well as the Commerce Clause as a source of authority.

Before I turn over the mike, though, I want to take issue with the notion that the firearms litigation, because it�s proved so far to be mostly a dud with the courts, has not seriously threatened anyone�s rights. Yes, it�s true, judges have thrown out most of the municipal cases. But some have been allowed to go forward, and the antigun lawyers made it a conscious part of their strategy from day one to shoot off a large number of arrows knowing that most would fail of their target. They don�t have to land many: these are often �bet your company� cases. And in fact, as I note in my recent book The Rule of Lawyers (just out in paperback!), the lawsuit campaign even without a durable court victory has inflicted serious hardship on the gun-making and -selling trade nationwide. It�s interfered with the availability of credit and insurance for those in the trade. It�s led to the discontinuance of existing lawful product lines desired by consumers and to the abandonment of contemplated ones. It�s pushed family businesses to the wall. Most striking as a policy matter, it led directly to the abortive settlement that the Smith & Wesson company tried to enter into, its chief executive announcing at the time that he saw capitulation as the only alternative to being ruined by litigation costs. The S&W deal starkly revealed the lawsuits� agenda: the company agreed to extensive controls on gun-selling by which the freedom of action of its buyers and dealers would have been significantly curtailed. As it happens, we got lucky: the deal collapsed. Must we count on getting lucky every time?

"Home cooking" off the menu?

July 22, 2004 10:17 AM

I�ve held off from agreeing the way a bel canto singer holds off from taking a new breath, but I can stand it no longer. I agree that a strong loser-pays rule would be desirable in itself and would have tended to forestall the gun litigation (or at least forced its sponsors, such as the Brady Center, to write a big check to their vindicated opponents, a sight it would warm my heart to see). I agree that the Constitution is not a mandate for the courts or Congress to �perfect� society or correct every bad state law so long as the erring states are not exerting a redistributive or otherwise coercive effect on residents of other states. I agree that the improvement you propose in federal diversity jurisdiction, which would give out-of-state defendants a more robust right to have their cases heard in federal rather than state court, would be worthwhile in itself and would also have discouraged the gun suits. And finally, I agree that federal choice of law legislation would be clearly constitutional under both your and my criteria and, as you say, �would go far to making sure states did not externalize their havoc�.

There, I feel better. Let me expand a bit on this last question of choice of law, a topic that has fascinated me ever since my colleague Peter Huber called my attention to its importance long ago. (I gave it a chapter of its own in The Litigation Explosion.) The scope for abuse afforded by modern choice-of-law developments can be seen in the gun cases. Let�s say activists organize a suit seeking to force gun makers to pay for the costs of gun crimes in New York City, a place where few guns are sold (because gun control laws are so strict) but plenty of bad guys commit shootings. The guns were originally sold by dealers in states like Virginia and after changing hands (often many times) arrived illegally on Gotham streets. The suits contend that it was legally wrongful for the manufacturers to ship the Virginia dealers all the guns they asked for. And in determining the merits of this claim, the suits will probably ask New York to apply not Virginia�s relatively business-protective law, but New York�s relatively pro-plaintiff law.

Plaintiff�s lawyers love this sort of ploy because it lets them shop around for favorable laws, but it�s grossly unfair both to the company getting sued and to Virginia itself, which stands to lose its right to establish the legal rules governing its own commerce. As you point out, Article IV, Section 1 of the Constitution gives Congress a sweeping grant of power to remedy matters, in the second sentence that follows: �Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.� In other words, Congress may instruct courts in New York�s position to give effect to Virginia law regarding manufacturer liability for sales. It has often occurred to me that the final clause, empowering Congress to specify the �effect� one state�s laws must be given in other states, could be the basis for not just the drawing up of a federal choice of law scheme on product liability (as you propose) but also for various other helpful interventions, such as a federal law prescribing that states refrain from imposing global punitive damages against a nationwide course of conduct by a defendant that would not have been subjected to equally severe punishment under the laws of other states.

Enthusiastic as I am about reform of jurisdiction and choice-of-law, I still have doubts as to whether a combination of those two kinds of reform will fully suffice to end state courts� motive and opportunity to siphon wealth from distant shareholders and corporate treasuries. In some of the notorious courts of Alabama, Mississippi and Gulf Coast Texas, they don�t call the solicitude for local claimants and lawyers �cost externalization�, they call it �home cooking�. Think about the wildest cases from the Jackpot Belt -- you wrote a great article about the $500 million Loewen verdict in Mississippi -- and I think you�ll agree that not all of them arose from ambitious assertions of jurisdiction or applications of an inappropriate state�s law.

On another note, I�m not sure I agree with the contrast you draw between the supposedly ravaging effects of a gun pre-emption bill -- �destroying the dual sovereignty that underlies our republican system of government�, as you somewhat hyperbolically put it -- and the putatively respectful and kid-glove handling of state sovereignty embodied in your own preferred reform proposals. By expanding federal diversity jurisdiction, you�re proposing to grab many or most of the salient cases entirely away from the state courts; and by fixing mandatory choice of law rules, you�re telling them that they also can�t get their law applied. I guess the message to the state courts is that we�re taking the crust and we�re taking the filling, but you can still have the pie. It seems to me that the pre-emption bill in certain respects represents a less drastic entrenchment on the state courts: it leaves them hearing the cases, even (too indulgently!) leaves them applying their own law to other states� transactions, but merely instructs them not to put into effect wholly novel decisional rules that if adopted would have an immediate and grossly unwelcome effect on a large number of citizens of other states.

You know what? We still haven�t talked much about the Second Amendment, although we both regard it as a crucial element in our respective analyses. I promise to get to that in my next (and final) round.

My approach to the Second Amendment differs from yours. I don�t try to keep up with the literature on how changes in gun availability may affect crime and accident rates, although I�m aware that it�s quite contentious and I gather that relatively few empirical assertions are accepted by both sides. On the other hand, I�m keenly interested in the historically held view of private gun ownership as providing, in your words, �insurance against lawless aggression. ... by government.� This topic gripped the American patriots of the Revolutionary Era, and English patriots for centuries before that, because they believed that public liberty would not remain secure indefinitely if the authorities had guns and the people did not. If they were right to hold that view, then trends in the safety of firearms as a consumer product may be beside the point. (Indeed, as I understand it, the right to bear arms was enshrined in the Bill of Rights at a time when guns often blew up in their owners� faces.)

The other thing about the Second Amendment that fascinates me is the way our courts have decided that they are not under the slightest obligation to enforce it, and have instead declined to intervene as various localities in the U.S. have more or less completely suppressed their citizens� right to gun ownership. It�s hard to read the first two entries in the Bill of Rights without wondering what life would be like if some mysterious potion in the courthouse water fountain compelled courts to give roughly the same force to the word �infringed� in the Second Amendment as they do to �abridged� in the First (on press freedom), as common usage would suggest. Either they�d have to gut the protections they now accord to press liberty (and it would become impossible to obtain a printing-press permit in many cities without having a friend at City Hall, just as it�s now impossible to get a gun permit), or else they�d have to start taking the Second Amendment seriously.

As we know, state court actions carried out in the name of common law can come into conflict with vital Constitutional liberties. Here�s a high-profile example -- you�ll probably have no trouble guessing which case I�m describing. A big company is in the business of manufacturing and distributing a product to a nationwide market, though it sells more of the product to consumers near its headquarters. Although this enterprise is respected and admired in many quarters of American society, and although the manufacture, sale and distribution of its product is specifically protected by the Bill of Rights, it is bitterly disliked in some other sectors of society. It gets sued on common-law tort theories in a distant and ideologically hostile jurisdiction, where public opinion is soon whipped up against it. The incensed jury slaps it with a painful judgment, and after failing to prevail on appeal the big company asks the federal government to step in to overturn the result and (as its critics would say) save it from having to pay its victim. The feds agree and proceed to bail the company out, imposing a new decision rule on the state courts to replace the earlier common-law rule which (they explain) had too chilling an effect on the availability of the company�s Constitutionally protected product. The ruling meets with tolerably widespread approval, but a few vehement naysayers -- the editorial board of the New York Times, for instance -- complain that federal pre-emption chips away the legitimate sovereignty of the state courts and insulates corporate malfeasance from accountability.

Just kidding about that last bit. Because of course the case I�m describing is New York Times v. Sullivan (1964), in which the Supreme Court sharply curtailed (though it did not eliminate) publications� exposure to traditional state libel law, citing the tendency of that law to chill free speech. And naturally the New York Times editorial board, which today inveighs vehemently against every scheme to limit anyone else�s liability, offers no apologies for the success of its own sweeping version of tort reform, the one to which its own name is attached.

I bring all this up not just to tweak the Times (though that is fun) and not because I necessarily disagree with the outcome of Times v. Sullivan. Indeed, it seems to me entirely plausible that the threat of unbounded defamation liability will chill some responsible and truthful criticism of public officials, just as the threat of unbounded liability in medicine chills a lot of socially beneficial work by medical professionals, and just as the threat of unbounded product liability chills the legitimate firearms trade. Commendably sensitive to free speech values, the high court was not afraid to tread fairly hard on the toes of state sovereignty.

But here�s a thought-experiment: suppose it had been Congress that had perceived the clash between libel law and the First Amendment and acted to curtail the state courts� authority? Suppose the parties in the Sullivan case had for whatever reason not chosen to pursue their controversy to the high court, but that instead supporters of press freedom had prevailed on federal lawmakers to enact a statute exactly embodying the distinctions we now associate with the Times v. Sullivan decision (�public figure�, �actual malice�, etc.), pre-empting state courts from adopting tort theories more favorable to libel plaintiffs. Would this hypothetical law have been somehow illegitimate or constitutionally infirm? It�s hard for me to see why: Congress is sworn to uphold the Bill of Rights and it's supposed to wield the powers necessary and proper to do so. Nor would it have been obliged to wait until a First Amendment train wreck had manifested itself and Northern newspapers had started closing down under the impact of Deep South liability verdicts. By analogy, if it could pre-empt certain suits against newspapers on a First Amendment rationale, it should be able to pre-empt certain suits against gunmakers on a Second Amendment rationale.

Well, the hour grows late, so I�m not going to get a chance to develop some of the other points I�d been working up (such as: if private law has been properly left to the states from the beginning, how do we explain the old federal common law that used to apply in diversity cases, which the New Deal Court extinguished in Erie v. Tompkins?). I�ll just say that I have greatly enjoyed the cordiality of our exchange and the spur it has provided to further thinking on my part. For readers who've liked what they�ve read, I have good news: Michael is soon going to add his voice to the multiparticipant weblog on the front page of Point Of Law, and you can already find me there (as well as at Overlawyered).

Again, many thanks.

Will Wilson, of AEI's Federalism Project, gives us this analysis:

The shortlist of �most inventively and aggressively extraterritorial rent-seeking AGs� reads: Spitzer, Lockyer, Crist, and Blumenthal. Two of these chaps, Crist and Spitzer, will most likely move into their respective governor�s mansions in a few months. General Lockyer has been term-limited into a probable position as Treasurer Lockyer. An important question, then, turns on Richard Blumenthal: Will the thus-far short-lived Spitzer approach�what Michael Greve calls indictment-driven inverted federalism�catch on institutionally, or will it die off when General Spitzer and his generation leave office this fall? A Blumenthal victory would go a long way toward keeping AG litigulation at the helm of national economic and industrial policy decisions.

Fittingly, Mr. Robert Farr, Blumenthal�s challenger, has centered his campaign on �silly suits� and the role of the attorney general from a public choice standpoint. Of course, his campaign strategy is a bust, if laudably so. What sane Connecticutter would vote against an AG who redirects out-of-state money into Connecticut�s coffers? One commenter on the Connecticut Local Politics blog described Blumenthal: �he is a very proactive AG and he does push the limits of his statutorily granted authority. For the most part, however, I think it has been to the benefit of the people of CT.� (Some would add that he pushes the limits of his constitutionally granted authority as well.) But that description captures the impossibility of Farr�s campaign�as well as the collective action problem presented by Spitzerism. No sensible state would stop scraping the surplus of the others while itself being scraped by them; they must all be locked into a �federal jurisdiction in federal matters� paradigm. To update an old phrase, they must be hung together, else they most assuredly will hang each other separately.

Since no voter would opt-in to that scheme voluntarily, Farr has to make his pitch more realistically palatable. To do so, he has adopted a slightly different tack: he highlights cases in which Mr. Blumenthal�s litigation has itself cost more than the eventual settlement or award has brought back to Connecticut. His minister of Silly Suits radio ad, for instance, notes a suit against the Big East Conference in which Connecticut grossed $1M, but netted negative $1M due to high legal costs. Of course, such an attack plan is just barely more politically productive than simply reading James Buchanan�s complete works over the airwaves.

And this raises a second hurdle over which Farr, and all parties interested in reversing the AG power trend, will have to leap: surplus swiping lawsuits come with a built-in publicity apparatus. The AG announces a new multi-million dollar settlement and�voila!�he no longer needs to campaign. (If that sounds like hyperbole, try google searching for Richard Blumenthal�s campaign website.) Such settlements are necessarily appealing to rational, self-interested voters. And the AGs have another inherent political edge that even incumbents to other offices do not have: unlike legislators, they need not share their coups with others; unlike governors, they are mostly unconstrained by the legislature. Sue as you like, settle for what you can get, and take all the credit.

Barring a federal intervention into a true collective action void, no sane voter will stop them. Inasmuch as this AG trend cuts across both parties equally (the unwritten bipartisan agreement to fleece globally), inasmuch as Congress fears rocking the boat, and inasmuch as the states themselves will never voluntarily want out, no preexisting institutional mechanism will halt the trend any time soon. Eliot Spitzer�s move will not clot the hemorrhaging of global surplus via settlements; the Blumenthal campaign (if you can find it) et al. will see to that.

Oklahoma, Arkansas AG races

November 6, 2006 9:14 AM

Oklahoma Attorney General Drew Edmondson, much criticized (here, here, and here; see also here and here) for hiring campaign-donor law firms and Motley Rice to pursue potentially lucrative chicken-lot-runoff lawsuits on a contingency fee, appears far ahead in his race for re-election, though Republican challenger James Dunn has campaigned on the issue. In Arkansas, attorney and state representative Dustin McDaniel, who in private practice sued gun manufacturers after the Jonesboro school shooting, is well ahead of a Republican rival; meanwhile, the state's current AG, Democrat Mike Beebe, is favored in a bid for the governor's office.

Delaware, Maryland AG races

November 6, 2006 1:59 PM

Joseph R. Biden III, otherwise known as Beau Biden, is the son of Senator you-know-who. He's now running for Delaware attorney general, locked in a tight race with Republican Ferris Wharton that has attracted large out-of-state donations on both sides. As Ted pointed out last July, citing a Madison County Record report, "the SimmonsCooper law firm has affiliated itself with the 36-year-old's Delaware law firm in bringing asbestos lawsuits in Delaware, presumably because Madison County is no longer available as a blank-check venue."

Next door in Maryland, meanwhile, Montgomery County D.A. Doug Gansler is expected to win easily as the Democratic candidate for attorney general of his state. According to the AP, "For models, [Gansler] looks to New York's Eliot Spitzer and Michael Moore, the former Mississippi attorney general who sued tobacco companies. Gansler consulted with both during his campaign." Not recorded is whether Moore gave him tips on how to steer billions in contingency-fee legal work to cronies and campaign backers.

The Florida attorney general's office is opening up because of Republican incumbent Charlie Crist's bid for the governor's mansion (in which he appears to be narrowly ahead as of this writing). The battle to succeed him pits Democrat state senator Skip Campbell, a plaintiff's trial lawyer, against longterm U.S. Rep. Bill McCollum. Liability reform is said to be the chief issue in the race. A poll last week had the two tied, but a new one shows McCollum with an eleven-point lead.

Meanwhile, three members of the Florida Supreme Court's liberal majority (Barbara Pariente, Fred Lewis and Peggy Quince) are on the ballot for retention, and are expected to cruise to easy wins with few if any voices raised in opposition. Scripps columnist Kenric Ward finds this peculiar given the justices' record of questionable, and deeply controversial, decrees on matters ranging from the Gore recount to the striking down of school vouchers (he might have added a number of the court's liability rulings).

Not your usual AG candidate

November 7, 2006 7:22 AM

Former California Gov. Jerry Brown is overwhelmingly favored to become the state's next attorney general, but don't assume he'll necessarily follow in the footsteps of Bill Lockyer:

"I'm going to take a very practical, common-sense approach as attorney general," Brown said in a recent interview. "I'm someone who's acutely aware of the fact that we as a state have added 25,000 laws since I was governor. I think we ought to give people some space to live their lives." ...

And don't assume that he will agree completely with Lockyer's decisions. Asked about the global-warming lawsuit, Brown said he'd have to "take a good look at it."

"I think there's an issue of causation there," he said, adding that California needs to consider automakers' "imploding" financial situation. ...

"He was the first politician to turn litigation into a press release [as California Secretary of State, elected in 1970]," said Hiestand, the former Brown aide [Fred Hiestand, now prominent in California litigation-reform circles].

In post-Watergate 1974, the reform-minded Brown was swept into the governor's office. One year later, Brown and the Legislature were besieged with pleas from doctors facing skyrocketing malpractice insurance costs. Brown called a special session that would eventually lead to the Medical Injury Compensation Reform Act, or MICRA, California's law capping pain and suffering awards at $250,000.

Hiestand remembers philosophical discussions with Brown on the best ways to compensate malpractice victims. After graduating from Yale Law School in 1964, Brown clerked for state Supreme Court Justice Mathew Tobriner, a contemporary of tort expert and future chief justice Roger Traynor. Brown, Hiestand said, recalled Traynor's critical dissent in a 1962 case where a woman injured on a bus was awarded $134,000 for non-economic damages. Traynor said such awards were troubling because they are tied to subjective amounts of pain and suffering.

"At one point Jerry looks at me and says, 'Money is a false god. If you're in pain, you should turn to religion, sex or drugs,'" Hiestand said.

(Cheryl Miller, "Former Calif. Gov. Jerry Brown Runs for State Attorney General", The Recorder/, Oct. 16).




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.