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Vinny Sidhu
Legal Intern, Manhattan Institute's Center for Legal Policy

Ever so often, the Supreme Court hears a case that has ramifications for our very constitutional structure.These cases reach into the heart of our government to see what strictures remain between the founding generation and our own.

The Court is currently hearing oral arguments in Bond v. United States, a case dealing with fundamental issues of federalism and separation of powers. Specifically, the issue deals with the extent to which Congress can abrogate state police powers pursuant to the mandates of Congress's treaty obligations.

But in a larger sense, this case speaks to the validity of the framework of analysis the Court has employed since its inception. The presumption of constitutional analysis has always begun on the side of federalism and separation of powers; that is, the Constitution created certain enumerated powers to delegate to the federal government and left the majority to the states, so we begin our analysis from where the nexus of the power was meant to lie. In other words, our underlying premise is always to begin with federalism, and inch towards increasing federal power as circumstances might necessitate.

The Bond court has a chance to take another step towards maintaining the presumption of our Constitution by reaffirming the states' role in criminal prosecutions.

The Wall Street Journal has further details on the salient issues here, and the New York Times has more on the oral arguments here.


A new report by Josh Wright finds, says the Pennsylvania Record,

that Philadelphia courts host an especially large number of cases and have a larger docket than expected; Philadelphia plaintiffs are less likely to settle than plaintiffs in other state courts; and Philadelphia plaintiffs are disproportionately likely to prefer jury trials.

"These findings are consistent with a conclusion that Philadelphia courts demonstrate a marked and meaningful preference for plaintiffs, consistent with both the Complex Litigation Center's intention of inviting 'business' from other courts and criticisms that Philadelphia's courts provide a unique combination of advantages for plaintiffs," the study states.

The Complex Litigation Center handles mass tort cases such as asbestos lawsuits and other drug litigation or similar cases. It was designed to streamline mass tort cases and simplify resolution, but instead seems to have created a climate "inviting" to business from plaintiffs in other jurisdictions, the study states.

"While this may provide additional work for Pennsylvania lawyers, it also increases the cost of operating the civil justice system in Philadelphia and Pennsylvania more generally - a cost borne by the state's consumers and businesses," Wright's study concludes.

H.B. 1552, pending in the Pennsylvania legislature, would require suits to be filed in the county where the injury occurred. Plaintiffs' lawyers claim that the bill is unconstitutional because the legislature doesn't have authority to regulate civil procedure.

More on the Eastern District of Texas

The lede is buried in this analysis by a set of jury consultants about the Eastern District of Texas: interviews with mock trial jury participants in the Eastern District of Texas suggests widespread jury nullification of basic principles of patent law. Of course, I always take a mock trial result with a huge grain of salt; it's impossible to simulate the same degree of seriousness (or of aggravation with the delays of a real-life trial) in a mock jury. That said, analyses by jury consultants are always fascinating for what they imply but leave unsaid: if the consultants have any value, it will only be because jury trials are more like a game-show with results dependent on issues other than the ultimate truth, and the consultants are selling the keys to winning the game-show. The paper does have this extraordinary anecdote:

In 2008, Judge Ward of the Eastern District of Texas issued an order requiring anyone conducting a mock trial in the Marshall Division to reveal that a mock trial was taking place and to provide the names and addresses of the mock jurors. Mock trials had become so frequent in Marshall that the court was too often obliged to excuse jurors for cause because they had been mock jurors for the cases at hand.

The need for federal anti-SLAPP law

Paul Alan Levy documents how Dan Snyder forum-shopped to find a jurisdiction where he could harass investigative journalists who criticized him without running into anti-SLAPP (Strategic Lawsuit Against Public Participation) law. I have first-hand experience with a wealthy person trying to put himself above criticism through threatening and engaging in expensive meritless litigation, so if Public Citizen wants someone from across the aisle to support Rep. Steve Cohen (D-Tenn.)'s proposed federal bill, they should contact me.

Doctors have recently discovered the use of SLAPP suits: recently-disciplined California cosmetic surgeon Usha Rajagopal has forum-shopped a defamation suit in Virginia; Minnesota neurologist David McKee is suing the family of a patient over at least one statement on a website that he admits in a deposition to be true.


Judge Lewis Kaplan issued a 131-page opinion detailing the corruption of the Ecuadorian judiciary—as well as the plaintiffs' lawyers plans for evading the parts of Ecuadorian law that prohibit excessive attorneys' fees. Click the tags below for recent posts on the subject. [Fisher @ Forbes]

Update: And Chevron moves to disqualify Steven Donziger's attorney. [LNL]

"Lawyering unto perdition"

A Washington Times editorial opines on ATRA's "Judicial Hellholes" report—and singles out the A.G. Edwards class action settlement that the Center for Class Action Fairness challenged earlier this year. Judge Angela Quigless is often mentioned as a candidate for the federal bench. [St. Louis American]

CCAF's appellate brief will be filed early next year.


What media bias? CBS issues a press release for plaintiffs' lawyers in discussing the Brian Cole case. Cole rolled his Ford Explorer and died when he was ejected from the vehicle. But lawyers are creative sorts, and Ford was sued on the theory that Cole was wearing his seat-belt, but that it magically stopped working; Ford presented evidence that Cole wasn't wearing the seat-belt. A Jasper County, Mississippi, jury awarded the family of Cole, a marginal prospect for the New York Mets, $131 million, and CBS wonders if you, dear viewers, might be subject to defective seat-belts.

Ford, facing punitive damages, settled for an unknown amount rather than appeal for a new trial before the same judge.

Now here's what CBS didn't tell you:

  • Cole was speeding.

  • A passenger in the Explorer was wearing a seatbelt. He wasn't ejected; he survived.

  • The accident happened in Florida. So why was a Mississippi jury deciding the case? Yeah, exactly.

  • This was the third trial. The first two ended in mistrials.

  • The settlement was much less than the jury verdict, despite the possibility of punitive damages.

  • The attorneys negotiated a 50% contingent fee for themselves.

That last point was revealed when a post-settlement dispute over how to divvy up the fees resulted in a collateral lawsuit; the settlement is sitting in an escrow account until the lawyers agree how the money gets distributed. [Clarion-Ledger]

More detail on the suit at MS Litigation Review, where Philip Thomas has been covering the case since February.

Madison County asbestos

Plaintiff-friendly procedures in infamous judicial hellhole Madison County are "a cautionary tale about the power of procedural 'innovations,' the ability of a judge or judges in one location to impact the entire national system of litigation, the extreme mobility of asbestos claims and the tyranny of economic incentives." [ILR; LNL]


President Obama on Tuesday, Aug. 10, signed into law H.R. 2765, the Securing the Protection of our Enduring and Established Constitutional Heritage Act, or the "SPEECH Act." As the House Committee report summarizes, the law is supposed to discourage plaintiffs from going to foreign courts in which it is easier to sue authors for libel, Britain being the most common example:

H.R. 2765 is intended to dissuade potential defamation plaintiffs from circumventing First Amendment protections by filing suit in foreign jurisdictions that lack similar protections. Specifically, the bill amends title 28 of the United States Code to add provisions to prevent U.S. courts from recognizing or enforcing a foreign defamation judgment when (1) such judgment is inconsistent with the First Amendment; (2) enforcement would be inconsistent with Section 230 of the Communications Act of 1934, providing immunity for interactive computer services from suits based on content hosted by such services; or (3) the foreign court's assertion of personal jurisdiction over the defamation defendant is inconsistent with the due process standards of the United States Constitution. H.R. 2765 also contains a fee-shifting provision that allows a court to award a reasonable attorney's fee to a party that successfully resists recognition or enforcement of a foreign defamation judgment based on one of the grounds enumerated in the bill.

Publisher's Weekly reports the background: "Libel tourism came to international prominence in 2005, when Saudi billionaire Sheikh Khalid bin Mahfouz sued New York-based author Rachel Ehrenfeld in a British Court over her book Funding Evil. Even though the book was not published in the U.K., 23 copies purchased via the Internet provided Mahfouz with enough grounds to sue Ehrenfeld in England, where libel judgments are easier to obtain. Ehrenfeld refused to participate in the proceedings, was ordered to pay £10,000 and legal costs. In response, New York and five other states passed their own libel tourism laws."

From The Guardian blog (U.K.), "Obama seals off US journalists and authors from Britain's libel laws." See also earlier POL post.


ESPN sportscaster Erin Andrews has sued the Marriott and Radisson hotel chains for invasion of privacy, for lax security that allowed a stalker to videotape her (through the door's peephole) undressing inside her hotel room. I had raised this possibility in my Torts classroom back when Ms. Andrews' stalker, Michael Barrett, was arrested. Hotels do have affirmative duties toward their guests, and the only real issue at hand will be whether the jurisdiction whose law applies (she is suing in Chicago, but the incidents occurred in Milwaukee and Nashville) allows suits for emotional distress in the absence of physical contact or injury. The complaint alleges that the stalker was able to obtain information about Ms. Andrews' hotel room number by phoning the hotels -- if true, this is clearly negligent.

Here's the story, in the ABA Journal.

 

 

 


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