April 30, 2008

Protection of Lawful Commerce in Arms Act upheld by Second Circuit

There is no truth to the rumor that the appellants' brief began "This is an appeal from a decision by Judge Weinstein of the Eastern District of New York, and there are also other reasons to reverse." Weinstein struck down the immunity legislation on questionable grounds, after previously permitting a public nuisance suit to proceed. The court found that the PLCCA did not violate the Commerce Clause, separation of powers, or the Tenth or First Amendments. The Second Circuit decision was 2-1, so there is likely to be further litigation. [Bashman roundup of links] (h/t M.B. & C.W.)

April 16, 2008

Contingent Fee Lawyers Lose Case, Use Outrageous Trial Tactics, Still Get $218M in Fees

The Daily Business Review reports that Miami-Dade Circuit Judge David C. Miller has awarded $218 million in legal fees Tuesday to Stanley and Susan Rosenblatt for work they did on the now-dismissed class action litigation against the nation's biggest cigarette markers. "I find it very reasonable," Miller said from the bench, referring to fee calculations estimating the couple worked for 77 hours a week on average at an hourly rate of $274. "These are reasonable and conservative hours."

"In fact, in some firms that would not have been acceptable billing," the judgee joked before a courtroom packed with at least 200 people.

Incredibly, the fees would come out of a common "guaranteed fund" of about $800 million that Big Tobacco put up as legally required collateral in 2001 to appeal the record $145 billion punitive verdict the Rosenblatt's had obtained against cigarette makers. The verdict was later thrown out by the Florida Supreme Court along with a class certification order uniting sick smokers in a single lawsuit. The court also rebuked the Rosenblatts' craven appeals to racial prejudice of jurors.

The judge still must determine how to distribute the rest of the $800 million fund.

Tobacco attorney Robert Heim, a partner with Dechert in Philadelphia, argued that "it would be wrong under common fund law" to award fees to the Rosenblatts, saying a guardian ad litem should be appointed to administer a fund "to protect the interests of the class."

This fascinating case is of course a mockery of the contingent fee (the lawyers collected nothing for their clients) and demonstrates the corrupting effect of supersedeas bonds.

April 11, 2008

"State Judicial Selection: Once More Unto the Breach"

Cumberland/Samford lawprof Michael DeBow, an occasional contributor to this site, weighs in on the judicial-selection debate (on the election side) in this article in the Federalist Society's Engage.

April 4, 2008

Whelan on Posner's How Judges Think

Ed Whelan extensively comments on Judge Posner's new book, How Judges Think:

What we have is not a book that sheds any particular insights about how judges actually think, but rather a book that, in the end, is really much more about how Judge Posner thinks judges should think.

Of course, that in and of itself will be interesting.

Wisconsin Supreme Court redux

Judge Diane Sykes, who formerly held the seat contested by Louis Butler and Michael Gableman before joining the Seventh Circuit, gave a 2006 speech with a discerning analysis of the leftward drift of the Court after Butler replaced her.

Separately, I'm still waiting for one of the proliferating non-partisan organizations campaigning against judicial elections to speak out against trial-lawyer influence in judicial elections and selections. If judges respected their role in constitutional government, there wouldn't be cause to campaign against those who don't; if judges have the capability of acting as super-legislators, then voters can hardly be blamed for wanting a say on who is a judge.

April 2, 2008

Wisconsin: voters halt court's leftward drift

In a race that drew heavy nationwide attention and charges on both sides of underhanded campaigning, conservative challenger Michael Gableman narrowly upset incumbent Wisconsin Supreme Court justice Louis Butler. In the now-familiar pattern of state high court battles, Gableman had been backed by business groups, Butler by trial lawyers and unions. The result may be to tip the balance on the court away from the steady expansion of liability that has characterized its recent decisions in areas like lead paint and medical malpractice. (Wisconsin State Journal, Badger Blogger, Freedom Eden, Milwaukee Journal Sentinel). Earlier here.

More: NAM "Shop Floor" multiple posts here, here, and here; Dan Pero; Althouse.

April 1, 2008

Wisconsin high court vote today

Voters in Wisconsin go to the polls today in a race that might (or might not) serve as a referendum on the Wisconsin Supreme Court's recent pro-plantiff lurch. Justice Louis Butler, closely identified with that lurch and in particular with the court's opening of lead paint liability, is facing a challenge from Judge Michael Gableman, who's strongly backed by business groups. Earlier here. Separately, an appeals court race on today's ballot may be causing friction between Gov. Jim Doyle and the state's organized plaintiff's bar, up to now close allies. More: The WSJ had an editorial last week on the high court race. Update: Gableman wins narrowly, tipping court's probable balance.

March 20, 2008

Anti-business lawyers outgunned at Supreme Court?

Jeff Rosen's Times Magazine piece quoted David Vladeck to that effect, but Eugene Volokh finds that Vladeck's recollections seem to be faulty.

NYS Board of Elections v. Lopez Torres

The Supreme Court decision on New York judge-picking, previously discussed here, here, and here, is now the subject of a Federalist podcast featuring Matt McGill of Gibson, Dunn & Crutcher.

March 15, 2008

"Ohio's high court back on right track"

David Owsiany of the Buckeye Institute praises recent trends at the Ohio Supreme Court, not least its willingness to acknowledge that just maybe elected legislators might have a role to play in laying out the bounds of liability law. Related: Kurtis A. Tunnell, Anne Marie Sferra, Miranda Creviston Motter for Washington Legal Foundation, PDF; Genova.