June 29, 2009

Putting a hold on Cass Sunstein for the regulatory post

The Hill reports that Sen. Saxby Chambliss (R-GA) is blocking confirmation of Harvard law professor Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs. As described in "Chambliss blocks regulatory pick over animal lawsuits," farm groups are also raising warning flags about Sunstein, and the American Conservative Union has created a StopSunstein website.

Sen. Susan Collins (R-ME) asked Sunstein about these hot button issues -- and the Second Amendment -- during his May 12 confirmation hearing before the Senate Homeland Security and Government Affairs Committee. Sunstein stressed his belief that his role at OIRA would be to implement the statutes, and explained his discussion of animal rights was theoretical and academic. We've transcribed the exchange, which includes this from Sunstein:

In terms of my own academic writings, the suggestion, which was meant as a suggestion for contemplation, was that under state law that prevents cruelty to animals, it might be that the enforcement by criminal prosecutors could be supplemented by suits by private people protecting animals from violations of existing state law, very much like under the Endangered Species Act, where people, rather than elephants, initiate lawsuits.

The idea was actually very conventional and a little boring, but maybe my rhetoric made it seem less so.

That's not such a great idea, using the litigation-inviting Endangered Species Act as a model for further legislation. But stopping his confirmation is a bum idea, too.

Continue reading   Putting a hold on Cass Sunstein for the regulatory post

June 26, 2009

Out with a whimper: California AG vs. automakers on global warming

"With far less fanfare than it generated when it was launched, California's battle to hold six car companies liable for contributing to global warming has come to an end. In a ruling on Wednesday, the U.S. Court of Appeals for the Ninth Circuit granted the state's June 19 motion for voluntary dismissal, ending California's three-year fight to extract hundreds of millions of dollars from the auto industry." [David Bario, AmLaw; Amanda Bronstad, NLJ] Our earlier coverage of the Bill Lockyer/Jerry Brown nuisance-law folly is here, here, here, and here.

June 12, 2009

Judge Weinstein on mass torts

The federal judge identified more than any other with mass-tort innovation recalls highlights of the field's development in the Cardozo Law Review's new online supplement. Weinstein credits brilliant lawyering with saving the tobacco industry (so far) from ruin, continues to begrudge the consensus of national opinion (as expressed through Congress) its right to cut off the handgun suits, and lays blame in multiple directions for the many failures of asbestos litigation. And he speaks up strongly at several points for judges' obligation to prevent the charging of excessive attorneys' fees. Also of note: "The breast implant litigation was largely based on a litigation fraud."

Weinstein's unrepentantly activist view of the judicial role fascinates, but also "scares the bejeesus out of", Beck & Herrmann. More: AmLaw.

Around the web, June 12

• Wisconsin lawmakers drop proposed return of all-out joint and several liability, but governor signs into law big damages expansion in workplace litigation [WTMJ, WRN, Wisconsin Business, Insurance Journal]
• Federalist Society Online Debate series tackles Employee Free Choice Act with Thomas Kochan and Patrick Szymanski pro, Richard Epstein and Eugene Scalia con [print version now online]
• Motley Rice brief in Santa Clara case urges California high court to uphold contingency fees [Genova, part of a series on the briefs, more here and here]
• Lawyers' insistence on punitive damages derails New Jersey push for bad faith auto insurance cause of action [NJLRA]
• Mississippi AG Jim Hood extracts $40 million from Microsoft, and his contract lawyers should be happy too [Clarion-Ledger, N. Miss. Commentor] More: YallPolitics on settlement deal including roles of Susman Godfrey and Boies Schiller: first, second, third, fourth.
• Behrens, Fowler, & Kim, "Global Litigation Trends" [Michigan State Journal of International Law, PDF courtesy Robinette/TortsProf]

June 2, 2009

Cities' "subprime lending as nuisance" suits, cont'd

Now that a federal judge has dismissed Cleveland's action against mortgage lenders, one might hope these ill-advised suits would go away. Alas... Earlier here, etc.

May 22, 2009

D.C. Circuit deals tobacco firms big loss in RICO action

Jacob Sullum, Bloomberg, the NLJ and the WSJ report on and discuss today's verdict.

May 19, 2009

Down in flames...

...goes the City of Cleveland's public-nuisance lawsuit against subprime mortgage lenders. Earlier here, here, here, here, here, etc. More: Kevin LaCroix. And Kevin Funnell wonders whether the state AGs are due to jump in next. (Plus: Carter @ ShopFloor and more).

May 18, 2009

Cap and trade, the litigation angle

The House Energy and Commerce Committee has just begun marking up H.R. 2454, the American Clean Energy and Climate Security Act, in its latest form just 946 pages of directives, mandates, ukases, orders and some credits thrown in for negotiating purposes.

One provision that's missing from earlier versions is the "citizen lawsuit" language that would have invited activists groups and their allies in the litigation world to sue for violations of the Clean Air Act. The committee staff of Sen. Jim Inhofe (R-OK) had a quick summary of why that language would have been so objectionable here, and the Competitive Enterprise Institute's Marlo Lewis warned against it here. However, CEI's Myron Ebell, who chairs the Cooler Heads Coalition, reports its absence from the latest draft.

Any legislation that seeks to regulate economic activity that emits carbon dioxide will by its very command-and-control nature invite litigation, but at least the most obvious avenue has been excised. For now.

April 15, 2009

Rhode Island: Motley Rice's McConnell tagged for federal bench

John J. "Jack" McConnell Jr. of South Carolina-based Motley Rice, considered a key architect of the close alliance between the trial bar and the Rhode Island Democratic Party that led up to the state's failed litigation against lead paint companies, has been tagged for a seat on the state's federal district court by Sens. Sheldon Whitehouse and Jack Reed (both D-R.I.). [Providence Journal via Genova] As I noted eight years ago (see also this update from David Nieporent and this summary from Jim Copland), an investigation by Forbes found that after McConnell opened a Motley branch office in Providence, the firm quickly established itself as Rhode Island's largest political contributor for the 2000 elections, and McConnell himself became treasurer of the state party (and a key donor ever since, including to campaigns of Reed and Whitehouse). Whitehouse (as state AG) then proceeded to hire the Motley firm to conduct the state's much-publicized lawsuit seeking to assign the costs of lead paint cleanup to companies that produced the paint many decades earlier. That suit would have yielded enormous returns (and legal fees) had it succeeded, but in the event proved to be too drastic a stretch of legal principles for the courts to accept. For McConnell, though, at least, if not for many of the others involved, the whole episode seems to have resulted in a happy ending.

April 14, 2009

Maryland General Assembly passes on civil justice changes

Maryland's legislature adjourned last night, having generally passed on civil justice-related legislation during the session. The Maryland Chamber of Commerce summarizes:

Civil Liability: The 22 civil liability bills that the Chamber took positions on were put down in order. While we had favored a few short-lived tort reform bills, veteran proposals on false health claims, market share liability for lead paint and increased economic damages for wrongful death were all left stranded.

Especially welcome is the defeat of HB 1156, a market share liability bill limited to Baltimore: "Requiring specified manufacturers of lead pigment to reimburse specified persons for damages caused by lead-based paint in residential buildings in Baltimore City; establishing the types of damages caused by the presence of lead-based paint in residential buildings in Baltimore City for which manufacturers of lead pigment are liable to specified persons; creating the Lead Paint Restitution Fund; etc." More from the Chamber on the bill.