April 29, 2008

Around the Web, April 29

• Loyola Law Professor Rick Hasen, who blogs at ElectionLawBlog.org, has numerous links with reaction to yesterday's Supreme Court ruling in the Indiana voter ID suit. His initial analysis is here. John Fund of The Wall Street Journal is the leading journalistic commenter on voter fraud, and in his "A Victory Against Voter Fraud," he argues, "The Supreme Court had to deal with the claim that such laws demanded the strictest of scrutiny by courts, because they could disenfranchise voters. All nine Justices rejected that argument."
The Journal also editorialized.
• From The Recorder, via Law.com: "The Judicial Council will consider new rules for electronic discovery in California, a long-awaited package that's been received warily by the high-tech industry."
• A new tort reform group to be launched Wednesday in Missouri, the Missouri Justice Alliance, a project of the Missouri Chamber Legal Foundation. Judging by the media advisory, it's quite the event, even featuring Chris Manning of Manning & Sossamon, the D.C. attorney who defended the Chungs in Judge Roy Pearson's $54 million lawsuit over misplaced suit pants. And a satellite feed for a local news conference...huh. The key lobbying target is HB2241, entitled, "Changes the laws regarding merchandising practices, the requirements for maintaining an action for unlawful merchandising practices, and the qualifications of expert witnesses in civil actions."
• The Chamber's LegalNewsLine story, "Lead poisoning at new low in Rhode Island," highlights a new state study, "Childhood Lead Poisoning in Rhode Island." And in New Jersey, the Star-Ledger reports: "Gov. Jon Corzine today is expected to sign an executive order on lead abatement after accepting a report from the state Public Advocate on the dangers of lead paint."
• Michigan is the latest Legislature to see an outbreak of insurance companies versus trial lawyers (labor, consumer groups, etc.), in this case over a bill that would motorists to choose less expensive insurance coverage. From AP: "Michigan is the only state to require unlimited personal injury protection benefits, which policyholders pay for through a $123 annual fee per vehicle. Legislation introduced last week in the state Senate would let motorists choose medical coverage worth between $50,000 and $400,000, or continue paying for unlimited coverage through the Michigan Catastrophic Claims Association." The Detroit Free Press has more about this effort by a new group, "Drivers for Savings."
• Today's Diane Rehm show (WAMU in Washington and nationally broadcast on NPR stations) examines the issues of bisphenol A (BPA) in plastics. The guests are stacked on the public health, big threat, regulate/ban now! side, but at least Steven Hentges of American Chemistry Council is there to respond. (Program details.) We wrote about the issue and biased news coverage in this post.
• In Rex Morgan, M.D., news, TV-adverting attorney Max the Ax has now had a news conference to attack the local doctors and hospital for failing to stop an outbreak of drug-resistant staph infections.

April 28, 2008

Supreme Court Upholds Indiana Voter Photo ID Law

A 6-3 ruling in Crawford et al. v. Marion County Election Board et al. The opinion is available here, allowing states to require photo identification for casting a vote. Majority opinion written by Justice Stevens, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito in the majority. Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer dissented.

Bloomberg story highlights the purported political benefits to Republicans. Reuters essayed a more straightforward story.

April 9, 2008

Recent opinion roundup

• Third Circuit affirms preemption in split decision in Colacicco v. Apotex Inc.. [Beck/Herrmann; Legal Intelligencer/law.com via TortsProf; Pharmalot; earlier: Dec. 2007]
• More on McLaughlin v. American Tobacco Co. (Apr. 3) decision. [Scheuerman; Sebok @ FindLaw; NYLJ/law.com; Class Action Defense blog; NY Times; NY Sun]
• Seventh Circuit affirms dismissal of scheme liability allegation. [Pugh v. Tribune Co. via Roberts]
• L.R. writes us: "In Egelhof v. Szulik, 2008 WL 352668 (N.C. Super. Feb. 4, 2008) a NC state court banned Robbins Umeda & Fink (one of the leading plaintiffs firms for derivative suits - Robbins is the brother of the Robbins at Coughlin Stoia) from appearing in NC courts for five years because of their mishandling of a derivative case against Red Hat. Notably, they put up a plaintiff with whom they had had virtually no contact and who was obviously unsuited to bring the case." [Triangle Business Journal]
• Split decision in Tenth Circuit: okay to sue expert for testimony that hurts your case. (The expert changed his mind at a deposition after opposing counsel showed him evidence that the propounding attorney chose to conceal from the expert in soliciting his opinion.) Dissent from recently appointed Judge Gorsuch correctly bemoans effect on truth-seeking function of judicial system. [Pace v. Swerdlow; Overlawyered roundup of links]
• Aside from the Scruggs disqualification, two Katrina decisions, both of them good for the rule of law and contract: Sher v. Lafayette Insurance Co. (La.) reverses court decision declaring flood exclusion ambiguous; Fifth Circuit reverses JMOL and vacates punitive damages in Broussard v. State Farm (see earlier discussion Jan. 2007). (Updated to add: the whole point of this bullet point was to highlight the continued excellent blogging of David Rossmiller, and I somehow failed to do so. Apologies.)
• Perhaps less good for the Rule of Law: SCOTUS rules that Federal Arbitration Act is not sufficiently flexible to permit parties to voluntarily contract for additional judicial review of arbitral decisions. Why the arbitration industry thought this would be a good result is beyond me: the point of arbitration is to permit parties to contractually select rules of decision outside of the default rules, not to create a second inflexible default. [Hall Street Assoc. LLC v. Mattel, Inc.; Sarah Cole on other problems] However, the National Arbitration Forum suggests that a recent Judge Posner opinion, Edstrom Industries, Inc. v. Companion Life Insurance Co., 516 F.3d 546, 550 (7th Cir. 2008), shows that the Hall Street ruling is narrow, because parties have other mechanisms to contract around the limited judicial review to ensure review of legal decisionmaking.

March 31, 2008

Is Death Different?

The great Judge Danny Boggs will be speaking at AEI April 7:

The imposition of the punishment of execution for certain heinous crimes has been a matter of intense controversy in the United States and especially in its legal system. Although the Supreme Court has upheld the constitutionality of the death penalty for over thirty years, battles over its application in particular cases and circumstances or to particular groups of persons has roiled our jurisprudence and strained our court systems over the same time. The phrase "death is different" has come to embody arguments over ways in which our law should or should not be altered or distorted in dealing with death penalty cases. Judge Danny J. Boggs will consider the state of U.S. jurisprudence on the death penalty, its application by the courts, and the extent to which the death penalty is--or should be--approached by courts in a way different from any other area of law.

February 29, 2008

Exxon Shipping v. Baker

I did a podcast for the Federalist Society on the Exxon v. Baker oral argument. I was also quoted in Wednesday's Christian Science Monitor about the case. Earlier: Feb. 28.

February 28, 2008

Huge Punitive Damage Award Likely To Be Trimmed, Not Eliminated

The record-setting $2.5 billion punitive damage award against Exxon for an Alaskan oil spill will likely be trimmed, but not eliminated, judging from the oral argument yesterday in Exxon Shipping Co. v. Baker. Michael Krauss, Jacob Sullum, and Ted Boutros argued earlier against the huge award. Exxon argues that maritime law precedent bars the punitive damages.

February 27, 2008

Not a "Pro-Business" Supreme Court

The Supreme Court is not, as the media claims, "pro-business" in discrimination cases, as I pointed out below. That's buttressed by today's decision against employers in Federal Express v. Holowecki. The Age Discrimination in Employment Act (ADEA) bars employees from suing until 60 days after they've filed a charge of discrimination with the EEOC. That's intended both to provide notice to the employer, and make settlement of the case prior to litigation possible. In Holowecki, the employer never received that notice, because the employee merely filled out an EEOC intake questionnaire, not a formal charge of discrimination.

But the Supreme Court, rejecting the view of at least two circuit courts, held that intake questionnaires qualify as a charge of discrimination, even if the employer doesn't receive notice of the claim prior to suit. It did so even though it admitted that "the employer's interests, in particular, were given short shrift, for it was not notified of [plaintiff]'s complaint until she filed suit." And it so ruled even though the EEOC's former chairman, Justice Thomas, dissented, stating that an EEOC intake questionnaire simply is not a charge of discrimination. The Supreme Court's ruling may or may not have been consistent with the language of the statute, but it certainly wasn't pro-business, depriving businesses of notice of potential lawsuits.

On the other hand, at least it doesn't raise potential First Amendment problems, the way the Court's ruling against business in another discrimination case (Burlington Northern v. White (2006)) did.

It's Not a "Dream Court for American Business"

I've never understood media claims that the current Supreme Court is a "dream court" for business. On employment law, it tends to be neutral or hostile to business.

An example of an even-handed decision that doesn't favor business is the Supreme Court's decision yesterday in Sprint/United Management Co. v. Mendelsohn. That case, as the Washington Post notes, "may aid those charging bias"" by allowing plaintiffs to rely on "me, too" evidence in some cases. ("Me, too" evidence is where employees claim that they, like the plaintiff, were discriminated against by the company). The Court held that some "me, too" evidence is admissible, and some isn't, taking a stance more favorable to plaintiffs than many circuit courts (although not the Tenth Circuit). The decision strikes me as even-handed, but then, I used to bring discrimination suits. Business groups weren't too thrilled with it (they tried but failed to convince the court to categorically bar "me, too" evidence).

Sometimes, the Court can be downright hostile to business in discrimination cases. For example, in Burlington Northern v. White (2006), it adopted a definition of unlawful "retaliation" that was broader than most lower courts' definition. As I explained at Overlawyered, that not only burdened business, but also raised possible First Amendment problems.

February 25, 2008

Warner-Lambert v. Kent argument

I was at the Warner-Lambert v. Kent argument this morning, which found several justices troubled about where to draw the Buckman preemption line--but also finds Justice Breyer remarkably critical of pharmaceutical product liability as a whole, suggesting that the respondents' ability to muddy the waters may lead the court to simply preempt broad swaths of pharmaceutical product liability.  Throughout the argument, the specter of the Wyeth v. Levine case early next term led both sides to punt hard questions as a matter to be resolved down the road.

Continue reading   Warner-Lambert v. Kent argument

February 20, 2008

Investors' Business Daily editorial on the Williams Punitives Showdown

Yours truly has a guest editorial in Thursday's Investors' Business Daily, describing the Oregon-USSC showdown over punitive damages.