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August 2009 Archives

Sensational developments in the high-profile environmental lawsuit (AmLaw Daily):

The decades-long legal battle between Chevron and Ecuador took yet another dramatic turn on Monday when the company announced that it has video tapes revealing a $3 million bribery scheme implicating the judge overseeing a multibillion-dollar civil suit filed against the company by indigenous residents of the country's Amazon Basin.


Ecuador's Prosecutor General, Washington Pesantez, today received the complaint filed by Chevron's lawyer and will open an investigation, spokeswoman Gloria Mejia said in a phone interview.

Washington Post: "I think this raises as many questions about Chevron as it does about the judge," [U.S. plaintiff's lawyer Steven Donziger] said. "I think this was a dirty tricks operation by Chevron." More: Dow Jones, Reuters, Daniel Fisher, Forbes, Washington Times (editorial), and extensive coverage from Carter at ShopFloor here, here ("60 Minutes" spun), here, and here. Our earlier coverage is here.

More links: NY Times ("Secret recordings of closed-door meetings have become a common feature of Ecuadoran politics."), American Lawyer, WSJ Law Blog; Chevron's website on the case, with video (also YouTube) and PDF letter from Thomas Cullen, Jr. of Jones Day; its press release and blog.

In a paper for the Washington Legal Foundation (PDF), Trenton Norris and James Speyer of Arnold & Porter analyze recent developments in the battle to contain California's famously wide-ranging Unfair Competition Law. "As several recent California Supreme Court rulings reflect, Proposition 64 has achieved some success, but because the law remains under attack by the plaintiffs' bar, California's civil justice system is still out of step with the nation."

Kirk Hartley comments on S. Todd Brown's August 7 post. Related here, here, here, here, here, here, etc. (asbestos and product liability), as well as here and here (protection of UAW at expense of creditors).

"N.Y. Extends Med Mal Rate Freeze"

Because trying to suppress the symptoms is so much easier, at least over the short term, than dealing with the underlying ailment.

Cal Biz Lit and California Punitive Damages have the story on last week's $13.8 million tobacco punitive award that may seem "relatively piddling" in comparison to the gigantic verdict earlier struck down in the case, Bullock v. Philip Morris. The title quote is from plaintiff's lawyer Michael Piuze.

In our newest featured column, reprinted from Forbes, Jim Copland looks at the now-settled charges brought by the SEC against former AIG leader Hank Greenberg. While serious, he writes, they fall far short of justifying New York Attorney General Eliot Spitzer's "obsessive pursuit of AIG's captain", which "in hindsight, looks foolish indeed".

2009 census of law professor blogs

Evidence Law Prof has the latest annual update in this series, in two parts.

Around the Web, August 28

A politically oriented compendium today, since the interesting law developments escape either our attention or our comprehension.

  • Wall Street Journal, "Chrysler Agrees to Take on Pre-Bankruptcy Product Liability Claims." New York Times Wheels blog, "Chrysler Reverses Stance on Product Liability." Public Citizen claims victory (statement).
  • Howard Dean continues to draw attention for his admission that Congress isn't talking tort reform in health care because the trial lawyers are too politically powerful. Charles Krauthammer, a doctor in his past life, observes: "You got to love Howard Dean. He is our best friend. He speaks the truth -- on this he did."
  • Philip K. Howard comments in The Atlantic online, "Stonewalling Legal Reform," on the difficulty of finding numbers to make the case for medical malpractice reform -- or any health care reform, for that matter: "Congress should listen to doctors and patients. They see these problems with modern healthcare. The fact that it's hard to 'score' the precise savings doesn't mean that the changes are unimportant."
  • Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, has a commentary, "Who Really Speaks for Consumers in the Arbitration Debate?," arguing that the motive behind the campaign against arbitration by "consumer activists" and lawyers is to stimulate creation of large class actions: "[The] plaintiffs' lawyers want first to cripple consumer arbitration. And next, they want to skim those few lucrative class action lawsuits from the sea of consumer disputes."
  • Florida Governor Charlie Crist has named the successor to Sen. Mel Martinez (R-FL), who is retiring early from his term. Crist tabbed his former chief of staff, George LeMieux, who will resign from the law firm law firm of Gunster Yoakley & Stewart. Mark Wilson, president of the Florida Chamber of Commerce issued a statement: "We appreciate Governor Crist's decision to pass on applications from trial lawyers and other agendas which would be detrimental to future job creation during this important time." Martinez, of course, was a trial lawyer as well.
  • Still in Florida, the hot political race has attacks and counterattacks being levied over trial lawyer connections. Former House Speaker John Thrasher is running for Senate District 8 in a special election, with all the action on the Republican side. An amorphously ad hoc group, Conservative Citizens for Justice Inc., has attacked his character; the group appears to be funded by politically active personal injury lawyers. (Jacksonville News story and column.) Former Gov. Jeb Bush has just cut an ad in response, saying lawyers are attacking Thrasher because he had the courage to rein in frivolous lawsuits.

Finally, blog content that really justifies a reference to that hoary Warren Zevon song.

The Tuskegee News has an excellent two-part interview with Rep. Artur Davis (D-AL) on his campaign for governor in 2010. When asked an open-ended question, "What will be your campaign focus?" Davis describes himself as a moderate to conservative Democrat, and the first evidence he cites is his vote on liability limits for gun manufacturers.

When I came in office in 2003, one of the the first votes I cast right off the bat was a vote that trial lawyers weren't very happy about, the Gun Manufacturers Liability Act. At the time there was a question as to whether or not you could sue a gun company if one of its guns was used to commit an offense, a mass shooting or something of that nature.

There were some people who were arguing that there is something inherently dangerous about semi-automatics and some kinds of guns that ought to expose the manufacturer to suit and liability. That would run major parts of the gun industry out of business potentially if a judgment were handed down. I voted for the Gun Manufacturers Liability Act. I voted to shield gun manufacturers from being sued for the use of their weapons because I believe ultimately individuals with guns commit crimes. Guns don't commit crimes. Individuals with guns commit crimes. That was a vote I cast in 2003.

Has Rep. Davis, a graduate of Harvard Law, made it up to the unhappy trial lawyers, yet? His campaign chairman is famed attorney Jere Beasley, and Davis is the chief sponsor of H.R. 2519, to allow a tax deduction for expenses and court costs advanced in a contingency fee case -- one of the American Association for Justice's highest lobbying priorities.

P.S. (3:15 p.m.): Should have commented that Rep. Davis' vote on manufacturer liability was a commendable vote.

Around the Web, August 27

A mish mash today. That is a legal term, isn't it? Mish mash?

Having linked yesterday to the news release from the American Association for Justice attacking the trucking industry's safety record, we now offer the views of the American Trucking Associations from a news release, "American Association for Justice Study Ignores Truck Safety Facts":

Despite allegations by the AAJ of poor safety and compliance in the trucking industry, the truck-involved fatality rate is now at its lowest since the U.S. Department of Transportation began keeping those statistics in 1975.

Results from the Commercial Vehicle Safety Alliance's Roadcheck 2009, the largest targeted enforcement program on commercial vehicles in the world, show nationwide improvements and the highest compliance rates ever for the NAS Level I inspections--the most comprehensive roadside inspection.

Regarding AAJ's mention of the July 2009 Government Accountability Office study, except for two references, the report is focused exclusively on bus companies.

Etc. See also The Des Moines Register story, "Lawyers association rakes truck safety record." (What a refreshing choice of verbs, "to rake.")

The AAJ's accusations against trucking also serve as a way to damage the reputation of the insurance industry, one of the trial lawyers' consistent targets.

Elsewhere, we recall the words of Sen. Edward Kennedy from his powerful 1980 Democratic National Convention speech:

The task of leadership in 1980 is not to parade scapegoats or to seek refuge in reaction, but to match our power to the possibilities of progress. While others talked of free enterprise, it was the Democratic Party that acted and we ended excessive regulation in the airline and trucking industry, and we restored competition to the marketplace. And I take some satisfaction that this deregulation legislation that I sponsored and passed in the Congress of the United States.

Around the Web, August 26

President Obama's statement, via the White House blog.

Senate floor speech made in response to the announcement of Robert Bork's nomination to the Supreme Court; June 23, 1987.

Senator Orrin Hatch's statement in tribute.

An Aug. 24 news release from the National Foreign Trade Council, "Leading Business Groups Urge Federal Court to Dismiss South African Alien Tort Lawsuit," noting the filing of an amicus brief in the Second U.S. Circuit Court of Appeals supporting the appeal of a lower court's ruling in an Alien Tort Statute lawsuit.

The lawsuit, now known as Balintulo v. Daimler, AG, et al., was originally filed in 2002 against 85 U.S. and European companies that had done business in South Africa prior to 1994. The case was dismissed in Federal District Court in 2005, but was sent back to that Court by the Second Circuit Court of Appeals in 2007. Since then the District Court has ruled that the case may go forward and the defendants have appealed to the Second Circuit to dismiss the case. This amicus brief is in support of that appeal....

The amicus brief filed today cites the fact that both the U.S. and the South African governments have asked that the case be dismissed and concludes that where the executive branch determines that trade will promote the interests of the United States (and improve the lot of foreign citizens as well) courts must respect that determination by shutting down inconsistent litigation at the earliest opportunity.

The brief is available here. Others joining in the amicus brief are USA*Engage, U.S. Council for International Business, Organization for International Investment, and the National Association of Manufacturers (my employers). The NAM summarizes the litigation at our Legal Beagle search engine.

Staying in the Southern Hemisphere, The Age newspaper in Australia reports, "Plan for locals to join Madoff class actions," reporting that, "THE US law firm representing investors attempting to recoup funds from Bernard Madoff plans to launch class actions on behalf of Australian companies and investors who lost millions of dollars to fraud and negligence on US financial markets."

Which law firm? Milberg! As for the Alien Tort Statute:

Millberg [sic] senior partner Brad Friedman warned Australian multinationals that breaching their international legal obligations could also result in class action suits in the US.

''Many courts around the world, but particularly in the United States, are willing to assert jurisdiction against foreign companies,'' Mr Friedman said.

He said lawyers would increasingly use US alien torts legislation to hold Australian companies liable for breaches of international laws that occurred outside the US.

Speaking of aliens, have you seen "District 9," the science fiction/crustacean-buddy flick set in South Africa? It ends ambiguously, setting up the possibility of a sequel. Most would expect such a sequel to be an action/revenge movie, but we suspect it will be a courtroom drama involving a high-profile civil suit against companies that supplied the private security forces used to oppress the non-humans.

Set it in U.S. District Court, Southern District of New York, cast Russell Crowe as a crusading attorney, and call it, "District 9: Alien Tort Statute."

Around the Web, August 24

  • In today's Examiner, "Hot coffee is back!," Ted Frank marvels at the mythic quality of the "woman scalded by McDonald's coffee" litigation, adapted and distorted to help support other legal claims: "[These] new urban legends have been adopted wholesale by many law professors and by left-wing supporters of the trial bar. The latest iteration is a documentary called 'Hot Coffee'; statements by the makers show that they are buying (or at least are willing to sell) the trial bar's story hook, line and sinker."
  • Hugh Hewitt, radio talk show host and Chapman University law professor, notes the filing of the first lawsuit in Nevada over Chinese drywall and says the last thing a recovering housing industry needs is a wave of asbestos-like litigation: "If President Obama wants to push for some legislation that will actually contribute to the recovery as opposed to hindering it via massive uncertainty and exploding deficits, he'd ask the Congress for a law that limits the drywall exposure and which caps the damages --and the lawyers' fees-- in all such disputes."
  • From a few weeks ago, Miami Daily Business Review, "Federal Judge Puts Chinese Drywall Cases on 'Rocket Docket'": "With thousands of homeowners claiming their houses and health are deteriorating from sulfur-emitting Chinese drywall, a federal judge in New Orleans is intent on fast-tracking a handful of cases for trial, attorneys say....About 600 tainted Chinese drywall lawsuits have been consolidated in multidistrict litigation under U.S. District Judge Eldon E. Fallon for pretrial issues. With the help of plaintiff and defense steering committees, Fallon will select five cases to test the waters."
  • The Wall Street Journal's Weekend Interview was with the governor of Texas, Rick Perry, who cites tort reform as one element -- but not the whole story -- in his state's pro-growth policies. From "Fiscal Conservatism and the Soul of the GOP": "As governor, Mr. Perry has honed in on four policy issues he believes are drawing people and businesses to the state in record numbers. Businesses like Medtronic and Caterpillar, to name two, are "coming here [because] we haven't spent all the money, the taxes are low, the regulatory climate is fair--they won't be frivolously sued--and they know when they get here that they'll find a skilled work force."
  • And in The Minneapolis Star-Tribune, which covers Medtronic as a local story, the personal anecdote leads the way in a report on the Medical Device Safety Act, "On mission to sue med-tech makers."

Many thanks to John Hochfelder for joining us as a guestblogger last week. If you haven't already, check out his New York Injury Cases Blog.

I'm going to be taking this coming week off, so any posting will be from others. I expect to be back August 31 with plenty of new material.

Also, do visit TortsProf later today where legendary torts scholar Jeffrey O'Connell of the University of Virginia, often called "father of no-fault" and an indefatigable reformer, will be a guestblogging contributor. He's the first of a series of scholars who will be guestblogging at TortsProf on Mondays through the academic year, among them such notable names as John Goldberg (Harvard), Tim Lytton (Albany), Tony Sebok (Cardozo), and Ken Abraham (Virginia).

It happens too often - after teeing off, playing partners scatter all over the golf course and hit their next shots when they are ready (without regard to the safety of those ahead of them). It's a breach of etiquette and it's not safe but usually golfers are protected from liability if their shots strike a player ahead on the course. I've written about these cases over at New York Injury Cases Blog here and here and Walter Olson has of course chronicled many such cases at Overlawyered.

Last week, a Pennsylvania appellate court dealt with a slight variation of this common fact pattern and ruled that the assumption of the risk doctrine does not protect long-ball hitter Troy Fisher. Troy, you see, could hit a golf ball 300 yards (that's Tiger Woods type distance) and the next hole was only 301 yards long; however, it was uphill so Troy and his playing partners could not see if the group ahead of them had finished the hole. One of those partners was Stuart Zeidman, who, like most of us, can't hit the ball 300 yards so Fisher had him go ahead to the crest of the hill to see what he could see and report back. On his way back, about 100 yards from the tee box where big Troy was waiting (or so he thought), Zeidman was struck in the face with a duck hook (a lousy shot) launched by Fisher.

That case, Zeidman v. Fisher, is going to trial (unless it settles beforehand) because Zeidman did not assume the risk of being hit by Fisher. It was Zeidman who was trying to help Fisher avoid hitting anyone in the group ahead and it was Fisher's duty, it seems, to wait for Zeidman to return to the tee box and a zone of safety.

Ironically, had Fisher teed off and struck a player in the group ahead on the next hole, there would have been no liability. Those players would be held to have assumed the risk.

Personal Note: This post concludes my week of guest blogging here at Point of Law. It's been a pleasure and a privilege to pitch in and work side by side with Walter Olson and the Manhattan Institute. I hope readers have enjoyed my efforts. I now head back to my home perch, New York Injury Cases Blog, where one can find posts that address in detail the valuation of pain and suffering in injury cases as well as other matters of interest to the legal community.

It was just a few days before the nationwide release of "The Cell," starring Jennifer Lopez when Shamel Smith surfaced claiming he was the screenwriter and demanding from the movie's producer that he be paid $250,000 or he'd seek an injunction. Turns out he wasn't the screenwriter, he got indicted for forgery, convicted by a jury and spent a year in state prison. Technically, though, signing one's name to a screenplay written by someone else is not the type of document contemplated under New York's Penal Law Section 170.10 (referring to writings that purport to be deeds, wills, contracts, public records and the like). So, Smith's conviction was reversed (People v. Smith, 306 A.D.2d 225; Appellate Division, 1st Dept., 2003) and he was set free.

And then he sued the state under the Unjust Conviction Act which provides that people who prove they are innocent and were wrongfully convicted and imprisoned may recover damages against the state. That case went to trial and has now been dismissed.

The problem for Smith was that his criminal conviction was reversed on a mere technicality and he could not prove he was in fact innocent (a requirement under the statute). To the contrary, the judge found that all of the facts at trial indicated that Smith had taken the movie script and inserted his name to it and attempted to extort money from the producer.

And too, the judge noted that Smith had a prior history of two felony convictions for forgery (one involving a $5,000,000 bank theft).

John Stossel vs. Mount Sinai Hospital

The television journalist explains why he won't be donating any more to the New York City institution, many of whose public-health initiatives are entrusted to arch-environmental-alarmist Philip Landrigan. Among his other projects, Landrigan's now in charge of a giant federally funded study that will conduct a purportedly neutral investigation of the role in childhood ailments of trace chemicals -- though his writings (including a new ad in the Times) make it clear enough that he's already reached a guilty verdict.

P.S. From @curtmercadante: "I was born at Mt. Sinai. Now I must renounce them :)" Or start an alumni-based reform movement? [spelling corrected]

Med-mal on Andrew Sullivan's blog

[Cross-posted from Overlawyered]:

Longtime reader P.W. writes:

I've been biting my fist while I read the recent series of guest posts on tort reform and medicine on andrewsullivan.com, such as this one. Lots of readers breezily asserting that there's no problem, pretty much a fact-free debate. I've emailed them myself, but no luck so far....
P.S. More or less relatedly, Democratic strategist Bob Beckel sees medical liability reform as the possible pivot of a health care deal [Real Clear Politics]

P.P.S. Sullivan's guestblogger Patrick Appel has now posted good emails from one reader dismantling some of the trial bar talking points that had figured prominently in earlier posts:

Easily disprovable lie #1: Texas malpractice insurance rates have declined every year since tort reform was enacted. Here's a link to TMLT, the largest insurer in Texas...

[#3:] ...the inflation-adjusted decrease in overall indemnity payments is due precisely to tort reform, primarily in the country's largest economy, California, where MICRA was established in 1974. In non-tort reform states, indemnity payments have steadily increased. In Illinois, which only adopted tort reform in 2007, the average (pdf, page 15) indemnity payment increased from $70,000 in 1980 to $630,000 in 2008. If you adjust for inflation, those 1980 dollars would only be $182,943.81 in 2009. Clearly, this is not a decrease. ...

Once again, an appellate court in New York has enforced the long standing concept that in order to recover money damages for a decedent's pre-death pain and suffering in a negligence case there has to have been some level of cognitive awareness on the decedent's part. In Johnson v. Jacobowitz, handed down this week, the court upheld a trial judge's ruling refusing to allow a jury to consider the issue of damages in a medical malpractice wrongful death case. Dolores Johnson never awoke after surgery to remove a blood clot and she died five days later. The doctor was found liable but since there was no evidence that Ms. Johnson was aware of pain or that she suffered during those five days (as she never awoke from surgery) then there was no viable pain and suffering claim to submit to the jury.

The rationale for this result was stated in McDougald v. Garber, (73 N.Y.2d 246) decided in 1989 by New York's highest court: pain and suffering recoveries rest on the legal fiction that money damages can compensate for a victim's injury; however, there is no compensatory purpose to be served when the victim is unaware of his injuries.

More on the Johnson case and the issue of wrongful death pain and suffering damages over at New York Injury Cases, my regular blogging perch, here.

Daniel Popeo of the Washington Legal Foundation has an opinion piece in The Examiner focusing on the controversial Pennsylvania case.

P.S. And Beck and Herrmann summarize the defense briefs in the case at issue, Commonwealth v. Janssen Pharmaceutica, Inc., in which the Pennsylvania Supreme Court has agreed to consider the defense's arguments that the state's contingent fee arrangements with Bailey Perrin Bailey, LLP, are improper. More from Carter at ShopFloor and, for a contrary view, Max Kennerly.

The Attorney General of Alabama argues that North Carolina in its suit is improperly seeking to apply its regulatory standards to industrial facilities located in other states. [Legal NewsLine]

Expanding theories of liability aimed at individual executives give the federal regulatory agency more clout in negotiating settlements. [NLJ]

Michael Vick and employment law

The football star's return has occasioned a burst of commentary on the employment law blogs, as Jon Hyman relates.

Around the web, August 20

  • More setbacks for lawsuits seeking to tie autism to vaccines [Kathleen Seidel and more]
  • So cute: AFL-CIO's online shop is selling "Wobbly" t-shirts. Do they know much about the violent record of the historic IWW? [Wood, ShopFloor]
  • Northwestern's Searle Center has a program that educates state AGs on economics, related policy [Rizo, Legal NewsLine]
  • Oklahoma AG Edmondson tells his side of the story in regulation-through-litigation suit against poultry farms [AP; earlier here, here, etc.]
  • When you're in the forensic accounting biz, inability to manage your own books is a credibility-sapper [Chicago Business h/t Francine McKenna]
  • A global ADA? U.S. signs U.N. Convention on Rights of Persons with Disabilities, push for Senate ratification expected soon [Mark Weber/Workplace Prof Blog]

Montana attorney Steven Harman gave an unusual closing argument in a medical malpractice wrongful death case (Heidt v. Argani - links below) that ultimately resulted in an appellate court reversal of a defense verdict. The attorney "channeled" the dead plaintiff - delivering a first-person narrative describing the death (from a worn out aortic valve) and using phrases such as: "My God, I'm dying," and describing in gruesome detail what it was like in the autopsy. No doubt, Harman was trying to get the jurors' sympathy.

This tactic overwhelmed one juror who announced she thought she was going to pass out. She'd become dizzy and was briefly attended to by two physicians (the defendant herself and one of Mr. Harman's law partners who is also a physician) as well as three nurses (all of whom were jurors). They took her pulse, lowered her head to the ground and called for an ambulance which took her to the hospital. All this took place outside the presence of the other jurors.

Then, an alternate juror was seated and the trial judge discussed these events with the jurors and was satisfied that they would render a verdict based simply on the five days of evidence they had heard. The trial then continued. After Mr. Harman finished his closing argument, the defense closed and then, after two hours of deliberation, the jury rendered a defense verdict.

Harman sought a mistrial claiming that the jurors must have been positively disposed toward the defense after Dr. Argani had helped the excused juror. He did not address the issue (nor did defense counsel) of whether the jurors were positively disposed toward the plaintiff in view of the same assistance rendered to the fallen juror by plaintiff's co-counsel Neel Hammond, M.D.

The trial judge denied the motion but the Montana Supreme Court reversed and this week ordered a new trial. Here are the decision and the parties' briefs.

Now, the case will have to be tried again. Presumably, it will take at least the same five days and involve the testimony of the same seven different physicians and the expenses incurred not only by the parties but also by the court system.

P.S.: Ted Frank noted here at Overlawyered that former presidential candidate John Edwards was a proponent of channeling and that the tactic is unfairly prejudicial and cause for a mistrial.

Daniel Schwartz brings a report from the scene.

Cal Biz Lit has collected many links on the much-publicized case.

Will Number 25 Be The Charm?

As reported at law.com, the long-running Congoleum "pre-pack" asbestos bankruptcy has been given new life by U.S. District Court Judge Joel Pisano. To date, this opinion has received little attention in the media, but it is a fairly significant development in a case that has involved the removal of the debtor's pre-petition counsel who orchestrated the bankruptcy due to conflicts of interest, two dozen plan formulations, alleged "payoffs" to the lead plaintiffs' counsel, a scathing state court opinion that concluded the bankruptcy was arranged in bad faith, and numerous other examples of the potential for misconduct and abusive practices in asbestos bankruptcies. For more background, please see my recent article concerning asbestos bankruptcies, which has an extensive discussion of the history of the case.

Back in February, Bankruptcy Judge Ferguson made good on her promise to either dismiss or convert this Chapter 11 case if the current version of the plan still failed to address all of the concerns she has expressed for the last few YEARS about the structure and inequities of the plan. This was no hasty decision, and all of the parties in interest were on notice of her intentions for months before her decision. Still, Judge Ferguson made it clear that her decision to dismiss the case was more to force the parties to address these issues in the higher courts than anything else.

In an opinion issued Monday, Judge Pisano affirmed Judge Ferguson's order with respect to (a) recognizing the right of insurers to object to confirmation (noting that this was the 8th time that the plan proponents raised this issue and agreeing with the seven previous decisions that insurers have standing) and (b) denying plan confirmation. Neither of these points is terribly clear in the law.com summary, but they are extremely significant. Of course, the fact that the plan in its current form is unconfirmable requires the plan proponents to go back and make some adjustments. More importantly, by once again acknowledging insurer standing and the independent obligation of the court to ensure that the plan complies with bankruptcy law in a fairly strong fashion, Judge Pisano appears to be nudging the parties to stop hanging their hopes on litigation tactics and instead address the substantive concerns raised by the court. Moreover, the court expressly directed briefing on the issues that doomed the latest plan in advance of the confirmation hearing on the next version of the plan.

The emphasis of the law.com article is clearly on Judge Pisano's decision to reverse the bankruptcy court's order to dismiss the case and withdraw the reference from the bankruptcy court. As noted previously, the former is not much of a surprise. With respect to the latter, although not a terribly common procedural move, the district court's decision to withdraw the reference from the bankruptcy court and assume authority over the remaining proceedings is sensible. Judge Ferguson has done an admirable job of overseeing the case for roughly five years now, but her repeated admonitions to the plan proponents have been consistently met with, at best, superficial modifications to the plan, even as administrative expenses in the case hover around the $100 million mark. Due to the design of Section 524(g) and constitutional concerns, the bankruptcy court can only make recommendations concerning some key elements of the plan anyway. And by deciding the issues that have consistently doomed Congoleum's reorganization plans on its own, the district court may be in a better position to press the parties to make meaningful steps toward proposing a confirmable plan.

Around the web, August 19

  • Getting the academic view: to review Sotomayor's decisions and written work, ABA turned to Syracuse, Georgetown law faculties [Faculty Lounge via Adler, NRO]
  • "Going Our Way? Class Actions, Punitive Damages & Due Process" [Beck & Herrmann]
  • "Recent Filings Confirm Securities Lawsuit Trends" [Kevin LaCroix, earlier]
  • Court denies punitive damages in Cintas case where union traced workers' license plates [Hirsch, LaborProf]
  • Keeping up with Sen. Specter's ever-changing stance on EFCA no easy matter [ShopFloor]
  • "Two Law Profs Settle Whistle-blower Suit Against Ave Maria" [ABA Journal]

The Wall Street Journal gives page-one handling to a scandal that has already received extensive coverage in this space [here, here, here, here, here, here, and here], at Overlawyered and in the Los Angeles Times.

Dodging NYC's menu-calorie law?

The California-based Houston's restaurant chain says it doesn't have to comply with New York City's law requiring chain eateries to label items with calorie counts because the menus and food offerings at its local outlets vary slightly from each other. The city says it's a dodge and that the menus are "substantially similar", and has imposed fines whose validity may be determined at an upcoming administrative hearing. [NY Daily News]

After a jury trial almost nine years ago in state court in Manhattan, Jose Shomo was convicted of second-degree murder. He had attempted to convince the jury that at the time of the deadly shooting he was physically incapable of holding or firing a handgun and thus could not have been the killer. Obviously, the jury rejected that claim and Shomo was sentenced to concurrent terms of 25 years to life. The conviction was affirmed on appeal.

After four years in prison, Shomo sued the City of New York, its Department of Corrections and several doctors alleging that during all that time he could not use his hands and therefore should have received assistance with activities of daily living, been transferred to specialized infirmary housing and received various treatments. If there was in fact a failure to give him treatment he needed, then there could be a viable claim for medical indifference under 42 U.S.C. Section 1983. Shomo's problem (in addition to his lifelong jail terms) was that he waited past the three year statute of limitations to start his pro se lawsuit. So, the defendants sought to have the case dismissed.

This week, though, in Shomo v. City of New York, a two judge panel of the U.S. Court of Appeals for the Second Circuit (the third judge was to have been now Supreme Court Justice Sotomayor) affirmed the lower court's finding that the case may proceed. The appeals court noted that when a plaintiff can show an ongoing policy of deliberate indifference to his serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period then he may pursue his lawsuit even though it was commenced outside the limitations period.

Chief Judge Dennis Jacobs wrote a separate opinion agreeing with the holding but emphasizing that Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the (lenient) one applied to pro se litigants. He added his belief that Shomo's claim that he needed medical attention was without merit since the jury in the criminal case already found that Shomo held and used a handgun when he committed murder and "... a person able to shoot someone to death has sufficient use of his hands to get by."

"Mutual funds and the new paternalism"

The New York Times is much impressed with the Posner side of Jones v. Harris, a financial-compensation case now before the Supreme Court, but Larry Ribstein believes Easterbrook has the better of it.

It's baseball season and that means an occasional trip to the ballpark, rooting for the home team, peanuts and crackerjacks and all that good stuff. For some few spectators, though, it may mean getting struck by a foul ball and sustaining a pretty serious injury. And then come the lawyers.

I share an interest with Walter in sports injuries lawsuits. He's probably the leading commentator on these issues and a compilation of his baseball posts at Overlawyered is here and a 2006 Connecticut case was discussed at Point of Law here. Over at my perch, New York Injury Cases Blog, we've highlighted some unusual sports injury cases.

The most recent case of note is from New Mexico. There, a divided appellate court this month in Crespin v. Albuquerque Baseball Club, LLC ruled that the long-standing assumption of the risk doctrine does not bar a lawsuit by a four year old boy who was struck in the head by a batting practice home run while the boy enjoyed a picnic lunch in an area behind left field. That case will now proceed to the state's highest court for an ultimate resolution.

An appeals court in Ohio recently reached a different result on assumption of the risk grounds in Warga v. Palisades Baseball. In that case, a woman was struck by a baseball while she was standing at the end of a walkway in the ballpark behind the bleacher. Her lawsuit was tossed out.

New York courts seem to have little trouble dismissing these types of cases on assumption of the risk grounds. Neighboring New Jersey, in direct response to a ruling by its highest court permitting a foul ball injury lawsuit to go to trial, enacted the New Jersey Baseball Spectator Act of 2006 which protects the ball clubs if they have netting in the most dangerous areas (as is the case everywhere I know of) and post warnings. Colorado has long had a similar law.

Around the web, August 18

  • "New University Survey of Labor Economists Shows Overwhelming Opposition to EFCA, Binding Arbitration" [LaborPains.org]
  • Federalist Society launches new podcast series;
  • How to talk carefully about tort cases [Eugene Volokh] How to handle policy arguments [same]
  • Blawg Review #225 is at Seattle Trademark Lawyer [Michael Atkins]
  • Ohio AG Richard Cordray criticizes predecessor's lead paint suit [Stinnett, Public Nuisance Wire]
  • Andrew Serwin (Foley & Lardner), "Poised on the Precipice: A Critical Examination of Privacy Litigation" [SSRN]

In an Overlawyered.com post, "David Michaels and Gun Control," Walter highlights the "strong views on firearms issues" from the President's expected nominee to head the Occupational Safety and Health Administration, epidemiologist and left-leaning public health activist, David Michaels. In an entry at the public health blog, The Pump Handle, Michaels had written passionately about guns as a workplace safety issue (and attacking the NRA in the process).

So if a Nashville restaurateur wants to ban guns from his business, it's safe to say Michaels would have his back. But what if the restaurant owner argues the case as a matter of federal preemption? After all, the Obama Administration is busy ridding federal regulations of preemption language.

From The Tennessean newspaper of Nashville, an article, "Nashville restaurateur seeks quick ruling on guns lawsuit":

Nashville restaurant owner plans to ask today for a quick decision in his lawsuit challenging the new state law that allows guns in restaurants and bars.

Randy Rayburn, who owns Sunset Grill, Midtown Cafe and Cabana, and his fellow plaintiffs will file a motion in Davidson County Chancery Court seeking summary judgment in the case, attorney David Randolph Smith said Friday.

Smith said the law, which took effect last month, creates unsafe workplaces, violating federal occupational safety and health laws.

"We're moving for summary judgment on the idea that state law is pre-empted by OSHA," he said.

So preemption serves the public health and safety goals that Michaels embraces, but President Obama, who will nominate him, opposes preemption.

And so does the plaintiffs' bar, which helped fund the creation of the Project on Scientific Knowledge and Public Policy, which Michaels heads. SKAPP's policies closely align with those of the American Association for Justice, which campaigns against preemption as hostile to justice and wealth redistribution through litigation.

The only way to resolve these tensions? Ad hoc arbitrariness! Just what the nation needs in regulatory policy.

We're pleased that attorney/blogger John Hochfelder of White Plains, N.Y. will be joining us as guest blogger this week. A former judge and big-firm lawyer who also trained and served for six years as an emergency medical technician (EMT), he now has a plaintiff's personal injury practice mainly concentrated in auto and construction-site accidents.

His New York Injury Cases Blog, launched last December, quickly attracted notice by going into depth on well-defined issues of New York practice, notably how courts here value particular types of physical injuries and recurring legal patterns such as sports and recreational injuries. It's also notable (warning to the squeamish) for its use of anatomical and surgical illustrations. We've linked to it frequently -- here, here, and here, for example.

And for those of you wondering, "Is this the first plaintiff's-side lawyer you've had at Point of Law?" I should point out that pioneer law blogger Peter Nordberg carried half of a featured discussion here three years ago. So far as I know, though, this is a first time among guestbloggers (& welcome Eric Turkewitz readers).

The idea of tying liability protection to doctors' adherence to best practices in medicine has become increasingly popular in the health care reform debate. In this new commentary for the Manhattan Institute's Center for Medical Progress, Joseph Bernstein (Penn) and Duncan MacCourt (U. Mass.) develop the safe harbor idea and summarize a proposal to address its federalism difficulties: the establishment of state-by-state Societies for Quality Medicine to promulgate standards of care and best practices.

This weekend, severe weather caused Continental Airlines to redirect its Houston bound flight to Rochester, Minnesota. And there it sat on the tarmac for six hours. Passenger Link Christian says he and 46 others suffered through a nightmare with crying babies, a smelly toilet and nothing to eat and now he wants action. He appeared on national television urging federal regulations to "protect" passengers stuck like he was and he may just get his wish.

Kathleen Hanni had a similar incident back in 2006 (when she was stuck for nine hours in Texas) and she started a class action lawsuit (Hanni v. American Airlines - U.S. District Court, Northern District of California; # C-08-00732-CW) seeking money damages, created an organization (Flyers Rights) and has been pushing for a so-called Airline Passengers Bill of Rights (the Senate Commerce Committee recently approved it unanimously).

Debra Saunders at the San Francisco Chronicle suggests that the proposed bill promises reasonable protections for passengers (i.e., food, water and adequate restrooms as well as the right to get off the plane after three hours); however, an airline industry spokesman notes that this legislation could have unintended consequences such as a greater number of cancellations and flight delays.

As to the class action lawsuit, it's almost three years now since the incident. First, as our friends at Class Action Fairness Act Law Blog describe, plaintiffs sought unsuccessfully to have their case heard in state court. Then, they refused to turn over to the defense documents, including thousands of emails, that would purportedly establish the propriety of a class action and their alleged damages claims. Finally, a magistrate judge ordered plaintiffs to pay more than $13,000 in sanctions to American Airlines. [Decision available from Westlaw at 2009 WL 1505286.] The sanction amount was based on the hourly rates charged by American's lawyers for their time in connection with plaintiffs' delays.

Everyone wants a law school, cont'd

"Lynchburg has a law school. Greensboro has a law school," complains the mayor of Roanoke, Va. about his mid-size city's lack of a hatchery for attorneys. Related here, here, etc.

Cramdown still lurking

Sen. Sheldon Whitehouse (D-RI) is holding a field hearing in Providence on Thursday continuing his push for legislation to allow bankruptcy judges to rewrite mortgage contracts, often called "cramdown" because it could force mortgage lenders to reduce principal and interest rates: "Mortgage Modifications during the Foreclosure Crisis: Is there a Role for Bankruptcy Courts?" It's a reprise for the hometown crowd of a July 23 hearing, "The Worsening Foreclosure Crisis: Is It Time to Reconsider Bankruptcy Reform?"

Rep. Barney Frank (D-MA) got a cramdown bill through the House in March (H.R. 1106) but the Obama Administration and key Senators were unenthusiastic, with concern for the sanctity of contracts playing some role, perhaps. He's vowing to try again if the mortgage lenders do not bend to his will.

Sen. Dick Durbin (D-IL) said earlier this month "that if the financial industry is not able to complete 500,000 mortgage modifications by November he would pursue legislation ratcheting up the pressure on the industry." (From The Hill.) His amendment to a Senate bill failed in April.

Coca-Cola Co. won a big victory in an Alien Tort Statute case thanks to a recent U.S. Supreme Court decision. The 11th Circuit dismissed Sinaltrainal v. Coca-Cola Co, citing the USSC ruling in Ashcroft v. Iqbal that allowed courts to dismiss cases as a matter of law if plaintiffs' evidence doesn't sufficiently back their pleading.

Over a ten year period trade union leaders were murdered by Colombian paramilitary troops at Coke bottling facilities in Colombia between the mid 1990's and 2001. Though the union members' complaint against Coca-Cola stated that the murderers had acted as state agents (a requirement to hear the case under the Alien Tort Statute) and that their murders were war crimes, the 11th Circuit found too little evidence of such legal conclusions to get to a fact-finder. A fortiori Coke could not be held responsible for private crimes. The members' assertions that war crimes had been committed by state agents were conclusions of law, not fact, and Iqbal now allows courts to remove such cases from jury consideration, thereby also removing much settlement pressure from defendants.

Here's the WSJ summary, for subscribers only.

After Minnesota Attorney General Lori Swanson sued and won a consent agreement with the National Arbitration Forum, the campaign against pre-dispute arbitration -- led by the trial bar and "consumer" activists -- continues to score successes. The latest, as reported by The Associated Press, "Bank of America drops arbitration requirement":

Bank of America Corp. said that as of Thursday it will stop requiring that disputes with its credit card holders and banking and lending customers be settled by binding arbitration, opening the door for class-action and other lawsuits to push up the bank's legal costs.

A statement from the American Association for Justice's associate director of federal relations, Julia Duncan:

While the decision by Bank of America to no longer rely on forced arbitration in consumer disputes is a positive step, it's clear that Congress must intervene to protect consumers. Forced arbitration clauses are buried in the fine print of everything from credit card and cell phone contracts to employee handbooks and nursing home agreements. These clauses eliminate Americans' access to the courts, forcing them instead into a private system set up by corporations to favor corporations. That is why Congress must pass the Arbitration Fairness Act and prohibit this abusive practice.

The bills to outlaw pre-dispute arbitration in consumer contracts are H.R. 1020, and S. 931, the Fairness in Arbitration Act.

More from Public Citizen, leader of the Fair Arbitration Now Coalition. By "fair" and "now" they mean "no more."

Some ideas on taxing punitive damages

From Dan Markel at Prawfsblawg, who (with co-author Gregg Polsky) has been working on a paper on the subject.

Surgeons vs. Obama

They get $30,000 to $50,000 for a leg amputation, says the president. On what planet? [Orac/Respectful Insolence, Dr. Wes, Jonah Goldberg/NRO "Corner", John Stossel]

Michigan's economic woes

Never so bad, notes Michael Barone, that they couldn't be made yet worse.

Sacramento Bee: "California's landmark, 34-year-old law that limits noneconomic damages in medical malpractice cases to $250,000 has survived an effort to overturn it in the state Supreme Court." More: Civil Justice Association of California (welcoming ruling).

Assistant principal's swine flu death

It's New York City's fault, say the survivors of Mitchell Wiener in a new lawsuit over Gotham's allegedly inadequate response to the H1N1 virus [WCBS; cross-posted from Overlawyered].

From our new favorite law blog, Consumer Advertising Law Blog, "If State Law Preemption Is the Best Stuff On Earth, It Is Now Endangered":

In a much anticipated ruling (opinion found here), yesterday the Third Circuit revived a consumer class action against the maker of Snapple, holding that FDA did not preempt a review under state law of whether Snapple's claims that its drinks are "all natural" was misleading because they (used to) contain corn syrup.

The New Jersey trial court dismissed the case (opinion found here) because of implied preemption or that "FDA regulations so thoroughly occupy the field of beverage labeling at issue in this case that it would be unreasonable to infer that Congress intended states to supplement this area."

More from Law.com, "3rd Circuit Reinstates Consumer Fraud Class Action Against 'All Natural' Snapple"

Some people who see themselves as human rights advocates don't seem very happy about it, but it seems that international human rights law accords some rights to businesses. Hans Bader at CEI "Open Market" explains.

At the Washington Examiner, David Freddoso and Kevin Mooney have been checking into federal-level political contributions by employees of the 15 law firms on NLJ's "Plaintiff's Hot List". The number for 2009 so far is perhaps lower than one might have guessed -- $636,305 -- but of course this is the off-season, campaign-wise if not favors-for-constituents-wise. More than 99 percent of the money has gone to Democrats; presumably the party-switch of Pennsylvania's Arlen Specter has helped sort things out here.

You're the general counsel for the lobby fighting against tort abuse in California. You claim the tort abuse is driving small business away from the Golden State. You've just deliberately parked in a 'no parking' zone to get easier access to the fast food restaurant where you and your son wish to dine. You emerge from the restaurant to find your car towed away. What do you do? Do you phone city hall, the daily newspaper and your city counsel member to complain that there was no "cars will be towed" sign below the "no parking" notice and that you want a refund of your towing fee? None of the above: rather, you launch a class action against the city, its police chief, individual city police officers and of course against the small business (a tow truck company) that towed you away.

Here's a report on the case, about which the president of the tort reform lobby that employed Fred Hiestand had this to say: "I was concerned this might happen. Fred has been fighting against frivolous lawsuits for decades, and like a doctor fighting malaria, he's become infected himself -- and with the worse strain of the disease -- class actions."

At least he didn't include as a defendant the fast-food restaurant for having too little parking. Of course, that would have reduced the size of the class....

Systemic Indifference

At the Huffington Post, Karen Weise has collected a series of criticisms of mortgage company collection practices. The concern is a legitimate one for bankruptcy purists: whether by design or "systemic indifference", the methods used by some mortgage companies and servicers to track and calculate the debts they are owed often lead to the filing of unwarranted or inflated claims. In one case, for example, bankruptcy Judge Marilyn Shea-Stonum blasted the mortgage company's "reckless" system that appeared to be "designed to allow each actor in the process to act with indifference to the truth, and to rely solely on the limited information made available at each step. ... [The errors in this case] evidence Countrywide's disregard for diligence and accuracy."

This problem, however, is not limited to mortgage companies and service providers. In my former life as a corporate debtor attorney, I was frequently stunned by the cavalier attitudes that some organizations appear to have with respect to maintaining accurate debt collection records. They would usually take whatever figure their records spit out and file a claim; the debtors would go to their own records and often come back with very different numbers. True, we usually managed to reconstruct everything to reach numbers we were all comfortable with, but at a fairly high cost. If time and money are not huge obstacles, the bankruptcy process allows the adversarial truth-seeking process to run its course. In many bankruptcies, however, time and money are not in sufficient supply to make this possible. Thus, it should come as no surprise that some creditors may be willing to roll the dice by filing unwarranted or inflated claims. The transparency of the bankruptcy process, together with properly functioning judicial and trustee oversight, allow us to identify patterns such as these and take corrective action.

Of all of the horrific claiming practices that I saw in private practice, none were more pervasive and egregious than in asbestos personal injury claim filing. Some issues - filing new claims years or even decades after the statute of limitations had run, alleging wholly inconsistent work histories from one case to the next, etc. - may be just poor record keeping or a "reckless" system intended to provide those involved with deniability. Unlike other claims, however, asbestos claims are typically allowed without the filing of a proof of claim or other documentation that will open them to system-wide review. After a bankruptcy trust is established by a confirmed plan, access to claims filed is even less likely due to confidentiality restrictions. The net result - it is virtually impossible to conduct an extensive review of trust claiming and administration practices.

Courts and officials are right to criticize "systemic indifference" that leads to abusive filing practices. At the same time, however, some judges and trustees offices are at least as guilty of "systemic indifference" to the signs of fraud and abuse in asbestos bankruptcies; placing far too much emphasis on the false efficiencies of looking the other way and obstructing efforts to evaluate system-wide recklessness. And until these processes become at least as transparent as other claim processes in bankruptcy, we can hardly expect advocates to become more vigilant in their claim filings.

Following up on yesterday's post about the Obama Administration's intent to reverse preemption language in Executive Branch regulations, which noted its banishment from the National Highway Traffic Safety Administration's rule on roof crush standards, we searched the 2009 Federal Register for similar language in other rules, that is, the term "implied preemption." Here are the relevant results, i.e., rules that specifically reject preemption.

  • fr12my09R Federal Motor Vehicle Safety Standards; Roof Crush Resistance;
  • fr03mr09R Federal Motor Vehicle Safety Standard; Air Brake Systems
  • r20jy09R Federal Motor Vehicle Safety Standards; Door Locks and Door
  • fr13au09R Federal Motor Vehicle Safety Standards; Controls, Telltales and
  • fr04mr09P Federal Motor Vehicle Safety Standard; Rearview Mirrors

(We originally had links here, but they appeared to be temporary urls. To find the entries, just repeat the search.)

Typical is the language from the rule on review mirrors:

[The] Supreme Court has recognized the possibility of implied preemption: State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes the State requirements unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000). NHTSA has considered today's ANPRM and does not currently foresee any potential State requirements that might conflict with it. Without any conflict, there could not be any implied preemption.

UPDATE (11:10 a.m.): More discussion of FDA preemption at the FDA Law Blog, April 29, "Change in FDA Preemption Position? New Rule Largely Eliminates Preemption Discussion"

Accountability is good

Sen. Sheldon Whitehouse (D-RI) and Sen. Jeff Sessions (R-AL) have introduced S. 1606, the Foreign Manufacturers Legal Accountability Act, to require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers. Complaints about contaminated Chinese drywall, found mostly in Southern states, has elevated the profile of this issue.

In his introductory statement, Whitehouse said by registering an agent in the United States, the manufacturers would acknowledge the jurisdiction of state and federal courts, putting them on equal legal footing with domestic manufacturers. In addition, "It covers major product categories including consumer goods, drugs, cosmetics, and chemicals, and it requires relevant agencies to study workable approaches to ensure that foreign food producers also are brought within the ambit of the American legal system.

The bill follows on the footsteps of a Senate Judiciary subcommittee hearing in May, "Leveling the Playing Field and Protecting Americans." As the sponsors show, the issue crosses partisan lines. General support is also broad: Witnesses at the hearing included a representative of the trial lawyer lobby, AAJ, as well as Victor Schwartz, testifying on behalf of the U.S. Chamber.


The Washington Post published an important op-ed last week on preemption that did not seem to get much traction in the blogosphere. Perhaps because it was about preemption.

The piece, "Obama vs. the Regulators -- A Little-Noticed Decision Undercuts Health and Safety Rules," was by written Jeff Rosen and Jay Lefkowitz, litigation partners at Kirkland & Ellis and former OMB general counsels during the last Bush Administration. In it, they draw attention to President Obama's May 20 "Memorandum for the Heads of Executive Department Agencies," which instructs Executive Branch agencies not to include any preemption language in regulatory preambles and to review the past 10 years' worth of regulations for preemption language:

It may all sound very technical, but the consequences of Obama's new policy are broad and serious. When federal health and safety regulators issue rules, they base them on scientific analysis and conduct cost-benefit analyses of their overall impact. By contrast, state court juries may establish rules based on the unusual facts of a single case that could have terribly detrimental implications if applied more broadly. It is important, therefore, that the work of government health and safety experts has actual legal effect and not be just for "show." Taxpayers are footing the bill for these regulators, and the national standards they issue are supposed to be effective and binding.

The memo's stated reason is "federalism," but as the authors note, the memorandum misrepresents Justice Brandeis' thinking on the issue. The authors also wonder at the lack of attention toward this sweeping regulatory instruction; elsewhere Rosen has noted that the issuing of a memorandum - as opposed to an executive order - probably lessened the media's interest, which was, of course, the point.

The Obama Administration has already demonstrated its clear opposition to preemption, specifically the Bush Administration's practice of including preemption language in regulatory preambles. The National Highway Traffic Safety Administration's* roof strength rule (promulgated April 30, published in the Federal Register May 12) abandoned the proposed rule's preemption analysis and instead states:

Implied Preemption. We have reconsidered the tentative position presented in the NPRM. We do not foresee any potential State tort requirements that might conflict with today's final rule. Without any conflict, there could not be any implied preemption.

One wonders who exactly benefits from a haphazard, state-based regulatory regime.

From the American Association for Justice, a news release, April 9, "AAJ Calls on New NHTSA Chief to Address Roof Crush Standard," with the sub-head, "Remove Preemption from Old Proposed Rule." The Naderites at Public Citizen had also lobbied against the roof crush standard proposed by the Bush Administration.

* Corrected earlier wrong version of NHTSA's full title.

Guestblogger thanks; posting lull

Thanks to Quin Hillyer of the Washington Times for his contributions in this space last week. I expect to be out of blogging distance myself for the next few days, but should return before week's end.

Those hoping for such an outcome may be kind of optimistic, thinks Paul Carpenter, the excellent Allentown Call columnist. More: California Civil Justice, ShopFloor.

The bad Akaka bill, often criticized in this space, now is seen as having a good chance of passage.

A rare bit of good news out of the California legislature. [Metropolitan News-Enterprise, California Civil Justice]

WSJ editorial page vs. Arlen Specter

They go after him on Stoneridge and the tax break on client expenses, but seem to have overlooked the one that's truly ghastly, his bill to overturn the Supreme Court on Twombly/Iqbal pleading.

From The Los Angeles Times, "Lawsuits are the latest roadblock for California budget":

Reporting from Sacramento -- Well-connected lobbyists, political pressure and a good turnout at committee hearings used to be the special interest recipe for protecting turf in the state budget. Now, a potent new ingredient is being increasingly thrown into the mix: top-shelf litigators.

Lawyers are being drafted in droves to unravel spending plans passed by the Legislature and signed by the governor. The goal of these litigators is to get back money their clients lost in the budget process. They are having considerable success, winning one lawsuit after another, costing the state billions of dollars and throwing California's budget process into further tumult.


August 10 roundup

  • From suing employers to regulating them at a key affirmative action agency: "Patricia A. Shiu, currently vice president for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC), has been named Director of the Office of Federal Contract Compliance Programs (OFCCP)." [Bales, Workplace Prof]
  • "Judge Robreno: Cleaning up clogged asbestos MDL" [Eastern District of Pennsylvania; Aricka Flowers, LNL via Cal Civil Justice]
  • Bill to reopen lapsed statutes of limitation on sex abuse founders in Albany [New York Times, earlier]
  • "Consequences Unintended: Does the FCPA Actually Increase Corruption?" [WSJ Law Blog] Plus: "Has Economic Uncertainty Expanded Reach of the Foreign Corrupt Practices Act?" [NYLJ]
  • Name local doc as a defendant to defeat diversity? Maybe that won't work [Beck & Herrmann]
  • Foreign Sovereign Immunities Act: "Cert denied in 9/11 Saudi Liability Case" [Mass Tort Lit]

The American Association for Justice seems to have abandoned its approach of trying to sneak through a $1.6 billion tax break for litigation that lawyers finance by upfront loans to their clients. The sub rosa strategy was no longer tenable after LegalNewsLine, a U.S. Chamber-affiliated publication, reported comments from AAJ's lobbyist, Linda Lipsen, at the national convention in San Francisco: "You cannot have a stand alone bill to help lawyers ... so we have to tuck it into something."

Lipsen has now released a statement: "AAJ: Treat Trial Attorneys Like Other Small Businesses; Bipartisan Legislation Will Clarify IRS Tax Code." She attacks the messenger as advocacy journalism and then attacks the Chamber's Institute for Legal Reform "as a corporate front group dedicated to undermining the civil justice system." She also claims to have been taken out of context, but doesn't say how. It's the usual deflection, but then she makes an actual argument: The tax break is about "fairness."

The gist of AAJ's argument is the legislation -- introduced separately in S. 437 and H.R. 2519 -- is as stated in the headline: The tax break is no different than the tax treatment other businesses enjoy. Lipsen:

The tax legislation will treat the trial attorney profession like every other small business in this country, allowing them to deduct their expenses in the year incurred. Currently, trial attorneys pay all case costs from their own pocket when representing Americans that cannot afford exorbitant hourly fees. These attorneys must wait to deduct their expenses until the case concludes. This legislation will allow the IRS to treat this profession as every other small business.

The bill merely changes the timing of the deduction to when the expenses are paid - it would not in any way increase the amount of the deduction.

So that's now the public line, but it has been rebutted by Victor Schwartz and Chris Appel in a paper by the Washington Legal Foundation, "Federal Government Bailout for Trial Lawyers."

A principal difference between a plaintiffs' lawyers' fronting of costs and a business' deductible expenditures is that the former carries a formal contractual obligation for future payment (much like any other type of loan agreement). Deductible business expenses are a separate animal in that they represent sunk capital costs that are not based on the vagaries of litigation..

In 2008, the same tax break was attached to H.R. 6049, the Energy and Job Creation Act, AKA the "tax extenders" legislation. (PoL post.) The effort came up short because of the publicity the provision eventually attracted; the same politic dynamic was developing this year, so the AAJ must have figured there was nothing to lose by acknowledging its activities. Might as well try defending the legislation itself, no matter how self-serving that case obviously is.


Chrysler and Sales Free and Clear

As readers may recall, the Second Circuit affirmed the sale of Chrysler's assets to Fiat last month "for the reasons stated in the opinions of Bankruptcy Judge Gonzalez," and promised that a detailed opinion would follow. That opinion is available here.

For the sake of brevity, I will focus today on two of the issues addressed by the panel. First, the panel concluded that the sale was not a "sub rosa plan" but a legitimate use of Section 363 of the Bankruptcy Code to sell assets promptly (so as to maximize their realized value):

With its revenues sinking, its factories dark, and its massive debts growing, Chrysler fit the paradigm of the melting ice cube. Going concern value was being reduced each passing day that it produced no cars, yet was obliged to pay rents, overhead, and salaries. Consistent with an underlying purpose of the Bankruptcy Code--maximizing the value of the bankrupt estate--it was no abuse of discretion to determine that the Sale prevented further, unnecessary losses.

With respect to the complaint that the structure of the deal effectively elevated unsecured creditors (particularly the union) above secured creditors, the panel relied on Judge Gonzalez's conclusion that "all the equity stakes in New Chrysler were entirely attributable to new value--including governmental loans, new technology, and new management--which were not assets of the debtor's estate." Put another way, all of the bankruptcy estate's interest in the assets sold are reflected in the price received for those assets, and all of that money is going to secured creditors. It could be argued that the sale price received is lower than it would have been but for the benefits to accrue to the union under the deal (i.e., if the new company was not saddled with those obligations, would the estate have been able to get more cash from the purchaser?), but that is a very difficult path to carve out effectively given the going-forward benefits from the deal (for example, the reworked union agreement with the no strike clause).

Second, the panel addressed the various arguments that the Chrysler assets could not be sold free and clear of successor liability for various personal injury type claims. Here, the panel adopted a fairly broad reading of the "interests" that can be cleansed in a Section 363 sale, reasoning that this interpretation is more consistent with the purpose of this section and the priority scheme of the Bankruptcy Code.

The panel refused to weigh in on the question of whether a Section 363 sale can cleanse future claims (such as those that might arise from asbestos exposure). This not only makes sense in the abstract; it is the right approach for future claimants. As we have seen in the 524(g) context (which requires setting aside funds to pay current and future asbestos claims, among other things), future claimants' interests are often sacrificed by those currently asserting asbestos claims against bankruptcy estates. Now that courts have started taking a harder line against these schemes, it is easy to see how the 363 sale approach might be viewed as a possible end-run around 524(g)'s limitations on front-loading recoveries. Until the "free and clear" sale's applicability to future claimants is clarified, however, such an end-run remains, at best, extremely risky for most asbestos defendants.

The United States is almost the only country not to ratify the convention. Good! says Eugene Volokh, and explains why -- and adds a followup in response to Peter Spiro, who takes the "like it or not, the U.S. is going to be subject to international human rights law" line.

"Autism Omnibus Appeal Dismissed"

Kathleen Seidel brings word of another setback for anti-vaccine lawyers.

An update about Cass Sunstein, CPSC

Right before the Senate adjourned for the August recess today, Senate Majority Leader Reid filed for cloture on the nomination of Chicago/Harvard law professor Cass Sunstein to head the Office of Information and Regulatory Affairs. The motion means a Senate floor debate will take place in September, with confirmation expected.

Senate Republicans have apparently lifted their holds against Sunstein, but several want an opportunity to speak about the nomination on the floor (and about regulatory policy, one hopes). Objections to Sunstein over animals rights and the Second Amendment still turn up in the blogosphere, but in his confirmation hearing and one-on-one meetings Sunstein appears to have satisfied Senators' concerns.

Still, Sunstein was not included in nominees approved today by unanimous consent, i.e., no debate, no formal vote.

However, the Senate did confirm former Anne Northup and Robert Adler to serve on the Consumer Product Safety Commission. Once they are sworn in, the CPSC will be up to its full five-member complement.

EFCA vs. employers' speech

Several provisions in the controversial bill would chill employers' speech to workers by exposing it to stiff financial penalties or union-sought injunctions, as former NLRB general counsel John Irving explains in the WSJ.

Around the web, August 7

  • Diana Furchtgott-Roth on med-mal and the health care bill [Real Clear Politics]
  • Can government lawyers ethically push for, or accept, secrecy clauses in settlements? [Hartley]
  • New ABA commission to review the Model Rules of Professional Conduct [Legal Ethics Forum]
  • Beck & Herrmann try to puzzle out that surprise Neurontin case-withdrawal [Drug & Device Law]
  • Politicized pensions: New CALPERS "beat the market" strategy is just begging for trouble [Tkacik, Business Insider]
  • Criminalization: book explores controversy over prosecution of Kentucky homebuilder [WSJ Law Blog]

President Obama last week announced his intent to nominate David Michaels to become administrator of the Occupational Safety and Health Administration, and today The New York Times hails Michaels' selection in an editorial, "A Champion for Workers' Safety." The Times observes that Michaels' nomination is "apt to provoke opposition from some business interests" and offers advice:

They should hold their fire. His emphasis on cultural change and involvement of workers in improving safety could help ease the polarization between business and labor. And his emphasis on sound science could give everyone greater confidence that OSHA will make the right decisions.

Would it be all right to at least express a little skepticism?

On experience alone, Michaels appears a solid nominee to head OSHA. During the Clinton Administration, he served as the Department of Energy's Assistant Secretary for Environment, Safety and Health, overseeing workplace safety programs for DOE's nuclear weapons facilities. He has earned a Ph.D. in sociomedical sciences and an MPH in epidemiology. (See bio at The George Washington University's Department of Environmental and Occupational Health, where he is a research professor.)

But in his writings, most notably the book, "Doubt is Their Product," Michaels has demonstrated unremitting hostility toward business, and he has run an advocacy group funded by trial lawyers and the left-wing benefactor George Soros. The Times lauds Michaels' "emphasis on sound science," but it sure looks an emphasis on science in the service of a political agenda...politicized science, to use a popular term. What it does not look like is the record of a fair-minded regulator.

Details below...

Trial Lawyer Tax Break Update

Even though this Washington Times editorial was being drafter before Walter posted last night, citing Victor Schwartz, the item about the trial lawyer tax break, it now serves to advance the conversation begun in Walter's post. Here's the deal: What the trial lawyers ask for, from Nancy Pelosi, the trial lawyers get.

In one of the most cogent, readily understandable explanations of the importance of federal pre-emption, Jeff Rosen and Jay Lefkowitz write in the Washington Post today a column taking President Obama to task for kowtowing to the trial lawyers. Good stuff.

Suffolk U. and the Massachusetts AG

The Boston institution known for its large law school awarded an honorary Doctor of Law degree to Massachusetts Attorney General Martha Coakley even as she was investigating it over allegations of a conflict of interest. Two months later, she cleared the university of violations. A spokeswoman for Coakley says she didn't disclose the matter to the state ethics commission because an honorary degree is not a thing of "monetary value". [Boston Herald and followup]

Obama's picks could bring surprisingly rapid changes, according to an analysis by Eric Haren of Jenner & Block.

Following up on Walter's July 30 post, "AAJ looking to quietly pass plaintiff lawyer tax break," on the American Association for Justice's attempts to get Congress to pass a $1.6 billion tax break for trial lawyers, we follow the money.

The proposal, introduced as S. 437 and H.R. 2519, would allow the deduction of attorney-advanced expenses and court costs in contingency fee cases. But it's too politically toxic to move as a stand-alone bill so the AAJ is hunting for an appropriate legislative vehicle.

It's certainly a lobbying priority for the group. Not only does the AAJ list the issue on its 2nd Quarter 2009 lobbying disclosure form, they also hired outside lobbying firms to work on it.

Legislation to end medical device preemption gains a lot of attention among Congress watchers, and it's definitely a heavily lobbied issue, but as Victor Schwartz of Shook, Hardy & Bacon tells us, the bill would only benefit a small percentage of AAJ member attorneys. But deductions for contingency fee lawsuits? The benefit cuts across the entire membership, helping small firms and big ones. For a $1.6 billion tax break, you spend a little money.

At a speech last night sponsored by RegularFolksUnited.com at the Army-Navy Club in DC, British Member of European Parliament Daniel Hannan wowed a crowd of conservative activists on multiple fronts. He spent a great deal of time using the British Health System's failures to argue against President Obama's plans for greater government involvement in US health care. Of interest to this blog, however, came when, in answering a question about how the British system handles lawsuits, he switched gears and said, effectively, that one of the few areas where Britain does it better (on health care and in general) is in its greater aversion to jackpot justice lawsuits. "I think your [health care] system could be improved if there were less litigation," he said.

In his excellent speech during floor debate about Judge Sotomayor, Alabama's Jeff Sessions touched on what should be one of the most disturbing parts of the judge's record:
"Within the last three years, Judge Sotomayor has heard three monumentally important cases involving: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the Fifth Amendment right to one's private property. In all three of these cases, Judge Sotomayor joined or authored very brief opinions that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. And in each case, Judge Sotomayor reached conclusions that denied individual Americans their rights against government power. "
Later: "Judge Sotomayor repeatedly stated, including in her opening statement, that litigants deserve explanations. That she looks into the facts, delves into the record, and explains to litigants why she rules for or against them. I have read the one-paragraph Ricci opinion. And Judge Sotomayor did not afford the firefighters the respect they deserved."
And: "After Maloney was decided, the Seventh Circuit also addressed this issue. Although the Seventh Circuit agreed with the Second Circuit, it reached this conclusion in a much more thorough and thoughtful manner that showed that the judges appreciated the significance of whether to apply the Second Amendment to the states. "
Likewise, he said, on the Didden v. Port Chester case involving eminent domain, "Judge Sotomayor's panel dismissed the merits of the plaintiffs' case in one paragraph."
And: "In these three recent cases, the litigants did not have their rights properly listened to nor protected, in my opinion. Is it because she would have preferred different results from the promotional exam for firefighters? Is it because she does not believe in the rights protected by the Second Amendment? Is it because she favors redevelopment? We are left to wonder, because the cases were certainly not decided based on the plain text of the Constitution and did not openly and thoroughly discuss the serious nature of the issues raised."
He also could have added that her opinion was equally and obnoxiously brief in the case of Hayden v. Pataki, where she would have ruled that currently incarcerated murderers and rapists have a right to vote while behind bars.
We at the Washington Times blasted this tendency to hide behind bizarrely brief opinions in the most controversial (and unpopular) of her decisions in this editorial. The problem is that litigants, lawyers, and the public cannot leave the courtroom understanding WHY a case was decided the way it was if the judge hides behind such brief explanations. On every level, this is an abdication of a judge's responsibility.

Heritage on medical devices

Carter Wood yesterday mentioned a congressional hearing slanted in favor of those who want to change pre-emption laws governing medical devices. Hans von Spakovsky at Heritage now has a good paper on the subject. Bottom line:
"The chaos and confusion caused by subjecting manufacturers of medical devices to the varying and conflicting rules generated by individual verdicts rendered by nonmedical experts would severely damage America's health system." Good stuff.

It looks as if shedding his nominal Republican affiliation may be allowing the true, Shanin's-dad Specter to emerge. His latest effort would open up a right to sue accountants, investment banks and others for "aiding and abetting" fraud. Lisa Rickard at the U.S. Chamber reacts. More: Bainbridge; Adler @ Volokh; Alison Frankel, AmLaw Daily (Specter "has apparently decided that the interests of the people of Pennsylvania are very closely aligned with those of the plaintiffs bar").

A bit belatedly, I'm pleased to introduce Quin Hillyer, who's a senior editorial writer at the Washington Times and senior editor at The American Spectator. He's held positions as editorial writer and columnist with the Mobile Register, Arkansas Democrat-Gazette, and Washington Examiner, and served as managing editor of Gambit Weekly in New Orleans. He's also a longstanding observer of the workings of the legal system whose work we've often linked in the past. Welcome.

Last week's featured discussion on corporate criminal liability between John Hasnas of Georgetown and Michael Seigel of the University of Florida drew wide interest, and now the D.C. Examiner has reprinted highlights in its "Manhattan Moment" column.

I wish I knew how to insert a file here, because the CATO Institute's amicus brief (joined by Goldwater Institute, Reason Foundation and Scharf-Norton Foundation for Constitutional Litigation) in the case of Alvarez v. Smith makes for quite interesting reading. It's a civil forfeiture case, and the amici argue that this is one case, like "many state forfeiture statutes, [that] provides powerful, dangerous, and unconstitutional financial incentives for law enforcement agencies and prosecutors offices to overreach. When the police department and the district attorney's office derive a significant part of their funds from forfeitures, the invitation to overreach is overwhelming. Marshall v. Jerrico, Inc., 446 U.S. 238, 250 (1980) (unconstitutional prosecutorial bias exists if there is "a realistic possibility that the [prosecutor's] judgment will be distorted by the prospect of institutional gain as a result of zealous enforcement efforts."). Where law enforcement agencies have such a direct and powerful pecuniary incentive to seize more than the law permits, it makes sense to impose more procedural safeguards to prevent abuse and protect private property rights."

Even if one is "tough on crime," that stance doesn't justify abuses of property rights. At first glance, based just on this brief, this is a case well worth watching -- and (again, reserving the right to revisit this original judgment pending deeper review) apparently worth rooting for the respondents, Chermane Smith, et al.

Walter Olson kindly asked me to guest-blog here all week, for which I am very grateful. I've gotten a slow start, but plan to make up for it. Anyway, it's worth noting that John McCain's somewhat surprising decision to vote against confirmation of Sonia Sotomayor to the Supreme Court showed not just a well-expressed sense of what the role of the court is, but an admirably thorough amount of research and analysis of Judge Sotomayor's record.

Most interesting, perhaps, is that McCain focused more on Sotomayor's District Court record than just about any other senator, rather than just analyzing her record on the Second Circuit Court of Appeals -- and that his analysis noted several rulings of particular interest to businesses and to property rights:

She was reversed due to her reliance on foreign law rather than U.S. law. She was reversed because the Second Circuit found she exceeded her jurisdiction in deciding a case involving a state law claim. She was reversed for trying to impose a settlement in a dispute between businesses. And she was reversed for unnecessarily limiting the intellectual property rights of freelance authors. These are but a few examples that led me to vote against her nomination to the Second Circuit in 1992 because of her troubling record of being an activist judge who strayed beyond the rule of law.

(NOTE: He obviously meant 1998, not 1992.)

In another forum, I have drafted pieces particularly critical of Sotomayor's decision in Merrill Lynch v. Dabit, summarized concisely by Ed Whelan: "In Merrill Lynch v. Dabit (2006), the Court, in an opinion by Justice Stevens, unanimously (8-0) reversed Sotomayor's ruling that certain state-law securities claims were not preempted by federal law. Stevens pointed out that the Court had rejected Sotomayor's interpretation in cases from 1971 forward."

I think honest businesses will rue the day Sotomayor gets on the high court. And I think McCain is right in his analysis overall.

That tactic? Actually requiring each claimant to assert a specific claim against each named defendant. The result? More than half a million claims have been resolved in just four months.

"Farewell to the Law Lords"

A British institution is no more.

Michael Greve of AEI has a few things to say about the "pro-business Roberts Court" meme.

"Card-Checked: The Game"

The game the whole nation will soon be playing -- at least if some on Capitol Hill get their way. [Americans for Tax Reform/Alliance for Worker Freedom via Dennis Westlind/World of Work and Jon Hyman]

W.R. Grace Chapter 11

At one point, the Grace chapter 11 appeared to be more of a trial of the asbestos litigation industry than a bankruptcy case. Halfway through the hearing on these issues, however, the asbestos committee (whose previous estimates of long-term trust liability reached as high as the $7 billion range), agreed to a deal providing only $3 billion of funding. Grace has received praise for the settlement and for the hard-line approach that led to it. Still, as Kirk Hartley notes, significant objections to the reorganization plan built around the settlement remain.

The Washington Post has apparently just discovered the problem with American class action settlements: here's a report they have just published on the allegedly defective Ford Explorer design. The class action lawsuit filed in California state courts netted $37,500 (in discounts on future purchases of new Fords, not in cash) for the alleged victims, and a cool $25 million for the class attorneys. The local judges got to clear their dockets, so everyone is a winner except Ford shareholders and, oh yes, the allegedly aggrieved parties.

Sampling med-mal verdicts

I talk back to Ronald Miller about the significance of a six-month slice of D.C. trial information, and then he talks back to me.

IUDs: "The best birth control"

Mass tort litigation American-style helped ensure that the purported lessons of the Dalkon Shield fiasco would never be forgotten. But what if those lessons are themselves faulty?

The Senate Health, Education, Labor and Pensions holds a hearing Tuesday, "Protecting Patients from Defective Medical Devices":

Witness Testimony

William H. Maisel, MD, MPH, Director, Medical Device Safety Institute, Beth Israel, Deaconess Medical Center, Harvard Medical School, Boston, MA

Professor Thomas O. McGarity, Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas School of Law, Austin, TX

Michael Mulvihill, Patient, Bettendorf, IA

Peter Barton Hutt, Esq., Senior Counsel in Food and Drug Law, Covington & Burling, Washington, DC

Michael Roman, Patient, Kirkwood, MO

There's chatter on Capitol Hill that someone may slip in anti-preemption language from the Medical Device Safety Act (S. 540 and H.R. 1346), into a health care bill as one nears passage. Assuming passage.

BTW, Michael Roman is a race car competitor who had a leg amputated, and as a chronic pain patient he attests to having been helped by medical devices.

And the savings opportunities being missed, in the Washington Post:

Defensive medicine -- the practice of ordering tests and procedures that aren't needed to protect a doctor from the remote possibility of a lawsuit -- is ubiquitous. A 2005 survey in the Journal of the American Medical Association related that 93 percent of high-risk specialists in Pennsylvania admitted to the practice, and 83 percent of Massachusetts physicians did the same in a 2008 survey. The same Massachusetts survey showed that 25 percent of all imaging tests were ordered for defensive purposes, and 28 percent and 38 percent, respectively, of those surveyed admitted reducing the number of high-risk patients they saw and limiting the number of high-risk procedures or services they performed.

Trial lawyers have lately seized on evidence that tests can be overused for other reasons as well as an support for the view that the role of defensive medicine can safely be ignored. Glad they've cleared that up!

P.S. More in a Detroit News editorial.

FDR's Court-packing, revisited

Charlotte Allen, a contributing editor to the Manhattan Institute's MindingTheCampus site, reviews a new book on the subject for the Weekly Standard (sub).

One of the most frustrating things about studying the intersection of bankruptcy and asbestos personal injury is the lack of transparency concerning the asbestos claims filed against the debtor and, ultimately, the asbestos trusts established by asbestos bankruptcy plans.

This is particularly troubling in recent years because lawyers and firms that submit claims to the trusts have increasingly argued that the trust distribution procedures, whose terms are generally left to the discretion of leading plaintiffs' tort lawyers, are nonetheless excluding valid claims and/or requiring more information that the tort system. In other words, these highly-sophisticated players in the tort bar could not maximize payouts and minimize time to payment when left almost entirely to their own devices.

As ridiculous as this may sound on its face, the representations may "ring true" when framed in the proper venue or manner - plaintiffs' bar presentations about "pitfalls" to avoid, selective representation of facts about claims that were denied, etc. - but that does not make them so. Adverse parties that obtain access to this information are bound by strict confidentiality orders concerning the information they may disclose, so they may not be able to fight this particular P.R. battle even when they know the facts are being misrepresented. And the information available publicly is, at best, sparse. In short, the evidence framing these debates is mostly anecdotal and inevitably far from complete - self-serving representations about the "true" state of affairs, largely unhelpful macro disclosures concerning operations, and "common sense" assessments of how trust distribution procedures seem to work.

If we are going to continue to rely upon privately-designed and administered trusts to address the asbestos injury and litigation crises, we need sufficient information made available for PUBLIC discussion. The parties that design these trust procedures again and again are in the best position to ensure that this happens. It's one thing to be forced to rely on anecdotal evidence because that's all that is available; it's another when that's all you choose to make available. Indeed, as we saw in the asbestos injury conspiracy, it speaks volumes about the reliability of the "evidence" deemed suitable for public consumption.

Andrew Grossman of Heritage on the costs of stepping wrong (PDF) amid the vast and ever-growing undergrowth of federal criminal law, in this case environmental.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.