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January 2010 Archives

President Obama, speaking to House Republicans at their policy retreat in Baltimore Friday:

From the start, I sought out and supported ideas from Republicans. I even talked about an issue which has been a holy grail for a lot of you, which was tort reform, and said that I'd be willing to work together as part of a comprehensive package to deal with it. I just didn't get a lot of nibbles.

Beyond talking, the Administration's nod to medical liability reform is a Health and Human Services program of demonstration grants to states, the Patient Safety and Medical Liability Reform Demonstration announced Sept. 17, 2009. (Presidential memo, and White House fact sheet.)

HHS's Agency for Healthcare Research and Quality (AHRQ) is running the $25 million grant program. The panel called to provide input on the process, the Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, held a little-reported meeting on Oct. 26, and the deadline for submitting grants was Jan. 20.

Is this a serious effort to bring exorbitant legal costs of medical care under control? Reading through the online materials, we find this, "Clarification and Update Notice for AHRQ Medical Malpractice Funding Opportunity Announcements (FOAs): RFA-HS-10-021 and RFA-HS-10-022":

The Research Objectives Section in both FOAs currently provide background information and descriptions in the areas of 1) Patient Safety and Risk Management and 2) Medical Liability. This Notice clarifies that AHRQ requires all applications for both of these FOAs to address both of these two areas in order to be responsive to the FOAs. Applications that do not address both patient safety/risk management and medical liability will not be considered responsive, and will not be reviewed by AHRQ.

So don't bother making straight-forward tort reform proposals like limiting non-economic damages.

AHRQ says peer review will take about four months, with the grants to follow four months later. That schedule puts us into the early fall, i.e., campaign season, and will give candidates an opportunity to say things like, "The Administration actually proposed health care tort reform."

(Hat tip for the President's statement, Philip Klein.)

"House Democrats are planning a vote next week on legislation that would repeal the McCarran-Ferguson Act anti-trust laws exemption for health care and medical malpractice insurers." Insurers have warned that without a legal safe harbor for exchanging some information within the industry about past claims patterns, some insurers will be underwriting in the dark and will be more likely unknowingly to write coverage for bad risks. In the case of medical malpractice insurance, that means they'll be more likely to offer unduly cheap and abundant coverage to high-risk sorts of provider that an information-sharing model would have given them fair warning about. That will encourage there to be more of those sorts of high-risk providers.

One wonders whether the Litigation Lobby has not considered that possibility at all, or finds it well worth risking for the sake of getting its payback.

The American Association for Justice's winter convention opens today in Maui, and two Democratic politicians and trial lawyers are being criticized for attending fundraisers organized on their behalf. The National Republican Senatorial Committee issued a news release knocking U.S. Rep. Bruce Braley (D-IA) but mostly directed at Roxanne Conlin, a Senate candidate.

Conlin, a Des Moines personal injury attorney, is the former president of the American Trial Lawyer Association; she hopes to challenge Sen. Chuck Grassley (R-IA) in the fall. An invitation to the fundraisers was addressed to "My fellow women trial lawyers" and includes messaging on Citizens United v. FEC that we'll probably see in many direct mail pieces:

I am pleased to report that Congressman Bruce Braley and Roxanne Conlin will both be in Maui during the AAJ Winter Convention.

Congressman Braley, a trial lawyer himself, has been a steadfast supporter of our cause in his two terms in office. Since he has to run every two years, he is always targeted by opponents of civil justice, and this year will be no exception.

Roxanne Conlin, AAJ's first woman president, is running for the Senate in Iowa, hoping to unseat incumbent Charles Grassley. Since we've lost our Super Majority, Roxanne's race presents a solid opportunity to convert a Republican vote to a Democratic one!

Most importantly, given the Supreme Court's recent ruling on campaign finance, expect the Chamber of Commerce to oppose these two worthy candidates with every dollar they can muster. Now more than ever, these two incredible trial lawyers need your support!

The NRSC issued a statement from a spokesman, Colin Reed, declaring Conlin to have violated her pledge to stand against special interests.

The NRSC news release is available at IowaPolitics.com here. The Iowa Independent has a report, as well. (The Independent is one of the online news operations supported by Center for Independent Media, a 501(c)(3) non-profit that funds local reporting with a leftward tilt.)

"The doctor who first suggested a link between MMR vaccinations and autism acted unethically, the official medical regulator has found. ... [Panel chairman Dr. Surendra Kumar] also said Dr Wakefield should have disclosed the fact that he had been paid to advise solicitors acting for parents who believed their children had been harmed by the MMR." [BBC] More coverage: Kathleen Seidel, Ronald Bailey/Reason "Hit and Run", Liz Ditz, more on MMR vaccine and litigation.

Guess we know where Chuck Schumer comes down on the Supreme Court's ruling in Citizens United v. FEC. The Senate Rules and Administration Committee he chairs has entitled its hearing next Tuesday,"Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections."

On Wednesday, it's the House's turn. The House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties holds a hearing, "First Amendment and Campaign Finance Reform After Citizens United."

UPDATE (11:50 a.m.) Tim Carney at The Washington Examiner provides a bit of illumination, "How the court campaign finance ruling hurts Wall Street favorite Chuck Schumer," featuring a fine quote from Schumer:

This activist and far reaching decision is even worse than we had feared. This opens the floodgates and allows special interest money to overflow our elections and undermine our democracy. The bottom line is, the Supreme Court has just predetermined the winners of next November's election.It won't be the Republican or the Democrats and it won't be the American people; it will be Corporate America.

On a party-line 3-2 vote, the SEC says companies need to disclose global warming exposures, and its critics suspect that politico-environmental objectives may be more at play here than motives of investor protection [Megan McArdle, Jonathan Adler] Meanwhile, as John Schwartz reports at the New York Times, advocates of global warming litigation have taken heart from a couple of favorable rulings and hope to reverse the dismissal of the much-watched Kivalina suit. A Swiss Re report (PDF, via Pero) is also being read as backing for the view that the suits are not going away soon. Christopher Fountain has this observation:

It's notable that the Eskimos bringing this Alaskan suit live on a barrier island, by definition a temporary, always moving geological structure. If they can win damages for the result of living on earth, who can't?

P.S. And here's analysis from Bainbridge (companies already must report important exposures, SEC's "guidance may muddy the waters," and "Investors don't get much of value from [the newly required] disclosures") and Ribstein ("what really bothers me is that firms (meaning, of course, their managers and shareholders) have been forced, upon penalty of fines and damages, to participate in the contentious global warming debate").

Meteorites, pandas and pants

Washington is bereft as China reclaims ownership of the panda cub born here four years. ago. (Washington Post, "National Zoo panda Tai Shan to fly to China on custom FedEx plane.")

So who, or what, will replace Tai Shan in the heart of Washingtonians? The previously endearing Gilbert Arenas is now a felon and has been suspended by the NBA for bringing guns to the workplace, so he's out. Roy Pearson of pants suit fame is quirky, but not in a cute way; he's back in the news this week trying another strategy -- attack the court -- to regain his job as a D.C. administrative judge.

Pet rock to the rescue! Or rather, pet meteorite. Today's Washington Post reports on the dispute over ownership of the "spunky bit of chondrite" that plunged through the roof of a doctor's office on Jan. 18 in Lorton, Va. (previously known mostly as the home of the Lorton Prison). The doctors, Marc Gallini and Frank Ciampi, were planning to donate the meteorite to the Smithsonian and contribute $5,000 to Haiti relief. But as the Post accounts, "Ownership battle brews over Virginia meteorite":

[In] an extraterrestrial soap opera still unfolding, the landlords of the Virginia building that houses the doctors' office now say they are the rightful owners of the meteorite. Museum officials said the landlords informed them, midday Thursday, that they were coming to take the stone out of the Smithsonian by sundown.

Gallini and Ciampi hustled to get a lawyer to fire off a letter to the museum, barring them from releasing the stone, pending resolution of ownership.

The landowners have a rock solid case, we think. In the United States, the property owners own the meteorite. See Law of Ownership and Control of Meteorites by D.G. Schmitt, McEwen, Schmitt & Co. Barristers and Solicitors.

Unless there's something unique in Virginia law? There's no official state rock, but if the Legislature acts quickly to give chondrite that status, then it becomes a cultural artifact subject to different laws altogether. Although that would be a taking...

State of the Union, cont'd

UCLA lawprof Adam Winkler, at HuffPo, says "Alito Was Rude (But Right)". His colleague Stephen Bainbridge invokes Abner Mikva. Bradley Smith at NRO gets into some of the details of foreign money and U.S. politics. And Roger Clegg at NRO catches the President being tendentious on the topic of job-bias enforcement.

More: Randy Barnett (Georgetown) in today's WSJ:

In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly. ...

Then there is the substance of the remark itself. It was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation.

While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

That is a whole lot to get wrong in 72 sanctimonious words. Clearly, this statement had not been vetted by the president's legal counsel. Solicitor General Elena Kagan, for example, would never have signed off on such a claim. Never.

Around the web, January 29

Tour of the states edition:

I was on MSNBC Live this afternoon (clip here) discussing the president's State of the Union reference to Citizens United. As is typical for such a forum, the brief discussion focused less on the substance of the Supreme Court's decision and more on the drama of the situation: the president's highly unusual step of calling out the justices in front of him for a specific recent ruling, and Justice Alito's equally unusual reaction to that presidential reference (see Walter's earlier post here).

On the substance, since my time to comment was fairly limited, and I've yet to opine publicly on the decision, I want to clarify a few things about my thoughts:

In his State of the Union message, President Obama claimed the Supreme Court's recent decision in Citizens United would "open the floodgates" for foreign companies to "spend without limit in our elections." Justice Samuel Alito could be seen mouthing words and in particular, per Gerard Magliocca, the phrase "That's not true". For why he might have reacted that way, see Politifact "Truth-o-Meter" (cross-posted from Overlawyered, where there are more links).

"U.S. District Judge Joseph Goodwin plans to punish lawyers who filed worthless claims against Mylan Pharmaceuticals and Actavis Totowa." Defense lawyers spent more than $100,000 establishing that some plaintiffs who claimed injury from the heart medication had other causes of death listed on their death certificate, and at least one lawyer admitted that his client had never used the drug. [Korris, WV Record]

Adventures in cy pres

As Andrew Trask summarizes the uncanny court ruling: Unclaimed funds left from hotel-fire case, so best cy pres recipient was - Animal Legal Defense Fund? [Russell Jackson]

What a timely editorial

The Maui News writes, "Maui needs tort reform."

Opening in Maui on Saturday, the American Association for Justice's winter convention. AAJ's major lobbying expense in Congress this last quarter: preventing tort reform.

Medical liability reform was a big issue in Hawaii's 2009 Legislature, but legislation did not win final approval. The publisher of the Maui paper is keeping the pressure on.

Earlier Point of Law posts on the Maui convention here. As noted earlier, big speakers are Montana Gov. Brian Schweitzer and Hawaii Congressman Neil Abercrombie. Abercrombie is resigning soon to run for governor, so his comments to the trial lawyers audience should be of keen interest to Hawaii's voters. Will his speech be open to the press?

Med mal reform in Virginia

Christopher Robinette at Torts Prof has a couple of updates, including proposed legislation "authorizing a disclosure/early offer pilot program." More at VLW (also).

Lawsuit alleges death by dentures

Litigation has been developing for a while alleging toxic overdoses of zinc in denture cream, and now from Miami comes what appears to be the first wrongful-death suit.

James Copland and Paul Howard of the Manhattan Institute say legal reform deserves a place in the speech. [Examiner]

FCPA Blog describes some of the elaborate stage-management of the sting for maximum media effect, the WSJ Law Blog connects the dots on the role of "Individual 1" in helping lure arms dealers into the trap, and FCPA Professor has a guest post from Dru Stevenson on the entrapment defense. Earlier here. More: Peter Henning, NYT.

Per Legal NewsLine, the state Board of Administration has unanimously voted to approve a plan under which outside counsel representing the state of Florida will be paid on a sliding scale that tops out at $50 million. The plan is based on the current practice of Attorney General Bill McCollum, who still hopes that the legislature will enact it into law as the rule for his successors.

The American Association for Justice's "Litigation at Sunrise" sessions at the AAJ convention cited below end with a presentation, "Hawaiian Heli-Tour Industry: Under the Radar," by Kristine Meredith of the Danko Law Firm in San Mateo, Calif. Plaintiff." Meredith's areas of expertise with the firm, which bills itself as "Trial Lawyers for the Plaintiff," include aviation law.

In fact, at the firm's Aviation Law Monitor blog, Meredith posted a new entry Monday, "Crashes of Helicoptor Air Tours in Hawaii: On the Rise or Decline?" And last April, she asserted bloggingly, "Hawaiian Helicopter Tours: Profit Motive Still Trumps Safety."

Funny thing is, AAJ's convention brochure promotes helicopter tours of the island. From page 5:

Air Tours Hana/Haleakala Helicopter Adventure
Fly like a tropical bird above two of the most famous sites on Maui -- Hana and Haleakala Crater -- and everywhere in-between. Cruise over the alien vista of Haleakala, the "House of the Sun" and see the terrain change right before your eyes. From Haleakala, you'll follow the rugged shorelines of Northeast Maui to "Heavenly" Hana, home to over one hundred cascading waterfalls, rainforests and a dramatic coastline.

What must Hawaii convention officials think? Here's AAJ, a group that promotes the services of a local business -- helicopter tours -- as an attraction to get people to attend their convention. Yet AAJ sponsors a lawyer discussing litigation against the very same tour industry.

That's the way you pay back Hawaii's hospitality? "Fly like a tropical bird, and then sue!"

The American Association for Justice's winter convention begins this Saturday in Maui. As the convention brochure and the online schedule document, the list of legal targets is long, indeed.

We always like to check out the topics discussed at the "Litigation at Sunrise" session, because the presenters usually include the more entrepreneurial among the trial lawyers. So to speak. From the agenda:

  • Birth Defects Suffered by Children Whose Parents Are Exposed to Chemicals Used in "Clean Rooms" -- Frank Verderame, AZ
  • Denture Cream -- Andres F. Alonso, NY
  • Preemption in Generic Drug Cases Post-Levine -- Seth A. Katz, CO
  • Pharmacy and Pharmacist Liability and Other Resources from the AAJ Exchange -- E. Drew Britcher, NJ
  • Fleet -- M. Clay Martin, AL*
  • What Is a Qui Tam Case? How to Know It When You See It -- Jan Soifer, TX
  • Recent Trends in Federal Whistleblower Law -- Brian J. McCormick, Jr., PA
  • Pool Safety: Drain Entrapment -- Dennis M. Lynch, IL
  • How I Learned to Relax and Love Mediation -- Douglas K.W. Landau, VA
  • Zimmer Durom Cup -- Robert J. Binstock, TX
  • Hawaiian Heli-Tour Industry: "Under the Radar" -- Kristine K. Meredith, CA

There are so many ideas for litigation that each speaker is limited to 10 minutes. Otherwise, they couldn't squeeze in all the presentations by 8:30 a.m.

* Fleet refers to oral sodium phosphate products for bowel cleansing, one of the many specialties of Mr. Martin's firm in Huntsville, Ala. The convention schedule also lists an entire litigation group devoted to oral sodium phosphate products.

Around the web, January 26

  • "The Coming Counter-Reformation in Securities Litigation" [Boris Feldman via Kevin LaCroix] "Could new regs bring more lawsuits?" [CFO.com]
  • "Obama's reckless blast at the Court" [Steve Chapman] Related on Citizens United: Jacob Sullum.
  • "Workers seek $500 million over benzene vapor release at Texas City refinery" [SE Texas Record]
  • Claim: more California lawyers have turned to dishonesty because of economic recession [Above the Law]
  • "$165 Million Schering-Plough Class Action Settlement Includes $37 Million in Fees" [NJLJ, securities fraud]
  • "Bonus is poison": a tale of financial managers and their incentives [Hodak Value]

John Tierney on tainted research

On climate change and beyond: "Conflict-of-interest accusations have become the simplest strategy for avoiding a substantive debate. The growing obsession with following the money too often leads to nothing but cheap ad hominem attacks. ...It's naive to caricature scientific disputes as battles between 'industry' and the 'public interest,' as if bureaucrats and activists didn't have their own selfish interests (and wealthy, powerful allies like trial lawyers)."

Which means there'll be less attention to the curious world of asbestos lawyering over the next election cycle. Michelle Malkin has more.

The American Association for Justice has filed its fourth quarter 2009 congressional lobbying disclosure form (here, reporting $1.33 million in expenditures. That's up from $1.06 million in the third quarter, an increase probably related to lobbying on the health care legislation.

The filing provides more evidence that the trial lawyers helped craft language establishing state demonstration projects, preventing serious reform. Under the HCR (health care) category, AAJ lists its activities: "Lobbying with regard to the establishment of state-based pilot projects concerning medical liability." Under TOR (torts): "H.R. 3950 (Patient Protection and Affordable Care Act); specific interest in provisions relating to state-based demonstration projects relating to medical liability; and specific interest in proposed amendments relating to medical liability tort reform, including: Ensign amendment #2927 (offered and tabled by vote), and 17 amendments that were filed but not offered."

For the first time in 2009, AAJ's disclosure form reports the association's involvement with homeland security issues (HOM), specifically House chemical facilities security legislation. Five AAJ lobbyists worked the issue, seeking to preserve "citizen suits" and prevent federal preemption of state laws and regulations. The references in AAJ's disclosure form:

  • H.R. 2868(Chemical and Water Security Act of 2009); specific interest in amendments relating to citizen suits and federal preemption of security regulations at chemical facilities.
  • Stearns amendment, not agreed to; to restrict states from implementing security regulations at chemical facilities that are more stringent than those outlined by the federal government.
  • Upton amendment, not agreed to; to prohibit citizen civil lawsuits against the Department of Homeland Security.

The House passed the Chemical Facility Anti-Terrorism Act in early November. For more on the "citizen lawsuit" provisions, see this Point of Law post.

Yale, PCRM, and grilled chicken

Yale law professor Robert Solomon, director of clinical studies at the institution, is plaintiff's counsel in a lawsuit filed late last year contending that it is a violation of Connecticut consumer protection law for McDonald's, Burger King and Friendly's not to disclose to customers that their grilled chicken contains naturally occurring carcinogens (as do a wide variety of grilled, charred and barbecued food). Richard Goldfarb at Food Liability Law has tracked down the documents in Delio v. McDonald's (PDF). One nonobvious point that might be added, however: the "Cancer Project" promoting the lawsuit appears to be yet another project of the dubiously named Physicians Committee for Responsible Medicine, an animal-rights organization which regularly pursues highly publicized crusades against milk, hot dogs, and many other nonvegetarian articles of diet. If memory serves, though, they usually aren't able to draw on such fancy legal representation. For much more on PCRM, see the coverage at Overlawyered here, here, here, and here.

Labor policy and labor law are the theme of the latest (Winter 2010) issue of the Cato Journal. Among the contributions (all PDF) are Armand Thieblot, "Unions, the Rule of Law, and Political Rent Seeking"; George C. Leef, "Prevailing Wage Laws: Public Interest or Special Interest Legislation?"; and Charles W. Baird, "Toward a Free-Market Union Law."

"Money isn't speech"

Eugene Volokh shreds one naive objection to the Citizens United decision.

P.S.: The tag-teaming of the hapless David Kairys (Kerr, Volokh) is worth a look too.

P.P.S.: If adversaries spoke of gutting you like a trout you might play politics too [Coyote, with more from Steve Bainbridge and Larry Ribstein] Gerard Magliocca at ConcurOp damns with faint praise ["Citizens United -- Not as Bad As You Think"] More: Ilya Somin, Steve Chapman.

Legal drama, circa 1954

In 1954, WMAQ radio in Chicago broadcast a drama series in conjunction with the Chicago Bar Association, "Case Dismissed." Host of the program was John C. Fitzgerald, Dean of the Law School, Loyola University.

As the Old Time Radio Researchers Group summarizes: "The program shows us just how fragile liberty and justice can be. These stories of everyday events are still interesting, even after 50 years. Stories of criminal liability, legal wills, buying on installment, and leasing an apartment. Each story is well written, and the acting, though dated and a bit hokey by today's standards, still manages to achieve the desired effect." Agreed, it's pretty good.

The 12 extant episodes are available at www.archive.org here, and episode summaries are here. A recurring theme is the economic anxiety of people looking for work or having their jobs threatened. And: Get a lawyer!

Assemblyman Greg Ball (R-Patterson) has proposed "A.8921, which limits farm liability through a tort reform package that will extend limited liability to horseback riding facilities and farm U-pick operations to protect such farms from open-ended lawsuits."

Early line on New York AG race

The Wall Street Journal's Kate Kelly reports on early Democratic maneuvering for the seat being vacated by gubernatorial hopeful Andrew Cuomo. Candidates include former Eliot Spitzer aide and insurance commissioner Eric Dinallo, who's drawing some Wall Street support even though (or is it because?) he talks a tough enforcement game; class-action plaintiff's lawyer Sean Coffey; and Nassau County D.A. Kathleen Rice. More: WSJ Law Blog.

On SSRN, Genevieve Grant and David M. Studdert of the University of Melbourne take up an issue we've encountered before. Abstract:

Do injured persons whose injuries are potentially eligible for compensation under social insurance schemes experience worse health outcomes and slower recoveries in the medium-to long-term than persons with similar injuries that are not covered by compensation schemes? Epidemiologists and health services researchers have probed that question since the 1970s, but interest in it has accelerated sharply in the last decade. A substantial empirical literature now exists to support the existence of a link between compensation status and health outcomes. A strand of that literature specifically implicates the role of compensation processes, lawyers and adversarialism in producing or perpetuating ill health among claimants.

This article critically reviews research into the compensation-health relationship. Systematic methodological weaknesses are identified - in particular, an inability to come to grips with the legal contours and realities of compensation processes. We conclude that, although there are important gaps in the evidence, profound questions about the impact of compensation processes on claimants' health have been placed on the table. Legal professionals and policymakers must take these questions seriously. The involvement of legal scholars in multidisciplinary research may improve the quality of the evidence base and facilitate appropriate policy interventions.

The paper is titled "Poisoned Chalice? A Critical Analysis of the Evidence Linking Personal Injury Compensation Processes with Adverse Health Outcomes" (via TortsProf)

"Dissecting the Investor Protection Act"

Bruce Carton analyzes the provisions of a House-passed bill that would open up aider and abetter liability, establish securities whistleblower bounties, expand extraterritorial jurisdiction, and stimulate litigation in a variety of other ways.

Eighth Circuit goes on joinder bender

James Beck thinks the court erred in failing to order separation of an unpersuasively clumped set of Prempro mass tort cases.

Citizens United reactions

Early reactions to the blockbuster free speech decision from Jacob Sullum, Reason; Jonathan Adler; Stephen Bainbridge (and more on the legal personhood of corporations); Ira Stoll with a note on Chuck Schumer; Ilya Somin; and Eugene Volokh (with more on the chilling effect of complexity in speech regulation, on the decline of the theory that broadcasting deserves less First Amendment protection than other speech, on Justice Stevens's contemplated press exception, and on the ruling's effects on mainstream media); Ann Althouse; Larry Ribstein.

P.S. And yes, now that you mention it, it is a rather one-sided list. This just isn't a day when I'm inclined to give the proponents of censorship equal time. For a more nuanced view critical of the decision as disrespectful of precedent, however, see Stuart Taylor, Jr.

On the side of the First Amendment, mostly. (Opinion here.)

There are many commentaries and analyses elsewhere, but we did want to link to the Supreme Court's docket of the case. Sixty-eight briefs filed! That's a lot of amici.

From a White House news release dated Jan. 20 announcing presidential nominations:

  • Louis B. Butler, Jr., of Wisconsin, to be United Stated District Judge for the Western District of Wisconsin, vice John C. Shabaz, retired.
  • Edward Milton Chen, of California, to be United States District Judge for the Northern District of California, vice Martin J. Jenkins, resigned.

These two controversial judicial nominees were voted out by the Senate Judiciary Committee, but Republicans prevented their nominations from being held over after the first session of Congress adjourned on Dec. 24.

Both must go through the committee process again, but new confirmation hearings are unlikely.

We've followed Butler because of his history as a Wisconsin Supreme Court Justice ruling against medical liability caps and his defense of "collective liability" for manufacturers of lead paint. (Previous post.) Wisconsin Senators Herb Kohl and Russ Feingold vigorously back his nomination; both serve on Judiciary. (See Nov. 4 hearing.)

UPDATE (12:58 p.m.): Butler was appointed to the Wisconsin Supreme Court by Gov. Jim Doyle, a Democrat. In 2008, he was defeated for election to a full, 10-year term by Michael Gableman, a Burnett County Circuit Court judge and former prosecutor. Gableman's victory, aided by business support, has made him a bete noire to the state's activist left. The latest development is lawyers seeking to force Gableman to recuse himself from criminal appeals. See Milwaukee Journal-Sentinel, "Gableman isn't biased against criminal defendants, he says."

The FBI might have targeted any of many lines of export business for its unprecedented sting operation ("the first large-scale foreign bribery investigation using undercover federal agents"). It happened to select a big gun show, the sort of event many of whose participants have very little love lost with the Obama Justice Department. Now Business Week says, half-hopefully or not, that the resulting prosecutions may "leave the firearms industry wounded." Was that a foreseen consequence? Much more about the Foreign Corrupt Practices Act in our earlier FCPA posts.

More: Ira Stoll talks with Harvey Silverglate about the Supreme Court's narrow definition of entrapment. And Mike Koehler at FCPA Professor has a lot of detail about the defendants and allegations.

Further: From Koehler, new details hinting that foreign bribery in the arms trade was something already on Justice's radar screen before the sting.

Around the web, January 21

Health care liability edition:

  • How trial lawyers kept serious malpractice reform out of the House and Senate bills [L.A. Times]
  • "Tort reform hangs in the balance in Georgia" [Ann Latner, Clinical Advisor]
  • "Lawyers trolling for St. Joseph's stent patients" [Jay Hancock, Baltimore Sun]
  • At Children's Hospital, Boston, doctors vainly try in eight procedures to save 3 year old with heart birth defect, family awarded $15 M [Boston Globe via White Coat]
  • Med-mal in New Jersey: "Yes, it is a crisis" [NJLRA, more]
  • "How only lawyers can determine medical standard of care" [Ohio gastroenterologist Michael Kirsch, KevinMD]
  • Pro/con debates on the subject [White Coat v. Max Kennerly in Emergency Physicians Monthly; Randolph Pate v. C. Andrew Childers in the Atlanta Journal Constitution]
  • Michael Frakes, "Malpractice Standards of Care and Regional Variations in Physician Practice Styles" [SSRN via TortsProf]
  • Wisconsin Senate votes to allow malpractice suit damages for pain and suffering by parents of adult-age children [AP/WKBT]
Another law school gets cy pres money

A $75 million class action settlement with American Express over credit card foreign exchange conversion fees includes a $2 million slush fund whose beneficiaries include the University of Miami law school, Legal Services of Greater Miami and children's advocacy groups. [Daily Business Report]

John Eastman, dean of the Chapman University College of Law, is closer to declaring in the California AG race.

The paper's editorial (via Carter at ShopFloor) on the Massachusetts results makes an interesting point:

But imagine that Mr. Obama had refused to take the Republicans' no as his final answer. The president acknowledged, for example, that malpractice litigation is a factor in driving up health-care costs. He signaled he might be open to its reform if Republican senators would support his overall framework. When none did, malpractice reform fell by the wayside, which was the predictable response; why offend a Democratic interest group (trial lawyers) for no apparent political gain? But Mr. Obama could have insisted: This is a good idea, not just a Republican idea, and it belongs in health-care reform. A series of such steps, difficult as they would be, might have a real effect on public opinion and the political climate.

Related here, here, here, etc.

The perils of process-manipulation

At Commentary, John Steele Gordon notes that Massachusetts Democrats tinkered with the procedures for filling U.S. Senate vacancies not once but twice in the unprincipled pursuit of short-term political advantage. At least one of these changes, and arguably both, wound up backfiring on them. You'd think there must be some lesson here, wouldn't you?

P.S. And David Frum points out that on the subject of the Senate filibuster, for similar reasons, some on the conservative side come off in a less than favorable light.

It's been hard since at least Mayor LaGuardia's day, notes Steve Malanga of the Manhattan Institute in a City Journal article and sidebar.

The year ahead in food liability

"Nobody doubts that we're in the midst of the most significant legislative and regulatory changes in food safety in generations." Ken Odza at Food Liability Law has details.

"The EPA Power Grab"

Matthew Fernholz at the Marquette Faculty Law Blog on the agency's greenhouse-gas ruling.

Posner and Madison County

Jim Beck recounts what happened when the inimitable jurist was presented with the case of Carr v. Tillery, arising from rivalries between class action lawyers in a truly inimitable jurisdiction.

"Tax informants are on the loose"

"A new federal rewards program dishes out cash to people who turn in friends, relatives and employers for fudging their tax returns." Forbes reports on the Congressionally mandated spread of bounty-hunting principles in a particularly sensitive area (related).

The city's efforts to blame lenders for its urban decay aren't over yet. More: Consumer Law & Policy (earlier).

Last month the Searle Center at Northwestern released "State Consumer Protection Acts: An Empirical Investigation of Private Litigation." Russell Jackson notes the report's key findings:

* Litigation under state consumer protection acts has increased by 119% between 2000 and 2007.

* Vague statutory definitions of prohibited conduct are a major driver of state consumer protection act litigation.

* Between 1995 and 2007, the expected value of recovery for state consumer protection act plaintiffs increased dramatically as measured by the statutory requirements to bring a cause of action and available remedies.

* Those states with more generous remedies and less strict requirements for bringing an action see more consumer protection act litigation.

* Employing a "Shadow FTC" of five Shadow Commissioners who reviewed representative sample case scenarios, most state consumer protection act claims would not constitute illegal conduct under the Federal Trade Commission's consumer protection standards.

* Almost 40% of consumer protection act claims where the consumer plaintiff prevailed at trial would not constitute illegal conduct under the FTC's consumer protection standards.

Around the web, January 18

  • Massachusetts Senate race could give Republicans the added vote they need to block EFCA [Cal Labor Law] New poll shows union members opposing card check [Workforce Fairness Institute via Eric B. Meyer]
  • ObamaCare demonstration projects: "Oregon Seeks $300,000 Tort Reform Grant" [Lund Report]
  • Employers advised to make staff "sign and acknowledge receipt" of not-so-favorable performance reviews [Schwartz]
  • Any and all tactics? Website of Center for Justice and Democracy offers "kudos" for disruption of Detroit Auto Show [Pop Tort]
  • Market for directors' and officers' insurance on the rise in Europe as lawsuit risks mount [Kevin Lacroix]
  • Kirk Hartley of the Global Tort blog, a key stop for coverage of asbestos and bankruptcy issues, is switching law firms.

How to get bounced on peremptories

Prospective jurors, listen up: if you want to get out of serving you should try to give "correct" answers in voir dire, the kind that don't result in a for-cause removal, but do it with folded arms and a scowling expression [Turkewitz]

Sean Wajert looks at the cases.

Around the web, January 16

Employment-law edition:

  • Something wicked this way comes - Congress's 2010 employment law agenda [Hyman, Ohio Employer's Law]
  • New volume, "Labor Rights in the Era of Globalization" [Workplace Prof]
  • Not your father's New Hampshire: new Granite State plant-closing law goes beyond federal requirements [Michael Fox]
  • "Top 10 Wage-and-Hour Settlements Tally 44% More in 2009" [ABA Journal on Seyfarth paper]
  • Smuggling the "workplace bullying" crusade into ... hospital accreditation? [Michael Fox]
  • "Caregivers as a Protected Class?" [new paper on "family responsibilities discrimination"; Workplace Prof]

What Texas did

Volume 1, Issue 1 in the Texas Public Policy Foundation's Liberty Lecture Series (PDF) is a speech by Brooke L. Rollins on the liability reform experience in the Lone Star State.

Florida: "Attorney General Bill McCollum renewed his push to cap contingency-fee payments to outside lawyers who sue on behalf of the state and make contracts with outside firms competitively bid and open to public scrutiny." [Tallahassee Democrat]

Related: the class-action-firm "beauty contest" held by the government of Florida revealed a lot of interesting information about leading firms in that sector, which Andrew Trask tries to put in perspective.

Professor Bainbridge's perhaps drastic proposal regarding the oversupply of lawyers. Plus: Scott Greenfield rounds up other contributions to the recent "too many lawyers" discussion.

On the Scruggs scandals, "Kings of Tort"

In the mail: the new book by Alan Lange (YallPolitics) and prosecutor Tom Dawson telling "The true story of Dickie Scruggs, Paul Minor, and two decades of political and legal manipulation in Mississippi" (earlier).

Mike Koehler at FCPA Professor notes that the law appears to ban doing favors for foreign government officials in circumstances where the same favors would be lawful if done for domestic U.S. government officials.

"The Maryland Court of Appeals affirmed the state's caps on malpractice awards in a ruling Tuesday, overturning a decision by a Montgomery County Circuit Court judge." [Gazette, Miller, earlier]

Suing over Goldman Sachs' pay

"Marla Singer" at Zero Hedge senses a settlement down the road. More: Hodak Value.

From the SSRN abstract (via Workplace Prof) of David Bernstein (GMU, law) and Thomas (Tim) Leonard (Princeton, economics), "Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform":

...in the early 20th century American labor reformers promoted an ideology that advocated excluding from the workplace those they regarded undesirable, undeserving, or defective. Once progressive ideology came to dominate government policy during the Great Depression, labor legislation was enacted that intentionally set out to exclude "undesirable" workers from the workplace.

Prohibition and litigation, hand in hand

At the very end of the post Wednesday on the new government and activist alliance agitating for a ban on cell phones in cars, we added an afterthought:

The National Highway Traffic Safety Administration is also promoting the group, and in earlier posts we had noted the new NHTSA administrator, David Strickland, is a former lobbyist for Association of Trial Lawyers of America, now American Association for Justice. However, this cell phone prohibition campaign began before his Dec. 24 Senate confirmation, and we don't immediately infer an interest in this effort from the plaintiffs' bar.

We had paid insufficient attention to the issue. There's no need to infer. It's explicit.

Distracted driving has been a topic at the American Association for Justice's website, for example here and here. The New York Times in December reported on a woman suing cell companies following her mother's death after her vehicle was struck by an allegedly distracted driver, "A Victim's Daughter Takes the Cellphone Industry to Court."

Various lawyer/advertisers promote the issue, e.g., Jim Adler & Associates, a Texas law firm: "If you or a loved one is harmed by a distracted driver, alert a cell phone accident lawyer or attorney or a car accident lawyer or attorney with Jim S. Adler & Associates. The fight against distracted driving has only just begun."

And from the Matthew D. Kaplan law firm of Portland, "Oregon Distracted Driving Law Takes Effect": "The fact that Oregon now restricts distracted driving may also make the issue the subject of more civil actions around the state. If you have been injured by someone who was inappropriately using a cellphone behind the wheel, consulting with a Portland distracted driving lawyer should be among your top priorities. Even if the police have not issued a criminal citation to an Oregon distracted driver you, as the victim, may be entitled to a substantial settlement."

The combine of government regulators, impassioned activists, politicians and trial lawyers has reshaped America into land of regulation by litigation -- a process that's best served by creating emotion-laden crises that always demand more and more action. That process is well under way on the cell phone/distracted driver issue.

Indeed, for a good description of the prohibitionist fever on the issue, read The Day's account of the news conference Tuesday where Transportation Secretary Ray LaHood declared, "We're not going to sit around and we're not going to wait for Congress. We're moving ahead."

In all seriousness, we're very sorry for people who have been hurt, reckless drivers ought to be held accountable, and people should put down their cell phones and watch the road.

Mayor Bloomberg is embarrassing himself again, since "modern medicine" thinks nothing of the sort. More: Overlawyered; Daniel Compton/New York Post.

And they're modeled explicitly after Mothers against Drunk Driving.

From today's Washington Post, "28 percent of accidents involve talking, texting on cellphones":

Because of the extent of the problem, federal transportation officials unveiled a organization Tuesday, patterned after Mothers Against Drunk Driving, that will combat driver cellphone use.

The group is called FocusDriven, promoted now at a new government website -- www.distraction.gov. The DOT's news release describes the group as a "national non-profit," but it's difficult to detect any lines separating government, activist group, and lobbying outfit. The Post reports:

"It's hard because everyone's addicted to their cellphone," said FocusDriven's president, Jennifer Smith, a Texan whose mother was killed by a man who ran a red light while talking on his cellphone. "That's where we come in. We put a real, human face to it. We're going to put the pressure on legislatures." [our emphasis, as below]

And here's where the fervent simply ignore issues of self-incrimination and the dangers of ever-expanding government power.

Smith said law enforcement needs stronger laws and better tools to enforce them. "Using a subpoena to get cellphone records has got to be a standard procedure," she said. "Perhaps cars should have a data recorder, like [an airplane's] crash recorder to use in these cases."

A ban on cell phones in vehicles is clearly the ultimate goal. Indeed, the FocusDriven.org website declares the group to be, "Advocates for Cell-Free Driving," and the WaPo story quotes MADD's executive director, Chuck Hurley, saying, "The main reason people talk on their cellphones is because they can. Eventually, [signal blocking] technology will address that."

When the prohibitionists take the wheel, liberty and accountability get shoved out the door.

UPDATE (3:40 p.m.): Also part of the campaign is the National Safety Council, which on Tuesday celebrated the anniversary of its ban the phone campaign: "As the National Safety Council celebrates the one year anniversary of its call for a total ban on cell phone use while driving, we look back at the amazing progress during the past year. This timeline marks critical events that helped bring attention to a behavior that's killing thousands of people each year."

Public Choice 101: the Republican House sponsor of the bill is now working as a stock exchange lobbyist [John Carney]

Cut the important stuff first

The art of government budgeting in hard times [Coyote]

Why are law schools so expensive?

At the Manhattan Institute's Minding the Campus site, Frank Macchiarola and Michael Macchiarola consider the roles of ABA accreditation rules, competition for U.S. News rankings, a student-finance system that encourages the overextension of credit, and rules setting up law schools as gatekeepers for legal practice and discouraging online and other innovative models. More: Ribstein.

In a car-crash case where damages to the plaintiff included a herniated neck disc and nerve damage to her right arm, a Bronx jury has awarded $7 million against the Salvation Army. The case has been settled for an undisclosed sum. [Hochfelder]

Around the web, January 13

  • Feres, military contractors and battlefield liability: why not contractual waivers? [Stier, Mass Tort Lit]
  • "Blockbuster Punitive Damage Awards: California Leads The Way!" [Nye, Cal Biz Lit on Del Rossi/Viscusi SSRN paper, "The Changing Landscape of Blockbuster Punitive Damages Awards"; more on California damage awards from CJAC]
  • Off-label drug promotion: "High court urged to hear False Claims Act case" [LNL]
  • When contingent fee clients want to switch lawyers, don't play games with their files [Kennerly]
  • More on PCAOB separation of powers case [Hans Bader, Examiner, via Bainbridge]
  • Sorry, but implanted medical devices are neither immortal nor indestructible [Beck]

Jonathan Adler at The Obiter Dictum (New York Law School) outlines arguments made by Paul Bennett Marrow:

1. Entering into a contract containing a mandatory arbitration clause is essentially a voluntary choice made by all parties involved.
2. Mandatory arbitration is needed to mitigate the effects of asymmetrically-held information.
3. A commercial system without the right to arbitrate will (a) suffer from increased costs across the board, (b) limit lending to only the safest recipients, and (c) overburden courts.
4. There is insufficient empirical evidence to support enacting the Arbitration Fairness Act of 2009.

"The Nevada Supreme Court ruled 5-2 [last month] that eight pharmacies in Las Vegas cannot be sued for negligence in the death of a man killed by a motorist under the influence of prescription drugs purchased at their businesses." [Behavioral Health Central, AP/SFGate, Las Vegas Business Press]

In Hawaii with the trial lawyers

The Lee Enterprises newspapers in Montana follows up on our Sunday report about Gov. Brian Schweitzer reprising a 2008 controversy by speaking to the American Association for Justice, "Schweitzer scheduled to address national trial lawyers' group in Hawaii." The governor's spokewoman, Sarah Elliot, says the AAJ will pay Schweitzer's air fare and he plans to talk about "Montana's energy development and our fiscal accountability and remind them that we were one of two states still in the black."

One wonders if the legal crowd is that interested in the Bakken Formation, the source of tremendous oil revenues for the state, but it's a good topic.

The other speaker at the AAJ PAC's Town Hall is Rep. Neil Abercrombie (D-HI), who plans to resign from the House on Feb. 28 to run for governor. Using key votes as measured by the National Association of Manufacturers -- my employer -- we find Abercrombie going zero for 22 on legal reform measures, voting every time between 1998 and 2009 against class action reform, constraints on punitive damages, statutes of repose and medical liability limits.

The American Association of Justice sponsored a media briefing today to outline its 2010 legislative agenda. The headline on the news release, "2010 Dawning of New 'Decade of Corporate Accountability'."

Judging by President Anthony Tarricone's quote, the AAJ is still campaigning against the Bush Administration: "During the last decade, we saw a dismantling of regulations and our legal system for the benefit of big corporations and to the severe detriment of patients and consumers." More hyperbole follows. The goals highlighted:

  • A restoration of notice pleadings, i.e., legislation to reverse the Iqbal and Twombly decisions.
  • Passage of the Medical Device Safety Act to expand litigation against FDA-approved devices to state courts.
  • Elimination of arbitration clauses in consumer contracts.
  • "Protecting patients injured by medical negligence," or as we'd put it, no medical liability reform.
  • Passage of the Foreign Manufacturers Legal Accountability Act (S. 1606) to provide more effective procedures for bringing overseas companies into U.S. courts.

The only coverage we've seen of the event comes from the Blog of the Legal Times, which focuses on the arbitration angle, "Next Target for Plaintiffs Bar: Nursing Homes?"

UPDATE (Tuesday): Also covering the event was The Hill, "Trial bar tries to end 'forced arbitration'." The Chamber-backed Legal Newsline wrote, "Trial bar seeks to expand liability, end arbitration clauses."

The Financial Crisis Inquiry Commission holds its first hearing Wednesday to begin its bipartisan investigation into the causes of the crisis. The Chairman is former California Treasury Phil Angelides, a Democrat, and the Vice Chairman is former California Congressman Bill Thomas, a Republican who chaired the House Ways & Means Committee.

As Walter has previously noted, Angelides is one of the nation's most durable and influential allies of the securities class-action plaintiff's bar. On the plus side, Peter Wallison of the American Enterprise Institute is a member, and he called the collapse of Fannie Mae and Freddie Mac years before it happened

Top executives from Goldman Sachs, Morgan Stanley, J.P. Morgan Chase and Bank of America will be first in the dock (USA TODAY article, CNNMoney.com). We expect some political posturing at their expense.

The witness list for day two features state and local officials, including attorneys general, a panel entitled "Current Investigations into the Financial Crisis - State and Local Officials." Witnesses are Illinois Attorney General Lisa Madigan; Colorado AG John W. Suthers; Denise Voigt Crawford, Commissioner, Texas Securities Board and President, North American Securities Administrators Association; and Glenn Theobald, Chief Counsel, Miami-Dade County Police Department and Chairman, Mayor Carlos Alvarez Mortgage Fraud Task Force.

Madigan, a Democrat, sued Countrywide Home Loans for predatory lending practices, in 2008 reaching a settlement with its new owner, Bank of America. She is a proponent of an independent "consumer financial protection agency" -- think of it as a Consumer Product Safety Commission for financial services.

Attorney General Suthers, a Republican, has made mortgage fraud one of his high-profile issues.

"The Lesson of Baltimore: Never Settle"

Kevin Funnell at Bank Lawyer's Blog on Judge Motz's welcome rebuke to a subprime-lending case. Earlier here, etc.

Around the web, January 11

The year that was (and more lists)

Public Nuisance Wire summarizes the high points of 2009 in lead paint litigation and new-style public nuisance law generally. At Mass Tort Lit, Alexandra Lahav rounds up highlights of 2009 scholarship on mass torts and class actions and separately asks: "What were the most important developments in mass torts in the last decade?" Bruce Carton has a 2009 securities-law year in review at Compliance Week. Finally, at the Marquette Law Faculty Blog, Michael Ariens has a list of "Top Ten Changes in the Legal Profession Since 1979" [part one, two].

A successor, and contrast, to Jerry Brown? "One of California's leading conservative legal minds, John Eastman, is considering a run for state attorney general." State Sen. Tom Harman of Huntington Beach is also seeking the Republican nomination. [Chris Rizo, Legal NewsLine]

Radio talk show host Hugh Hewitt solicits a comment from his law partner, Gary Wolensky, on Congressional engagement in the issues involving brain injuries and head gear, most recently the subject of a House Judiciary Committee hearing in Detroit called by Chairman John Conyers. Wolensky has represented several industries in high-profile head and neck injury cases and has been involved in many related areas as an adviser. He remarks:

I can tell you that I have never worked with a company, team, organization or school district that hasn't taken the issue of concussions, its diagnosis, treatment, and long term effects, and the potential improvement of safety equipment including football helmets, very, very, seriously. Over the past few years nobody put their heads in the sand. Companies, associations, consultants, and schools are trying to figure out what are the long term effects of repeated concussions? Congressional hearings are interesting but the fact of the matter is that the last thing this controversy needs is Congressional oversight. Let them fix the mess they made by passing the abomination known as the Consumer Product Safety Improvement Act.

Earlier, "Also on the trial lawyer's agenda, college football injuries?" It's probably safe to remove that question mark.

The American Association of Justice has announced that Montana Gov. Brian Schweitzer, a Democrat, will be one of its featured speakers at its winter convention in Maui, addressing the AAJ PAC town hall on February 1.

Odd choice. Schweitzer's last appearance at a trial lawyers' gathering, the 2008 AAJ summer convention in Philadelphia, provoked a political ruckus in Montana and bad publicity for his hosts. As we noted in this POL post, Schweitzer joked about tampering with the 2006 Senate election to help Jon Tester defeat incumbent Republican Sen. Conrad Burns. His eventual defense amounted to, "Oh, I was just having fun at the expense of my fellow Montana yokels."

Some contemperaneous headlines:

The audio of the speech is available here. Also see this subsequent POL post, "Montana's governor billed the taxpayers for his AAJ speech?"

Why in the world would either Gov. Schweitzer or the AAJ invite renewed attention to the Philadelphia fuss? Unless, perhaps, the group is having trouble getting speakers. Trips to sunny paradises are always fraught with political peril, even more so in an election year. The other speaker at the PAC Town Hall is Congressman Neil Abercrombie (D-HI), who's running for governor. Not much political risk welcoming visitors to your home state.

UPDATE (4:30 p.m.): In other Schweitzer-trial lawyer news, on December 23 the governor appointed Bozeman attorney Mike Wheat to fill a vacancy on the Montana Supreme Court for one year. (News release.) Wheat is a past president of the Montana Trial Lawyers Association. Wheat, a former state Senator and chairman of the Judiciary Committee, unsuccessfully sought the Democratic nomination for attorney general in 2008. He intends to run for election this year to the remainder of the term, which runs through 2014, the Montana Standard reports.

UPDATE (Monday): The Chamber-backed Legal Newsline picks up our report, "Schweitzer to headline again at national trial lawyer convention."

Schweitzer's speech is set for February 1, coming right after his executive branch administrators return proposed 5 percent budget cuts to him. (Lee Newspapers story, "Schweitzer: Find cuts by Jan. 29. Montana's Legislature meets biennially, however, so there's less reason to stick close to home, Helena, in the middle of a long winter.

Roger Parloff in Fortune on "honest services" doctrine.

At Business Week, Margaret Cronin Fisk reports a worsening trend for corporate defendants: "The top five product-defect verdicts rose 52 percent in total value last year to $620 million as juror attitudes on companies soured amid the recession and rising unemployment, according to data compiled by Bloomberg."

Illinois malpractice decision awaited

The Illinois Supreme Court has twice before struck down liability limits, and a Rockford hospital leader is again expecting the worst.

The law firm that is representing many banks against litigation filed by Baltimore, Cleveland, Buffalo, etc., says it has forty lawyers working on the cases and related regulatory investigations.

Back to aiding and abetting liability?

John Steele at Legal Ethics Forum pulls together links commenting on the possibility that Congress will overturn the landmark securities-law Stoneridge decision.

Preparing to replay a battle royal from the Clinton Administration [Carter at ShopFloor] Earlier here, here, and, on OSHA appointee David Michaels's views, here and here.

It'll be an uphill fight in the trial-lawyer-friendly California legislature, but the governor has pledged to make litigation reform one of his top issues in the coming year, with class actions, punitive damages, and product liability all among targeted areas. [Cal Civil Justice, Chamber-backed Legal NewsLine]. More: political prospects for the package aren't bright, but some of the ideas are important ones, especially appealability of class certification and plaintiff shouldering of class notification, says Ted Frank (Rizo, LNL).

"[John] Sampson, the state Senate Democratic leader, quietly accepted a job last month as 'counsel' to Belluck & Fox, a politically connected Manhattan law firm that specializes in asbestos litigation and that claims to have won $220 million in judgments." Assembly speaker Sheldon Silver, of course, has long been on board at one of the city's biggest tort firms. "Like Silver, Sampson won't say how much his job pays. And, as is the case with Silver's firm, Weitz & Luxenberg, a founding partner of Sampson's firm, Joseph W. Belluck, sits on the board of the state Trial Lawyers Association." One veteran lobbyist said "the trial lawyers are now covered in both houses". [NY Post via NY Civic]

Around the web, January 7

Dodd Senate vacancy

Connecticut Attorney General Richard Blumenthal, a perennial bete noire around here, is considered likely to announce for the seat (cross-posted from Overlawyered).

More: Joe Weisenthal, Business Insider; BLT; Daniel Schwartz (noting Blumenthal's legal interventions on behalf of labor union interests).

Dysfunctional Albany, cont'd: "As hard as it may be to imagine, the most significant force against the reform of failed criminal justice programs have been the unions, and the politicians who depend on them for financing, representing prison guards." [Scott Greenfield on this New York Times editorial]

P.S. Similarly on California from Prof. Bainbridge here and here.

James Beck (assisted by Mark Herrmann) goes up against liberal proceduralist Stephen Burbank in a multi-round debate (PDF) at Penn Law's PENNumbra, and survives to tell the tale. A brief excerpt from their first post (most citations omitted):

...In 1955, the Advisory Committee rejected an amendment to Rule 8(a)(2) that would have required plaintiffs to state "facts constituting a cause of action." It did so not to endorse fact-free pleading, but rather because the Committee already viewed existing Rule 8(a)(2) as requiring "the pleader to disclose adequate information as the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it."

In 1957, the Supreme Court weighed in, offering in Conley v. Gibson, 355 U.S. 41 (1957), an extremely liberal interpretation of Rule 8. Conley contained dictum that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." This phrasing invited abuse, since hypothetical "set[s] of facts" not even pleaded could prevent dismissal. Taken literally, the Conley dictum could make it impossible for a defendant to win a motion to dismiss, thus rendering Federal Rule of Civil Procedure 12 a nullity.

Some courts declined to read Conley literally and continued to hold "that legal conclusions need not be accepted as true on 12(b)(6) motions" and "that pleaders are not entitled to unreasonable factual inferences." Edward A. Hartnett, Taming Twombly, 158 U. Pa. L. Rev. (forthcoming 2010) (manuscript at 16), available at http://ssrn.com/abstract=1452875. They continued to dismiss complaints that plainly lacked merit. ...

They cite the bone screw mass tort litigation as one in which parallel actions were brought before two federal judges, one of whom dismissed the action as based upon implausible pleadings, the other of whom waved it forward. The second case inflicted millions of dollars in costs on defendants who included blameless doctors and their families before eventually being dismissed on summary judgment.

In a paper for the Federalist Society, longtime school-finance-watchers Eric Hanushek (Hoover) and Alfred Lindseth (Sutherland Asbill) perceive a trend toward judicial rejection of "adequacy" lawsuits that advance a state-constitutional rationale for ordering hikes in school budgets.

Around the web, January 5

State of legal academia edition:

  • Ph.D to be needed for law teaching before long? [Hoffman, Ribstein, Greenfield] Related: "Another reason to be happy you went to law school" [Kopel/Volokh]
  • Left-leaning UC Irvine public law school: next year's entering class will get 50% scholarship [WSJ Law Blog] "Georgetown Antes Up $1M to Offer 'Free' Tuition to Public Interest Grads" [ABA Journal]
  • Jeffrey Harrison: What Rents are Law Professors and Law Schools Seeking? [Reynolds] "Are law professors necessary?" "Is law school worth it?" [Ribstein on Siems and on Schlunk] "Law School 4.0" [Paul Lippe, AmLaw Daily]
  • More ABA pressure on law schools to teach the approved message on "diversity" controversies [Bernstein/Volokh] Critical Race Studies alive and well at March conference ("we will re-visit the origins of intersectionality as a theoretical frame and site of legal interventions and consider its still unfolding potential for unmasking subordination and provoking social change") [Wenger, ConcurOp]
  • "He's so brilliant I can barely follow him!": flash and obscurity in legal scholarship [Kerr/Volokh]
  • And I'm pleased to announce that I've completed a first draft of my work in progress about bad ideas from the law schools and how they changed the world, to be published by Encounter Books.

Not very, according to a paper by Nicholas Pace (RAND) and Bill Rubenstein (Harvard)(via Lahav, Mass Tort Lit):

Class actions are among the most public forms of civil litigation, especially because a judge must review and approve a proposed class settlement following public notice and a public hearing. Ironically, however, a veil of secrecy can fall over class action litigation the moment the judge signs off on the agreement and ultimately, little information is available about how many class members actually received compensation and to what degree. This lack of transparency is especially troubling because of evidence that aggregate payments in class settlements sometimes constitute a mere fraction of the compensation fund extolled by the parties at the time of settlement review.

This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery. It is not that the data are non-existent - claims administrators or parties certainly have them - it is, rather, that they are secreted away. The outcomes of publicly approved settlements lie locked in private files.

We argue that this is a problem for three reasons: because the case outcomes might not be all that they purport to be; because the lessons that they could teach - for example, about which approaches work best - are lost to secrecy; and because the public record is unnecessarily incomplete and public access unnecessarily thwarted. We end the paper by proposing a set of solutions, including requiring parties to report back to the court on the final claiming data, publicizing this data, and creating a central repository for it.

European data-privacy laws run head on into that massive assault on privacy known as our litigation discovery process. [NYLJ]

On Dec. 21 and Dec. 22 New York courts declined to hear two lawsuits -- on an Austrian train wreck and Pfizer's Lipitor -- that should more properly have been filed elsewhere. The decisions stand in contrast to the recent ruling of another New York court inviting mass claims about the drug Oxycontin to be brought to Staten Island for handling. James Beck and Russell Jackson have details.

Appreciating C. Lowell Harriss

The Manhattan Institute website has a few words on the career and influence of the distinguished Columbia University economist, who died December 14 at the age of 97. See also Joseph Thorndike's fine longer appreciation at Tax.com.

Tom Freeland has an early line on the case in question, Double Quick v. Lyman.

Larry Ribstein and J.W. Verret (George Mason, Mercatus Center) explain a pending Congressional bill sponsored by Senators Levin (D-MI), Grassley (R-IA), and McCaskill (D-MO), requiring among other things that states keep regularly updated track of the beneficial ownership of privately held firms, and they explore the very considerable burdens it would heap on legitimate small businesses.

Around the web, January 2

  • "At Dechert -- and Elsewhere? -- Litigation Coming Back to Life" [WSJ Law Blog]
  • But the private sector still can't do it: "State Dept Argues for Continuation of Mandatory Retirement Age for Foreign Service" [Workplace Prof]
  • Are taxpayers entitled to scrutinize doings of "labor studies" centers at public universities? [Inside Higher Ed, Michelle Malkin]
  • Uh-oh: proposal to create private right of action under FCPA [FCPA Professor, more] Enforcement of the statute ten years ago, and today [same]
  • Objectors to Wal-Mart Massachusetts wage/hour settlement seem to have upped payout by $20 million [AmLaw]
  • Paul Cassell on dismissal of Blackwater guard prosecution [Volokh]

And the NYT accords its usual uncritical coverage. More: Commercial Appeal. Earlier here.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.