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May 2010 Archives

When an eighth judge recused herself* from hearing the lawsuit on global warming damages, the U.S. Fifth Circuit of Appeals found itself without a quorum for en banc consideration of Comer v. Murphy Oil. The court on Friday determined it had no legitimate alternatives for hearing the appeal after the court had vacated the three-judge panel's ruling in anticipation of the en banc review. The result is that the U.S. District Court judge's original dismissal of the Comer lawsuit stands.

This is a strange one. What would have compelled a recusal after the en banc court had already been properly constituted? The Fifth Circuit would only say that "new circumstances arose." The Wall Street Journal speculated in an earlier editorial: "In Comer, did one of the more liberal Fifth Circuit judges buy stock specifically to blow up the quorum?" The Journal provides no evidence -- the court is not talking -- but the logic is that by blowing up the case, the recusing judge is pushing the global warming issue to the U.S. Supreme Court, increasing pressure for a political resolution of the policy issues. It's the judiciary's version of EPA's power play to regulate greenhouse gas emissions under the Clean Air Act: You don't like it? Legislate!

One can reasonably infer a legal strategy based on recusal from the fact the plaintiffs -- Mississippi residents trying to apportion blame and win cash for damages from Hurricane Katrina -- sued some 150 energy and industrial companies. (Having engaged in years of respiration, we breathed a sigh of relief at having escape the suit.)

The Fifth Circuit's order says the court considered alternatives:

  • Asking the Chief Justice to appoint a judge from another Circuit pursuant to 28 U.S.C. § 291.
  • Declaring that there is a quorum under the provisions of Federal Rule of Appellate Procedure 35(a).
  • Adopting the Rule of Necessity, allowing disqualified judges to sit.
  • "Dis-enbancing" the case and ordering the panel opinion reinstated, and issuing the mandate thereon.
  • Holding the case in abeyance until the composition of the court changes.

In a dissent, Judge Eugene Davis, joined by Judge Carl Stewart, writes:

The five judges who entered this order reasoned that this result was mandated by our Local Rule 41.3, which provides: "Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate."

But Local Rule 41.3 is a "provisional, practical rule" not intended for this kind of circumstance -- the loss of a quorum -- and it makes no sense to it to have an impact on the merits of the case, Davis argued.

Lawyers we talk to cannot recall a similar case; the judges are making new interpretations of their rules based on a recusal occurring in the middle of the process.

All this makes us even more curious as to what the "new circumstances" were. Did they arise from a judge's politically motivated act or something more mundane? We demand transparency!

More from Howard Bashman at How Appealing. As of 9:45 a.m. Monday, we find no news (non-blogging) accounts of the court's action.

* Judge Davis identifies the recusing judge as a "her," but that doesn't narrow down things too much: Seven of the 16 judges on the Fifth Circuit are women.

The National Law Journal interviews Linda Lipsen, the long-time top lobbyist at the American Association for Justice hired in early May as AAJ's chief executive officer. The interview reveals little beyond the usual anti-corporate fulminating, but for the followers of the inside-Washington lobbying game, this is of interest:

Q: Who will be running the day-to-day activities of the lobbying team?

A: I'm an advocate. That's my whole background. I am going to continue running the lobby shop as well as running the organization. As a working mom, we're used to juggling a lot.

Yet posted at WashingtonPost.com Jobs site is a solicitation from the AAJ for a Chief Operating Officer dated May 24, 2010:

The Chief Operating Officer reports to the Chief Executive Officer and is responsible for AAJ's day to day operating activities. Direct reports include: the CFO, General Counsel and the EVP for Products and Services.


  • Direct company operations to meet budget and other financial goals
  • Direct short-term and long-range planning and budget development to support strategic business goals

So an honest answer might have been: "I intend to run the organization, but we will be hiring a COO to handle day-to-day operations."

Lipsen has escaped tough questions in the news coverage since being named CEO. There was a Q&A at The Washington Post, "New at the Top: Linda Lipsen of the American Association for Justice," a piece in the Blog of the Legal Times, and a brief item at Politico. Only the Southeast Texas Record, supported by the U.S. Chamber of Commerce, raised the issues you would think most reporters would ask of the new head of a politically powerful lobbying group:

The American Association for Justice's rocky finances were first reported in September by The Washington Times. AAJ had a deficit of more than $6.2 million in its operating budget for the fiscal year that ended July 31, 2008, the newspaper said.

Additionally, the trade group's income from membership dues dropped from $28.6 million in 2005 to $19.2 million in 2008, according to a report filed with the Internal Revenue Service.

The AAJ has been successful in blocking legal reform, most notably in the health care bill, but how are its organizational strength and financing? Might be a good area of inquiry for an interview sometime.

Carter Wood at Shopfloor has details of the tortuous procedural machinations in the carbon-emissions-as-public-nuisance case; the order was issued over two dissents.

The House Rules Committee did not act on H.R. 5175, the DISCLOSE Act, as originally scheduled Thursday (earlier post), which means the full House will delay its consideration until after the week-long Memorial Day recess.

Business groups, and especially the U.S. Chamber of Commerce, have been the most vocal critics of the bill, which targets corporate speech while leaving labor union political activity relatively unaffected. (The Hill, "Chamber: Citizens United 'Fix' gives unions upper hand") The National Right to Life Committee has now detailed its vigorous opposition to H.R. 5175 in a four-page letter to Congress. (Letter, news release.) The conclusion lays bare the political motivations of the sponsors:

The provisions we have summarized, among others, clearly violate the principles laid down by the U.S. Supreme Court in a series of landmark First Amendment rulings, culminating in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) and Citizens United. And, the authors of the bill know this full well. Yet, they hope to ram this legislation into law - including a specific provision making it effective 30 days after enactment, without any interpretative regulations from the FEC - to set up legal minefields that they hope will, for at least a year or more, deter disfavored organizations from effectively communicating with the public about the public policy agenda of the current Administration and of the dominant faction of the majority party of the current Congress.

Knowing more about politics than the law, that's our reading too: Supporters recognize the bill is constitutionally flawed, but the legislation is more a populist hammer to pound home an anti-business message during the campaigns. One amendment proposed to the Rules Committee by "progressive" Rep. Donna Edwards (D-MD) acknowledges the constitutional point: "#9 Would express a sense of Congress that if this Act is held unconstitutional by the Supreme Court, Congress should immediately consider for ratification an amendment to the Constitution to permit Congress to regulate the expenditure of funds by corporations engaging in political speech." Edwards had already proposed a constitutional amendment to specifically exclude political speech by corporations from First Amendment protections. (Reason, "We Must Amend the Constitution to Help Donna Edwards Stay in Office")

Jim Hightower, the eminence gris terrible of the populist left, is also pushing a constitutional amendment to overturn Citizens United, "Disclosing the 'Disclose' bill in Congress."

Around the web, May 28

  • Add the plaintiff-friendly Exxon Shipping v. Baker to the list of Supreme Court decisions some in Congress wish to make even more plaintiff-friendly. [NLJ]
  • Richard Epstein on the Rand Paul-Rachel Maddow hubbub. [Forbes]
  • Michigan appellate court holds 2-1 that running car in enclosed garage is not an open and obvious risk, and thus lack of wacky warning can result in liability. [Overlawyered, with many links]
  • "McConnell is unqualified to sit on the federal bench in R.I." [Rickard @ ProJo]
  • Serial whistle-blower and convicted criminal Joseph Piacentile has made millions under qui tam law under questionable circumstances. [American Lawyer]
  • DC Circuit denies appeal of dismissal of suit over Judge Roy Pearson's firing. [BLT via ABA Journal]
  • Walter Barclay had incurable bedsores, and had been in three car accidents and two wheelchair accidents, but criminal prosecutors sought to blame his death on a 1960s shooting that had previously resulted in a conviction. A jury acquitted 74-year-old defendant William Barnes—already in prison on a parole violation—on the murder charges. [Phil. Inquirer and Legal Intelligencer via ABA Journal]
  • On the other extreme, I'd like to know what happens to attorney George Freeman, who got charges dropped against client Rodney Newsome in 2007 by falsely representing to the court that his client was in a coma, and then dead. An eagle-eyed court clerk recognized Newsome three years later. [WaPo]
  • SEC class action against Bank of America punishes shareholders for being victims. [Schonbrun @ HuffPo]
  • Europe ahead of US in deregulating air travel, and gets lower prices because of it. [AEI]

Painter on Sestak's accusations

I would find Richard Painter's analysis of the scandal surrounding Joe Sestak's accusations more compelling if it were the official position of the White House or if it made any attempt to analyze precedents relating to the statute at issue. But we don't see the White House saying "We offered Joe Sestak a job, and so what if we did?" Rather, we see the White House doing everything in its power to avoid addressing the issue and offering only the promise of a heavily lawyered response. It's hard not to conclude that the White House is taking Senator Specter's claims that the conduct is criminal very seriously. (Another alternative is that the White House is trying to figure out a way not to call Sestak a liar, which would also be consistent with the apparent belief of the White House that the truth is embarrassing.)

Now, Painter is likely correct in a normative sense: the federal criminal laws shouldn't reach such conduct. And one would certainly hope that this could be a teaching moment about the problem of overcriminalization in federal law. But my hopes in that regard are rather dim, since Republicans are likely to see the short-term political advantage of winning a few news cycles as more important than the long-term policy implications, and it's unlikely the Obama administration is willing to concede anything because of it.

The Kagan nomination, May 27

  • This reflects disenchantment with Obama more than anything else, since I doubt more than a small fraction have an informed opinion about Supreme Court nominations, but Kagan's favorable-unfavorable ratings are 41-47 in a poll. That's not likely enough opposition to peel off the dozen or so Democratic senators that would be needed to vote down a Kagan nomination, given that she is likely to get a few Republican votes. [Rassmussen]
  • Paraphrasing Senator Specter: "Dear Elena Kagan, Please tell me how you will vote in a couple of pending Supreme Court cases." Really? [BLT]
  • The New York Times does a couple of biographical rifle-shots: Kagan's Harvard Law grades and Kagan's relationship as dean with the rest of Harvard.
  • Young Republican Sarah Isgur gets around to endorsing Kagan half-heartedly after the White House puts her on a conference call. [USA Today; WSJ Law Blog]

As the folks on the Senate Judiciary Committee get ready to question Elena Kagan, they'd all be well advised to review the ground-breaking new article I had the pleasure of reading this afternoon, The Subjects of the Constitution (SSRN), by my law school classmate Nick Rosenkranz. In his common-sense logical-textualist approach to judicial review, Professor Rosenkranz suggests that courts should look first to the subject of a constitutional violation, i.e., who violated the constitution?

As his article makes clear, the answer to that question profoundly shapes how we might think about the Court's confusing jurisdictional doctrine (e.g., questions of ripeness, standing, and facial vs. "as applied" constitutional challenges) and also substantive questions of law. In this paper, Rosenkranz looks in some depth at those cases in which Congress is the clear "who": cases involving the First Amendment (an express limitation on Congressional power) and the Article I, Section 8 enumerated powers and Article 5, Fourteenth Amendment powers (each express grants of Congressional power, otherwise limited by the Tenth Amendment). He promises further analysis in a forthcoming follow-up paper, The Objects of the Constitution, as well as a forthcoming book (2011).

Obviously, the methodology suggested by Rosenkranz could shed interesting light on the constitutional questions of major interest to many of the readers of this site, including constitutional limits on punitive damages, federal preemption, and the impending honest-services fraud cases. I'll certainly be re-examining my thoughts in light of Nick's paper.

One interesting tidbit in the article regarding tort law comes in on page 1219, where Nick notes that the Supreme Court has regularly found constitutional violations without identifying a constitutional violator, and notes a hypothetical link to tort: "This habit of mind is also abetted, perhaps, by the modern indulgence (unknown to the Framers) of plaintiffs who cannot identify their tortfeasors" (citing examples including DES and asbestos market-share liability cases).

Others including Lawrence Solum, Randy Barnett, and Ilya Shapiro are also taking notice.

The House Rules Committee is scheduled to meet at 3 p.m. Thursday to write the rule for House floor consideration of H.R. 5175, given the preposterous title, "Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act." This is the bill to regulate political speech and campaign spending in the wake of the U.S. Supreme Court's decision in Citizens United v. FEC.

House members have put forward 37 proposed amendments they want the full House to consider. (List here.) There are a few that call for more freedom and/or disclosure; Rep. Steve King (R-IA), for example, wants to eliminate all limitations on federal election campaign contributions. But the amendments mostly propose more regulations, controls, limits and sanctions on speech.

Several are aggressively unconstitutional:

Grayson (FL): #21
Would amend title I of the DISCLOSE Act by adding a new section 106 at the end. This new section would ban expenditures and disbursements for electioneering communications by corporations employing or retaining registered lobbyists.

Kucinich (OH) #23
Would clarify that the bill would prohibit those with leases on the Outer Continental Shelf from making campaign-related expenditures.

The House Energy and Commerce Committee, chaired by Rep. Henry Waxman (D-CA), has today been marking up H.R. 5381, the Motor Vehicle Safety Act. Waxman's manager's amendment adds in language (see the extended entry) that would end federal preemption for motor vehicle safety regulations. Not only would future National Highway Traffic Safety Administration rules be affected, the anti-preemption language would apply to everything NHTSA promulgated since 2005.

An effort by Rep. Roy Blunt (R-MO) to strip out the preemption language was defeated, 28-18, on a partyline vote, the Democrats winning the vote.

The amendment had circulated at the subcommittee level, but was not offered, by Rep. Bruce Braley (D-IA), a trial lawyer who formerly headed the Iowa Trial Lawyers Association. (See earlier POL post.)

The Waxman amendment did not include Braley's original language to expand liability for car rental and leasing companies (revoking the Graves Act).

UPDATE (2:30 p.m.): The Energy and Commerce Committee just reported out the bill on a 31-21 vote. Really a trial lawyer bonanza, and for more than just the preemption language.

UPDATE (2:55 p.m.): Why make 2005 the year that retroactivity extends to? The American Association of Justice, which works diligently against federal preemption, identifes the following in its timeline, "The Evolution of Unauthorized Agency Preemption":

June 22, 2005 - The National Highway Traffic Safety Administration (NHTSA) issues a proposed rule regarding designated seating position that contains NHTSA's first attempt to broadly preempt state common law claims. This rule went largely unnoticed by the public. 70 Fed. Reg. at 36101-02.

August 19, 2005 - NHTSA issues a proposed rule on roof crush strength with a weak standard and a preamble that explicitly preempts all state law requirements and state tort law. 70 Fed. Reg. at 49223.

August 19, 2005 - NHTSA issues a proposed rule for average fuel economy standards for light trucks for 2008-11 with brief express and implied preemption language. 70 Fed. Reg. at 51457.

September 12, 2005 - NHTSA issues a proposed rule regarding rearview mirrors which seeks to preempt all state statutes, regulations, and common law. 70 Fed. Reg. at 53768-69.

David Walk utterly shreds an appalling piece of agitprop masquerading as science in the New England Journal of Medicine. One hopes Walk doesn't restrict himself to the blog post, but also writes a letter to the editor.

Arizona immigration law

An Obama administration official suggests that DHS won't enforce federal immigration law in Arizona in retaliation for SB 1070. For all Obama's criticism of the Bush administration's disregard for the rule of law, the Bush administration never did anything like that.

Relatedly, MI's Heather Mac Donald discusses some of the arguments against the Arizona law.

Around the web, May 26

  • West Virginia court throws out 1400 absestos suits after plaintiffs' lawyer linked to fake doctors' report fails to provide expert testimony in support of claims. [Legal Newsline]
  • George Priest and William Levi argue that Justice Stevens moved the Court in the right direction in antitrust law, but the evidence they cite is considerably more mixed than they suggest: Aspen Skiing, for example, is hardly an especially economically sound monopolization opinion. [National Law Journal]
  • BP leak case ripe for class-action abuse. [Fox Business]
  • Does a partial retrial limited to punitive damages violate the Seventh Amendment? The pending Wyeth LLC v. Scroggin cert petition raises the question. [Mass Tort Defense; Cutting; WLF amicus; SCOTUS docket; earlier on Bloomberg]
  • Federalist Society panel on use and abuse of California's § 17200 law. [YouTube]
  • Hooters' waitress sues for weight discrimination. [ABA Journal]
  • Maybe PETA will take a stand on terrorism now. [Jerusalem Post]

Around the web, May 25

The notorious Andrew Wakefield's license has been revoked for the "severe professional misconduct" involved in his dishonest work alleging vaccines cause autism. Update: see also this nice summary comic (via OL). And more: Brian Deer reporting and General Medical Council findings.

Let's agree that passengers shouldn't spit on bus drivers, and even that perhaps New York should do more to enforce its assault laws in that regard. But 51 drivers who have been spat upon have taken an average of 64 days paid leave from the incidents, which seems a tad excessive, and certainly contributes to New York transit's $400 million shortfall.

American Needle v. NFL

American Needle v. National Football League isn't a tenth as important as everyone is going to be telling you over the next few days. Not only does it solely affect three or four sports entities, but nothing prevents those sports entities from reorganizing their structures to avoid the antitrust implications of this particular decision. For example, American Needle is suing the NFL because the latter (as it has done since 1963) pooled the 32 separate trademarks, owned by separate teams, into a single licensing deal. The NFL will face annoying litigation in the interim to defend this arrangement under the "Rule of Reason," but nothing prevents it from requiring teams from transferring ownership of team trademarks to the league as a condition of the franchise, and achieving the same economic result. SCOTUSWiki has lots of links, though not the lower court decision.

That said, it's a bad decision, albeit one consistent with earlier bad Supreme Court decisions on the subject of sports. Why not have a bright-line rule permitting sports leagues to act as one entity rather than expensive case-by-case determination? The odd judicially-created antitrust exemption for baseball hasn't protected that sport from the ravages of competition from other forms of entertainment. See also Sykuta's take.

Update: Deadspin suggests (h/t W.C.) that the ruling will affect exclusive deals with videogame makers. Not so. For example, the Madden series reflects not just deals for the team trademarks, but for the NFL trademarks and the NFLPA rights, which are unaffected by the ruling. Sure, Jerry Jones could individually sell the rights to a Dallas Cowboys game that doesn't mention the NFL or the other 31 teams or any of the players' names, but who is going to buy those rights? And that's before one gets to the Rule-of-Reason analysis that a videogame is much more valuable with all 32 teams' trademarks than with just 31 of them.

The Economist looks at the legal business likely to follow the BP oil spill, as well as U.S. litigation overall. The article cites Alex Tabarrok on the Oil Pollution Act and yours truly on broader litigation trends.

The Kagan nomination, May 24

Carter's account actually understates how outrageous the verdict—and the behavior of the elected judge who permitted this case to get to a punitive damages verdict—was.

First, it is important to recognize the wrongdoing of the Desert Shadow Endoscopy Center that infected as many as 115 people with Hepatitis C. Abandoning basic medical practices such as sterilization and not reusing needles was part of the Center's business model, which borders on, and perhaps was, criminal behavior; the doctor involved surrendered his medical license. The idea that a different warning label would have changed the behavior of the Center is simply insane: even homeless heroin users know not to reuse needles, and so do nurse anesthetists averaging over $100,000 a year. They simply chose to disregard the warning for their own benefit.

Second, as the Abnormal Use blog documents, much of the jury's anger against the innocent bystander reflected a Cartmanesque petulance that the defendants failed to kowtow to the jury enough: Teva Pharmaceuticals didn't send an executive to monitor the trial, and Baxter Healthcare's executive offended the jury by "stammering" on the stand. As I've noted elsewhere, it is a severe problem for American business if it becomes more important for executives to be skilled in giving smooth-tongued legal testimony than in running a business. When the consequences are risk of multi-million dollar liability for a $20 vial of medicine plus punitive damages, the game-show nature of our litigation system becomes readily apparent.

Even if and when punitive damages are reduced to a reasonable multiple, the two defendants are facing hundreds of millions in potential liability because of the volume of cases.

Note that the Desert Shadow Endoscopy Center case has led to calls for reversal of Nevada's medical malpractice reforms. This is a red herring. Current law was sufficient to bankrupt the doctor involved as well as all of his businesses. Uncapping damages would make no difference what victims could collectively recover from the culpable defendants.

Even though Senator Arlen Specter failed in his bid to win the Democratic Party's nomination in Pennsylvania, he's still around for the next several months to work Congressional mischief on behalf of the plaintiffs' bar. Front and center in his efforts: his bill to reverse the Supreme Court's Iqbal and Twombly decisions reining in federal pleading rules (see earlier discussion here, here, here, here, and here).

As we've previously suggested, there are national-security implications for returning to a pre-Iqbal notice pleading standard, a point made clearly today on NRO by my law school classmate Bill Burck and his former Bush White House colleague Dana Perino, in a column discussing the interrogation of alleged Times Square bomber Faisal Shahzad.

In re Abrams & Abrams

Paging Lester Brickman:

Kelly McKiernan and Mark Pellegrin were drinking after work at Pellegrin's home; McKiernan went to leave in his company truck; Pellegrin tried to stop him, and was grievously injured when McKiernan ran him over. Pellegrin got a $75 million default judgment against McKiernan, and then sought to recover from their employers' insurance company, which had refused to defend on the grounds that the policy did not cover McKiernan's decision to drive drunk.

Before any significant litigation took place, there was a one-day mediation, and the parties settled for $18 million. Given that the brain-damaged plaintiff was incompetent, the parties asked for settlement approval from the federal district court judge, who held that $600,000 was a reasonable fee for an $18 million settlement given typical North Carolina hourly rates for attorneys. Pellegrin v. Nat'l Union Fire Ins. Co., 598 F. Supp. 2d 724, 730-31 (E.D.N.C. 2009). The Fourth Circuit, after amicus briefing from a number of trial-lawyer lobbying groups, vacated, demanding that the district court consider the possibility of a one-third contingent fee of $6 million, working out to thousands of dollars an hour. After all, there were affidavits saying that other lawyers charged as much as 40% contingent fees. [via ABA Journal via Daily Record]

From today's press release:

California resident Julie Waltz' long fight for free speech for opponents of state subsidized housing policies came to a victorious conclusion today, when the California Department of Fair Employment and Housing agreed to implement the "Julie Waltz First Amendment Policy."

The new policy prohibits the Department from investigating citizens for housing discrimination solely on the basis of free speech activity, including speaking at public meetings, writing and displaying flyers, signs, or newspaper articles critical of public housing projects, even if they appear to advocate discriminatory policies or positions.

The new policy sets forth complaint handling procedures that must be followed by Department personnel to ensure that citizens are not subjected to long investigations that have the effect of stifling public criticism of housing policies. The Department agreed to adopt the new policy, seek to have it codified in the California Code of Regulations, publish it on its website and train employees in its use.

The dispute grew out of a 2006 housing discrimination investigation of Waltz that lasted for nearly a year. Waltz had posted yard signs and expressed opposition in other peaceful ways to the state's efforts to place sex offenders and other individuals with a history of behavioral problems in residential group homes, including homes in Phelan, CA, and one next door to her home in Norco, CA. Despite the fact that the complaint did not allege specific facts constituting a violation of housing discrimination laws nor any specific facts that would show that Waltz had illegally threatened group home residents, Department officials inexplicably continued to investigate her.

During the year-long investigation, state investigators told Waltz that her speech violated state fair housing laws, requested that she refrain from her speech activities, and threatened her with prosecution. An investigator also told her that the investigation would end if she removed signs from her yard objecting to the next-door group home as well as signs posted by other people in her neighborhood. Waltz declined to remove the signs.

This draft amendment sponsored by Rep. Bruce Braley (D-IA) has been circulating prior to today's House Commerce Committee mark-up of the Motor Vehicle Safety Act. Excerpt:

(a) PREAMBLES ISSUED FROM 2005-2008 Notwithstanding any statement to the contrary made during the notice and comment rulemaking in connection with Federal regulations issued by the National Highway Traf7 fic Safety Administration during the years 2005-2008, any final or interim final regulation adopted by the National Highway Traffic Safety Administration during that time period shall not preempt any action under State law seeking damages for personal injury, death, or property damage.

Notwithstanding any provision law, the Secretary of Transportation shall not publish a rule that seeks to preempt State law without notice in the Federal Register and the opportunity to comment, absent a clear showing that the Secretary was unable to provide notice and comment due to exigent circumstances.

Braley is the former president of the Iowa Trial Lawyers Association and has associated with himself with the American Association for Justice's efforts against preemption.

UPDATE (1:20 p.m.): The Braley amendment would also expand liability for car rental or leasing companies. As a multi-industry trade association letter opposing the amendment explains:

This amendment would repeal a provision in SAFETEA-LU, known as the Graves Amendment, which was enacted to shield innocent businesses, which rent or lease motor vehicles, from being held liable for the negligent actions of vehicle drivers. To repeal this provision would expose these businesses to costly litigation through no fault of their own.

The National Association of Manufacturers, my employers, was one of the groups to join the letter.

UPDATE (4:10 p.m.): The subcommittee reported the bill out without the Braley amendment.

The House Energy and Commerce's Subcommittee on Commerce, Trade, and Consumer Protection has a mark-up session scheduled for 2 p.m. today to make changes to the Motor Vehicle Safety Act. As described in the briefing memo, the legislation would create a new arm of government -- the Center for Vehicle Electronics and Emerging Technologies -- impose new safety standards and require new equipment (event data recorders). As with the Senate version of the bill, the "transparency and accountability" section invites litigation. From the briefing memo:

The legislation would increase transparency by requiring that more "Early Warning Reporting" data be made available to the public. This data is submitted by the vehicle manufacturer to NHTSA every quarter. The legislation would further improve public accessibility to information on the NHTSA website, and would encourage consumers, as well as manufacturer, dealer, and auto repair and mechanic personnel, to report potential defects to the agency.

The legislation would add oversight to NHTSA's investigations by enabling a citizen who files a petition to NHTSA requesting a defect investigation to seek judicial review if the petition is rejected.

The legislation would also increase the responsibility of manufacturers for information supplied to NHTSA by requiring a senior executive responsible for safety within the United States to certify the accuracy of information submitted to NHTSA in response to investigations.

Not surprisingly, the American Association of Justice today embraced the provisions, along with increased civil penalties, in a news release, "Consumers Need More Disclosure, New Safeguards to Improve Vehicle Safety."

Trial lawyers need access to raw, easily misrepresented reports and consumer complaints, the AAJ argues: "Further public disclosure of 'early warning' data that auto manufacturers submit to NHTSA quarterly will provide consumers with the ultimate weapon - the ability to know if there might be a problem with their vehicle or one they plan on purchasing."

Dave McCurdy, president and CEO of the Alliance of Automobile Manufacturers, testified on the House legislation earlier this month. In his statement, McCurdy objected to several of the litigation-inviting provisions mentioned above:

Congress must balance the desire for more public information with valuable product information. The purpose of early warning data is to enable NHTSA to identify trends and take action sooner, not to create an EBay or Amazon.com where competitors can surf for company trade secrets or lawyers can shop for clients. Safety legislation should empower engineers, not trial lawyers.

Congress will need to avoid the possibility of creating a system of "regulation by litigation." Congress should not enact measures that will have the unintended effect of slowing, not accelerating, action on safety matters. If every petition denial is subject to judicial review, NHTSA will be forced to spend substantial resources and time responding to every petition, regardless of its merit, in anticipation of judicial review. This will not serve the agency, the industry or the public well.

The way the bill is shaping up, it doesn't appear that the consumers are really a priority.

P.S. The Senate Commerce Committee has released a summary of its hearing Wednesday, on the Senate version of the bill, S. 3302. Chairman Jay Rockefeller (D-WV) also issued a prepared statement.

At Slate, William Saletan compares the current defenses raised by Senate candidate Richard Blumenthal (D-Conn.), regarding his 'Nam-gate truth-fudging, with the candidate's earlier, far-less-forgiving standard for companies while he was earning his reputation as the worst attorney general in America.

Late last week, the Federal Circuit affirmed the decision of the Court of Claims upholding a special master's dismissal of charges alleging that autism had been caused by administration of a childhood vaccine. As our readers know, such claims have been commonplace, notwithstanding the junk science underlying them; the Circuit opinion notes that approximately 5,000 such claims have been filed under the National Childhood Vaccine Injury Act of 1986.

According to drug and device lawyer James Beck, what does this mean for such litigation? "Well, stick a fork in it, it's just about done." (h/t Olson)

In today's New York Daily News, I have an op-ed, co-written with my colleague E.J. McMahon (director of MI's Empire Center for New York State Policy), on the workplace-bullying bill that passed the New York state senate last Wednesday (see my earlier post here). We suggest that the bill would effectively kill "at will" employment in New York, in the process hitting employment hard. As we explain--and as Point of Law readers are aware--this legislation is part of a national effort:

The bill is closely patterned after model legislation advocated by the Workplace Bullying Institute, which claims to be part of an "international movement" on the issue. The group's Web site claims, among other things, that "many of the European Union nations have substantially more legal employee protections which compel employers to prevent or correct bullying."

In other words, passing this legislation will make New York State more like Europe, which has hardly been a job creation dynamo. Even if you're willing to assume this type of law works well in Europe, our neighbors across the Atlantic have radically different legal systems: EU countries have essentially no American-style discovery process and no civil juries. Moreover, in every EU jurisdiction, the loser in a lawsuit pays all costs, which deters shakedown suits because an ultimately victorious employer can recover legal expenses.

The Senate Commerce Committee holds a hearing this afternoon on S. 3302, the Motor Vehicle Safety Act, legislation introduced in the wake of the Toyota recalls. We look at Title III and wonder which trial lawyer wrote these provisions?


Sec. 301. Public availability of early warning data.
Sec. 302. Improved NHTSA vehicle safety database.
Sec. 303. Consumer notice of software updates and other communications with dealers.
Sec. 304. Promotion of vehicle defect reporting.
Sec. 305. NHTSA hotline for manufacturer, dealer, and mechanic personnel.
Sec. 306. Whistleblower protections for motor vehicle manufacturer, part supplier, and dealership employees.
Sec. 307. Corporate responsibility for NHTSA reports.
Sec. 308. Anti-revolving door.
Sec. 309. Deadlines for rulemaking.

A database of public complaints, legal protection for people making accusations -- founded or unfounded -- an entire government infrastructure designed to promote the claims that motor vehicles are dangerous and manufacturers are legally liable. It's as if a congressional staffer took the early drafts of the Consumer Product Safety Improvement Act, rubbed out a few words, and filled in the blanks with "motor vehicles."

It's really not that far-fetched. The first witness at today's hearing is David Strickland, head of the National Highway Traffic Safety Administration. At a May 6 hearing by the House Energy and Commerce Committee -- chaired by Rep. Henry Waxman (D-CA) -- Strickland endorsed the draft legislation.

Strickland is a former committee staffer for Chairman Waxman Sen. Jay Rockefeller (D-WV), sponsor of S. 3302, and as a Commerce Committee senior counsel, he wrote much of the Consumer Product Safety Improvement Act. Learning from all the damage wrought by that legislation, he now joins with his former Congressional colleagues to apply the litigious lessons of the CPSIA to the auto industry.

P.S. As we've noted previously, Strickland is also a former lobbyist for the American Trial Lawyers Association (now the NHTSA-lobbying AAJ), although that experience is not mentioned in his official NHTSA bio.

Correction (11:10 a.m.): Corrected and elaborated on Strickland's former staff position in Congress.

Outside Nevada, a Clark County district court jury's award of $500 million in damages to a man who contracted hepatitis C during a colonoscopy did not make much news. Guess the public -- or editors -- have become inured to jackpot justice, but as a vast expansion of failure to warn liability, the award warrants more attention.

It was a huge story in Nevada, the first high-profile lawsuit that grew out of a hepatitis C outbreak in the Las Vegas area. Henry Chanin and his wife claimed that Teva Parental Medicines -- manufacturer of the intravenous sedative, propofol - and Baxter Healthcare Corp., operator of the Desert Shadow Endoscopy Center the distributor of the product, were liable for the reuse of contaminated vials of the drug. From The Las Vegas Sun, "Plaintiff: $500 million 'exactly what was needed' to make statement in hepatitis C case":

Robert Eglet, who represents Henry, and Will Kemp, who represents Lorraine, argued throughout the four-week district court trial that the jumbo-sized vials of propofol encouraged reuse, leading to contamination and infection. They argued the 50-milliliter vials had no place in endoscopy centers, where a fraction of that amount is required for the routine procedures performed there.

Compensatory damages were $5 million, Teva was hit with $356 million in punitive damages and Baxter Healthcare Corp. was tagged with $144 million. Eglet must have been disappointed: He was seeking $1 billion.

Participating in a media conference call in his capacity as general counsel of the American Tort Reform Association, Victor Schwartz highlighted the verdict in the context of proper labeling and failure to warn. From the transcript (via Nevada News Bureau):

This was a simple warning: "One patient use only." It's not a complex warning, and it's easily understood by people. And if you're going to hold a company liable when a clear unequivocal warning is violated, the consequences of...for product manufacturers or for consumers in terms of availability of products is not a good consequence. That's what struck me about this case. I've never seen a case where you had an unequivocal warning about one specific risk, somebody doesn't follow it, and then there is liability. That's very odd. I just had never seen it before.

Teva has announced its intent to appeal. The Las Vegas Sun has done extensive reporting on the hepatitis C outbreak and the litigation, which you can read here.

Correction (2 p.m.): Baxter was being sued as distributor of the product. I misidentified the association. cw

The Kagan nomination, May 19

  • Kagan responds to the Senate Judiciary Committee questionnaire. [SCOTUSreport, supplements]
  • I still don't think a 20-year-old's senior thesis tells us very much, but one can perhaps take solace from the fact that Kagan criticized the Warren's court's lawlessness. Or not. The scorekeeping of Kagan's Marshall memos in the WSJ piece is really grasping at straws: the Court rejects certiorari in the vast majority of cases, and that Kagan recommended a rejection of cert in several members of that set hardly tells us anything. [WSJ]

  • York and Whelan weigh in on the discussion of how Republicans should handle the Kagan nomination. Tit for tat, or make a second effort at truce?

I was ready to be outraged, but then I found that, notwithstanding the headlines, it wasn't actually a study of jurors, but of Cornell undergraduates using controls, so it is impossible to say whether people take actual jury decisionmaking more seriously. [NLJ; Cornell press release]

Around the web, May 19

  • Though, alas, I don't think his opposition to Stoneridge and Iqbal was what did it, Senator Arlen Specter lost his primary last night. We'll miss Victor Schwartz's impersonations. One hopes that Specter doesn't respond to his lame-duck status with even more efforts on behalf of spiteful and destructive pro-trial-lawyer legislation.
  • New issue briefing page on corporate criminalization. [Searle Institute]
  • Alex Tabarrok refutes Paul Krugman on the legal implications of the BP oil spill. [Marginal Revolution; also, Olson @ Cato]
  • WSJ on the odd en banc blow-up in Comer v. Murphy Oil. [WSJ]
  • WaPo editorializes in favor of preemption in consumer financial protection. [Elsewhere in WaPo]
  • Dentists lose implausible case against insurers at early stage, thanks to Twombly/Iqbal. [NLJ; American Dental Association v. Cigna (11th Cir.)]
  • Bad Ninth Circuit ruling on vouchers before Supreme Court. [Will @ WaPo; Heartland; Winn v. Arizona Christian School Tuition Organization]
  • Heads I win, tails is a do-over: Obama's aunt, Zeituni Onyango, wins asylum on the third try after living illegally on taxpayers' expense for nearly a decade and disregarding a deportation order. Because who could be in more danger of political persecution in her home country than the relative of a wildly popular political figure? This really should be a much bigger scandal: the immigration court decision is inexplicable. NY Times coverage forgets to mention she overstayed her visa. [NYT; Derbyshire @ Corner]

Around the web, May 18

Within fifteen minutes of 18-year-old Nikki Catsouras stealing her father's Porsche, she (perhaps under the influence of cocaine) decapitated herself when she smashed into a California State Route 241 tollbooth at 100 mph. Two California Highway Patrol officers released some of the accident photos (as they often do to emphasize the horrific consequences of unsafe driving), some Internet ghouls were less than polite about them, and now Catsouras's wealthy family wants $20 million from California taxpayers for the release of the public records—and a California appellate court has permitted the case to proceed. The Catsourases apparently have excellent public relations, because the media is unceasingly sympathetic to their suit (failing to distinguish between California's actions and the anonymous Internet abusers' actions), even as the Streisand effect has resulted in far more dissemination of the gruesome photos (NSFW). [LA Times; ABC News; CBS News; Newsweek; compare Randazza]

The Kagan nomination, May 18

  • FrumForum's John Vecchione and Eugene Volokh independently discuss the merits of fighting the Kagan nomination starting from opposite positions, and generally come to the same conclusion.
  • Similar to Volokh's reasoning, Bainbridge calls Kagan a conservative win, considering the politically feasible alternatives. I don't know that I'd go that far: Kagan is better for conservatives than Koh (though Koh would present a much tougher vote for swing-state Democrats given his radicalism, and in that sense might well have turned out to be a conservative win if Senate Democrats rebelled in a much clearer battle of what was at stake on the Court), but I think that the alternative universe where Wood got the nomination turns out somewhat better for conservatives in the long run. I never got anyone on the right to agree with me on that proposition, though. [Bainbridge]
  • The Federalist Society's SCOTUSReport upgrades further with an impressive multimedia page and a list of resources that includes every senator's statement on the nomination, transcripts of Kagan's arguments, as well as materials from Kagan's earlier solicitor general hearings.
  • Kagan took a far-left position on the Fourteenth Amendment in a memo on the DeShaney case when she clerked for Justice Marshall—but, of course, so did Justice Marshall, and it was 23 years ago. [WSJ; Whelan @ Bench Memos]
  • Harvard's double-standard on gay rights. [Wehner @ Commentary]
  • Kagan's childhood neighborhood was the bastion of Bella Abzug. [Forward]
  • You won't learn much from the basic questions in the Senate questionnaire. [BLP]
  • Crovitz on Kagan's confirmation-hearing law-review article calling the process a "charade." [W$J]
  • But if you're looking for drama at Kagan's confirmation hearings, a Craigslist suitor of Kagan asks her to send a coded message in her opening statement. Shockingly, there does not appear to be a media frenzy over this, even as Andrew Sullivan backslides on his promise to drop his monomania over Kagan's personal life. [Above The Law; Craigslist]

A New York Times blockbuster could have dramatic implications for the activist attorney general's career, which seemed Senate-bound.

Around the web, May 17

The Kagan nomination, May 17

  • "This notion that [Justice Kennedy] can be led around by the nose by some clever person seems to me wildly off the mark." [Geoff Stone, quoted by Liptak @ NYT]
  • Miguel Estrada, Ken Starr, and Michael McConnell endorse Kagan. [AP/WaPo]
  • John Yoo doesn't. [Philadelphia Inquirer]
  • Senator Sessions predicts bumpy ride. [Reuters; WaPo]
  • Orin Kerr to advise Senator Cornyn on process. [Politico; Volokh]
  • The New York Times characterizes Kagan's support of free speech as "conservative." Conservatives might disagree, since Kagan took the position that the government could constitutionally ban books under McCain-Feingold, but it's interesting that, in three decades, the "liberal" and "conservative" stereotypes have switched places. [NYT]
  • White House asks for release of Kagan's White House papers. She's the first nominee who has an email paper trail. [AP]
  • Kremlinologists including POL favorite Randy Maniloff try to divine Kagan's opinions on insurance law. [PhillyDeal$]
  • Other Kremlinologists try to divine Kagan's role on the Court from her six Supreme Court arguments. [AP; Mauro @ law.com]
  • Stephen Carter's Kremlinology. [NYT]
  • Still others attempt to extrapolate from the Solicitor General's office choosing to defend a USDA regulatory decision on behalf of Monsanto against a bad Ninth Circuit decision. The article reflects precisely zero understanding of what the solicitor general is supposed to do. [Truthout]
  • "Which 'recently appointed' justice does Kagan have a beef with?" [Yahoo Newsroom]
  • Annotated guide to legal blogosphere commentary ignores Point of Law, but has lots of other links. [Conglomerate]
  • I'm not going to link to the racist site, which you can find on Google, but I'm accused of being part of a Jewish conspiracy to take over the Court through the Kagan nomination. So keep that in mind as you read my posts.
  • I don't think you can tell much about a person by what they wrote when they were twenty, but if you think otherwise, here's Kagan's Princeton thesis on radicalism, at least until Princeton issues another copyright claim. [Infidels; DeLong; Newsweek; Media Matters spin (via Playbook)]. Playbook points out that Chief Justice Roberts wrote about Bolshevism and Marxism in his senior thesis.

Toyota's pollster protests to Congressional investigators that "testing messages to rebut unfair or false assertions is a common and legitimate research practice and is no different than message testing our firm regularly does for Congressional candidates or Congressional campaign committees in response to critics or opponents," but that doesn't stop Henry Waxman and the Washington Post from making ridiculous hay over the fact that Toyota did so. Sean Kane, who makes quite a bit of money working with plaintiffs' lawyers in attacking Toyota, crows "If we weren't finding something that was meaningful, they wouldn't be spending this kind of time and money. But what we're seeing is that they're willing to go to great lengths to discredit anyone who asks questions about their products." This reminds me of James Randi's line: "They laughed at Galileo. But they also laughed at Bozo the Clown." (Update: Fumento sees the same article, has similar reaction. (h/t W.O.))

Separately, plaintiffs' attorneys are estimating that there has been $7 billion in economic loss from the Toyota controversy that they hope to recover in litigation. Ironically, almost all of that loss has been caused by bad publicity from plaintiffs' attorneys lying about Toyota products. This presents an interesting issue of Rule 23(a)(4) adequacy of representation given the likely conflict of interest between the court-appointed class attorney and the class.

Our long-time readers are well aware of the trend to make "workplace bullying" a new cause of action. (For more on the national push for "healthy workplace" litigation, see the advocates' own website, here.)

In New York, the state senate rather quietly passed such a bill on Wednesday. I comment in a story on The Wall Street Journal's blog, here.

Update: The Journal also includes a shorter story in the New York section of its print edition.

As the AP reports, last week the Heritage Foundation and the National Association of Criminal Defense Lawyers released a joint report entitled Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. This study looks empirically at a phenomenon my colleague Marie Gryphon wrote about last December in her paper, It's a Crime?: Flaws in Federal Statutes That Punish Standard Business Practice: the erosion of mens rea standards in the criminal law. According to the new study, among 446 new non-violent crimes proposed in the 109th Congress (a number itself shockingly revealing of the growth of federal criminal law), 57 percent lacked adequate mens rea provisions. And during the 109th Congress, 23 new non-violent crimes without mens rea standards were enacted into law.

In related news:

The Nation: Bork Elena Kagan

The Left continues to worry about whether Elena Kagan is sufficiently "progressive." The latest: The Nation calls upon the Senate Judiciary Committee to "Bork" her. (H/t" Damon Root.)

Bachmann v. A.G. Edwards, Inc.

The attorneys in the case of Bachmann v. A.G. Edwards, Inc. negotiated what they call a $60 million settlement. Which sounds good, until you actually look at the settlement:

  • The attorneys are asking for $21 million of the $60 million, or 35%;
  • 35% is actually an underestimate, because $34 million of the $60 million consist of $8.22 coupons, issued in sets of three to be used once a year to pay for mutual fund fees--assuming that the class members remember to use an $8.22 coupon in 2012;
  • the attorneys' fees get paid immediately, while the class does not get paid until ninety days after all appeals are resolved;
  • and even if the court reduces the attorneys' fees, the reduction goes to a charity run by A.G. Edwards's successor, Wells Fargo, rather than to the class.

In reality, the class is getting more like $8 million, and the attorneys will be getting more than twice that. This settlement is similar to a settlement against Edward D. Jones of a couple of years ago negotiated by a similar group of attorneys; I asked a co-lead counsel who was involved in both cases for evidence of the redemption rate of the Edward D. Jones coupons. Needless to say, he refused to provide a response.

The Center for Class Action Fairness filed an objection on behalf of a class member who was justifiably appalled by the settlement. And I see many others are unhappy as well. The AG Edwards Settlement Fairness Hearing will be held today at 9:30 a.m., central time at the St. Louis City Circuit Court, Civil Courts Building, 10 North Tucker Boulevard, St. Louis, MO 63101-2044.

(CCAF's litigation is entirely separate from the Manhattan Institute.)

At NRO this morning, I argued that it was important to keep an eye on judicial nominations other than Elena Kagan's to the Supreme Court:

[I]n 1986, the Democrats in the Senate were so focused on attacking William Rehnquist -- whom Ronald Reagan had chosen to elevate to chief justice of the Supreme Court -- that they made nary a noise about Reagan's pick to succeed Rehnquist as an associate justice. Thus it was that Antonin Scalia was confirmed to sit for life on the highest court in the land with 98 senators in favor, and none against.

It's incumbent on those of us who care about the judiciary to keep this in mind as the nation's attention focuses on Elena Kagan. Only a tiny fraction of cases decided by the appellate courts are granted review by the Supreme Court, which means that those lower appellate benches are usually the courts of last resort in the federal system. And because so many cases never make it even that far, federal trial courts wield enormous power, too.

I focused on three nominees of concern:

  • Goodwin Liu, my law school classmate (see previous posts on this site);

  • Louis Butler, of Wisconsin Supreme Court lead paint and med-mal fame (see ealier posts here); and

  • Jack McConnell, the plaintiffs' lawyer who was Senator Sheldon Whitehouse's symbiotic partner in Rhode Island's $3 billion-lead-paint-verdict fiasco (see posts here, and earlier writings here and here).

Liu's nomination was voted out of the Judiciary Committee today on a straight (12-7) party-line vote.

Our readers may recall that Butler's nomination also passed out of Judiciary last year on a 12-7 party-line vote but wasn't acted upon by the full body; and that the president resubmitted his nomination this January.

McConnell's hearings before Judiciary were scheduled for this afternoon. As Carter reported, the U.S. Chamber of Commerce came out strongly against this nomination on Tuesday, and my piece today in NRO was joined by critical editorials in the Washington Times and American Spectator.

The next hot areas of tort claims

At the American Association for Justice's summary convention in Vancouver, B.C., this July lawyers will meet to organize new litigation groups, described by AAJ as "a critical tool for our members to level the playing field when forced to battle the overwhelming resources of corporate counsel."

The proposed groups from the AAJ's convention schedule.

  • Proposed Vaginal Mesh Litigation Group
  • Proposed Radioactive Litigation Group
  • Proposed Intellectual Property Litigation Group
  • Proposed Qui Tam Litigation Group
  • Proposed Motor Vehicle Litigation Group
  • Proposed Industrial Agricultural Litigation Group

Regarding out-of-context quotes and my commentary on Elena Kagan's nomination, an excerpted version of my remarks landed me on Tuesday night's Daily Show -- my first encounter with Jon Stewart!

Here's the clip:

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As is probably obvious, the quote was taken out of context. Last Friday, Fox called me over to their studios to discuss the pending Supreme Court nomination. The conversation was not live but rather pre-recorded for their nightly news broadcast Special Report. And although rumors were already circulating that Elena Kagan would be the president's nominee, they were unconfirmed (and later that day expressly rejected by the White House). So, in the course of the discussion, I commented on all four of the president's reported finalists, with a special focus on Kagan. The most obvious contrast between Kagan and Diane Wood, Merrick Garland, and Sidney Thomas was, of course, Kagan's lack of judicial experience. I noted how that made her record tough to evaluate and that -- in this specific respect -- if we were comparing her nomination to that of Sonia Sotomayor, Sotomayor's record was closer to that of Alito (in terms of extensive judicial experience) whereas Kagan's was closer to that of Miers. My broad comments evoking that comparison and contrast were not that dissimilar to those I wrote here and here.

In editing for the show, Fox cut my fifteen-minute taped interview down to the following: "This is a potential nomination that's closer to Harriet Miers than it is to Sam Alito. We're closer to Harriet Miers in the sense that there's not a lot of written track record here." (The clip, which cut between two proximate but noncontiguous portions of my comments, was juxtaposed against a pro-Kagan clip from Nan Aron.)

Although the clip Fox chose to use was only a portion of my broader remarks, it retained much of the original meaning that was lost in the short segment used on The Daily Show. The first sentence certainly wasn't arguing that Kagan was "another Harriet Miers," and the second clarified that in comparing Kagan to Miers I was specifically talking about her lack of a "written track record," not her competence or capabilities.

The Daily Show is of course a comedy program, so it's not surprising they'd cut a broader clip to build their overall comedic narrative. Media Matters for America, which doesn't style itself a comedy program but often resembles one, has no such excuse; but they nevertheless attacked as "baseless" my full quote that ran on Fox Friday night. They didn't explain why they thought my comments were in fact baseless but rather offered up rebuttal points from others taking purportedly opposite positions. And they apparently failed to appreciate the irony in using Ted's May 10 posting here as their first rebuttal point (you'd think that the fact you're purporting to rebut a Manhattan Institute scholar with the statement of another Manhattan Institute scholar, from a post on a Manhattan Institute website, might be worthy of comment, no?). The Media Matters "memo" also failed to appreciate (or to disclose) that the first piece linking Kagan to Miers, which Ted was rebutting, came from the left.

So, just to clarify:

  1. I agree with Ted that Kagan is not "a Democratic version of Harriet Miers," and I don't think that follows from my comments, even as cut for the news segment;

  2. I disagree with Jon Stewart that Harriet Miers is "dumb" -- though I was skeptical of her nomination, even from the outset; and

  3. I think Media Matters for America does a pretty lame job of "correcting conservative misinformation in the U.S. media."

My Marquette University Law School colleague Peter Rofes has suggested, with tongue purposively placed in tongue, four questions for Supreme Court nominee Elena Kagan. While I enjoyed Peter's contribution, I have a few of my own. Any Republican Senator or his or her staff may borrow all or any of this.

"General Kagan, several years ago, a majority of the Court held that due process did not require impartiality in the sense of an absence of a view on or commitment to a particular view of the law. The absence of such views, in the view of the Court, would not be evidence of the absence of bias, but of the absence of qualification. You have yourself have written that confirmation hearings ought to include discussion of a nominee's "broad judicial philosophy" and "her views on particular constitutional issues" including those "the Court regularly faces." In light of your own absence of a judicial track record and rather sparse scholarly production, we on the Republican side of the aisle agree. We, therefore anticipate and look forward to your response to the following questions.

First, significant growth in the size and scope of the federal government have once again raised questions about federalism and structural limitations (as opposed to those that inhere in individual rights such as freedom of speech or the right to equal protection of the laws) on the power of Congress.

Do you believe that there are any structural restrictions imposed on Congressional authority to impose a tax on persons who have failed to act in a way that Congress desires? What are they and, broadly speaking, how are these limitations to be defined and applied? To cut to the chase, can Congress really impose a tax on people who fail to buy what Congress wants them to buy? Going further, apart from whatever protection might be provided by the Bill of Rights, can Congress impose a tax on persons whose way of life is said to affect commerce or impact a system of federal regulation?

Do you believe that the Commerce power enables Congress to regulate activity that is noncommercial in the sense that it does not consist of productive economic activity? Is there any sense in which the Commerce power might extend to noneconomic activity?

In short, General Kagan, are there any justiciable structural limits on the authority of Congress? What are they?

Second, in connection with your nomination as Solicitor General, you stated that there is no federal constitutional right to same sex marriage. At the same time, you are reported to have said that traditional marriage laws, restricting marriage to unions between one man and woman, have no rational basis. Is the latter remark indeed your view? Would you care to explain why? If so, do you believe that traditional marriage laws may violate the Equal Protection Clause?

Third, you have written that Justice Marshall's view that it is the primary mission of the judiciary to "show a special solicitude for the despised and disadvantaged" and "to safeguard the interests of people who had no other champion" is a "thing of glory."

Do you share that view? Do you believe that it is the role of the judiciary to act in a way that "evens" the political process? If so, is that role limited to the way in which the Court interprets enumerated rights and other textual provisions or might it extend to the recognition of unenumerated rights? Who are the "despised and disadvantaged" and persons "with no other champion?" Might they include the unborn and elderly? Could they be fundamentalist Christians and those with unpopular political views?

Fourth, in discussing a Supreme Court decision striking down a hate speech ordinance, you have written that it might be argued that "[i]f there is an 'overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might 'un-skew,' rather than skew, public discourse."

While we appreciate that you may not have been endorsing that view in your article, do you believe that it is ever appropriate for the government to act in a way which is intended to "un-skew" public debate? If so, how does one go about determining what an "ideal state of public debate" might be? May the government intervene to correct "imbalances" in the discussion of issues in media outlets? May the government act to restrict speech based on the harm that may be caused by the message conveyed? If so, under what circumstances?

We look forward to your responses. There may be follow-ups."

The Kagan nomination, May 13

  • Kagan's clerkship with Thurgood Marshall, but Professor Charles Ogletree distances Kagan from that experience. [NYT]
  • Kagan's memos for Clinton were allegedly largely centrist, but the White House distances Kagan from those memos. [WSJ]
  • Kagan meets with senators, but distances herself from her law review article about judicial confirmations. [NYT]
  • As a child, Kagan distanced herself from inegalitarian aspects of Orthodox Judaism. [NYT]
  • RNC attacks Kagan for endorsing Marshall criticism of Constitution, and two Republican senators distance themselves from that attack. [The Hill]

"Stop drinking your lotion, people!"

The danger of overwarning: people are so accustomed to wacky warnings, that they stop using common sense, and 121 people have reported drinking Benadryl Extra-Strength Itch-Stopping Gel. The manufacturer, Johnson & Johnson has added two warnings saying "For Skin Use Only." MSNBC commenters are not impressed (h/t W.F.).

Fascinating paper by Goodman-Delahunty et al. (via ABA Journal):

Lawyers' litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.

Unfortunately, because the paper focuses purely on trial outcomes, it is less useful than one would hope. In a world where the vast majority of cases settle, a case will not go to trial unless one or both parties are overconfident and, because of this overconfidence, fail to agree to a reasonable settlement offer. (If a party is underconfident, then it will be more likely to settle, and settle for too cheaply; if both parties have realistic views of the likelihood of success, it will always be cheaper to settle than incur litigation costs. An underconfident attorney will go to trial only if the opposing attorney is more overconfident than the underconfident attorney is underconfident.) Thus, because the study restricts itself to cases where there was a trial, it biases its outcomes. The study fails to cite any of the law-and-economics literature on the subject.

However, I did find fascinating Figure 2 on page 142. It seems to show that there's an issue of underconfidence as well: attorneys who thought their clients had less than a 45% chance of success (mean about 27%) won nearly half the time, while attorneys who thought their clients had more than a 55% chance of success won slightly more than half the time. This would suggest that either lawyers who go to trial do a poor job of assessing trial probabilities—or that trials are very close to a coin-flip.

Disclosure: I worked with one of the co-authors, Elizabeth Loftus, who served as an expert witness on a trial where I represented the defendant; she did not testify because it settled shortly after opening statements.

Yesterday, the Manhattan Institute's City Journal published an online piece I'd written shortly after word leaked Sunday night that President Obama was set to announce Elena Kagan as his choice to succeed John Paul Stevens on the U.S. Supreme Court. While I stand by virtually everything I wrote then, I now retract my claim -- which unfortunately made its way into the piece's title and lede -- that Kagan "flunks her own test" for judicial competence.

In the wee hours of Sunday night and Monday morning, I didn't have time to peruse Kagan's academic writings, but my flash reaction to the nomination included two critiques I would now reject: (1) that Kagan's academic publishing record, while adequate, wasn't that impressive; and (2) that she failed to live up to her own standard, articulated in 1995 in the Chicago Law Review, that "a nominee's previous accomplishments evidence an ability not merely to handle but to master the 'craft' aspects of being a judge." Both those assessments made it into my first draft of this piece, which I completed about 2 a.m. Monday morning.

I based my first reaction not on a direct review of her body of scholarship but on the second-hand accounts of others who had surveyed her writings, including this harshly critical review by left-wing law professor Paul Campos and this more charitable assessment by George Mason law professor Ilya Somin (a law school classmate and friend, whom I deeply respect; see Ilya's own perspective on Kagan's nomination here). After Eugene Volokh published this decisively persuasive assessment Monday afternoon, I asked the City Journal editors to edit my piece to reflect what I then believed (and now believe), i.e., that Kagan's academic publishing record is not merely middling but rather strong, in the fields in which she wrote over an eight-year span. As my published op-ed explains: "Kagan's scholarship isn't of the off-the-wall variety that we see so often in the academy. Her academic writings are, in fact, the main feature distinguishing her nomination from that of another nontraditional Supreme Court nominee, Harriet Miers, whom George W. Bush unsuccessfully tried to place on the high court." (More on that later.)

My second initial reaction that I now reject unfortunately made it into the published piece. In assessing Kagan's own articulated standard for judicial nominees, I relied on a verbatim block quote from her 1995 law review piece cited by Ed Whelan, president of the President of the Ethics and Public Policy Center (Kagan's full book review is available at "Confirmation Messes, Old and New," 62 U. Chi. L. Rev. 919 (1995)). Ed is exceptionally bright, having clerked for Justice Scalia, and I generally find him to be extremely comprehensive and thorough (if on occasion a tad acerbic in tone), so I was surprised to discover that, in this instance, Ed inadvertantly took the quote from Kagan's article out of context, which he now freely admits. In light of Kagan's having written that a prospective judicial nominee could "demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind," and in light of what I now perceive to be a rather solid record of academic writing, I do not think it's fair to assert that Kagan "flunks her own test" for judicial service.

Also note that I hardly believe that a primarily academic background should be disqualifying for federal judgeships: many of the judges I most respect -- including Ralph Winter (for whom I clerked), Frank Easterbrook, Richard Posner, and former judge Michael McConnell -- had just this background. Still, I think that those whose main qualification for the bench is academic would be particularly well served by getting their "hands dirty" as judges or litigators before stepping onto the Supreme Court -- a belief rooted in my preference for technicians rather than "philosopher kings" on the nation's unreviewable highest bench. Fortunately, Kagan's academic work seems to be more technical than theoretical, with an eye toward surveying and synthesizing the existing body of law, which may augur well for her prospects.

That said, I continue to believe that Kagan's record is significantly thinner than those of the other recent successful nominees to the Court. As I wrote in the City Journal piece, "Kagan's record is nevertheless a far cry from those of Sonia Sotomayor, Samuel Alito, Stephen Breyer, and Ruth Bader Ginsburg, each of whom had a lengthy, distinguished judicial career before being elevated to the Court. Nor does Kagan resemble John Roberts, who had a long track record as one of the nation's top Supreme Court litigators." At the time of her nomination, Sotomayor had been a judge almost seventeen years; Alito almost sixteen years; Breyer almost fourteen years; and Ginsburg over thirteen years. John Roberts, like Kagan, had his early nomination to the federal bench blocked in Congress, so he only had a bit over two years' judicial experience at the time he was nominated for Chief Justice; but as a public and private lawyer he had argued 39 cases before the Supreme Court, and he was widely regarded as one of the elite appellate litigators in the country.

Kagan simply lacks this depth of litigation and judicial experience. Indeed, before her last year's service as Solicitor General, her most prominent litigation effort was probably having signed onto a wrongheaded amicus brief in Rumsfeld v. FAIR. (I'm not a big fan of Congress's ability to wield its spending power like a club, but it very clearly was the law of the land as interpreted by the Supreme Court, and the Court unanimously rebuked the position of the "Harvard professors.")

I want to emphasize that I don't think Kagan is "unqualified" for the Supreme Court, by her or my standards. But her record is thin; and as for Roberts and Miers, her lack of a solid paper trail makes her somewhat hard to assess. I agree with Ted that "a nomination standard that punishes candidates for taking public stands and rewards the Robertses and Kagans with cleaner resumes is going to benefit the left more than the right, as it's much easier for a liberal than a conservative to glide through an academic and political career and proving their bona fides without alienating anyone." Unfortunately, I also think that such a nomination standard is rather inevitable, given the "gotcha" politics of modern confirmation hearings. And heated, high-stakes confirmations are themselves an inevitable consequence of "Supreme Court jurisprudence [that] has become unmoored from constitutional text and history . . . [in which] judges have delegated to themselves whole swaths of policy once reserved to elected representatives." Judicial activism thus begets judicial activism, alas.

The Kagan nomination, May 12

Kagan and Calabresi

In this morning's Washington Examiner, I write that those on the right who hope and those on the left who fear that Kagan will be more conservative than one might expect are likely to be disappointed. That she was an effective dean who made conservative hires and treated conservatives with respect is admirable, but it says little about how she'd rule as a justice; and it doesn't -- as her proponents would suggest -- portend some special ability to influence her colleagues. In making this case, I point to another effective dean with a similar record of hiring and being collegial toward conservatives, my old torts professor (and intellectual proponent of the litigation explosion), Guido Calabresi:

I'd guess that these hopes and fears are both misguided, since the job of being a dean has very little to do with the job of judging. Some 20 years before Kagan worked to resuscitate the law school at Harvard, Guido Calabresi did the same at my alma mater, Yale, where as dean he recruited conservative scholars like Bob Ellickson, John Langbein and Alan Schwartz.

Notwithstanding that record, once Calabresi was nominated by President Clinton to the 2nd Circuit Court of Appeals, he fell comfortably in with that court's left flank. And his chumminess with right-leaning faculty and students as dean hardly translated into sway over his judicial brethren, as evidenced by his colleagues' rather frequent decisions to reverse his opinions by a full en banc court.

It's very likely that Kagan will follow a similar path. Yes, she may be more enthusiastic about executive assertions of political prerogative over administrative agencies than is palatable to some on the left. But when it comes to hot-button issues like abortion, affirmative action, sexual orientation, and the environment, Justice Kagan is likely to come down just where we'd expect, given her upbringing on Manhattan's Upper West Side, her Ivy League education, and her service to politicians Michael Dukakis, Bill Clinton, and Barack Obama.

Likewise, don't expect Kagan to hold magical sway over the justices to her right. In her first-ever argument before the Supreme Court -- last year's Citizens United campaign-finance case -- she bungled out of the gate, earning immediate and sharp rebukes from Justices Antonin Scalia and Anthony Kennedy. (Kagan had, like Obama in his State of the Union speech, misleadingly conflated corporate campaign contribution limits with independent expenditures conveying political ideas.)

Around the web, May 12

  • Eighty percent of corporate counsel disagree with the statement "Outcomes are driven more by the merits of the case than by litigation costs." [National Law Journal; Duke conference website]
  • California state-court judge considers dismissing lawsuit against Dole after demonstration of systematic fraud in recruiting plaintiffs claiming sterility. [AP/WaPo]
  • The use of e-discovery requests to leverage questionable claims of crime-fraud exception. [The Recorder]
  • California federal court ruling demonstrates why disclaimers are so unreadable; court decides that Facebook left a loophole permitting a suit to proceed. [Jackson]
  • Canada certifies a harm-less lawsuit against Mazda where plaintiffs haven't suffered any injury. [Vancouver Sun]
  • I'm quoted on the $200 million asbestos punitive damages verdict. [Legal Newsline]

Rhode Island Attorney General Patrick Lynch, a Democrat running for governor, is actually campaigning on having lost a lawsuit. From AP's report on a candidate forum, "6 Rhode Island candidates for governor discuss childhood poverty at interfaith forum":

When the candidates were asked about protecting children, Democrat Patrick Lynch touted his record as two-term attorney general, including suing former lead paint companies for making a toxic product.

The state won a jury verdict in 2006 that could have cost three companies billions of dollars, but the decision was overturned two years later by the state Supreme Court.

"It's still used for political potshots, but I was the only one who stood up," Lynch said.

Stood up and continued the legally suspect public nuisance lawsuit started by Lynch's predecessor, AG Sheldon Whitehouse, before finally losing! (Supreme Court opinion here.)

State of Rhode Island v. Lead Industries Association, Inc., et al. case is in the news again this week because the Senate Judiciary Committee on Thursday will hold a hearing on the nomination of John J. "Jack" McConnell, Jr., to be U.S. District Judge for the District of Rhode Island. McConnell is the Motley Rice attorney who, on a contingency basis, "led the trial team representing the State of Rhode Island in the public nuisance litigation against the major former manufacturers of lead paint."

The U.S. Chamber of Commerce's Institute for Legal Reform just issued a statement opposing McConnell's nomination. Lisa Rickard, ILR President, said:

In addition to earning a lackluster rating from the American Bar Association, Mr. McConnell has defined his plaintiffs' lawyer career by suing employers based on controversial legal theories. For example, he has spent a large part of the past decade advancing a misguided interpretation of the public nuisance theory in lead paint litigation, which was rejected by four state supreme courts, including the unanimous rejection by the Rhode Island Supreme Court.

The Kagan nomination, May 11

  • Senator Inhofe is the first to oppose Kagan, citing her anti-military stance at Harvard and lack of judicial experience.
  • Kagan's record is largely inscrutable—but she did come out in favor of less limited inquiries into Supreme Court nominees in the University of Chicago Law Review in 1995. See also Ed Meese on the nomination. But now that she's on that hot seat, Kagan has backed off of her academic position.
  • But fascinatingly, as Matt Marcotte has suggested, the "Kagan must be stopped!" fulminations have largely come from the left. This is in part because the right is largely resigned to their impotence in the Senate, but in part because folks like Greenwald, Lemieux, and Turley are being foolish: they would prefer Democrats take a huge political hit for putting an outspoken ideologue on the Supreme Court without getting anything extra from that vote that Kagan wouldn't provide. Larry Lessig understands this. (Indeed, the right has likely shot itself in the foot by being so vocal about Diane Wood, who is both considerably more moderate than Kagan and nine years older.) More generally, a nomination standard that punishes candidates for taking public stands and rewards the Robertses and Kagans with cleaner resumes is going to benefit the left more than the right, as it's much easier for a liberal than a conservative to glide through an academic and political career and proving their bona fides without alienating anyone, so it's helpful to the right that the left are the ones complaining here. (On that note, Todd Zywicki has an amusing post how partisan bickering blocking Roberts and Kagan from an additional eight years of experience on the D.C. Circuit probably helped their Supreme Court candidacies.)

    The leftists who oppose the nomination on cronyish grounds have the tiniest bit of a point about the incestuous unseemliness of the Harvard/Yale Law academic axis, but it's worth noting that some of the most influential judges on the left were (intelligent) presidential cronies. E.g., Felix Frankfurter (whose resume is a lot like Kagan's).

  • I'm less concerned than Eric Turkewitz about Kagan's two years at Williams & Connolly. While time as a BigLaw junior associate should influence one's view of civil justice (it certainly did for me), someone who's marking time until she can step on the academic or political ladder almost certainly had little say over her assignments or even the arguments she made in her briefs, if she was allowed to write briefs. As in the case of Goodwin Liu, such junior-associate experience should be treated as essentially meaningless cannon-fodder work.
  • I suggested yesterday that Kagan's academic record was mediocre. I retract that after Eugene Volokh's persuasive analysis, which also tells us a bit about Kagan's First Amendment jurisprudence.

Around the web, May 11

  • Skadden attorneys analyze the Dukes v. Wal-Mart en banc. [Beisner et al.; Jackson]
  • Strange braggadocio in the jostling for the highly-lucrative lead-counsel position in the Toyota litigation. [Trask]
  • "A Contrarian [and odd] Cheer for Twombly." [Moller]

  • Analysis of the DISCLOSE Act. [Hayward @ Fed. Soc.]
  • "Business, the Roberts Court, and the Solicitor General: Why the Supreme Court's Recent Business Decisions May Not Reveal Very Much." [Joondeph & Srinivasan]
  • EU federalism, American federalism, and the Greek bailout. [Greve]
  • Unbelievable paperwork requirements added in the Obamacare bill. [Tanner @ Atlanta Journal-Constitution]

Walter Olson notes how the things that surprise the broader public about judicial nominees like Elena Kagan and Sonia Sotomayor generate little stir indeed inside the hallowed halls of the nation's elite law schools.

(My own view of Kagan's handling of the military recruitment issue has been rather nonplussed, given that her position was in lock step with all the other elite law school deans. But as Walter suggests, such rationales are probably far from self-evident to the unwashed masses of the American electorate -- and the issue may indeed be mildly explosive in Kagan's looming confirmation.)

I've been on the radio most of the day discussing Elena Kagan's nomination to the Supreme Court. Here's the first of several written comments I've been working on -- as Goodwin Liu would say -- interstitially.

Update: My friend Matt Marcotte corrects my interpretation of the Founders' views of the confirmation process; while my characterization is correct vis-a-vis Hamilton, others of the constitutional framers held very different viewpoints. See Matt's very interesting article discussing the history of the advice and consent power here.

Update 2/ Correction: In this instant-reaction piece, I somehow put down "48 years" rather than "38 years" as the length of time that had elapsed since a non-judge was appointed to the high bench, notwithstanding that I was born in the year William Rehnquist was nominated. And notwithstanding that I once won a statewide math contest in North Carolina (though I was working on far more sleep that day).

Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.

If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.

No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.

Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.

According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")

Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."

Dude, please.

Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.

Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)

Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.

As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**

Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.

Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.

And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.

Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.

And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.

In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.

But, dude, think!

Cross posted at Point of Law and Shark and Shepherd

* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.

**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.

Will Bruno Walk?

A federal judge sentenced former New York Senate leader Joseph Bruno to two years in prison last Thursday, and then suspended the sentence pending the outcome of a trio of U.S. Supreme Court cases challenging the notoriously vague "honest services" law under which Bruno was convicted.

Like the case against Bruce Weyhrauch, the former Alaska lawmaker whose appeal the Court heard last fall, the case against Bruno is based on his failure to disclose conflicts of interest which he had no duty to disclose under state law. But unlike Weyhrauch, Bruno wasn't merely shopping his resume around for a job; he was collecting millions of dollars in "consulting" fees from companies with interests before the New York Assembly.

Bruno is a genuinely a shady character, so it is unfortunate, in a way, that he will likely get off scot-free when the Supreme Court sharply limits or strikes down the honest services law, as it should. But the state of New York has only itself to blame for failing time and again to enact ethics rules that require disclosures of conflicts of interest such as those that Bruno concealed. Public disclosure can neutralize improper influence, and many other states have ethics rules that require it.

Vague statutes and politically driven prosecutions have been hallmarks of the law enforcement-oriented approach to political malfeasance. The New York Assembly should instead experiment with more sunshine. By enabling the voters to decide what kinds of conflicts they are willing to tolerate from their politicians, disclosure laws can reduce political corruption with fewer side effects than vague prohibitions that even judges can't define.

Nina Totenberg's various Morning Edition reports this morning on the expected nomination of Solicitor General Elena Kagan to the U.S. Supreme Court included these facts.

  • Her presence would result in three female justices on the nine-member court for the first time in its history.
  • If confirmed, she also would become the third Jewish justice on the current court, which has six Catholics.
  • With Stevens' exit, there would be no Protestants.

But what clan does she belong to?

Oh, right. It's Harvard Law.

Elsewhere in controversial court nominations, the Senate Judiciary Committee will hold a hearing Thursday on judicial nominations, including that of John J. "Jack" McConnell, Jr., to be U.S. District Judge for the District of Rhode Island. McConnell, a partner at Motley Rice, is Rhode Island's leading trial lawyer, one of the original tobacco attorneys, and a generous campaign contributor to the state's Democrats. (He and his wife, $700,000 over a decade!) McConnell and then-Attorney General Sheldon Whitehouse (now a U.S. Senator) ginned up the public nuisance suit against paint manufacturers, eventually thrown out by the Rhode Island Supreme Court. (Earlier Point of Law post.)

On Friday, the Judiciary Committee is scheduled to vote on the nomination of Goodwin Liu to serve on the Ninth U.S. Circuit Court of Appeals. Republicans delayed a vote scheduled for last week on Liu. Unfortunately, the vote is being cast as a warm-up to the Kagan confirmation battle, diverting attention from Liu's far-out record, which Liu implicitly renounced at his hearing. We liked this Ed Whelan headline, "Goodwin Liu's Ambition Exceeds Even His Inexperience."

UPDATE (2:15 p.m.): Eric Turkewitz, author of the New York Personal Injury Law Blog, takes note of Kagan's thin experience in the private sector. From "Elena Kagan: The Three-Year Hole in the Resume":

The Kagan Nomination

It has leaked that the White House will nominate Elena Kagan to Justice Stevens's seat. Some thoughts, ranging from important to trivial:

  • It is mysterious why the idea of Kagan is getting heat from the left. (E.g., Greenwald @ Salon.) There is no reason to think that Kagan won't be a reliable vote on the left of the Court, and one begins to suspect that these sort of attacks are to slant the story that Kagan is somehow a "moderate" voice to blunt Republican attacks on living-constitution jurisprudence. Liberals should be thrilled with this pick: it's someone who's going to give them a reliable vote for what is likely to be two to three decades. (Walter Dellinger—who would've been my first choice on the Democratic side of the aisle—certainly understands this.)
  • Attacks on the left that Kagan is a Democratic version of Harriet Miers don't seem reasonable, either. It's fair to say that Kagan's academic record isn't especially distinguished, but there's much more there there than there was with Miers. Kagan has held government positions where real legal thinking was required and a much better resume than Miers. (Update: Eugene Volokh makes a good case that Kagan's academic publishing record is above average. I'm persuaded.)
  • A lot has been made of the idea that Obama should nominate someone who isn't already a judge. I'm of mixed feelings about that, but I absolutely agree with Ed Whelan that, in this case, "Kagan's record manages to replicate the primary supposed defect of the judicial monastery--isolation from the real-world lives of ordinary Americans--without conferring the manifold benefits of judicial experience."
  • Ed Whelan's thoughts on Kagan's recusal obligations are also important reading. I'm not as bothered by the implications as Ed, though: a Supreme Court appointment is for a lifetime, and the fact that Kagan will need to recuse herself from dozens of cases for a few years is no reason to preclude a former solicitor general from joining the Court. We don't want to deter top attorneys from accepting a nomination to the SG's office for fear of the political implications for their judgeship.
  • There's something sad about the speculation that Diane Wood was not nominated because she was "too old" at 59. If we're excluding more experienced candidates in their late 50s for fear that they won't be able to serve three decades, it is a good argument for the eighteen-year term limit.
  • An early New York Times story on the nomination suggested that Republicans who supported Kagan's nomination to Solicitor General would be hard-pressed to vote against her ascension to a lifetime appointment on the Court. This seems a foolish piece of analysis: the earlier case was an appointment to an executive branch position to advocate on behalf of the Obama administration's positions in court, where the president should have a great deal of discretion to make a choice. (If anything, the 30+ votes against Kagan for Solicitor General suggest a battle in the Senate.)
  • The Times is quick with a lengthy bio.
  • That bio touches on an underreported aspect of Kagan's career: she turned down tenure at Chicago Law to work in the Clinton administration. Chicago declined to offer her tenure when she left the administration. Kagan got the last laugh: when she became dean at Harvard, she successfully recruited several top conservative legal scholars to the faculty there, emulating Chicago at the same time that Chicago, instead of pressing its comparative advantage, veered left. Students like me who used to turn down Harvard Law to go to Chicago stopped doing so, and Chicago dropped in the US News & World Report rankings from #2 (ahead of Harvard) to bouncing around #5 and #6. (But see Dan Markel on Kagan's hiring record.
  • I'm not sure how it is that I arrived at University of Chicago Law School in 1991, the same year that Barack Obama, Elena Kagan, and Larry Lessig started teaching there, and missed out on taking classes with any of them. And I dropped Gary Becker's Microeconomics class the day before he won the Nobel, too.

Heartland podcast

Arin Greenwood interviews me about some recent Center for Class Action Fairness cases.

Michael Greve in National Review on the importance of the dormant commerce clause to the structure of the Constitution—and why Justice Thomas is tragically wrong on the subject.

A bill of attainder in Michigan

Ray Lehmann critiques a particularly egregious bit of special-interest legislation on behalf of executives at a Michigan insurance company.

Around the web, May 7

  • Don't blame Prop 13 for California's problems. [City Journal]
  • CEI files FTC complaint against GM for false advertising over bailout—but see Walter Olson's criticism of it. [CEI via Zywicki @ Volokh]
  • Ed Whelan rebuts Nan Aron's ludicrous claims of a Supreme Court in Big Business's pocket. [Bench Memos]
  • Five big business-law cases still pending between now and the end of June. [WLF]

Given that compensatory damages were "only" $8.8 million, the award is likely to be reduced. But it demonstrates the randomness of the system, especially given that the non-pecuniary damages were essentiaally random. [The Recorder; Cal Biz Lit]

Around the web, May 6

  • Senator Mark Pryor has a short memory when it comes to the role of partisan politics in judicial nominations. [Paul Greenberg]
  • Ed Whelan deconstructs Goodwin Liu's answers to Senate Judiciary Committee questions. [Bench Memos]
  • A much-sued museum talks back. If more defendants did this, we might get somewhere. [Overlawyered; Facebook; WSJ]
  • Dana Milbank doesn't quite get the idea of "limited government." [Jacobson]
  • "Biotech Defamation Case May Send Peruvian Biologist to Jail" [Reason]

  • "If the TSA Were Running New York" [Fallows]
  • Life imitates The Sopranos. [ABA Journal]

Merck v. Reynolds

Last week, the Supreme Court bucked the stereotype propounded by liberals that it is in the pocket of big business by unanimously affirming a Third Circuit opinion on the timing of the statute of limitations in a securities suit. The suit alleged a breach of duty over the disclosure of Vioxx problems; Merck had argued (successfully in the district court) that the statute of limitations started to run in September 2001 when there were first signs of trouble with Vioxx, putting plaintiffs on inquiry notice—am argument at some tension with Merck's position in product liability litigation that Merck had no reason to act in response to those same September 2001 intimations of potential trouble.

The Washington Legal Foundation takes issue with the decision, but I'm less troubled, both as a matter of law, and as a matter of policy. The PSLRA establishes a reasonably high bar for bringing a complaint under the securities laws; conclusory allegations are supposed to be dismissed. Defendants can't expect to have it both ways with a higher standard for bringing a complaint but a lower standard for running the statute of limitations. A rule establishing inquiry notice triggering the statute of limitations would reestablish the race to the courthouse and prompt any number of meritless lawsuits.

That's not to say that the current securities lawsuit is meritorious—and as a member of the putative class, I will scrutinize very closely any proposed settlement...

Yesterday, a Senate subcommittee held a hearing on this frightening notion. Larry Ribstein's testimony is a must-read. Those inclined to visual stimulation can watch it on the C-SPAN site.

Around the web, May 5

  • Overcriminalization panel noon today at Heritage in DC [Heritage]

  • Tiger Joyce on the Lawsuit Lobby. [Metropolitan Corporate Counsel]
  • Apple's success draws attention of antitrust regulators happy to impose their views about optimal vertical structure. [WSJ]
  • Legal patchwork presents problems for gay divorces. [CNN]

  • "It's time for Democrats, even liberal Democrats, to start looking at unions and unionism with deep skepticism." [Kaus @ LA Times]

  • Special-interest protectionism in the Obamacare bill [Washington Examiner]

Senator Specter, apparently concerned that Senator Dodd's financial bill wasn't bad enough, has proposed an amendment to reverse the Supreme Court's decision in Stoneridge v. Scientific Atlanta (via BLT). I discussed the perverse results of such a legal rule in the Wall Street Journal in 2007.

Over the last few days, many of our loyal readers have likely noticed an increase in blogging activity from our longtime contributor, Ted Frank, and a decrease in postings by our founding editor, Walter Olson. As the Manhattan Institute announced this morning, Walter is leaving us after years of service to join the Cato Institute as a senior fellow. Ted will be joining the Manhattan Institute as an adjunct fellow and primary editor of this site.

Not only this site but the Manhattan Institute's entire project on litigation reform -- what developed into the Center for Legal Policy, which I have directed since 2003 -- owes its very existence to Walter Olson. In the mid-1980s, Bill Hammett, then president of the Institute, decided to develop a research agenda dedicated to studying American civil litigation. At that time, litigation in this country had already exploded, but the causes and effects of the profound shift in the nation's legal landscape were only beginning to be understood.

To lead the Manhattan Institute's research agenda, Hammett turned to Walter Olson, then a young scholar at the American Enterprise Institute who edited its Regulation magazine (which has subsequently shifted locales to Cato, Walter's new home). Trained in economics, Olson brought together many of the brightest minds in the legal and economic disciplines; the early thoughts of the group were published in a 1988 volume he edited, entitled New Directions in Liability Law. Also that year, the Institute sponsored its first full-length book on litigation, Liability, published by lawyer and scientist Peter Huber; Walter commissioned this book, and both he and Peter would remain critical to our research efforts in this field over the next quarter century.

Walter went on to publish three books of his own, 1991's The Litigation Explosion, 1997's The Excuse Factory, and 2003's The Rule of Lawyers. Each was well reviewed and highly influential. He has testified before Congress, made hundreds of media appearances, and written scores of papers and opinion pieces.

In addition, as our readers know, Walter pioneered communication on the internet about legal issues. His well-read Overlawyered.com, launched in 1999, was -- as best we can tell -- the first legal weblog. In 2004, Walter conceived and guided the launch of the Manhattan Institute's in-house legal web platform, our own Point of Law. Walter will continue to blog on Overlawyered and return here from time to time.

The upcoming year promises to be an exciting one for Walter, as next winter, he's scheduled to publish his fourth book, which chronicles the intellectual escapades that have permeated out of the legal academy in the last few decades. Having read draft chapters, I can attest that the book is both illuminating and readable, with Walter's trademark insight and wit. I look forward to promoting that book -- and all of Walter's writings -- here and in other Manhattan Institute forums. He's changing homes, but we at MI continue to be enthusiastic about Walter's ongoing efforts, and I know I'll continue to turn to him for wisdom and guidance about all matters of legal policy.

Our friends at Cato have hired themselves a good one, and I can speak for everyone at the Manhattan Institute in saying that Walter will be sorely missed. He displays none of the arrogance one might expect of someone so accomplished, and he has consistently treated everyone at MI, scholar and staff alike, with uncommon warmth and grace. I value him not only for his encyclopedic knowledge but as a dear friend and an inspiring husband and father.

While Walter is irreplaceable, I am very pleased that Ted Frank has agreed to join us as an adjunct fellow and editor of this site. A founding contributor to Point of Law, Ted brings deep experience in litigation through years of private practice. He led legal reform research at the American Enterprise Institute, and he recently has been making waves as the founder and president of the Center for Class Action Fairness, which fights collusive settlements of frivolous class litigation. Although stylistically different from Walter, Ted is a proven blogger on legal issues -- with a similar indefatigable commitment to the cause -- and I am confident that our readers will be well served by his new leadership.

I am a bit late in commenting on the en banc 9th Circuit's class certification in Dukes v. Wal Mart, but it is, after all, 137 pages.

The decison is problematic on at least four levels. First, as others have noted, it masks a rather unorthodox view of Title VII. It was necessary, on class certification, to identify common question of law shared by the approximately 1.5 million class members who work or who have worked in 3400 stores located in 43 regions on which the cases of the six named class members are typical. Tall order and, having read all 137 pages, I am still not sure just what the majority thinks that common claim is other than a generalized allegation of gender discrimination that happened in some unspecified way because Wal Mart gives managers too much discretion and yet controls them in a way that warrants trying the claims of 1.5 million women as one. You might imagine that this required substantial dexterity and so it did.

The first problem is the elision of a substantial dispute about what Title VII requires. While courts have recognized that subjective evaluation procedures may enable discriminatory practices, they have made clear that a policy of subjective evaluation is not itself discriminatory. The panel majority recognizes this but, as the dissent points out, it never adequately identifies what additional issue, common to all class members, would make Wal Mart's subjective evaluation procedures unlawful. What it attempted to do was marry the ways in which certain policies might facilitate discrimination with the conclusion of an expert that it did. But that creates further problems.

One of the ways in which the panel majority tried to close this loop is through the use of something called "social framework" testimony. My colleague Paul Secunda and Melissa Hart of Colorado have written a good discussion of such testimony from the perspective of those who favor such testimony. The term refers to social science testimony that attempts to identify "structural" and "hidden" forms of discrimination. "Social framework" testimony is not any one thing and I actually agree with Paul that there may be times when it is admissable.

But that doesn't mean that it is not extremely problematic. I had extensive experience responding to such evidence in systemic racial discrimination cases in an earlier life. The unvarnished truth is that there is often nothing "scientific" about it at all. It sometimes does involves application of some particularized research(that may or may not be specfically related to the case at hand) which, taken alone, may be probative and admissable.

But often the helpful is combined with the obfuscatory. The proferred testimony may contain useful observations about what the ways in which the world might work. It may be that subjectivity may enable discrimination. There might be empirical support for the notion that filling positions through "word of mouth" may tend to result in hiring people of the same ethnic or racial background of existing employees. Under the right circumstances, a trier of fact may benefit from hearing these things.

But information such as this is often combined with other assertions that, while claimed to be "scientific" because they have been "peer reviewed, are, in fact, ideological presuppositions that won't survive fifteen minutes of well planned cross examination. While one might suggest that the latter problem goes to the weight and not the admissability of the opinion, the problem is often confounded by the way in which the testimony is presented. Methodology is often hidden behind an impenetrable mask of supposedly objective "content analysis" - you and I might say that the expert "read" a bunch of things that the lawyer gave her - to reach an ultmate conclusion. While expert testimony is not objectionable for the latter, it is unclear why an expert is in a better position than the trier of fact (perhaps aided by whatever insights might be offered by social science research) to reach that conclusion.

The point is often to avoid having to try the many "facts" that the expert claims to have relied on. It is an obvious - but often obscured - fact that the notion that social scientists have "found" that subjective procedures might facilitate discrimination tells us nothing about whether that has happened in the case at hand. This might be shown through the introduction of admissable evidence about the matter in suit that demonstrates discriminatory treatment. It could be done by proof that these subjective policies were adopted to further, or have been influenced by, policies that run afoul of Title VII's prohibition of disparate treatment or impact,

But, at least in my experience and by description of the testimony proffered in Dukes, an expert narrator tells the trier of fact that he or she has reviewed the evidence and has concluded (trust me) that such discrimination has occurred, offering enough "examples" to make the testimony believable.

The problem with the scheme is that it is unclear that this second step is an application of expertise. To be sure, some of my finest moments as a trial lawyer came in skewering this sort of thing. But, unless it is carefully controlled, it is a bit like peeling back an onion. How many instances of bad analysis are enough to undermine the opinion?

I have not read the testimony of the plaintiffs' expert in Dukes, but it's description - in both the decision and the piece by Secunda and Hart - sounds distressingly familiar. Perhaps it ought to be admitted, yet neither the panel nor the district judge subjected the proferred social framework testimony to a rigorous Daubert analysis The panel majority, ignoring the Daubert challenge that Wal Mart actually made, seemed to think that to do so would be to address the merits at the class certification stage. But. as Professors Secunda and Hart Hart point out, class certification in elephantine employment discrimination is often tantamount to a decision on the merits. Failure to assess whether this evidence really meets the requirements of Daubert would seem to be a prerequsuite to finding that it identifies a common question of which the named plaintiffs' claims are typical.

Nor did the district court or panel majority carefully consider what this social framework testimony, even if credited, could establish. That certain management practices could enable (or even that they have often enabled) discriminatory practices might be useful to the trier of fact (although the latter formulation might be overly prejudicial), but that evidence doesn't tell us that it happened in this case or that it happened in a way that is common to all of 1.5 million plaintiffs. Even allowing an expert to pick out some examples of where it might have occurred doesn't accomplish that .To make that claim, as the defense points out, it is necessary to identify some other common policy or practice (such as an affirmative policy of discrimination or some other policy that might be seen as compelling or encouraging managers to exercise their discretion in discriminatory ways) and, after 137 pages, it is not clear what that might be.

The majority opinion makes vague references to "corporate culture" and "centralization" that somehow left subordinates with too much discretion but yet directed its exercise in some way that was common across 3400 stores and 43 regions. At some point, this becomes hard to distinguish from an assertion that sexual disparity must be the result of discrimination because discrimination is pervasive. But that assumes the matter to be tried.

It is really hard to see what is there other than subjective policies and what the district court and panel decision saw as strong statistical evidence of discrimination.

While the panel seems to have thought the latter resolves the difficulty, it does not. More tomorrow.

Around the web, May 4

  • Heather Mac Donald defends the Arizona immigration law. [City Journal]
  • "A Case Study in Judicial Nullification: Medical Malpractice Reform in Illinois" [von Spakovsky @ Heritage]
  • Ed Whelan rebuts Richard Painter on Goodwin Liu. [Bench Memos]
  • May 25 at the Chamber of Commerce: "U.S. Regulatory Policy and Free Enterprise: The Impact on Economic Recovery," with Chris DeMuth discussing the growth of federal regulation. [NCF]
  • "Congressional Research Service memo raises fresh constitutional questions about Obamacare" [Daily Caller]
  • Liberals discover that State AG meddling in climate science disputes can cut both ways. [Chris Mooney @ Discover]
  • Is it me, or was Chief Justice Roberts hazing Justice Sotomayor when he assigned her the lack-of-empathy-but-legally-obvious unanimous immunity opinion of Hui v. Castaneda? (And note that a Ninth Circuit panel of Reinhardt, Berzon, and Smith got it appallingly wrong.)

And I'm not talking metaphorically, either: I'm talking about the bare-breasted statue, created by C. Paul Jennewein in 1933 for the Department of Justice building, that figured so prominently in the first term of the Bush Administration.

Ashcroft and the Spirit of JusticeBlue backdrop

Photographers sprawled on the floor to tauntingly photograph John Ashcroft with the nude in the background; when the Justice Department responded by putting up a dark blue backdrop so that press conference photos would be more dignified, reporters and pundits tittered that Ashcroft was a censorious prude.

Fast forward eight years, and we have a new administration, and a new attorney general. But I can't recall seeing a single photo of Eric Holder in front of the Spirit of Justice. Did I miss it? Or are reporters and editors giving Holder more respect than they gave the conservative Ashcroft?

Renico v. Lett

After today's reversal in Renico v. Lett, the Sixth Circuit is 0-for-4 this year in habeas cases, with one more appeal on the docket. (Thanks to A.G. for pointing this out.) Update: Jonathan Adler has more.

Washington Post has the scoop, "Linda Lipsen to become head of American Association for Justice":

Linda Lipsen, who has headed the group's advocacy and lobbying team for 17 years, was approved on Saturday by the AAJ board, officials said. Lipsen will succeed Tom Henderson, who held the job on an interim basis for the past year.

[UPDATE: 10:30 a.m. -- Here's AAJ's news release.]

Having searched unsuccessfully for a year to find a suitable replacement for Jon Haber, the AAJ's board must have decided the association could not go into an election cycle under an interim boss. The death of tort reform in federal health care legislation is a testimony to Lipsen's skill as a lobbyist, but to search for a year before picking an internal candidate suggests she's a fall-back choice. Lobbying acumen does not necessarily translate into organizational chops, which is important given the association's financial troubles, as reported last September by The Washington Times, "Trial lawyers lobby sinks $6.2M in debt."

First task: Referee these disputes. From The Biloxi-Sun Herald, "Group wants lawyers investigated":

Out-of-state attorneys and runners who work for them are soliciting clients for lawsuits over the oil spill. The Mississippi Association for Justice, an organization of attorneys who represent injured people, is asking Attorney General Jim Hood to investigate.

"We have heard numerous stories of businesses along the Mississippi Gulf Coast that are getting as many as half a dozen phone calls per hour from out-of-state law firms," the organization's president, Steve Mullins, said in a letter to Hood. Mullins said trial lawyers' associations in Alabama, Louisiana and Texas support the call for an investigation.

"We've all collectively had enough of this," Mullins said in an interview with the Sun Herald. "You can't just come into this state and just represent people willy-nilly. It's illegal. It's unethical."

It's our feeding frenzy. Stay out!

(We've edited this since its first posting to add the AAJ news release and make it read a little better.)

Zimbabwe and the Rule of Law

Valdez v City of New York

A Bronx jury awarded Carmen Valdez $10 million for injuries suffered (in 1996!) when her ex-boyfriend shot her in the face on the theory that the police breached the duty to protect her after she obtained an order of protection and phoned in a death threat to them. (The City disputes that they knew about the death threat, but the appellate court needs to take that fact as a given.) An appeals court reversed last week, but on the narrow ground that Valdez didn't justifiably rely on the police because she never called back to see if they had arrested her ex-boyfriend before leaving the house.

Because it was a split decision, the New York high court will consider the issue, and could avoid a lot of trouble by reestablishing the principle that taxpayers are not liable for the criminal acts of third parties. As it is, courts are forced into fact-pattern contortions to reach the same result—with the perverse result that a police department is less liable if they ignore a complaint than if they send a visible police presence to the address (because the latter could trigger "justifiable reliance"). John Hochfelder has a plaintiff-sympathetic analysis on his blog.

As Jonathan Adler notes, the Supreme Court has asked for the views of the United States in U.S. Chamber of Commerce v. Candelaria (cert petition), where the Chamber is challenging Arizona state law creating additional penalties on employers hiring illegal aliens. The Los Angeles Times posits that this puts Solicitor General Elena Kagan in the awkward position of alienating social conservatives (by siding with the Chamber) or alienating "Latinos, civil libertarians and the U.S. Chamber of Commerce, which sponsored the appeal to the high court" by siding with Arizona.

The Solicitor General's opinion is certainly important: as Cathy Sharkey notes, the Supreme Court has often sided with the Solicitor General's view of federal preemption. And it's perhaps true as a predictive matter that anyone unhappy with the SG's brief will blame or seek to blame Kagan. It's not entirely clear to me that that is fair, however. On a question with this much political significance, with legally colorable arguments on both sides, there are going to be a lot of stakeholders weighing in. The Attorney General's office is certainly going to want a say. Homeland Security head Janet Napolitano (who was both the governor who signed the law, and a supposed SCOTUS short-lister herself) will likely weigh in. The career staff in the SG's office will have input. And there is a president and a vice president who like to be hands on on legal issues. At the end of the day, Elena Kagan might be pretty far down on the list of people who are the "deciders" on this particular brief.

The American Board of Anesthesiologists has announced that it will revoke certification of any doctor who assists in an execution. [WaPo]

L'Affaire Stephanie Grace

Eugene Volokh has many sensible things to say about the Harvard Law e-mail controversy and Dean (and alleged Supreme Court short-lister) Martha Minow's appalling response to it. And see also FIRE's Adam Kissel deconstructing the original e-mail and Minow's response.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.