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Walter Olson Archives

Around the web, April 30

  • Obama: maybe liberal court activism wasn't figment of conservatives' imaginations [NYTimes]
  • "Judge Posner on conflicts of law, statutes of repose and limitations, and forum non conveniens" [Beck et al, Wajert; Taiwanese plaintiffs suing over blood products]
  • Maryland legislature raises minimum auto insurance rates, Baltimore Sun calls attention to trial bar's influence, blog polemics ensue [Andy Green, Jay Hancock, John Bratt (attorney deems Sun "local fishwrap"), Ronald Miller (questioning Hancock's "license ... to blog"), and more]
  • Higher rates of public sector unionization correlate with less efficient public management [Chris Edwards, Cato at Liberty]
  • Lawyers capture lion's share in settlement of harassment claims against Middlesex County, N.J. sheriff's department [NJLRA]
  • "Comparative Law - Various National Approaches to Personal Injury Compensation" [Hartley, Global Tort]

Stanford lawprof Deborah Rhode wants to get the law more involved.

Beware the "citizen-suit" provision tucked therein, which could open new frontiers of governmental liability. [Zachary Roth, TPM Muckraker, via Adler/Volokh]

More whetting of transnational-law appetites, via Mother Jones: "According to a forthcoming United Nations study, the world's 3,000 biggest public companies could be on the hook for $2.2 trillion--more than 30 percent of their profits--if they were made to pay for the fallout of their carbon emissions."

Glenn Lammi, Carter Wood and Ramesh Ponnuru all have a go at correcting People for the American Way and Dahlia Lithwick on some of their more egregious misstatements.

Disagree with a union organizer or class action lawyer on who should count as an independent contractor? Get ready for the criminalization of guessing wrong [ABA Journal]

Around the web, April 29

  • More on Ninth Circuit decision advancing Dukes v. Wal-Mart class action [Mark Moller, Cato]
  • "Financial Regulation Bill Includes Attack on Arbitration" [Carter at ShopFloor] And watch out for the provisions empowering state attorneys general [same]
  • Academic reception of Twombly/Iqbal plausible pleading has passed through stages of denial, anger, bargaining, depression, now on to acceptance [Sullivan, Workplace Prof]
  • Seventh Circuit Judge Diane Wood's handling of some liability cases gets high marks from one defense-oriented observer [Drug and Device Law]
  • "Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts" [Roger Allan Ford, George Mason Law Review, PDF]
  • New Federalist Society site will cover Supreme Court nomination politics [SCOTUSreport.com]

New book by Don Gifford of the University of Maryland, which he discusses with Danielle Citron at Concurring Opinions. Excerpt:

What's wrong with this trend?

Such litigation is troubling for three reasons. First, an empirical one: it has not worked. A dozen years after the settlement that ended the tobacco litigation, most public health experts view it a colossal failure. While the agreement protected the profitability of the large tobacco companies, it did not cause any decrease in smoking rates among young people. The negotiations served the people negotiating the deal at the table well--the state attorneys general who negotiated it and were able to proclaim great public health victories went on to run for positions as governors or U.S. senators; their litigation partners, private plaintiffs' attorneys, earned as much as $150,000 per hour; the tobacco companies have survived and now thrive. But the public did not. The second problem was that the success of such suits required an unprincipled expansion of common law doctrines including the tort of public nuisance and the ability of the state to sue as parens patriae. That's probably why most state supreme courts ultimately rejected the litigation against pigment manufacturers, effectively ending the litigation solution. Third, and most important, these litigation cycles shifted the responsibility for regulating products, and even taxing and spending, away from state legislatures and the administrative agencies that they create to deal with certain problems, to the state attorneys general. Often what the attorneys general proposed contradicted past legislative enactments. The governor of Mississippi actually sued the Mississippi attorney general, unsuccessfully, to stop the tobacco litigation. The attorneys general and public health advocates had criticized back-room deals in legislative committees, but their own decision-making processes were far more opaque than that of legislatures. State attorneys general have neither the competence nor the legitimacy to comprehensively regulate products or to solve public health problems.

New at Overlawyered

Things you're missing if you're not following my other blog:

From the Brennan Center, "Just Books"

The Brennan Center at NYU has launched a new website devoted to law-related books, with many well-known writers among the early contributors. While the left-leaning Center often (though not always) espouses views that contrast with those in this space, there's no denying this is an impressive effort and especially welcome in a world in which many of the traditional sources of attention for serious legal books have been drying up. Some early contributions worth checking out: David Remnick offers a "Portrait of the President as as a Young Law Student"; Frank Colucci links Justice Kennedy's Citizens United opinion to wider themes in his jurisprudence; and Ciara Torres-Spelliscy reviews Richard Posner's book on the financial crisis. The site's editor is Susan Lehman.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.