Results matching “"ohio supreme court"”

Around the web, April 11 - PointOfLaw Forum

  • Epstein on DOJ lawsuit against Apple. [Epstein @ Ricochet]
  • Replaying the Duke Lacrosse case at the New York Times with Patrick Witt's reputation; and why isn't there more of a scandal with Yale's abuse of an already abusive process? [KC Johnson @ MTC]
  • The federal prosecutorial overuse of §1001 charges, turning minor civil regulatory violations into federal felonies. [WSJ]
  • PLF speaks out against the ridiculous Toyota sudden acceleration class action litigation in the Ninth Circuit. [PLF]
  • Lawsuit against Iowa government alleges subconscious discrimination based on disparate impact, using theory rejected in Wal-Mart v. Dukes. [Overlawyered; Sailer]

  • Ohio Supreme Court urged to review abusive certification of class action in Cullen v. State Farm, where, speaking of Wal-Mart v. Dukes, lower courts disregarded individualized defenses. [WLF; ATRA; WLF brief]
  • Why the Supreme Court should curb the Alien Tort Statute. [Bellinger @ WaPo; Overlawyered; related @ Volokh]
  • New Hampshire "early offer" statute proposed. [TortsProf; SeaCoast Online]
  • Nearly half of the Warren Court justices were infrequent questioners (and Ruth Bader Ginsburg has fallen asleep during oral argument), but that Clarence Thomas is uniquely quiet among the historically unusually hot bench of the current Supreme Court is somehow evidence that he's a bad justice. [Drumm via Alkon]
  • Remember Obama Girl? She's shilling for a Kentucky Social Security disability lawyer now. [YouTube (h/t R.U.)]

Ohio Supreme Court and tort law, cont'd - PointOfLaw Forum

In a new paper for the Washington Legal Foundation (PDF), Bruce Mandel and James Kline of Ulmer & Berne commend the court for its greater deference to the legislature's role in shaping tort law (via Stier/Mass Tort Prof). "As a result, the landscape in Ohio for businesses and product liability defendants has improved considerably." Earlier coverage of the court is here.

In the Ohio Court, voters reward improved legal climate - PointOfLaw Forum

Another state court watched by legal reformers was the Ohio Supreme Court, and you can see why in the August update of the Manhattan Institute's "Trial Lawyers, Inc." series, "JUDGING OHIO: Legal Reforms are Steering Ohio's Struggling Economy in the Right Direction."

The voters stayed the course. From The Toledo Blade:

COLUMBUS - Races for Ohio's highest court yesterday again bucked statewide trends as voters affirmed at least two more years of an all-Republican court.

Supreme Court Justices Evelyn Lundberg Stratton, 55, and Maureen O'Connor, 57, defeated their respective Democratic challengers, Cuyahoga County Common Pleas Judges Peter Sikora, 56, and Joseph Russo, 46.

Judges Sikora and Russo apparently gained little traction with their argument that Ohio isn't well served by a one-party high court. Since judicial candidates do not appear on general election ballots with partisan labels, it's unknown whether voters didn't care or didn't know who the Republicans and Democrats were.

Election roundup - PointOfLaw Forum

  • Suing their way into office? Political contestants filing lawsuits galore against their opponents [WSJ, Legal Times, Incisive Media]
  • About that "Michigan Supreme Court rated worst in the nation" smear campaign [RightMichigan; more from Eric Posner @ Volokh]
  • Supposed conservative takeover of U.S. Supreme Court: beyond the hype [Mauro, Legal Times summarized at LawBeat]
  • Jonathan Adler on vastly-improved Ohio Supreme Court in the balance [NRO, earlier]
  • Presumably the folks decrying incivility in judicial races will come down hard on trial-lawyer-allied Texas Watch for its demagogic swipes against Texas Supreme Court. Right? [Ambrogi]
  • Unfortunately, if unsurprisingly, Alabama and Mississippi once again have some of the nation's most acrimonious high court races [Overlawyered]
  • Despite those big donations (thanks Illinois AG Madigan!) I'll be independent of SimmonsCooper if elected, says candidate for Delaware governor Jack Markell [Wilmington News-Journal, letter to editor, earlier]

Adler & Adler on Ohio Supreme Court - PointOfLaw Forum

Case Western lawprof Jonathan Adler, well known to many of our readers through his blogging at Volokh Conspiracy, and his attorney spouse Christina Adler have co-authored a paper for the Federalist Society on the favorable developments at the Ohio Supreme Court, which has pulled back from a number of its predecessor's decisions that have been assailed as ill-considered or lawless (in particular, the court's former unwillingness to allow the Ohio legislature to enact liability limits). The paper's title is "A More Modest Court: The Ohio Supreme Court's Newfound Judicial Restraint". Commenters on Prof. Adler's post @ Volokh disagree on whether the relatively weak challenges to conservative justices this year testify to a successful de-politicization of the court, or simply reflect liberal interests' temporary inability to recruit formidable challengers. We've covered the court's doings extensively in the past.

"Ohio's high court back on right track" - PointOfLaw Forum

David Owsiany of the Buckeye Institute praises recent trends at the Ohio Supreme Court, not least its willingness to acknowledge that just maybe elected legislators might have a role to play in laying out the bounds of liability law. Related: Kurtis A. Tunnell, Anne Marie Sferra, Miranda Creviston Motter for Washington Legal Foundation, PDF; Genova.

Ohio Supreme Court upholds damage caps - PointOfLaw Forum

Arbino v. Johnson & Johnson was a 5-2 decision, and joins at least 19 other state courts that recognize that it is within the power of a legislature to regulate civil remedies. [AP/]

Courts thin out lead paint lawsuits - PointOfLaw Columns

By Jim Copland

This piece originally appeared in the Washington Examiner, 09-19-07.

This summer, government-sponsored lawsuits alleging that paint manufacturers created a "public nuisance" by making paint with lead pigment in or before 1978 met stinging courtroom defeats in major decisions by the Missouri, New Jersey and Ohio supreme courts, as well as a jury verdict in Wisconsin.

These adverse rulings marked a major reversal of fortune for the litigation industry, which viewed such suits as a potential heir to the litigation industry's multibillion-dollar asbestos and tobacco business lines after a Rhode Island jury had ruled in 2006 that paint companies had to shoulder that state's lead paint "abatement costs," estimated to be as much as $3 billion.

While nominally filed on behalf of states and municipalities, the lead paint suits are the fruit of deals trial lawyers cut with government officials, who gave the private lawyers control of state litigation for a share of any proceeds. The lawyers' strategy has mirrored what they used in extracting billions from the tobacco suits to recoup states' health care expenses—unsurprisingly, since the lead paint litigation involves the same lawyers...

Enriching big political donors with the state's multibillion-dollar contingency-fee litigation clearly has the potential for corruption...

But the problems with public lead paint litigation run far deeper. Although lead poisoning is undoubtedly harmful, lead paint litigation has been burgeoning even as the risk has been approaching the nonexistent. Lead paint has been banned since 1978, and paint companies voluntarily limited lead for indoor paint as early as 1955.

That fact, in addition to reductions of lead in drinking water and the elimination of leaded gasoline, has caused a sharp drop in lead-exposure levels. Only 1.6 percent of young children are today exposed to lead levels above the Centers for Disease Control's current threshold, down from 7.6 percent in 1997 and a 98 percent reduction from the late 1970s.

Read the full report, "Judicial Lead-ership," on

Jim Copland is the director of the Center for Legal Policy at the Manhattan Institute.

Ohio consumer damages fiasco - PointOfLaw Forum

Last November the Ohio Supreme Court interpreted the state's Consumer Sales Practices Act, which already allowed treble damages, to permit awards for noneconomic damages as well for aggrieved consumers. The state legislature moved to correct this interpretation, but its effort to do so got caught in the legislative and constitutional train wreck occasioned by incoming Gov. Ted Strickland's attempt to veto liability legislation that outgoing Gov. Taft assumed had become law without his signature. Jones Day has a paper on the extreme uncertainties that afflict the liability climate for some lines of business in Ohio until the whole mess gets resolved (via Jonathan B. Wilson).

Ohio lawsuit curbs OKd - PointOfLaw Forum

Despite peals of outrage from opponents, Ohio's legislature has passed two significant lawsuit reform measures in the waning days of its session. One would prohibit the use of municipal public-nuisance theories against former makers of lead paint, as pursued in lawsuits under the tutelage of Motley Rice; the bill would not restrict more conventional (and less promising) product-liability theories. Acting in what it said was response, the city of Columbus has filed its own suit against lead paint companies, joining Toledo, East Cleveland and Lancaster (h/t Genova). (P.S. The measure is not retroactive, so lawsuits already filed on the bill's effective date would not be dismissed.) The second bill would limit, to $5,000, the damages for non-economic damages consumers could receive under the state's unfair-practices statute; the availability of economic damages would be unaffected. The Ohio Supreme Court recently alarmed business defendants by ruling that non-economic damages were available under the act. Incumbent Republican Gov. Taft is considering whether to sign the legislation; lawmakers acknowledged that his successor, incoming Democrat Ted Strickland, would be less likely to view the measures favorably.

Update: Cincinnati and Canton have now filed suits as well.

Ohio Supreme Court - PointOfLaw Featured Discussion

In another exception to the overall disastrous night for Ohio Republicans, voters gave the GOP a 7-0 majority on the state's high court (although two of the incumbent justices behave more like Democrats). Jonathan Adler has details.

Judicial elections and the New York Times - PointOfLaw Forum

For decades, plaintiffs' attorneys and labor unions have worked together to elect judges favorable to their interests, and for decades, these elected judges have systematically moved American law in a direction unrecognizable and ridiculed in the rest of the world to create a tort system that takes up a share of the economy more than twice as large as any other Western nation. In response, the business community started supporting judges who had track records of actually following the law; the electorate tended to support these judicial candidates over the plaintiffs' bar's candidates. Because these judges aren't in the pockets of the plaintiffs' bar, they don't reflexively vote for the meritless positions taken by the litigation lobby—and now the New York Times and the press suddenly finds it interesting that judges face elections where they fund-raise, and that campaign funds are more likely to be donated to candidates who are sympathetic to the funder's view of the law. (Adam Liptak and Janet Roberts, "Campaign Cash Mirrors a High Court�s Rulings", New York Times, Oct. 1).

What's amazing is that the Times focuses on a recent Ohio Supreme Court decision, Maitland v. Ford, 103 Ohio St.3d 463, 2004-Ohio-5717. (Disclaimer: I billed a handful of hours to Ford Motor on the case. The views here are my own, and not that of Ford, its co-petitioners, or its attorneys.)

Ohio, like most states, has a lemon law entitling consumers to sue to return cars to dealers for a refund. (A "lemon" is defined broadly enough under Ohio law that my Toyota Prius, which I am completely satisfied with, and has spent precisely one week in the shop waiting for parts, would qualify.)

The statute required consumers to attempt to use an "informal dispute resolution" mechanism before bringing suit. Ford, like other auto dealers, would offer to settle cases by providing a new car at the same price as the old car, minus an offset for mileage; someone who had gotten thousands of miles of use out of the car would face a larger offset than someone who had only fifty miles. Not only did the statute not prohibit such settlements, but the Ohio Attorney General explicitly approved it. Never mind, plaintiffs' attorneys argued, this is consumer fraud, entitling everyone who settled to multiples of damages and attorneys' fees. A trial court threw this out, and an appellate court bizarrely reinstated the claim without any statutory justification, arguing that defendants could only provide the full purchase price in settlement, or must litigate the case. (153 Ohio App.3d 161, 2003-Ohio-3009, 792 N.E.2d 207.) The Ohio Supreme Court took the reasonable position—by a 4-3 vote. All four majority judges took donations from manufacturers; all three dissenters took donations from the plaintiffs' bar. Guess which judges and contributions the New York Times singles out? The real scandals here are that the decision wasn't 7-0, and that the appellate court made a ludicrous decision that needed to be reversed by the Ohio Supreme Court, adding substantial litigation expenses to a meritless claim.

But at no point does the Times discuss the merits of the case. In fact, it oversells the argument of the dissent, by stating "the majority�s ruling gave the plaintiffs an impossible choice: to pursue a lawsuit that could cost more than the car itself or to accept the reduced sum." What the Times doesn't tell you is that the lemon law also permits one-sided recovery of attorneys' fees by winning plaintiffs, so the New York Times's claim is false: there's no Hobson's choice. (See � 1345.75(A).) A plaintiff dissatisfied with a settlement offer who has a meritorious claim has no financial disincentive to litigate.

The Times article entirely ignores the amount of contributions from trial-lawyer organizations to the dissenters (focusing solely on the lawyers who brought the quixotic case), and takes the word of one person without comment that the trial bar is capable of raising only $300,000 for a judicial candidate (despite nationwide evidence to the contrary). Indeed, "contributions from lawyers were excluded from the study's main findings," immediately biasing the results, even though lawyers as a class are among the chief beneficiaries of (or chief losers from) court rulings. Adam Liptak usually does much better than this when covering the judicial system, and I'm disappointed that this article ended up so one-sided.

Is Lawyer Licensing Necessary? - PointOfLaw Featured Discussion

Recently, Larry Ribstein and I kicked off a debate on the necessity of lawyer licensing. (Past POL coverage: Is Lawyer Licensing Necessary?; A Response to Professor Ribstein; A Response to Wilson).

The topic must have touched a nerve, as a number of the leading blawgs chimed in and even the Wall Street Journal conducted an online poll on the topic. (Smug aside: As of Friday afternoon the "yes" votes commanded a 59%/41% lead.)

Our hope in this week's Featured Discussion is to dig into this topic further. My own view is that this question, when viewed from the proper angle, offers a number of suggestions for how the legal profession and the American system of litigation can and should be reformed.

What is Lawyer Licensing?

By defending lawyer licensing, I am defending a system whereby, in order to legally practice law, an individual must receive a license at the state level. In nearly every state, this license takes the form of admission to the bar, usually following successful completion of an ABA-approved course of study and passage of the state's bar exam.

Most state bars also require an applicant to complete a "moral fitness" examination. In my home state of Georgia that entails a detailed personal application, identifying every place of residence, job, and course of study taken by the applicant since the age of 18. The moral fitness exam in Georgia also includes an investigation of the applicant by the bar's examiners (many of whom are former FBI agents) and contacting the applicant's relatives, friends and neighbors to validate the applicant's claims.

So what is it, exactly, that lawyer licensing is supposed to achieve?

Lawyer Licensing Ensures Competency and Moral Fitness

As one of the pamphlets for the Georgia Office of Bar Admissions states:

When a client walks into a lawyer's office, he has the right to assume both that the lawyer is competent in the law and that the lawyer will conduct the client's matter in a professional and ethical manner. The responsibility of ensuring that those who seek licensure as attorneys are competent and are fit to be licensed is shared by two separate and equal boards: the Board of Bar Examiners, which deals with the questions of the applicant's competence; and the Board to Determine Fitness of Bar Applicants, which inquires into the character and fitness of the applicant.

The chief purpose of lawyer licensing is to ensure technical competence and at least the minimum level of moral character required to perform as an attorney. This aim supports a number of public policy goals:

1. The public is protected by the state mandate that only licensed attorneys can hold themselves out to the public as qualified, both technically and morally, to practice law.

2. The state is protected by ensuring that attorneys who appear in its courts have a sufficient level of competence. (An excessive number of incompetent practitioners could clog the courts with inappropriate or excessive process. [More on this later]).

The moral examination, at least in Georgia, is quite rigorous and includes questions and third party validation of the following points for each applicant:

unlawful conduct; academic misconduct, including plagiarism; making of a false statement, including omission of relevant facts in the fitness process; misconduct in employment; acts involving dishonesty, fraud, deceit or misrepresentation; abuse of legal process; neglect of financial responsibilities, especially failure to repay student loans; neglect of professional obligations; violation of an order of a court, especially failure to pay child support; evidence of mental or emotional instability; evidence of drug or alcohol dependency; denial of admission to the bar in another jurisdiction on character and fitness grounds; disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction

So, at its heart, the issue of lawyer licensing is one of protecting the public from the baneful effects of incompetent or immoral lawyers.

But the Current System is Flawed!

Readers of these pages know that our litigation system is flawed and at least some measure of responsibility for those flaws rests with attorneys, the bar associations that license and police the attorneys and the judges who began their careers as attorneys. Supporting the continued licensing of lawyers does not necessarily entail blindness to the shortcomings of the current system.

Indeed, the flaws in the status quo suggest that lawyer licensing should be improved and strengthened, rather than eliminated.

The Laissez-Faire Argument

Of course all students of the school of law and economics prefer a market solution where one exists. In his paper on the subject, Professor Ribstein suggests that lawyer licensing is unnecessary, except to the extent that it facilitates the involvement of attorneys in the law-making process.

Without addressing the professor's theory of lawyers' property rights in the law of their home states, I think a more direct justification for lawyer licensing is that laissez-faire simply doesn't work when it comes to the market for legal services.

In classical economic theory, a free market works efficiently to set prices among competing goods when there is ubiquitous and accurate information concerning the relative merits of competitors.

As I describe in Out of Balance: Prescriptions for Reforming the American Litigation System, in the market for apples, there is exactly this kind of information. Everyone knows what they like (or don't like) about apples. A consumer who wishes to compare the apples from producer A and producer B, for minimal cost, can sample both and choose the one that presents the preferred qualities and price.

Legal services are utterly unlike apples. Consumers are ill-equipped to evaluate the skills of competing attorneys and the cost of "sampling" attorneys is very high. Indeed, the cost of sampling an attorney's services (and the possible consequential damages if the attorney proves to be unskilled) could be disastrously high. An ex post facto analysis of the quality of the service will, in nearly all cases, be completely inadequate.

Bad Facts Make Bad Law

Professor Ribstein began this debate by recounting a particularly ugly story in which Brian Woods represented his autistic son in litigation against the Akron school board involving the son's access to educational facilities. After successfully obtaining a remedy, Mr. Woods was rewarded by an unauthorized practice of law prosecution, initiated by the Cleveland Bar Association. Professor Ribstein connected this case to lawyer licensing when he wrote:

Since Mr. Woods could have acted as his own lawyer, and for his son in finding a lawyer, there's obviously no reason not to let him decide to dispense with the lawyer rather than paying the huge fee a lawyer would have asked or having to drop the case.

The Ohio Supreme Court was right to have chastised the Cleveland bar and there seems to be widespread agreement that the bar should not have gone after Woods. I would even be amenable to a more general rule that permits close family members who are unlicensed to represent each other in non-criminal cases. The family relationships in those situations generally eliminate the client-protection rationales for lawyer licensing.

But Brian Woods' good fortune as a pro se litigant does not mean that every Tom, Dick and Harry should be permitted to hang out his (or her) own shingle.

In-house practitioners like myself quickly amass a treasure chest of war stories involving pro se litigants. Litigating against a pro se plaintiff, in many situations, is more costly than litigating against a well-heeled attorney. The plaintiff who represents himself will often get "velvet glove" treatment from the judge (who fears looking like a lout on appeal) and the professionally-represented defendant will be forced (via the American rule of attorneys' fees) to literally pay for the plaintiff's education on the finer points of law.

Rather than the somewhat orderly pre-trial and discovery process that results when professional lawyers practice their craft, the self-represented plaintiff will force his professional opponent to respond to out-of-order motions and arguments, helter-skelter, in an inefficient and lengthy march towards the likely conclusion of a defense victory.

So, while I applaud the individual merits of parents like Brian Woods and am somewhat embarrassed when bar associations create this kind of bad publicity for themselves, stories like this one do not justify the wholesale elimination of lawyer licensing. At most, they may suggest the need for limited exceptions to the general rule that attorneys must be licensed.

What Would an Unlicensed Bar Look Like?

Perhaps the best argument against eliminating lawyer licensing is asking the question, "what would our litigation system look like if lawyers were not required to be licensed?"

Do you think our courts have too many weak or unjustified cases?

An unlicensed bar would compound that problem as individuals with no legal training would be free to make up whatever legal theories they wish. With the American rule of attorneys' fees, defendants will bear the costs of disproving every harebrained theory that comes along.

Do you think our courts are two willing to consider unscientific legal theories and novel theories of liability?

If every citizen were free to hold himself out to the public as a legal advocate for hire there would be no end to the novel legal theories these hired guns would be able to pursue. Perhaps judges might be prompted to clamp down on novel claims in a post-licensing era, but the past offers little reason for optimism.

Licensed attorneys have enough difficulty applying the Daubert rule to their cases in the current regime. Do you think that unlicensed attorneys would have a better chance of getting it right?

Are the existing limitations on lawyers' ability to pursue weak or frivolous cases toothless and ineffective?

Imagine how toothless and utterly irrelevant they will become when unlicensed lawyers can defend themselves against Rule 11 sanctions by complaining that they had never heard of Rule 11. If any person could act as an attorney, why even bother having principles (like Fed. R. Civ. P. 11) that hold some persons to a higher standard than others? How could an unlicensed attorney, perhaps with no legal training whatsoever, distinguish between those arguments that are valid and those that are not?


Criticizing the legal profession for protecting its turf via UPL prosecutions is fair game. Lawyers are often their own worst enemies when it comes to their public reputations and their share of the public trust. When the legal profession allows its sense of professionalism to atrophy and when the state bars become little more than trade associations for a guild that protects its own, its entirely understandable for sensible persons to question why the state bars should hold a monopoly on the licensing of lawyers.

But this criticism ought to remind us why lawyer licensing is necessary and the flaws in the status quo should give us reason to preach reform, rather than deregulation.

Lawyers behaving badly is a far too common occurrence. The solution is to tighten the rules of ethics and to empower prosecutors to pursue lawyers who breach those rules.

A related solution for the problem of a profession that has lost its sense of professionalism is to reform those laws that tend to encourage lawyers to think of their craft as just another good in the marketplace. If our sense of civil justice is offended by "complaint mill" plaintiffs who churn out hundreds of filings in the hope that a handful will result in a lucrative payday we should reform the laws that permit this practice, rather than empowering the general citizenry to engage in the practice.

Deregulating lawyers as punishment or retribution for a profession that has lost its way would be a recipe for disaster. Deregulating the practice of law would open the floodgates to fraud of every conceivable variety and would only compound the problems that the readers of these pages see in our civil justice system.

Ohio enacts wide-ranging liability reforms - PointOfLaw Forum

Following strenuous battles, the Ohio legislature this month enacted and sent to Gov. Robert Taft (who plans to sign it) a watered-down but still significant package of liability limits. The legislation:

* Limits noneconomic damages to $350,000 per person and $500,000 per incident except in cases of catastrophic injury;

* Expands the current definition of frivolous lawsuits;

* Curtails punitive damages;

* Enacts a ten-year time limit for many product liability claims, chemicals and drugs excluded, as well as a government standards defense;

* Enacts a seat-belt defense in car-crash cases;

* Protects some companies from successor liability over asbestos products once sold by companies they bought;

* Restricts obesity litigation against restaurants and foodmakers;

(Cincinnati Enquirer (+ editorial); Toledo Blade; legislative guide from Bricker & Eckler law firm).

Earlier (see Aug. 20), Ohio enacted first-in-the-nation legislation requiring asbestos claimants to meet specified medical criteria to qualify for compensation. Although the Ohio Supreme Court in much-criticized opinions threw out two earlier sets of liability reforms, voters have since shifted the balance on the court and the present line-up of judges is thought more likely to uphold the law.

P.S. A Dec. 14 Toledo Blade editorial states: "One glaring shortcoming is that the measure fails to include a British-style 'loser pays' provision, which would dramatically discourage frivolous lawsuits."

Those other races in Ohio - PointOfLaw Forum

President Bush seems to have won reelection on a tight but apparently insurmountable lead in Ohio. But down-ballot, three contested Supreme Court races were big wins for supporters of tort reform in the Buckeye State. Ohioans elected Thomas Moyer Chief Justice, and Judith Lanzinger and Terrence O'Donnell Justices, of the Ohio Supreme Court. Each faced well-financed trial-lawyer-backed opponents in a multimillion dollar campaign that was another major front for tort reform.

Ohio med-mal crisis - PointOfLaw Forum

Discussed by Sydney Smith at MedPundit, with connections to this fall's races for seats on the state's high court. For more on the Ohio Supreme Court, see Overlawyered, here, here, here and here, among other places.