" /> Overlawyered letters: May 2005 Archives

« April 2005 | Main | June 2005 »

May 10, 2005

Caprices of capital punishment

Your discussion of the death penalty (May 1) seems fairly clearly to imply that it is not carried out in an arbitrary and capricious manner. Since I had the great good fortune to be appointed to handle a death case several years ago, I can attest that it is the most intellectually dishonest body of law I have ever seen.

For example, as I'm sure you know, Gore and Campbell give defendants in civil cases a federal due process right to de novo proportionality review of punitive damage awards to make sure that the award corresponds to the reprehensibility of the conduct. A person facing a death sentence has no federal right to proportionality review. How can a money judgment for punitive damages merit greater due process protection than a death sentence?

Then I read your post on Point of Law criticizing medical malpractice cases as serving no deterrent function because the results are basically random. I'm sure that's true but I don't understand how you can assume that the same judges and the same system are going to function any better in capital cases than in medical malpractice cases. I believe it was George Will who reminded conservatives that the death penalty is just another government program. -- Mark Arnold, St. Louis, Mo.

1. Without getting into a discussion of the soundness of Gore and Campbell, I would disagree that there is no proportionality review; the Supreme Court struck down capital punishment for rape in Coker v. Georgia, for felony-murder in Enmund v. Florida, and for retarded murderers in Atkins v. Virginia.

2. I don't disagree that there's a lot of intellectual dishonesty in death penalty law. My preference would be to have capital punishment administered in an intellectually honest way such that its deterrent value would be less ambiguous. And I do believe that medical malpractice suits have deterrent value, I just believe that the negative incentives outweigh the positive ones; I don't see capital punishment, as currently administered, creating incentives to avoid socially productive behavior. Several days a week, I also subscribe to the notion that there are some crimes sufficiently heinous that a moral society would not suffer the criminal to live, but that's just an unquantifiable gut reaction from reading about the crimes committed by death row inmates.

It's a tough question all around. Thanks for writing. -- Ted Frank

Posted by Walter Olson at 3:54 PM | | Comments (1) | TrackBacks (2)

Fen-phen scandal: the lawyers' cut

Like you, I have been following coverage of the fen-phen frauds exposed here in Mississippi (May 8), and yet I have never seen any reference in any paper in the state to one of the most obvious questions raised by the scandal: what happened to the contingency fees pocketed by the original plaintiff lawyers? Yes, the fraudulent claimants must pay restitution, but do the lawyers get to keep money which in retrospect was paid only because of fraud? Or are they having to return it? The question never seems to come up in the reporting, but I don't know why. -- S.W. Bondurant, Grenada, Miss.

Posted by Walter Olson at 3:41 PM | | Comments (1) | TrackBacks (2)

Gamblers' suits and lawyers' reputations

Regarding your Apr. 19 item on the gambler suing the Atlantic City casino: I don't know about you, but I find the culture of "addictive personality" increasingly irritating. The case is on a par with people claiming that they ran up credit card debt because the banks kept sending them applications saying they were pre-approved for a card -– I get 3-4 of them a week and they go right into the shredder. The fact that this man was already gambling when the Borgata official approached him makes it that much more galling. Nowhere in the article did it indicate that this gentleman was taken to the CCC offices at gunpoint. When on earth are people going to start taking responsibility for their own actions?!

As for this man claiming that he was not served with process, the default judgment against him can be dismissed as a matter of law within one (1) year of it being entered. He and his ex must be on lovely terms if she indeed failed to inform him that he was being sued.

I love what you do, and I've been a litigation paralegal for 15 years. Far from bashing our industry, you bash those who give it a bad reputation. -- Jocelyn Cornine, Lake Hiawatha, N.J.

Posted by Walter Olson at 3:26 PM | | TrackBacks (2)

Pharmacists' rights

Regarding legislative proposals to prohibit drug store owners from firing pharmacists who refuse to dispense birth control on religious grounds (Apr. 13, Apr. 28): it is one thing for a store owner to decide not to sell a given product, which should be his or her right. However, if I owned the drug store I would like to employ pharmacists who would dispense the products I carry. After all, that is how I make my living. Can I no longer make this a condition of employment? And where does this stop? People have perfectly reasonable religious objections to all kinds of everyday items -- alcohol, tobacco, pork, shellfish, all meat, bread at certain times of the year. If I own a grocery store do I have to employ clerks who refuse to ring up, say, bacon or beer, because their religion opposes such things? -- James Ingram, Philadelphia, Pa.

Posted by Walter Olson at 3:07 PM | | Comments (1) | TrackBacks (2)