- Defendant “was sentenced to two consecutive sentences of death.” Come again? [Volokh]
- Supreme Court agrees to hear global-warming-as-nuisance case [Ilya Shapiro/Cato at Liberty, Jonathan Adler and more]
- Supreme Court agrees to review Wal-Mart employment case, could be Court’s biggest statement on class action issues in years [Beck, Schwartz, Ted at PoL]
- Investigator recommends disbarment of controversial former Maricopa County Attorney Andrew Thomas [Arizona Republic, earlier]
- Vessel-hull section of copyright law could give Sen. Schumer vehicle for controversial bill to accord IP protection to fashion design [WSJ Law Blog, Coleman, earlier here, here, etc.]
- Federal regulators propose requiring backup cameras in new cars [Bloomberg via Alkon]
- “Why Rosetta Stone’s Attack on Google’s Keyword Advertising Program Should Be Rejected” [Paul Alan Levy, CL&P]
- “Lawyer Got Secretary to Take His CLE Courses, Disciplinary Complaint Contends” [ABA Journal, Illinois]
- Some California attorneys hoping to restart lucrative construction-defect litigation [Frith, Cal Civil Justice]
- Jury awards Seattle bus passenger $1.3 million for stair mishap [KOMO, Seattle Times]
- “Louisiana Bill Would Outlaw Insulting an Under-17-Year-Old By E-Mail” [Volokh, earlier] Update: bill watered down before passage, but still bad news for speech;
- “Attorney Fee Fight Gets Ugly in World Trade Center Litigation” [Turkewitz and more]
- Preventive detention law shows why we need to confine Congress [Sullum, Greenfield]
- Mass Fifth Circuit recusals in Comer v. Murphy Oil global warming case [Wood/PoL, Jackson] More: Shapiro, Cato, Wood/ShopFloor (a strategy to provoke recusals?)
- “By some estimates, circa 40 percent of cases in the Central African court system are witchcraft prosecutions” [Graeme Wood, The Atlantic]
- Lawyers who sued Facebook over “Beacon” to get $2.3 million in fees, class $0.00 [Balasubramani, SpamNotes]
Not a satire: a study suggests ditching school choice would reduce carbon emissions from bus rides [Caleb Brown]
“The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.” (Michael McCarthy, Independent (U.K.), Sept. 11).
Attorneys Thomas R. Bender, Richard O. Faulk, and John S. Gray analyze the Rhode Island Supreme Court ruling in the lead paint case, detailing the history of the case and note the implications for other public-nuisance suits in the global warming and mortgage foreclosure fields.
- Monday’s polar bear panel at AEI is a panel about the law of polar bears and the effect of the FWS decision to list them as threatened, rather than a panel featuring polar bears. So no fish will be served. Volokh’s Jonathan Adler will be there, though. [Volokh; AEI]
- Limiting lawsuit abuses lowers costs from litigation, creates jobs in long run. [Engler & McQuillan @ Detroit News]
- HBO to small businesses: prepositions are okay, but conjunctions will lead to injunctions. [Baltimore Sun]
- A one-sided love letter to Cozen O’Connor in the Philadelphia Inquirer over its September 11 litigation is a bit too revealing about its deep-pocket searches: “Cozen lawyers also had to be sure that such a defendant made financial sense, for the firm and its clients.” Culpability, of course, isn’t in the equation; and the newspaper story fails to account for the public-policy implications of having trial lawyers stepping on foreign policy. [Philadelphia Inquirer]
- Life imitates “The Office”: law firm offers “love contracts” for dating workers. [ABA Journal]
- More evidence of FDA overwarning, even when the science and law does not justify it. [Kyle Sampson @ Product Liability Law 360]
- Business tries to bully small website with litigation; small website successfully fights back. [CL&P Blog]
- “[Ron] Paul accomplished the one thing he’s always been good at: using political appeals to get people to send money. I don’t feel freer.” [Henley via Kirkendall]
- “It’s infuriating how all three presidential candidates prattle on about the need to fight global warming while also complaining about the high price of gasoline.” [Postrel]
- Story on Vioxx settlement and Merck winning reversals heavily quotes me. [Product Liability Law 360 ($)]
Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:
Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.
In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.
(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.
More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.