The much-discussed flirtation of Supreme Court justices with foreign law and transnational standards is something they can seemingly turn on and off at will, argues CEI’s Iain Murray in a WSJ letter to the editor: “to allow more lawsuits, the Supreme Court disregarded every foreign court ruling defining the word ‘accident’ in the Warsaw Convention, in Olympic Airways v. Husain (2004)…. The Supreme Court regularly ignores the international consensus against punitive damages and broad discovery, which most of the world forbids in civil cases, but the U.S. permits.”
- How legal doctrine changes in a state-based system: “The Diffusion of Innovations in Tort Law” [Kyle Graham]
- Are courts growing (appropriately) disillusioned with cy pres? [James Beck and Rachel Weil, WLF; Beck, D&DL, on Redman v. RadioShack]
- “Asbestos lawyers want $2.5 million for losing fight to keep Garlock records sealed” [@DanielDFisher on Legal NewsLine report] “Third Circuit rules against plaintiff who ‘just knew’ asbestos was used in Navy vessels” [Heather Isringhausen Gvillo, LNL]
- Eric Alexander on the runaway $9 billion Actos verdict [Drug and Device Law, citing Dr. David Kessler, former FDA chief, as “plaintiff’s mouthpiece”; earlier on Actos/Takeda case]
- “Third-Party Bad Faith Claims Add $800M to Florida Auto Insurance Costs: IRC” [Insurance Journal]
- Discussion of proposals to change contributory negligence for bicyclists in D.C., mucho comments [Greater Greater Washington]
- “Missouri Supreme Court Invalidates State’s Legislative Cap on Punitive Damages” [Mark Behrens]
The various member countries have very different traditions as to “collective redress” of legal claims, and while some have liberalized the procedures recently, none is anywhere near as liberal as the United States in permitting lawyers to assert class actions. That’s not going to change, according to Monique Goyens, director general of the European consumer organisation BEUC, which has pushed for new collective redress rules: “The key safeguards against exorbitant awards are in place. So we are not importing US class actions.” [Euractiv] More specifically:
The safeguards include swiftly ending unfounded cases and avoiding national systems where lawyers’ fees are calculated as a percentage of the compensation awarded, like current systems in the US and, to a lesser extent, in some European countries. The Commission also advises countries to avoid punitive measures, inflicted on top of actual damage and compensation for victims.
Maybe one of these days we could get some of those safeguards over here.
Title VI of the Civil Rights Act of 1964, which prohibits discrimination by recipients of federal education spending and other programs, does not currently allow private litigants to sue demanding punitive (as distinct from compensatory) damages, nor do the courts entertain private suits complaining of “disparate impact” under it. Some trial lawyers and advocates of expansive discrimination law have long wanted to change that, and now Hans Bader of the Competitive Enterprise Institute is warning that there are efforts afoot to slip an expansion into law by attaching it to some “must-pass” piece of legislation. An effort by Democratic senators to attach it to the Defense Authorization Act appears to have fallen short, but it may be back as a rider on other bills, with serious courtroom consequences, Bader warns, for schools and colleges and also for doctors and hospitals.
We’ve already mentioned this in the context of the Chrysler bankruptcy (criticized in some quarters for having divested the reorganized company of punitive damage exposure over pre-bankruptcy conduct) but here’s Drug and Device Law gathering up decisions from various states to confirm that, no, there is no vested or constitutional right to punitive damages:
Constitutional challenges have been rejected under due process, taking, jury trial, open courts and various other state constitutional provisions. It makes sense. While compensatory damages might present a closer question (depending on issues such as retroactivity), there’s simply no constitutional right for one private party to demand that another private party be punished.
Especially not when the putative purpose of the damages, to inflict financial distress on the target, has been obviated by an intervening bankruptcy.
- “Public pool owners struggle to meet chair-lift deadline” [Springfield, Ill. Journal-Register, earlier]
- Punitive damages aren’t vested entitlement/property, so why the surprise they’d be cut off in an administered Chrysler bankruptcy? [Adler]
- More on how Violence Against Women Act (VAWA) reauthorization would chip away rights of accused [Bader, Heritage, earlier]
- Defending sale of raw milk on libertarian principle shouldn’t mean overlooking its real risks [Greg Conko/CEI; Mark Perry on one of many heavy-handed enforcement actions against milk vendors]
- More tributes to longtime Cato Institute chairman Bill Niskanen [Regulation magazine (PDF), earlier]
- Asbestos lawyers wrangle about alleged swiping of client files [Above the Law]
- “Nathan Chapman & Michael McConnell: Due Process as Separation of Powers” [SSRN via Rappaport, Liberty & Law]
- Big win for Ted Frank against cy pres slush funds [CCAF, Fisher, Zywicki, CL&P, @tedfrank (“Ninth Circuit rules in my favor … but I still think I’m right”.)]
- “Can the Vatican Be Subject to ICC Prosecution?” [Ku/OJ]
- “Tennessee: ATS Sues City Over Right Turn Ticket Money” [The Newspaper]
- “Law firms dominating campaign contributions to Obama” [WaPo]
- Does that mean it’s an entitlement? Punitive damage limits face constitutional challenges in Arkansas, Missouri [Cal Punitives]
- Businessman sues to silence critical blogger, case is dismissed, now files suit #2 [Scott Greenfield]
- Going Hollywood? “The Supreme Court should move to Los Angeles” [Conor Friedersdorf]
The maker of Botox is hit with a $212 million jury award [Richmond Times-Dispatch]
- “Woman suing Carnival: Ship sailed too fast, made me sick” [Gene Sloan, USA Today “Cruise Log”]
- U.S. Department of Justice sues Illinois school district for denying Muslim teacher’s request for three-week Mecca-trip leave [WaPo]
- “California Assembly Says Complying with Government Standards Not Enough to Avoid Punitive Damages” [Cal Civil Justice]
- “Four Loko Suit Is an Example of Bogus Economic Loss Classes” [Russell Jackson]
- New Benjamin Barton book on lawyer-judge bias reviewed by Larry Ribstein [TotM, earlier]
- “Prolific Colorado Consumer Attorney Filed 2/3rds of State’s FDCPA Cases Since 2007” [ABA Journal]
- Different kind of false marking case? Judge says company knowingly claimed inapplicable patent [WSJ Law Blog]
- “Extra-special education at public expense” [five years ago on Overlawyered]
- “A conversation with class action objector Ted Frank” [American Lawyer]
- Reviews of new Lester Brickman book Lawyer Barons [Dan Fisher/Forbes, Russell Jackson] Plus: interview at TortsProf; comments from Columbia legal ethicist William Simon [Legal Ethics Forum]
- “Collective Bargaining for States But Not for Uncle Sam” [Adler] Examples of how Wisconsin public-sector unionism has worked in practice [Perry] Wisconsin cop union: nice business you got there, shame if anything were to happen to it [Sykes, WTMJ] “Union ‘rights’ that aren’t” [Jeff Jacoby, Boston Globe]
- “Minnesota House Considering Significant Consumer Class Action Reform Measures” [Karlsgodt]
- 10,000 lawyers at DoD? Rumsfeld complains military overlawyered [Althouse via Instapundit]
- “Are Meritless Claims More Prevalent in Copyright?” [Boyden, Prawfs]
- Claim: availability of punitive damages reduces rate of truck accidents. Really? [Curt Cutting]
- Now with improved federalism: “The Return of the Lawsuit Abuse Reduction Act” [Carter Wood, more, earlier here].