Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for May, 2014

“We are party to this fraud”

Paul Barrett at Bloomberg BusinessWeek:

Judge Edith Brown Clement is waving her arms, jumping up and down —- heck, doing everything but setting her office furniture on fire —- to draw the attention of the U.S. Supreme Court to the zany goings on in New Orleans concerning BP (BP) and its oil spill liability. … She probably won’t succeed, but her exertions are both colorful and edifying. …

“The class of people who will recover from this settlement continues to include significant numbers of people whose losses, if any, were not caused by BP,” Clement wrote [in her dissent from an en banc Fifth Circuit rebuff of the oil company]. “Our courts’ decisions would allow payments to ‘victims’ such as a wireless phone company store that burned down and a RV park owner that was foreclosed on before the spill.” Those are real examples she’s pointing to, not law school exam hypotheticals.

“These are certainly absurd results,” Clement continued. “And despite our colleagues’ continued efforts to shift the blame for these absurdities to BP’s lawyers, it remains the fact that we are party to this fraud.” Clement is willing to acknowledge that in its desperation to avoid a trial, the company’s attorneys agreed to a loosey-goosey, uncapped settlement. Maybe those lawyers deserve to be fired. But having created an opportunity for a plaintiffs’ bar feeding frenzy, BP should not be punished by having its corporate treasury ransacked with the approval of the federal judiciary, she added.

Whole thing here.

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Citizens: use social media to advance social benefit!

ReportSpeechPoster The Kansas Board of Regents has adopted a broad new policy barring employees, including faculty, from “improper use of social media,” which include content that “impairs … harmony among co-workers” or is “contrary to the best interests of the university,” with some narrow exceptions such as “academic instruction within the instructor’s area of expertise (emphasis added)” The Foundation for Individual Rights in Education, among other groups, have argued that the new policy “authorizes punishment for constitutionally protected speech, and … leaves professors unsure of what speech a university might sanction them for,” the result being a chilling effect on both free speech and academic freedom [FIRE, NPR]. The policy was adopted at the behest of critics of one professor’s controversial anti-gun tweet, and Charles C.W. Cooke at NRO says conservative regents should have been among the first to realize that professor-muzzling is not the way to respond.

KSU’s Dan Warner did a series of posters (Creative Commons permissions) skewering the new policy, including the one above; more on that here.

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Wins $25M verdict, withdraws from case after seeing sanctions motion

Extraordinary sequence of events: “After winning a verdict of nearly $25 million in a federal trade secrets case earlier this year, Akin Gump Strauss Hauer & Feld has filed a motion to withdraw from its representation of LBDS Holding Company, LLC.” According to the firm’s account, it had been unaware until seeing a sanctions motion from the defendant that not all was as it seemed with the evidence backing up the case. [ABA Journal]

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“How the patent trolls won in Congress”

Sen. Harry Reid seems to have been central:

“We felt really good the last couple of days,” said the tech lobbyist. “It was a good deal—one we could live with. Then the trial lawyers and pharma went to Senator Reid late this morning and said that’s it. Enough with the children playing in the playground—go kill it.”…

Trial lawyers are heavy donors to Democratic politicians, including Reid. … The long history of the divide over other kinds of legal tort reform loomed over the bill, which was dubbed the Innovation Act in the House. The fact that it was the trial lawyers’ lobby that reportedly delivered the death blow suggests that the rift only got wider as debate dragged on.

Key Litigation Lobby allies like Sen. Dick Durbin (D-Ill.) and Sen. Sheldon Whitehouse (D-R.I.) spoke out against the legislation on the Senate floor. [Joe Mullin, ArsTechnica]

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Frontiers of the “right of publicity”

In general it’s actionable to claim, without a Hollywood celebrity’s consent, that he or she recommends or endorses your fashion item. But what about merely asserting, accurately, that the character played by the celebrity wore the item in a movie? Or publicizing a picture taken in a public place of the celebrity shopping for one’s product or at one’s store? Lawsuits filed on behalf of actresses Sandra Bullock, Katherine Heigl, and Halle Berry may help shed light on the question. [Mike Masnick, TechDirt]

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Costs of criticizing a physician

The defendant in the Duluth doctor-rating defamation case that we recounted here and here “told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.” The Minnesota Supreme Court eventually ruled that his comments were protected opinion. The doctor/plaintiff, for his part, spent $60,000 pursuing the suit. [Twin Cities Business]

The same article, a “Lawsuits of the Year 2013” feature, also recounts how a couple under the influence of “sovereign citizen” teachings “filed more than $250 billion in liens, and other claims, against those they considered the cause of their problems, including [Hennepin County Sheriff Rich] Stanek, county attorneys and other court officials. The liens were filed against vehicles, houses and even mineral rights.” When Stanek went to refinance his property, he discovered he had been hit with $25 million in liens which took “several years” to remove entirely. The husband of the couple was sent to prison.

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Request: Like Overlawyered on Facebook

We’re closing in on 3,000 likes for Overlawyered on Facebook. Could you take a moment to add one more? You can also like my professional page there (Walter Olson) if you’d like to see more of my writings, podcasts, etc. (especially those at places other than Overlawyered).

If you’re planning an event for your speaker series or a panel discussion, I speak on a wide range of topics including not only subjects found in my books (litigation and its excesses, popular views of the legal profession, legal zaniness in the workplace, law schools) but also on topics that include regulation and the nanny state; food and drink policy; and how law can try to calm rather than exacerbate the culture wars.

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May 23 roundup

  • Worst article of the week? Cheering on tort lawsuits as a way to trip up legalized pot [John Walters and Tom Riley, Weekly Standard]
  • Remember not long ago when they used to tout VA health care as a success story and model to be imposed on other health providers? [James Taranto, recalling Paul Krugman, Ezra Klein and many others; more thoughts from Coyote and Roger Pilon]
  • Muscle and intimidation: union + allies surge onto Oak Brook, Ill. McDonald’s headquarters property, closing key management building [Bloomberg; related earlier here, here, here, etc.] Yesterday I got into a Twitter conversation with Tim Noah (defending the protesters’ action) and William Freeland (siding with my own view), culminating in this rather startling comment from a Center for American Progress/ThinkProgress reporter: “This entire convo backs up the point the private property law itself functions as gov’t cronyism for the wealthy.” Wow!
  • Long, impassioned Ta-Nehisi Coates case for reparations [Atlantic, sidebar, Jonathan Blanks, my 2008 thoughts which eventually grew into a chapter in Schools for Misrule]
  • “Insurers Demand $2 Million for Negligent Squirrel-Torching” [Holland Twp., Mich.; Lowering the Bar]
  • R.I.P. left-wing historian Gabriel Kolko, whose project of de-mythologizing the Progressive Era won him a large libertarian fan base; initially contemptuous of that fan base, he came eventually to mellow with age and discern elements of common ground [Jesse Walker]
  • Hard lesson for Congress to learn: “Hawaiians simply aren’t American Indians in the constitutional sense” [Ilya Shapiro, Cato, background]

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The arbitrariness of campaign finance law

George Will on why you may be out of luck if you’re the thirteenth donor in Minnesota. [syndicated/Owatonna, Minn., People’s Press] In a different sense, however, campaign finance law can be seen as quite calculated as opposed to arbitrary:

Eugene McCarthy, a Democrat who represented Minnesota in the U.S. Senate from 1959 to 1971, said that in Washington anything said three times is deemed a fact. It is constantly said that today’s campaign regulations are “post-Watergate” reforms. Many were indeed written after the Nixon-era scandals. But the push for more government regulation of political speech began because Democrats were dismayed by what McCarthy accomplished [in challenging incumbent President Lyndon Johnson] in 1968.

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