Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2018

O’Connor: “I am no longer able to participate in public life”

Retired Justice Sandra Day O’Connor has released a letter to the public about her declining health. O’Connor is rightly admired for her inspiring life story and unswerving loyalty to the highest civic principles as well as the ideals of the judiciary. Even at this difficult moment of her life, as the letter shows, she is intent on advancing the res publica.

That O’Connor was the swing Justice of her day did not mean that her role on the Court came down to trimming or compromise. Together with fellow Arizonan Rehnquist, no one was more central in the Court’s reinvigoration of federalism, drawing on her record as the only Justice of our era with extensive service in a state legislature. She has led public discussion in the right direction on issues ranging from professional responsibility and race and redistricting to judicial elections.

And as I noted in 2005, if a single jurist deserves our thanks for helping turn back what had seemed like an irresistible trend toward ever more litigiousness in the civil justice system, it is she. “More vocally than any of her present colleagues, Justice O’Connor sounded the alarm against what she’s termed ‘the increasing, and on many levels frightening, overlegalization of everyday life in our country today.'” Her leading role on such issues as due process review of punitive damages reflected that view. For that, as well as for her notice of my work along the way, count me among the grateful.

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Free speech roundup

  • Repercussions of Supreme Court’s Janus ruling on bar associations’ compulsory extraction of dues from nonmembers [Maxine Bernstein, Oregonian] “State Supreme Court calls a ‘timeout’ for Washington Bar Association to review its rules” [Steve Miletich, Seattle Times] “ABA Model Rule 8.4(g) Cannot Survive the Supreme Court’s Recent Decisions in NIFLA and Matal” [Kim Colby, Federalist Society, earlier on rule banning some types of speech and expression by lawyers on anti-discrimination grounds]
  • Pardoned former sheriff Joe Arpaio sues New York Times for libel [Quint Forgey, Politico; Joe Setyon, Reason; over the years]
  • When may governments boycott private companies’ output because those companies promote disapproved ideas? [Eugene Volokh, more]
  • First Amendment has consistently foiled Donald Trump’s designs against critics’ speech [Jacob Sullum; related, David Henderson] “The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.” [Matt Welch] “Threats of violence discourage people from participating in civic life. This is an unusually good opportunity to deter them.” [Conor Friedersdorf during Ford-Kavanaugh episode]
  • “Fighting Words and Free Speech” [John Samples] “A New Podcast on Free Speech: Many Victories, Many Struggles” [same on Jacob Mchangama podcast series]
  • “U.K. Supreme Court: Baker Doesn’t Have to Place Pro-Gay Marriage Message on Cake” [Dale Carpenter, Peter Tatchell, Lee v. Ashers]

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Constitutional law as it shoulda been

In learning to reason impartially about constitutional law, a valuable exercise is to come up with a list of instances in which the best reading of the Constitution cuts *against* your own view of good policy. Ilya Somin goes first, with examples that include near-total Congressional control over foreign trade; too much use of juries; the extreme difficulty of removing a seriously bad President; the near-indelible status of state lines; and an amendment process that is too hard to use.

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“Eet eez, how you say — zee dumb law.”

Reuters reports (“French lawmaker proposes bill to outlaw mockery of accents”) that lawmaker Laetitia Avia of Emmanuel Macron’s ruling party intends to introduce a bill adding discrimination based on accent or pronunciation (“glottophobia”) to the list of banned discrimination categories. This came after an exchange between leftist party leader Jean-Luc Mélenchon and journalist Véronique Gaurel, born in Toulouse, in which he appeared to make fun of Gaurel’s southwestern accent and then called for the next question to be in “comprehensible French.”

I thought of researching whether France has enacted other vaguely framed laws aimed at soothing the sensibilities of the Toulouse region. But since there is no way to search for vague laws as a category in themselves, I soon realized that might set me off on — if you will excuse the expression — a Too-Loose-Law Trek.

[cross-posted from Cato at Liberty]

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Supreme Court roundup

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State AGs for hire on environmental activism

My new Cato post looks at a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes. We know much about this and other AG entanglements thanks to two reports by Chris Horner of the Competitive Enterprise Institute (CEI) based on public records requests that had been strenuously resisted by the state AGs. (CEI was itself the target of a notorious subpoena engineered by AG offices.) The New York Post also takes a critical view of the program.

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Environment roundup

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Ted Frank to argue cy pres at the Supreme Court

Congratulations to Ted Frank, profiled Oct. 15 by Adam Liptak at the New York Times for arguing his own case (Frank v. Gaos, on class action settlements) before the U.S. Supreme Court. The article does not mention one of Ted’s most salient public roles, namely co-blogging for years as my most inspired recruit at Overlawyered and at Point of Law.

Frank v. Gaos is a challenge to the cy pres elements of a privacy class action against Google [Federalist Society podcast with Ted, NLJ via CEI]. Ilya Shapiro at Cato (which has filed an amicus brief) describes some of the factual background:

Attorneys’ fees of $2.125 million were awarded out of the settlement fund, amounting to 25 percent of the fund and more than double the amount estimated based on class counsel’s actual hours worked.

But no class members other than the named plaintiffs received any money! Instead, the remainder of the settlement fund was awarded to six organizations that “promote public awareness and education, and/or…support research, development, and initiatives, related to protecting privacy on the Internet.” Three of the recipients were alma maters of class counsel.

This diversion of settlement money from the victims to causes chosen by the lawyers is referred to as cy pres. “Cy pres” means “as near as possible,” and courts have typically used the cy pres doctrine to reform the terms of a charitable trust when the stated objective of the trust is impractical or unworkable. The use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.

James Beck at Drug and Device Law writes that the settlement in question “features just about everything we don’t like about cy pres.” Quoting:

  • Excessive counsel fees – class counsel stands to walk away with fully 38% of the settlement as fees. 869 F.3d at 747.
  • Lack of classwide recovery – the court declared the entire settlement “non-distributable” because, even without opposition, neither the class members nor their damages could be determined. Id. at 742.
  • Excessive cy pres – nothing is more excessive than 100% ? six uninjured charities took 100% of what class counsel left behind, and the 129 million supposedly injured class members took nothing. Id. at 743.
  • Rampant conflict of interest? Three of the charities were law schools – and they all had ties to counsel in the case.
    Litigation industry self-perpetuation – cy pres recipients were expected solicit more lawsuits by “educat[ing]” the public and “publiciz[ing]” privacy issues. Id. at 746-47.

Oral argument before the Court will be held Oct. 31.

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Great case, if only she’d been in the smashed-up car

“The defense said the case, which involved substantial medical damages and a plaintiff who miscarried after the collision, would have been a great plaintiff’s case — if she had actually been in the car she claimed was wrecked.” Instead, after “defense testimony showed that she swapped out the scarcely damaged car before police arrived with another that had been wrecked years earlier” she “walked out of a DeKalb County courtroom with nothing.” [Atlanta; Greg Land, Daily Report Online]

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