A belated viewing of the now infamous deposition video (see Apr. 8) stirs memories for Prof. Bainbridge of a few highlights from the suave and distinguished career of zillionaire Houston litigator Joe “You could gag a maggot off a meat wagon” Jamail (Apr. 20). In comments, “Thief” of “Thief’s Den” points out that famously civility-challenged lawprof Brian Leiter holds the “Joseph D. Jamail Centennial Chair in Law” at the University of Texas, Austin.
Author Archive
Forbes: “My Kingdom for a Casino”
As regular readers of this space know (Apr. 14, etc.), I’ve long taken an interest in the injustices that have been visited on innocent landowners in New York, Connecticut and many other states by lawsuits seeking to revive long-defunct Indian land claims. I’ve got a guest column in the latest Forbes (“On My Mind”, May 8, reg) briefly summing up a few of the things wrong with this litigation. A sample:
Until lately Anglo-American law sought a careful balance between the goal of restoring wrongfully taken property to its rightful owners, on the one hand, and the equally valid goal of securing everyone’s property against the danger that a claimant will show up some day to assert a speculative defect in title. Hence doctrines aimed at preventing old disputes from staying alive indefinitely: statutes of limitation, adverse possession, “acquiescence” in unchallenged political boundaries.
In a series of rulings over the past 30 years, however, the U.S. Supreme Court has decided that Indians are wholly different from other land claimants. Law professors have cheered: What cause is more romantic than that of dispossessed Indians? (Somehow owners of small farms in upstate New York never seem to merit the underdog label.) The rulings also constitute a stunning victory for a scrappy cadre of Legal Services lawyers; a few of these antiestablishment types have found themselves, over the arc of a career, gradually transmuted through their tribal connections into highly paid casino promoters, in a transformation worthy of a Balzac or Stendhal novel.
(cross-posted at Point of Law)
Safety mask litigation
Today’s W$J has an editorial about the ill consequences of the trend in recent years for lawyers prosecuting asbestos and silicosis cases to add makers of commonly used industrial masks and respirators as defendants in their suits:
The Coalition for Breathing Safety, an industry group, reports that between 2000 and 2004 plaintiffs attorneys filed more than 326,000 claims against its five members. Some of these are asbestos-related, although the recent deluge has been all silicosis. One manufacturer (which prefers not to be named lest it become a bigger target) says that prior to 2002 it faced about 200 silicosis claims a year. In 2003-4, it got hit with 29,000….The industry coalition estimates its members have spent the equivalent of 90% of their 2004 net income fighting suits in recent years.
The suits have fared poorly — none of the respirator makers have lost a case in court — but the making of industrial respirators and masks is a low-margin line of business, and companies that invest heavily in the business may simply be buying themselves legal risk. And now comes the scare over avian flu:
Respirator manufacturers are still going strong overseas, but the U.S. could find itself unable to purchase these products in a crisis. Worried about a possible flu pandemic, many governments are snapping up masks; France is acquiring 685 million. In previous disease scares (say, China and SARS), countries have blocked mask exports. Local U.S. governments and hospitals are already having a hard time finding supplies.
It might be added that the plight of respirator makers is attributable in large part to the economics of what has been called the shotgun approach to defendant-naming. It is very unlikely that lawyers would have filed 300,000 claims against mask makers, or anything approaching that number, if each suit had to be filed as a freestanding matter. However, it costs very little to add 3M or another respirator defendant when a case is already been judged to be worth filing against other, more vulnerable defendants. For more on the mask litigation, see Sept. 15, 2004 and Jan. 22, 2005. More: Point of Law, May 9.
“Abstinence education”: bait and switch?
The Bush Administration recently issued regulations that tighten the definition of what must be preached in federally funded “abstinence education” school programs. At Volokh Conspiracy, Dale Carpenter relays some thoughts I had about the process by which “abstinence” has turned out to mean “Biblical sex only”. Others picking up the story include Glenn Reynolds, Mark Kleiman, and Kevin Drum, while Three Years of Hell thinks the assumptions I find objectionable have been implicit in the program since it began (with the assent of Bill Clinton, of all people) in 1996. Planned Parenthood and ThinkProgress have more on the regulation changes.
P.S. Most important, of course, is Prof. Carpenter’s description of me as someone “who runs a terrific website about litigation abuse“.
Gone for a while
I’ll be away on family business for a few days, leaving the site in Ted’s capable hands. See you sometime next week.
House candidate vows to sue rivals
…if they draw any adverse inferences just because she gave testimony under a grant of immunity from prosecution. (Eugene Volokh, Apr. 19).
Overcriminalization
Delaware court hails non-aromatic fee request
Delaware Chancery Court Judge Vice Chancellor Leo Strine, a prominent figure in corporate law, recently was asked to rule on a petition for fees for lawyers who represented a minority shareholder in litigation involving fallen mogul Conrad Black’s Hollinger International. Per the WSJ:
“I feel queasy a lot of the times when I examine applications for attorneys’ fees,” the judge told lawyers in court. “But I have to get right in there, take my Maalox, ignore the vile smell.”
All of which was by way of paying a left-handed compliment to the fee petition before him, which by contrast in Strine’s view had the earmarks of legitimacy. (It was filed by minority shareholder Tweedy Browne Co. and its lawyers, Kirby McInerney & Squire and Bouchard, Margules & Friedlander).
The current case, he added, is different. It “isn’t even close to having an aroma that makes me queasy.”
(Elena Cherney, “When Investors Help Find Fraud, What’s It Worth?”, Wall Street Journal, Mar. 17)(sub).
“Goodbye, war on smoking. Hello, war on fat”
But somehow, “the food industry” doesn’t sound quite as evil as “the tobacco industry.” Something about food — the fact that it keeps us alive, perhaps — makes its purveyors hard to hate. For that matter, the rationale for recent bans on smoking is the injustice of secondhand smoke, and there’s no such thing as secondhand obesity. …
These obstacles don’t make the assault on junk food futile. But they do clarify how it will unfold. It will rely on three arguments: First, we should protect kids. Second, fat people are burdening the rest of us. Third, junk food isn’t really food….
A fact sheet from [Iowa Sen. Tom] Harkin implies that schools should treat milk, French fries, and pizza like soda, jelly beans, and gum.
(William Saletan, “Junk-Food Jihad”, Slate, Apr. 15).
Update: “Million Little Pieces” class actions
Following the revelation that author James Frey presented fantasies as if they were autobiographical fact, enough outraged readers have stepped forward to demand cash damages — or at least enough class action lawyers have simulated the stepping forward of such outraged readers — that defendants Random House and Doubleday are now seeking the consolidation of no fewer than twelve lawsuits filed around the country. The federal Judicial Panel on Multidistrict Litigation will soon consider (PDF, scroll to p. 11) the publishers’ motion to aggregate into one proceeding suits filed in the Southern District of New York, Northern District of Illinois, Western District of Washington, Eastern District of Michigan, Central District of California, and Southern District of Ohio (via Childs). For Ted’s extensive coverage of the Frey scandal and suits, see Jan. 31 and links from there.