In battleground states and on cable TV “the airwaves are choked with campaign ads that are hysterically conceived and factually deceptive — much worse, if such a thing is possible, than the ads that tortured the electorate in the pre-McCain-Feingold era. And most of them — note the irony — are paid for by fat cats. The irony, of course, is lost on supporters of McCain-Feingold, who continue to insist the reform has been a success.” (Andrew Ferguson, “Soros Might Not Be What Reformers Had in Mind”, Bloomberg News, Nov. 2). (more on the law: Nov. 1, Oct. 17, Aug. 23, Jul. 20).
Author Archive
Westwood One’s “Jim Bohannon show” tonight
I’m scheduled as a guest on Jim Bohannon’s popular radio show on Westwood One tonight, probably at 10:20 pm Eastern (but later if they need to juggle the schedule).
Agenda: gun suit pre-emption, class action reform
The U.S. Senate has been the graveyard of federal liability reform legislation for years now, but yesterday’s election may start upheaving the tombstones in an entertaining manner. The new Senate should be perceptibly more favorable to litigation reform than the old — by three or four votes, at least. Gone, for example, will be the Carolinas’ Ernest Hollings and John Edwards, two lions of the trial bar.
The most obvious impact will be on measures which already commanded a substantial majority of Senators, including many Democrats, but had nonetheless been blocked by parliamentary gamesmanship — specifically, the bill to pre-empt lawsuits against lawful gun sellers over the illegal later use of their products, and the bill to redirect most national class actions into federal courts. Also significant will be the defeat of Senate Minority Leader Tom Daschle, whose tendency to talk like a litigation reformer back home in South Dakota, while working closely with trial lawyer interests in Washington, has been the subject of scrutiny in this space (Apr. 12, Aug. 19, Dec. 18).
Daschle’s defeat may cause prudent Democratic colleagues to rethink the policy of filibustering all major liability measures rather than letting them come to a vote. Also significant is the greatly strengthened hand of organized gun owners in the next Senate, on which see Dave Kopel’s roundup. If the Republicans know what they’re doing, they’ll call up and pass gun-suit pre-emption at an early point, with some version of class action reform not far behind.
Ballot measure results
As I documented through the night at PointOfLaw.com, voters gave doctors and the business community some major victories in yesterday’s ballot measures. Limits on malpractice lawyers’ fees passed resoundingly in Florida, in a stinging rebuke to the trial bar. Among three other states considering med-mal ballot measures, doctors won decisively in Nevada and lost in Wyoming, while Oregon’s measure was slightly trailing but too close to call. (Update Nov. 9: late returns show one of the two Wyoming measures apparently passing after all.)
In California, in a convincing victory for the business community and good sense, voters approved Proposition 64 by a wide margin, requiring lawyers to demonstrate actual injury before invoking the state’s broad unfair-practices statute in private cases. (Thank you, Arnold.) Colorado voters lopsidedly defeated a trial-lawyer-sponsored measure to expand litigation over alleged construction defects. And in the two hot judicial contests, for seats on the Illinois and West Virginia Supreme Courts, trial-lawyer-backed candidates lost in both. Details on all these races can be found on PointOfLaw.com. Also, voters ignored this site’s advice and passed all eleven state marriage amendments on the ballot.
Finally, some politicians whose ambitions this website has followed were locked in too-close-to-call races: Washington state AG Christine Gregoire (see Oct. 28) was slightly trailing a GOP opponent in her bid for governor, while former trial lawyer lobbyist and Bush HUD secretary Mel Martinez (see Sept. 3) was leading by 80,000 votes in his Florida Senate race against Democrat Betty Castor. (Update: Martinez wins). John Edwards’s vice-presidential ambitions seem at the moment to depend on an unlikely reversal of Ohio results in late vote counting, while his home state of North Carolina went Republican both in the presidential race and in filling Edwards’s old seat. (Update: Kerry and Edwards concede).
Liveblogging the ballot measures tonight (at Point of Law)
As readers of this site know, voters in six states are considering legal-reform initiatives on today’s ballot. At my other website, the Manhattan Institute’s PointOfLaw.com, I’m planning to post regularly updated live coverage tonight of election returns on the measures, with special attention to any instances where the vote totals prove to be close. (I might also post the odd comment on other races of interest.)
The ballot measures are: Florida’s Amendment 3 (limiting lawyers’ med-mal fees), lawyer-sponsored Amendment 7 (removes confidentiality of medical peer review) and Amendment 8 (strips licenses of doctors who lose three malpractice verdicts); Wyoming’s Amendments C and D (authorizes legislative limits on med-mal awards); Oregon’s Measure 35 (limits med-mal awards); Nevada’s Question Three (limits med-mal awards) and lawyer-sponsored Questions Four (undercuts med-mal reform) and Five (forbids legislative reductions of liability); Colorado’s lawyer-sponsored Amendment 34 (expands right to sue over alleged construction defects), and California’s Proposition 64 (narrows scope of s. 17200 “unfair competition” law).
The timing: Florida polls close at 8 pm EST, Colorado and Wyoming at 9 pm, Nevada at 10 pm, and California and Oregon at 11 pm. I’m in the Eastern time zone, and intend to stay up until 2 am (11 pm Pacific) if that’s needed to follow any still-unresolved contests.
How readers can help: I’ll have access to standard online sources that cover these sorts of votes (big-city papers, Secretary of State websites) but in the past those sources have sometimes been slow to post totals, especially on “down-ballot” issues. I won’t have much access to local broadcast sources, for the most part. If you’ve got fresh news on your state to report, such as a local news organization’s calling a ballot contest one way or the other, email me at editor (at) pointoflaw – dotcom.
Once again, the liveblogging tonight will be going on at Point of Law, not here. [cross-posted from Point of Law, with slight changes][bumped 2:30 pm]
Latest newsletter
The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last couple of weeks’ worth of postings in telegraphic, even punchy style. It’s a great way to keep up with items you may have missed; when you’re finished, pass on the email to a friend to let them know about the site. Sign up today, right here.
“A close election? Let’s hope not”
Whoever turns out to win, please let them win by a lot: “The most unsettling danger is that post-election combat by party warlords will become a permanent part of the political process.” (Robert J. Samuelson, Newsweek, Nov. 1).
War of the polling-place lawyers
“Legal battles already have broken out in many states, including battleground states Iowa, Ohio and Florida, as Republicans and Democrats turned to the courts to determine voter eligibility, electronic voting and handling of absentee and provisional ballots. … President George W Bush’s Republican party vowed today it would match or even outnumber the 10,000 lawyers monitoring battleground states for Democratic challenger Senator John Kerry on election day tomorrow.” (P. Parameswaran, “Army of lawyers monitors US poll”, The Australian, Nov. 2). More: Larry Ribstein comments on the prospect of a litigated election (via Bainbridge). And Rick Hasen’s election law blog has much more.
The Florida myth
It’s one of the most durable stories to come out of the 2000 election: the supposed disfranchisement of black voters in Florida. It’s now a staple of Democratic fund-raising and speeches, despite the virtually complete lack of evidence that any Floridians were intentionally denied their right to vote. (Wall Street Journal (editorial)/Tampa Tribune, Sept. 28).