Overlawyered: Chronicling The High Cost Of Our Legal System

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Martin Luther King Day… and preemption?

If you’re looking for the most strained use of Martin Luther King, Jr., as a metaphor, look no further than a non sequitur at Bizarro-Overlawyered, where Kia Franklin calls on King’s memory as an argument against preemption. The historically minded will note the irony of invoking King’s name in a defense of states’ rights to subvert federal principles of uniform treatment. For more on preemption, see Greve and Epstein, POL March 2006, and POL on last week’s cert grants in preemption cases.

We’ll talk about King, too, but relate it to something he actually said: “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” See posts Jan. 2007 and Dec. 2006, Heriot @ POL, Jan. 2006, and POL on the Akaka bill. As Chief Justice Roberts noted (and was criticized for noting) in the last term, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

(And update: don’t forget October 2006 on school discipline. Or October 2005 on why the great documentary “Eyes on the Prize” still isn’t available on DVD to the general public.)

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NY Times on Scruggs, again

Yesterday’s extensive New York Times piece by Nelson D. Schwartz, the lead story in the paper’s Sunday business section, once again (see Dec. 9) provides strong overall perspective on the scandal, along with tidbits that will be new to all but the most obsessed (or most locally knowledgeable) followers of the affair. It focuses in particular on ever-more-central scandal figure P.L. Blake, sometimes known as the $50 million man, of whom we learn:

In interviews, other Mississippi political figures suggest that Mr. Blake has played a key role for Mr. Scruggs over the years. “P. L. essentially has done all the back-room negotiating for Dickie, but you’ll never see his tracks,” says Pete Johnson, a former state auditor who is now co-chairman of the Delta Regional Authority, a federal agency with headquarters in Clarksdale, Miss. …“He was the nexus of his political network.”

Incidentally, and presumably unrelatedly, former Times insurance-beat reporter Joseph Treaster, whose profiles of Scruggs in years past I’ve had occasion to blast as epically credulous, is departing the paper to teach journalism at the University of Miami, per Romenesko.

Anita Lee of the Biloxi Sun-Herald is also out with another good background piece, including the results of inquiries into a topic of widespread interest, namely the circumstances under which Judge Bobby DeLaughter’s name was not put forward for a federal judgeship even though (according to prosecutors) such a prospect had been dangled by conspirators hoping to improperly influence his rulings on a key Scruggs fee case:

Sen. Thad Cochran’s office told the Sun Herald that DeLaughter’s name was one of those mentioned for the appointment, but would not say which candidates Lott and Cochran privately discussed to recommend to President Bush. The office said Cochran wants to respect the privacy of candidates for the position. … Government evidence indicates DeLaughter e-mailed at least one order to Peters so he could pass it along for pre-approval from Scruggs’ attorneys.

Investigators are presumably taking an interest in confirming the account of Sen. Lott, who is Scruggs’s brother-in-law, that he raised DeLaughter’s name only as a brief and passing “courtesy” as opposed to making a serious effort on the candidate’s behalf (more). And a commenter at Folo points to a passage deep in the now-fabled Luckey transcript which is highly suggestive as to the possible ways in which a large share of P.L. Blake’s millions in tobacco fees might not have remained for long in Mr. Blake’s possession (more).

Earlier coverage can be found on our scandals page.

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“Bush Exempts Navy from Environmental Law” II

Earlier:

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest.

A commenter asked why Bush had the authority to do this. President Bush’s order is on-line. The claimed authority is based on 16 U.S.C. § 1456(c)(1)(B), which reads in relevant part:

After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with [the Coastal Zone Management Act], and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States.

The claim by the NRDC that the president’s action is “an attack on the rule of law” and “flouting the will of Congress” is thus invalid: Congress explicitly reserved to the president the power to override a court decision finding a federal agency in violation of the Coastal Zone Management Act by exempting the agency from its requirements. The case has been remanded to district court, but whether it is sound policy to value military convenience over whales is now a political question that will now be resolved by Congress and the President, with nothing more for the court to decide, as the court does not have the authority to second-guess the president’s decision whether something is in the “paramount interest of the United States.”

(Separately, the Navy complied with the National Environmental Protection Act when the Council for Environmental Quality issued a letter (151-page PDF, but pages 3-4 are the relevant ones for the lay curious) under 40 C.F.R. § 1506.11; this will likely get litigated by NRDC, as who better to determine the military needs of the United States than a private litigant and a federal judge?)

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CCALA: California schools “ripped off by litigation”

A report from California Citizens Against Lawsuit Abuse tells us: “In fiscal year 2005, three of California’s five largest school districts (listed above) paid $32.8 million in litigation costs – $8.0 million in verdicts and settlements and $24.8 million to outside counsel.”

I wish the report could have been more persuasive on the costs of litigation: when the unwritten math is done, Los Angeles Unified School District spent less than $40/student on legal costs in FY 2005, which is just under 1% of their budget. (Between 2002 and 2005, the average was $70/student/year, and a little less than 2% of the budget.) Is that too much? Relatively little? I’m hard-pressed to say (school officials do do actionable things that get themselves legitimately sued), and the report does not give us a baseline. Did something change to cause costs to go down by over 60% between 2002 and 2005, or was 2002 (or 2005) an outlier? The report does not indicate. Why does Elk Grove’s number include insurance costs and LAUSD’s doesn’t? (Is the report understating liability expense?)

Other data in the report are more interesting and troubling: “A 2004 study by Harris Interactive revealed that more than half of educators are concerned about the risks of legal challenges in their jobs and most educators feel the current legal climate has resulted in ‘defensive teaching,’” and a sizable majority feel that their own ability to do the job has been adversely affected by liability fears. And there is an extensive report of a lawsuit against a Napa school district dress code that led the school district to change the policy rather than spend a small fortune defending it in court—though that is a consequence more of federal courts’ meddling in school administration on purportedly constitutional grounds (Nov. 2003) than of anything state legislative action can do, if a reminder that presidential judicial appointments really matter.

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“Bush Exempts Navy From Environmental Law”

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest. (Pauline Jelinek, AP/Google, Jan. 16). Earlier coverage here. More: NYTimes.

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Damages: $0 settlement; Attorneys’ fees: $9.5 million

The lead plaintiff had claimed losses of $25 million, but settled for zero plus some corporate-governance changes that, as a Rutgers professor notes, probably would have happened anyway. But a settlement approved by a New Jersey federal judge in a shareholder suit against Schering-Plough awarded $9.5 million in attorneys’ fees, even applying a multiplier to lodestar hourly rates. [New Jersey Law Journal/law.com; In re Schering-Plough Corp. Securities Litigation, Case No. 2:01cv829 (D.N.J.)] Paying for those fees: shareholders, who also paid for what were likely multi-million dollar defense costs of litigation. Judge Katharine Sweeney Hayden, when certifying a single class in 2003, rejected arguments that there was an inherent conflict between class members that had already sold their stock and class members who continued to hold stock; she was appointed by Clinton in 1997.

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