- KlearGear and the consumer non-disparagement clause that ate (or tried to eat) Chicago [Popehat and followup]
- “House Passes Bill That Would Open Asbestos Trusts To Scrutiny” [Daniel Fisher/Forbes, Chamber-backed Legal NewsLine]
- Randy Maniloff interviews Judge Richard Posner on his new book Reflections on Judging [Coverage Opinions]
- In a custody fight, anything can happen: “Dad Accused of ‘Unfit Parenting’ for Refusing to Take His Son to McDonalds” [TIME]
- “Released after serving 10 years on false rape accusation –then wrongly arrested for not registering as sex offender” [Chicago Tribune via @radleybalko]
- Institute for Justice launches campaign to challenge local restrictions on food with suits over sale of cottage baked goods, front-yard vegetable gardens, advertising of raw milk [AP/Yahoo, “National Food Freedom Initiative“]
- Alabama regulators add hassle factor when business tries to move into the state [Coyote]
Search Results for ‘"richard posner"’
Judge Posner and the elusive confidential informant
To allege scienter (intent or knowledge of wrongdoing) in securities fraud cases, lawyers sometimes avow to the court that they have one or more confidential sources who tipped them off to the wrongdoing. If the court accepts this story, they may keep a case alive for which there would otherwise be no or inadequate evidence. Trouble is, the confidential informants can be, if not entirely a mirage, then flimsier on inspection than the court might have assumed. Cory Andrews of WLF tells of a recent ruling by Judge Richard Posner in a case called City of Livonia Employees’ Retirement System v. Boeing:
Seeking hundreds of millions of dollars in damages, plaintiffs filed a putative class action alleging that Boeing Company, along with its CEO and the head of its commercial aircraft division, committed securities fraud in violation of federal law. The district judge dismissed the complaint for failing to allege sufficient facts to properly plead the requisite scienter for fraud. Not to be deterred, plaintiffs promptly filed an amended complaint, but this time with detailed bombshell revelations from a confidential source. Ultimately, however, the allegations in the amended complaint could not withstand even the slightest scrutiny.
As Posner describes it:
The plaintiffs’ lawyers had made confident assurances in their complaint about a confidential source — their only barrier to dismissal of their suit — even though none of the lawyers had spoken to the source and their investigator acknowledged that she couldn’t verify what (according to her) he had told her.
Their failure to inquire further puts one in mind of ostrich tactics —of failing to inquire for fear that the inquiry might reveal stronger evidence of their scienter regarding the authenticity of the confidential source than the flimsy evidence of scienter they were able to marshal against Boeing.
Noting that the same law firm [Robbins Geller Rudman & Dowd] had been accused of “similar conduct” in three other reported cases, Posner [on behalf of a unanimous panel] remanded the matter back to the district judge, who would be in a better position to calculate a dollar amount for Rule 11 sanctions.
“Abolish the Law Reviews!”
I’ve got a new essay up at The Atlantic, part of the “America the Fixable” series edited by Philip K. Howard. I have a bit of fun at the expense of the Harvard Law Review, raising the question of whether it should be held to lower standards than the Long Island tabloid Newsday, and cite such figures as Richard Posner, Elizabeth Warren, Ross Davies of George Mason, and the bloggers at Volokh Conspiracy and Balkinization.
Bar “linking to or paraphrasing copyrighted materials”?
Heads are still shaking over what would appear to be a non-satirical proposal from Judge Richard Posner:
…Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
More: Jeff Jarvis notices other dubious ideas on enforceable “exclusivity” floating about. And more thoughts from Carolyn Elefant at Legal Blog Watch and David Post @ Volokh.
T-shirt battle before Seventh Circuit
“Why do people bring lawsuits for such trivialities?” Judge Richard Posner, a notoriously tough jurist, asked Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. “Have they been harmed, these ‘Gifties’?”
The Chicago Sun-Times covers a four-year class action battle brought by the mother of one of 24 students over their punishment for wearing a shirt perceived as insulting regular students (which the “gifted” students charmingly called “tards.”) The oral argument is indeed entertaining.
November 3 roundup
- Don’t forget Point of Law’s featured roundtable discussion on the midterm elections. [Point of Law]
- Public Citizen’s consumer law blog is holding a book club, and they’ve invited AEI’s Michael Greve into the hostile territory to discuss his book on consumer-fraud class actions. Both the book and the discussion are must-reading. [CL&P; CL&P; CL&P]
- Lester Brickman and others talk about mass tort screening fraud on your iPod. [Federalist Society]
- November 8 in DC: the Kaiser Family Foundation is hosting a big panel on health courts. [Common Good]
- Roundup of links on the outrageous Illinois Chief Justice Robert Thomas libel suit. This really deserves a longer post by itself. [Bashman]
- Melvin Dummar is back in court with his implausible Howard Hughes lawsuit. [AP/MSNBC via ATL]
- Barney Frank also doesn’t like the internet gambling ban. [Frank via Evanier]
- Today’s outrageous Ninth Circuit decision: a 2-1 invalidation of a meth-addict’s guilty plea for murder. Judge Bybee’s dissent tears it apart. [Smith v. Baldwin; The Recorder; Above the Law]
- Clint Bolick of Institute for Justice, on the other hand, defends judicial activism in an interview with Russell Roberts. [Cafe Hayek]
- Have we mentioned the new website with all of Judge Richard Posner’s opinions in one place? [Project Posner]
A thought about law and economics
It’s one thing for a blogger to suggest that there is something inherently wrong with the arguments of “people without serious legal training [who] comment on the law.” That’s just argumentum ad verecundiam. But it’s especially ironic coming from a blogger who doesn’t reveal his credentials and hides behind a pseudonym.
That same blogger writes:
I don’t think that economics is the best field to inform issues of substantive law, unless, of course, the substantive law explicitly refers to economic decisions.
Of course, all substantive law—tort, contract, property, criminal—explicitly refers to economic decisions; anyone who thinks otherwise hasn’t had serious economic training or hasn’t thought about the law seriously, because economics is merely the study of choice and decision-making in a world of scarce resources. But perhaps Justice Holmes is also a dilettante for suggesting that incentives matter.
Others will be fascinated to learn from the blog post that “going to faculty committee meetings” is a prerequisite for economic analysis, and that Richard Posner, Dan Fischel, and Nobel Prize winner Ronald Coase are not economists because they lack Ph.D.s.
Radiology group expels member over testimony
“For the first time in its history, the American College of Radiology has expelled a member for giving inaccurate expert testimony. Dr. E. James Tourje, a neuroradiologist at Cedars-Sinai Medical Center in Los Angeles, was expelled [last month] for violating the ACR code of ethics, which states that expert testimony should be nonpartisan, scientifically correct, and clinically accurate.” Dr. Tourje had testified on behalf of the plaintiff in two malpractice cases, both of which resulted in defense verdicts. (“‘Expert’ witness gets booted from ACR”, Diagnostic Imaging Online, Jul. 8; Arati Murti, “Stat Read: Election-Year Politics Push Medical Liability Skirmishes to Trenches”, Imaging Economics, Aug.).
In a case several years ago, Judge Richard Posner of the Seventh Circuit gave impetus to the then-nascent trend toward professional self-regulation of expert testimony, writing in an opinion that “this kind of professional self-regulation furthers rather than impedes the cause of justice. More policing of expert testimony is required, not less.” (Russell M. Pelton, “Professing Professional Conduct: AANS Raises the Bar for Expert Testimony”, AANS Bulletin, Spring 2002. In the latest ABA Journal, Terry Carter discusses the controversy and in particular the formation of the Coalition and Center for Ethical Medical Testimony to promote efforts by associations to act against what Peter Huber has called malpractice by mouth. (“M.D. With a Mission”, ABA Journal, Aug., reprinted at CCEMT site)(PDF). The organized plaintiff’s bar is completely apoplectic about the trend: for its views, see Stephanie Mencimer, “The White Wall”, Legal Affairs, Mar-Apr.; Steve Ellman, “Code of Silence”, Miami Daily Business Review, Jun. 25, 2003.
Academic notes
U. of Wisconsin law professor (and blogger) Ann Althouse is not exactly impressed by Judge Guido Calabresi’s apology for his ACS remarks: “You’d think someone who makes principles of democracy central to his legal argument wouldn’t stop at saying his argument is complicated and academic.” Her earlier post on this subject is also worth reading, as is Point of Law’s treatment.
The July-August issue of Legal Affairs magazine includes a debate on the question of American courts’ use of foreign law, featuring Judge Richard Posner (advising against) and Georgetown law professor Vicki Jackson (making the case in favor).
“Would it be too cynical to speculate…?”
“Would it be too cynical to speculate that what may be going on here is that class counsel wanted a settlement that would give them a generous fee and Fleet wanted a settlement that would extinguish 1.4 million claims against it at no cost to itself?” — Judge Richard Posner, writing for a unanimous Seventh Circuit panel in the class action case of Mirfasihi v. Fleet Mortgage Corp., Jan. 29 (PDF). Answering his own question, Posner continues: “The settlement that the district judge approved sold these 1.4 million claimants down the river.” (via How Appealing, whose author Howard Bashman has just announced that he’s striking out to launch his own appellate practice). More: David Giacalone is on the case.