- “Someone tell Gov O’Malley that Swiss bank UBS is helping build a Maryland bridge.” [background; State of Maryland, PDF, via Dan Alban] Dems’ trade xenophobia escapes ire aimed at GOP’s purported immigration xenophobia [Barro] “Buried in the 2012 Democratic platform: Official declaration of war on Switzerland.” [@daveweigel]
- Are you better off than you were four years ago? Kyle Graham traces that question back to 1900, and no doubt it’s older [ConcurOp]
- Fact-checkers snooze during Dems’ Lilly Ledbetter show [Ted Frank/PoL, Hans Bader/Examiner] Read in full context, Obama’s “you didn’t build that” remarks “would inspire largely the same reaction.” [Larimore, Slate]
- Former Florida Gov. Charlie Crist is least surprising Dem endorser of the year, as Overlawyered readers have reason to know [Betsy Woodruff, NRO, on Morgan & Morgan connection]
- Great Society legacy: tax-funded nonprofits play key role in NYC corruption [Steven Malanga, WSJ]
- “Details of the Auto Bailout You Won’t Hear in Charlotte” [Dan Ikenson, Randal O’Toole, Cato; Tim Carney, Washington Examiner (“Here’s the truth: what Romney proposed for Detroit was more or less what Obama did”); Shikha Dalmia on Gov. Jennifer Granholm]
- HHS welfare waivers: fact-checkers, check thyselves [Kaus, more, Steve Chapman]
- Roundup of James Q. Wilson appreciations [Michael Greve] The controversial book a 29-year-old Wilson never wrote [Helen Rittelmeyer]
- “Secret Class Action Settlements” [Rhonda Wasserman (Pitt), SSRN, via Stier] “Classic scholarship: Class action cops” [Trask/Class Strategist] Where should class-action scholarship go next? [same, more]
- So does this mean GOP’s overturn-Kelo bill would kill the Keystone pipeline? [Stoll]
- Stossel on illegal lemonade stands and vague laws that make everyone guilty; guest star is Cato’s Harvey Silverglate [YouTube]
- No Fluke? Linda Greenhouse’s recollection of Lilly Ledbetter case is fairly fictionalized [Ed Whelan, earlier]
- Footsie with plaintiff-lawyer adversaries: “Allstate vs. former Allstate adjuster” [Ron Miller]
- Benjamin Barton reviews the Winston-Crandall deregulate-lawyers book [MSLR/SSRN via Instapundit, earlier]
Proponents are making the usual you-mean-you’re-against-equal-pay? noises, but the bill would go much farther than that in undercutting employers’ litigation defenses. Jon Hyman says business should be afraid — be very afraid. More: Christina Hoff Sommers, New York Times; Hans Bader and more; Keith Smith/ShopFloor.
My Manhattan Institute colleague Jim Copland has an op-ed today in the WSJ explaining how current campaign finance rules magnify the influence of trial lawyers, as through the favored status of “bundling”. Excerpt:
Over the current six-year senatorial election cycle, four of the top seven donors to the campaign committee and leadership PAC of Senate Majority Leader Harry Reid (D., Nev.) were plaintiffs firms. Plaintiffs firms were the top two donors to Senate Majority Whip Dick Durbin (D., Ill.).
The first piece of legislation signed by President Obama—the Lilly Ledbetter Fair Pay Act of 2009 — gutted statutes of limitation in employment lawsuits. The first legislative triumph for new Sen. Al Franken (D., Minn.), an amendment to the defense appropriations bill, foreclosed employment arbitration clauses for federal contractors.
More from Jim at Point of Law, including a mention of Trial Lawyers, Inc.: K Street–A Report on the Litigation Lobby 2010, the newest installment in the Trial Lawyers, Inc. series, which will be available later today here.
- A “retired Reserve captain is threatening to sue her local California school board if the board’s members do not address her by her military title” [Navy Times, Popehat]
- Members revolt at Florida bar’s selling their email addresses to marketers; general counsel of bar suggests they maintain multiple email addresses [Daily Business Review]
- “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies” [NLJ; fees awarded to Takeda Chemical Industries against Mylan Laboratories and Alphapharm Pty. Ltd.]
- Much of what you think you know about the Lilly Ledbetter Fair Pay Act is wrong [Stuart Taylor, Jr./National Journal; Point of Law, more]
- Not only prejudicial, but a whiskery urban legend to boot: fictional “Winnebago tale” (man thinks cruise control function will drive RV for him, sues after crash) makes its way into an Australian lawyer’s courtroom argument [Rees v. Bailey Aluminium Products]
- Posner was scathing about the class action lawyers’ conflicts of interest in the Mirfasihi v. Fleet Mortgage Co. case, but Max Kennerly thinks the judge got the case wrong [Litigation and Trial, earlier]
- Fight erupts over fee split in Blue Cross eating-disorder class action settlement [NJLJ, earlier]
- “Many attorneys from both parties also marvel at the sheer number of lawyers Obama has picked so far” in staffing White House [Washington Post]
- It’s still not over: Judge Roy Pearson of lost-pants fame returns to court with appeal against Custom Cleaners owners, the Chung family [WJLA]
- Columbus cops’ class action: dept. shouldn’t have asked us what our ailments were when we took sick leave [Dispatch]
- Culture Warrior Jeff Bell hopes Palin will reverse trends that have “legitimated a contraceptive ethic” [Weekly Standard] Better not count on it [York, NRO “Corner”]
- RIAA has now filed 30,000 lawsuits against file-sharing music fans [Wired “Threat Level”, Ambrogi]
- Recently at Point of Law: Ohio’s Supreme Court in the balance this November; Biden vs. legal reform; guestblogging by Peggy Little and Jane Genova; Lilly Ledbetter at Democratic convention; big Peter Angelos cellphone-cancer case strikes out; call for Australian no-fault cerebral palsy fund; and more;
- Massachusetts high court ruling that docs can be sued over their patients’ medication-impaired behavior is predictably leading to new suits [Globe, Brockton hospital crash; earlier]
- What Alinsky-style “community organizers” do [York, NRO via Bookworm Room] “Organizers break laws if they have to.” [Thomas Geoghegan @ Slate — and he’s being admiring]
- California trial lawyers successfully gut original Schwarzenegger plan to reform award of punitive damages [four years ago on Overlawyered]
Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.
There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well. Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6).
What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about. It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used). And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.
But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation. Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole. Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.
It’s hard to see how some changes will have any real impact on employers. For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”. While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers. After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”? And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.
On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective).
Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here). For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior.
The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill. We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year. Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.
(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)
Carter Wood has been doing great things lately with the National Association of Manufacturers’ Shop Floor blog, which often treats legal reform topics. Since Monday he’s also been posting up a storm guestblogging at Point of Law. Topics include: ATLA/AAJ’s juvenile pre-nose-thumbing at the U.S. Chamber of Commerce’s 2008 Lawsuit Climate Report (which, like similar studies from ATRA and Pacific Research Institute, tries to pick best and worst state legal environments); the employment-litigation-expanding Lilly Ledbetter Fair Pay Act (more); some thoughts on journalistic shield laws; and sundry reports from the Geoffrey Fieger trial, Florida politics, and Texas Supreme Court-watching.