- High-profile trial lawyer and Hillary fundraiser John Coale now backing McCain, believes plaintiff-friendly Sen. Lindsey Graham, a confidant of the GOP candidate, will sway him on liability issues [Gerstein, NY Sun, Tapper/ABC, Haddad/Newsweek] More on McCain-Graham friendship [New Republic]
- Reasonably neutral evaluation of contrasting McCain and Obama positions [Chris Nichols, NC Trial Law Blog]
- No Naderite he? Sen. Biden has generally taken a “protect the golden goose” approach toward his state’s niche as provider of corporate law [Pileggi, Bainbridge]
- Palin’s views on legal reform mostly unknown; Alaska (like Delaware) has one of the most highly regarded state legal systems, and wouldn’t it be fun if the state’s distinctive and longstanding (if somewhat attenuated) loser-pays rule got mentioned in the campaign?
- Lending spice to campaign: prospect that victorious Dems might criminally prosecute Bush officials [Guardian (U.K.), Memeorandum, OpenLeft (“we’ll put people in prison” vows whistleblower trial lawyer/Democratic Florida Congressional candidate Alan Grayson)] Some differences of opinion among Obama backers on war crimes trials [Turley (Cass Sunstein flayed for go-slow approach); Kerr @ Volokh (Dahlia Lithwick doesn’t think it has to be Nuremberg or nothing); earlier]
- If anyone’s keeping track of these things, co-blogger Ted is much involved with the McCain campaign this fall, I am not involved with anyone’s, so discount (or don’t discount) accordingly.
The notion that present-day Democrats regularly steal elections by engaging in concerted efforts to vote multiple times in funny mustaches is a myth, unsupported by data or fact.
As outlined at trial, the vote fraud scheme infected not only the actual voting process in November, but also the voter registration process preceding the election. Several persons, including the defendant Cusack, falsely registered to vote by claiming to reside at addresses within the precinct when they actually resided elsewhere. The actual residents at these addresses were asked to place name-tags on their doors that bore the names of the non-resident registrants. The defendants, and several others acting under their direction, also participated in a canvass of the precinct …. Although the canvass disclosed that a number of persons who were registered to vote in the precinct had died, moved away, or for some other reason had become ineligible to vote, these persons were not struck from the list of eligible voters. Finally, on election day the defendants, either personally or by acting through others, caused numerous false ballots to be cast for the straight Democratic ticket.
[T]he U.S. Attorney in Chicago at the time, Daniel Webb, estimated that at least 100,000 fraudulent votes (10 percent of all votes in the city) had been cast. Sixty-five individuals were indicted for federal election crimes, and all but two (one found incompetent to stand trial and another who died) were convicted.
Update: Some commenters complain that the 1982 example is irrelevant to Lithwick’s claim, because it is modified by “present-day.”
Present-day examples include 2007 cases in Hoboken, NJ, Noxubee, MS, and King County, WA—not to mention the unprosecuted voter fraud in Washington state in 2004, which affected the gubernatorial election. There may be many more examples, except Democrats are using lawsuits to block attempts to compare voter rolls with addresses.
Lithwick’s argument against present-day voter fraud is that there are very few prosecutions, and that therefore prevention measures are not needed. This is akin to arguing that, because very few people are ticketed for running red lights, there is no need for traffic signals. If there’s less voter fraud today, it’s in large part because of the prosecutions in the 1980s. Given Senator Obama’s appalling block on the van Spakovsky nomination to the FEC, and the liberal activism against preventing vote fraud, one worries that an Obama Justice Department will cease prosecuting voter fraud, and that there will be a return to the bad old days, in which case 1980s examples from when the DOJ first started prosecuting vote fraud are quite relevant.
What I find so amusing about Dahlia Lithwick’s suggestion of a lengthy warning for Christmas parties isn’t so much the warning itself (others have done that funnier, not to mention the real-life examples), but that Lithwick doesn’t recognize that she’s part of the culture that encourages such ludicrous warnings: in 2003, Lithwick pooh-poohed as “extreme” the need for legislative intervention to prevent courts from going after food providers in obesity lawsuits because, after all, Big Food could survive by “posting warnings.”
P.S. And here’s a report from the U.K. claiming that many employers there are curtailing the posting of holiday decorations at workplaces from stated motives that include avoiding offense to those of other faiths and a variety of safety concerns. (Amy Iggulden, “No decorations, please, it might cause offence”, Telegraph, Dec. 6).
- In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
- Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
- Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
- What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
- Entertaining doctor victory in medmal case. [Musings of a Dinosaur via Kevin MD]
- Dahlia Lithwick gets something right; if only it was on an issue more important than a suit advertisement. [Slate]
- Leftover from Thanksgiving: lawyers acting like turkeys. [Ambrogi]
- Ninth Circuit grants potential standing to monkeys over Kozinski dissent. Earlier: Oct. 21, 2004. [Bashman roundup of links]
- Gloria Allred joins the Borat pile-on. [LATimes]
- Speaking of, here’s the future case of Allred v. Kramer. More Allred: Oct. 16. [Evanier]
- Speaking of Allred nostalgia, and of primates, whatever happened to chimpanzee victim St. James Davis? (Mar. 17, 2005; Mar. 8, 2005) [Inside Edition; “The Original Musings”; CNN Pipeline ($)]
- More Allred nostalgia: is Veronica Mars‘ Francis Capra the next Hunter Tylo? Discuss. [Prettier than Napoleon]
- Bill Moyers calls his lawyers. [Adler @ Volokh]
- Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
- Did the PSLRA help shareholders? [Point of Law]
- 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
- Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
- “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
- More on global warming lawsuits. [Point of Law]
- Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
- Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
- Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
- Who’s your least favorite Supreme Court justice? [Above the Law]
- More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
- “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
- A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]
- David Lat has much more detail on the $46 meal-skipping criminal case; and the St. Petersburg Times reports Ralph Paul was acquitted because his defense attorney misrepresented to the jury the legal standard, and the prosecutor didn’t correct it. [Above the Law; St. Petersburg Times]
- Amber Taylor isn’t impressed with Dahlia Lithwick’s proposal of new rules for Supreme Court clerkships. [Law. com; Prettier Than Napoleon]
- Legalized extortion of banks over Enron scandal. [Point of Law]
- Round-up of links of Sherwin-Williams’s suit against Ohio municipalities that are using contingent-fee plaintiffs’ lawyers against it. [Point of Law]
- Possible settlement in the Million Little Pieces class action. [TortsProf]
- California kennel works can’t sue dog owners for bites. [Bashman]
- Defense prevails in first federal welding trial. See also POL Nov. 21 and Dec. 9. [Products Liability Prof]
- David Bernstein on phony associations in epidemiological research. [Volokh]
- Aleksey Vayner doesn’t just have an impressive video resume, he can send a bogus cease-and-desist letter with the best of them. [IvyGateBlog]
Let’s face it, Dahlia Lithwick points out: “the law offers a whole host of opportunities for wrecking the lives of others”. In fact, lawyers have been known to boast about the way they’ve spoiled the other side’s holidays:
Consider the perfectly timed restraining order, or the spontaneous motion for an order to show cause — or in fact anything that could bury the other side in research and paperwork the day before Christmas. Think about the possibilities for 11th-hour changes in the visitation schedule for the children — requiring canceled plane tickets and Christmas Eve court appearances. Or the last-minute effort to have a local crèche or tree deemed unconstitutional.
So Slate, for which Ms. Lithwick writes, is holding a contest in which lawyer-readers can submit “the meanest thing you’ve ever done to an opponent on the holidays”:
The best stories will be reprinted here shortly, and the Most Evil Attorney in the World will be showered with Slate paraphernalia. This contest is also open to anyone, anywhere with stories of hideous pre-holiday lawyer shenanigans, whether they were perpetrated upon you by counsel on the other side, by bosses in your law firm, or you merely heard about them from some sad-sack lawyer in a bar on Christmas morning.
All forced jollity aside, doesn’t this present bar authorities — forever fretting about the profession’s image — with a goal worth working toward, namely, find ways to revamp the practice of litigation to make such “hideous…shenanigans” rarer? (“Billable Horrors”, Slate, Dec. 13).
Welcome to Blawg Review #33, the latest installment of the weekly carnival assembling some of the best recent weblog posts about law.
If this is your first visit to Overlawyered, we’re among the oldest legal sites (launched in July 1999, practically the Eocene era), and over the years we’ve built a vast collection of information (with links/sources) on strange, excessive and costly legal cases, examples of the over-legalization of everyday life, pointers on litigation reform, policy stuff of generally libertarian leanings, and much more. We’re a fairly high-volume site; 6-8,000 unique visitors on a weekday is pretty typical. And although our work is regularly critical of trends in the legal profession — or maybe because of that fact — practicing lawyers around the world are among our most valued and loyal readers.
More specifically, there are two of us posting here. One of us (Walter Olson) has been writing about these topics for twenty years as the author of several books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) and a great many shorter articles. He’s a senior fellow at the Manhattan Institute who lives and works in Chappaqua, N.Y., north of New York City. More recently Ted Frank, who’s in Washington with the American Enterprise Institute, joined as a regular blogger. Unlike Walter, Ted is a lawyer, having practiced until lately with O’Melveny & Myers. Both of us also blog at the (somewhat more serious-toned) website Point Of Law, which unlike this one is sponsored by our respective institutes and boasts numerous other contributing writers.
Enough about us. Here’s Blawg Review #33, written by Walter with
indented sections by Ted.
* * *
The week in headlines
The talk of the blawg world last week? The New Yorker’s unmasking of the girlish “Article III Groupie” who’s blogged anonymously about federal judges at “Underneath Their Robes”, as, in fact, a (male) Assistant U.S. Attorney in Newark. Much more on that from Ted, below.
The pace of commentary on Samuel Alito Jr.’s Supreme Court nomination has slowed a good bit, despite the release of a 1985 memo detailing Alito’s views on abortion (which occasioned this post by Will Baude taking exception to a Dahlia Lithwick Slate column) and, more tantalizingly, on the Warren Court’s reapportionment cases (see posts by Nathan Newman and Steve Bainbridge). Alito is now heavily favored among bettors to win confirmation, notes San Diego lawprof Tom Smith.
And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).
* * *
Splendors and miseries of legal practice
* What makes a talented 39 year old attorney burn out of a criminal defense practice? (Norm Pattis, Crime and Federalism)
* What sorts of squirm-inducing compliments do criminal defense lawyers hear from their clients after scoring legal points on their behalf? (Ken Lammers, CrimLaw)
* Is it smarter for big law firms to compensate their partners on an “eat what you kill” model, a “lockstep” model, or something between the two? (Bruce MacEwen, Adam Smith, Esq.)
* How do licensing professionals decide what’s a reasonable royalty rate? (Patent Baristas)
* What sorts of bad things can happen to a law firm when one of its individual lawyers behaves rudely to a stranger? (Jim Calloway)
* * *
Read, ponder, and make up your own mind:
Did Texas execute an innocent man, Ruben Cantu? (Doug Berman)
Conservatives are still griping about the Ninth Circuit, but the new twist is that they think its judges aren’t activist enough. (Eugene Volokh)
Every so often, through luck or pluck, the “fair use” side manages to win one in copyright litigation (Ron Coleman, Likelihood of Confusion).
A group is “pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.” Atlanta attorney Jonathan B. Wilson calls it “one of the worst reform ideas ever”.
Michael Newdow, of Pledge of Allegiance suit fame, has filed a new legal action demanding that the motto “In God We Trust” be removed from U.S. currency. Jon Rowe winces.
Our own Ted Frank takes a look at the much-talked of “Dodgeball” document and concludes that it by no means proves Merck’s guilt in the Vioxx matter. (Point of Law). Also at Point of Law, James Copland of the Manhattan Institute and Dr. Bill Sage of Columbia have been engaged in a spirited debate on med-mal litigation.
In a Providence courtroom, the state of Rhode Island is demanding that companies that once manufactured lead paint be held liable for the cost of lead abatement programs. Speechwriter/ghostwriter Jane Genova is liveblogging the case’s retrial, and suggests that the defense side has been making its points more effectively.
A court has ordered the Armour Star meatpacking concern to pay $3 million for using a strength test to screen applicants for a job requiring much lifting. George Lenard’s Employment Blawg originally covered the case last month, Overlawyered picked it up, and now George has returned to the subject, observing that those dissatisfied with the suit’s outcome should realize that sex discrimination law’s distrust of strength tests isn’t something the EEOC just came up with the other day and in fact dates back at least a couple of decades. (I quite concur, having written at length on the subject back in the 1990s.)
The British government recently published a white paper entitled “The Future of Legal Services: Putting the Consumer First”. Dennis Kennedy at Between Lawyers provides a link.
In other consumer news, State Farm conceded earlier this year that when it disposed of many wrecked-and-repaired vehicles it failed to ensure that they were given appropriate “salvage titles”. E.L. Eversman at AutoMuse has been following the issue.
The head of the NY state bar association is advising prospective clients not to be swayed by lawyers’ advertising. David Giacalone, who frequently discusses legal advertising on his blog f/k/a, isn’t impressed.
San Diego lawprof Gail Heriot discovers a convicted rapist is living a few doors down from her, which gets her to thinking about the interaction of “Megan’s Law” statutes and statutory rape.
New York AG Eliot Spitzer has gone after former NYSE head Richard Grasso but not the board that approved Grasso’s plans. Larry Ribstein suspects the worst, charging that Spitzer “gets securities industry political support if he handles this so only Grasso gets hurt.”
* * *
Scheherezade at Stay of Execution, who wrote a classic post last year giving advice on whether or not to go to law school, now fields a reader’s question: Should I transfer to a higher-ranked law school?
Called for jury duty, Jeremy Blachman gets shown a somewhat hokey video entitled “Your Turn: Jury Service in New York State.” “I wanted to really mock the video, but in all honesty it was a better explanation of the jury system than anything we got in law school”.
Michael Froomkin offers a surprising and counterintuitive quiz on the U.S. Constitution in the form of a “scavenger hunt”. He also suspects that a national ID card might abet price discrimination.
And this from Ted:
Congratulations to Amber, G, Marissa, Grigori, Eve, Jeremy, and others who passed the bar. Third Attempt failed for the second time, and is opening a blog on the subject of his third try, with links to other passers and failers. Only 13% of those who repeated the California bar passed.
On the lighter side, law student Kurt Hunt quotes his prof’s maxim that “Cahoots is not a crime” but wonders what would happen if “tomfoolery, cahoots, no-gooding, antics and shenanigans were redefined as ‘Crime-Lite'”. And Colin Samuels of Infamy or Praise is among the many human beings who don’t manage to eat as well as (UCLA lawprof) Steve Bainbridge’s dog.
* * *
Buzz about blogs
Now I’ll turn the floor over to Ted again to discuss the UTR affair:
The blawgosphere likes nothing more than navel-gazing, and the New Yorker’s outing of anony-blawger “Article III Groupie” as Newark AUSA David Lat and resulting implosion of “her”/his popular “Underneath Their Robes” blawg has generated lots of curiosity and posts with Austin Powers references; the story even made Drudge and the New York Times. Blawg Review has a retrospective look at the blawg. Howard Bashman has done the most original reporting, interviewing Jeffrey Toobin, who revealed Lat’s identity, and publishing the reminiscences of a former co-worker of Lat’s. Denise Howell provides an obituary for the blawg. The Kitchen Cabinet’s “Lily” comments from the perspective of another anonymous blawger, as does Jeremy Blachman, who got a book deal from his anony-blogging. Ann Althouse muses on the nature of humor; Professor Solove and Howard Bashman comment on blogger anonymity, as does Half Sigma, who pulled a similar hoax using the photo of a Russian mail-order bride earlier this year as the image of “Libertarian Girl.” Another blawgger claiming to be a libertarian female, this one with the implausible name of “Amber,” meta-comments on the various shattered blog-crushes exhibited in the garment-rending Volokh Conspiracy reader comments on the subject; JD expresses his own disappointment. (Judge Kozinski claims to have known all along, but Judge Posner has proof of his foresight.) And Ian has sound commentary on A3G’s “status anxiety.” (And speaking of status anxiety, a Harvard Law School admissions dean snarks on Yale and gets snarked back. One can understand the sniping: HLS and YLS are good schools, and there’s a lot of competition for who’s #2 behind Chicago Law.)
Some fallout: anony-blogger “Opinionistas” got an e-mail accusing her of really being a man, and Will Baude and Heidi Bond make a bet over the gender of anony-law-prof Juan Non-Volokh, who promises to come out of the closet soon.
Taking second place in interblog buzz is the IP sticky wicket that awaited the former Pajamas Media (discussed by Blawg Review here) when shortly before launching it decided to switch to the more dignified monicker of Open Source Media. Turned out there was already a well-known public radio show by the name of Open Source which hadn’t been consulted even though it occupied such URLs as opensourcemedia.net. Ann Althouse has been merciless (here, here and here) in needling the OSM organizers, while Prof. Bainbridge piles on with a law and economics analysis of OSM’s market.
Monica Bay passes along the views of legal-tech consultant and frequent CLE presenter Ross Kodner, who charges that law blogs are “narrow-minded” and display “elitist exclusionism”. “I am sick and tired of being repeatedly asked why I don’t have a blog,” he declares. Okay, Mr. Kodner, we promise never to ask you that.
* * *
Finally, intellectual property lawyer Doug Sorocco, of the ReThink(IP) and phosita blogs, arrives “fashionably late to the BlawgThink ball” (in Chicago last week). Sorocco’s Oklahoma City firm also figures prominently (as the acquiring party) in what Dennis Kennedy says may amount to a milestone: “the first move of one legal blogger to the law firm of another legal blogger.” Stephen Nipper has more details about this “move” at ReThink(IP).
By coincidence, and giving us a nice way to wrap things up, phosita is going to be the home of next week’s Blawg Review #34. Blawg Review has information about that and other upcoming matters, as well as instructions how to get your blawg posts considered for upcoming issues.