Congratulations to David Nieporent is a post from Overlawyered - Chronicling the high cost of our legal system

David Nieporent staying on is a post from Overlawyered - Chronicling the high cost of our legal system

Lingering on is a post from Overlawyered - Chronicling the high cost of our legal system

An op-ed in the Arab American News by Ihsan Alkhatib suggests that banks are closing accounts with people who do business with Saudis; the “know your customer” requirements and fear of liability for being associated with terrorists make the costs of keeping those accounts open prohibitive. Alkhatib cites my Wall Street Journal op-ed on the subject. (“Banks, civil rights groups and community members should lobby together for change in terror laws”, Mar. 3).

NB Alkhatib’s conclusion “In protecting the banks from frivolous lawsuits, we preserve the civil rights of Arab Americans and American Muslims.” Alkhatib is plainly using “frivolous” in the common sense of “silly or socially counterproductive,” further evidence of my contention that litigation lobby defenders confuse the subject when they pretend that laypeople are using the term “frivolous lawsuits” in the narrow technical legal sense, since the lawsuits in question are not “frivolous” in that narrow technical legal sense because of the willingness of judges to treat them seriously.

Defensive banking is a post from Overlawyered - Chronicling the high cost of our legal system

• I disagree with Giacalone that these cases are “stale.” The baking soda case was two years old, but it was in blogosphere news because David Lat drew a lot of attention to it. Walter reposted Tyler v. Carter by reader request; we hadn’t mentioned the case before.
• I disagree with Giacalone that these cases are rare. Opinions may be rare—cases like these tend to get thrown out with minute orders and summarily affirmed on appeal. But I know talking from appellate staff (as opposed to elbow) clerks, that the pro se docket has many such cases, and that the opinions are only the tip of the iceberg. Tax protestors don’t get a lot of attention unless they are Wesley Snipes or the Montana Freemen, but there are hundreds and perhaps thousands of such people in the court system arguing about the legal consequences of capitalization or claiming that wages aren’t income or similar such nonsense.
• That said, perhaps Giacalone would find agreement with me when I concede that I don’t believe insane pro se complaints to be in anyone’s reasonable top ten list of problems with the American legal system. The system may not deal with these complaints with maximum efficiency, but deals with them effectively enough that the mistakes are relatively small compared to, say, the damage done by modern products liability law or securities class actions.
• What makes Tyler v. Carter most notable to me today is not so much the wacky allegations, which, as David Nieporent pointed out in the comments, are likely the delusions of an unmedicated schizophrenic. (Ludicrous complaints against famous people are not that unusual: in 2002, a similarly delusional Texas woman alleged that George W. Bush kidnapped, drugged, and raped her; and left-wing conspiracists with their own delusions still repeat the story.) Oh, sure, there’s some entertainment value in those allegations, which is why Tyler v. Carter or Mayo v. Satan & His Servants or the fly-like-Batman case get passed around like samizdat among new law students. But what’s especially notable about Tyler is that it is technically wrong.

  Tyler‘s complaint met the minimal standards of Federal Rule of Civil Procedure 8; she paid a filing fee. Under the current federal rules, Rule 12(b)(6) “does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations. District judges looking to dismiss claims on such grounds must look elsewhere for legal support.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Tyler cites Neitzke, and then refuses to adhere to its command, and dismisses the case sua sponte, without any legal authority to do so other than common sense.

  Now, in the abstract, this is a preferable rule: far better that cases like Tyler get thrown out without the need for a summary judgment proceeding demonstrating that Jimmy Carter and Bill Clinton are not engaged in mind-control or mass sex slavery. But claims only slightly less silly get the full benefit of the legal system: Ashley Pelman is allowed to sue McDonald’s arguing that his obesity is the result of consumer fraud, and Rule 8 permits that plaintiff to conduct expensive discovery. And claims only slightly less silly than that get multiple litigation-lobby defenders writing or law professors teaching why it’s okay to sue and win over spilling coffee on oneself. If Ms. Tyler were represented by an attorney, the Second Circuit would never permit mere common sense to dismiss a complaint outside the rules.

  If pro se plaintiffs were given equal access to the justice system and the full benefit of the Federal Rules of Civil Procedure that a Pelman gets, there might be some pressure to change the FRCP to give judges the authority to dismiss harassing complaints sua sponte. The rules simply don’t permit Judge Haight to do what he did; but I think we can all agree that Judge Haight should have such power. This might not be a complete solution; after all, the Arm & Hammer judge had the authority to dismiss that in forma pauperis complaint sua sponte and failed to do so. But a change in the rules that recognizes that judges have legitimate power to act as gate-keepers to screen cases would encourage more judges to do so, with benefits that redound far beyond the occasional schizophrenic and bored-prisoner pro se case.

My own thoughts on Tyler v. Carter is a post from Overlawyered - Chronicling the high cost of our legal system

“How to demonize a judge in twelve steps” is a post from Overlawyered - Chronicling the high cost of our legal system

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Overlawyered is written by Walter Olson, a senior fellow at the Manhattan Institute and author of several books about the U.S. litigation system, Ted Frank, a resident fellow at the American Enterprise Institute who directs its Liability Project (and formerly a practicing lawyer with the large law firm O’Melveny & Myers), and David Nieporent, a practicing lawyer in New Jersey. The site is not affiliated with any of these organizations and reflects only its authors’ views.

Walter Olson: editor – at – [this domain name]
Ted Frank: tedfrank – at – gmail – dot – com
David Nieporent: conclusions -at – oobleck – dot – com

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A (somewhat out-of-date) discussion of the site’s format, which may be useful for visitors interested in searching and linking our archives, is here.

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The following is a version [updated to December 2006] of a statement explaining the site posted in its early days:

This site got its start in July 1999 after I decided that the Web had gone for too long without an attempt to collect, annotate and present in a (somewhat) systematic way the growing quantity of online material documenting the need for reform of the American civil justice system. For some time previously I’d built up a personal website housing a large collection of my own writings on litigation and other issues. At the same time, for my own research needs, I was building an ever-growing library of pointers to links and resources, authors and news sources on the state of the justice system. Why not put that library online to help others interested in the same issues?

The growing traffic on the site since then has made it evident that there is a wide audience in America and around the world for the site’s mix of serious and entertaining commentary on the frequently overreaching consequences of American law. For a sampling of the many nice things said about us, check our accolades page.

Overlawyered.com is not published by, and should not be seen as reflecting the views of, any wider organization (including the Manhattan Institute and American Enterprise Institute, with which I and Ted are respectively affiliated). The site’s modest hosting and operating expenses come out of my own pocket, the outflow occasionally stanched by the generosity of readers who shop at our Amazon bookstore or donate through the Amazon Honor System or, more recently, by ad revenue.

— Walter Olson, editor

About this site is a post from Overlawyered - Chronicling the high cost of our legal system