There’s new blogging on the fate of pre-1985 children’s books from book restorer and conservator Javamom, Jane Badger (iBookNet, U.K.), Dillon Hillas, Wellspring Creations, and Small-Leaved Shamrock. Deputy Headmistress continues to blog the book angle intensively, as does Valerie Jacobsen (read this post in particular). Note also the comment from Nancy Welliver on her February 11 post: “We are a used curriculum and book seller. We have removed 3,500 books from our website. … until recently publishers did not put printing dates in books, only copyright dates. So a book that is copyrighted 1976 may have been printed in 1988 and therefore legal to sell, So how do we know which are printed before and which after 1985? So we have removed all books for children with copyright date 1985 and before.” There’s also a page at cpsia-central (the Ning group) on books and libraries.

CPSIA chronicles, March 3 is a post from Overlawyered - Chronicling the high cost of our legal system

…The unique process used by WhoCanISue.com also ensures that cases are not jeopardized inadvertently, a common pitfall of some other approaches to online matchmaking. Because WhoCanISue.com does not require submission of open-ended descriptions of the facts of the user’s claim, users are not forced to divulge information that could be deemed a waiver of the attorney-client priviledge [sic] resulting in the information being introduced in court and used against them.

WhoCanISue.com does not generate “leads” to potential clients, a method commonly used in online legal marketing that violates ethical rules governing most attorneys’ advertising. Instead, WhoCanISue.com’s patent pending model allows attorneys to bid on real-time ad placements – usually limited to five attorneys – delivered to users who have completed question paths to determine their qualification for a particular claim.

An earlier entry in the legal-matchmaking field, SueEasy.com, has come in for a fair bit of criticism in and out of the profession (“hairball generator“, “incredibly stupid” idea, “like a carpool for ambulance chasers“, etc.).

Reactions: Bill Childs does some legwork on the site’s sponsorship, throwing cold water on hasty, sloppy, or gullible speculation in some circles that the site might be a false-flag operation. Eric Turkewitz and Carolyn Elefant aren’t any more impressed this time around than they were with SueEasy.com.

WhoCanISue.com is a post from Overlawyered - Chronicling the high cost of our legal system

Physicians who made three or more malpractice payments between 1990 and 2006 – accounting for no more than 4 percent of New York’s doctors – were responsible for nearly half (49.6 percent) of medical malpractice dollars paid out on behalf of doctors in the time period.

This is technically true, but wildly misleading; we previously refuted this precise statistic as a natural statistical consequence of any randomly distributed set of payouts–and given that doctors in high-risk professions such as neurosurgery or ob/gyn are far more likely to be sued than dermatologists or gerontologists, the random concentration effect is going to be even more pronounced, so the Public Citizen statistic is meaningless without a showing of speciality-adjusted correlation between time periods–something no study has ever found.

But note how blogger Eric Turkewitz writes an op-ed in a small-town New York newspaper that isn’t even satisfied with simply misleading the public, and says something that is out-and-out false:

4 percent of the state’s doctors contribut[e] to half of the malpractice suits [emphasis added]

Not remotely true. “Nearly half of payments” has been turned into “half of malpractice suits.” Justinian Lane, who knows or should know that the latter statistic isn’t true, because his blog posted about the original statistic, then repeats the lie either thoughtlessly or deliberately:

Maybe doctors should discipline the four percent of doctors that make up half of all malpractice claims.

Will either of them retract the false claim with the same fanfare that they made it? Stay tuned. (They certainly won’t explain that there’s nothing damning about the accurate statistic–though I have been refuting this for over three years, Public Citizen and trial lawyers and their fans continue to regurgitate the data as if it means something.)

How trial lawyer urban legends get started is a post from Overlawyered - Chronicling the high cost of our legal system

Lane thinks this is a just result worth noting. So let us consider that trial lawyers do the same thing every day: lie about or exaggerate health effects of drugs for profit (just Google the name of any prescription drug to get a lawyer’s ad)–and without the intermediating effects of doctors to assess the claims and correctly inform patients, so it is clearly worse. But the lawyers do so with impunity, with no consequences for the adverse health effects on patients. (E.g., POL June 2007; POL Feb. 12.) There’s no private cause of action; and the trial bar and its professional organizations lionize such tactics, rather than punish them. All we can do is criticize plaintiffs’ lawyers for putting profits before people.

An interesting double-standard is a post from Overlawyered - Chronicling the high cost of our legal system

As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.

Elizabeth Thornburg, Justinian Lane, and then Richard Neely himself all claimed that Neely was being “ironic” or “sarcastic.” Of course, as numerous other quotes from the book (not to mention Neely’s contemporaneous observations) show, no one who has actually read the book could possibly believe that Neely was being ironic.

So this is perhaps entirely redundant, but it is worth providing some cumulative evidence from a check of the public record. For example, Neely claims he was being “ironic” to “sell books” and didn’t really mean it. Then what’s his excuse when he explicitly used the same reasoning in an opinion he wrote as a West Virginia Supreme Court Justice as a rationale for unjustly treating a corporate defendant?

Indeed, in some world other than the one in which we live, where this Court were called upon to make national policy, we might very well take a meat ax to some current product liability rules. Therefore, we do not claim that our adoption of rules liberal to plaintiffs comports, necessarily, with some Platonic ideal of perfect justice. Rather, for a tiny state incapable of controlling the direction of national law in terms of appropriate trade-offs among employment, research, development, and compensation for the injured users of products, the adoption of rules liberal to plaintiffs is simple self-defense. [Blankenship v. General Motors Corp., 406 S.E.2d 781, 786 (W.Va. 1991).]

If Neely was being “ironic” here, someone should give General Motors back its money.

It’s also worth noting that Justice Neely said the exact same thing in testimony before Congress on September 12, 1991 (139 Cong. Rec. S2090-02):

If you ask the average state judge whether she would like to redistribute some wealth from, say, Colt firearms to a local resident who was severely injured in a shooting accident, the judge will probably answer “yes.” But if you ask the same judge to make a choice between high local employment in Colt’s plants on the one hand, and redistribution of Colt’s money on the other, she is likely to favor high employment over simple wealth redistribution. The problem is that except for the U.S. Supreme Court, no American judge can affect these trade-offs.

If, for example, as a West Virginia judge I insist that West Virginia have conservative product liability law, all I will do is reduce my friends’ and neighbors’ claims on the existing pool of product liability insurance paid for by consumers through “premiums” incorporated into the price of everything we buy. This is the explicit rationale of Blankenship versus General Motors, 406 S.E.2d 781 (W.Va. 1991). …

Thus, as a state judge I have admitted in a unanimous opinion written for the highest court of one of the fifty states that we, as a state court, cannot be rational in the crafting of product liability rules. [emphasis added]

If Neely was being “ironic” here, he forgot to tell Congress.

Of course, anyone who has read the book already knows that Neely was not being ironic. The only people who could suggest otherwise are either ignorant (because they have not read the book, as in the case of Justinian, who, as is his wont, made wild-eyed allegations without getting his facts straight) or, if they have read the book… well, judge for yourself why someone would falsely suggest that a straight statement was ironic. The question remains how a SMU law professor would make such a patently false claim in a law review article, or how such a claim survived fact-checking.

Separately: note that Neely’s argument remains unrebutted (even by the present-day plaintiffs’ lawyer Neely), and explains as well as anything else why federal preemption is absolutely necessary (and entirely consistent with Hamiltonian/Madisonian federalism) in the litigation over interstate commerce.

Richard Neely’s lack of irony (III) is a post from Overlawyered - Chronicling the high cost of our legal system

All disputes arising out of or relating to this agreement (other than actions for the collections of debts you owe us) including, without limitation, any dispute based on any service or advertising of the services related thereto, shall be resolved by final and binding arbitration… (Emphasis added.)

Aha! Justinian thinks: proof (or, as he exaggerates, “the final nail in the coffin”) that arbitration isn’t cheaper than court for debt collection! Except Justinian, as his is wont, hasn’t read the entire contract, and misses the real kicker to the consumer in ¶ 17:

Subject to the arbitration and dispute resolution requirements of Paraqraph 16 this Agreement is governed by and construed in accordance with the laws of the State of Georgia and You consent to the jurisdiction of the federal District Courts of Georgia and the Circuit and District Courts of Fulton County, Georgia with respect to any dispute arising under this Agreement.

Yes, Justinian, if he tries to skip out on his debt to Knology, will face a lawsuit in Fulton County, Georgia, where he has accepted personal jurisdiction 767 miles away from his hometown. But at least he won’t have to arbitrate! (NB Fulton County debt collection has horror stories at least as bad as anything Public Citizen concocted in its anti-arbitration report.)

Are there jurisdictions with efficient debt-collection procedures in court that work out to be cheaper than arbitrators? I don’t doubt it, and perhaps Fulton County is one of them. Some providers, however, would prefer not to force their customers to go cross-country in a debt proceeding, and recognize that arbitration will be cheaper than trying to collect debts in thousands of jurisdictions across the country. The Knology agreement certainly doesn’t contradict this; that Justinian has found an agreement that is worse for debtors than a straightforward mandatory binding arbitration clause is hardly an argument for outlawing mandatory binding arbitration clauses.  It just shows that banning mandatory binding arbitration will make consumers worse off, because vendors who can’t count on arbitration will instead use forum-selection clauses to protect themselves from hellhole jurisdictions.

(Separately, Justinian’s figures for the fee schedule for NAF ignores the legal expenses involved in filing in court versus filing with an arbitrator; multiple court appearances and filings are needed, versus a single filing with an arbitrator.)

Knology arbitration clause is a post from Overlawyered - Chronicling the high cost of our legal system

June 12 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”

— Richard Neely, Justice, West Virginia Supreme Court, The Product Liability Mess at 4

In his latest attack on Overlawyered, Justinian Lane claims that Walter Olson and I have misused this quote, because Justice Neely was being “ironic.”

I’m holding The Product Liability Mess in front of me, and Neely is most certainly not being “ironic”: he is offering a mea culpa. Here’s the full paragraph (emphasis added), to show that it’s not being taken out of context:

The anarchy that current prevails among American state jurisdictions absolutely guarantees politically that no line of any sort will be drawn. After all, I’m not the only appellate judge who wants to sleep at night. As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”

And from the very first page:

[U]p to this very moment in my life I have been part of the problem rather than part of the solution. As a state court judge, much of my time is devoted to designing elaborate new ways to make business pay for everyone else’s bad luck.”

And here’s one more quote from pp. 70-72, with Neely talking about a specific West Virginia case, again emphasis added:

From what I know about myself and my colleagues, I have the distinct impression that in a product liability case the vote would have been 3 to 2 the other way, and the whole $10 million judgment would have been sustained. Had a defective Ford automobile killed the little boy, even I would have had none of the enthusiasm for reducing the judgment that I had when the judgment against the defendants would affect business and consumer costs in West Virginia. What do I care about the Ford Motor Company? To my knowledge Ford employs no one in West Virginia in its manufacturing processes…

“The best that I can do, and I do it all the time, is make sure that my own state’s residents get more money out of Michigan than Michigan residents get out of us.”

That, dear readers, is not irony.

Neely goes on to argue for the need for federal preemption to solve the product liability problem to protect the American economy from judges like him. Justinian clearly never read the book before he made his personal attack.

Lane bases his argument on a few ipse dixit sentences from Elizabeth Thornburg’s advocacy piece in the West Virginia Law Review attacking the characterization of West Virginia as a judicial hellhole. Thornburg, whose citations cherry-pick studies favorable to her conclusions, while ignoring those that are not, largely ignores or elides the real reasons why reformers justly call West Virginia a judicial hellhole. For example, her paper does not mention State ex rel. Johnson & Johnson Corp. v. Karl, where two justices of the WV Supreme Court majority expressly adopted Neely’s point of view about redistribution from out-of-state corporations to local doctors, much less the Beck/Frank critique of the West Virginia Supreme Court’s decision in Karl. There are arguments about some anecdotes, but not about others. The paper doesn’t mention Trial Court Rule 26.01, reverse bifurcation in West Virginia, and the appalling violation of due process it creates. Her paper also dishonestly claims that the state’s “medical monitoring” jurisprudence is in the “mainstream,” which is most certainly not true, but is a claim that must be justified to falsify the reformer critique of the state’s justice system.

Lane demands a retraction, but he seems to be the one who needs to make a retraction of his erroneous claims. Given Justinian Lane‘s previous record, we doubt one is forthcoming.

“As long as I am allowed to redistribute wealth…”: was Richard Neely being “ironic”? is a post from Overlawyered - Chronicling the high cost of our legal system

Ted Frank at Overlawyered falsely claims that “In civil court, a default judgment can be obtained merely on a plaintiff’s say so. In contrast, most arbitration agreements require the arbitrator to scrutinize the evidence before granting an award, even when the debtor does not contest the arbitration claim…” A default judgment against a debtor will be based upon the same evidence in civil court or in arbitration: an affidavit or affidavits from the creditor alleging that the debtor owes a specific sum. Both the judge and the arbitrator will “scrutinize” the affidavit in the same way; they’ll check to make sure names and sums are correct.

It will be no surprise to long-time readers of Overlawyered that Justinian Lane is 100% incorrect.

A defendant who fails to appear in court defaults. As FRCP 55(b)(1) states (emphasis added):

If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk — on the plaintiff’s request, with an affidavit showing the amount due — must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.

The allegations in the complaint are assumed to be true, and judgment is granted for the plaintiff-creditor without further ado so long as the boilerplate is legally sufficient, regardless of the merits of the defendant’s case or the meritlessness of the plaintiff’s case. In contrast, here is Rule 36 of the National Arbitration Forum Code of Procedure, which is typical of arbitration procedure:

RULE 36. Arbitration Proceedings in Absence of a Party.

A. An Arbitrator may issue an Award or Order when any Party has failed to respond, appear, or proceed at a Hearing, or otherwise defend as provided in this Code.

B. If a Party does not respond to a Claim, an Arbitrator will timely review the merits of the Claim for purposes of issuing an Award or Order. The Claimant need not submit an additional Request for an Award.

C. An Arbitrator may require an Affidavit, information or Documents from Parties who have appeared or conduct a Hearing to Receive evidence necessary to issue an Award or Order. Documents submitted in Response to an Arbitrator’s Request shall be filed with the Forum no later than thirty (30) days after the date of the Request. A Party may obtain forty-five (45) additional days to respond to an Arbitrator’s Request by filing with the Forum and Delivering to all other Parties an extension notice before the initial thirty (30) day time period expires. Only one (1) extension by notice is available.

D. Each Party making an Appearance shall be provided notices relating to a Hearing.

E. No Award or Order shall be issued against a Party solely because that Party failed to respond, appear or defend.

Creditors in arbitration have no default rights. If they can’t prove their case, they get nothing. Arbitration gives debtors rights that they would not have in court. Justinian’s claim that defaults in arbitration are just like defaults in court is simply wrong. My claim is true, and it is Justinian’s claim that is false.

Little surprise that the litigation lobby’s arguments for depriving consumers of the choice to pre-commit to arbitrating disputes are so thin that they have to make up facts.

(Justinian’s post also repeats the canard that because the anti-arbitration bills only ban mandatory arbitration, consumers haven’t lost any choice because they can still arbitrate if they like. Of course, we’ve repeatedly demonstrated why pre-commitments to arbitration are necessary for honest consumers to realize the maximum benefits from arbitration, and Justinian’s failure to acknowledge that argument, as well as his failure to account for the refutation of the Business Week story, further demonstrate the bad faith of the litigation lobby’s campaign against consumer choice.)

The absent defendant: arbitration vs. court is a post from Overlawyered - Chronicling the high cost of our legal system

In banana republics across the globe, economies come to a standstill because the risk of confiscation or corruption keeps many investments from ever happening. The same danger occurs when the expropriation is conducted by lawyers in the name of “justice.” If businessmen and entrepreneurs—be they insurers, manufacturers of lifesaving pharmaceuticals, or the small businesses that deliver your packages—have to account for the risk that their contractual arrangements will be disregarded by courts, they have to raise prices to account for that risk. Such increased prices mean fewer contracts are signed and fewer businesses are started. Consumers are worse off, not just because they now have fewer options, but because the economy is smaller as jobs and opportunities are lost. The only beneficiaries are the lawyers.

The poster knows darn well that the idea of predictability in justice hardly originates with Dan Pero and reformers. As I once noted to the same poster in a comment thread:

Since when is predictability a component of justice?

Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi.

If a desire for predictability in law makes one a reformer, then one can certainly add Plato, Thomas Aquinas, Montesquieu, Justice Holmes, and Lord Chief Justice Bingham of Cornhill to the list of reformers. More recently, one can read Richard Epstein on the subject. Justinian Lane would serve himself better by reading more books and fewer anonymous blogs before he asks such silly questions.

The rule of law: Why is predictability important? is a post from Overlawyered - Chronicling the high cost of our legal system