- Mikal Watts trial begins over claims of fraud in BP gulf spill claims [AP, Miriam Rozen/Texas Lawyer, Alison Frankel/Reuters, earlier]
- If someone spilled hot coffee on you, would it take you two years to react? [Southeast Texas Record on filing just before runout of statute of limitations]
- “Woman Sues Construction Company For Allowing Man To Kill Himself By Jumping From Hi-Rise And Landing On Her Car” [CBS Los Angeles]
- “Families: Hamas on Facebook, so firm must pay $1B after terror deaths” [Cyrus Farivar, ArsTechnica]
- Cloud of blame: “W.V. Firm Blames Almost 300 Companies In Each Asbestos Lawsuit” [Jessica Karmasek, Forbes]
- Singer Collette McLafferty, sued over $75 cover-band gig, is poster person for New York bill to curb meritless lawsuits [Michaela Kilgallen, Albany Times-Union]
Pulling up stakes and moving is tough enough. Regulations that drive up closing costs make things worse [Naomi Schaefer Riley/New York Post, thanks for quotes]
Cato Institute Senior Fellow Walter Olson says that it’s not just the taxes that make some states more expensive than others. “States regulate real-estate transfers so as to require additional stages and the involvement of certain professionals’ services, like lawyers’, at more stages.” He says New York is “particularly bad.”
Olson notes: “The title-insurance industry is also regulated in ways that make consumers pay much more in some states, independent of any difference in underwriting risk.”
And the “high-cost methods required in some states are stoutly defended by lobbies of professionals who make a living from the expensive way of doing things.”
New York manages to protect consumers from the menace of buying crackers or a corkscrew at a wine shop. Or at least it manages to protect someone from something [Ira Stoll]
“All you really need to know about New York Senate Bill S6325A is that it would create a law named after a person (this one would be ‘Evan’s Law’), since any law named after a person is almost always a terrible idea. (See, e.g., ‘Caylee’s Law,’ a terrible idea in 2011.) If the law were a good idea, they wouldn’t need to try to generate support by manipulating people’s emotions.” But the law — which would empower police to demand inspection of your cellphone after any auto collision, for the stated purpose of seeing whether the recent use of it had distracted you, and would provide for automatic license suspension if you refused — is in fact a very bad idea. [Lowering the Bar]
New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:
A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.
In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.
Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:
These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.
Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.
An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.
[cross-posted from Cato at Liberty]
Former state Assembly Speaker Sheldon Silver was convicted on all seven criminal counts Monday in a corruption scheme that traded taxpayer cash and political favors for nearly $4 million in payoffs….The conviction of Silver — for decades one of the three most powerful politicians in the state — was a huge victory for anti-corruption crusading Manhattan US Attorney Preet Bharara.
Appeal is expected. The scheme was one in which Silver helped direct state research funds to a Columbia University physician specializing in asbestos-related disease in exchange for the doctor’s referral of patients to the Silver law firm, which resulted in large legal fees to Silver for cases in which he did no work. Earlier on the charges against Silver here, here, here (and related).
While machine politicians are common enough in New York, Silver (in Wayne Barrett’s words) “for two decades presented himself as the personally devout, politically principled leader of the most progressive slice of New York political life.” Whatever his relations with other Democratic interest groups, Silver always put trial lawyers first.
Dr. Robert Taub, a mesothelioma specialist at Columbia University, got sucked into the Albany ethical abyss and in particular the moneymaking schemes of former New York Assembly Speaker and longtime Overlawyered favorite Sheldon Silver [Bill Hammond, Politico/Capital New York, quotes me] The defense proffered by Silver’s lawyers draws heavily on the idea that look, this is the way New York works [New York Post]:
“It’s impossible, absolutely impossible,” argued defense lawyer Steven Molo, “for a member of the Assembly to … do the job that a person in the Assembly does and not have some sort of conflict of interest.
“That may make you uncomfortable,” he added, “but that is the system New York has chosen, and it is not a crime.”
- “The employees ran away and refused to talk to us…Even if we’re there to help them.” [NYT cheers New York nail salon raids, earlier on paper’s crusade against the salons]
- And now, the Times’s campaign to damn the Amazon: “The Liberty To Work Under Tough Bosses” [John McGinnis]
- Rule by White House decree begins to rile its employer targets: “Defense Contractors to Obama: Enough With the Executive Orders” [Defense One]
- “Lawsuit Reform Alliance Estimates $200m in Additional Costs for LaGuardia Airport Project Due to the ‘Scaffold Law'” [its press release, earlier on law]
- “Mandated Paid Maternity Leave: A Bad Idea for Women” [Abigail Hall, Independent Institute via Alkon, related Peter Suderman on family leave mandates]
- Describing most public assistance programs to working families as subsidy for low-wage employers is “flatly wrong.” [Gary Burtless, Brookings, earlier on such claims, more from Tim Worstall (“McDonald’s Profits Are Not Subsidized By Welfare Payments To McDonald’s Employees”)]
- Wisconsin-style “Moral Monday” protests against North Carolina’s GOP administration have some familiar backing [News and Observer, more on phenomenon from John Locke Foundation]
- Analyzing the Norton Rose survey numbers: US business faced the most litigation, followed by UK, Canada had least [Above the Law, earlier]
- Daimler doomsday? “Under the proposed law, any claim against a foreign company that registers with the New York secretary of state could be filed in New York courts, regardless of where the alleged wrongdoing took place or who was harmed.” [W$J, Alison Frankel last year, defense of bill]
- BP Gulf spill: “Seafood companies owned by man previously convicted of fraud accused of perpetrating $3 million Deepwater Horizon fraud” [Louisiana Record]
- “Facing Sanctions, Law Firm Tries To Block Interviews With Thalidomide Clients” [Daniel Fisher]
- Litigation finance: speculator’s handling of Beirut car bombing payout raises eyebrows [W$J via Biz Insider]
- “American Energy Companies Latest Victims of TCPA Lawsuit Abuse” [Chamber’s Institute for Legal Reform] “FCC Has A New Robocall Ruling, And It Doesn’t Look Pretty for Business” [Henry Pietrkowski]
- Bad US idea reaches Canada well after peaking here: “Tobacco companies ordered to pay $15B in damages” [CBC]
At least in New York and California, if not every state. [John Steele, Legal Ethics Forum] Curiously uncontroversial, no? In 2012 we noted: “Among the trip-ups are that lawyers are sworn by oath to uphold the laws of the land; that federal law bars the granting of state professional licenses to illegals; that federal law makes it unlawful to offer employment to them; and that clients might find themselves in a pickle were their attorneys whisked away on zero notice to face deporation.” More: Scott Greenfield.