procedure – Overlawyered

Multi-district litigation: time for real rules

Walter Olson — Tue, 30 Apr 2019 04:05:46 +0000

A milestone was reached in March: over half of all cases “currently open in the federal judicial system now are contained in multi-district litigation.” [James Beck, Lexology] And that poses a problem if you believe in uniform, stable, and knowable procedures for handling cases:

As we’ve discussed many times before, the ordinary Federal Rules of Civil Procedure apply sporadically, if at all in MDLs. Likewise, some MDL judges apply Daubert rigorously, and others do not. Some MDLs are disposed of on the basis of federal preemption, while other MDL judges seem never to have granted a preemption motion in their careers. Appellate opportunities are few and far between, and almost always arise when plaintiffs lose, since defense losses don’t generate immediately appealable orders. The current MDL system makes the federal judicial system resemble the baroque Holy Roman Empire – an agglomeration of hundreds of feudal principalities, feigning allegiance to one set of laws, but in reality operating more or less independently – with some of those margraves and palatine counts wielding rather despotic power.

Like some wasps do to caterpillars, agglomerations of “plaintiff steering committees,” assisted by shadowy funded media solicitors, have parasitized the federal judicial system, converting it into a system not for justice, but for converting mass solicitations into mass settlements without the merits of 99+% of the filed “inventory” ever being examined.

And because of the rise of the defendant technique known as “pre-service removal,” Beck says, the share of cases in MDLs is likely to rise further.

Tags: Daubert, preemption, procedure

Multi-district litigation: time for real rules is a post from Overlawyered - Chronicling the high cost of our legal system

Liability roundup

Walter Olson — Fri, 17 Feb 2017 11:02:57 +0000

In the just-out eighth edition of the Cato Handbook for Policymakers, I helped revise and add to the chapter on tort and class action reform, joining Robert A. Levy and Mark Moller as authors;
Baron & Budd “Preparing For Your Deposition” asbestos memo still being fought over in court 20 years later [David Yates/Southeast Texas Record, my piece back when]
“Wanted in Kentucky, seemingly immune to arrest in Ohio” [James McNair, CityBeat on Stan Chesley]
Congress needs to rewrite the law on multi-district litigation or else the lawyerly gamesmanship will continue [James Beck, Drug and Device Law]
While generally critical of class action reform proposals in Congress, Alison Frankel does find one idea in it — accounting for class action payouts — to be intriguing [Reuters]
“New Jersey, Allstate sue chiropractors convicted of running ‘personal injury mill'” [Susan K. Livio, NJ.com]

Tags: class actions, procedure, Stan Chesley, WO writings

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

February 15 roundup

Walter Olson — Wed, 15 Feb 2017 11:02:39 +0000

Federal judge Wolf mulls appointing special master to investigate possible fee fraud in class action against State Street Bank [Boston Globe]
Two lawyers start fighting on an airplane over a shared armrest, and it makes the papers [New York Post]
Philly proposes mandatory sensitivity training for owners, employees of 11 gay bars [Philadelphia Commission on Human Relations report via Heat Street]
Finally, some constraints on Mississippi Attorney General and longtime Overlawyered favorite Jim Hood? [Mississippi Business]
One view of emergent controversy: “The Case Against National Injunctions, No Matter Who Is President” [Samuel Bray, LawFare, more from same author]
“Court To Review Target’s $10M Customer Data Breach Settlement” [Consumerist; Minneapolis Star-Tribune; Ted Frank’s Center for Class Action Fairness is objecting]
In or near Kansas? I’m speaking next week in Topeka at a Washburn University School of Law conference on the future of employment law [Feb. 23, details]

Tags: aviation, class action settlements, Jim Hood, Kansas, Philadelphia, procedure, restaurants, sexual orientation

February 15 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“‘Good ol’ boys club’ in multidistrict litigation: Same plaintiffs firms repeatedly lead suits”

Walter Olson — Wed, 30 Sep 2015 10:48:04 +0000

A familiar roster of plaintiff’s firms keep grabbing profitable lead positions in mass litigations that begin with multiple filings in different states. Judges and critics suspect that committees are often overstaffed to set up a likelihood of higher fees, and that cozy mutual backscratching helps allocate lucrative positions to repeat players in the club. [Amanda Bronstad, National Law Journal]

Tags: attorneys' fees, procedure

“‘Good ol’ boys club’ in multidistrict litigation: Same plaintiffs firms repeatedly lead suits” is a post from Overlawyered - Chronicling the high cost of our legal system

“What happens if you take the Fifth in a civil case?”

Walter Olson — Wed, 16 Sep 2015 04:15:00 +0000

Eugene Volokh has an analysis of an issue that comes up fairly often, and adds an important sidebar as to California law, which departs from the general rule by prohibiting the drawing of an adverse inference against the party that declines to testify.

Tags: California, constitutional law, lawyering vs. privacy, procedure

“What happens if you take the Fifth in a civil case?” is a post from Overlawyered - Chronicling the high cost of our legal system

Suit over outside-Mississippi adultery turns on awareness of boyfriend’s domicile

Walter Olson — Mon, 29 Jun 2015 04:15:57 +0000

Mississippi, along with North Carolina, has preserved the tort of “alienation of affections,” which enables lawsuits by married persons against a spouse’s lover for undermining a marriage. Exercising long-arm jurisdiction, it even allows suits against alleged paramours who have never set foot in Mississippi but (it is claimed) engaged in trysts with a married Mississippian outside the state. In a recent case, however, the Mississippi Supreme Court ruled 7-2 that a woman sued under the law could move to dismiss the case for lack of personal jurisdiction on the grounds that she had no idea her boyfriend resided in Mississippi over the course of a relationship conducted in other states. [Nordness v. Faucheaux via Volokh]

Tags: alienation of affection, Mississippi, procedure

Suit over outside-Mississippi adultery turns on awareness of boyfriend’s domicile is a post from Overlawyered - Chronicling the high cost of our legal system

June 10 roundup

Walter Olson — Wed, 10 Jun 2015 04:05:25 +0000

Alan Dershowitz, Harvard lawprof, suing TD Garden over slip and fall in bathroom three years back [Boston Globe]
“Harsh Sanction Proposed For Attorney Who Blogged About Probate Case” [Mike Frisch, Legal Profession Blog]
Maryland veto sets back reform: “Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive” [Adam Bates, Cato]
“‘Vape’ bans have little to do with public health” [Jacob Grier, Oregonian in February]
Academics prosper through expert witness work, part one zillion [Ira Stoll]
Sounds good: call for civil procedure reform includes fact-based pleading, strict discovery limits, case-specific rules, and more [Jordy Singer, Prawfs, on recommendations from American College of Trial Lawyers Task Force on Discovery and Civil Justice and Institute for the Advancement of the American Legal System]
Draft plan would arm FTC with vast power over data practices [James C. Cooper, Morning Consult, via @geoffmanne]

Tags: bloggers and the law, discovery, expert witnesses, Federal Trade Commission, forfeiture, Harvard, Maryland, pleading, privacy, procedure, tobacco

June 10 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court and constitutional law roundup

Walter Olson — Fri, 01 May 2015 04:05:19 +0000

Polls, not chancy politics of Justice-watching, represent surest hope for gay-marriage supporters [me in New York Daily News]
“A reasonably good week for the Fourth Amendment” [Jonathan Blanks, Cato on Rodriguez v. U.S. on prolonged traffic stops, 6-3 SCOTUS, and from the D.C. Circuit, Janice Rogers Brown’s concurrence in Gross v. U.S., on rationale for D.C.’s gun sweeps]
David Bernstein, who has done so much to enrich our understanding of Lochner v. New York, hears from Mr. Lochner’s great-granddaughter [Volokh Conspiracy]
Armstrong v. Exceptional Child Center: Supremacy Clause doesn’t provide implied private right of action [William Baude, SCOTUSBlog; James Beck (implication for product liability); from the losing side, Steve Vladeck/Prawfs]
Please, SCOTUS, kill off for good the awful Calder v. Jones “effects” test for personal jurisdiction [David Post] “We’re Not in Kansas: No General Jurisdiction After Bauman” [Steven Boranian, Drug and Device Law]
Noah Feldman, for one, isn’t buying Toobin’s latest sanctimonious swipe at Scalia [Bloomberg View]
Usage of commas in famous first line of Pride and Prejudice can shed light on how to read Constitutional guarantee of right to keep and bear arms [Eugene Volokh]

Tags: constitutional law, Fourth Amendment, guns, preemption, procedure, same-sex marriage, Supreme Court

Supreme Court and constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Proposals to change class action procedure are out…

Walter Olson — Wed, 29 Apr 2015 14:50:17 +0000

…”and they’re not good” reports Andrew Trask, who has been writing for months about some of the issues at stake before the Rule 23 advisory committee (settlements, merits inquiry, etc.) More: Paul Karlsgodt, James Beck on ascertainability.

Tags: class action settlements, class actions, cy pres, procedure

Proposals to change class action procedure are out… is a post from Overlawyered - Chronicling the high cost of our legal system

“Report Urges Britain To Take Small-Claims Cases Online”

Walter Olson — Mon, 02 Mar 2015 13:38:55 +0000

“The proposal takes eBay’s dispute resolution system as a kind of inspiration.” Would the idea work here? [NPR]

Tags: eBay, procedure, United Kingdom

“Report Urges Britain To Take Small-Claims Cases Online” is a post from Overlawyered - Chronicling the high cost of our legal system