66-year-old Daniel Ernst was paralyzed from the chest down when drunk-driving Timothy Beauregard hit him with his Oldsmobile while making a left turn. “Beauregard admitted to a criminal charge of drunken driving, seriously bodily injury resulting, the next year and received a 10-year suspended sentence with probation from Superior Court Judge Edwin J. Gale.” Beauregard wasn’t visibly drunk when Chen’s Restaurant served him a mai tai and a beer, but a jury found the restaurant 25% responsible for the accident, which puts Chen’s entirely on the $15.2 million damages hook under Rhode Island law, a detail the press account omits. (This assumes, of course, that one who drinks mai tais in Chen’s Restaurant in Westerly, Rhode Island, is not capable of paying a 75% share of a $15.2 million judgment.) (Katie Mulvaney, “Veteran hit by drunken driver nets $15.2 million”, Providence Journal, Feb. 14). Rhode Islanders Against Lawsuit Abuse will be seeking to reform the state’s joint and several liability laws this legislative session.
Posts Tagged ‘Rhode Island’
I’m interviewed…
…at the blog of speechwriter and ghostwriter Jane Genova, who for the past two months has been liveblogging the Providence retrial of Rhode Island’s lawsuit against former manufacturers of lead paint. Among topics we touch on in the interview: the role of media hype and TV cameras in big trials today; problems with jury selection, and the treatment of jurors generally; two reasons I hope Rhode Island loses its lead paint case; and the case for patience on liability reform. (Jan. 25).
Blawg Review #33
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.
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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.
Possibly the week’s strangest headline, discussed by J-Walk: “1,100 Lawyers Leave Saddam Defense Team”. 1,100?
And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).
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Splendors and miseries of legal practice
Find out:
* 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)
* * *
Controversies galore
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.”
* * *
Student division
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.
* * *
In conclusion
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.
P.S. As Bob Ambrogi notes, you can now check out — and tag your own location in — Blawg Review’s reader map feature.
R.I. paint case: defense moves for mistrial
According to the Providence Journal: “Lawyers for defendant lead-paint companies called for a mistrial [Tuesday], after the state asked a witness if any of the companies had ever paid any money to help clean up lead paints in Rhode Island. The question had been put to former state Health Director Patricia Nolan. It immediately drew objections from the defense, and she was not permitted to answer.” (Peter B. Lord, “No decision yet on request for lead-paint mistrial”, Nov. 15) (sub-only). Jane Genova continues to blog the trial with posts on Nolan’s earlier testimony here, here and here. See Nov. 1. Update Wed. afternoon: no mistrial, judge orders curative instructions to jury; see Genova blog.
Rhode Island lead paint retrial
The state’s public nuisance action against companies that long ago sold lead paint for interior use, the only such lawsuit filed by a state government, ended in a mistrial three years ago: see Oct. 30-31, 2002. Now it’s come to retrial in a Providence courtroom, with huge potential stakes. (Eric Tucker, “Landmark lawsuit against lead paint industry to return to court”, AP/Boston Globe, Oct. 16; “New lead paint trial set in Rhode Island”, UPI/Science Daily, Oct. 17.) Speechwriter/blogger Jane Genova is blogging it live from the scene, with first posts here and here. DuPont paid this summer to be let out of the case: see Jul. 2. On the politics behind the suit, see Jun. 7 and Jun. 8-10, 2001.
Update: duPont, R.I. settle paint case
Although the giant chemical company refuses to characterize it as a settlement, duPont has agreed to donate $10 million or more toward education, research, and the cost of lead remediation for 600 homes in exchange for being dropped from Rhode Island’s action. Other defendants that remain in the case are Sherwin Williams Co., NL Industries Inc., Atlantic Richfield Co., Millennium Holdings LLC, American Cyanamid Co. and ConAgra Inc. A lawsuit filed by the state’s former attorney general against the manufacturers ended in a hung jury in Providence in 2002; a new trial is set for September. The product has not been sold for interior use in this country in approximately a half century. (“DuPont settles for millions in Rhode Island suit on lead paint”, AP/USA Today, Jun. 30). For our coverage of the case and the controversy generally, see this set of links. Courts have dismissed a number of other lawsuits seeking to impose financial responsibility for lead-paint-related woes on paint and pigment makers, including suits filed by the cities of Chicago (see Oct. 13, 2003) and Milwaukee (see Aug. 3, 2003). Update: Point of Law, Sept. 13, 2006 (controversy over donations).
Tobacco-ban roundup
“California could be on its way to becoming the first U.S. state to outlaw smoking in cars or trucks that have children inside.” The bill, which would make lawbreakers of parents transporting their own children, has been introduced by Assemblyman Marco Firebaugh and is being supported by the bossyboots American Lung Association, a good reason to scratch that organization off one’s charitable donation list (“Calif. Bill Would Ban Smoking in Car with Kids”, Yahoo/Reuters, Apr. 28)(see Sept. 24). (Update May 29: bill narrowly defeated in California Assembly.) Irish Minister for Health and Children Miche?l Martin, who pushed through a recent ban on smoking in pubs and most other public places in the Emerald Isle, has announced that he is “very tentatively” mulling a fat tax, according to a profile by Andrew Stuttaford, who calls Martin a number of rude names including “nosey, hectoring clown” (“Goodbye to All That”, National Review Online, Apr. 27)(via Radley Balko). A bill being discussed in Rhode Island’s legislature and backed by state Attorney General Patrick Lynch, primarily aimed at increasing the penalties for school truancy, would also authorize courts to revoke or suspend the driver’s license of high schoolers determined to be “wayward”, a category that includes students found in possession of cigarettes. (Wendy Fontaine, “Truancy plan gets mixed review”, Newport Daily News, Apr. 30). And Jacob Sullum catches the federal government’s National Institute of Aging dispensing flagrant untruths about the relative hazards of smokeless tobacco (“Lies and the Health Nannies Who Tell Them”, Reason “Hit and Run”, Mar. 24).
Specialized business courts
Through most of the 20th Century the preferred model in American court organization was that of the generalist court in which a given corps of judges applied a standard set of procedures to handle a wide, not to say bewildering, variety of cases. In the past couple of decades, however, there has been renewed interest in the idea of establishing specialized courts to handle some types of recurring or distinctive cases: intellectual property, complex mass torts, low-level drug offenses, and so forth. “More than a dozen states, including Massachusetts, Rhode Island and Connecticut, have introduced specialization into their courts to deal with business disputes. Some programs are recent and some, like those in New York and Delaware, have been operating for decades.” Removing complex commercial litigation to its own docket can assist in the development of greater judicial expertise, useful procedural innovation and more consistent law; it can also help unclog the schedules of courts that handle more conventional cases, according to its advocates. The success of specialized business courts is now encouraging other states to consider adopting the model, as is now the subject of discussion in Maine. (Andrew Grainger (New England Legal Foundation), “Business specialization in court system a good idea”, Portland Press-Herald, Oct. 31)(& letter to the editor, Dec. 6).
Update: GM settles Malibu case
General Motors has settled on undisclosed terms the suit in which a Los Angeles jury awarded $4.9 billion, later knocked down to a mere $1.2 billion, to six people injured when their Chevy Malibu was rear-ended by a drunk driver; the plaintiff’s lawyers had charged the Malibu with defective design, although federal statistics show it to have a safety record well above average (see Dec. 16, 1999 and links from there). And contrary to reports (including ours) that trial lawyers were managing to kill off car-lease reform in Rhode Island, major automakers said they would remain in the Ocean State leasing market after Gov. Don Carcieri on Jul. 7 signed legislation which for one year caps at $300,000 the liability of car lessors for accidents that their lessees get into (see Jul. 14). The change leaves New York as the only state with unlimited vicarious liability for lessors. (“Business: National Briefs”, Detroit News, Jul. 25).
Car-lease liability crisis continues in N.Y., R.I.
Following heavy lobbying by trial lawyers, the lower houses of the New York and Rhode Island legislatures have refused to act to limit auto leasing companies’ currently unlimited “vicarious liability” for their lessees’ crashes, thus apparently ensuring that Ford, Honda and other major automakers will continue fleeing from the two states. We covered the controversy in a Jun. 9 op-ed as well as in earlier posts. New coverage: Ed Garsten, “Firms halt N.Y. vehicle leases”, Detroit News, Jul. 6; Matt Smith, “Auto leasing companies fleeing state”, Ottaway/Middletown Times-Herald Record, Jul. 2; Jeremy Boyer, “Dealers steer way past loss of leasing”, Albany Times-Union, Jul. 3; “Bill Limiting Accident Liability Appears Doomed”, TurnTo10.com (WJAR-TV Providence), Jun. 30 (R.I.). Update Aug. 3: Reform not doomed in R.I. after all, major automakers agree to stay after governor signs one-year fix limiting liability to $300K, leaving N.Y. as only state with unlimited liability.