- Update to Maine Board of Tourism intimidate-a-blogger-by-litigation lawsuit: case dismissed, government official fired. [Maine Web Report; AP/Boston Globe]
- Senter blocks State Farm Katrina class settlement. [Point of Law; Rossmiller; Woullard v. State Farm]
- Senator Schumer (D-NY) calls for liability reform to save New York economy; Governor Spitzer shows up at press conference. [Point of Law]
- Canadian $10M settlement for Syrian torture: that’s what we get for trusting Syria. [Frum]
- Remember that case in Snohomish where the celebratory cannon blew up at the football game? And the plaintiffs’ lawyer complained that the injured student was getting threatened by the townspeople over his lawsuit? Turns out the student (allegedly) told a youth minister that he deliberately overloaded the cannon for “a bigger bang,” and now is (allegedly) harassing the minister. And the original threats had nothing to do with football spirit. Everett Herald]
- Regulations drive restaurateurs from New York to friendlier (if armpittier) climes. [New York via Taylor]
- Suit: suicide fault of auto dealership sponsoring “Hands on a Hardbody” contest. [AP/ Austin American-Statesman]
- Nanny statism meets failure to contemplate ex ante vs. ex post thinking in UK: new Manchester police policy is to refuse to chase helmetless bicycle thieves. [Telegraph (h/t F.R.)](earlier)
- Private eyes and lawyers among the transactions costs of rent regulation in New York. [NYT]
- The war on science doesn’t just come from the right. [Adler @ Volokh; Sandefur @ Positive Liberty]
- Mrs. Alito is very cool [WaPo via Bashman]
“It was never about the money for me, this litigation,” said Dickie Scruggs, who stands to collect between $26 million and $46 million from a settlement accomplished by the use of the state attorney general, Jim Hood, to extort State Farm with the threat of criminal proceedings for daring to enforce their flood exclusion clauses in their contracts. [Lattman] Many many posts on the subject at Point of Law.
- Update: $8M Greyhound verdict (Aug. 18, 2005) affirmed. [Serles v. Greyhound (6th Cir. 2007)] (Update to update: also Nordberg.)
- Hugo Chavez-wannabe Mississippi AG Jim Hood: $2.5M State Farm verdict is “drop in the bucket.” See also POL Jan. 16 and links therein. [Biloxi Sun-Herald]
- I’ve been saying this for a while: Enron litigation a search for deep pocketed-bystanders, rather than actual wrongdoers. [Houston Chronicle]
- Lawless LA: Deputies barred from foot chases now, so criminals know to run away. Lawsuit victim:
“I’m less proactive because I’m worried the next time I do something — who’s going to second-guess that?” [LA Times]
- Lawyer tries to sabotage clients’ immigration proceedings over $7000 fee dispute, gets slap on wrist. [St. Louis Post-Dispatch]
- Forbidden words [Bader @ CEI Open Market]
- How bad US ethanol law hurts poor Mexicans [Cafe Hayek]
- Case for abolishing FCC [Slate (!)]
The WSJ’s Law Blog reported recently on the joy being experienced by lawyers in the firms representing plaintiffs in the Exxon Valdez case, their spirits dampened only mildly by the Ninth Circuit’s recent reduction in the punitive award from $4.5 billion to $2.5 billion. Those firms include traditional plaintiffs’ firms such as Milberg Weiss, but also firms normally seen representing defendants, such as Davis Wright Tremaine and Faegre & Benson.
How do Faegre & Benson lawyers feel about the prospect of sharing in perhaps one-third of $2.5 billion? “It’s great,” said partner Brian O’Neill to the WSJ. Any grief due to the $2 billion reduction is probably tempered by the amazing $2 billion in post-judgment interest that will be tacked onto the final bill. (Actually, maybe that’s not amazing in itself, since the case has been pending since 1989. Still, the interest “is not chicken s___,” as O’Neill put it.) O’Neill said of the titanic fee that is coming their way, “This is one of the few chances a bill-by-the-hour guy and a bill-by-the-hour firm has to get ahead.” I for one have been worried for some time about how the partners in these little “bill-by-the-hour firms” were managing to get by, so it’s good to know that for once they may have been able to afford that second can of beans for the family at Christmas dinner.
Damages in the case were estimated at about $500 million. The Ninth Circuit basically held that the evidence did not warrant a punitive award that went to the limit of what is permitted under State Farm v. Campbell, a 9:1 or “single-digit” ratio, and reduced the ratio to 5:1.
Insurance Journal reports that the Florida Supreme Court has rejected an attempt by seasonal residents to apply more favorable Florida rules to their claims under non-Florida auto insurance policies:
‘Snowbirds” and other part-time Florida residents who insure their cars back home cannot make claims under Florida laws that may be more favorable to them than those in their own states, the state Supreme Court has ruled.
* * *
‘Although Florida welcomes its many visitors, whether for short or extended stays, we cannot rewrite their out-of-state contracts,’ Justice Raoul Cantero wrote for the high court.
Interested readers can view the full Opinion [PDF] in State Farm Mutual Ins. Co. v. Roach, Case No. SC04-1313 (Dec. 14, 2006).
- Pro se suit against baking soda manufacturer for failing to warn that baking crack is illegal. [Lat]
- Plaintiffs’ expert: when you asked for the documents I reviewed, I thought you meant the documents I viewed twice. Judge doesn’t buy it. [Lattman; Des Moines Register]
- Judges stymie popular will in California death penalty cases. [The Recorder; Will @ WaPo]
- And coincidental update of breaking news: California federal judge strikes down all lethal injections in state. [Bashman roundup]
- Via Hans Bader, but not on-line or covered in the mainstream press: DC City Council considering amendment to Human Rights Act barring employment discrimination against ex-convicts. Ex-convict Marion Barry is the sponsor; business community strangely silent. [Legal Times ($)]
- Virginia plaintiff’s attempt at milk regulation through litigation blocked. Lawyers shamelessly promise to forum-shop. [WaPo]
- UK insult to injury: adulterer has right to prevent cuckolded husband from writing about affair. [Bashman roundup]
- Florida Supreme Court stumbles onto a correct answer: no litigation tourism for “snowbirds.” [AP; State Farm v. Roach]
- Has the Federal Circuit emasculated the “obviousness” rule? An argument that it has. [The American]
- Wonder how those “bad toy” lists get generated? [Point of Law]
- More on the “Coercive Abortion Bills” in Michigan, which passed the House, and threaten to criminalize men who end relationships with pregnant women. [Fox News]
- Lawsuit: please bar publication of yearbook unless it includes photo of my son wearing chain-mail and a sword. [Krauss @ POL]
- Should we be afraid of hedge funds? [Marginal Revolution]
- Peter Huber on the emphasis of glue over learning in school. [Forbes]
- Judge Posner to “furry”: “Your tail is great.” [NWN blog; Eminent Domain blog via Bashman]
- A commenter here suggested that certain little-read websites are attacking us just to generate traffic. I’m beginning to believe it what with three different writers posting in the last 36 hours attacking me and sometimes Walter, with insults and arguments in varying combinations of baseless, sloppy, and thoughtless. So, while I’m happy to engage thoughtful analysis, no link or response here, since doing so just seems to create perverse incentives, not to mention takes away time from meaningful writing.
- As contrast: Peter Nordberg critiques posts by me and Walter on the rollover suit and cigarette polonium, as well as interesting posts by Bill Childs and Derek Lowe on the torcetrapib withdrawal. [Blog 702]
As a matter of federal tax policy, I oppose permitting deductions for state taxes. I would rather see lower federal rates across the board, and let the full impact of state taxes rest on the residents of the states that have high taxes, rather than have the entire nation subsidize a quarter or more of the tremendous tax rates paid by New Yorkers and Californians, thus reducing the pain of higher state taxes and allowing local politicians to escape the political consequences of profligate spending (not to mention preventing tax-cutting state politicians from realizing the full benefit of their policy).
But come April, I promise you that on my 1040 Schedule A, I’m going to deduct the thousands of dollars of state income tax I paid and collect the resulting refund. Does this make me a hypocrite? Of course not: it just means that I’m not an idiot.
I’m not arguing that people shouldn’t take deductions that are available to them; I’m arguing that the deduction shouldn’t exist. Self-flagellation on my taxes doesn’t make me any purer or my policy arguments any more correct, it just means that I suffer all the costs of a tax policy I oppose without realizing any of the benefits.
Cyrus Dugger, however, makes precisely this mistake when he criticizes a reformer for being a plaintiff in a lawsuit as a “hypocrite.” (Or, more accurately, thoughtlessly parrots the West Virginia Trial Lawyers Association’s accusation of hypocrisy.) That one argues that the law should be changed for the good of society doesn’t at all require that one refuse to take advantage of a bad law. There’s no requirement that reformers who find themselves in the situation of being plaintiffs abstain from receiving legally available non-economic damages. Reformers aren’t arguing that individuals are bad people for seeking non-economic damages, but, rather, the legal system’s award of unlimited non-economic damages is bad public policy. (For that matter, it’s far from clear that Stephen Roberts is even seeking non-economic damages above and beyond the cap he proposes—I have seen no one make that accusation.)
Similarly, Senator Trent Lott, an occasional reform supporter, sued his insurance company over Hurricane Katrina damage, seeking to rewrite the terms of the insurance contract that he agreed to, and using his power as a Senator to threaten the industry as a whole because State Farm refused to give him special treatment. However, the only thing Dugger can think to find wrong with Lott is “hypocrisy.” It strikes me that hypocrisy is the least of Lott’s sins compared to bringing an illegitimate lawsuit and abusing his authority as a Senator to punish the nation’s economy in order to seek personal gain for himself and his trial-attorney brother-in-law.
- My Oct. 28 WSJ op-ed is now on-line for free. [AEI]
- Your tax dollars at work: $24.2 million for two 17-year-old trespassers burned by high-voltage electrical wires six feet above the top of an Amtrak train that they had climbed. The one who received “only” $6.8 million had injuries minor enough that he’s serving in the Army now. [Lancaster Online via Northridge Buzz Blog]
- Refuting trial lawyers’ claims of repealing McCarran-Ferguson as a panacea for insurance rates. [Point of Law]
- “At what point are these accommodations exacerbating learning disabilities, and creating life disabiltities?” [Ivey; Wall Street Journal]
- $1.5 million verdict: plaintiff blamed her bipolar disorder on a nurse’s error that caused a lung to collapse. [Columbus Ledger-Enquirer; see also Kevin MD commenters]
- Trial lawyers insult West Virginia businessmen for daring to challenge their hegemony. [Institute for Legal Reform]
- Bank of America overcredits account, takes money back, gets hit with California state class action verdict that could cost billions. [Point of Law]
- Latest Duke lacrosse case outrage: prosecutor’s office says it hasn’t even interviewed alleged victim. [Volokh; Outside the Beltway; Corner]
- In anticipation of Philip Morris v. Williams, hear the great Sheila Birnbaum argue State Farm v. Campbell. [Oyez MP3 via Mass Torts Prof]
- Kristol: the U.S. Senate still matters because of judicial nominations. [Weekly Standard]
- Election challenge to Washington state incumbent Supreme Court justice who is supported by trial lawyers. [Seattle Post-Intelligencer via Bashman]
- Don’t tell AG Lockyer, or he’ll want to sue the fat for global warming. [NY Times via Kevin MD]
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.
* * *
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.
And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).
* * *
Splendors and miseries of legal practice
* 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)
* * *
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.”
* * *
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.
* * *
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.
By a unanimous vote, the Illinois Supreme Court has decertified and thus nullified a $1.2 billion class action verdict, much criticized here (Oct. 8, 1999) and in other places, which held that State Farm’s practice of specifying generic aftermarket parts after auto crashes had defrauded consumers. Among the many problems with the verdict were that the court had lumped together consumers holding a wide range of insurance policies applying different language to the handling of the aftermarket parts issue, that it had ignored wide variations among consumers in what if any harm they had suffered from the practice, and that it had applied Illinois law to policies issued mostly to consumers in states other than Illinois, some of whose regulators had specifically contemplated and approved (or even required) the use of generic parts after crashes. Martin Grace and Ted Frank comment at PoL, and discussions elsewhere include those of (again) Martin Grace and Larry Ribstein. More: Amy Joyce, “State Farm Wins Reversal of $1 Billion Suit”, Washington Post, Aug. 19.