Meritless lawsuits should not be welcome in our legal system: a woman who says she is descended from a slave photographed on the 1850 orders of scientist Louis Agassiz is suing Harvard for recovery of the early photo and for unspecified damages. [Joey Garrison, USA Today]
Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to reverse it.
Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite?
Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business.
Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA).
The Senate might want to quiz future liberal nominees – yes, there will be such – on whether they more favor the Ginsburg or the Sotomayor approach to these issues.
[cross-posted from Cato at Liberty]
- Why Baltimore’s Civilian Review Board hasn’t done much to fix its police crisis [J.F. Meils, Capitol News Service/Maryland Reporter]
- Three prosecutors with high national profiles who’ve put up dogged, maybe too dogged, resistance to actual-innocence claims [Lara Bazelon, Slate]
- Carceral liberalism: Advocates press to do away with statute of limitations for sex assault prosecutions [Scott Greenfield]
- “No charges have been filed against the cops. All of the officers involved are still employed by the department.” [Christina Carrega, New York Daily News on nearly $1 million award to Oliver Wiggins, unsuccessfully framed for DWI after police car ran stop sign and crashed into his vehicle]
- Founding-era views of duty-to-retreat vs. stand-your-ground might be more complicated than you think [Eugene Volokh]
- The trial penalty “is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution” [Clark Neily, Cato]
- What’s actually in the new House-passed bill revamping Dodd-Frank? And what’s likely to happen to it in the Senate? [David Henderson, EconLib; Benjamin Parker, Weekly Standard; Stephen Bainbridge]
- Supreme Court, 9-0, rebuffs SEC: yes, disgorgement is a penalty and statute of limitations applies to it [Theresa Gabaldon/SCOTUSBlog (statutes of limitations “vital to the welfare of society,” per Sotomayor), Bainbridge and more, Thaya Brook Knight and Ilya Shapiro/Cato]
- Allan Meltzer, R.I.P. [James Dorn, Gerald O’Driscoll, Ian Vásquez, Cato]
- “The Foreign Corrupt Practices Act and the New Trump Administration: Your Top Ten Questions Answered” [Foley & Lardner]
- June 15, mark your calendar: “Financial Crisis and Reform: Have We Done Enough to Fix the Government-Sponsored Entities?” with John Allison, Susan Wharton Gates, R. Christopher Whalen, Landon Parsons, and Ike Brannon, Cato event streaming live or in person in Washington, D.C.;
- Why, yes: “Is It Time to Repeal FATCA?” [Veronique de Rugy, more]
- Per more than 30 state attorneys general, the less information lenders can draw on in credit reports, the better the credit system will work [Annamaria Andriotis, WSJ; exclusion of many tax liens and civil judgments under pressure from authorities]
- Federalist Society podcasts: Ted Frank on Walgreen shareholder litigation, Thaya Brook Knight on “predatory lending” cases before Supreme Court [Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami; can cities sue under Fair Housing Act as indirectly injured?];
- The eternal recycling of bad old ideas: efforts to bring back public ownership of banks persist [East Bay Express, Oakland; earlier]
- Statutes of limitations protect us from spending life anxious about distant past coming back to haunt us over half-forgotten slights [Ilya Shapiro, Thaya Brook Knight, and David McDonald on Kokesh v. SEC “equitable disgorgement” end-run around 5-year statute]
- Obligatory employee vacation-taking as an anti-fraud measure [Dan Lewis, Now I Know]
- Obama’s hosing of secured creditors in Chrysler bankruptcy raised borrowing costs of other unionized firms [Bradley Blaylock, Alexander Edwards, and Jared Stanfield, SSRN]
- “Here’s how lawmakers want to fix our kidney shortage” [Robert Gebelhoff, ideas of Sally Satel and others; Alex Tabarrok on Rep. Matt Cartwright (D-Pa.)’s proposed Organ Donor Clarification Act]
- AMA: Lawyer ads stirring up pharmaceutical litigation are scaring viewers into going off needed medications [Jessica Karmasek, Forbes]
- How does Cuba score such good infant health data? Fudging statistics, jailing truth-tellers helps [video, Free To Choose TV, “Dead Wrong” with Johan Norberg]
- Per Swedish study, lottery winners do not get healthier after their windfalls. Some implications about health care and inequality? [Alex Tabarrok]
- Really, AMA: declaring shootings a public health crisis at best a political stunt [Trevor Burrus]
- Is ten years too long, Your Honor? “New York Lawmakers Push to Extend Deadline for Med-Mal Suits” [Insurance Journal]
- 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]
An extraordinary bill in the California legislature, promoted as making it easier to sue fossil fuel companies over their involvements in public debate, would lift the four-year statute of limitations of the state’s already extremely liberal Unfair Competition Law, otherwise known as s. 17200 — and retrospectively, so as to revive decades’ worth of time-lapsed claims “with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced anthropogenic-induced climate change.” Despite a 2004 round of voter-sponsored reform which curbed some of its worst applications, s. 17200 still enables what a California court called “legal shakedown” operations in which “ridiculously minor” violations serve as the predicate for automatic entitlement to damages, attorneys’ fees, and other relief.
Combined with the plans laid by California Attorney General Kamala Harris — part of the alliance of AGs that has sought to investigate not only oil, gas, and coal companies, but private advocacy groups and university scientists who have played a role in what is characterized as “climate denial” — the bill would begin laying the legal groundwork for an astonishingly broad campaign of inquisition and, potentially, expropriation. The bill was approved by a subcommittee and was further amended May 10 to provide that climate science-related claims of any age would begin a four-year reviver period as of next January. [Northern California Record; the left-leaning Union of Concerned Scientists has a piece supporting the bill]
Section 2(b) of the bill declares it the California legislature’s policy to promote “redress for unfair competition practices committed by entities that have deceived, confused, or misled the public on the risks of climate change or financially supported activities that have deceived, confused, or misled the public on those risks” [emphasis added] — a very clear signal that the target is public issue advocacy, and not merely (say) advertising that is directed at consumers in their capacity as buyers of gasoline at the pump. Last month, a federal court slapped down, as an unconstitutional burden on First Amendment rights, California Attorney General Kamala Harris’s demand for the donor lists of nonprofits that carry on operations in California.
- “Professional Responsibility: Prosecutors Run Amok?” video of panel from Federalist Society Lawyers’ Convention, with Judge Alex Kozinski, John Malcolm, George Terwilliger III, Darpana Sheth, moderated by Justice Keith Blackwell of the Supreme Court of Georgia;
- Criminal punishment with no showing of mens rea (guilty state of mind) is just fine with a certain faction of progressives and that’s revealing [Scott Greenfield, earlier and generally, new Right on Crime website on criminal intent standards]
- “Bill Cosby And Eliminating Statutes Of Limitation: A Truly Terrible Idea” [Joe Patrice, Above the Law]
- An “emerging narrative in law enforcement circles: Cops aren’t shooting people nearly enough” [Radley Balko]
- Police officer is struck and killed by passing car while attending to scene following alleged drunk driving crash. Can driver charged with original crash also be charged with manslaughter and homicide arising from officer’s death? [Ken Womble, Fault Lines on Long Island case of People v. James Ryan]
- Labeling sex offenders’ passports? Really, what next? [Lenore Skenazy/New York Post, David Post/Volokh] “Why America Puts 9-Year-Old Kids on the Sex Offender Registry for Life” [same, Reason] “What new mean thing can we do to sex offenders to show how serious we are?” [Radley Balko]
- “If you ignore levels, and just look at rates of change, crime rates in Canada track those in the United States to an astonishing degree. How can that be?” [Tyler Cowen on forthcoming Barry Latzer book, The Rise and Fall of Violent Crime in America]