Posts Tagged ‘The Litigation Explosion’

Fear of Thiel and the case for litigation reform

“Angry about Peter Thiel’s pursuit of Gawker? Tort reform is the best solution.” Sonny Bunch of the Free Beacon is kind enough to quote me at length (and quote my debut book, The Litigation Explosion, at length too) in this Washington Post opinion piece.

…members of the media are finally starting to realize something that conservatives have been arguing for quite some time with regard to our litigious culture, namely that the process itself is the punishment….

One of the causes that Olson argued most strenuously for in his book [The Litigation Explosion] was a more aggressive regime of fee shifting — that is, crafting and enforcing “loser-pays” laws common in other countries. Given that he literally wrote the book on the topic, I emailed him and asked how news outlets could work to avoid ruin at the hands of the vengeful wealthy….

If you wonder how loser-pays might have helped Gawker even though Hulk Hogan’s case was a winner, you need to read the link. More: Andrew Kloster and Jessica Higa, Daily Signal.

Gordon Crovitz on “Peter Thiel’s Legal Smackdown”

The discovery that systematic lawsuit campaigns can be aimed at the press, and not just against every other institution, might be reason to rethink litigation-as-weapon [Gordon Crovitz, Wall Street Journal]:

Walter Olson, author of “The Litigation Explosion” (1991), explained in his Overlawyered.com blog that Mr. Thiel’s approach was predictable after maintenance “metamorphosed around the 1960s into what we now know as the public interest litigation model: foundation or wealthy individual A pays B to sue C. Since litigation during this period was being re-conceived as something socially productive and beneficial, what could be more philanthropic and public-spirited than to pay for there to be more of it?”

With maintenance decriminalized, Mr. Olson warns, “It will be used not just against the originally contemplated targets, such as large business or government defendants, but against a wide range of others—journalistic defendants included.”

International free speech roundup

  • Tonight in New York City, Cato presents its Milton Friedman Award to Danish journalist Flemming Rose, a key figure in the [still-ongoing] Mohammed cartoons episode, and author of The Tyranny of Silence [David Boaz, Cato]
  • Troubles in Turkey: journalists sentenced to two years in jail for reprinting Charlie Hebdo cover [Reuters, Reason] Erdogan’s campaign against foreign critics assumes extraterritorial reach with complaints against comedian in Germany and Geneva exhibit [Colin Cortbus/Popehat, Foreign Policy]
  • Ya mad wee dafty: “Man faces hate crime charge in Scotland over dog’s ‘Nazi salute'” [Guardian]
  • Publish a “wrong” map of India, face seven years in jail and a huge fine [Hindustan Times; “crore” = 10 million]
  • United Kingdom man fined £500 for calling romantic rival “fat-bellied codhead. [Blackpool Gazette]
  • Emulating USA tycoon D. Trump, China pressures finance analysts against negative forecasts [WSJ, Barron’s on the Marvin Roffman story, which I used to tell when giving speeches on my book The Litigation Explosion]

“I myself escaped by a bare whisker from attending law school…”

My tell-all interview at Fault Lines gets into why I don’t hate lawyers (really), my various books, my views on Cato and other think tanks, law and economics, the lack of any real reckoning for the Great Tobacco Robbery, why law schools might actually serve as a counterweight to campus pressure for ideological uniformity, my writing outside law, and much, much more. I’m interviewed by Scott Greenfield, well known to our readers for his criminal law blogging; Fault Lines is a recently launched criminal justice website that’s part of Lee Pacchia’s Mimesis Law.

There have been many flattering reactions already, scroll down from the interview to this comment from Margaret Little which made me particularly happy:

Overlawyered made an enormous contribution to understanding where lawyers were taking the legal system over the past several decades and it continues to fill a vacuum in the discourse about law. For too long that discourse was plaintiffs vs. defense lawyers, with both sides vulnerable to attack for self-interest. Worse, the defense bar, which has an economic interest in the expansion of liability, is often silent or even complicit in the game. While Overlawyered’s postings were made with much-appreciated wit and style, the sheer comprehensiveness of the empirical data, and the mind-boggling attention to detail in its analysis makes it a gold mine for research and a landmark accomplishment. Well done! Don’t quit!

Whole thing here.

Charles Murray’s recommendations for books on the U.S. legal system

Honored that two of mine, The Litigation Explosion and The Rule of Lawyers, are among seven that author Charles Murray (most recently of By the People) has recommended if you’d like to understand the state of the U.S. legal system [Benjamin Weingarten, The Blaze] I can recommend all the other books on the list as well, including the four by well-known author Philip K. Howard, often mentioned in this space, and The American Illness: Essays on the Rule of Law, edited by George Mason lawprof F.H. Buckley, a recent and underappreciated gem. Its contributors include Stephen Bainbridge, Todd Zywicki, Richard Epstein, George Priest and many well-known legal academics.

Welcome Rod Dreher readers

I once wrote that a highly litigious society is like a civil war in very, very slow motion. Rod Dreher has similar thoughts here about how the structure of mutual trust erodes when people learn (and are taught) to find advantage in setting legal process against each other. Dreher quotes Iranian reader Mohammad:

…the USA system of justice is such an allure! It invites you to sue. One reason is that you can get money this way. The first thing I was taught in the USA (a lesson I did not learn) was to seek occasions for suing people. I was treated like trash couple of times, and I had the golden opportunity to cash in, but I decided it was totally unethical.

However, there are other reasons why litigation is so sexy in the USA. The system gives you a profoundly stupid idea about what is just and what is not, and about your entitlement to your rights.

Also mentions this site [The American Conservative]

Hopes of taming discovery at last?

Following widespread complaints, led by the business community, that the high cost of the discovery phase of litigation is enough to deprive parties of substantive justice, the Advisory Committee on Rules of Practice and Procedure in August of last year proposed amending the Federal Rules of Civil Procedure to make discovery less burdensome.  Following a public comment period that ended in February it amended the proposals somewhat and submitted them to a standing rules committee which in turn approved them in late May “with the recommendation that the U.S. Supreme Court accept the changes. If approved, the proposed amendments will go into effect on December 1, 2015.”

Some resources:

  • Tony Rospert and Rob Ware (Thompson Hine), working paper for Washington Legal Foundation on e-discovery costs;
  • Beck, Drug & Device Law (“While hardly perfect, these changes to Rule 37(a) are a welcome step in the right direction.);
  • Alison Frankel, Reuters, on the politics (trial lawyers and legal academics resisting reform);
  • Adapted excerpt in Reason from the chapter on discovery (“The Assault on Privacy”) from my book The Litigation Explosion, 1991.

House passes Goodlatte patent troll bill

The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what the infringement is; another provides for losing parties to compensate prevailing parties toward the cost of the litigation in more cases; yet another attempts to forestall expensive discovery in cases destined to fail on other grounds. Readers who recall my first book, The Litigation Explosion, will recall that I recommended procedural reform as the most promising way to address the incentives to overlitigiousness in our legal system and in particular identified lack of fee shifting, anything-goes pleadings, and wide-open discovery as among the system’s key deficits. So, yes, developments like this make me feel I was on the right track.

Equal time dept.: Richard Epstein takes a different view.

July 26 roundup

  • Emerging newspaper business model: copyright lawsuits against bloggers? [Kravets, Wired, Ron Coleman, TechDirt, PoL]
  • Five NYC hospitals to use “health courts” to seek agreements before medical malpractice cases go to trial [WSJ]
  • Serpentine asbestos politics behind “California state rock” fracas [Cal Civil Justice, more, PoL, Bailey, earlier here and here]
  • From Andrew Grossman: “Feinberg: ‘priests, mayors or even sheriffs could vouch for [BP trust fund] claims of local businesses.’ Has he ever been to Miss, La.?!”
  • Va. lawyer, real estate agent sanctioned for “frivolous claims supported by wild speculation” [ABA Journal]
  • An injury lawyer reads and reacts to my first book, The Litigation Explosion [Alan Crede]
  • Le Corbusier’s writing made him sound like certain pro se litigants [Johnson, PrawfsBlawg]
  • “Tip: Photoshopping Self Into Charity Photos Not Likely to Reduce Sentence” [Lowering the Bar, more]