“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”
– Richard Neely, Justice, West Virginia Supreme Court, The Product Liability Mess at 4
In his latest attack on Overlawyered, Justinian Lane claims that Walter Olson and I have misused this quote, because Justice Neely was being “ironic.”
I’m holding The Product Liability Mess in front of me, and Neely is most certainly not being “ironic”: he is offering a mea culpa. Here’s the full paragraph (emphasis added), to show that it’s not being taken out of context:
The anarchy that current prevails among American state jurisdictions absolutely guarantees politically that no line of any sort will be drawn. After all, I’m not the only appellate judge who wants to sleep at night. As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”
And from the very first page:
[U]p to this very moment in my life I have been part of the problem rather than part of the solution. As a state court judge, much of my time is devoted to designing elaborate new ways to make business pay for everyone else’s bad luck.”
And here’s one more quote from pp. 70-72, with Neely talking about a specific West Virginia case, again emphasis added:
From what I know about myself and my colleagues, I have the distinct impression that in a product liability case the vote would have been 3 to 2 the other way, and the whole $10 million judgment would have been sustained. Had a defective Ford automobile killed the little boy, even I would have had none of the enthusiasm for reducing the judgment that I had when the judgment against the defendants would affect business and consumer costs in West Virginia. What do I care about the Ford Motor Company? To my knowledge Ford employs no one in West Virginia in its manufacturing processes…
“The best that I can do, and I do it all the time, is make sure that my own state’s residents get more money out of Michigan than Michigan residents get out of us.”
That, dear readers, is not irony.
Neely goes on to argue for the need for federal preemption to solve the product liability problem to protect the American economy from judges like him. Justinian clearly never read the book before he made his personal attack.
Lane bases his argument on a few ipse dixit sentences from Elizabeth Thornburg’s advocacy piece in the West Virginia Law Review attacking the characterization of West Virginia as a judicial hellhole. Thornburg, whose citations cherry-pick studies favorable to her conclusions, while ignoring those that are not, largely ignores or elides the real reasons why reformers justly call West Virginia a judicial hellhole. For example, her paper does not mention State ex rel. Johnson & Johnson Corp. v. Karl, where two justices of the WV Supreme Court majority expressly adopted Neely’s point of view about redistribution from out-of-state corporations to local doctors, much less the Beck/Frank critique of the West Virginia Supreme Court’s decision in Karl. There are arguments about some anecdotes, but not about others. The paper doesn’t mention Trial Court Rule 26.01, reverse bifurcation in West Virginia, and the appalling violation of due process it creates. Her paper also dishonestly claims that the state’s “medical monitoring” jurisprudence is in the “mainstream,” which is most certainly not true, but is a claim that must be justified to falsify the reformer critique of the state’s justice system.
Lane demands a retraction, but he seems to be the one who needs to make a retraction of his erroneous claims. Given Justinian Lane‘s previous record, we doubt one is forthcoming.