“As long as I am allowed to redistribute wealth…”: was Richard Neely being “ironic”?

by Ted Frank on June 11, 2008

As I’ve previously noted:

“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.

{ 2 trackbacks }

More on Neely, “The Product Liability Mess”
06.13.08 at 2:26 pm
Richard Neely’s lack of irony (III)
07.03.08 at 6:47 am

{ 7 comments }

1 Justinian Lane 06.11.08 at 4:32 pm

In addition to those “ipse dixit” statements by Thornburg. I’m basing them on the fact that the ABA published the following in January of 1989:

“In the December ABA Journal a quote about product liability cases was attributed to West Virginia Supreme Court of Appeals Justice Richard Neely. The quote, from Neely’s book “The Product Liability Mess,” was taken out of context. In the context, Neely was using an ironic style to mimic the unspoken rationale he feels some judges use to rule for plaintiffs. The quote does not reflect Neely’s personal position on the matter, and the Journal regrets inadvertently distorting his views.”

It’s hardly a personal attack to point out that neither you nor Olson (nor countless others) mentioned the correction in the ABA Journal. As I mentioned on TortDeform, I just contacted Neely’s office and expect to hear from him tomorrow. I’ll followup at TD as soon as I hear from him.

2 Ted Frank 06.11.08 at 4:39 pm

As the full context demonstrates, Neely was not being ironic, and was expressing his actual thought processes as a judge. I’ve read the chapter. Have you, Justinian? You haven’t even addressed the multiple quotes up there.

I don’t know what the ABA Journal said that it felt it needed to make an apology, but its correction, which I was not previously aware of, is certainly not an accurate characterization of what I read, and I feel no need to mention it, and it does not change my opinion of what I read.

3 Ken 06.11.08 at 7:15 pm

Do you suppose a judge — or any Commission on Judicial Performance — would find it appropriate to say for publication (even ironically) “As long as I keep making sure defendants get convicted and putting them in jail, I’ll keep getting re-elected, and I’ll sleep better”?

4 Todd Rogers 06.11.08 at 9:20 pm

It’s as though this collection of cells that responds to the utterance of “Richard Neely” must be a regular reader of Das Kapital.

5 JOHN N. 06.12.08 at 11:41 am

I will say that I read the original excerpt as “…I will continue to do so–redistribute wealth, that is”
On reading the full excerpt I get a different meaning. “…I will continue to do so–sleep, that is.”

I either case I don’t get a sense of irony.

6 Ron Miller 06.12.08 at 4:04 pm

The idea of electing judges is a bad one all around. Plaintffs hate it. Defendants hate it. Yet there is not the energy out there to do anything about it.

7 Walter Olson 06.13.08 at 1:55 pm

I too have read The Product Liability Mess with minute attention, having written the Fortune magazine review of the book, which was among the more high-profile reviews it got. And Ted is right: the more context you supply for the quote from the rest of the book, the less doubt you will harbor that it was meant straight, not ironically.

Since Neely’s statements in the book were almost electrifyingly frank, I can’t say I am surprised that he would later find it expedient to back off from and indeed disavow them; aside from changing his mind on matters of policy (at least I assume he’s changed his mind), and the exigencies of his later practice as a plaintiff’s lawyer, we all assumed at the time that in his judicial role he would come under enormous pressure for seemingly having admitted to deciding cases in a way many would regard as illegitimate.

It is remarkable that he would now speak of wanting to sell books as a motivation while simultaneously maintaining that the passages in question were meant to be taken ironically. It was precisely because the statements were not presented as kidding around that they foreseeably called wide attention to the book. (This is also in tension with Thornburg’s theory that Neely was critically describing other judges’ thought processes but not his own. I have to wonder whether she, like others who have taken up this matter recently, sat down and read the book.)

After my Fortune review was published I met and got to know Neely; we appeared on panel discussions together and shared many conversations. Without breaking any confidences about the private talk, I will only observe that at the public appearances we did, he had ample opportunity to state that he had just been kidding or merely ironic in the passages at issue, which figured so prominently in my Fortune review, but I do not recall his taking any such opportunity. I do not know, by the way, whether I am the nameless reviewer he unkindly calls a simpleton, but I have reason to doubt it, since he subsequently gave an extraordinarily favorable blurb to my book The Litigation Explosion, for which I continue to be grateful.

The whole thing is regrettable on a number of levels. I continue to think the books Neely wrote in his early career (“How Courts Govern America”, etc.) have much to recommend them both in substance and in their clear, pungent style, and for many reasons regret the loss of the career as public intellectual on which he had seemed to be well launched.

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