Jerman v. Carlisle

by Walter Olson on April 27, 2010

Reader John B. alerts us: “If you haven’t already seen it, there’s excellent Overlawyered-type rhetoric from Justice Kennedy in Monday’s Supreme Court opinion on debt collectors’ liability under federal statutory law. Unfortunately it’s in the dissent (PDF).”

Wrote Kennedy:

[The Court's decision today] aligns the judicial system with those who would use litigation to enrich themselves at the expense of attorneys who strictly follow and adhere to professional and ethical standards.

When the law is used to punish good-faith mistakes; when adopting reasonable safeguards is not enough to avoid liability; when the costs of discovery and litigation are used to force settlement even absent fault or injury; when class-action suits transform technical legal violations into windfalls for plaintiffs or their attorneys, the Court, by failing to adopt a reasonable interpretation to counter these excesses, risks compromising its own institutional responsibility to ensure a workable and just litigation system.

{ 2 comments }

1 Allan 04.27.10 at 9:54 am

I dissent from the dissent.

Congress intended that there be a remedy. Without a remedy, there is no way to enforce the law and there is no incentive for technical violators to clean up their violations.

I would suggest, in this case, your beef is with the legislature, not the courts, the plaintiffs, or the plaintiffs’ counsel.

2 William Nuesslein 04.30.10 at 4:27 am

Should there be an incentive to clean up technical violations? I am thinking about the guy who had to fix the 1.5 inch violation in the height of his bathroom mirror.

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