If blogging has been lighter than usual, one reason is that I’ve been racing forward on my new book on law schools and their influence, tentatively entitled Schools for Misrule: Legal Academia and an Overlawyered America, which is in the catalogue for Winter/Spring (a year hence) from Encounter Books. I reached first draft in December and am rapidly whipping that rough copy into something closer to final shape.
My original nickname for the book was Ten Bad Ideas from the Law Schools — and How They Changed The World. We decided to go with something a little more dignified, but the book still tries to answer the underlying question of why so many bad ideas — and certain kinds of bad ideas, especially — keep emerging from the law schools. Along the way it looks at some sociological and political angles, such as why modern liberal-left leadership so often is formed in the elite law school milieu (Barack Obama, Bill and Hillary Clinton, etc.) Then it takes up a series of issues — from institutional reform litigation and school finance to slavery reparations and international law — in which legal academia has led campaigns to challenge and redefine the nature of government sovereignty, with consequences that have been usually unforeseen and sometimes calamitous.
I’ll be blogging more on all those points over the coming year, but in the mean time I’ve got a request (”bleg” = blog request, or begging post) for this site’s well-informed readers. One of my chapters takes up the now-ubiquitous phenomenon of law school clinics in which students represent outside clients, sometimes in “cause” litigation and sometimes not. I trace the origins of this movement (a big philanthropic push from the Ford Foundation made the difference), the resistance it met from law-school traditionalists and its eventual triumph, as well as some of its present-day manifestations, which are not always those foreseen by the circa-1970 visionaries who started the programs. The chapter is pretty good as is, I think, but I’d like to add a little more illustrative detail about the clinics, especially vignettes from the early years shedding light on what it was expected they would accomplish in changing society (a subject that isn’t as well documented on the web as I’d like). Responses can be made in comments or by email to editor – at – overlawyered – dot – com. (And, yes, I’ve already read Heather Mac Donald’s interesting City Journal critique and some of the responses it provoked.) (& welcome Instapundit readers. Numerous good emails from readers already).
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Barack Obama,
law schools,
Schools for Misrule
Notwithstanding Barack Obama’s claim of a spending freeze on discretionary spending, Roger Clegg finds that the Obama Justice Department’s proposed budget calls for 22 new attorneys to bring “disparate-impact” cases—presumably the ones too weak to find a trial lawyer willing to take it on. And we can be quite confident that there won’t be any disparate impact against Federalist Society members when they do that hiring, right?
Tagged as:
Barack Obama,
disparate impact,
politics
In his State of the Union message, President Obama claimed the Supreme Court’s recent decision in Citizens United would “open the floodgates” for foreign companies to “spend without limit in our elections.” Justice Samuel Alito could be seen mouthing words and in particular, per Gerard Magliocca, the phrase “That’s not true”. For why he might have reacted that way, see Politifact “Truth-o-Meter”.
More from Randy Barnett at Politico:
In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.
The President also made an erroneous reference to “reversing a century of law”, which Linda Greenhouse corrects at the New York Times “Opinionator” blog.
And: Tony Mauro/NLJ, Ann Althouse. Althouse also notes that there’s a lesson for Citizen United critics in the ways Alito’s few seconds of silent protest upstaged the President: “It’s not how much or how loud you speak that counts, is it?” And Howard Wasserman at Prawfsblawg rounds up reactions on both sides from the perspective of a “somewhat-rare Democrat and Obama supporter who believes Citizens United was correctly decided.” And did the speech as delivered tone down rhetoric about Citizens United that had been distributed in printed versions?
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Barack Obama,
campaign regulation,
Supreme Court
- Annals of discrimination lawsuits: a Tennessee cop contests his firing [Chattanooga Pulse]
- New book on lawsuits against universities: Amy Gajda, “The Trials of Academe: The New Era of Campus Litigation” [Harvard University Press via Stanley Fish, NYT]
- Bernard Kerik’s bail revoked because he used Twitter to promote a website put up by his friends flaying the prosecution? [Scott Greenfield] Plus: More complicated than that, says Bill Poser in comments;
- Another big setback for birther litigation [Wasserman/ Prawfsblawg, Little Green Footballs, earlier]
- “I won’t be able to function,” says Missouri woman after judge rules her monkey is not a service animal [On Point News, Molly DiBianca] More: service ferret gets owner kicked out of North Carolina mall [DigTriad]
- Eleventh Circuit agrees that U.S. cannot prosecute criminal defense lawyer Ben Kuehne for money laundering charges for having written opinion letter saying untainted money was available for legal fees [WSJ Law Blog, coverage (and update) at Scott Greenfield's site, Miami Herald]
- One for the Coase Theorem literature? Cranky neighbor forces closure of famed South Carolina recording venue [Ribstein]
- Hallowe’en is safe [BoingBoing, earlier on Pennsylvania town's trick-or-treating ban] “Toronto schools: Hallowe’en insensitive to witches” [four years ago on Overlawyered]
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child protection,
colleges and universities,
defense lawyers,
Missouri,
music and musicians,
police,
prosecution,
service animals,
South Carolina,
Tennessee
In “a little-publicized October 2 resolution … [the U.S.] State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive, notes Stuart Taylor, Jr.’s new column for National Journal. Legal academics, including some who have gone on to join the Obama Administration, have sketched out doctrines indicating “how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws… In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus.” More: Reason, Jonathan Turley/USA Today. And (h/t comments): A Monday statement by Secretary of State Clinton is being widely greeted as reaffirming a free-speech position, but Taylor is not convinced that it undoes the damage. Nor, it seems, are Eugene Volokh and Ilya Somin.
P.S. What Rick Brookhiser told the Yale Political Union about that cartoonless Mohammed-cartoons book from Yale University Press [NRO] And here’s word that in the U.S., liberal church denominations will ask the FCC to probe conservative broadcasters [Jeffrey Lord/American Spectator]
Tagged as:
Barack Obama,
free speech,
hate speech,
international law,
United Nations
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Barack Obama,
class action settlements,
Florida,
land use and zoning,
libel slander and defamation,
Massachusetts,
newspapers,
privacy,
restaurants,
schools
Some interestingly cross-cutting results, summarized by National Journal as “Would Tort Reform Make Pill Easier To Swallow? Right-Leaning Bloggers Say They’d Support A Health Care Bill That Included It; Some Left-Leaners Would Hold Their Nose For It.” The results, though, may have been influenced by wording that was susceptible to multiple interpretations. I added this comment, raising a sub-issue that I think might make a good topic for bipartisan discussions:
My pet proposal? Work on out-of-court dispute resolution methods for the sizable share of medical care the federal government already provides. Alas, Congress is headed in the other direction, as with its interest in opening up med-mal suits by active-duty personnel against military doctors.
More: David Kopel, Volokh.
Tagged as:
Barack Obama,
medical malpractice
“In his speech tonight, the president shouldn’t forget tort reform.” (John Avlon of the Manhattan Institute, City Journal).
P.S. Maybe he was listening. In his speech tonight, Obama made a non-trivial gesture toward critics’ views on the subject, acknowledging that defensive medicine drives up costs and “prompting an eruption of applause from Republicans at Wednesday’s joint session of Congress.” [UPI]. From the same article:
“I know that the (George W.) Bush administration considered authorizing demonstration projects in individual states to test these issues,” Obama said. “It’s a good idea, and I am directing my Secretary of Health and Human Services (Kathleen Sebelius) to move forward on this initiative.”
On the politics of the gesture, see Jake Tapper/ABC, news-side WSJ (cross-posted from Point of Law).
Some reactions: Dr. Wes notices language recycled from the med-mal plan championed earlier by then-Sen. Obama and Sen. Hillary Clinton (D-N.Y.) My reaction? I think trying a bunch of demonstration projects to see how they work is actually one of the better reform ideas at the federal level, but obviously a great deal depends on how the demonstration projects are picked and designed. Projects might be selected from a list of ideas pre-vetted for acceptability to the litigation lobby, or at worst might even be designed to fail. I agree with Ron Miller: when it comes to actual policy, “Let’s just say President Obama is keeping his options open.” (bumped Thurs. a.m.)
And more: okay, maybe I gave the President too much credit above on having acknowledged the costs of defensive medicine: his exact wording was “defensive medicine may be contributing to unnecessary costs” (emphasis added). Ramesh Ponnuru: “A demonstration project for med-mal reform — don’t we already have one, called Texas?” Carter Wood notes that demonstration projects on med-mal reform have been shot down by Congressional Democrats in recent years. Dan Pero calls the gesture an “olive twig“. And from commenter Jack Wilson: “How come tort reform is the only part of this plan that needs to go through a demonstration project?”
Tagged as:
Barack Obama,
medical malpractice
- Cops in London borough “remove valuables from unlocked cars to teach the owners about safety” [UPI, Sullum/Reason "Hit and Run", Coyote]
- “Trial starts for PI lawyer accused of paying bribes (to Texas insurance managers) for settlement” [ABA Journal]
- Tort reform in Oklahoma takes effect Nov. 1, so law firm advises getting those lawsuits filed quickly [The Oklahoman]
- Patent assembler Intellectual Ventures says it’s averse to suing. Its close partners, on the other hand… [Recorder, earlier]
- Bill to assert U.S. control of waters whether “navigable” or not is major federal power grab [Kay Hutchison and Nolan Ryan, Dallas News]
- California high court rules in Taster’s Choice photo-permission case [Lowering the Bar, WSJ Law Blog, earlier]
- Civil libertarians, secularists protest as Ireland criminalizes blasphemy [Volokh, Irish Times (Dawkins), MWW and more]
- He knows about big paychecks: “Obama’s ‘Pay Czar’ Made $5.76M Last Year as a Law Firm Partner” [ABA Journal]
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Barack Obama,
environment,
free speech,
insurance,
Ireland,
patent trolls,
police,
United Kingdom
Some believe the Obama camp has spent a fortune in lawyers’ fees responding to far-fetched “birther” lawsuits, but John Bringardner at Legal Blog Watch is skeptical about that claim. Speaking of which, don’t you wish more conservatives would keep their distance from the site WorldNetDaily? [Jon Henke]
Tagged as:
Barack Obama,
wrong right
Perhaps the most buzzed-about story while I was on vacation (I’m back now) was the frank acknowledgment by former Democratic Party chairman (and former physician) Howard Dean when asked why liability reform was omitted from the health care redesign. 
From the New York Times “Prescriptions” blog:
The man then asked why tort reform was not part of any health overhaul.
Dr. Dean replied that the more items in a big bill, the more enemies it will have. “The people who wrote it did not want to take on the trial lawyers in addition to everyone else,” Dr. Dean said.
Dr. Dean also said he believed that patients should be able to bring actions against health care professionals, but they should go to arbitration. Then the case could go to trial, he said, but the arbitration verdict should be submitted as evidence. Not much reaction to that either way.
Mr. Moran [Northern Virginia Congressman Jim Moran] then apologized to the man whose identity he had questioned and added his 2 cents about why tort reform was not part of any bill. He said if it were, such a bill would have to go through the judiciary committee, which he said was one of the most partisan in Congress and would never have reported it out.
Commentary: Mark Tapscott/Examiner, Washington Times, Darrin McKinney/ATRA, Dan Pero linking Tiger Joyce/Investors Business Daily, Charles Krauthammer/FoxNews.com via Carter Wood/PoL and NRO “Corner”, Fred Barnes/Weekly Standard.
Relatedly, Philip K. Howard writes on “Stonewalling Legal Reform“, citing a Jon R. Gabel piece in the Times that rebuts a much-touted-by-trial-lawyers Congressional Budget Office report minimizing the likely cost reductions from malpractice reform. From the American Spectator Blog, “Conservative Leaders on Costly Lawsuits and Health Care Reform“. And Ramesh Ponnuru at NRO reiterates his argument that while malpractice reform is a good idea, it shouldn’t be imposed on the national level by the federal government.
More: Jim Lindgren at Volokh Conspiracy skewers an appalling report on health care “myths” which received, but did not deserve, the imprimatur of Indiana University.
Tagged as:
Barack Obama,
federalism,
medical malpractice,
politics
