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Dahlia Lithwick

January 17 roundup

by Walter Olson on January 17, 2014

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Slate really embarrassed itself the other day with a column by Emily Bazelon and Dahlia Lithwick flatly misreporting the holding of a Janice Rogers Brown opinion on religious liberty and Obamacare. I wrote this piece in response, which just appeared at PowerLine.

More: West Coast politics and law blogger Patterico likes my piece. Ed Whelan of the Ethics and Public Policy Center writes on Twitter to say that a post he wrote on Saturday “seems to be what triggered [the] weak correction.”

April 30 roundup

by Walter Olson on April 30, 2012

  • Because Washington knows best: “U.S. ban sought on cell phone use while driving” [Reuters, earlier here, here, here, etc.] More here; and LaHood spokesman says Reuters overstated his boss’s position.
  • Janice Brown’s Hettinga opinion: Lithwick can’t abide “starkly ideological” judging of this sort, except of course when she favors it [Root, earlier] At Yale law conclave, legal establishment works itself into hysterical froth over individual mandate case [Michael Greve] And David Bernstein again corrects some Left commentators regarding the standing of child labor under the pre-New Deal Constitution;
  • Latest antiquities battle: Feds, Sotheby’s fight over 1,000-year-old Khmer statue probably removed from Cambodia circa 1960s [VOA, Kent Davis]
  • Sebelius surprised by firestorm over religious (non-) exemption, hadn’t sought written opinions as to whether it was constitutional [Becket, Maguire] Obamanauts misread the views of many Catholics on health care mandate [Potemra, NRO]
  • “20 Years for Standing Her Ground Against a Violent Husband” [Jacob Sullum] How Trayvon Martin story moved through the press [Poynter] And Reuters’ profile of George Zimmerman is full of details one wishes reporters had brought out weeks ago;
  • Coaching accident fraud is bad enough, making off with client funds lends that extra squalid touch [NYLJ]
  • Kip Viscusi, “Does Product Liability Make Us Safer?” [Cato's Regulation magazine, PDF]

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Legal academia, and the sector of legal journalism most closely aligned with its views, is too remote from practice, too wrapped in theory and too far left to have a good feel for how the current Supreme Court approaches legal issues. Thus argues Jonathan Adler, who notes that “In some corners, it’s more important to reconcile one’s claims with the writings of John Rawls than the opinions of John Roberts.” More: Mike Rappaport (noting that the right too has been influenced by legal academia’s “preference for broad overarching theories,” as on originalism), Peter Suderman, David Bernstein.

Remember the “Halliburton rape” case, where the national media uncritically passed along claims that a young woman had been viciously assaulted by co-workers while stationed in the Middle East, then confined to a container by beastly managers when she tried to complain, and finally suffered the ultimate indignity when her employment contract required her to submit the claims to arbitration? It’s a tale that was advanced by politicians like Sen. Al Franken (D-Minn.), by some of the usual suspects in opinion journalism, and especially by the litigation lobby as part of its campaign against contractually provided-for arbitration (as with the much-reviewed, HBO-aired “Hot Coffee“). Not a few of these advocates — like the left-leaning ThinkProgress — threw “allegedly” to the winds and flatly accused the co-workers of rape.

Unless you’d read one of the very few skeptical evaluations of the case — many of them written by Ted Frank — you may have been shocked this July when a Houston jury summarily rejected Jamie Leigh Jones’s lawsuit. Now — better late than never — the Houston Chronicle shreds the popular narrative of the affair and its media coverage in particular (ABC News: a tale of “sexual brutality, corporate indifference and government inaction.”) Is it too much to hope that anyone will be embarrassed enough to apologize?

More: As commenter E-Bell notes, journalist Stephanie Mencimer, with whom we’ve had our differences in the past, deserves due credit for this July coverage in the unlikely venue of Mother Jones. And quoth @Popehat: “‘Putting the victim on trial’ is code for ‘defending yourself and testing the evidence.’”

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July 12 roundup

by Walter Olson on July 12, 2011

  • Not for first time, Dahlia Lithwick misrepresents Wal-Mart case [Ponnuru, Whelan, earlier here and here]
  • Merciful gods, please spare us ghastly “Caylee’s Law” proposal [Josh Blackman, Reuters, Greenfield, Frank] More on constitutional flaws [Robson, Tribe]
  • Mark Perry on efforts to replace the relatively open-entry Washington, D.C. taxi system with NYC-style cartelization via medallion;
  • “Wrongful Convictions: How many innocent Americans are behind bars?” [Balko]
  • “Persaud identified himself as a juror, offering to fix the verdict for a fee.” [CBS NY; Long Island med-mal case]
  • “Is the Common Law the Solution to Pollution?” [Jonathan Adler, PERC]
  • “Rice Krispies class action settlement” [Ted Frank]

May 2 roundup

by Walter Olson on May 2, 2011

  • In suit over weird, elaborate online hoax, court allows fraudulent-misrepresentation claim despite lack of motive of tangible gain [Chi Trib]
  • Service animal rodeo: “A trained rat probably would have had a good case in California” [AP/Statesman-Journal] Broward County, Fla. backs lonely widow’s right to keep “prescription Chihuahua” against rules of condo board [AOL, Sun-Sentinel] Oklahoma: “Depressed Woman Fights to Keep Therapy Kangaroo” [Newser] Earlier on recent change in federal rules;
  • DahliaCrateLabel

  • Should lawmakers screen bills for constitutionality? Ms. Lithwick has trouble sticking to a position [AEternitatis]
  • Human-relations complaint leads to arrest of U.K. man for singing “Kung Fu Fighting” [MSNBC]
  • Barney Frank: Yes, let’s talk about med-mal reform [The Hill] Ringing the bell: Roundups of more big med-mal verdicts [White Coat, more]
  • “Expert Witnesses Stripped Of Immunity From Negligence Suits In The UK” [Erik Magraken]
  • “Sustainability”: an empty idea? Or perhaps actively wrongheaded? [David Friedman via David Henderson]

March 3 roundup

by Walter Olson on March 3, 2011

  • EU imposes unisex insurance rates [BBC, Wright]
  • Law blog on the offense? TechnoLawyer asserts trademark claim against Lawyerist over “Small Law” [Lawyerist]
  • “Pro-business Supreme Court” meme strikes out yet again as SCOTUS backs “cat’s-paw” bias suit theory by 8-0-2 margin [Josh Blackman, Schwartz, Fox; Lithwick locus classicus]
  • Subprime CDO manager sues financial writer Michael Lewis over statements in his book The Big Short [AW, Salmon, Kennerly]
  • Police in Surrey, England, deny advising garden shed owners not to use wire mesh against burglars [Volokh, earlier]
  • Patterns of intimidation: protesters swarm Speaker Boehner’s private residence [Hollingsworth, Examiner] Unions fighting Wal-Mart in NYC plan actions at board members’ homes [Stoll] Report: GOP lawmakers in Wisconsin fear for personal safety [Nordlinger, NRO] White House pushing street protests [Welch, Nordlinger] Age of Civility short lived [Badger Blogger, Althouse, Sullivan]
  • In clash with trial lawyers, Cuomo proposes pain and suffering limits in med-mal suits [NYDN, more: NYT] “Bloomberg looks to Texas for ideas on changing medical malpractice laws” [City Hall News]
  • Hey, should we seize his drum set? Infuriating video on cop raids and forfeiture laws [Institute for Justice, Michigan]

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October 7 roundup

by Walter Olson on October 7, 2010

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February 3 roundup

by Walter Olson on February 3, 2009

  • Lawyer charged with particularly awful pattern of thefts from disabled/incapacitated persons [NYTimes, Steven Rondos]
  • “Buy American” provisions in stimulus bill could start trade war [Postrel]. Parting blow to America’s taste buds: outgoing Bush admininstration slapped high tariffs on Roquefort cheese, Irish oatmeal [Cowen, MargRev]
  • In widening scandal of U.K. miners’-claim lawyers, one law firm found to have funneled more than £6 million to Arthur Scargill’s union [Times Online]
  • 1936 Clarence Darrow piece on how to pick a jury makes a sort of time capsule of wince-worthy stereotypes [Deliberations]
  • Want to start up moving company in Oregon or liquor store in California? You might find your competitors can legally block you [Coyote]
  • Maybe there’s hope for Dahlia Lithwick, she “shares concerns” about lame lawsuits and judgment-warping liability fears [Slate, on Philip Howard's Life Without Lawyers]
  • Dear major banks: Regret to inform must impose high penalties for your unauthorized overdraft of our funds [Naked Capitalism]
  • “Ethics laundering”: how lawyers can use Internet to evade NY rules against client solicitation [Turkewitz]

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White House race roundup

by Walter Olson on September 8, 2008

  • High-profile trial lawyer and Hillary fundraiser John Coale now backing McCain, believes plaintiff-friendly Sen. Lindsey Graham, a confidant of the GOP candidate, will sway him on liability issues [Gerstein, NY Sun, Tapper/ABC, Haddad/Newsweek] More on McCain-Graham friendship [New Republic]
  • Reasonably neutral evaluation of contrasting McCain and Obama positions [Chris Nichols, NC Trial Law Blog]
  • No Naderite he? Sen. Biden has generally taken a “protect the golden goose” approach toward his state’s niche as provider of corporate law [Pileggi, Bainbridge]
  • Palin’s views on legal reform mostly unknown; Alaska (like Delaware) has one of the most highly regarded state legal systems, and wouldn’t it be fun if the state’s distinctive and longstanding (if somewhat attenuated) loser-pays rule got mentioned in the campaign?
  • Lending spice to campaign: prospect that victorious Dems might criminally prosecute Bush officials [Guardian (U.K.), Memeorandum, OpenLeft ("we'll put people in prison" vows whistleblower trial lawyer/Democratic Florida Congressional candidate Alan Grayson)] Some differences of opinion among Obama backers on war crimes trials [Turley (Cass Sunstein flayed for go-slow approach); Kerr @ Volokh (Dahlia Lithwick doesn't think it has to be Nuremberg or nothing); earlier]
  • If anyone’s keeping track of these things, co-blogger Ted is much involved with the McCain campaign this fall, I am not involved with anyone’s, so discount (or don’t discount) accordingly.

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The notion that present-day Democrats regularly steal elections by engaging in concerted efforts to vote multiple times in funny mustaches is a myth, unsupported by data or fact.

Dahlia Lithwick, Slate, May 24

As outlined at trial, the vote fraud scheme infected not only the actual voting process in November, but also the voter registration process preceding the election. Several persons, including the defendant Cusack, falsely registered to vote by claiming to reside at addresses within the precinct when they actually resided elsewhere. The actual residents at these addresses were asked to place name-tags on their doors that bore the names of the non-resident registrants. The defendants, and several others acting under their direction, also participated in a canvass of the precinct …. Although the canvass disclosed that a number of persons who were registered to vote in the precinct had died, moved away, or for some other reason had become ineligible to vote, these persons were not struck from the list of eligible voters. Finally, on election day the defendants, either personally or by acting through others, caused numerous false ballots to be cast for the straight Democratic ticket.

United States v. Howard, 774 F.2d 838 (7th Cir. 1985)

[T]he U.S. Attorney in Chicago at the time, Daniel Webb, estimated that at least 100,000 fraudulent votes (10 percent of all votes in the city) had been cast. Sixty-five individuals were indicted for federal election crimes, and all but two (one found incompetent to stand trial and another who died) were convicted.

Hans A. von Spakovsky, Heritage Legal Memorandum #23

Update: Some commenters complain that the 1982 example is irrelevant to Lithwick’s claim, because it is modified by “present-day.”

Present-day examples include 2007 cases in Hoboken, NJ, Noxubee, MS, and King County, WA—not to mention the unprosecuted voter fraud in Washington state in 2004, which affected the gubernatorial election. There may be many more examples, except Democrats are using lawsuits to block attempts to compare voter rolls with addresses.

Lithwick’s argument against present-day voter fraud is that there are very few prosecutions, and that therefore prevention measures are not needed. This is akin to arguing that, because very few people are ticketed for running red lights, there is no need for traffic signals. If there’s less voter fraud today, it’s in large part because of the prosecutions in the 1980s. Given Senator Obama’s appalling block on the van Spakovsky nomination to the FEC, and the liberal activism against preventing vote fraud, one worries that an Obama Justice Department will cease prosecuting voter fraud, and that there will be a return to the bad old days, in which case 1980s examples from when the DOJ first started prosecuting vote fraud are quite relevant.

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Carney on Lithwick

by Ted Frank on June 29, 2007

Add Dealbreaker’s John Carney to the lawyers decidedly unimpressed with Dahlia Lithwick. Earlier: July 9, 2005; July 24, 2005. Also: Kerr.

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Social hosts and mistletoe II

by Ted Frank on December 6, 2006

What I find so amusing about Dahlia Lithwick’s suggestion of a lengthy warning for Christmas parties isn’t so much the warning itself (others have done that funnier, not to mention the real-life examples), but that Lithwick doesn’t recognize that she’s part of the culture that encourages such ludicrous warnings: in 2003, Lithwick pooh-poohed as “extreme” the need for legislative intervention to prevent courts from going after food providers in obesity lawsuits because, after all, Big Food could survive by “posting warnings.”

Social hosts and mistletoe

by Walter Olson on December 6, 2006

Legal hazards of Christmas party-giving (Alan Kopit, Lawyers.com, undated recent; Dahlia Lithwick, “Fa-la-la-la-lawsuit”, Slate, Dec. 1).

P.S. And here’s a report from the U.K. claiming that many employers there are curtailing the posting of holiday decorations at workplaces from stated motives that include avoiding offense to those of other faiths and a variety of safety concerns. (Amy Iggulden, “No decorations, please, it might cause offence”, Telegraph, Dec. 6).

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November 27 roundup

by Ted Frank on November 27, 2006

  • In the Supreme Court November 29: Watters v. Wachovia. Also an AEI panel November 28, broadcast on C-SPAN1, 2pm to 4pm Eastern. [Point of Law; AEI; Zywicki @ Volokh]
  • Also in the Supreme Court November 29: Massachusetts v. EPA global warming regulation case. Previously an AEI panel November 21. [Adler @ Volokh; AEI; C-SPAN (Real Media)]
  • Legal cliche: If the facts are against you, pound the law; if the law is against you, pound the facts; if both are against you, pound the table. Table-pounding class of Gerry Spence protegee offers lessons in emotionally creating jury sympathy worth millions. [LATimes]
  • What judicial activism?, Part 7356: Indiana state court judge holds “Protection of Lawful Commerce in Arms Act” unconstitutional, complains gun industry supported the law. [Indianapolis Star via Bashman; Indiana Law Blog]
  • Entertaining doctor victory in medmal case. [Musings of a Dinosaur via Kevin MD]
  • Dahlia Lithwick gets something right; if only it was on an issue more important than a suit advertisement. [Slate]
  • Leftover from Thanksgiving: lawyers acting like turkeys. [Ambrogi]
  • Ninth Circuit grants potential standing to monkeys over Kozinski dissent. Earlier: Oct. 21, 2004. [Bashman roundup of links]
  • Gloria Allred joins the Borat pile-on. [LATimes]
  • Speaking of, here’s the future case of Allred v. Kramer. More Allred: Oct. 16. [Evanier]
  • Speaking of Allred nostalgia, and of primates, whatever happened to chimpanzee victim St. James Davis? (Mar. 17, 2005; Mar. 8, 2005) [Inside Edition; "The Original Musings"; CNN Pipeline ($)]
  • More Allred nostalgia: is Veronica Mars‘ Francis Capra the next Hunter Tylo? Discuss. [Prettier than Napoleon]

October 27 roundup

by Ted Frank on October 27, 2006

  • Bill Moyers calls his lawyers. [Adler @ Volokh]
  • Jim Copland: 9/11 suits against New York City over emergency recovery work “simply wrong.” [New York Post]
  • Did the PSLRA help shareholders? [Point of Law]
  • 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
  • Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
  • “At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.” [New York Times via Point of Law]
  • More on global warming lawsuits. [Point of Law]
  • Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
  • Michael Dimino asks for examples of frivolous lawsuits. What’s the over-under until it turns into a debate over the McDonald’s coffee case? [Prawfsblawg]
  • Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
  • Who’s your least favorite Supreme Court justice? [Above the Law]
  • More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
  • “Thrilled Juror Feels Like Murder Trial Being Put On Just For Her.” [Onion]
  • A revealing post by the Milberg Weiss Fellow at DMI: companies make “too much” profit. I respond: “Again, if you really think the problem is that insurance companies charge ‘too much’ and make ‘too much’ money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)” [Dugger]

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October 10 round-up

by Ted Frank on October 10, 2006

  • David Lat has much more detail on the $46 meal-skipping criminal case; and the St. Petersburg Times reports Ralph Paul was acquitted because his defense attorney misrepresented to the jury the legal standard, and the prosecutor didn’t correct it. [Above the Law; St. Petersburg Times]
  • Amber Taylor isn’t impressed with Dahlia Lithwick’s proposal of new rules for Supreme Court clerkships. [Law. com; Prettier Than Napoleon]
  • Legalized extortion of banks over Enron scandal. [Point of Law]
  • Round-up of links of Sherwin-Williams’s suit against Ohio municipalities that are using contingent-fee plaintiffs’ lawyers against it. [Point of Law]
  • Possible settlement in the Million Little Pieces class action. [TortsProf]
  • California kennel works can’t sue dog owners for bites. [Bashman]
  • Defense prevails in first federal welding trial. See also POL Nov. 21 and Dec. 9. [Products Liability Prof]
  • David Bernstein on phony associations in epidemiological research. [Volokh]
  • Aleksey Vayner doesn’t just have an impressive video resume, he can send a bogus cease-and-desist letter with the best of them. [IvyGateBlog]