Chronicling the high cost of our legal system
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If you thought Sacramento’s new curbs on big-screen TVs were bad, brace yourself. David Shepardson, Detroit News:
California’s latest requirement for the auto industry — advanced window glazing to keep vehicles cooler — could prevent drivers from making phone calls, listening to satellite radio or using garage door openers.
More: Carter Wood/ShopFloor, Jon Fleischman/Flash Report. And Aaron Renn at Urbanophile has a broader look at California’s decline.
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“A federal appeals court has overturned the arson convictions of a Caltech grad student accused of torching and vandalizing 125 SUVs, ruling the trial judge wrongly barred evidence of the defendant’s Asperger’s syndrome.” [ABA Journal, L.A. Times] While we’re at it, also from the ABA Journal: “Law Prof Charged with Tax Evasion, Claims Severe ADD, Prosecutors Say“.
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As lighting “to interview my daughter’s boyfriends”, says an Ann Althouse reader. [more, earlier here, here, etc., as well as Katherine Mangu-Ward, Reason "Hit and Run"]
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“…for her role in the apple scare. She told me so.” [Elizabeth Whelan, National Post]
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Whoa, Gristies, that may go a bit too far. [Coyote]
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I’ve got a link roundup on the new charges at Point of Law. Earlier here.
Another round of coverage [BBC] for a health peril we’ve covered a number of times in the past. Gawker: “How many more people must die before Michael Bloomberg does something about candles? Children can buy them and everything! We must sue Big Candle.”
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Environmentalists have filed a lawsuit to block construction. [Santa Barbara Daily Sound via Popehat]
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Doubts about its timing, chaotic implementation and environmental benefits — and that’s aside from the high cost of subsidizing trade-ins many of which would soon have occurred anyway.
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Critics of Obama science czar (and sometime Paul Ehrlich-ite) John Holdren are noting that way back in the 1970s he had favorable words for law professor Christopher Stone’s notion of extending to trees and other natural objects a right to sue, a concept endorsed by none other than Supreme Court Justice William O. Douglas. This prompts a poetic flight from one of Jonah Goldberg’s readers at National Review Online:
I think that I shall always rue
The day a tree got rights to sue.A tree whose hungry lawyer’s plea
Is filed on a contingency…
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This fall’s proposed European ban on incandescent bulbs, barbed with $70,000 fines, apparently makes no allowance for the upkeep of “works that take the lightbulb as a primary material, such as Laszlo Moholy-Nagy’s Light-Space-Modulator, which uses 140,” among works by Rauschenberg, Olafur Eliasson and a long list of other well-known artists. Another unpleasant effect on the art world will be to constrain the way installations can be lit, even if curators and others believe particular works are best served by incandescent illumination. [ARTINFO.com via Andrew Hazlett]
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There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”
Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.
The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.
A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))
A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.
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Waxman-Markey’s Easter eggs (earlier).
Point of Law Volokh