Overlawyered » federalism

“Usually, to avoid detection…”

Walter Olson — Sun, 13 May 2012 13:26:32 +0000

“…we [Judge Janice Rogers Brown and I] dress as Lillian Hellman and Yosemite Sam respectively.” — Michael Greve on his participation in the presumed conspiracy to restore the dreaded “Constitution in Exile” of pre-New Deal days. [Liberty and Law]

Soon-to-be Prof. Greve (he will be joining the George Mason law faculty after many years at AEI) was at Cato this week to discuss his remarkable new book, The Upside-Down Constitution. At the risk of damning with faint praise, I will say that his book is the most stimulating work I know of on the subject of federalism to have been published in my lifetime. If I could sum up his thesis, it would be that one of the past century’s gravest constitutional malfunctions has been that the states (not a misprint, he means the 50 states) have overrun their proper role in the constitutional scheme. More on his thesis here, here, and, on “Madison’s nightmare,” here. In all seriousness, I recommend The Upside-Down Constitution highly; although it’s demandingly complex in places, I can’t imagine reading it without one’s understanding of the constitution, and federalism in particular, being permanently changed.

Tags: constitutional law, federalism

“Usually, to avoid detection…” is a post from Overlawyered - Chronicling the high cost of our legal system

Bring back federal common law

Walter Olson — Tue, 20 Mar 2012 16:31:28 +0000

Erie Railroad Co. v. Tompkins (1938) was the New Deal-era decision that directed federal courts to apply the law of the states in which they are located, and in so doing abolished a huge body of federal common law. In a new series of posts based on his book The Upside-Down Constitution, Michael Greve argues that Erie was wrongly decided and in practical terms a gigantic mistake that needs correcting. [Liberty and Law]

Tags: federalism, Supreme Court

Bring back federal common law is a post from Overlawyered - Chronicling the high cost of our legal system

Bribing states to spend and regulate

Walter Olson — Tue, 14 Feb 2012 05:12:34 +0000

In the earlier and sounder conception of federalism, local and national government were meant to check each other’s overweening power. Nowadays, unfortunately, the two often interact in a cooperative way to encourage bigger government at both levels, as Washington bribes the states to spend and regulate more. I explain at Cato at Liberty (& Damon Root, Reason).

Tags: federalism, regulation and its reform

Bribing states to spend and regulate is a post from Overlawyered - Chronicling the high cost of our legal system

February 8 roundup

Walter Olson — Wed, 08 Feb 2012 05:15:22 +0000

Popular proposal to curb Congressional insider trading (“STOCK Act”) could have disturbing unintended consequences [John Berlau, CEI "Open Market"] A contrary view: Bainbridge.
Here’s Joe’s number, he’ll do a good job of suing us: “Some Maryland hospitals recommend lawyers to patients” [Baltimore Sun, Ron Miller]
Bribing the states to spend: follies of our fiscal federalism, and other themes from Michael Greve’s new book The Upside-Down Constitution [LLL, more, yet more] “Atlas Croaks, Supreme Court Shrugs” [Greve, Charleston Law Review; related, Ted Frank]
“… Daubert Relevancy is the Sentry That Guards Against the Tyranny of Experts” [David Oliver on new First Circuit opinion or scroll to Jan. 23]
Goodbye old political tweets, Eric Turkewitz is off to trial;
State laws squelch election speech, and political class shrugs (or secretly smiles) [George Will]
Too bad Carlyle Group got scared off promising experiment to revamp corporate governance to curb role of litigation [Ted Frank, Gordon Smith] AAJ should try harder to use people’s quotes in context [Bainbridge]

Tags: arbitration, Baltimore, campaign regulation, Daubert, expert witnesses, federalism, hospitals, securities litigation, Twitter

February 8 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

June 30 roundup

Walter Olson — Thu, 30 Jun 2011 05:10:01 +0000

First Amendment wins as SCOTUS strikes down violent-videogame ban [Ilya Shapiro, Hans Bader] Justice Scalia cites “Snow White” and “Hansel and Gretel” [Ann Althouse]
More Wal-Mart v. Dukes analysis [Schwartz, Althouse, Trask, Fisher, Beck, Sergio Campos/Prawfs] And aftermath for the litigants and others: ABA Journal (Pelosi wants legislative fix), CLP (plaintiffs), Reuters (law firm that’s won hundreds of millions in class actions complains it’s sunk $7 million into the case), Ted Frank (responding to that), Bay Citizen (“Foundations Could Pull Plug on Wal-Mart Suit”).
“Would the REINS Act Rein In Federal Regulation?” [Jonathan Adler, Regulation magazine (PDF)]
“Hypotheses Are Verified By Testing, Not By Submitting Them To Lay Juries For A Vote” [David Oliver; Drug and Device Law on denture cream product liability suit]
Clash between federalism and some med mal reform proposals could have implications for ObamaCare battle [John Baker, Daily Caller; earlier]
Dan Snyder Gets a Taste of D.C.’s New Anti-SLAPP Law [Citizen Media Law, earlier]
Court skeptical of testimony of lap dance expert [Legal Blog Watch]

Tags: expert witnesses, federalism, First Amendment, regulation and its reform, videogames, Wal-Mart v. Dukes

June 30 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Medical liability reform: the federalism problem

Walter Olson — Tue, 24 May 2011 20:13:45 +0000

It’s quite real, I argue at Cato at Liberty — and I try to draw some distinctions as to ways Congress could usefully address liability without inserting itself into the proper business of the state courts. More: Adler, Volokh; Reynolds, Instapundit, Turkewitz, Childs/TortsProf, Beck/Drug & Device Law.

Tags: constitutional law, federalism, medical malpractice

Medical liability reform: the federalism problem is a post from Overlawyered - Chronicling the high cost of our legal system

Frontiers of federal criminalization

Walter Olson — Sat, 11 Dec 2010 05:04:06 +0000

A case called Bond v. U.S., arising from an admittedly bizarre fact pattern involving a wife’s attempt to injure a romantic rival, provides an opportunity to test the limits of extension of federal criminal law into areas that would ordinarily serve as the occasion of state-level prosecution. The Cato Institute has filed an amicus brief urging a narrow view of the proper federal criminal role in the case, in pursuit of the view that the federal government is one of limited, enumerated powers. [Ilya Shapiro, Cato]

Tags: Cato Institute, crime and punishment, federalism

Frontiers of federal criminalization is a post from Overlawyered - Chronicling the high cost of our legal system

June 23 roundup

Walter Olson — Wed, 23 Jun 2010 05:07:19 +0000

Judge blocks sweeping Obama administration ban on new offshore drilling [Roger Pilon, Cato] Some reasons judge may have found ban irrational [Lowry, NRO, scroll to reader comment; Gus Lubin, Business Insider] More on Jones Act waivers in the Gulf [Bainbridge, earlier]
Connecticut AG Blumenthal launches investigation of Google Street View [Rick Green, Courant]
Florida judge tosses out $10 million libel verdict against St. Petersburg Times [St. P.T.]
Lawyer in British Columbia suspends practice after bizarre jury tampering charges [CBC]
“Disclosed to death”: why laws mandating disclosure are so overused and overbroad [Falkenberg, Forbes on work of Omri Ben-Shahar and Carl E. Schneider, via PoL]
Judge dismisses controversial Pennsylvania case against Johnson & Johnson over Risperdal marketing, Gov. Rendell had hired major donor to run suit on contingency [LNL, McDonald/NJLRA, earlier]
Rick Hills vs. Ilya Somin on federalism and constitutional enforcement of property rights [Prawfsblawg, Volokh]
Beware proposed expansion of Federal Trade Commission powers [Wood, ShopFloor]

Tags: BP Transocean oil spill, Canada, Federal Trade Commission, federalism, Google, juries, Louisiana, oil industry, Pennsylvania, pharmaceuticals, privacy, Richard Blumenthal

June 23 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

SLAPP bill: advancing free speech at federalism’s expense?

Walter Olson — Sat, 13 Mar 2010 05:04:14 +0000

Ken at Popehat: “Let’s get this straight from the start: I’m in favor of anti-SLAPP statutes and vigorous legal protections for free speech. I’m just not convinced that federalizing libel law is the right way to go about it.” Earlier on the Cohen bill here.

Tags: federalism, libel slander and defamation

SLAPP bill: advancing free speech at federalism’s expense? is a post from Overlawyered - Chronicling the high cost of our legal system

November 16 roundup

Walter Olson — Mon, 16 Nov 2009 05:04:20 +0000

German law firm demands that Wikipedia remove true information about now-paroled murderers [EFF] More: Eugene Volokh.
“Class Actions: Some Plaintiffs’ Lawyers Fed Up, Too?” [California Civil Justice]
Drop that Irish coffee and back away: “F.D.A. Says It May Ban Alcoholic Drinks With Caffeine” [NYT]
Profile of L.A. tort lawyers Walter Lack and Thomas Girardi, now in hot water following Nicaraguan banana-pesticide scandal [The Recorder; my earlier outing on "Erin Brockovich" case]
Federalist Society panel on federalism and preemption [BLT]
Confidence in the courts? PriceWaterhouseCoopers would rather face Satyam securities fraud lawsuits in India than in U.S. [Hartley]
Allegation: Scruggs continuing to wheel and deal behind bars [Freeland]
Not much that will be new to longtime readers here: “Ten ridiculous lawsuits against Big Business” [Biz Insider] P.S.: Legal Blog Watch had more lists back in June.

Tags: alcohol, banana pesticide litigation fraud, Dickie Scruggs, Erin Brockovich, FDA, federalism, Federalist Society, Germany, India, preemption, Thomas Girardi, Wikipedia

November 16 roundup is a post from Overlawyered - Chronicling the high cost of our legal system