A Houston-based trial lawyer has some grandiose plans for snagging New York storm-insurance cases: Steve Mostyn “indicates his firm should be able to take on more than $1 billion in disputed claims — or half of all the Sandy litigation.” That’s assuming clients sign on, of course. One who did was a swim club owner from Pound Ridge who was frustrated dealing with New York lawyers and quickly signed a contract with Mostyn’s firm: “It is worth the 40 percent just for someone to listen to my story and be kind to me,” she said. [Austin American-Statesman]
Harold Lasswell and Myres McDougal’s influential article on legal education figures prominently in Schools for Misrule; Henry Manne says their scheme of actual classroom pedagogy did less well [Bainbridge]
Deanship of local plaintiff’s attorney at St. Louis U. is short, colorful [NLJ]
GW lawprof trips, falls at Denver Law event, now in court [Above the Law]
Law reviews requiring authors to sign indemnity clauses. Reason for alarm? [Dan Markel, Prawfs]
Out-of-touch law academy, vol. 18: Duke prof dismisses floodgates arguments on principle [Ted Frank]
“Should Law Reviews Consider Race When Selecting Articles?” (and do they?) [Josh Blackman]
Insurance is an undercovered topic in the law school curriculum, so Randy Maniloff decides to do an intervention [Coverage Opinions, PDF, lead article]
“Liability insurance” may be a misnomer, since some of the proposals would require the purchase of bonds against both intentional acts commonly excluded from ordinary liability coverage, and also misadventures for which owners would not presently be held legally responsible (such as third party criminal use of a gun following a theft not occasioned by owner negligence.) [Reuters, Nelson Lund/GMU, Jessica Chasmar/Washington Times, New York Times via Fed Soc, Taranto/WSJ, Josh Blackman]
Would a mandatory insurance scheme survive judicial scrutiny if it were motivated by a desire to burden the exercise of a constitutional right? David Rifkin and Andrew Grossman, WSJ:
Several states… are considering gun-insurance mandates modeled after those for automobile insurance. There is no conceivable public-safety benefit: Insurance policies cover accidents, not intentional crimes, and criminals with illegal guns will just evade the requirement. The real purpose is to make guns less affordable for law-abiding citizens and thereby reduce private gun ownership. Identical constitutionally suspect logic explains proposals to tax the sale of bullets at excessive rates.
The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?
P.S. The American Insurance Association is opposed to the more ambitious versions of the idea, at least: “Property and casualty insurance does not and cannot cover gun crimes.”
“A federal appeals court on Thursday ruled that insurance companies can be required to pay long-term disability benefits to a recovering drug addict if the person would face a significant risk of relapse by returning to work.” The First Circuit parted company with the Fourth, which has ruled the opposite way. [Jacob Gershman, WSJ Law Blog, subscription; Colby v. Union Security Insurance, PDF]
The “father of no-fault,” who died on Sunday at age 84, was an eminent torts professor at the University of Virginia, a public-spirited advocate of reform over many decades, and a renowned teacher. A valued friend and mentor, he was one of the most personally gracious and generous academics I’ve ever known. The New York Times has a good obituary. Just last year New Hampshireenacted an “early offers” statute encouraging prompt settlement of medical malpractice disputes partly inspired by Prof. O’Connell’s work. More: University of Virginia, Christopher Robinette/TortsProf.
As we were saying: “colleges, high schools and club teams may be forced to consider severe measures in the face of liability issues, like raising fees to offset higher premiums; capping potential damages; and requiring players to sign away their right to sue coaches and schools. Some schools and leagues may even shut down teams because the expense and legal risk are too high.” [New York Times, also describing a coverage battle between the NFL and its insurers]
“After disasters such as Superstorm Sandy, the natural inclination is to do everything possible to help people struggling to rebuild their homes, businesses and lives. But over the next couple of years, those good intentions will lead to a lot of foolish, even dangerous, decisions that will encourage people to rebuild in harm’s way.” [USA Today editorial via Ira Stoll]
From Reason.tv, and new to us, at least, if not exactly new, with vignettes on reef reconstruction, ethanol subsidies, and child health insurance (via Hodak Value). And from Mark Perry, “Some Great Examples of Unintended Consequences from Wikipedia’s Listing for ‘Perverse Incentives.’” An example, from an economics text by James Gwartney and Richard Stroup:
In the former Soviet Union, managers and employees of glass plants were at one time rewarded according to the tons of sheet glass produced. Not surprisingly, most plants produced sheet glass so thick that one could hardly see through it. The rules were changed so that the managers were rewarded according to the square meters of glass produced. The results were predictable. Under the new rules, Soviet firms produced glass so thin that it was easily broken.
Don’t miss the rat-farming and dinosaur-bone examples, either.
EPA continues crackdown on older-home renovation in the name of lead paint caution [Angela Logomasini, earlier, see also re: lab testing]
Solyndra’s many enablers: 127 in House GOP just backed federal energy loan guarantees [Tad DeHaven/Cato]
“In defense of genetically modified crops” [Mother Jones, no kidding] “How California’s GMO Labeling Law Could Limit Your Food Choices and Hurt the Poor” [Steve Sexton, Freakonomics]
Consultant eyed in Chevron-Ecuador case [PoL] Radio campaign targets conservatives on behalf of trial lawyers’ side [Fowler/NRO] Lawyer suing Chevron: “We are delivering a bunch of checks to [NY Comptroller] DiNapoli today” [NYP]
Getting taxpayers off the hook: Congress might curb flood insurance subsidies [Mark Calabria/Cato]
“Lessons from British Columbia’s Carbon Tax” [Adler]
Department of Transportation cracks down on distraction from cars’ onboard information and entertainment systems; Mike Masnick suspects the measure won’t work as intended, as appears to have been the case with early texting bans [Techdirt; earlier here, etc.] “Feds Push New York Toward Full Ban On Electronic Devices In Cars” [Glenn Reynolds, Instapundit; Truth About Cars]
Oh no: Scott Greenfield says he’s ceasing to post at his exemplary criminal defense blog after five years [Simple Justice, Dave Hoffman]
California not entitled to pursue its own foreign policy, at least when in conflict with rest of nation’s: unanimous “blockbuster” decision by en banc 9th Circuit strikes down law enabling insurance suits by Armenian victims [AP, Alford/OJ, Recorder, related, Frank/PoL]
Playboy model’s $1.2M award against Gotham cops is a great day for the tabloids [NYDN]
To hear a pitch for fracking-royalty suits, visit the American Association for Justice convention, or just read the New York Times [Wood, PoL]
Indian Child Welfare Act (ICWA) of 1978 blows up an adoption: “She’s a 2-year-old girl who got shoved in a truck and driven to Oklahoma with strangers.” [Reuters, SaveVeronica.org]
View from Massachusetts General Hospital: drug shortages getting “dire” [WBUR, earlier here, here, here, etc.]
Medical liability roundup: Sheriff arrives at Ohio doctor’s home to enforce $9.7 million award blaming lack of Caesarean section for cerebral palsy [TribToday] North Carolina legislature overrides Gov. Beverly Perdue’s veto of liability limits [News & Observer via White Coat] Trial-lawyer-friendly Florida Supreme Court could strike down malpractice award limits in pending case [Orlando Business Journal]
Relatedly, who was it who imagined anonymous denunciation of doctors was going to be a good idea? [Jay Hopkinson via Larry Ribstein]
New Medicare paperwork threat to clinical trials? [Beck]
Study: Elected coroners less likely to label deaths as suicide than appointed counterparts, family’s access to insurance benefits may be factor [Kevin B. O'Reilly, American Medical News]
“Gee, why wouldn’t Obama administration want judges and “public interest” lawyers running its new health care law?” [Mickey Kaus on New Republic report]
A House of Commons select committee “identified the principal cause as ‘a rapid growth in the number of personal injury claims management firms, which are using direct cold-call marketing techniques to encourage people to make claims who otherwise would not have done so’”. [Philip Johnston, Telegraph]
“The tree trunks, exposed banks and other hazards whizzing past represent a cornucopia of potential tort suits under U.S. law, yet somehow the Swiss manage to operate these runs without being sued into oblivion.” Dan Fisher at Forbes has a go at explaining why. More: Bill Childs, TortsProf (many U.S. states relatively protective of winter sports providers).
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]
“Connecticut’s second-highest court ruled Monday that a man facing charges of arson of his East Lyme beach house can sue the home’s insurer for emotional distress because of the way the insurer investigated the fire.” [Hartford Courant]
In 2007, on Highway 101 north of Ventura, Jeremy White plowed his pickup truck into a vehicle parked along the roadside, killing its driver and paralyzing a California highway patrolman who was standing alongside. White “pleaded guilty in September 2008 to gross vehicular manslaughter while intoxicated and selling and transporting marijuana. He was sentenced to 15 years.” While he had an insurance policy, its limit was a paltry $15,000. So which deep pockets will be left responsible for paying the nearly $50 million a jury has awarded in damages? The answer, apparently: 1) White’s insurance company, despite the policy limit, due to the magic of “insurance bad faith” law; 2) Bert’s Mega Mall in Covina, whose employees, according to the plaintiffs in the case, “didn’t properly strap down two dirt bikes in the back of White’s truck, which caused a distraction and contributed to the crash.”
After the trial ended Tuesday, the mall’s lawyer, Terrence Cranert, said they would appeal.
He said there was significant evidence the jury didn’t receive, including a statement from White’s passenger who told the CHP that he and White had stopped to smoke marijuana after leaving the mall. Cranert said they weren’t able to find White’s passenger for the trial, but felt the information should have been allowed.
The judge, however, disagreed.
White’s passenger also told the CHP that he and White went into the back of the truck and opened a tool box to get the marijuana, according to Cranert. “They would have to unstrap the motorcycles,” Cranert said.
“No refusal” DUI checkpoints spread and can result in mandatory blood tests for drivers; MADD cheers infringement of liberty [WTSP]
Teleworking regulations: a new way to sue your (federal) boss? [welcome Mickey Kaus/Newsweek readers]
“The federal government has been in the business of micro-managing our kids’ lunches for 30 years” [David Gratzer/Examiner] St. Paul, Minn. schools ban sweets, even when brought from home [Star-Tribune] Michelle Obama, Sarah Palin, and the Happy Meal lawsuit [John Steele Gordon, Commentary]
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