The close working relationship between some state attorneys general and private trial lawyers — in which the AGs hire the lawyers to represent their states for a percentage fee of the haul — is not a new topic to us here at Overlawyered, but it’s nice to see it getting aired at length in the Dec. 18 New York Times piece by reporter Eric Lipton. The title gives a good introduction: “Lawyers Create Big Paydays by Coaxing Attorneys General to Sue” and in fact the private lawyers who commonly pitch the suits are themselves sometimes former state attorneys general, such as Michael Moore of Mississippi (of longstanding fame here), Patricia Madrid of New Mexico, Patrick Lynch of Rhode Island, Drew Edmondson of Oklahoma, and Peg Lautenschlager of Wisconsin. A few excerpts:
- Law firm donations to AGs or “party-backed organizations that they run” “often come in large chunks just before or after” inking contracts to represent the state. A sidebar chart, “Political Gifts from Plaintiffs Lawyers,” confirms that most of the money flows to partisan attorney general associations ($3.8 million to Democrats and $1.6 million to Republicans over a decade) or state parties ($1.5 vs. $445,000) as opposed to candidates directly ($2 million vs. $240,000, not counting AGs running for governor).
- When various AGs signed a brief to the Supreme Court supporting the plaintiff’s side in a securities litigation case, it was after being sedulously cultivated to do so by the lawyers.
- “…at least three former attorneys general are pitching painkiller abuse cases to states nationwide, although no state has yet publicly signed up.” More on the Chicago and California-county painkiller cases here.
- Yes: “‘Farming out the police powers of the state to a private firm with a profit incentive is a very, very bad thing,’ said Attorney General John Suthers of Colorado, a Republican and a former United States attorney.”
Full article, again, here. Michael Greve has further commentary on why it’s often AGs from small states who take the lead and whether business really started it all.
From James Taranto’s “Best of the Web” Wall Street Journal column, under his recurring “Two Papers in One!” series:
- “Buried in the fine print of most contracts for cellphones, health insurance and credit cards is a clause requiring that all disputes be decided by binding arbitration, rather than a court. Businesses love these provisions, because arbitrators act quickly and almost always rule in their favor, and many employers are requiring new hires to sign similar agreements. All of this sounds pretty unfair, but apparently not unfair enough for the Supreme Court, which has now made the arbitration process even more onerous.” — editorial, New York Times, June 27, 2010
- “In lieu of litigation and jury trials, each of which is expressly waived, any dispute concerning, relating or referring to this Participation Agreement, the brochure, or any other literature concerning your trip or the Tour shall be resolved exclusively by binding arbitration in New York City, New York, according to the then existing commercial rules of the American Arbitration Association. Such proceeding will be governed by the substantive law of the State of New York. The arbitrator(s) and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Participant Agreement, including but not limited to any claim that all or any part of this Participant Agreement is void or voidable.” — Times Journeys Terms and Conditions, NYTimes.com, 2014
We live in a golden age of Supreme Court coverage, and then there’s Linda Greenhouse [David Henderson on Michael Cannon]
P.S. Likewise on the Canning decision [Nicholas Quinn Rosenkranz]
New York Times columnist Tim Egan takes a swing at Wal-Mart, and Wal-Mart swings back.
P.S. Now expanded into a longer post at Cato — don’t miss the (very good!) views of Obama administration chief economist Jason Furman. (& Scott Shackford, Reason)
For those who freaked out at those headlines Thursday, Daniel Fisher at Forbes has a corrective to the New York Times’ latest story advancing the trial lawyer campaign against arbitration. More: Eric Goldman. Sequel: General Mills quickly withdraws new policy, perhaps reasoning that even when the New York Times is wrong, a consumer marketing company really can’t win trying to argue with it. Yet more: Dave Hoffman with an analysis of whether the language actually creates a contract.
Fifty years ago yesterday the Supreme Court handed down its greatest tort reform decision — just for you. [Related 2003 Baseball Crank post on federalism.]
…the U.S. Supreme Court heard argument in what was to become one of its most celebrated tort reform decisions. A profitable national manufacturer had been sued in a distant rural state in which it was decidedly unpopular, resulting in a runaway jury verdict which it sought to challenge on appeal. Pointing out the disadvantages of unpredictable and locally variable tort standards, the corporation’s lawyers pushed for a more uniform and modern standard of liability suited to a nationwide market, which the high court agreed unanimously to develop for the occasion and impose on state courts. And ever since 1964, the winning party in the case — that is to say, the New York Times Company — has taken a sympathetic editorial interest in the plight of other national businesses subjected to runaway verdicts in local courts.
Well, OK, maybe not that last sentence. But the rest of it did happen, in the celebrated case of New York Times v. Sullivan.
In an article today on challenges facing older jobless workers, New York Times reporter Michael Winerip asserts that “Since the Supreme Court ruling [Gross v. FBL Financial Services, a 2009 Supreme Court ruling that made it slightly more difficult to win suits] most lawyers won’t even take age discrimination cases.” Connecticut employment-law blogger Daniel Schwartz wonders where that claim comes from, since the number of EEOC charges in age-bias cases has gone up, not down, since 2009, and since “NELA – the National Employment Lawyers Association — continues to put forward CLE programs discussing how to advance ADEA claims. … So, where did the Times get this assertion from? I’ve hunted for a source but have yet to find one.” [Connecticut Employment Law Blog]
“Then the lawyers pounced.” [Joe Nocera, "Justice, Louisiana Style," New York Times, earlier]
Jacob Sullum does not weary of pointing out the paper’s repeated misreporting about the “Stand Your Ground” principle, misreporting not unrelated to the efforts of campaigners from the Legal Left who have sought to wring ideological advantage from the Martin-Zimmerman case.
New SEC chairman Mary Jo White shows better sense about it than some newspaper editorialists that could be named [Louise Bennetts, Cato]
Ira Stoll catches the New York Times being tendentious again [SmarterTimes]:
…one reason that Texas is at or near the top of the nation in terms of workplace fatalities is that it is at or near the top of the nation in terms of the number of workers and how many hours they work. If you adjust for that, and take the rate of workplace fatalities — that is, the number of fatalities from workplace injuries per 100,000 full-time workers, Texas isn’t worst in the nation, but somewhere in the middle…
Related: Josh Barro, Steven Greenhut (California as comparison).