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Richard Blumenthal

Six months ago the Delaware Supreme Court upheld the right of an enterprise to include a loser-pays provision in its bylaws, specifying that losing shareholder-litigants would have to contribute reasonable legal fees to compensate what would otherwise be loss to other owners. Since then there’s been a concerted campaign to overturn the ruling, either in the Delaware legislature or if necessary elsewhere. But as I argue in a new Cato post, allowing scope for freedom of contract of this sort is one of the best and most promising ways to avert an ever-rising toll of litigation. Contractually specified alternatives to courtroom wrangling have played a vital role, and are under attack for that very reason, in curbing litigation areas like workplace and consumer arbitration, shrinkwrap and click-through disclaimers of liability, and risk disclaimers at ballparks and elsewhere. (& Stephen Bainbridge).

To the extent America has made progress in recent years in rolling back the extreme litigiousness of earlier years, one main reason has been the courts’ increased willingness to respect the libertarian and classical liberal principle of freedom of contract. Most legal disputes arise between parties with prior dealings, and if they have been left free in those dealings to specify who bears the risks when things go wrong, the result will often be to cut off the need for expensive and open-ended litigation afterward.

More on the Delaware bylaw controversy: D & O Diary (scroll), Andrew Trask on state of the merger class action, WSJ Law Blog first and second, Daniel Fisher, and ABA Journal in June, Alison Frankel/Reuters (forum selection bylaws).

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October 11 roundup

by Walter Olson on October 11, 2010

  • “Feds seek to halt inmate’s frequent lawsuits” [AP; J.L. Riches]
  • “SeaWorld Blasts ‘Improper’ Suit Over Trainer’s Death” [OnPoint News, earlier]
  • Does new NY law serve as road map for charities that wish to defy donor intent? [CultureGrrl]
  • Cruise ship case an example of tensions that arise when defense lawyers jump fence to join plaintiffs’ side [Julie Kay, DBR]
  • More on Connecticut AG Richard Blumenthal’s “my lawsuits create jobs” stance [Bainbridge; related, New York Times Magazine (opponent MacMahon: "His business is suing people.")]
  • Australia: “Autistic student sues over test” [The Age]
  • “The most conservative court? Hardly” [Jacoby, Globe] And Justice Breyer, for one, has “rejected the notion that the U.S. Supreme Court has a pro-business slant and said the court doesn’t rule in favor of companies any more frequently than it has historically.” [Bloomberg via Adler, Volokh]
  • “Abducted by aliens? Call now for compensation” [four years ago on Overlawyered; Germany]

September 9 roundup

by Walter Olson on September 9, 2010

  • “Bullying Busybody for Senate: How Connecticut’s attorney general beat Craigslist into submission” [Sullum, Harper] Blumenthal’s Senate campaign sputtering despite huge advantages [Jack Fowler, NRO] Lloyd Grove interview with challenger Linda McMahon [Daily Beast]
  • “How Much Does Defensive Medicine Cost? One Study Says $46 Billion” [WSJ Health Blog, NY Times] Plus: a cardiologist’s comment;
  • “Man sues over parking ticket, says it disclosed too much info” [Obscure Store, suburban Chicago Daily Herald]
  • New allegations emerge in much-discussed “rape by deception” case in Israel [FrumForum, earlier, an academic comments]
  • A Connecticut village turns down money from Hartford and tackles a historic preservation project on its own [me at Cato]
  • NY Governor signs bill giving housekeepers, nannies new powers to sue employers for overtime, vacations [Workplace Prof] Plus: Hans in comments wonders whether the duty to avoid “hostile environment” harassment will collide with the right of free speech on sexual matters taken for granted (heretofore, at least) in a home environment.
  • “Lawyers sue Facebook for letting kids like advertisements” [Gryphon, PoL]
  • Per his foes, Gilded Age NYC trial lawyer William Howe used onion-scented handkerchief to summon tears at command [five years ago at Overlawyered]

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His hometown newspaper, the Greenwich Time, profiles the Connecticut attorney general who’s now running for Senate against Republican nominee and televised wrestling impresario Linda McMahon. Jane Genova, previewing the race at Pajamas Media, quotes me on the competing forms of showmanship involved:

Walter Olson, senior fellow at the Cato Institute… puts it this way: “So now Blumenthal, known for years of legal posturing and grandstanding against business opponents, will face off against someone known for building the World Wrestling Entertainment empire. I’d say the two operations actually resemble each other in many ways, except the spectacles Blumenthal puts on have been more stagy and less dignified, and the opponents getting beaten up aren’t there of their own free will.”

August 13 roundup

by Walter Olson on August 13, 2010

  • Lawyer sued for sexual harassment countersues, wins $1.55 million in damages [The Recorder]
  • Court rejects another challenge to tobacco multistate settlement agreement [Sullum, Reason]
  • European human rights claim: “Fury as German doctor seeks injunction against victim’s sons” [Daily Mail]
  • New CPSC rulemakings on CPSIA testing frequency and component testing could sink many small businesses [Woldenberg]
  • Connecticut AG Blumenthal picks fight with life insurers [Hartford Courant, with comments]
  • Undies moral: “Excess litigiousness is part of the whole shebang of dangerizing everything.” [Skenazy, Free-Range Kids]
  • “False-Marking Suits Head for a Showdown” [Robbins, Texas Lawyer]
  • “I think my years in the [adult film] industry will make me a great lawyer.” [Above the Law]

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July 30 roundup

by Walter Olson on July 30, 2010

  • Hilton Head dispute over pet turkeys leads to $4.25 million verdict [Island Packet via Lowering the Bar]
  • “Lucasfilm lightsaber legal threat letter sells for $3,850″ [BoingBoing, earlier]
  • Raw milk: “If The Government Says That It’s Not About Freedom, Then It’s Just NOT” [Ken at Popehat vs. L.A. Times]
  • Dell “failed to stress” accounting disclosure. SEC: that will be $100 million [TJIC]
  • Dodd-Frank dubbed “Lawyers’ and Consultants’ Full Employment Act of 2010″ [Mark Perry, WSJ Law Blog]
  • “Did liberal judges invent the standing doctrine? An Empirical Study of the Evolution of Standing, 1921-2006″ [Ho/Ross, Stanford Law Review]
  • Office of Connecticut AG Blumenthal doesn’t emerge with glory from fertility doctor case [Pesci]
  • Massachusetts high court tosses 125-year-old rule: owners now face wider liability for snow/ice hazards [Globe]

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Hans Bader of the Competitive Enterprise Institute informs me that Connecticut’s Richard Blumenthal has in a sense won his recount after all: a recalculation taking into account a bit of overlooked data has now moved him up from #3 to #2 on this year’s list, though he’s still essentially tied with Oklahoma’s Drew Edmondson. In first place: California’s Jerry Brown, while perennial favorites Patrick Lynch of Rhode Island and Darrell McGraw of West Virginia fill the #4 and #5 places, and a newcomer, William Sorrell of Vermont, makes an appearance at #6.

More: Bader in the Examiner on the selection process.

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At only #3, Connecticut’s Richard Blumenthal demands a recount [Hans Bader, CEI, PDF]

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June 23 roundup

by Walter Olson on June 23, 2010

  • 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]

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June 14 roundup

by Walter Olson on June 14, 2010

  • Study: Lawyers overestimate their chance of prevailing in litigation [Post, Volokh]
  • Novell court victory might spell end to SCO Linux-infringement claims [GrokLaw, earlier]
  • “Law firms violating copyrights?” [Mister Thorne]
  • Lawyers say New Jersey money-laundering statute “uniquely criminalizes the mere possession of U.S. currency” [NJLJ]
  • Ted Frank vs. critic on $28 million Sacramento nursing home award [PoL]
  • Advocates push “right to development” for developing countries [Kelly, Global Governance Watch]
  • For once Connecticut AG Blumenthal wants a damage award reduced [Hartford Courant, earlier at PoL]
  • “Did You Know That the Real World Has an STD Waiver?” [Mystal, AtL]

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June 10 roundup

by Walter Olson on June 10, 2010

  • Compensation awards to soldiers in the UK: £161,000 for losing leg and arm, but £186,896 for sex harassment? [Telegraph]
  • Judge in banana pesticide fraud case says threats have been made against her and against witnesses [AP, L.A. Times]
  • Teacher plans to sue religious school that fired her for having premarital sex [Orlando Sentinel]
  • Now sprung from hoosegow, class-actioneer Lerach on progressive lecture circuit and “living in luxury” [Stoll, Carter Wood at PoL and ShopFloor (Campaign for America's Future conference), San Diego Reader via Pero]
  • Connecticut law banning “racial ridicule” has palpable constitutional problems, you’d think, but has resulted in many prosecutions and some convictions [Volokh, Gideon]
  • Gone with the readers: newsmagazines, metro newspapers facing fewer libel suits [NY Observer] More: Lyrissa Lidsky, Prawfs.
  • Having Connecticut press comfortably in his pocket helped Blumenthal turn the tables against NY Times [Stein/HuffPo] Must not extend to the New Britain Herald News, though;
  • Interview with editor Brian Anderson of City Journal [Friedersdorf, Atlantic] I well remember being there as part of the first issue twenty years ago.

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An editorial in today’s Wall Street Journal (paywall) quotes me on the subject:

The AG has challenged the verdict, but the Kolb case [Gina Kolb, formerly Gina Malapanis] fits a pattern that the Cato Institute’s Walter Olson calls “bullying, legally ill-founded ventures into litigation.” From his leading role in the tobacco lawsuits of the 1990s to trying to repossess bonuses to AIG executives, Mr. Blumenthal has cultivated a reputation as the Eliot Spitzer of Connecticut.

For more on some of the cases that have brought Blumenthal his reputation as a bully and grandstander, start here, here, and here. And William Saletan at Slate is out with the piece I wish I’d written comparing Blumenthal’s repeated misstatements on his service record with the sorts of misrepresentations for which he’s gone after marketers and other businesses over the years.

For some light on how Blumenthal happened to obtain a photo opportunity in a VFW hall to denounce his critics, check out this post by Ronald Winter.

May 18 roundup

by Walter Olson on May 18, 2010

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May 5 roundup

by Walter Olson on May 5, 2010

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The “grandstanding” Connecticut attorney general, notes Mike Masnick at TechDirt, is now publicly decrying Craigslist for turning a profit from sex ads. Why is it turning a profit? Well, the ads used to be free, but Craigslist started charging fees after Blumenthal himself (with fellow AGs) demanded that it do so, the idea being that a credit card trail would scare off some illegal users and make it easier for police to crack down on others.

Blumenthal, a longstanding bete noire of this site, is now running for the U.S. Senate seat held by the departing Chris Dodd. More: New York Times on his Senate bid (rough start, “Martha Coakley in pants”).

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March 4 roundup

by Walter Olson on March 4, 2010

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At Point of Law I’ve got a post up about a significant embarrassment — $18 million worth — for veteran Connecticut Attorney General (and now Senate candidate) Richard Blumenthal.

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I was a guest this morning on Ray Dunaway’s show on WTIC 1080 (Hartford) to discuss Democrat Richard Blumenthal’s bid to replace Chris Dodd in the U.S. Senate. I’ve been covering the Connecticut attorney general’s legal record for years here at Overlawyered as well as at my other site, Point of Law. For details on his bullying, legally ill-founded ventures into litigation against gun makers and dealers, check here, here, here, here, etc., while for the aromatic tobacco-fee angles, you can start here and here. For the time he sued his own state client, see this 2002 post (& welcome Instapundit, New York Post readers).

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