Posts tagged as:

Richard Epstein

Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.

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Law schools roundup

by Walter Olson on June 3, 2013

  • Law-school leftism is no longer a progressive force, argues Brian Tamanaha [Stanford Law and Policy Review, more] Paul Campos responds to critics of Tamanaha [UCLA Law Review via Caron]
  • Related: “Cleaning (one’s inbox) is its own reward: nice podcast re: law school reform that I took to gym (via @WalterOlson)” [@DavidLat]
  • Good news for law students? “Student Loans May Now Be Discharged More Easily In Bankruptcy in the 9th Circuit” [Karen Oakes, Bankruptcy Law Network] “Only if the law students don’t want to become lawyers.” [@moiracathleen]
  • No love lost: Mark Tushnet vs. Richard Epstein on Epstein’s new book Design for Liberty (PDFs)
  • “People’s Electric Law School”: George Conk recalls Rutgers-Newark’s salad days as a committed-Left law school at a state university [Fordham Urban Law Journal via Steele] Thoughts from Elizabeth Warren ’76 [Rutgers via @LegInsurrection]
  • “Assignment: defend the opponent’s viewpoint….” A dying art in the ideologized law school? [John Steele, Legal Ethics Forum]
  • John Murtagh hasn’t forgotten what Columbia prof/NYU “scholar in residence” Kathy Boudin did [NY Post]

Two personalities often linked in this space, Prof. Richard Epstein and Popehat’s Ken White, were both on Reddit yesterday doing an interactive feature called “Ask Me Anything.” Epstein’s is here, and White’s is here.

More: Epstein in response to a question on originalism: “The style of interpretation used by the founders was much more sophisticated than the attention to text. Implied limitations on government, as through the police power, were part of the picture, as were implied protections of the government, as with sovereign immunity. My new book out later this year, The Classical Liberal Constitution, addresses these issues.”

In response to a question about his rule-utilitarian rationale for libertarian principles: “My view is that the deontological explanations tend to fail because they cannot account for such common practices at Intellectual Property, taxation or eminent domain. The theory has no way to deal with forced exchanges, which is what taxation and eminent domain are about.”

On libertarianism and pollution: “externality control is an essential party of the overall libertarian theory, and that means control of nuisances. … It is a case where it is easier to mischaracterize a system than to understand it. Nuisance law has many distinctive remedial features and at times requires collective enforcement of the basic norm against invasion. But there is nothing about the theory which says that the way to make people happy and prosperous is to choke them.”

Also: why the movie Body Heat got the Rule Against Perpetuities wrong, and why he’s not a fan of the German way to organize legal academia.

And Ken White answers questions about when to talk to the police; pro bono cases he’s proud of having helped on; what to say to someone who wound up going to law school in part because of his blog; how having his identity “outed” affected his law practice; and three kinds of crazy case that result in Popehat posts.

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May 31 roundup

by Walter Olson on May 31, 2011

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In fields from land-use planning to drug development to labor relations, says the NYU law professor, “[e]xcessive regulations cause private firms to displace creative officers and entrepreneurial executives with the dull masters of compliance.” [Hoover Institution "Defining Ideas"]

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Let’s hope it doesn’t unfold that way, says Richard Epstein [Truth on the Market]

P.S. It looks as if from Congress will accord lawyers and some other professionals an exemption from Federal Trade Commission regulations on identity theft that would have lumped them in with more traditional lenders because they often do not bill clients at the time work is performed. Fair enough, one supposes, but also another indication of the truism that one’s success in dodging nonsensical regulation is often a function of one’s status as a potent lobby in Washington.

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November 26 roundup

by Walter Olson on November 26, 2010

  • Reason TV interviews Richard Epstein;
  • On the SEC’s big new “insider trading” sweep [Ribstein, Bainbridge, Lambert, Salmon, more Ribstein]
  • Losing = winning? Ambitious claim for fees in environmental case [California Civil Justice, scroll]
  • “Unintended consequences department: canceled flights” [Ted at PoL] And check out Ted’s new TSA Abuse Blog, on one of the hottest issues of the moment. More on that from Popehat and Simple Justice;
  • H.R. 1408, the Inclusive Home Design Act, would compel handicap accessibility in private home design, yet another dreadful idea from Rep. Jan Schakowsky of CPSIA fame [AmendTheCPSIA]
  • “This place would be a shoplifter’s paradise (and a liability insurance abuser’s motherlode) in the United States, but we were in Japan, where they don’t seem to worry as much about that kind of thing.” [Mark Frauenfelder, BoingBoing, on the Showa Kan museum of everyday midcentury life in Takayama]
  • UK: “I moved out for decorators and squatters took over my house” [Evening Standard]
  • From the ruins of Pompeii, a reflection on government and disaster relief [Dum Spiro Spero]

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The Transport Workers Union has filed suit to block the legalization of private van services that could run along city bus routes Mayor Michael Bloomberg has targeted for cuts. [Richard Epstein, Forbes]

June 21 roundup

by Walter Olson on June 21, 2010

  • After Mohawk Industries settlement, many employers could be sitting ducks for suits claiming that hiring illegal workers is RICO violation [Helman, Forbes, earlier]
  • Teen tries to help child lost in store, winds up facing felony rap of false imprisonment [Greenfield]
  • Federal magistrate in debt collection case: letter on law firm letterhead implies threat to sue [Legal Intelligencer]
  • On “professional” class action objectors [Ted at PoL]
  • Coal company claims ventilation system ordered by government regulators might have been a cause of deadly April mine explosion [WSJ]
  • Senate committee approves judicial nomination of John (“Jack”) McConnell, impresario of Rhode Island lead-paint litigation; William Jacobson explains critics’ charges regarding couching of legal fee as purported hospital donation [Legal Insurrection]
  • Hey, stop siphoning that oil slick, we haven’t checked your life jackets and extinguishers [GatewayPundit] Gulf oil rig registered for purposes of regulation in remote Pacific island chain [Legal Blog Watch] Richard Epstein on oil spill liability [WSJ] BP will never pay full price of accident [Popehat] Check back in 2031 to see how the litigation went [Alex Beam, Boston Globe]
  • American Constitution Society holds panel discussion on Iqbal and Twombly [BLT] “Is It Too Much to Ask That a Lawsuit Be ‘Plausible’?” [Richard Samp, WLF Legal Pulse]

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An update on the overreaching litigation of Dallas developer H. Walker Royall: “Prof. Richard Epstein Dismissed from Book-Blurb Libel Case, on Jurisdictional Grounds”. [Volokh, earlier here and here].

P.S. Commenter VMS points out that despite my choice of original headline, blurbing of books has by no means been made safe, since the judge dismissed Royall’s claim only on jurisdictional grounds that Epstein was not within the reach of the Texas courts. I’ve added to the post title accordingly.

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Royall pain to his critics

by Walter Olson on December 10, 2008

Jacob Sullum at Reason “Hit and Run” (Dec. 10):

I want to write a blog post about H. Walker Royall, the Dallas developer who sues people when they criticize his abuse of eminent domain, but I’m afraid he’ll sue me. After all, he sued Wright Gore III over a website that detailed the city of Freeport’s attempt to condemn land occupied by the Western Seafood Company, a business owned by Gore’s family, so Royall could use it for a luxury marina project. And he sued Carla Main, a journalist who wrote a book about the legal struggle over the Gores’ land, along with her publisher, Encounter Books [also a publisher of mine -- W.O.]. He sued University of Chicago law professor Richard Epstein, one of the country’s leading authorities on eminent domain, for writing a blurb that appeared on the cover of Main’s book. He even sued two newspapers that published reviews of the book.

So after thinking carefully about my potential legal exposure, I have decided not to say that Royall…

I can’t go on. I just can’t. I’m so scared of Royall that I can’t even repeat the colorful epithets that Sullum might apply to Royall if he dared (which he doesn’t) for fear that Royall will then find some excuse to sue me too. But you can go read them if you dare. More: Tim Sandefur, PLF on Eminent Domain.

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Microblog 2008-11-18

by Walter Olson on November 18, 2008

  • “Mark Cuban Buys SEC, Dismisses All Charges Against Himself” [Dateline Hollywood h/t @SecuritiesD] #
  • Ultra-close-up high-rez photos of spiders [Dark Roasted Blend] #
  • Overlawyered was down much of Tuesday, looks like problem was with a WP tag plugin exhausting memory #
  • New Bush regs: health providers must let religious employees pick and choose which care to assist with [Ronald Bailey, Reason "Hit and Run"] #
  • On behalf of his NYC fan base, huzzah for lawprof Richard Epstein who’s moving from U. Chicago to NYU [NLJ] #
  • Luggage that’s almost assured to draw scrutiny from TSA screeners in airport lines [Boing Boing via Happy Hospitalist] #
  • Entire 50-year run of Charles Schulz’s Peanuts comic strip now online [Comics.com via Feral Child] #
  • “Don’t close your blog’s comments” but read on, I cite some good reasons to close ‘em [Amy Derby] #

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The Chicago lawprof discusses the pending Supreme Court case on implied pre-emption:

…it is folly to act as if the private lawsuits attacking FDA warnings just backstop a porous and lax FDA. Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs. That risk is multiplied by hyperventilated state tort law that, in many instances, is lopsidedly pro-plaintiff.

(“Wyeth v. Levine Could Endanger Your Health”, Forbes, Nov. 11). Much more on the debate at Point of Law here, here, here, etc.

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New at Point of Law

by Walter Olson on November 3, 2008

If you’re not visiting my other site — or subscribing to it in your RSS reader, or following its Twitter feed — here’s some of what you may have missed lately:

An important all-day conference at AEI next week:

In the last several years, nearly every major pharmaceutical company has paid hundreds of millions of dollars to settle allegations of illegal “off-label” marketing of drugs. There has been a growing trend of actions by federal prosecutors, state attorneys general, and cooperating trial lawyers to litigate against pharmaceutical manufacturers for allegedly doing too much to promote off-label use of prescription products. Citing recent legal changes mandating exclusion from federal programs after a conviction, many manufacturers say they are forced to settle rather than risk defending themselves–even as prosecutions against individual executives have foundered in front of juries.

At this AEI Legal Center event, experts on both law and health care will present papers on the law, economics, medicine, and public policy of off-label marketing, discussing everything from the abuse of class action mechanisms to implications for the First Amendment and medical malpractice. Speakers include former Food and Drug Administration chief counsel Daniel Troy; former Cephalon general counsel John Osborn; former deputy attorney general George Terwilliger; principal deputy assistant attorney general and acting assistant attorney general for the Civil Division Jeffrey Bucholtz; attorneys Brian Anderson, James Beck, Mark Herrmann, Richard Samp, and Kyle Sampson; law professor Margaret Johns; and AEI scholars John E. Calfee, Theodore H. Frank, and Scott Gottlieb.

Panel I: Off-Label Marketing, R&D, and Medical Practice

Panel II: The Legal Environment from Federal Regulation and Enforcement

Panel III: Distortions from State and Private Enforcement

Panel IV: Legal Implications for Commercial Speech and Medical Practice

Register here. Earlier discussion on POL: Feb. 1; Feb. 19; Mar. 24; Dec. 17; Aug. 31; Aug. 22 (Richard Epstein); Aug. 1, 2006 (state AGs); Mar. 19 (InterMune indictment).

Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.

Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.

Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.

The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.

Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”

In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”

Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…

December 10 roundup

by Walter Olson on December 10, 2007

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Advice to Harvard professors: do not get into a battle of wits with Richard Epstein if you’re showing up unarmed.