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.
- 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.
- Reforms billed as loser-pays advance in Texas, but they’re very scaled-down [WSJ, WLF and more, Legal Blog Watch, Wood/PoL, Cary Gray/Houston Chronicle, WSJ Law Blog, earlier]
- “Refutation of Toyota sudden acceleration hysteria doesn’t stop Toyota sudden acceleration litigation” [Ted at PoL]
- “Five Questions With Legal Scholar Richard Epstein” [Jamie Weinstein, Daily Caller; his views on Title IX]
- Employers glad for small favors: “Refusing to Hire Applicant Who Fails Drug Test Not an ADA Violation” [Robin Weideman, California Labor and Employment Law Blog; Ninth Circuit]
- “Study Shows Litigation Doesn’t Improve Nursing Home Safety” [Studdert et al, NEJM via Daniel Fisher]
- Risperdal? No thanks: “Mother battles Michigan over daughter’s medication” [AP]
- Personal-injury litigation plummets in Australia following enactment of state-level reforms [seven years ago on Overlawyered]
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”]
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.
- 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]
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]
- 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]
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.