Chronicling the high cost of our legal system
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You may recall a manufactured dispute over the former West Virginia Justice Richard Neely’s quote in The Product Liability Mess:
As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.
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I entered this as a comment on Ted’s earlier post, and figured it was worth giving separate post status:
I too have read The Product Liability Mess with minute attention, having written the Fortune magazine review of the book, which was among the more high-profile reviews it got. And Ted is right: the more context you supply for the quote from the rest of the book, the less doubt you will harbor that it was meant straight, not ironically.
Since Neely’s statements in the book were almost electrifyingly frank, I can’t say I am surprised that he would later find it expedient to back off from and indeed disavow them; aside from changing his mind on matters of policy (at least I assume he’s changed his mind), and the exigencies of his later practice as a plaintiff’s lawyer, we all assumed at the time that in his judicial role he would come under enormous pressure for seemingly having admitted to deciding cases in a way many would regard as illegitimate.
It is remarkable that he would now speak of wanting to sell books as a motivation while simultaneously maintaining that the passages in question were meant to be taken ironically. It was precisely because the statements were not presented as kidding around that they foreseeably called wide attention to the book. (This is also in tension with Thornburg’s theory that Neely was critically describing other judges’ thought processes but not his own. I have to wonder whether she, like others who have taken up this matter recently, sat down and read the book.)
After my Fortune review was published I met and got to know Neely; we appeared on panel discussions together and shared many conversations. Without breaking any confidences about the private talk, I will only observe that at the public appearances we did, he had ample opportunity to state that he had just been kidding or merely ironic in the passages at issue, which figured so prominently in my Fortune review, but I do not recall his taking any such opportunity. I do not know, by the way, whether I am the nameless reviewer he unkindly calls a simpleton, but I have reason to doubt it, since he subsequently gave an extraordinarily favorable blurb to my book The Litigation Explosion, for which I continue to be grateful.
The whole thing is regrettable on a number of levels. I continue to think the books Neely wrote in his early career (”How Courts Govern America”, etc.) have much to recommend them both in substance and in their clear, pungent style, and for many reasons regret the loss of the career as public intellectual on which he had seemed to be well launched.
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“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me. ”
– Richard Neely, Justice, West Virginia Supreme Court, The Product Liability Mess at 4
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In 2006, former West Virginia judge and justice Richard Neely wrote an article called “Arbitration and the Godless Bloodsuckers” (reprinted at the anti-consumer Consumerist) making a sensational claim: he had served as an arbitrator for the National Arbitration Forum, but because of his rulings denying attorneys’ fees, had been blacklisted from further arbitration proceedings because the “godless bloodsucker” banks (no, really, those are his words) had decided he was an “unacceptable” arbitrator. As part of the litigation lobby’s war on consumer choice in seeking legislation to force consumers to litigate even if they wish the opportunity for lower prices through agreeing to mandatory binding arbitration (see the Overlawyered section on arbitration), the claims have been repeated on multiple occasions, in Congressional testimony, in newspaper and magazine articles, in blogs, and even in the Overlawyered comments. Turns out, according to a response made by the National Arbitration Forum, that Judge Neely has made some claims that weren’t true:
Read the whole thing. Neely (who ruled on the merits 100% of the time for banks against their customers in the two debt collection cases he decided) was apparently so upset by his experience that he signed a new agreement with NAF after the events he claims to describe transpired. One wonders: has the plaintiffs’ bar retained Neely as a consultant on the issue, and he decided he could make more money bad-mouthing arbitration than as an arbitrator? One will never know—unless Neely discloses his conflicts of interest.
Richard Neely’s previous claim to fame was stating, while Chief Justice of the West Virginia Supreme Court, “As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so.” He’s had somewhat less success doing so as a plaintiffs’ attorney (June 2002).
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June 10 – Advertisement for “friendly” employee deemed discriminatory. In Bolton, England, a government job listing center has refused to accept an advertisement asking for a “friendly” applicant to manage a travel agency’s staff cafe. The travel agency’s manager said “we were told, ‘It’s discriminatory because some people may perceive that they are friendly even if you don’t’.” A spokeswoman for the government bureau that runs the job center service acknowledged that “somebody’s been a little over-zealous,” but also said: “We’ve got to be very careful when we get adverts so we don’t discriminate against anybody.” (”Jobcentre comes under ‘friendly’ fire”, BBC, Jun. 7). (DURABLE LINK)
June 10 – Profiling: a Democrat outflanks Ashcroft. On CNN last week, California Democratic Sen. Dianne Feinstein spoke frankly of the need for some measure of ethnic profiling in both air passenger security and intelligence gathering — a position that places her considerably to the right of Attorney General John Ashcroft and his colleagues in the Bush Administration, who continue to deny any such need. (Chris Weinkopf, “Sanity, not bigotry, calls for profiling”, L.A. Daily News, Jun. 9). (DURABLE LINK)
June 10 – Sin-suit city. In Las Vegas, ripples continue from the word that some lawyers and activists are eyeing the hometown industry as their nominee for Next Tobacco (”Organization: Casinos could be sued”, Las Vegas Review-Journal, Jun. 6; see May 31, May 20-21). And on the food-suit front, a major British newspaper, the Independent, has claimed that corporate machinations make healthful and low-calorie foods simply unavailable to Middle Americans, an assertion that columnist Jacob Sullum calls “such an audacious misrepresentation that I don’t know whether to refute it or simply stand in awe.” (Andrew Gumbel, “Fast Food Nation: An appetite for litigation”, The Independent, Jun. 4 (profile of anti-tobacco and anti-food industry law prof John Banzhaf)(alternate site); Jacob Sullum, “Big fat lie”, Reason Online, Jun. 7). (DURABLE LINK)
June 7-9 – “Tough tobacco laws may not deter kids”. Now they tell us dept.: “Stopping kids from buying cigarettes has become a centerpiece of anti-smoking campaigns, but a new study finds that cracking down on merchants doesn’t prevent underage smoking.” (Jim Ritter, Chicago Sun-Times, Jun. 3; Caroline M. Fichtenberg and Stanton A. Glantz, “Youth Access Interventions Do Not Affect Youth Smoking”, Pediatrics, Jun.) (via MedPundit, Jun. 5)(see Sept. 16, 1999). (DURABLE LINK)
June 7-9 – “Legal Fight Over Chemical Leak Ends With Whimper”. “Attorneys who won $38.8 million in West Virginia’s first class action toxic tort case have agreed to settle for a fraction of that amount after a federal appeals court ruled their original victory was based on the testimony of a witness who did not know what he was talking about.” FMC Corp. will instead pay only $1.35 million, which “will cover about $500,000 in litigation expenses but nothing for fees”, according to the plaintiff’s counsel, attorney/author and former state chief justice Richard Neely. (Peter Page, National Law Journal, Jun. 4). (DURABLE LINK)
June 7-9 – Helmets for roller skaters. First it was motorcycles, then bicycles, and now the anti-fun brigade, in the form of the California state senate, has voted to extend mandatory helmet-wearing to riders of skateboards, non-motorized scooters and even roller skates. (”Senate OKs helmet law for skateboarders”, AP/Contra Costa Times, May 17). (DURABLE LINK)
June 6 – Airlines sued over alleged profiling. “Washington is in its third week of self-flagellation over why the U.S. government couldn’t prevent the Sept. 11 hijackers from commandeering four planes and slamming them into the World Trade Center and the Pentagon. Meanwhile, with no sense of irony, the ACLU, the American-Arab Anti-Discrimination Committee, and some other groups are launching five separate lawsuits over cases of men being removed from airplanes. The ACLU is party to three of the suits.” (Jonah Goldberg, “Flying While Arab”, National Review Online, Jun. 5). The men were removed from planes or denied boarding in various incidents late last year after airline employees or co-passengers deemed them suspicious in behavior or appearance. “The airlines named in the suits are American, Continental, Northwest and United. Most of the companies responded strongly to the suits yesterday, denying allegations of prejudice.” (”Lawsuits Accuse 4 Airlines of Bias”, Washington Post, Jun. 5; Niala Boodhoo, “Rights Groups Hit Airlines with Post-Sept. 11 Suits”, Reuters/ Yahoo, Jun. 4).
Many opponents of passenger profiling (including, frequently, officials within the Bush administration) act as if it were flatly impermissible to apply even the slightest bit more scrutiny to young male Arab fliers with Muslim first names than to elderly Dutch nuns — a position that at least has the merit of bright-line clarity and consistency, however suicidal it could prove in practice. Curiously, the lawyers filing the latest suits seem to be taking pains to stake out a critique of profiling that is less absolutist and makes more concessions to the threats made manifest last Sept. 11. Thus Reginald Shuford, an ACLU lawyer based in New York, says his clients are resigned to a “higher level of scrutiny when they fly, more security checks” but suggests that further extra scrutiny becomes intolerable once fliers have “cleared all security checks [and are] sitting on the airplane”. (Why? He doesn’t say.) Even Ibish Hussein, of the American- Arab Anti- Discrimination Committee, acknowledges that it’s “a tricky situation” and says of refusals to fly passengers: “It’s understandable, but it’s not acceptable.” (Alexandra Marks, “New lawsuits aim to curb racism aboard airplanes”, Christian Science Monitor, Jun. 5). Despite this concessionary- sounding language, with its seeming recognition of the unavoidability of judgment calls and gray areas, at least three of the suits ask for the airlines to be subjected to punitive damages. See also Eugene Volokh, Volokh Conspiracy weblog, Jun. 4. (DURABLE LINK)
June 6 – Alexa “Editor’s Pick”. The editors of indexing service Alexa have selected various sites in the category of “Legal Reform”, with you-know-who leading the pack (June 5). This site’s front page clocks in at #94,327 in Alexa’s traffic ratings, a little ahead of Virginia Postrel (#103,177) and nipping at the heels of Matt Welch (#90,063) and Mickey Kaus (#78,754) — though we have no idea how reliable all these numbers are. Update: not very reliable at all, says Glenn Reynolds (Jun. 6) (DURABLE LINK)
June 5 – “Remove child before folding”. “Americans are not losing their minds, but they are afraid of using their minds. They are afraid to exercise judgment — afraid of being sued.” Not-to-be-missed George Will column ties together overprotective playgrounds, fear-of-asbestos verdicts, demoralized obstetricians and public employee tenure and tips the hat to author Philip Howard’s new organization Common Good, which intends to call public attention to legal excess on a regular basis (Washington Post, June 2). In April, Common Good released the results of its first study, in association with the AEI-Brookings Joint Center, on defensive medicine: “Concerns about liability are influencing medical decision-making on many levels. From the increased ordering of tests, medications, referrals, and procedures to increased paperwork and reluctance to offer off-duty medical assistance, the impact of the fear of litigation is far-reaching and profound.” (”The Fear of Litigation Study: The Impact on Medicine”, AEI-Brookings Joint Center Related Publication, April (abstract), (full text, PDF format) (DURABLE LINK)
June 3-4 – Australian party calls for banning smoking while driving. The Australian Democrats, a small but non-fringe political grouping, have called for a ban on smoking cigarettes while driving. “If using mobile phones is illegal, so should cigarette smoking in cars because of its capacity to distract drivers,” said party official Sandra Kanck in a statement. “Ms. Kanck called for legislation to also ban smoking cigarettes in vehicles transporting children. ‘Parents and other adults shouldn’t subject young people to the carcinogenic dangers of side-stream smoke in cars, yet it is common to see this happening,’ she said.” (”Democrats call to ban smoking while driving”, AAP/West Australian, May 31; see Oct. 5, 2001, Dec. 29, 1999). And although anti-tobacco campaigners are crowing about a recent court verdict in Australia against British American Tobacco, blogger “Max Power” (May 23) suggests the verdict may reflect one judge’s idiosyncratic view of company document retention obligations. (DURABLE LINK)
June 3-4 – Penthouse sued on behalf of disappointed Kournikova-oglers. Dignity of the law dept.: The skin mag has already paid to settle the legal claim of a woman whose topless images it mistakenly ran as those of Anna Kournikova, and “now Miami, Florida lawyer Reed Stomberg has filed a class-action lawsuit on behalf of himself and every other male who purchased the June issue. Stomberg explains, ‘The sole reason I paid the $8.99 was for the alleged Anna pictorial. I bought it for a friend of mine, not to say I didn’t take a quick peek at the pictures.’” (IMDB People News, May 30) (& welcome WSJ Best of the Web readers). (DURABLE LINK)
June 3-4 – Sue foodmakers for obesity? Of course! In response to its publication (see May 27) of an article critically examining the push for class actions against purveyors of calorie-laden foodstuffs, Salon draws a big sack of mail from its readers, including a couple of amusingly hysterical attacks on author Megan McArdle (May 31). (DURABLE LINK)
June 3-4 – “Top Ten New Copyright Crimes”. Satire making the rounds on what could soon land you in trouble if ideas of creators’ rights continue to proliferate: “10. Watching PBS without making a donation … 9. Changing radio stations in the car when a commercial comes on. … 7. Getting into a movie after the previews, but just in time for the main feature. … 5. Inviting friends over to watch pay-per-view.” (Ernest Miller, LawMeme, May 2 & May 8). (DURABLE LINK)
June 3-4 – Sick in Mississippi? Keep driving. Malpractice-suit crisis, cont’d: “You are driving through Mississippi and you develop a serious pain in your side. What do you do? If you are smart, you keep on driving until you reach the border.” (Dick Boland, “Sue your way to the morgue”, Washington Times, May 25; see Apr. 5) Evidence that he may not entirely be joking: Ed Cullen, “Natchez doctors eye Vidalia”, Baton Rouge Advocate, May 19 (doctors in Natchez, Miss. consider transferring practices to Vidalia, La., across the river). (DURABLE LINK)
Point of Law Volokh