Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for November, 2006

Election observation

I seldom agree with Kevin Drum of Washington Monthly, but I don’t think he’s entirely off base here about one of the factors behind yesterday’s Republican wipeout:

* Terri Schiavo and Katrina. This is sort of a gut feeling on my part, but I think it was the combination of these two things within a couple of months of each other that really hurt Republicans last year, not either one alone. The contrast was deadly: the Republican Party (and George Bush) showed that they were capable of generating a tremendous amount of action very quickly when the issue was something important to the most extreme elements of the Christian right, but were palpably bored and indifferent when the issue was the destruction of an American city. It’s hard to think of any two successive issues painting a clearer and less flattering picture of just what’s wrong with the Republican Party leadership these days.

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November 8 roundup

  • Post-election roundup from me and Walter. [Point of Law]
  • Black helicopter crowd calls 90-10 Amendment E (Oct. 27) loss a fraudulent conspiracy. [Lattman]
  • University of Michigan seeks to engage in frivolous litigation to strike down measure barring racial preferences. [Bernstein @ Volokh]
  • Patron drinks, dances on bar, sues bar when she falls down. [Above the Law; Lattman; TortsProf]
  • Can KFed use custody battle to renegotiate “ironclad” prenup? (NB that, unless prenup says otherwise, Britney Spears may be required to spring for Federline’s attorneys.) [TMZ via Defamer]
  • Speaking of which, here’s a divorce case with a legal bill of $3M and counting. [Forbes]
  • The litigious Michael Crook, unhappy that others are posting screen-caps of his mug. [Boing Boing]
  • “Sometimes patients and their families DON’T want to hear good news.” A tale of a Social Security disability seeker. [Rangel]

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November 7 roundup

  • My informal debate with Professor Silver over the effect of reform on physician supply continues. [Point of Law; Silver]
  • If you’ve been intrigued by Professor E. Volokh’s idea of medical self-defense (and thus payment for organs) as a constitutional right, he’ll be discussing it with Richard Epstein and Jeffrey Rosen at AEI. [Volokh; Harvard Law Review @ SSRN; AEI]
  • Peter Wallison on how over-regulation and over-litigation is killing American competitiveness in the capital markets. [Wall Street Journal @ AEI]
  • Press coverage is finally starting to break through in the Milberg Weiss scandal with a lengthy Fortune profile. [Point of Law]
  • Economists and scholars file Supreme Court amicus brief calling for federal preemption of state “anti-predatory lending laws” in important Watters v. Wachovia case. [Zywicki @ Volokh; CEI]
  • One-sided coverage by the New York Times on the issue of web accessibility for the blind. Earlier: Oct. 27; Feb. 8. [New York Times]
  • Deep Pocket Files update: MADD tries to intervene in stadium vendor case where appellate court tossed $105 million verdict because of unfair trial. See Aug. 4 and links therein. [New Jersey Law Journal]
  • Lawsuit: my dead father’s baseball card mischaracterizes his nickname. [Lattman]
  • Lawsuit: I have legal right to the letter W. [Times Record News via Bashman]
  • Samuel Abady and Harvey Silverglate on libel tourism. [Boston Globe via Bashman]
  • Another roundup of Justice Robert Thomas libel lawsuit stories. [Bashman]
  • $15M Minnesota verdict blaming a delayed delivery for cerebral palsy, despite evidence it was caused by an unrelated infection. [Pioneer Press]

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No on state marriage amendments

“The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law.” (David Boaz, “Marriage measure is an amendment too far”, Examiner.com, Oct. 30). For more of the many, many reasons to vote no, see Sept. 20, 2006, May 31 and Nov. 2, 2004, etc., etc.

Update: David Frum gloats — and quite prematurely, it would seem.

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Nifong faces Durham voters

Can prosecutors be made to pay a price at the ballot box for malfeasance? Durham, North Carolina, county district attorney Mike Nifong is up for re-election, and has run well in polls despite his hounding of three Duke lacrosse players — perhaps the year’s banner case of abusive prosecution (see Oct. 11, Oct. 12, Oct. 30, etc.). One challenger, County Commissioner Lewis Cheek, “has said he won’t serve if elected, instead allowing Gov. Mike Easley to appoint a new prosecutor”; a third candidate, Steve Monks, has been waging a write-in campaign. (Ray Gronberg, “Durham DA race is hot”, Durham Herald-Sun, Nov. 6; Ruth Sheehan, “Turning the tide in Durham”, Raleigh News & Observer, Oct. 30). For some recent developments in the case, incidentally, see here, here and here (witnesses say accuser soon after incident performed dances inconsistent with alleged injuries), here (Nifong never interviewed accuser), and here (“Go ahead, put marks on me”). Update: and yet more doubt cast here (Nov. 11).

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Not your usual AG candidate

Former California Gov. Jerry Brown is overwhelmingly favored to become the state’s next attorney general, but don’t assume he’ll necessarily follow in the footsteps of Bill Lockyer:

“I’m going to take a very practical, common-sense approach as attorney general,” Brown said in a recent interview. “I’m someone who’s acutely aware of the fact that we as a state have added 25,000 laws since I was governor. I think we ought to give people some space to live their lives.” …

And don’t assume that he will agree completely with Lockyer’s decisions. Asked about the global-warming lawsuit, Brown said he’d have to “take a good look at it.”

“I think there’s an issue of causation there,” he said, adding that California needs to consider automakers’ “imploding” financial situation. …

“He was the first politician to turn litigation into a press release [as California Secretary of State, elected in 1970],” said Hiestand, the former Brown aide [Fred Hiestand, now prominent in California litigation-reform circles].

In post-Watergate 1974, the reform-minded Brown was swept into the governor’s office. One year later, Brown and the Legislature were besieged with pleas from doctors facing skyrocketing malpractice insurance costs. Brown called a special session that would eventually lead to the Medical Injury Compensation Reform Act, or MICRA, California’s law capping pain and suffering awards at $250,000.

Hiestand remembers philosophical discussions with Brown on the best ways to compensate malpractice victims. After graduating from Yale Law School in 1964, Brown clerked for state Supreme Court Justice Mathew Tobriner, a contemporary of tort expert and future chief justice Roger Traynor. Brown, Hiestand said, recalled Traynor’s critical dissent in a 1962 case where a woman injured on a bus was awarded $134,000 for non-economic damages. Traynor said such awards were troubling because they are tied to subjective amounts of pain and suffering.

“At one point Jerry looks at me and says, ‘Money is a false god. If you’re in pain, you should turn to religion, sex or drugs,'” Hiestand said.

(Cheryl Miller, “Former Calif. Gov. Jerry Brown Runs for State Attorney General”, The Recorder/Law.com, Oct. 16)(cross-posted from Point of Law’s Featured Discussion on the election, which is still going great guns).

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UK: Publishing grifter’s photo = violating her human rights?

Jewelers in Kensington, West London, have been repeatedly victimized by a conwoman who poses as a wealthy shopper from Dubai and scoops up thousands in merchandise when novice clerks are distracted. The latest victim of the scam, jewelry designer Isabel Kurtenbach, says she asked police about posting a store-cam photo of the thief to warn other shops, and was told not to because it would be a violation of the perpetrator’s human rights. (Evening Standard, Oct. 26; Daily Telegraph, Oct. 27)(via Zincavage). Subsequently, the Lord Chancellor said the police’s advice had been “plainly wrong” and that storekeepers had every right to post such photos. (Guardian, Oct. 30).

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Lowbrow liquor labels

Paternalism watch: Seattle has banned, in certain areas of the city, the sale of “29 brands of cheap booze favored by the homeless,” including Thunderbird, Richard’s Wild Irish Rose and Night Train Express. “But on the streets of downtown and Capitol Hill, people who acknowledged they were homeless and drunk seemed to find ways to make do.” (Kery Murakami, “Alcoholics finding way around ban”, Seattle Post-Intelligencer, Nov. 2)(via Balko, Reason “Hit and Run”).

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