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.

Elizabeth Thornburg, Justinian Lane, and then Richard Neely himself all claimed that Neely was being “ironic” or “sarcastic.” Of course, as numerous other quotes from the book (not to mention Neely’s contemporaneous observations) show, no one who has actually read the book could possibly believe that Neely was being ironic.

So this is perhaps entirely redundant, but it is worth providing some cumulative evidence from a check of the public record. For example, Neely claims he was being “ironic” to “sell books” and didn’t really mean it. Then what’s his excuse when he explicitly used the same reasoning in an opinion he wrote as a West Virginia Supreme Court Justice as a rationale for unjustly treating a corporate defendant?

Indeed, in some world other than the one in which we live, where this Court were called upon to make national policy, we might very well take a meat ax to some current product liability rules. Therefore, we do not claim that our adoption of rules liberal to plaintiffs comports, necessarily, with some Platonic ideal of perfect justice. Rather, for a tiny state incapable of controlling the direction of national law in terms of appropriate trade-offs among employment, research, development, and compensation for the injured users of products, the adoption of rules liberal to plaintiffs is simple self-defense. [Blankenship v. General Motors Corp., 406 S.E.2d 781, 786 (W.Va. 1991).]

If Neely was being “ironic” here, someone should give General Motors back its money.

It’s also worth noting that Justice Neely said the exact same thing in testimony before Congress on September 12, 1991 (139 Cong. Rec. S2090-02):

If you ask the average state judge whether she would like to redistribute some wealth from, say, Colt firearms to a local resident who was severely injured in a shooting accident, the judge will probably answer “yes.” But if you ask the same judge to make a choice between high local employment in Colt’s plants on the one hand, and redistribution of Colt’s money on the other, she is likely to favor high employment over simple wealth redistribution. The problem is that except for the U.S. Supreme Court, no American judge can affect these trade-offs.

If, for example, as a West Virginia judge I insist that West Virginia have conservative product liability law, all I will do is reduce my friends’ and neighbors’ claims on the existing pool of product liability insurance paid for by consumers through “premiums” incorporated into the price of everything we buy. This is the explicit rationale of Blankenship versus General Motors, 406 S.E.2d 781 (W.Va. 1991). …

Thus, as a state judge I have admitted in a unanimous opinion written for the highest court of one of the fifty states that we, as a state court, cannot be rational in the crafting of product liability rules. [emphasis added]

If Neely was being “ironic” here, he forgot to tell Congress.

Of course, anyone who has read the book already knows that Neely was not being ironic. The only people who could suggest otherwise are either ignorant (because they have not read the book, as in the case of Justinian, who, as is his wont, made wild-eyed allegations without getting his facts straight) or, if they have read the book… well, judge for yourself why someone would falsely suggest that a straight statement was ironic. The question remains how a SMU law professor would make such a patently false claim in a law review article, or how such a claim survived fact-checking.

Separately: note that Neely’s argument remains unrebutted (even by the present-day plaintiffs’ lawyer Neely), and explains as well as anything else why federal preemption is absolutely necessary (and entirely consistent with Hamiltonian/Madisonian federalism) in the litigation over interstate commerce.

Filed under: Justinian Lane, preemption, Richard Neely, state high courts, West Virginia