A Health Affairs paper by Suffolk University Law Professor Marc Rodwin et al. has been generating a lot of press and blog attention for its claim that there is no medical malpractice crisis in Massachusetts. He and I have been debating the paper at Point of Law (Frank; Rodwin; Frank); as I show, that conclusion is highly suspect and seems divorced from the underlying data.
U.K.: Calling Scientology a “cult”
…can get you in considerable trouble with the City of London constabulary, it seems. (Volokh; Sullum, Reason “Hit and Run”).
Congress: let’s sue OPEC
This wretched proposal to pursue sensitive foreign policy goals by way of treble-damage antitrust suits against sovereign nations is met by a hail of dead cats from Below the Beltway, Gateway Pundit, Liberty Reborn, Buffalog, Coalition of the Swilling, Sense of Events, Q and O, Coyote, Politics in the Zeros, Socrates’ Academy, It’s a Funny Thing, Bronze Blog, Discerning Texan, Blog About Nothing, It Looks Obvious, NoBrainer’s, Wheeling Intelligencer, and Collideoscope, among others. Earlier here.
And yet more: Perry de Havilland, Samizdata (“a derangement of legislators”)(via ASI).
“Lawsuits that benefit only lawyers”
Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions
seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:
• The lawsuits will do victims of wrongdoing little or no good.
• They will penalize no human being who has done anything wrong.
• They will deter more conduct that is beneficial than harmful.
• The legal costs and any damages will come at the expense of the general public.
• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.
American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.
The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”
With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).
Judge: Jack Thompson guilty on 27 of 31 violations
“Miami-Dade Circuit Judge Dava Tunis concluded Thompson made false statements to tribunals, disparaged and humiliated litigants and other lawyers, and improperly practiced law outside the state of Florida.” The judge recommended sanctions, on which a hearing is scheduled for June 4. (Daily Business Review; GamePolitics.com).
Yoko Ono vs. Ben Stein
Sen. Cornyn introduces lessons-of-Lerach bill
The Texas Republican, a member of the Senate Judiciary Committee, is introducing legislation that
would make several key reforms to current securities class action law to increase the accountability of and transparency for attorneys filing these lawsuits and the institutional plaintiffs they often represent. Specifically, it would require:
DISCLOSURE OF PAYMENTS BETWEEN PLAINTIFFS AND ATTORNEYS
Plaintiffs and attorneys would submit sworn certifications identifying any direct or indirect payments, promises of such payments, and other conflicts of interest between them, as well as all political contributions made to elected officials with authority or influence over the appointment of counsel in the case.
COMPETITIVE BIDDING FOR LEAD COUNSEL
Courts would include a competitive bidding process as one of the factors for the selection and retention of lead counsel for a class of plaintiffs.
STUDY TO DETERMINE APPROPRIATE ATTORNEYS FEES
GAO would commission a study of the last 5 years of fee awards in securities class action cases to determine the average hourly rate for lead counsel.
(release, Congressional Record statement). (cross-posted from Point of Law). More: hailed by Lisa Rickard of U.S. Chamber.
In re Volkswagen en banc argument
There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:
Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (“Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.
The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).
In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.
En banc briefs in 07-40058, In re Volkswagen AG:
- Petitioners (Volkswagen)
- Respondents (plaintiffs)
- Product Liability Advisory Council, amicus on behalf of petitioners
- American Intellectual Property Law Association, amicus on behalf of petitioners
- Railroads, amicus on behalf of petitioners
- Law professors, amicus on behalf of respondents
- Trial lawyers, amicus on behalf of respondents
Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing
The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.
In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.
Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.
Philadelphia civil service scandal
I’m quoted on the subject today in a piece by Ben Waxman on The Next Mayor, a “Rethinking Philadelphia” blog created by the Philly Daily News, WHYY and the Committee of Seventy. My City Journal article “Fixing the Civil Service Mess” from 1997 is here.
D.C. Circuit panel: paper money unfair to blind
The Washington Post reports, and Hans Bader at CEI’s Open Market discusses the 2-1 panel decision (PDF) upholding a lower court ruling. The case hinged on whether the prospective modifications to currency, which the National Federation of the Blind have criticized as unnecessary, would impose an “undue burden” under the Rehabilitation Act. Judge Randolph, in dissent: “There are approximately 7,000,000 food and beverage vending machines in the United States; by one estimate, it would cost $3.5 billion to retool or replace these machines.” Earlier here. More: Patterico.