Overlawyered: Chronicling The High Cost Of Our Legal System

“The Secret Life of Judges”

Via Adam Liptak’s (TimesSelect) column, Judge Dennis Jacobs has given an important speech (published in the Fordham Law Review), describing a problem we have noted here before:

I am not—I repeat, I am not—speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained—by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.

The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation—and the confidence and faith that these things produce the best results. It is an insidious bias, because it is hard to make out, in the vast maze of judicial work and outcomes, the statutes, doctrines, and precedents that are woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favor of the bar and lawyers: what they do; how they do it; and how they prosper in goods and influence.

Earlier: Apr. 3; June 2006.

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Yet more on privacy/disability laws and Seung Hui Cho

Perils of privacy laws, as discussed earlier here, here, here and here:

Fairfax County school officials determined that Seung Hui Cho suffered from an anxiety disorder so severe that they put him in special education and devised a plan to help, according to sources familiar with his history, but Virginia Tech was never told of the problem.

The disorder made Cho unable to speak in social settings and was deemed an emotional disability, the sources said. When he stopped getting the help that Fairfax was providing, Cho became even more isolated and suffered severe ridicule during his four years at Virginia Tech, experts suggested. In his senior year, Cho killed 32 students and faculty members and himself in the deadliest shooting by an individual in U.S. history….

Professors and school administrators at Virginia Tech could not have known of Cho’s emotional disability — Fairfax officials were forbidden from telling them. Federal privacy and disability laws prohibit high schools from sharing with colleges private information such as a student’s special education coding or disability, according to high school and college guidance and admissions officials. Those laws also prohibit colleges from asking for such information.

The only way Virginia Tech officials would have known about Cho’s anxiety and selective mutism would have been if Cho or his parents told them about it and asked for accommodations to help him, as he had received in Fairfax….

Although the only way college officials could have known about Cho’s problem would have been from Cho, experts said that asking for help is an almost impossible task for someone with selective mutism.

(Brigid Schulte and Tim Craig, “Unknown to Va. Tech, Cho Had a Disorder”, Washington Post, Aug. 27). More: Hans Bader at CEI’s Open Market (Aug. 27).

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Letter to the editor

In the August 27 Legal Times:

To the editor:

I appreciated the chance to speak with reporter Tony Mauro about Stoneridge v. Scientific-Atlanta, an upcoming Supreme Court case that will be discussed at an AEI panel on Oct. 5. Unfortunately, a sentence in his Aug. 20 article [“High Court Head Count at Issue,” Page 1] incorrectly implied that I thought the decision by the U.S. Court of Appeals for the 8th Circuit in the case was an “anti-investor ruling,” when that characterization is solely Mauro’s.

On the contrary, as I have written in The Wall Street Journal and told Mauro, I believe that the 8th Circuit’s dismissal of the case redounds to the benefit of investors in general and that the best result for investors (if not for trial lawyers) would be affirmance by the Supreme Court. And I say that even though I am a putative class member in Stoneridge.

Theodore H. Frank
Resident Fellow
American Enterprise Institute for Public Policy Research
Washington, D.C.

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August 27 roundup

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Jumping into crashed Toyota

Not such a swift idea if the people in the crashed vehicle are just going to tell on you:

Police arrested a 20-year-old woman Sunday for allegedly jumping into a car that collided with a police cruiser and possibly faking an injury….

Powell [Shava Shirlee-Sophia Powell, of Boynton Beach, Fla.] yelled in pain and claimed her back was hurt when firefighters and paramedics arrived, the report said. She deflected attention from rescuers trying to treat others injured in the collision, the report said. Powell was taken to Boca Raton Community Hospital where doctors found no evidence of injury. She tried to flee the hospital when she found out police were called in.

Catasha Adams, the driver of [the] Toyota that Powell jumped into, told police Powell wanted to use the accident for a lawsuit against the police department.

(Leon Fooksman, “Police accuse Boynton woman of faking crash injury”, Fort Lauderdale Sun-Sentinel, Aug. 20)(via QuizLaw).

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Cheater’s Poetic Justice / Guestblogger Sendoff

Check out this story about a man’s alleged infidelity exposed after 1-800-FLOWERS mailed him a thank you note for flowers he purchased his girlfriend. His wife found the note, called the florist who faxed the receipt detailing the recipient.

So, she files for divorce and he sues 1-800-FLOWERS for breach of contract for revealing the relationship. Now, I don’t suppose this claim has much jury appeal–a cheat asking for money? A million dollars? His attorney frames the issue this way:

Infidelity is one of the things that would qualify as a pendulum-swinger in a divorce case. And now the wife has cold, hard evidence, and it is solely because of 1-800-FLOWERS.

It may be the florist’s fault she has the evidence but it’s “solely because of” him that he did it. So much for personal responsibility. I wonder how many taxpayer dollars will be wasted in this litigation.

My guestblogging stint here is over, and I really enjoyed it! Thank you Walter Olson! I part with this quote, a compliment to the fine attorneys I have and continue to work with:

If I have seen further [than others] it is by standing on the shoulders of Giants.

Sir Isaac Newton 1642-1727

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