- New York Times hoisted by its own petard. [Point of Law]
- Insult to injury: spammer sues spam victim. Earlier: Nov. 8; Jan. 28, 2005; Dec. 8, 2003. [Time; Concurring Opinions]
- Securities class actions down: what does it mean? [Point of Law]
- When should Daubert motions be resolved? [Hutchinson; Nordberg]
- Nardelli’s $210 million severance. [Point of Law; Contrarian’s Edge; Ideoblog; Sloan @ WaPo]
- “We don’t think you should get [school] credit for just being alive.” [New York Sun]
- Gerald Ford and impeachment. [SCOTUSBlog; NRO; Point of Law]
- Therapy animals redux. [New Haven Register (dog); NBS (chicken) (via ATL)]
And speaking of health courts
Privacy laws and James Kim
In today’s WaPo, Spencer Kim, the father of James Kim, the father of two who died of hypothermia after his family became lost in an Oregon park, notes the effect that privacy laws and liability concerns had on the search:
Congress should change the law so that most recent credit card and phone-use records can be immediately released to the next of kin in the event of an emergency. Privacy laws are important to safeguard personal information, but there needs to be provision for exceptional access to information by relatives when it is critical to a family member’s survival.
Four days passed before we even knew James and his family were missing. But because my family was unable to confirm credit card and phone-use information until days after their absence was discovered, the start of the search was needlessly delayed. Precious time and a precious life were lost. Privacy concerns kept both the hotel where James and his family last stayed and the restaurant where they last dined from sharing credit card records, thus denying us for days important clues that would have helped narrow the initial search area.
“Election Dejection”
November’s results obviously make it more of an uphill slog for legal reformers to win legislative victories; a roundup in Inside Counsel provides some details, quoting me along the way. (Mary Swanton, January). I venture a prediction that Democrats will use their new Congressional power to push legislation that would expand private causes of action in the employment field, a step that would gratify the plaintiffs’ bar and many union advocates alike. Contrary to an implication that the article may leave, private causes of action are at present very much alive and thriving in the wage and hour field, but they’re not (yet) authorized in the case of many other sorts of labor-law violations.
AP on Wacky Warnings
The wire service reports on this year’s M-LAW competition (see Jan. 4) (David N. Goodman, “Keep People Out of Wash, Label Warns”, AP/MyWay.com, Jan. 5). Aside from the ones mentioned by Ted the other day, a notable entry was the second-prize winner, found on a personal watercraft, “Never use a lit match or open flame to check fuel level”. Burma-Shave got there decades earlier:
He lit a match/
To check gas tank/
That’s why/
They call him/
Skinless Frank
Bob Dorigo Jones’ new book Remove Child Before Folding is here.
T-shirt battle before Seventh Circuit
“Why do people bring lawsuits for such trivialities?” Judge Richard Posner, a notoriously tough jurist, asked Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. “Have they been harmed, these ‘Gifties’?”
The Chicago Sun-Times covers a four-year class action battle brought by the mother of one of 24 students over their punishment for wearing a shirt perceived as insulting regular students (which the “gifted” students charmingly called “tards.”) The oral argument is indeed entertaining.
The Founders and civil justice reform
Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:
I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.
I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.
Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.
But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.
Alabama: a case of ethically failing upward?
“The state bar ordered that Stuart DuBose’s law license be suspended because of his role in an estate in which he collected a $1.2 million fee for writing a client’s will without ever meeting the dying man.” And DuBose faces a possibility of even sterner disciplinary action, such as a longer suspension or even disbarment, because the “Alabama Supreme Court ruled that the 45-day suspension wasn’t sufficient punishment for his actions.” However — and this is the part that really makes the story so perfect — DuBose is not exactly hurting professionally at the moment because voters in November elected him to be the circuit judge for Choctaw, Clarke and Washington counties despite publicity over the allegations. Although his official term does not begin until Jan. 15, he has already been sworn in. According to one newspaper account, disciplinary action could affect his ability to serve as judge. (“Jackson attorney still under ethics cloud takes oath early”, AP/AL.com, Dec. 23; Jim Cox, “Area lawyers once against, now for DuBose judgeship”, Clarke County Democrat, Dec. 14; Evan Carden, “DuBose takes oath to be circuit judge”, Clarke County Democrat, Dec. 28).
Sen. Edwards’ record (and some kind words)
Bill Dyer (Dec. 30), following up on Stephen Bainbridge (Dec. 28), has some thoughts about “whether Edwards’ career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.” Along the way, he has some kind things to say about the authors of this site, which are much appreciated.
The question of what sort of pro bono work Sen. Edwards did during his legal career has also been getting attention recently (as in this guest post at Andrew Sullivan’s). For our take on that, see Jul. 27, 2004.
“Rollover Economics: Arbitrary and Capricious Product Liability Regimes”
My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:
It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.
I have a related letter to the editor in the Jan. 1 Legal Times. See also POL Dec. 13, OL Dec. 12, OL Jun. 3, 2004.