Overlawyered: Chronicling The High Cost Of Our Legal System

Cuyahoga River fire revisited

On NRO today, Jonathan Adler debunks one of the key events in the history of environmental regulation — the 1969 fire on the Cuyahoga River in Cleveland. Says Adler: “Oil and debris on the river’s surface did burn in 1969, and federal environmental statutes were the result, but so much else of what we ‘know’ about the 1969 fire simply is not so. It was not evidence of rapidly declining environmental quality, nor was it clear evidence of the need for federal action.”

Update: This post at the Volokh Conspiracy includes a link to Adler’s article-length treatment of the subject.

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Alabama has a new chief justice

Alabama governor Bob Riley this morning appointed Drayton Nabers to serve the two years remaining in the term of Roy Moore. (Moore, you may recall, was removed from the bench by the Alabama Court of the Judiciary for failing to comply with a federal court order to remove a Ten Commandments monument from the state judicial building.)

Nabers, a graduate of Princeton and the Yale Law School, clerked for Justice Hugo Black (1965-66) and practiced law in Birmingham for a number of years before joining Protective Life Corporation in 1979. He retired as chairman of the firm’s board of directors in 2003 and then joined the Riley administration as the state budget director. Nabers’s stature is such that a former president of the Alabama Trial Lawyers Association is quoted in the story linked above as saying, “”I believe he’s such a man of integrity that he will not put his personal background in the way of fairly dealing with each issue before him.”

Nabers has not decided whether he will run for re-election in 2006.

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Guest blogger of the week

My name is Mike DeBow, and I teach property and corporate law at the Cumberland School of Law at Samford University, in Birmingham, Alabama. I am also interested in state law reform and issues surrounding state judicial selection. During 2000-2004 I served part-time as a special assistant to Alabama attorney general Bill Pryor.

Readers who, unaccountably, want more info about me can click here or here. What doesn’t show up on either of those webpages is the fact that I’ve been a guest blogger at Southern Appeal for almost a year.

I am a long-time fan of Walter’s, and a diligent reader of Overlawyered. My thanks to Walter for the invitation to join him this week.

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Batch of reader letters

Fresh on our letters page, we’ve managed to post another four reader letters from our backlog. Among topics this time: the bizarre prison death of a serial killer in Missouri; a generous assessment of what we do here from a plaintiff’s trial lawyer in Chicago; we get called disingenuous, cynical, and other bad things because of our comment on a lawsuit demanding that school bus windows be redesigned; and a reader wonders whether accounting crimes which destroy life savings ought not to be seen as comparable to violent crimes which destroy lives themselves.

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Marshmallow roust

Good news! Florida federal agents have apparently done such a good job clearing the shores of criminals and terrorists that they’ve moved to tackling the perversely trivial.

Wyoming teacher’s aide Hope Clarke stayed in Yellowstone last year, and was fined $50 for failing to put away her marshmallows in violation of the park’s food storage requirements, a fine she was required to pay before leaving the park. But, somehow, she ended up on a bench warrant list; when her cruise ship returned from Mexico, she was rousted and handcuffed by federal agents at 6:30 am, and haled before a court in “shackles and short shorts” hours later–even though the copy of the citation showed the fine had been paid. Magistrate Judge John O’Sullivan apologized, and ordered her released over the prosecutor’s suggestion that the case be transferred to Wyoming. (Catherine Wilson, AP, Jun. 19) (via Weinstein)(& letter to the editor, Sept. 10).

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Guest blogger coming tomorrow

It’s guest blogger season again, and our first guest blogger of the summer begins a week of posting tomorrow — be sure to stop by. We’ve lined up another distinguished guest who will be joining us next month, and more volunteers/nominations are welcome: just email.

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Tasteful moments in lawyer advertising

The Hartford, Ct. law firm of Haymond, Napoli & Diamond runs an ad that particularly annoys the state’s chief justice, William J. Sullivan. According to the Connecticut Law Tribune, the ad “show[s] bags of money being dropped off by an armored truck, in a presumed showing of the attorney’s courtroom prowess.” (Keith Griffin, “Conn. Justice Attacks ‘Aggressive’ Lawyer Ads”, Connecticut Law Tribune, Jun. 15). Meanwhile, New York Times columnist Bob Herbert today continues his vehement attack on those who suggest the medical liability system might be in need of some reining in, charging: “This is all about greed.” (“Malpractice Myths”, Jun. 21).

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Lawmaker proposes reinvigorating Rule 11

Between 1983 and 1993, federal courts maintained relatively strong rules authorizing the levying of sanctions against lawyers or clients who pursue ill-grounded lawsuits, pleadings, motions or defenses. In 1993, following a quiet but determined lobbying campaign by organized litigation interests, Congress more or less gutted those rules, making sanctions much harder to obtain. Reinvigorating Rule 11 has long been high on our list of reform priorities, so we’re glad to see that Rep. Lamar Smith (R-Tex.), who chairs the House Judiciary subcommittee on courts, last week announced that he was introducing a bill entitled the Lawsuit Abuse Reduction Act, restoring a strong Rule 11. According to the Congressman’s Jun. 15 press release, the bill (begin direct quote):

* Makes sanctions against attorneys or parties who file frivolous lawsuits mandatory rather than discretionary;

* Removes a “safe harbor” provision that allows plaintiffs and their attorneys to avoid sanctions for frivolous suits by withdrawing them within 21 days;

* Allows sanctions for frivolous or harassing conduct during discovery, which is the phase of litigation where parties disclose documents;

* Permits judges to order plaintiffs to reimburse reasonable litigation costs, including attorney?s fees.

(end direct quote). According to the release, the bill also contains a provision to curb forum-shopping, and “[e]xtends Rule 11 sanctions to state cases that affect interstate commerce”. The last-mentioned clause sounds more than problematic from a federalist point of view, but presumably can be left on the cutting room floor at some point so that the other provisions can be considered on their own merits. More: Point of Law, Aug. 17.

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Supremes dispose of Pledge case on standing grounds

And good for them: “rules about standing, however inconvenient, serve a purpose: limiting the power of the federal courts over our lives and government policies.” (Steve Chapman, “On the pledge, the Supreme Court punts”, Chicago Tribune, Jun. 17). An earlier court ruling had already established the girl’s mother as guardian of her legal interests, and California plaintiff Michael Newdow (who was never married to the mother) should not be permitted to evade that determination by pursuing proceedings in a second court (more on standing).

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