Overlawyered: Chronicling The High Cost Of Our Legal System

Litigation reform moving fast through House of Representatives

With both Congress and White House now in Republican hands, the U.S. House of Representatives is moving with dispatch to consider a series of litigation reform measures, some stalled for years by Democratic opposition and others of relatively recent vintage. Bruce Kaufman at BNA Bloomberg has a three-part series (first, second, third) followed by an update today on the looming battle over the six main bills:

  • The Lawsuit Abuse Reduction Act (H.R. 720) “requires judges to impose mandatory sanctions on attorneys who file ‘meritless’ civil cases in federal courts.”
  • The Fairness in Class Action Litigation Act (H.R. 985) which “affects nearly all facets of class action practice” and in particular “class certification requirements, capping or delaying distribution of fees to class counsel, requiring the disclosure of litigation financing, and tying the reporting of settlement data to plaintiffs’ lawyers’ fees.” [More: various academic opponents weigh in here, Andrew Trask defends provisions of the bill here and here, and see earlier]
  • The Innocent Party Protection Act (H.R. 725) “targets what is known as fraudulent joinder—the improper addition of [local] defendants to suits in a bid to keep cases in more plaintiff-friendly state courts.”
  • The Furthering Asbestos Claims Transparency Act (H.R. 906) “mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies,” in hopes of preventing undisclosed duplicative collection of damages over the same injury.
  • The Stop Settlement Slush Funds Act (H.R. 732) which “seeks to bar the Department of Justice from entering into settlements that steer funds to favored third-party groups.”
  • The Sunshine for Regulatory Decrees and Settlements Act (H.R. 469) Goes after what have been called “sue-and-settle” processes at EPA in which the agency reaches concessionary terms with ostensibly adverse litigants who seek to expand its authority.

Trial lawyers and allies in the Litigation Lobby aren’t standing idly by: “opponents hope to gum up the works.” Even if many bills clear House passage, getting to 60 votes in the Senate in the face of filibuster threats could prove difficult, despite the departure of perennial trial lawyer ally Harry Reid (D-Nev.), and the views of President Trump are not entirely clear. More: Washington Examiner editorial on class action measures.

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March 8 roundup

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Cato Handbook chapters on labor and employment, minimum wage law

My chapter on labor and employment law in the new 8th Edition Cato Handbook for Policymakers has caused a riffle or two of reaction, what with its proposals to repeal the NLRA, ADEA, FMLA, and a bunch of other laws (and that’s just the start, really). Robin Shea and Jon Hyman both respond with posts on the theme of what would happen if they ran the world, could push a button, or were monarch for a day. Their responses are good-tempered in both agreement and disagreement, which cannot be said for all the corresponding fun had once the list started circulating over on Twitter.

If my chapter doesn’t manage to flood the outrage zone completely for committed supporters of current law, the handbook’s chapter on the minimum wage can help provide further stimuli. It’s written by Thomas Firey.

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Liability roundup

  • Uphill battle in Congress for bill to “prohibit federal courts from issuing awards that consider the victim’s race or gender, among other demographic variables” [Kim Soffen, Washington Post on “Fair Calculations Act”]
  • Normalizing champerty, the Ann Arbor way: University of Michigan endowment to take stake in litigation finance fund [Janet Lorin, Bloomberg News]
  • Lawsuit Abuse Reduction Act (LARA), restoring sanctions for groundless litigation, cleared House committee vote last month [@HouseJudiciary]
  • “Lynch’s Doubling of False Claims Act Fines Could Be Bonanza for Trial Lawyers” [Joe Schoffstall, Washington Free Beacon]
  • “Katrina victims shocked by small payments in levee failure case they ‘won’ – $118 each, on average” [David Hammer, WWL-TV]
  • Advisory Committee on Civil Rules considers revising Rule 23 on class actions [Washington Legal Foundation comments]

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Schools roundup

  • Judge Neil Gorsuch on education law issues [Clint Bolick and Marty West, Education Next] And if you haven’t read Gorsuch’s dissent in the “burping student” case, A.M. v. Holmes — among his most famous opinions — it’s here;
  • Tables for sharing food at cafeterias: “‘It’s the same objections every single time,’ he said. ‘There’s this myth that they’re going to get sued.'” [Michael Melia, AP/Yahoo]
  • “Why heroin and classroom sex aren’t enough to get teachers fired anymore” [Julia Marsh, New York Post]
  • “…a story of the pitfalls that await teachers who make extended efforts to aid troubled students.” [Andrew Marra, Palm Beach Post]
  • St. Paul, Minn. saga of school discipline and “disparate impact,” cont’d [Katherine Kersten, earlier here, here, and here]
  • “I first found ‘Free Range Kids’ from the Overlawyered site” — one commenter’s tale of the fate of children’s books at a local library after CPSIA came in [Free-Range Kids]

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Fifth Circuit: no cheers for cheerleader suit

Missed this one from 2011, with Judge Jerry Smith writing for a Fifth Circuit panel: “Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court. We find no error and affirm.” [Sanches v. Carrollton-Farmers Branch Independent School District]

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