Overlawyered: Chronicling The High Cost Of Our Legal System

Bruce Braley stumbles

Rep. Bruce Braley, a former head of the Iowa Trial Lawyers Association, has since his election been perhaps the most diligent advocate of Litigation Lobby interests in the House of Representatives. He had also been considered the front-runner for the Senate seat of departing Iowa Senator Tom Harkin, until a covert video leaked out of Braley apparently fund-raising at a trial lawyer gathering in Texas [Des Moines Register]:

To put this in stark contrast, if you help me win this race, you may have someone with your background, your experience, your voice, someone’s who’s been literally fighting tort reform for 30 years in a visible and public way on the Senate Judiciary Committee or you might have a farmer from Iowa who never went to law school, never practiced law, serving as the next chair of the Senate Judiciary Committee. Because if Democrats lose the majority, Chuck Grassley will be the next chair of the Senate Judiciary Committee.

Almost nothing about the remarks — including the slighting tone toward Grassley, senior senator and a popular figure in the state — is likely to increase Braley’s appeal to Iowa voters. Dan McLaughlin writes:

As a lawyer myself, I like the idea that we should have some lawyers on the Senate Judiciary Committee and on its staff, but the whole point of democracy is that the common man gets a say in how he is governed, not just the experts. Relatedly, Braley’s stress on “your background, your experience, your voice” just emphasizes how he sees the voice and interests of trial lawyers as one that will be very different from that of farmers. …

he manages to sneak in the fact that he’s been a longstanding opponent of tort reform, and doesn’t even bother to come up with some focus-group-tested euphemism for reform. He’s bluntly telling the trial lawyers in the audience that he’s for their interests – not like those Iowa farmers.

A Grassley spokeswoman said that if it was somehow improper for a non-lawyer to lead a committee on legal matters, “a trial lawyer shouldn’t be involved in policy making about agriculture, or energy, or health care.” Per the Washington Post, “Over the course of his legislative career, Braley has raised $3.5 million from lawyers and law firms.”

And Twitter was kind of brutal:

More: James Taranto, WSJ (“So God made a lawyer”). And here’s a flashback clip where Braley badgers well-known health policy expert Sally Pipes over whether she has an advanced degree.

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Environmental roundup

  • Oklahoma attorney general goes to court claiming private litigant manipulation of endangered/threatened species petition process [Lowell Rothschild & Kevin Ewing; NPR “State Impact”; Oklahoman, auto-plays ad video; press release, Oklahoma AG E. Scott Pruitt; ESA Watch site from oil riggers; more on the topic]
  • New Yorker mag backs tale of frogs/atrazine researcher who claims conspiracy. Someone’s gonna wind up embarrassed [Jon Entine]
  • Does gas company lease of subsurface rights entitle it to seek injunction excluding protesters from ground level? [Paul Alan Levy]
  • California: “Abusive Coastal Agency Demands Even More Power” [Steven Greenhut]
  • Mr. Harris, you embarrass: “recreational burning of wood is unethical and should be illegal” [Sam Harris from 2012]
  • Harrisburg Patriot-News series on flood insurance [TortsProf, R Street Institute on recent bill]
  • Kansas, Louisiana, and Indiana named top states on property rights freedoms [Mercatus]

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Speak not of walkability

“From a realtor: ‘Regarding the Metro, I never putting “walk to..” on my listings because when I took my GRI classes they warned us that “walk to” might trigger a complaint of discrimination against people with disabilities.’ Sigh…” — David Bernstein, law professor and author of “You Can’t Say That! The Threat To Civil Liberties from Antidiscrimination Laws”

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Banking and finance roundup

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Courts and the Kansas schools, cont’d

Andrew Ujifusa at Education Week (“Kansas Ruling Fuels Debate on Adequacy of Funding”) quotes me:

But the union’s solution of significantly higher funding for schools isn’t the obvious or correct one to Walter Olson, a senior fellow at the Washington-based Cato Institute. In a March 10 blog post on the website of the libertarian think tank, Mr. Olson said that Kansas’ finance fight is just one piece of a larger strategy that seeks to “seize control of school funding” through the courts.

In the process, he argued in a subsequent interview, that movement is subverting representative democracy by ignoring what state legislators decide on K-12 funding.

“I see it as a way in which the educational establishment uses litigation to entrench itself against supervision by other branches of government and voters interested in cutting budgets,” Mr. Olson said.

I go on to discuss California’s Serrano v. Priest and its unexpected consequence, voters’ limitation of property taxes through Proposition 13. And this from Ben Wilterdink at American Legislator on the latest ruling:

Kansas has faced this problem before. In 2005 the State Supreme Court ordered Kansas to spend more on education. Kansas lawmakers complied, but now the Court is again ordering more spending. Kansas already spends more than 50 percent of its budget on K-12 education, and if this ruling stands, it will be forced to spend 62 percent of its budget on education. All of this is despite the fact that when measured against regional per-pupil spending, Kansas is funding education quite well.

Earlier here, etc.

Related: Steve Malanga on school finance lawsuits and other “positive-rights” litigation at state supreme courts [City Journal]

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Welcome Wall Street Journal readers

Last week the Department of Justice announced a deal with Toyota in which the Japanese automaker would fork over $1.2 billion and place itself under supervision for allegedly not being forthcoming enough with information at the height of the 2009-2010 panic over claims of unintended acceleration in its cars. The acceleration claims themselves had turned out to be almost entirely bogus, and were refuted in a report from the federal government’s own expert agency, NHTSA. Instead, the prosecution relied on a single count of wire fraud: Toyota had supposedly given regulators, Congress and the public an erroneously positive view of its safety efforts. It should therefore have to “forfeit” a huge sum supposedly related to the volume of business it did over a relevant period.

I’ve got an opinion piece in Monday’s Wall Street Journal (unpaywalled Cato version here, related Cato post here) about this whole appalling affair, which should frighten other businesses that might face draconian charges in future not just for compliance infractions, but more broadly for defending their products in the court of public opinion. Meanwhile, the Justice Department’s grandstanding and demagogic press release goes to some lengths to leave the impression “that unintended acceleration is some mysterious phenomenon of auto design unrelated to flooring the accelerator.” Someone here is irresponsibly misleading the motoring public and withholding vital safety information, but it’s not Toyota.

A few related links: NHTSA unintended acceleration report, Car & Driver’s coverage, and my 2010 opinion piece. And Holman Jenkins at the WSJ (paywalled) compares the still-unfolding story of ignition problems at GM, also discussed by Paul Barrett at Business Week.

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Pennsylvania AG: maybe I’ll sue Inquirer over its coverage

Pennsylvania attorney general Kathleen Kane dropped a longstanding corruption “sting” probe that had snagged several Philly officials. The Philadelphia Inquirer raised questions about her decision in its reporting, which contributed to a public outcry over the episode. Then Attorney General Kane brought a prominent libel litigator with her to a meeting with the Inquirer editors, and that lawyer announced that Kane was exploring her options of suing the paper and others that had reported on the matter, and that he was going to do the talking for her.

On Sunday the paper continued to cover the sting story here and here. Ed Krayewski comments at Reason. Longtime Overlawyered readers may recognize the name of Kane’s attorney Richard Sprague.

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DWI checkpoint critic arrested as passenger in pulled-over car

“A Baton Rouge-area defense attorney known for criticizing the use of sobriety checkpoints was handcuffed and taken to jail early Wednesday after exiting the passenger side of his vehicle while intoxicated and informing his driver of her right to refuse a sobriety test, police said.” His attorney says Jarrett Ambeau, charged with obstructing an officer, “really was just trying to protect his client.” [Baton Rouge Advocate]

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