Prosecution and police roundup

Environmental law roundup

  • EPA continues crackdown on older-home renovation in the name of lead paint caution [Angela Logomasini, earlier, see also re: lab testing]
  • Solyndra’s many enablers: 127 in House GOP just backed federal energy loan guarantees [Tad DeHaven/Cato]
  • “In defense of genetically modified crops” [Mother Jones, no kidding] “How California’s GMO Labeling Law Could Limit Your Food Choices and Hurt the Poor” [Steve Sexton, Freakonomics]
  • “EPA fines oil refiners for failing to use nonexistent biofuel” [Howard Portnoy, Hot Air]
  • Consultant eyed in Chevron-Ecuador case [PoL] Radio campaign targets conservatives on behalf of trial lawyers’ side [Fowler/NRO] Lawyer suing Chevron: “We are delivering a bunch of checks to [NY Comptroller] DiNapoli today” [NYP]
  • Getting taxpayers off the hook: Congress might curb flood insurance subsidies [Mark Calabria/Cato]
  • “Lessons from British Columbia’s Carbon Tax” [Adler]

Torts roundup

  • House Judiciary passes measure (FACT Act) promoting transparency of asbestos trusts, could preserve assets for honest claimants by curbing n-tuple dippers [Harold Kim/US Chamber, Ted Frank] “$48 million jackpot justice asbestos award for 86-year-old” [Frank]
  • Canadian court: car crash caused chronic cough [Magraken]
  • Push in Connecticut legislature to ease expert testimony threshold, thus enabling more med-mal suits [Zachary Janowski, Raising Hale]
  • Georgia court: residents on notice of wild alligators, golf club not liable for elderly woman’s demise [Daily Report]
  • “NYT is inconceivably shocked that NYC defends itself in lawsuits instead of blindly writing multimillion $ checks.” [@tedfrank]
  • Arizona court declines Third Restatement’s invitation to gut duty prerequisite in tort law [David Oliver]
  • Vintage insurance fraud: “The Slip-and-fall Queen” [Brendan Koerner via @petewarden]
  • Relaxation of fault in auto cases: “Richard Nixon’s Torts Note” [Robinette, TortsProf] “Reforming the Reform: No-Fault Auto Insurance” [same]

Reactions to “Abolish the Law Reviews!”

My Atlantic piece of yesterday is here (earlier Overlawyered item on it here). At Thomson Reuters “Summary Judgments,” Eddie Evans has a great write-up on the piece. Some other reactions:

Stephen Bainbridge:

I think Walter Olson’s basically right. but there are so many obstacles. First mover issues. Revising the tenure process to accept non-traditional scholarship. Inertia. And so on.

Marie Newman (Pace Law School, whose library staff was outstandingly helpful to me when I was researching Schools for Misrule):

Walter Olson, the always provocative legal commentator, has struck again …the article uses the Harvard Law Review to illustrate the plummeting circulation and stunning irrelevance of even the most prestigious of the academic law reviews in the twenty-first century.

Rick Esenberg:

But then we’d have to abolish the Bluebook. It won’t stop!

Sean Fosmire:

Surprised that the piece made no mention of SSRN.

David Gravett, comments, The Atlantic:

The first clue to a judge that an attorney has absolutely no legal support for his/her argument in a brief is their citation to a law review article.

Andrew Dressel, comments, The Atlantic:

The circulation numbers are simply misleading. The proliferation of online databases such as Westlaw, Lexis, Bloomberg Law and now Google Scholar have made much hard copy legal scholarship and reporting obsolete. I would be willing to bet there are far fewer lawyers ordering hard copies of the Federal Reporter as well. That doesn’t mean the content is obsolete simply the presentation form. But law reviews have adapted and many run very fine websites that print shorter form reactions to the long form pieces in the actual publication.

Scott Greenfield:

I disagree with Walter. The law review should not die. It’s already dead. It’s been dead for a while, and merely wanders about like zombies eating the brains of those who are caught in its clumsy clutches.

More links: Above the Law; commenter Erika at Simple Justice (“What would law school be like without the Law Review experience?”).

Dan Markel, Prawfs:

I think [Olson] is wrong to assume that “talented law profs” seek out short form options to present their ideas because that’s the first best place to be. … I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it’s more a matter of resignation about where the eyeballs might be and what civilians’ attention levels are. … But writing to get the argument right requires patience and diligence. Opeds don’t reward that. …

The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft.

[No, I’m not against long-form legal scholarship. I do think it’s commonly ill-served by today’s law review format. — W.O.]

E. Donald Elliott (by email):

Why “abolish” them? They are harmless enough and they provide good training to law students. A little like saying we should abolish high school basketball because the teams can’t compete in the NBA.

Mark Giangrande, Law Librarian Blog:

Don’t abolish, adapt…The sidebar to [Olson’s] article features text by Jack Balkin (The Court Affirms Our Social Contract) and Wendy Kaminer (Juvenile Sentencing: Alito’s Misguided Dissent). Those articles would be published some time in the late fall or early winter at best if written in a form appropriate for law review editors. … My biggest problem with law review content is that even when it is presented online it still generally conforms to print. Maybe it’s the Bluebook mentality.

David M. Wagner:

But where would we pub… Right, carry on!

Kyle Graham:

Maybe we need a knockout rule whereby law reviews that don’t get enough court citations fold? Or would this lead to bad cites?

P.S. My Cato colleague Roger Pilon adds, “Except for the Cato Supreme Court Review, of course.” My reply: Like the Chicago-based Journal of Law and Economics and Journal of Legal Studies, the CSCR breaks with the typical law-review format in several ways, most notably by not being student-edited. No wonder it succeeds.

“Abolish the Law Reviews!”

I’ve got a new essay up at The Atlantic, part of the “America the Fixable” series edited by Philip K. Howard. I have a bit of fun at the expense of the Harvard Law Review, raising the question of whether it should be held to lower standards than the Long Island tabloid Newsday, and cite such figures as Richard Posner, Elizabeth Warren, Ross Davies of George Mason, and the bloggers at Volokh Conspiracy and Balkinization.

From the Globe and Mail

The Toronto Globe and Mail prints my letter to the editor correcting some misrepresentations of U.S. labor law by Canadian Auto Workers union economist Jim Stanford. The text of the letter as it ran, slightly abridged, in the paper:

Jim Stanford says that in the 23 states with “right to work” laws, unions are “effectively prohibited; indeed, in right-to-work states, private-sector unionism is virtually non-existent” (Wisconsin’s Disease Crosses The Border – July 3).

This would come as a surprise to millions of employees in those 23 states who join and are represented at their workplace by unions. In Alabama, for example, which has had a right-to-work law since 1953, 183,000 workers (about 11 per cent of the labour force) are represented by unions, including 84,000 workers in the private sector. (source)

Emboldened or otherwise, Republicans in the states have no authority to alter the 1935 Wagner Act or other federal laws. In states like Wisconsin, they have sought to alter laws prevailing in about two-thirds of states that prescribe collective bargaining by public employees; these laws are of much more recent vintage than the New Deal, often dating to the 1960-85 period. Given Franklin Roosevelt’s well-documented skepticism toward collective bargaining by government employees, it is no surprise that he did not see fit to build any such element into his New Deal.

Walter Olson, senior fellow, the Cato Institute, Washington