Overlawyered: Chronicling The High Cost Of Our Legal System

An ombudsman? For CPSIA?

Rick Woldenberg reacts to a peculiarly inutile suggestion, in a Baltimore Sun interview, from CPSC chair Inez Tenenbaum (“We think if we had a small-business ombudsman who was out there regularly educating small businesses, we could help them prevent problems in terms of compliance.”):

…The necessary implication is that we small businesses are just too stupid to understand their complicated rules – I guess she thinks only Mattel can read the English language. Of course, the pending testing frequency rule (which I believe will be implemented in the coming weeks, get ready for it) will cause our company to spend $15 million per annum on testing. This sum far exceeds our profits. Perhaps the ombudsman will help us terminate our people to pay for testing, or provide a shoulder to cry on.

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An Easter egg for Massachusetts employers

A “new change to [Massachusetts] law now requires companies to notify employees about any potentially negative information added to their files. The amendment, which Gov. Deval Patrick signed into law on August 5, was tucked away in an ‘economic development’ bill laden with higher-profile items like the recent sales-tax holiday. …. this new personnel-records rule is going to lead to more employee lawsuits.” [Gruntled Employees via Susan Cartier Liebel]

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Cato Constitution Day — Thurs. Sept. 16

On Thursday the Cato Institute will be holding its annual day-long Constitution Day symposium, which is also a celebration of the publication of the ninth volume of the annual Cato Supreme Court Review. I’ll be moderating (stepping in for Roger Pilon) on the second afternoon panel, which will cover three business-related cases recently decided by the Court: Jones v. Harris on mutual fund fees, Free Enterprise Fund v. PCAOB on one of the terms of the Sarbanes-Oxley law, and American Needle v. NFL on the scope of antitrust exemption. All three principal panelists are well-known bloggers: Larry Ribstein of Illinois (Jones) and Josh Wright of George Mason (American Needle) at Truth on the Market, and Hans Bader of CEI (Free Enterprise Fund) at Open Market (he’s also guestblogged on the PCAOB case right here). The event is open to the public, but reservations are required. More: Larry Ribstein, Josh Wright.

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Why would a union favor its own decertification?

The better to sue, it seems [Marcia McCormick/Workplace Prof]:

The NFL Players Association is seeking player approval to decertify in advance of a potential lockout by owners in March when the current collective bargaining agreement expires, according to the SportsBusiness Journal. Decertifying would allow players to sue the owners under antitrust laws if the owners did lock the players out. And any effort to impose a labor agreement on the players could provide the players with treble damages.

This was the tactic the players resorted to in 1989, and it eventually gave them enough leverage to establish free agency in 1993, when the players recertified the association as their exclusive representative.

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Judge: lawyers’ acts of misbehavior “make me feel like a school marm scolding little boys”

After reading deposition exchanges “related in excruciating, repetitive detail,” Nevada U. S. Magistrate Peggy A. Leen felt called on to admonish lawyers on both sides:

If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non-argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question” are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.

[Order in Mazzeo v. Gibbons et al., Trial Ad Notes via Day on Torts]

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On the road: preparing Spring speaking/book tour

Last night I sent off the source notes for my forthcoming book Schools for Misrule: Legal Academia and an Overlawyered America, on track for publication by Encounter Books Feb. 15. Now it’s time to lay the plans (with help from Encounter and my own Cato Institute) for me to hit the road next year to address audiences at single-author events, panels and forums. Why not add your group or city to the tour? Email at [editor] – at – [thisdomainname] – dot – com and we’ll see what we can do. If you’re active with a chapter of the Federalist Society, contact the national office and they can help coordinate.

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