And Norm Pattis and Mike Cernovich think it hypocritical. I’m mystified: did anyone think that Edwards attacked obstetricians and manufacturers for reasons other than money? I just hope the folks writing his paycheck give him a persuasive lecture on how much his opposition to litigation reform hurts business.
Posts Tagged ‘federalism’
Good news: grand jury doesn’t indict you
Jailed…for not breaking the law
Conflicting legal obligations in Illinois:
An Alton woman embroiled in a divorce case spent more than four hours in jail for contempt of court after she refused a Madison County’s judge’s order to return a handgun to her ex-husband, a convicted felon.
Elizabeth “Beth” Ritchie, 30, said that complying with Associate Judge Ellar Duff’s order, delivered at a hearing on Thursday, would have required Ritchie to commit a crime herself.
It is a felony in Illinois for a felon to possess a firearm, and for anyone to transfer a gun to a felon.
Duff said in an interview Friday that she did not learn until after the hearing that Ritchie’s ex-husband was a felon, and that she then ordered Beth Ritchie released from the Madison County Jail.
Ritchie said she tried to explain the situation to Duff in court but was ignored.
“I was being ordered by the law to break the law,” Ritchie said. “And when I wouldn’t, I got thrown in jail.”
(Paul Hampel, “Justice misfires over gun”, St. Louis Post-Dispatch, Jul. 22)(& welcome Crime & Federalism, Wave Maker readers).
More: reader Mickey Ferguson asks whether Ritchie could have avoided the predicament by volunteering to the gun over to the court itself, as in a case of escrow, with the court then free to turn it over or not to the felon. Good question, but I for one don’t know the answer.
“Affordable housing” lawsuits
In Connecticut as well as some other states, land developers have teamed up with low-income housing advocates to promote laws which impose on towns a duty to boost their level of so-called affordable housing and give homebuilders willing to include such housing in their developments a cause of action to go to court to overturn local building restrictions. Norm Pattis of Crime and Federalism (May 9) isn’t buying the idea that the resulting litigation, with its tendency to replace the formerly diverse land-use practices of different towns with homogeneous sprawl, really should count as progressive.
Federalism and consistency
Ramesh Ponnuru at NRO “The Corner” punctures a weak op-ed on the subject, and incidentally points to an interesting and new-to-us paper by Michael Greve on Justice Brandeis and the “laboratories of policy experimentation” trope.
More on District of Columbia v. Beretta, U.S.A.
We get mail:
You mention in your “District of Columbia v. Beretta, U.S.A.” post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can “withdraw from doing business in a state that has an oppressive tort regime.” Your counter-argument, however, is that the latter idea “doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.”
But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the “minimum contacts” necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.
Chris Schmitthenner
It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.
First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They’ll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They’ll argue purposeful availment under the same factual theories that underlie the “nuisance” claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it’s a jury issue, and many manufacturers won’t want to take that risk.
Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.
In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.
I’ve opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.
Federalism and product liability
Doesn’t a proper respect for federalism require us to stand back and let individual states assert whatever powers they wish to assert on the matter of product liability? No, it doesn’t, because to do so is in many cases to deprive the other states of a chance to adopt their own favored policy. We’ve belabored this point for years (particularly in the gun context; see here and here, for example), but now Eugene Volokh sums up the whole matter (Apr. 25) with great clarity. He concludes with the following points:
Finally, I would caution against appeals to tradition here. It’s true that most tort law has traditionally been state law; but that’s partly because historically most tort liability has involved either entirely intrastate behavior or behavior that’s largely intrastate. In particular, I don’t think there has been a long tradition of tort law imposing liability on defendants’ purely out-of-state behavior in the first place, especially when defendants’ behavior was lawful in the state in which it took place.
Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what’s “traditional” here.
District of Columbia v. Beretta, U.S.A.
Frightening decision in District of Columbia v. Beretta, U.S.A. today: the highest court in D.C. upheld the legality of a provision that allowed victims of gun violence to sue gun manufacturers for the misuse of their products. (The law in question applies only to “machine guns”, but then defines “machine guns” to include semi-automatic weapons with large magazines.) As Professor Volokh notes, this has the effect of permitting the D.C. city council to regulate gun sales nationwide. The Cato Institute’s Gene Healy and Robert A. Levy have written elsewhere that national litigation reform legislation to bar such gun lawsuits is a violation of federalism principles, but the Beretta case shows how misguided that position is: individual states (and, in the case of DC, a single city) can create liability regimes that affect interstate commerce nationally. Healy and Levy suggest that the remedy for businesses is to “withdraw from doing business in a state that has an oppressive tort regime” but that doesn’t help gun manufacturers who don’t do business in the District of Columbia to begin with.
Update: Judge in Batra swivel-chair case censured
The New York State Commission on Judicial Conduct has censured Acting Supreme Court Justice Diane A. Lebedeff “for presiding over a case in which she had a ‘significant social and professional relationship’ with the plaintiff, attorney Ravi Batra”. The case in question was none other than the one described in our Nov. 11, 2003 entry, in which Batra, a noted judicial kingmaker in city politics, was demanding $80 million in damages for a fall off a swivel chair in his office, eventually settling with the furniture store for $225,000. Reports the New York Law Journal:
One of the aggravating factors the commission’s unanimous decision pointed to was that during the five years Lebedeff handled Batra’s case, she excused the defense lawyers on approximately five occasions, saying she wanted to “engage in ‘gossip’ or other social conversation not related to the case, with Mr. Batra.”
…Batra said, “The fact that the judge and I were friendly is a stipulated fact in the determination and was contemporaneously known to defense counsel, who never objected.”
An attorney with Gair, Gair, Conason, Steigman & Mackauf, representing the judge, “said that Lebedeff accepts the censure because she recognizes that there was an appearance of impropriety. He stressed, however, that there was no claim that any of her actions were improper.” (Daniel Wise, “Presiding Over Friend’s Trial Results in Censure”, New York Law Journal, Apr. 11). Norm Pattis (Apr. 12) finds defense mistakes in part to blame.
Gerry Spence’s Trial Lawyers College
The Wyoming injury lawyer is known for his extended rants on the theme of the People versus the Interests, which makes it piquant to see his name turn up so prominently among exploiters of a federal tax provision intended to benefit the needy, in this case — through his Trial Lawyers College — allowing him to maintain his control over a spectacular 220-acre ranch while dodging the taxman. ABC News has the details (Jake Tapper and Avery Miller, “Wealthy Cash In on Charity Tax Loophole”, Mar. 24). Trial lawyer/blogger Mike Cernovich, a satisfied customer of Spence’s seminar operation, praised it here, while his co-blogger Norm Pattis more recently noted the tax-avoidance story.