Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘politics’

Wright on Frank on Chemerinsky on Roberts

Josh Wright expands on my line “we all know darn well that many ‘pro-business’ legal rules favor consumers and employees as a group ex ante,” and is even harsher with Chemerinsky than I was:

[W]hat gets me about this section is the heading: “Supreme Court favors businesses over consumers.” Is that really what these cases are about? I have read political accounts of the Supreme Court opinions in newspapers and periodicals or blogs that read this way (”The Roberts Court wants to stick it to the consumer — I can prove it: the Defendant won in all 4 cases this term”). But I’ve not heard law professors take this route too often, and never an antitrust commentator. In fact, a reasonable reading of the Court’s antitrust output this year suggests that the issues are much more nuanced than this oversimplified soundbite that pits business against consumers.

Is Leegin a pro-business and anti-consumer decision? I’m not sure I even know what that means in this context. … Justice Kennedy’s opinion on behalf of the majority does allow manufacturers to engage in behavior that was previously constrained. Perhaps that is a sufficient condition for a pro-business label? On the other hand, the very reason the Court overturned the per se rule was the result of evidence that minimum resale price maintenance made consumers better off! Now, one might think that the Court got it wrong and that RPM actually harms consumers. … But to argue that the Court got there by favoring business over consumers is not accurate, and obvious from reading the opinion.

Earlier on Leegin: Skip Oliva, Jul. 26.

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Chemerinsky on the Supreme Court

Erwin Chemerinsky writes a not-especially honest review of the most recent Supreme Court term. He falsely characterizes the Roberts Court as “a solid conservative voting majority,” notwithstanding the numerous decisions where conservatives were not in the majority, or where the majority decision fell far short of conservative ideals. He characterizes the divided Philip Morris v. Williams decision as “conservative,” even though it was Breyer and Souter in the majority and Scalia and Thomas in the dissent. He complains that conservatives “defer to the government in the face of most claims of individual rights,” but gives no mention of last term’s Wisconsin Right to Life v. Federal Election Commission, where five conservative justices reasserted first amendment rights for political speech over the dissent of Breyer, Souter, Ginsburg, and Stevens, who wanted to preserve the government ban on speech. We’ll ignore that Chemerinsky takes the typical liberal tactic of characterizing legal rules as favoring either businesses or consumers/employees—we all know darn well that many “pro-business” legal rules favor consumers and employees as a group ex ante.

Chemerinsky is entitled to his left-wing opinion, though one might justifiably complain that he’s not entitled to his own facts. But what I certainly object to is the fact that this is being distributed and printed by the State Bar of California in the California Bar Journal, and advertised at the top of the State Bar of California website, since I am required to pay the California Bar hundreds of dollars a year, and have no way of getting a refund for the fishwrap mailed to me every month. This sort of partisan activity strikes me as a highly unethical use of my dues, and I hope someone in California is doing something about it.

(Earlier: Coleman; Bainbridge.)

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Does Keith Olbermann read Overlawyered?

Overlawyered, August 5:

A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of (the trial lawyers’) lobbying group. Indeed, John Edwards’s finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates’ debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty?

August 7 AFL-CIO Democratic debate:

OLBERMANN: Senator Edwards, I have a question for you. You made your substantial fortune as a trial lawyer. Trial lawyers are now contributing significantly to your campaign. How is that any better than lobbyists?

Alas, Edwards dodged the question, but it has perhaps contributed to the recent NY Times press coverage.

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Edwards – lawyer $ = Richardson or Dodd?

Yes, we’ve run several critical items on presidential fundraising lately (disclaimer), but this added bit seemed worthy of note:

…More than half of the Edwards donors who listed their occupations said they are attorneys, and they have given seven times more than any other profession, according to an Associated Press analysis of campaign finance data. …

In the first six months of the year, Edwards raised $23 million. But without the roughly $7 million collected from donors identified as attorneys, his numbers would fall closer to that of lower-tier candidates, such as New Mexico Gov. Bill Richardson and Connecticut Sen. Chris Dodd.

It should be noted that “donors identified as attorneys” is a term of art. Many donations from, e.g., lawyers’ family members or persons whose livelihood derives from litigation support services will not be so identified. Candidates Clinton and Obama have raised about one-sixth of their funds from donors identified as attorneys. (Mike Baker, “Attorneys still bankroll Edwards effort”, AP/Seattle Post-Intelligencer, Aug. 1). More on Edwards’ fund-raising here, here, here, here, here, etc.

P.S. I see the Times is also tackling the subject today: Leslie Wayne, “Lawyers’ Dollars? Not Just to Edwards”, New York Times, Aug. 9. (& welcome readers of Prof. Bainbridge, guestblogging at Andrew Sullivan’s).

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Assignment Desk: Edwards, Obama, and lobbyist money

At YearlyKos, John Edwards and Barack Obama sought to distinguish themselves from Hillary Clinton by saying they didn’t take money from registered lobbyists, and Clinton was booed for defending herself. (Also: Franke-Ruta.)

I found this curious: after all, Obama and Edwards showed up at the national convention of the lobbying group for the trial lawyers, the former Association of Trial Lawyers of America (who now call themselves the American Association of Justice). There, they gave speeches (as did Clinton, Biden, and Richardson). A look at the largest donors for Obama and especially Edwards shows a disproportionate number of active members of that lobbying group. Indeed, John Edwards’s finance chairman is Fred Baron, the former president of ATLA. If Obama and Edwards want voters to believe that Clinton is influenced by lobbyist money, what should we think about these two candidates’ debts to trial lawyers? Are we to believe that the critical difference is the lobbyist registration papers, at which point money becomes tainted and dirty? Are any reporters going to ask that hard question, or will they let the two candidates demagogue from the high ground as they take millions from the most pernicious special interest group in America?

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Stoneridge: Wherein I am a footnote

Reps. Barney Frank and John Conyers, Jr. spend taxpayer dollars to file a late amicus brief on behalf of plaintiffs’ lawyers and against investors in Stoneridge v. Scientific-Atlanta, taking issue with my Wall Street Journal op-ed on the case. (H/t L.R.) To wit, “A number of commentators have called for the Court to decide this case by reference to policy considerations nowhere found in the statute.” This is wrong: the op-ed explicitly noted that Congress had twice rejected precisely the sort of liability that petitioners were seeking in this case. It is also ironic: civil securities fraud liability was created by judicial fiat out of a statute that had no private right of action.

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Promised political announcement

The Rudy Giuliani for president campaign this afternoon unveiled its Justice Advisory Committee, which will be advising hizzoner’s campaign on issues of legal policy. It’s headed by former Solicitor General Ted (“no relation”) Olson, and boasts a really stellar array of practicing and academic law talent, including lawprofs Charles Fried, Steve Calabresi, George Priest, and Ronald Cass, former Southern District chief judge Michael Mukasey, and former Justice official Maureen Mahoney, among others. The full list is here (campaign site) or here (PowerLine).

And, yes, that’s my name on the list too. I try not to clutter the site overmuch with my personal candidate preferences, but I find the former NYC mayor to be the clear standout candidate in this year’s White House pack, despite my disagreements with a number of his stances in the past. Early interactions between the legal advisory committee and the candidate have further strengthened my confidence in the kind of leadership he’d provide in office.

That’s enough for the moment, but I just wanted to give readers fair warning and a chance to discount/make allowances in case I happen to mention the various candidates and their doings as the political season proceeds. (& welcome NRO “Bench Memos”, Andrew Sullivan, PowerLine, National Journal BlogoMeter readers. Also, here’s an op-ed by the candidate).

P.S. Newsday has a story interpreting the whole thing as a Supreme Court short-list (which would truly make me the odd man out) but doesn’t mention that most likely picks for the Court would be drawn from the ranks of sitting judges, whose names inevitably could not appear on a list like this.

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Location, Location, Location: The Best & Worst Legal Climates in America

Given the economic costs imposed by today’s legal system (a staggering $865 billion per year according to one recent estimate), it’s surprising more companies don’t take into account a state’s liability climate when making critical decisions like where to open a new plant or invest in existing facilities.

A new report could help change that.

Risky Business: The Annual Boardroom Guide to Litigation in the 50 States provides the first ever ranking of state legal environments that combines economic science, real world corporate experience and input from state legal reform experts – people with the most current intelligence from the front lines.

It builds on a few landmark studies, including the American Tort Reform Association’s “Judicial Hellholes,” the Pacific Research Institute’s U.S. Tort Liability Index, and the Institute for Legal Reform/Harris Interactive survey.

So where are the soundest states – and where is the swampland?

Nebraska and Virginia top the list with the best legal climates. What do they have in common? Reasonable limits on punitive damages, a “rule of law” majority on the state Supreme Court, and Attorneys General who specialize in law enforcement, not grabbing the spotlight at the expense of businesses.

In stark contrast, West Virginia, Rhode Island and Florida round out the bottom of the list. All have activist Supreme Court majorities who consistently rule in favor of trial lawyers. West Virginia has a governor who supports legal reform – a reminder that having a pro-reform governor does not necessarily translate into a sound legal environment.

To see the full list go here.

Steve Hantler

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