Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘The Litigation Explosion’

From the FedSoc archives: “The Death of Contract and the Rise of Tort”

What good is sitting alone in your room without catching up on your video watching? This newly released panel discussion from the 1991 (!) Federalist Society National Lawyers Convention tackles the then-afoot trend to diminish the domain of traditional principles of contract in favor of prescribed duties under tort law, a trend I had discussed in my book The Litigation Explosion in that year. That particular trend, like some of the others I criticized, was to turn around in later years; contract did not die and in fact came back strong as it remains today.

It was quite a line-up that day:

Featuring:

Walter Olson, Manhattan Institute
Hon. Joseph R. Grodin, University of California Hastings College of Law and former Associate Justice, California Supreme Court
Prof. Randy E. Barnett, Chicago-Kent College of Law
Prof. E. Allan Farnsworth, Columbia Law School
Moderator: Hon. Robert Bork, American Enterprise Institute and former Supreme Court nominee

A direct YouTube link is here.

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Medical roundup

  • Radiologist Saurabh Jha had me on his popular podcast a while back to discuss the history of malpractice law. Now he’s written a substantial piece (link to article, gated) on my book The Litigation Explosion (1991) for the Journal of the American College of Radiology which has in turn touched off a discussion on professional Twitter;
  • Certificate-of-need (CON) laws in 35 states allow incumbent firms to raise legal objections to entry by new competitors. Bad idea generally, and especially when the service involved is ambulances [John Stossel; Cato Daily Podcast with Caleb Brown and Larry Salzman of the Pacific Legal Foundation, which is suing to challenge Kentucky law]
  • Cato’s Robert A. Levy discusses some of the common law background of tort and contract, including medical misadventure [The Bob Harden Show, radio]
  • Trial lawyers trying yet again to lift California MICRA limits on medical malpractice recoveries [AP/KTLA via TortsProf] “Pennsylvania high court tosses seven-year medical malpractice limit” [Harris Meyer, Modern HealthCare via TortsProf]
  • Politicized social justice curriculum reaches med school [AnneMarie Schieber, Martin Center]
  • No repeal of Feres doctrine, but administrative claim fund could bypass: “Military medical malpractice victims could see payouts from Defense Department under new compromise” [Leo Shane III, Military Times]

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Fear of Thiel and the case for litigation reform

“Angry about Peter Thiel’s pursuit of Gawker? Tort reform is the best solution.” Sonny Bunch of the Free Beacon is kind enough to quote me at length (and quote my debut book, The Litigation Explosion, at length too) in this Washington Post opinion piece.

…members of the media are finally starting to realize something that conservatives have been arguing for quite some time with regard to our litigious culture, namely that the process itself is the punishment….

One of the causes that Olson argued most strenuously for in his book [The Litigation Explosion] was a more aggressive regime of fee shifting — that is, crafting and enforcing “loser-pays” laws common in other countries. Given that he literally wrote the book on the topic, I emailed him and asked how news outlets could work to avoid ruin at the hands of the vengeful wealthy….

If you wonder how loser-pays might have helped Gawker even though Hulk Hogan’s case was a winner, you need to read the link. More: Andrew Kloster and Jessica Higa, Daily Signal.

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Gordon Crovitz on “Peter Thiel’s Legal Smackdown”

The discovery that systematic lawsuit campaigns can be aimed at the press, and not just against every other institution, might be reason to rethink litigation-as-weapon [Gordon Crovitz, Wall Street Journal]:

Walter Olson, author of “The Litigation Explosion” (1991), explained in his Overlawyered.com blog that Mr. Thiel’s approach was predictable after maintenance “metamorphosed around the 1960s into what we now know as the public interest litigation model: foundation or wealthy individual A pays B to sue C. Since litigation during this period was being re-conceived as something socially productive and beneficial, what could be more philanthropic and public-spirited than to pay for there to be more of it?”

With maintenance decriminalized, Mr. Olson warns, “It will be used not just against the originally contemplated targets, such as large business or government defendants, but against a wide range of others—journalistic defendants included.”

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International free speech roundup

  • Tonight in New York City, Cato presents its Milton Friedman Award to Danish journalist Flemming Rose, a key figure in the [still-ongoing] Mohammed cartoons episode, and author of The Tyranny of Silence [David Boaz, Cato]
  • Troubles in Turkey: journalists sentenced to two years in jail for reprinting Charlie Hebdo cover [Reuters, Reason] Erdogan’s campaign against foreign critics assumes extraterritorial reach with complaints against comedian in Germany and Geneva exhibit [Colin Cortbus/Popehat, Foreign Policy]
  • Ya mad wee dafty: “Man faces hate crime charge in Scotland over dog’s ‘Nazi salute'” [Guardian]
  • Publish a “wrong” map of India, face seven years in jail and a huge fine [Hindustan Times; “crore” = 10 million]
  • United Kingdom man fined £500 for calling romantic rival “fat-bellied codhead. [Blackpool Gazette]
  • Emulating USA tycoon D. Trump, China pressures finance analysts against negative forecasts [WSJ, Barron’s on the Marvin Roffman story, which I used to tell when giving speeches on my book The Litigation Explosion]

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“I myself escaped by a bare whisker from attending law school…”

My tell-all interview at Fault Lines gets into why I don’t hate lawyers (really), my various books, my views on Cato and other think tanks, law and economics, the lack of any real reckoning for the Great Tobacco Robbery, why law schools might actually serve as a counterweight to campus pressure for ideological uniformity, my writing outside law, and much, much more. I’m interviewed by Scott Greenfield, well known to our readers for his criminal law blogging; Fault Lines is a recently launched criminal justice website that’s part of Lee Pacchia’s Mimesis Law.

There have been many flattering reactions already, scroll down from the interview to this comment from Margaret Little which made me particularly happy:

Overlawyered made an enormous contribution to understanding where lawyers were taking the legal system over the past several decades and it continues to fill a vacuum in the discourse about law. For too long that discourse was plaintiffs vs. defense lawyers, with both sides vulnerable to attack for self-interest. Worse, the defense bar, which has an economic interest in the expansion of liability, is often silent or even complicit in the game. While Overlawyered’s postings were made with much-appreciated wit and style, the sheer comprehensiveness of the empirical data, and the mind-boggling attention to detail in its analysis makes it a gold mine for research and a landmark accomplishment. Well done! Don’t quit!

Whole thing here.

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Charles Murray’s recommendations for books on the U.S. legal system

Honored that two of mine, The Litigation Explosion and The Rule of Lawyers, are among seven that author Charles Murray (most recently of By the People) has recommended if you’d like to understand the state of the U.S. legal system [Benjamin Weingarten, The Blaze] I can recommend all the other books on the list as well, including the four by well-known author Philip K. Howard, often mentioned in this space, and The American Illness: Essays on the Rule of Law, edited by George Mason lawprof F.H. Buckley, a recent and underappreciated gem. Its contributors include Stephen Bainbridge, Todd Zywicki, Richard Epstein, George Priest and many well-known legal academics.

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Welcome Rod Dreher readers

I once wrote that a highly litigious society is like a civil war in very, very slow motion. Rod Dreher has similar thoughts here about how the structure of mutual trust erodes when people learn (and are taught) to find advantage in setting legal process against each other. Dreher quotes Iranian reader Mohammad:

…the USA system of justice is such an allure! It invites you to sue. One reason is that you can get money this way. The first thing I was taught in the USA (a lesson I did not learn) was to seek occasions for suing people. I was treated like trash couple of times, and I had the golden opportunity to cash in, but I decided it was totally unethical.

However, there are other reasons why litigation is so sexy in the USA. The system gives you a profoundly stupid idea about what is just and what is not, and about your entitlement to your rights.

Also mentions this site [The American Conservative]

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Hopes of taming discovery at last?

Following widespread complaints, led by the business community, that the high cost of the discovery phase of litigation is enough to deprive parties of substantive justice, the Advisory Committee on Rules of Practice and Procedure in August of last year proposed amending the Federal Rules of Civil Procedure to make discovery less burdensome.  Following a public comment period that ended in February it amended the proposals somewhat and submitted them to a standing rules committee which in turn approved them in late May “with the recommendation that the U.S. Supreme Court accept the changes. If approved, the proposed amendments will go into effect on December 1, 2015.”

Some resources:

  • Tony Rospert and Rob Ware (Thompson Hine), working paper for Washington Legal Foundation on e-discovery costs;
  • Beck, Drug & Device Law (“While hardly perfect, these changes to Rule 37(a) are a welcome step in the right direction.);
  • Alison Frankel, Reuters, on the politics (trial lawyers and legal academics resisting reform);
  • Adapted excerpt in Reason from the chapter on discovery (“The Assault on Privacy”) from my book The Litigation Explosion, 1991.

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