Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘WO writings’

At Commentary on the Roundup verdict

My new piece at Commentary on a San Francisco jury’s verdict ordering Bayer/Monsanto to pay $289 million to a school groundskeeper who blamed Roundup herbicide for his cancer. It bids to go down in the history books alongside the lawsuits “claiming that silicone breast implants caused auto-immune disease, common childhood vaccines caused autism, the morning sickness drug Bendectin caused birth defects, one or another make of car suddenly accelerated without any input from the driver or gas pedal, and so forth.”

At the end it concludes: “Eventually, our liability system does often get around to rejecting baseless scientific claims of causation, especially since the improvement in the handling of expert evidence embraced by the U.S. Supreme Court in Daubert v. Merrell Dow (1993). Before it gets there, however, it sometimes redistributes large sums—often to claimants, even more reliably to lawyers—and often destroys large amounts of value. In the days after the San Francisco verdict, the value of Bayer stock dropped by more than 10 billion euros. It’s expensive when error prevails.” More: The Logic of Science (“Courts don’t determine scientific facts.”) Earlier on glyphosate here. And a note on the perhaps-surprising tax implications under perhaps surprising provisions of the 2017 tax reform: Robert Wood.

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Sen. Warren: make American business more European

Massachusetts Sen. Elizabeth Warren has a new scheme to impose employee co-determination and an assortment of other forcible corporate governance alterations on American business. My new Cato post argues that it would expropriate huge sums in shareholder value while undercutting incentives for economic dynamism. Alternatives to the U.S. corporate governance system, “European or otherwise, simply do not have as good a track record of supporting a dynamic economy that generates world-beating enterprises across a wide range of business sectors.” Other views: Donald Boudreaux (“deeply truly scary”), Matt Yglesias/Vox (taking favorable view of scheme, including its destruction of perhaps 25 percent of current shareholder value). More on the “stakeholder” and co-determination angles: Samuel Hammond, and Megan McArdle on the latter.

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Obergefell overturned?

My opinion piece in Monday’s Wall Street Journal offers eight reasons why, no matter who is the next justice, the Supreme Court will not overturn Obergefell v. Hodges, its 2015 same-sex marriage decision.

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.

The piece is paywalled, but Jonathan Adler has a write-up briefly summarizing some of its other points. I’ve discussed Pavan v. Smith here and Masterpiece Cakeshop here.

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Andrew Grossman on municipal climate suits

 

In a recent Cato Daily Podcast with Caleb Brown, Cato adjunct scholar Andrew Grossman of Baker & Hostetler discusses the “legally aggressive” new round of climate change litigation, in which municipalities in California and Colorado, as well as New York City, have sued energy producers and distributors seeking to recover damages over the release of carbon dioxide into the atmosphere.

As Grossman notes, the idea of suing over the role of carbon emissions in climate change has by this point been tried many times. The most obvious approach would be to sue large industrial emitters of carbon, which is what some state governments did in one of the most prominent cases, filed against electric utilities. In its 2011 AEP v. Connecticut decision, however, the Supreme Court ruled that such outputs were regulated comprehensively and exclusively at the federal level through enactments like the Clean Air Act, and were not subject to an additional level of state regulation through public nuisance claims. Suits on other theories, such as Comer v. Murphy Oilfrom the Fifth Circuit and the Kivalina case in the Northern District of California, have been launched “to enormous bombast and press attention and they have all bombed out…. Those cases were the low-hanging fruit. Those were the more obvious legal theories if you were going to try to bring this kind of case,” he says.

Now the question is whether litigants can accomplish an end run by instead attacking upstream, pre-emissions activity, specifically the extraction and distribution of fossil fuels destined to be burned. Ambitiously, some of the new suits attempt to apply state common law to activities occurring around the world – to the doings of worldwide corporations such as Royal Dutch-Shell, for example, and to oil production from places like the coast of Norway and its subsequent use by European motorists. Needless to say, many of these processes are comprehensively regulated by the laws of the European Union and its member countries. Doctrinally, then, the new efforts get into even deeper water (so to speak) than strictly domestic claims. From the podcast:

If a court in California is going to go around telling Norway what to do, well, gosh, Norway may not really like that. And what do you do in that instance? It’s not apparent to me how this works. How does the court figure out what Norway’s regulations are and what Norway is doing about this? Who’s going to tell them? I don’t know. What if Norway disagrees with whatever it is that the court decides needs to be done in this case? Does Norway complain to the court? Do they send an ambassador to file a brief or something? I don’t know. This has never happened before. And what if Norway decides that they don’t like whatever it is the court is doing and they’re going to impose, say, reciprocal trade tariffs, or something like that, against the United States on the basis of one of these rulings? Does the court hold them in contempt?

Listen to the whole thing here (cross-posted from Cato at Liberty).

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Supreme Court upholds workplace arbitration, and it’s Epic

My latest at Cato on this week’s decision upholding agreements to individually arbitrate wage and hour claims, in Epic Systems Corp. v. Lewis:

Yesterday’s 5-4 Supreme Court decision upholding agreements to individually arbitrate wage-and-hour claims was neither surprising nor novel as a legal matter. Nor – notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left – is it objectionable as a matter of policy, or “anti-worker.” It is pro-liberty, pro-contract, and pro-respect for private ordering….

NPR, which really should know better, misreported on Twitter that “The Supreme Court in a 5-4 vote has delivered a major blow to workers, ruling for the first time that workers may not band together to challenge violations of federal labor laws,” of which the first eight words count as accurate reporting, the next half-dozen as erroneous opinion, and the remainder as merely false in fact….

…an oft-heard argument is that a contract presented as a take-it-or-leave-it matter, as is typical of employer handbook policies, credit card terms and the like, doesn’t count as a “real” contract and is entitled to no respect as a matter or law or, presumably, from libertarians. … Properly evaluating that claim is a task for another occasion, but my colleague Andrew Grossman is surely right when he points out that every hour of the day workers choose to accept overall employment packages including some terms they welcome (health insurance coverage, paid vacations) along with others they may not (some weekend hours required, don’t take staplers home) and that the lack of dickering over individual terms does not mean that they are not voluntary or have somehow been imposed by force.

Whole thing here. As I wrote after Italian Colors, millions of people “sign away their class action rights not because they are all hoodwinked or coerced, but because at some level they have rational grounds to recognize that” those rights are mostly of value to the class action industry.

Speaking of Italian Colors, the outcome in Epic Systems would surely have been no different had Scalia lived, since he led the way on the Court toward respecting contractual arbitration clauses and upholding the broad scope of the Federal Arbitration Act. More from Archis Parasharami and Dan Jones at SCOTUSBlog: “The best available empirical evidence shows that employees who arbitrate their claims are more likely to prevail than those who go to court, and to obtain awards that are the same as or larger than court awards in a shorter amount of time.” More: James Copland.

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RIP Richard Pipes

The great scholar Richard Pipes, known above all for his work on Russia and the Bolshevik Revolution, has died at 94. In 1999 I favorably reviewed his book on property as an institution, Property and Freedom: The Story of How through the Centuries Private Ownership Has Promoted Liberty and the Rule of Law. I’ve got a new post at Cato pulling together a few highlights of his work on property, along with miscellaneous links.

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Age of sound judgment: a letter to the Washington Post

The Washington Post editorialized last month in favor of dropping the voting age to 16. I dashed off a letter to the editor, which they didn’t run, and is here adapted:

At what point are young people to be entrusted with important life responsibilities? The Post has repeatedly opposed easing the drinking age from 21 so as to allow persons of 18 or 20, who may include service members returning from combat missions, to enjoy a glass of beer. It opposes subjecting late-teen juvenile offenders to the level of accountability applied to adult criminal defendants. Its coverage suggests sympathy with proposals to raise the marriage age to 18, which would mean that a couple of 17 is not deemed mature enough to enter on binding vows of mutual support even with parental blessing and judicial ascertainment of their independent choice.

Now the Post supports slashing the voting age to 16. Perhaps the pattern here is that the Post sees 16 year olds as incapable of making decisions to govern their own lives, yet competent to govern everyone else’s.

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FCPA: “Making us feel better isn’t a good enough reason for a law.”

Compliance Week invited me to write on what’s wrong with the Foreign Corrupt Practices Act. Excerpt:

Scenario: an American city hires an Asian-based bank to float a bond deal. Scandal! Turns out the bank wined and dined the mayor and council and treated them to sports events. After an investigation, the Asian bank agrees to put things right by paying millions of dollars to the government of France.

That’s crazy, right? What does any of this have to do with the government of France? But it’s certainly no crazier than the workings of our own Foreign Corrupt Practices Act, under which European companies have been made to pay penalties of $398 million and $240 million to the U.S. government over bribes paid to officials in Nigeria and Iran, respectively….

FCPA oversteps the proper bounds of federal lawmaking in at least four ways: it is extraterritorial, vicarious, punitive, and vague….

The business community in Washington has been pressing for legislation to clarify the 1977 law’s requirements, but I suggest we go further and re-examine things more fundamentally, including (beyond the problems above) the law’s break from principles of mutualism and comity in foreign relations and its role in scaring capable bidders away from infrastructure projects that could help lift some rural populations out of desperate poverty. “Making us feel better isn’t a good enough reason for a law.”

Full text here, and earlier FCPA coverage here, here, here, here, and here [cross-posted and expanded from Cato at Liberty] A few more links: Mike Koehler/FCPA Professor on the Total case as “cash cow”; Manhattan Institute 2013 report and more coverage on now-dormant Point of Law; Brian Hoffman, Holland & Hart; Foley & Lardner.

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Environmental journalism, brought to you by the EPA

I like advocacy journalism as well as the next fellow — at least I consume a lot of it as a reader. That doesn’t mean the federal government should be funding it, thereby giving a boost to one side of environmental debates in the mid-Atlantic region. My new piece for the DC Examiner examines the Environmental Protection Agency’s longstanding subsidies for the influential Chesapeake Bay Journal.

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