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May 10, 2008
Asbestos: The Economy Feels the Heat
A Washington Post "Think Tank Town" column, "Fire Retardant Asbestos Suits," by John M. Wylie II, the principal author of the Manhattan Institute report on asbestos litigation.
The report shows that the long-running asbestos-lawsuit scam has destroyed 80 companies and the employees and shareholders who depend on them, and created a system so corrupt that judges and advisors were guilty of outright extortion and theft. Companies forced into bankruptcy by questionable claims are now being scammed again by attorneys double-dipping from the trusts these companies created for those who really were injured. ...[snip]Read the whole thing, and click here for "Trial Lawyers, Inc.: Asbestos."Tragically, real victims -- workers who actually face serious future health problems due to asbestos exposure -- are often duped into signing away future rights for a pittance in order to pad current attorney fees, and are then left with no recourse if they actually become sick. And workers falsely diagnosed as sick face a lifetime of worry and problems getting insurance.
Posted by Carter Wood at 8:52 AM | Click here to comment | Send to a Friend
May 9, 2008
Don't Make Rex Morgan Angry
Happy 60th Birthday, Rex Morgan, M.D! Publishers Syndicate launched the strip in 1948, bringing medical issues to the comics pages.
In the current storyline, Rex faces his toughest foe yet, TV-advertising Max the Ax, personal injury attorney, who hopes to cash in an outbreak of methicillin-resistant staphylococcus aureus (MRSA). Today's strip:
In other news, this month's issue of "Trial" -- the magazine of the Association for Justice -- is all about medical malpractice lawsuits.
Posted by Carter Wood at 10:03 AM | Click here to comment | Send to a Friend
May 8, 2008
How About Those Hearings, Now?
Surely Congress could spend just a small percentage of its investigative energies on reviewing the crimes, economic waste and injustice perpetrated by the trial bar. Don't you think?
And more from the ABA Journal on the Manhattan Institute report. You know, the American Association for Justice, i.e., the national trial lawyers group, normally is quick to respond with an overheated news release attacking the motives of the legal reformers. Nothing so far. UPDATE: They did. The news release wasn't on the homepage, and we missed it. Same old rhetoric, though. Don't respond to the substance, just attack your opponent and change the subject. Where do they learn that? Maybe they're too busy.
Posted by Carter Wood at 8:29 AM | Click here to comment | Send to a Friend
May 7, 2008
Asbestos: Trial Lawyers Inc. Rolls On
The Manhattan Institute has just released a new report outlining the transforming, expanding and always predacious asbestos-litigation industry, "Trial Lawyers, Inc.: Asbestos." A couple of observations:
The injustice inflicted by Trial Lawyers, Inc., is manifold. Companies that had only a passing involvement with asbestos are brought to their knees by litigation, courts are swamped by abusive lawsuits, and the real sufferers are cheated.
But as Copland concludes, "One thing’s certain: Absent reform, asbestos litigation abuse is here to stay."
More at the Madison Record.
Posted by Carter Wood at 9:08 AM | Click here to comment | Send to a Friend
CO Trial Lawyers Climb Back Down Pike's Pique
Wisdom has prevailed for the moment in Colorado. From The Denver Business Journal:
Trial lawyers in the state and a group proposing to severely restrict the ability of plaintiffs to bring contingency fee civil lawsuits have agreed to withdraw competing ballot issues aimed for the November ballot.Oh, for the working people, is it? We have another theory: National political and legal figures called Sadwith, saying, "Are you nuts? With the Democratic National Convention in Denver in August, the national media will be all over this story, confirming the public's prejudices against trial lawyers as greeding, grasping, avaricious and vengeful characters. Our critics among all those doctors, real estate agents, business owners, homebuilders, farmers, everybody...they'll have a heyday. It's a public relations nightmare. KNOCK IT OFF!"John Sadwith, executive director of the Colorado Trial Lawyer's Association (CTLA) said the decision was made late Tuesday after continuing talks with the group promoting the restrictions on how much lawyers could collect in successful civil actions.
"We didn't think it was the best interests of working people in the state" to go forward with gathering signatures and putting the measures on the November ballot, Sadwith said.
The lawyers' nine initiated measures would have, among other things, capped compensation by CEOs -- unconstitutional -- revoked licenses of some doctors sued for malpractice, limited commissions for real estate agents, gone after homebuilders and tapped federal farm subsidies of certain farmers. No working people among those groups.
Still, more than 100 initiated measures have been proposed. Earlier Shopfloor.org post here.
UPDATE (1:55 p.m.): More from the Rocky Mountain News. The Trial Lawyers news release is here.
Posted by Carter Wood at 8:20 AM | 1 comment; click here to read it or submit your own! | Send to a Friend
May 6, 2008
Pike's Pique
As of last Friday, 127 proposed initiatives have been filed with the Colorado Secretary of State's office. Long ballot, eh? The Colorado Trial Lawyers Association has been extra active, filing nine new ballot initiatives for the November election. State Rep. Jerry Sonnenberg comments in the Greeley Tribune.
Farmers are one of their targets and for the life of me, why lawyers hate farmers and rural Colorado is beyond me. Their ballot initiative, if passed, would force farmers to give up as much as 25 percent of any disaster payment or farm program to higher education for farmer training and outreach.And each one creates a new cause of action.They filed another initiative that says specifically what Realtors can charge per sale.
The lawyers also filed to order the maximum amount a company can pay its executives.
Another initiative goes after doctors.
The Rocky Mountain News covered this story on April 24th.
In an apparent retaliation for an earlier filing to limit attorney fees, the head of the Colorado Trial Lawyers Association has filed with the state to put nine measures on the November ballot.Realtors, farmers, doctors, executives -- You're not real people. So go away, and take the economy with you."For too long, corporate interests have been put ahead of consumer interests in this state," said John Sadwith, executive director of the 1,200-member trial lawyers' group. "Real people in this state deserve a break."
Posted by Carter Wood at 8:31 AM | Click here to comment | Send to a Friend
May 4, 2008
Florida Trial Lawyers Kick John Henry's Patoot
The Orlando Sentinel offers a post-mortem of the Central Florida commuter train debacle in the Legislature. The state and CSX negotiated a $650 million package of rail improvements, while granting the company liability protection for operations on the proposed line from Volusia to Osceola counties.
Florida's trial-lawyer association is traditionally opposed to any limits on people's right to sue. It is a potent interest group in Tallahassee; its political committee contributed more than $3.5 million to state candidates in the past three years. And it has particularly strong support in the Senate.But though the trial lawyers had said early this year they had a "problem" with the liability language, Central Florida backers didn't recognize until too late how hard the group was willing to fight.
"No one realized that the trial lawyers had decided to take this on and make it their power play," said Fred Leonhardt, a lobbyist for Orlando.
Posted by Carter Wood at 12:01 PM | Click here to comment | Send to a Friend
The Case for the Longshoremen's Strike
David Macaray, a Los Angeles playwright and writer and labor union activist, salutes the International Longshore and Warehouse Union for staging a May Day strike that closed down West Coast ports in protest of the war in Iraq. The longshoremen are a tough bunch, Macaray enthuses in the hard-left Counterpunch.
Nobody crosses an ILWU picket line, not unless he wants to pick his teeth up off the floor or find his car on fire. Admittedly, some will call this “intimidation”; the Longshoremen prefer to think of it as “solidarity.”For another perspective, try Lowell Ponte, a former Readers' Digest editor who now writes for NewsMax, pretty hardcore in its own right, right.
It cost our economy between $1 and $2 billion, equivalent to the theft of up to $26.66 from every American family of four -- money you and your family will be paying in higher prices.The two writers, both historically attuned, take a different view of one of the union's founders, Harry Bridges.Even more troubling is that those who conspired to assault us have not been arrested, jailed, or even removed from their high-security-risk positions.
Posted by Carter Wood at 11:44 AM | Click here to comment | Send to a Friend
May 3, 2008
Feel Like an Old Railroad Man
Two tort-reform items crossposted from PointofLaw.com:
Posted by Carter Wood at 9:02 AM | Click here to comment | Send to a Friend
May 2, 2008
It's Time for Hearings into the Trial Bar's Crimes
A recurring theme here at Shopfloor.org and with other advocates of tort reform -- the American Tort Reform Association and The Examiner newspaper, for example -- is the obvious need for Congress to conduct oversight hearings of the trial bar's crimes and their costs to the U.S. economy. The time has now arrived. On May 19, Melvyn WeissWilliam Lerach is due to report to prison -- following in the footsteps of his former partner, William Lerach -- for his conviction in leading a decades-long conspiracy at Milberg-Weiss to pay kickbacks in the filing of class-action lawsuits.
Today, House Republican Leader John Boeher and Rep. Lamar Smith (R-TX), the ranking Republican on the House Judiciary Committee, sent a letter to Chairman John Conyers asking for such a hearing. (Copy of the letter here.) As the two note in their letter: "Mr. Lerach himself told the Wall Street Journal his illegal conduct and that of his law partners was an 'industry practice.' At his sentencing, one of his supporting letters quoted Mr. Lerach as saying, 'Everybody was paying plaintiffs so they could bring their cases.'" More:
The Republican-led Congress responded aggressively to the Enron and WorldCom scandals earlier this decade. Now the Democrat-led Congress needs to do its job and examine the scandal at Milberg Weiss, which potentially has deeper and more far-reaching implications. Nearly three months have passed since Mr. Lerach was sentenced, but this Congress has yet to conduct even a single hearing to determine the extent to which crimes such as his are occurring in the rest of the industry.We would be naive to think partisanship didn't enter into this request. Trial lawyers represent a major political force within the Democratic party, much appreciated for their generosity in campaign contributions. If Chairman Conyers declines to hold a hearing, the Republicans will make an issue of it.If in fact the crimes committed by Mr. Lerach and his colleagues are an “industry practice,” as Mr. Lerach himself confessed, then the United States Congress is sitting idle while criminal behavior in the trial lawyer industry threatens American jobs and feeds like a parasite on the prosperity of working families. The American people deserve answers.
How many of these cases are brought as a result of illegal payments to plaintiffs? What other types of conflicts exist between trial lawyers and the injured investors they purport to represent? What reforms should Congress enact to eradicate these abuses from our judicial system? We respectfully request that the House Committee on the Judiciary schedule a hearing by May 19 to begin the process of answering these questions in a complete and bipartisan way. Thank you for your attention to this important matter.
But so what? Crimes were committed that wreaked great harm on the economy, damaged people's reputations, and produced unjust results -- all part of what did indeed appear to be an industrywide practice. The call for Congressional oversight stands on its own merits, and the public deserves an answer to the questions posed by Reps. Boehner and Smith.
A hearing...now.
UPDATE (12:26 p.m.): From Law.com: "John B. Torkelsen, a former expert witness in hundreds of shareholder derivative and class action cases for Milberg Weiss, pleaded guilty on Thursday to perjury charges."
Also, from Reuters: "Indicted U.S. law firm Milberg LLP is in settlement talks with federal prosecutors to resolve a long-running criminal case involving accusations it paid illegal kickbacks to clients, sources close to the talks said on Tuesday."
Posted by Carter Wood at 11:34 AM | Click here to comment | Send to a Friend
Litigation Everywhere
We put together an "Around the Web" roundup of legal items at PointofLaw.com this morning and commend it to your attention.
And yesterday for the first time we performed this Google news search: "class action lawsuit"
Give it a try. Your jaw will drop.
Warning: Disregard if you're prone to mandibular problems and reading the Google search results might cause TMJ-related syndromes, for which smart attorneys could develop a class-action theory to sue some poor hack blogger.
Posted by Carter Wood at 9:11 AM | Click here to comment | Send to a Friend
Class Action Advertising
Trial lawyer-funded think tanks churn out "studies," major media promote the supposed dangers, politicians react to "protect the children" or at least gain attention, and then the inevitable...
NEW YORK, NY -- 05/01/08 -- Yesterday, April 30, 2008, Rights For America attorneys, Robert H. Weiss and Stephen Murakami, along with two prominent Class Action law firms from Missouri (Scharnhorst Ast & Kennard, P.C.) and Kansas (The Hodges Law Firm), filed a billion dollar consumer class action lawsuit against the leading baby bottle manufacturers (Avent America, Evenflo, Gerber, Handi-Craft (Dr. Brown's) and Playtex) for their use of Bisphenol A in polycarbonate plastic baby bottles and toddler training cups. The lawsuit was filed in the United States District Court for the Western District of Missouri pursuant to Missouri Consumer Protection Laws on behalf of the infants and children of Missouri and the United States who were unknowingly exposed to BPA through their use of plastic baby bottles and training cups.You can shuffle the order, of course. Often the trial lawyers are there at every stage.
In the meantime, anxiety spreads -- "Later on down the road what if something happened to him and I didn't take the precautions to give him a different bottle" -- and even panic.
Oh, and take a look at all the advertisements on the webpage with the lawyers' news release: Lawsuit settlement cash, safe baby bottles, acne medication lawsuit, etc.
It's an industry, the lawyer-media-think-tank-panic complex.
UPDATE: (9 a.m.): The class-action lawsuit was filed as an alleged violation of Missouri consumer protection laws. Guess the lawyers had to move fast, as the Legislature is being asked to reform the laws to discourage frivolous lawsuits.
Posted by Carter Wood at 7:10 AM | Click here to comment | Send to a Friend
When a $54 Million Lawsuit Goes Poof.....
The news coverage goes poof, too. Our post on the dismissal of Raelyn Campbell's $54 million lawsuit against Best Buy for a lost laptop garnered minimum notice by the news media.
The estimable Marc Fisher wrote an entry at his Washington Post blog, "Raw Fisher," commenting, "[Just] because the plaintiff was smart enough to glom onto the enormous worldwide publicity that the District's favorite administrative law judge, Roy Pearson, won in his case last year against his neighborhood dry cleaner does not mean--thank goodness--that her lawsuit was going to be taken seriously by the court."
Covering a hometown company, the Minneapolis Star-Tribune also took note in a news brief, as did the Minneapolis-St. Paul Business Journal.
And that's it, so far and too bad. One of the factors that should discourage the filing of frivolous lawsuits is negative publicity, even ridicule. Campbell had a brief moment in the spotlight based on her snort-inducing $54 million demand -- look at all the news and blog references -- but when the suit was dismissed, she mostly escaped media attention and the useful opprobrium it might have generated.
In the future, some publicity-hungry, offended consumer might look at Campbell's experience and say to himself, "Well, I'll lose, but at least I'll be on TV. It's worth it to me."
P.S. In other Best Buy chicanery, that is, chicanery against Best Buy, we have this Montgomery County man's crime spree. Buying computers, taking them home, removing their inner workings, and then returning them to the store. And he used his own credit card to make the purchases.
Posted by Carter Wood at 6:57 AM | Click here to comment | Send to a Friend
April 30, 2008
$54 Million Lawsuit Against Best Buy? Poof, Gone
Raelyn Campbell had her 15 minutes of fame but lost out on the $54 million she claimed she deserved. A Washington, D.C., Superior Court judge has dismissed her lawsuit against Best Buy (a fact we have not seen reported elsewhere).
Campbell is the D.C., woman who sued the electronics retailer after she took her laptop in for repairs to the Tenleytown store (that's a neighborhood in northwest D.C.) and the computer went missing. According to her account, Best Buy wasn't up front with her about losing the device and then tried to buy her off with coupons and settlement offers. That and her supposed concerns about identification theft led her to file a $54 million suit in D.C. Superior Court last November.
The very ridiculousness of the amount -- which mimicked the $54 million suit by D.C. Judge Roy Pearson against his drycleaners for misplaced suit pants -- undermined any legitimacy of her grievances. But the $54 million certainly gained Campbell publicity. She started a blog -- Best Buy vs. Consumer Protection Blog -- recounting her tribulations as a modern consumer. There was the NBC Today Show appearance, an interview on MSNBC, and articles in major newspapers like the Minneapolis Star-Tribune, trade publications like ComputerWorld, and activist blogs like The Consumerist.
In February, we called the suit outrageous, arguing, "The more time the court spends on her litigation after Best Buy made a serious settlement offer, the more taxpayer money the judicial system spends and the more economic resources are wasted on unproductive uses."
Campbell has been quiet lately -- her last blog post was February 15th -- a sensible silence given the fact Judge Natalia M. Combs Greene dismissed her lawsuit on February 28th. (The Superior Court's civil division has an online search function, which led us to the docket after about 10 minutes of work. The suit is 2007 CA 007641, Campbell v. Best Buy.Com, LLC.)
Best Buy has been seeking sanctions against Campbell for her lawsuit, several request rejected by the judge. However, the February 28th docket entry notes: "Deft. Atty. awarded 2 hours attorney fees as sanctions." Campbell's website provides her point of view about defense's motions challenging the service of summons and other mishandled procedural steps. But in the end, the judge dismissed the suit.
What a waste, an expensive waste. Take a look at that docket, all the orders, hearings, appearances, summons, motions -- months of work and tens of thousands of dollars (taxpayer dollars included) expended because of what, self-promotion? A legitimate complaint taken to absurd ends? Perhaps it started with a company that might have done better by a customer, but the ultimate source of all this waste was yet another American acolyte of "jackpot justice."
Addendum: The case was dismissed two months ago. Funny how the news hadn't been reported yet. And we did attempt to contact lawyers for both sides and Best Buy's corporate headquarters this morning, but have not heard back as of yet.
Addenda: This blogger has bought one laptop from Best Buy, the Tenleytown store, and has had several service interactions with the company. No complaints, at all.
UPDATE (1:53 p.m.) A Best Buy spokeswoman, Dawn Bryant, responds (before this post went live) via e-mail that the company cannot comment at this time, but there was no settlement in the suit.
Posted by Carter Wood at 1:38 PM | 4 comments; click here to read them or submit your own! | Send to a Friend
April 29, 2008
The Costs of Junk Science, Hyped Risk, Litigation
How often is this kind of thing happening? From WIVB TV News, Buffalo, a story about the North Park Branch Library closing:
During a recent construction assessment to repair plaster walls, lead paint readings came back elevated. The highest elevated levels reported are confined to window areas of the libaray that are enclosed in plastic for energy savings.And from Spanish Fort, Alabama:As a precaution and to ensure the safety of staff and patrons, in consultation with the Library's Board of Trustees, B&ECPL Director Bridget Quinn-Carey has decided to temporarily close the library. "While we do not believe that our staff or patrons are at risk for lead exposure, we have decided to err on the side of caution and temporarily close the facility until further assessments and remediation work can be done," Quinn-Carey said.
SPANISH FORT, Ala. -- For the first time since Christmas break, all classes at Spanish Fort Elementary are back on campus Monday morning. Officials moved classes to other locations after lead paint was found on campus. Some classes returned to campus last month.When did lead paint become plutonium? The risks to children of occasionally entering a room with lead paint or even attending classes in a room that might have some paint, maybe, is so neglible as to be non-existent. For goodness sakes, in Buffalo the paint is on windowsills sealed away from the public. And yet we have closures, disruptions, exorbitant clean up costs.
Common sense has been run off the rails by the trial lawyers -- aided by their political and activist allies -- who win billions of dollars in legal suits for the mere possibility of a health risk. The attorney general in Rhode Island has been suing paint manufacturers, demanding they pay to mitigate the risks from lead paint to the tune of $2.4 billion. To stop the public from laughing at the absurdity of it all, he, too, has to hype the risks.
From Legal Newsline, "Lead poisoning at new low in Rhode Island":
PROVIDENCE, R.I. (Legal Newsline) - The State of Rhode Island's landmark lead paint lawsuit might be a lot of fuss over a receding problem, recently released figures show.Incidents of lead poisoning among Rhode Island children have "declined dramatically" over the past 10 years, according to a report by the state Department of Health. This news comes with only a few weeks left before the state Supreme Court hears oral arguments in the State's suit against three former manufacturers of lead paint.
Posted by Carter Wood at 12:45 PM | Click here to comment | Send to a Friend
April 28, 2008
Just a Regulator, Just a Scientific Report
(Adapted from a post at PointofLaw.com. See also this entry.)
Nearly every time a conservative think tank expert is quoted on a subject -- think global warming -- journalists are quick to identify the funding of the group: "Which has oil company support..." That kind of thing. But what about when the group has other leanings?
The Washington Post front-paged a story on Sunday sympathetic to activists' claims the FDA relied too closely on studies funded by the chemical industry to determine that an ingredient in some consumer plastics, bisphenol A, or BPA, is more dangerous to the health than regulators would have you believe. It was more of the "politicization of science" thesis that Post editors and reporters consider a valid, IMPORTANT story. (See this post on another Page One story about Vioxx.)
Left out of the Post's reporting was the dominant role that the trial lawyers have played in publicizing the claims about BPA's supposed health threats and the related lawsuits being filed in another round of "jackpot justice." (Such as this one, filed last week in California.)
And the identification of one of the chief sources in the story was woefully inadequate.
"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product."A federal regulator, so he must have a valid insight, right? Except as his bio notes, Michaels was a Department of Energy official, responsible for the health and safety of those who come in contact with the nation's nuclear weapons labs. Not quite as relevant, we think.
We learn further down in the story that Michaels "runs the Project on Scientific Knowledge and Public Policy at George Washington University and wrote the book 'Doubt is Their Product,' which details how various industries have used science to stave off regulation."
The Project on Scientific Knowledge and Public Policy's homepage is www.defendingscience.org. There's a recent paper on the studies of BPA by Sarah Vogel, entitled, "Battles Over Bisphenol A," which makes the basic argument accepted as the thesis in the Post story.
For decades, industry trade associations and their lawyers staved off the regulation of unsafe products like tobacco, lead and asbestos by arguing that scientific uncertainty precluded government action. [41] Similarly, the plastics and chemical industries seek to deny, delay, and dismiss the low dose research on bisphenol A.
The story does not make clear who is financing the Project on Scientific Knowledge and Public Policy, aka SKAPP. To its credit, the group explains:
Funding: Major support for SKAPP is provided by the Open Society Institute and the Common Benefit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Implant Products Liability litigation. The opinions expressed on the DefendingScience website are ours alone. We do not provide our funders advance notice or the opportunity to review or approve the content of this site or any documents produced by the project.So that's who's paying for this anti-industry "science": George Soros' Open Society Institute (www.soros.org) and some of the cash thrown off in class-action lawsuits against silicone breast implants -- i.e., the largess of the trial bar.
A major point raised in the Post's story is that the chemical industry finances studies, a notable if not objectionable conflict of interest. And when a left-wing billionaire and trial lawyers finance counterstudies, that doesn't warrant a mention?
Posted by Carter Wood at 9:31 AM | Click here to comment | Send to a Friend
Rex Morgan, M.D., Diagnoses the Zeitgeist
That's a panel from Sunday's comic strip, "Rex Morgan, M.D." That nice Dr. Reed has just been served with a lawsuit, we presume a medical malpractice suit for letting that poor little Wagner boy die in the hospital from methicillin-resistant Staphylococcus aureus (MRSA). And not only does the lawyer advertise on TV, June Morgan, R.N., tells us he's known as Max the Ax, Legal Warrior.
Does Dr. Morgan practice in Memphis? From an editorial in The Commercial Appeal, "Only a baby step:"
Supporters of tort reform in Tennessee are touting a measure approved by the General Assembly as a step toward eventual passage of comprehensive legislation that will revolutionize medical malpractice litigation.In the meantime, Max the Ax will continue warring against family physicians.That's an optimistic assessment that might be borne out in the future, but it's far from a certainty.
Posted by Carter Wood at 8:04 AM | Click here to comment | Send to a Friend
April 26, 2008
Ledbetter Act: It Wasn't Meant to Pass
The Wall Street Journal reaches the conclusion last week's Senate consideration of the Ledbetter Fair Pay Act, which would have lifted all statutes of limitation on employment discrimination suits, was intended more as a political statement and loyalty pledge than an earnest legislative proposal. From "The Foul Play Act":
Ms. Ledbetter took the novel view that decisions made decades ago by her now-deceased former boss affected her pay all the way up to her retirement, so each paycheck was a new discriminatory act. On this theory, there would be no statute of limitations at all. Cases could be brought long after relevant evidence and witnesses had passed from the scene. In practice, every such suit would become a new trial lawyer pay day, as employers settled cases they would find impossible to defend.And in The Washington Post, a letter to the editor from David A. Drachsler, vice chairman of the Virginia Council on Human Rights.
The Lilly Ledbetter Fair Pay Act, which you support, would permit an employee to file a pay discrimination lawsuit years after the pay decision was made, even if the employee was aware of that decision. Indeed, in Lilly Ledbetter's case, her lower pay, compared with that of men doing similar work, was caused by low performance evaluations of which she was aware years before she filed her charge with the Equal Employment Opportunity Commission.A simple solution would be to amend Title VII to make the statute of limitations run from the date the employee discovered, or with due diligence should have discovered, the discrimination that caused the pay disparity.
Posted by Carter Wood at 4:59 PM | Click here to comment | Send to a Friend
April 24, 2008
Still, STILL, Waiting for Those Hearings
Returning to a favorite theme around here, Sherman "Tiger" Joyce of the American Tort Reform Association takes to the pages of The Hill to ask for a little balance: If Congress is going to hold hearings into the various scandals and offenses by big business, shouldn't it also look into the predations of trial attorneys like Mel Weiss, William Lerach and Dickie Scruggs?
His column, "Congress overlooks plaintiff-lawyer abuses," also notes that the Lawsuit Abuse Reduction Act (LARA) -- passed by the House in 2004, could serve an important corrective purpose.
Without preventing plaintiffs from filing legitimate lawsuits in jurisdictions with actual connections to their alleged injuries, LARA would restore the mandatory sanctions for filing frivolous lawsuits that were eliminated in a controversial 1993 change to Federal Rule of Civil Procedure 11. These sanctions could include reimbursement of reasonable attorney’s fees and litigation costs. Many foreign countries with which America competes economically already maintain such commonsense safeguards against lawsuit abuse. And the crimes of Dickie Scruggs, Bill Lerach and Mel Weiss aren’t qualitatively different than the crimes of Dennis Kozlowski at Tyco or Jeff Skilling and the late Ken Lay at Enron.So why aren’t chairmen of the House and Senate judiciary committees and other congressional leaders calling for hearings into apparent corruption within the litigation industry?
Posted by Carter Wood at 12:34 PM | Click here to comment | Send to a Friend
April 23, 2008
Fair Pay, Fair Play and Fair Limitations
Cross-posted at PointofLaw.com.
Hans Bader of the Competitive Enterprise Institute takes a look at today's Washington Post editorial, "Fair Pay, Fair Play," calling for passage of the Ledbatter Fair Pay Act, and finds certain facts and legal context missing. Again. From the Open Market blog:
The Post seems completely unaware of the existence of another law, the Equal Pay Act, that already has a generous deadline (3 years) for bringing pay discrimination claims.Good legal issues to discuss once the Senate takes up the bill.In Ledbetter v. Goodyear (2007), the Supreme Court enforced the explicit 180-day deadline for bringing discrimination claims under Title VII, ruling that Lilly Ledbetter's pay discrimination suit under Title VII was untimely because she brought it long after 180 days had elapsed. But the court specifically noted in a footnote that the plaintiff had (for unknown reasons) dropped her claim under the Equal Pay Act -- which has a longer deadline (3 years) for suing. Liberal court reporters deliberately ignored the footnote and the very existence of the Equal Pay Act in order to cynically create the false impression that the Supreme Court's enforcing the Title VII deadline as written would leave women without any redress for sex-based pay discrimination after 180 days had passed.
As for the political context, from FoxNews.com, "McConnell Complains About Delay in Senate Vote So Candidates Can Return." From the minority leader:
Now, look, we understand people have to run for president and are not likely to be here much of the time. But to have the schedule of the Senate completely revolve around the schedule of the Democratic presidential candidates strikes me as particularly ridiculous.
Posted by Carter Wood at 2:38 PM | Click here to comment | Send to a Friend
Lobbying Lawsuit Update
As noted in yesterday's post here, the National Association of Manufacturers continues its litigation against the "affiliated organizations" portions of the Honest Leadership and Open Government Act of 2007. The NAM issued a news release yesterday that quoted NAM President John Engler:
Denial of our request for an injunction does not address our basic challenge to the Constitutionality of this pernicious law which constitutes threatens the viability of business trade associations. It will require associations like the NAM to release the names of many members who contribute more than $5,000 for lobbying activities and who actively participate in the association’s lobbying activities, violating their right to privacy, association, speech and to petition the government for redress of grievances. The penalties for failure to disclose this information are severe. As businesses become aware of the serious implications of this law, many of them will curtail their membership or restrict their involvement in trade associations. The effect will be to compromise their First Amendment right to express their opinions in the legislative process, and also undermine trade associations which play a critical role in the development of public policy by government.As the NAM continues the legal challenge, it has also decided to comply with the law in good faith; the decision has been made to file the disclosure forms with the member names. (We had originally planned to leave the names off, citing the pending litigation.) On balance, it makes sense not to complicate things at this point by inviting an enforcement action.
Because the law sets a disclosure threshold of $5,000 in lobbying expenditures, our larger member companies will comprise the list, that is, the sample is not representative of the membership.
Despite the filing, the objections remain: Section 207 Honest Leadership and Open Government Act infringes on our members' First Amendment rights of speech, association and petitioning the government.
News coverage...
Posted by Carter Wood at 10:01 AM | 1 comment; click here to read it or submit your own! | Send to a Friend
White House: Expect a Veto on Ledbetter Pay Act
The White House yesterday released its Statement of Administration Policy on H.R. 2831, the Ledbetter Fair Pay Act. Expect a veto, the Senate is told.
H.R. 2831 purports to undo the Supreme Court’s decision of May 29, 2007, in Ledbetter v. Goodyear Tire & Rubber Co. by permitting pay discrimination claims to be brought within 180 days not of a discriminatory pay decision, which is the rule under current law, but rather within 180 days of receiving any paycheck affected by such a decision, no matter how far in the past the underlying act of discrimination allegedly occurred. As a result, this legislation effectively eliminates any time requirement for filing a claim involving compensation discrimination. Allegations from 30 years ago or more could be resurrected and filed in federal courts.Moreover, the bill far exceeds the stated purpose of undoing the Court’s decision in Ledbetter by extending the expanded statute of limitations to any “other practice” that remotely affects an individual’s wages, benefits, or other compensation in the future. This could effectively waive the statute of limitations for a wide variety of claims (such as promotion and arguably even termination decisions) traditionally regarded as actionable only when they occur.
This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable
to expect the bill’s vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims.
Posted by Carter Wood at 9:36 AM | Click here to comment | Send to a Friend
Ledbetter: Scheduling as a Political Tactic
Any doubts as to the political nature of today's Senate debate and cloture vote on H.R. 2831, the Ledbetter Fair Pay Act, were put to rest when Senate Majority Leader Harry Reid had the Senate adjourn yesterday until 5 p.m. this evening.
Senator Reid filed a cloture motion on Monday. By Senate rules, this means a vote on cloture would follow an hour after the Senate convened on Wednesday -- i.e., sometime this morning. But because this is a vote meant not to legislate, but rather to demonstrate support for a philosophy of "fairness" and organized labor's political agenda, it's important that Sen. Obama and Sen. Clinton be in town to vote yes. With yesterday's primary in Pennsylvania, it will take them until this evening to arrive back in D.C. Meanwhile, Senate Republicans are angry because they were being attacked this week for delaying action on a veterans benefits vote.
The Swamp has a good rundown of the machinations, and The Corner relates the Republican grievances.
We won't pretend to be horrified at the politics of this, which seem normal enough for an election year, if a little heavy-handed. But then, inject organized labor into a Capitol Hill debate and heavy-handed is what you get.
Just as long as the legislation goes down. Contrary to what editorialists at The Washington Post ("Fair Pay, Fair Play") and the New York Times ("Pass the Fair Pay Act") claim, this bill does not correct a faulty Supreme Court ruling, this bill simply opens the floodgates to discrimination lawsuits ad infinitum nauseum. As the NAM's Key Vote letter makes clear, statutes of limitations were written into the law for a reason.
Anyway, isn't it funny that legislation that bases its entire existence on "fairness" should elicit such an unfair legislative process?
Posted by Carter Wood at 9:16 AM | Click here to comment | Send to a Friend
April 22, 2008
Let the Lawsuits Flow, Forever and Ever
Senate Majority Leader Harry Reid filed cloture Monday on H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, which supporters claim restores the ability of employees to sue for pay discrimination, supposedly abrogated by the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber Co. (U.S. Supreme Court 2007).
As the NAM summary of the case explains, what the court actually did was uphold the law that set a 180-day statute of limations for filing employment discrimination actions with the EEOC. Congress knew what it was doing when it wrote the law, the court said: "Congress clearly intended to encourage the prompt processing of all charges of discrimination.” Eliminating a statute of limitations would open up employers to potentially decades of increasingly difficult-to-defend litigation. Memories fade, people die, and yet the lawsuits carry on....and on....
Just as importantly, the 180-day requirement also compels employers and employees both to address real discrimination with a sense of urgency. Sometimes it takes an EEOC complaint to make management aware of a problem.
The legislation goes too far in other ways. The NAM sent a "Key Vote" letter (text here) to the Senate today, which notes, "[The bill] would grant standing for the first time to not just employees but those potentially 'affected by' discrimination. It would also broaden the bill’s reach to cover unintentional (disparate impact) discrimination suits and allow retirees to file claims over actions that took place decades earlier." Wow. "Affected by" discrimination -- bet that would be creatively interpreted.
Expect a vote Wednesday, which allows a full day of rallies and fulminating today, Equal Pay Day -- the day that women supposedly have to work into 2008 to equal men's 2007 pay. Organized labor is observing the day, as are the National Organization for Women and other activists who want government to set wages.
The last time Senator Kennedy orchestrated a big vote to coincide with rallies and other observances was in June, when he brought H.R. 800 to the floor. That was the Employee Free Choice Act, labor's No. 1 priority, which would replace secret ballots in union representation elections with the intimidation-inviting card-check process. No one expected the measure to gain cloture -- and it didn't, falling short by a 51-48 vote -- but the Senator maximized the PR value with his timing. Same thing this week with the Ledbetter legislation.
So consider Senate action on this terrible bill to be the raising of a flag as organized labor and a band of employment lawyers watch, marking off on their checklists who salutes -- and who will be rewarded and punished accordingly.
Posted by Carter Wood at 9:48 AM | Click here to comment | Send to a Friend
Where the NAM Now Stands on Lobbying Lawsuit
The federal D.C. appellate court and Chief Justice Roberts yesterday rejected the National Association of Manufacturer's request for an immediate stay of enforcement of the "affiliated organizations" provision of Honest Leadership and Open Government Act of 2007, i.e., NAM v. Taylor. Since Monday was the deadline for filing lobbying disclosures with the House and Senate, the NAM did so, leaving out the relevant identifications because of the continuing litigation -- our appeal of Judge Kollar-Kotelly's decision. Here is the statement we filed.
All part of the process. The NAM firmly believes that Section 207 of the lobbying disclosure law unconstitutionally restricts the rights of our member companies to petition the government for redress of grievances, to freely associate, and to exercise their free speech rights. The chilling effect is pervasive.
For documentation on the NAM's lawsuit, please visit our Legal Beagle website, here.
News stories....
AP: "Supreme Court chief denies trade group's request to delay lobbying disclosure mandate."
Business Journals: "Lobbying still booming; disclosure law upheld."
Meanwhile, an unrelated issue, "bundling" of campaign contributions by lobbyists, has also complicated the law's enactment. From The Wall Street Journal: "Reports on Lobbyists Hit Snag."
But the disclosures have fallen prey to a standoff between Senate Democrats and President Bush over appointees to fill four vacancies on the Federal Election Commission. The commission was supposed to issue a regulation to enforce the bundling provision, but with only two of the commission's six seats occupied, it can't vote on a final rule.Always a mess when you monkey around with the First Amendment.
UPDATE (10:05 a.m.) The NAM's first quarter lobbying report is now online at the House disclosure website, here.
UPDATE (11:45 a.m.) CQ Politics story.
Posted by Carter Wood at 8:56 AM | 1 comment; click here to read it or submit your own! | Send to a Friend
Over at PointofLaw.com
We're guest blogging this week at PointofLaw.com, the great legal site -- tort reform, employment law, judicial issues, etc. -- run by Walter Olson of the Manhattan Institute.
So far....
So stop on by if the issues fall in your wick.
Posted by Carter Wood at 8:32 AM | Click here to comment | Send to a Friend
April 16, 2008
States Prevent Expansion of 'Jackpot Justice'
Employers, that is, jobs creators, were successful in recently concluded Georgia and Maryland legislative sessions in beating back efforts to make it easier to sue for this, that and the other thing.
The Maryland Chamber of Commerce, an NAM affiliate, has released its recap of business-related issues in the 2008 session. In the area of tort reform, the following bad bills were defeated:
Market-share liability, that's a great one. Rather than connect liability to the specific person or company that caused harm, you'd just apportion the damages according to some calculation. Joint-and-several liability in the Twilight Zone. Next thing you know they'll try to bootstrap lead paint lawsuits based on public nuisance law.(More from the Maryland Chamber here.)False Claims: Legislation that would have provided individuals new grounds to sue state government contractors (SB 845/HB 292) and health care providers (SB 215) for an allegation of filing a false claim for benefits.
Market Share Liability: Legislation that would have imposed an unprecedented standard of liability for companies that previously sold lead paint based on their market shares (HB 1241).
Noneconomic Damages: Legislation to increase the cap on noneconomic damage awards for lawsuits alleging wrongful death resulting from medical malpractice (SB550/HB 969).
Meanwhile, in its session-ending review, the Georgia Chamber of Commerce reported success in blocking bad bills, etc., the reversal of past progress:
Dismantling of Tort Reform. Legislation to weaken provisions from 2005's Civil Justice Reform Act (SB 3) - by removing the section requiring plaintiffs' attorneys to prove that emergency room doctors acted with gross negligence - was stalled, although the Georgia Trial Lawyers' Association has already announced that this will be their top priority during the 2009 legislative session.Count on the Georgia Trial Lawyers Association to keep fighting to drive those doctors out of the state.
Posted by Carter Wood at 8:41 AM | Click here to comment | Send to a Friend
April 15, 2008
For Jobs Creators, Some Good News on Taxes
The grasping reach of the Illinois state revenue collectors was slapped down by the U.S. Supreme Court today, a welcome decision on this, the taxiest of tax days.
WASHINGTON (AP) — Corporate taxpayers won a round in the Supreme Court on Tuesday in a case challenging the long arm of state tax collectors.The court's ruling is available here. The NAM's description of the case is here, and our amicus brief is on-line here.In a unanimous decision, the justices said Illinois courts must take another look at whether the state can tax Ohio-based Mead Corp., a paper and forest products company, in the $1.5 billion sale of data retrieval service Lexis/Nexis in 1994.
Writing for the court, Justice Samuel Alito said the state courts misinterpreted two previous Supreme Court rulings in deciding that Illinois was entitled to tax a fraction of the gain of Mead, now MeadWestvaco Corp.
The National Association of Manufacturers, Gannett Co. Inc. and the Walt Disney Co. all filed briefs supporting MeadWestvaco in the case.
Mead says its $1 billion gain from the sale can be taxed by Ohio, where the company is headquartered, but cannot be taxed by Illinois.
Posted by Carter Wood at 5:14 PM | Click here to comment | Send to a Friend
April 14, 2008
Defending the First Amendment
U.S. District Judge Colleen Kollar-Kotelly has ruled against the NAM's lawsuit challenging provisions of the 2007 statute, the Honest Leadership and Open Government Act, as a violation of the constitutional rights of speech, association and petitioning the government for redress of grievances. It's not a lightning bolt surprise, by any means, and the process continues. The NAM will seek a stay to prevent the law from going into effect. As NAM President John Engler said in a news release:
We remain convinced that many of the law’s burdensome and intrusive disclosure requirements will have a serious chilling effect on the Constitutional rights of our members. Public debate is not served by undermining the rights of business – employers and employees alike – or when laws limit speech, association and the public’s ability to petition the government.The NAM's briefs in NAM v. Taylor are available here, and the judge's ruling is here as a .pdf file. The CQ Politics story is told straight.We are committed to protecting the rights of everyone in this country, including those who work for manufacturers, to freely associate and to exercise their First Amendment rights without the government interfering with or chilling them.
Posted by Carter Wood at 4:56 PM | Click here to comment | Send to a Friend
Another Trial Lawyer on Trial: Geoffrey Fieger
After running up various defense theories up the courthouse flagpole, Michigan trial lawyer Geoffrey Fieger has decided his best protection against charges of campaign finance fraud is to plead ignorance. Really...
both government and defense lawyers have said in court filings and in statements at pretrial hearings that the case now hinges on "state of mind" -- whether Fieger and Johnson knowingly broke the law.Fieger and his law partner, Ven Johnson, were charged last year with conspiracy and campaign fraud for reimbursing employees who contributed to the presidential campaign of John Edwards. (More from the Detroit Free Press here and also here.)"He would never have done that if he knew it was against the law," Fieger lawyer David Nevin told Borman at a hearing last week. "He simply would have too much to lose and too little to gain."
Fieger, whose career is largely based on knowledge of the law and who allegedly received a memo from one of his own attorneys warning him about the legality of his political fundraising methods, could face an uphill battle.
"It's hard for lawyers to put on an ignorance defense," said Peter Henning, a law professor at Wayne State University and a former federal prosecutor. "Lawyers are expected to know the law and to know that when you're in a gray area you have to clarify."
Last week, the judge ruled that Fieger could not argue that he's a victim of a government conspiracy targeting Democratic trial lawyers, as he protested in emetic TV commercials.
Posted by Carter Wood at 8:13 AM | Click here to comment | Send to a Friend
April 9, 2008
Tort Reform, The Washington Post Says OK
We take it as a sign of progress that The Washington Post editorializes today in favor of tort reform, "A Fall and a Lesson." With major criminal convictions of high-profile trial lawyers in recent months -- Lerach, Scruggs, Weiss -- the paper's failure to comment was starting to look like an abdication, untenable for a editorial page that takes its responsibilities seriously. (And the Post publishes a very good editorial page, certainly not as mindlessly predictable as the NYT.)
It's a typical, begrudging editorial, to be sure -- on the one hand, on the other hand -- and it includes a straw-man argument in responding to The Wall Street Journal's call for "loser pays." While "loser pays" is the legal standard in most of the world, and the U.S. business would generally find it preferable, it's really not a priority for the tort reform movement right now. Political reality precludes it.
But let us not begrudge the begrudging. The conclusion is sound, and it's a sign the topic of tort reform must remain a major issue for policymakers.
The truth is that there have always been and will always be voracious and ethically challenged lawyers, just as there have always been and will always be voracious and ethically challenged people in business. Both sets of scoundrels deserve to be punished. What is needed now is a sober discussion about how best to achieve a fairer, more balanced legal system through comprehensive tort reform. Such a system would not be lopsided but would shield businesses from legal blackmail, just as it would protect the rights of legitimate plaintiffs to win just compensation from negligent businesses that caused them real harm. Smart and ethical businesspeople and lawyers -- and, yes, there are many who fit the bill -- would be wise to start working together to craft such a fix.Agreed.
UPDATE (1:50 p.m.): A good video from the Wall Street Journal with Paul Gigot, Kim Strassel, Daniel Henninger and Jason Riley, discussing lawsuit abuse by the Scruggs and Milberg Weiss.
Posted by Carter Wood at 8:47 AM | Click here to comment | Send to a Friend
April 7, 2008
The Worst Places to Get Sued
Forbes depicts the worst places -- i.e., jurisdictions, courthouses -- to be a defendent in civil ligitation in this article, The Worst Places to Get Sued in America."
There is a high degree of stability in what most people think are the most problematic places to get sued," said Walter Olson, a senior fellow at the Manhattan Institute and author of The Rule of Lawyers. "If you put pins on a map for the top 50 most outrageous verdicts, bizarre run-away juries and so forth, you would find this belt around the Gulf Coast that runs from southern Texas across Mississippi, Louisiana, Alabama and Florida. These are also some of the places people consider the worst places to get sued."The magazine drew on the good work of the American Tort Reform Association to compile the summary.
Posted by Carter Wood at 11:40 AM | Click here to comment | Send to a Friend
FISA Update: Do Not Let it Walk with the Zombie
Ted Frank of the American Enterprise Institute has just released a new "Liability Outlook" paper, "Zombie Litigation -- Revivers and Retroactive Lawsuits Are Bad Ideas." The article examines the impact of revising existing law, including through vitiation of existing immunity, to encourage litigation. If legislatures can go back and reimpose potential liability with impunity, then the granting of legal protections will fail to achieve its end in the first place, Frank contends.
It's a timely topic, given the efforts in Michigan to eliminate protections for pharmaceutical companies enacted into law in 1996.
Frank also has a passage directly on the need to ensure telecom companies have immunity for assisting the government in post-9/11 surveillance of foreign communications.
Telecommunications companies relied upon the assurances of the president and the attorney general that the intelligence-gathering operation was legal. Perhaps those assurances will be determined in the future to be legally incorrect, but a government employee acting under such assurances would have qualified immunity from suit because of the lack of violation of a clearly established constitutional right.[49] Private industry, without the ability to second-guess the attorney general, should be equally protected. According to former attorneys general Benjamin Civiletti and Dick Thornburgh and former FBI and CIA director William Webster:Now compare that argumentation to that of immunity's most vocal opponents, including the Daily Kos blogger, mcjoan, who in this post calls Senate Intelligence Chairman Jay Rockefeller "Jello Jay" and accuses him of "carrying the water" for the Administration.For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government's call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government's actions are legal. Given the threats we face in today's world, this would be a perilous policy.[50]The legislation is thus distinguishable from other retroactive legislation because it is protecting rather than upsetting settled expectations and reliance interests. If anything, it is the plaintiffs seeking billions of dollars who are violating norms against retroactive liability. This is especially true in this particular instance--because the telecommunications companies were acting in good faith, they would almost certainly win the lawsuits after extensive and expensive litigation under existing law. The retroactive immunity would therefore not shift the underlying rights of any parties but merely shut down a litigation discovery process that would give enemies of America a "road map as to how to avoid the surveillance."[51]
P.S. We've put the relevant footnotes from Frank's article in the extended entry below.
49. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
50. Benjamin Civiletti, Dick Thornburgh and William Webster, Surveillance Sanity, OpinionJournal.com, Oct. 31, 2007; accord John Ashcroft, Uncle Sam on the Line, N.Y. TIMES, Nov. 5, 2007.
51. Dan Eggen and Ellen Nakashima, Bush Moves to Shield Telecommunications Firms, WASHINGTON POST A7, Mar. 2, 2008 (quoting President Bush).
Posted by Carter Wood at 6:58 AM | 2 comments; click here to read them or submit your own! | Send to a Friend
April 4, 2008
Trained Professionals are Trained Professionals?
Walter Olson at PointofLaw.com highlights an important California Supreme Court ruling in this post, "California Supreme Court Adopts Sophisticated User Defense."
A significant victory for product liability defendants, from a unanimous high court in Sacramento: "A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm or danger, if the sophisticated user knew or should have known of that risk, harm or danger." CalBizLit has more details on the decision in Johnson v. American Standard. The defense has been accepted in some other courts, but was on first impression at the California court. Per the Civil Justice Association of California (not yet online), "The state's personal injury lawyers association fought against the Court of Appeal ruling in an amicus brief filed by its former president Sharon J. Arkin." Lawyers Weekly has an account of the appellate decision, partly behind a pay wall. More: The Recorder, Lex Communis.
Posted by Carter Wood at 1:53 PM | Click here to comment | Send to a Friend
The Best Wall Street Journal Op-Ed Page Ever!
As we glance over to the paper every half-hour or so, another outstanding column jumps out. Now, ABC's John Stossel on the abuses of the trial bar, a column entitled, "Small Victories for Tort Reform."
Our legal system invites lawyers to act like bullies. For "20/20" tonight, I report on a class-action lawyer who's suing his neighbor for smoking in her own apartment. Toxins are "being breathed every day by our 4-year-old," says Jonathan Selbin of Lieff, Cabraser, Heimann & Bernstein. His frightened neighbor had the apartment manager seal off air ducts between the two apartments, but Mr. Selbin sued anyway, claiming smoke was in the hallway. Mr. Selbin's neighbor was unusually feisty in going to the media to fight back, at least for a while. But last night, she decided to settle. After all, Mr. Selbin had written her that he had a legal advantage, because he and his wife "are both lawyers, and both litigators, for whom the usual barriers to litigation are minimal." Right. Mr. Selbin wrote ABC, "I have recovered more than $2 billion in cash for consumers defrauded by companies. I am proud of what I do." He wouldn't tell us how much of the $2 billion he kept.The homepage for the "20/20" program is here.What do we get from this kind of "private law enforcement"? Very little. James Copland of the Manhattan Institute points out, "The small, diversified investor is as likely to be a buyer as a seller and thus a payer in a class action settlement. The 'little guy' pays money to himself." Actually, it's worse than that: Little guys come out behind because the lawyers pocket so much.
Posted by Carter Wood at 9:02 AM | Click here to comment | Send to a Friend
April 3, 2008
On, Wisconsin...Supreme Court
The Wall Street Journal's editorial today follows up on Tuesday's election in Wisconsin, in which a rule-of-law judicial candidate defeated Supreme Court Justice Louis Butler, quite liberal in his legal interpretationing. From "The Wisconsin 'Tragedy'":
Governor Jim Doyle called the result of Wisconsin's state Supreme Court election "a tragedy." It's surprising to hear how little he thinks of his constituents, who had the sense to depose one of the court's ultra-liberal justices and in the process helped toughen the standards for judicial accountability.Ah, but you know, now that we read Doyle's statement, that's not quite what he said.
It is a tragedy that such a fine judge and good human being was trashed during the campaign. Justice Butler has served with distinction and honor on the Wisconsin Supreme Court, and I thank him for his fairness, his sense of justice and his lifelong commitment to public service.You see, it was the "trashing" of Butler that was a tragedy, not the results per se.
Except the "trashing" was by and large a fair accounting of Justice Butler's record as a public defender, a failed court candidate, and only then a Doyle appointee to the state Supreme Court. Maybe the real "tragedy" was Butler's record.
In any case, the Journal's conclusion is certainly on the mark:
The Wisconsin result should reverberate through the 39 states that elect some or all of their appellate-level judges. Mr. Butler is the first incumbent justice to be ousted in more than four decades there. A seat on the bench is not a sinecure, and justices who abuse or contort the law must sometimes answer for their actions.
Posted by Carter Wood at 9:58 AM | Click here to comment | Send to a Friend
April 2, 2008
Giving the People a Voice in Judicial Elections
Apt commentary on the Wisconsin Supreme Court election from Dan Pero of the American Justice Partnership, writing at his blog, American Courthouse:
[Before] Butler had even conceded the race, calls began for the creation of a public financing system for state Supreme Court campaigns. Some have even proposed abolishing judicial elections in Wisconsin and imposing what’s known as “merit selection” – a scheme that transfers the power to pick judges from the people to a closed-door committee of lawyers, usually dominated by the trial bar.Yes. When you see somebody damning politics in the judicial selection process, they're really damning the people.These incumbent protection plans – usually masquerading as judicial “reform” – are based on the notion that we need to get “politics” out of courthouse races. But judicial elections are the only remedy Wisconsin voters have to remove judges who are out of step with their views – as Justice Butler clearly was.
Remember that Butler lost his own bid to unseat a sitting justice by a landslide and rose to the bench only after being appointed by a Democrat governor. Once on the court, he proved to be a judicial activist, imposing his own ideological views rather than interpreting the law – confirming the suspicions of Wisconsin voters who had earlier denied him a seat.
Activist judges like Butler are popular with liberal special interests, but, as last night’s results show, they rarely win the support of the people. Wisconsin voters won a key victory for democracy yesterday – but they need to be on guard for schemes to keep the people at arms length from the judicial selection process.
UPDATE (2 p.m.): The Wall Street Journal's John Fund, writing in the e-mail Political Diary, notes that Wisconsin's court is the eighth most cited state supreme court in the country. He concludes: "What voters in even liberal Wisconsin -- which hasn't voted for a Republican at the presidential level since 1984 -- showed is that they will plump for judicial restraint when presented with a clear choice. Given that 38 states elect appellate-level judges, the lesson from Wisconsin's election this week could have national implications."
Posted by Carter Wood at 1:38 PM | 2 comments; click here to read them or submit your own! | Send to a Friend
Rule-of-Law Judge Wins Spot on Wisconsin Court
Very good news from Wisconsin, where Mike Gableman has won a seat on the state Supreme Court, defeating sitting Justice Louis Butler. From the Wisconsin Radio Network:
Gableman says he is gratified and humbled by the support. He's pledging to give every litigant appearing before him a "fair shake" and to fairly apply the law.Lots of swooning among among the political and media class about the negative campaign, but in the end, seems like a majority of voters -- and it was a very tight election, 51-49 percent -- preferred the former prosecutor who campaigned for judicial restraint (Gableman), versus a sitting, appointed judge who had a record of expanding the grounds for civil lawsuits (Butler).Gableman believes his message and background resonated with voters in the campaign and appreciated his role as a judicial conservative, both as a judge and former prosecutor.
Congratulations to Wisconsin Manufacturers and Commerce, which expressed its members' views on the candidates through advertising and advocacy, and whose commitment of dollars provided enough information to the voters so they could make an informed decision.
More on the race from The Capital Times, a left-leaning Madison newspaper/website, and the Milwaukee Journal-Sentinel. (11:23 a.m.) Wisconsin State Journal.
Posted by Carter Wood at 8:36 AM | 1 comment; click here to read it or submit your own! | Send to a Friend
April 1, 2008
First: Do Now Harm -- The S.F. Health Ordinance
From BizJournals:
San Francisco restaurateurs' legal battle with the city's novel health plan is gaining supporters.At least nine groups have submitted briefs to the U.S. Court of Appeals urging judges to halt mandatory business payments to a program designed to provide coverage to as many as 82,000 uninsured adult city residents. The plan, called Healthy San Francisco, is also funded by city money and payments from people who are enro