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January 5, 2009
Around the web, January 4
Posted by Walter Olson - "Report Details Global Reach of U.S. Securities Class Actions" [RiskMetrics summarized at AmLaw Litigation Daily]
- Grim Madoff-clawback portent: in Bayou case $20 million of the $33 million recovered from redeeming investors went to pay legal fees [Bloomberg]
- Investigative journalism about labor unions? Won't be as much if they succeed in gutting disclosure regulations [Wood, ShopFloor]
- Judge dismisses antitrust suit filed by Louisiana AG Foti post-Katrina and -Rita against casualty insurance companies [AP/Forbes]
- Top Illinois tort cases of 2008 [Chicago Daily Law Bulletin not online, summarized at Bernabe]
- New Jersey not on liberal frontier as regards wrongful death damages but bill moving through legislature would fix that [NJLRA]
A blow to off-label promotion suits?
Posted by Walter Olson The plaintiff's bar, in concert with certain bulk drug buyers (particularly state and local governments), has ginned up a giant campaign demanding damages over drug companies' promotion of off-label uses of their compounds. Now Beck & Herrmann bring news that a federal court in multi-district litigation against Amgen endorsed the view that the lawsuits at issue in that MDL were "really prohibited back-door attempts at private enforcement of [Food, Drug & Chemical Act] violations. ... The court didn't just dismiss this or that count of the plaintiffs' complaint. Rather, the forbidden attempt at private FDCA enforcement against purportedly illegal promotion was so thoroughly woven through the entire complaint, that for now anyway, the entire MDL is dismissed (albeit with leave to replead)."
Tech firms unite on patent damages
Posted by Walter Olson The Recorder: "Oracle, Apple Inc., Yahoo, Intel Corp. and several others are throwing their weight behind Microsoft Corp. as it tries to persuade the U.S. Court of Appeals for the Federal Circuit to overturn a $500 million jury verdict for infringing on a Lucent patent. ...In friend of the court briefs filed this month, the tech companies are urging the court to rein in the 'entire market value rule.' The rule allows the calculation of damages based on the whole product, even if just one feature is infringed."
January 3, 2009
Around the web, January 3
Posted by Walter Olson - More on EFCA's real kicker, compulsory arbitration [Jackson Lewis, h/t Eric B. Meyer]
- In L.A. and even Boston, billboards now part of the historic-preservation legacy [Katherine Mangu-Ward, Reason]
- Big Washington Post what-went-wrong-at-AIG series, parts one, two, three, fascinating but Arnold Kling is left feeling unsatisfied;
- "Eating VPs for breakfast": Detroit execs learn they'd better stay on union's good side, it could get them fired [Logan Robinson, WSJ]; call it even? carmaker CEOs had private jets, UAW brass has $33 million golf resort [Fox News]; government as backseat driver: more on CAFE and Detroit's plight from Holman Jenkins [WSJ]
- Malpractice reform and doctor supply in Texas [Silver v. Frank in Overlawyered comments; also KevinMD]
- Step inside the tent and have no fear, Madoff urged investors, everything in here's regulated by the federal government [Berlau/CEI]; NYTimes remembers: oh, yeah, Arthur Levitt's a big friend of ours, better not slam the SEC too hard [Cunningham, Concurring Opinions on Stephen Labaton]
- Orac weighs in on unintended consequences of rules limiting work hours of MDs-in-training [Respectful Insolence; earlier]
[N.B.: this particular roundup is based on recent stories I've noted on Twitter. If you use that social media service, do consider following me (thus getting them the moment they're posted) and also following the feed for new Point of Law posts here.]
January 2, 2009
Florida Gov. Crist appoints justice, irks conservatives
Posted by Carter Wood From the AP: ST. PETERSBURG - Gov. Charlie Crist appointed Cuban-born lawyer Jorge Labarga to the Florida Supreme Court on Friday.
Labarga, 56, a state circuit judge who Crist appointed to an appellate court position just last month, was named to fill the vacancy created by the retirement of Justice Harry Lee Anstead. It was Crist's third appointment to the state's high court since late August. Here's Labarga's CV from the 15th Judicial Circuit of Florida's website.
Anticipating the appointment, Ed Whelan of the Ethics and Public Policy Center notes the current 5-4 liberal majority, writing at Bench Memos, "There is intense pressure on Crist from the media, left-wing activists and plaintiff's bar to preserve the liberal majority on the Court." Whelan cites a knowledgeable observer of the court who describes Labarga as "journeyman trial judge" who "has shown no evidence of having a well-formed conservative judicial philosophy."
The conservatives' candidate to come out of the judicial nominating commission was Frank Jimenez. The usual editorial and political calumnies were lodged against him -- a "[Jeb] Bush acolyte" -- drawing a response in the St. Petersburg Times by Raoul G. Cantero III, a former Supreme Court Justice. The Times condemns his nomination despite Jimenez's sterling credentials: distinguished Yale Law School and Wharton Business School graduate, partner at a well-respected Miami law firm, deputy chief of staff and acting general counsel to Gov. Jeb Bush, chief of staff to then-HUD Secretary Mel Martinez, top litigation counsel at the U.S. Defense Department, and now general counsel of the Navy, one of six civilians of four-star rank who help the secretary of the Navy oversee the U.S. Navy and Marine Corps. Whelan also praised Jimenez here.
The process for nominating Jimenez came under harsh criticism.
Continue reading "Florida Gov. Crist appoints justice, irks conservatives" »
Applying Obama's judicial philosophy to the court, distaffly
Posted by Carter Wood NPR's Supreme Court correspondent Nina Totenberg is enthusiastic about President-elect Obama's intellect and attention to judicial philosophy. Very enthusiastic. In a segment on "Morning Edition" about possible court appointments by a President Obama, Totenberg says: Barack Obama probably has more knowledge and cares about the substance of this more than any president in memory, in a broad sense. He was a constitutional law professor at the University of Chicago. He devoted a chapter in his book to his idea of what he thinks the role of the court should be and how one should pick Supreme Court justices. Totenberg notes the chapter on judicial philosophy in Obama's book, which includes criticism of Justice Scalia, his voting against Roberts and Alito, and she reaches the conclusion Obama is not a believer in originalism.
So how will Obama apply his awe-inspiring insight, vast experience and grounded philosophy when nominating a Supreme Court justice? Host Steve Inskeep asks Totenberg, "We could go through a lot of names, I'm sure, but can you name just one person or maybe two that seem like obvious candidates to Democrats to be promoted to the Supreme Court or be named to a high judicial post?"
Totenberg: "Female, female, female."
Inskeep: "You're saying that there's an urge to appoint women."
Totenberg: "Well, there's only one woman on the court, down from two. More than half of the voters in this country are women. A hefty majority of them voted for Barack Obama, and I think it is inevitable that the first appointment be a woman. A Hispanic woman would be even better."
Tuesday webcast: 2008 year in review in securities law
Posted by Walter Olson I'll be among the participants next Tuesday afternoon at 2 p.m. Eastern in the first of an ongoing series of webcasts on a new "Securities Litigation and Enforcement Channel" being launched by prominent securities-law blogger Bruce Carton. It's free, but registration is required: details here. I'll be the relative amateur, with the other seats at the table held by some very highly qualified observers of the securities law scene: Lyle Roberts (The 10b-5 Daily), Kevin LaCroix (D&O Diary), Francine McKenna (re: The Auditors), and Thomas Gorman (SEC Actions), as well as Carton.
Martin Redish, "Wholesale Justice", forthcoming in May
Posted by Walter Olson Will be eagerly awaiting this new book (hat tip Burch/Mass Tort Prof) from the prominent Constitutional and federal-courts scholar. Publisher's description: In recent years, much political and legal debate has centered on the class action lawsuit. Many lawyers and judges have noted the intense pressure to settle caused by the very filing of a suit. Some contend that the procedure amounts to a form of judicial blackmail. Others counter that it is an effective means of policing corporate behavior and assuring injured victims' fair compensation.
This book represents the first scholarly effort to view the modern class action comprehensively through the lenses of American political and constitutional theory. Redish argues that the modern class action undermines foundational constitutional principles, including procedural due process and separation of powers, and has been improperly transformed from its origins as a complex procedural device into a means for altering controlling substantive law in highly undemocratic ways. Redish proposes an alternative vision of the class action lawsuit, one that is designed to enable the device to serve its valuable procedural purposes without simultaneously contravening core precepts of American constitutional democracy.
Escaping East Texas's patent Roach Motel?
Posted by Walter Olson Patent defendants would find themselves involuntarily checked into the plaintiff-friendly Eastern District of Texas, and they couldn't check out. Now (per The Recorder) the Court of Appeals for the Federal Circuit has "ruled that Eastern District Judge John Ward 'clearly abused' his discretion when he denied TS Tech Co.'s motion to transfer its patent fight with Lear Corp. to a more convenient venue in Ohio." On top of the Fifth Circuit's recent Volkswagen case, it's pretty clear that appellate judges are growing impatient with the district's notorious reputation as a forum-shopping destination.
December 31, 2008
Top ten legal ethics stories of 2008
Posted by Walter Olson John Steele at Legal Ethics Forum offers his selection.
Left-wing legal groups reeling from Madoff affair
Posted by Walter Olson The now-closing JEHT Foundation was a major backer of groups like the Center for Constitutional Rights, Common Cause, and ACLU, of Alien Tort statute litigation, and of a wide array of criminal justice reform projects, initiatives at law schools, and so forth. As noted earlier, Massachusetts law dean Lawrence Velvel of let's-hang-Bush fame was also among Madoff's victims; CCR's Peter Weiss was reported among the scheduled attendees at Velvel's recent conference on that theme.
Top ten worst and best drug/device liability decisions of 2008
Posted by Walter Olson You wouldn't want to miss Beck & Herrmann's year-end roundup, divided into sad and glad sections from the authors' (defense-minded) view.
Top ten labor and employment law stories of 2008
Posted by Walter Olson Jon Hyman of Ohio Employment Law has compiled a list.
December 30, 2008
Madoff and feeder-fund litigation
Posted by Walter Olson Kevin LaCroix of D&O Diary is compiling a running list of cases (Word format).
Hiring lawyers just in order to disqualify them
Posted by Walter Olson Sophisticated litigants sometimes approach key lawyers in a community or specialty when a suit is impending, not because they actually intend to use them as counsel, but just to disqualify them from representing the opponent. David Hricik at Legal Ethics Forum examines a Texas ethics opinion addressing the practice.
Contingency fees in business litigation
Posted by Walter Olson When the dust settled, Quinn Emanuel Urquhart Oliver & Hedges had collected $12 million in fees from the settlement of a business dispute while its client got less than that. Philadelphia plaintiff's lawyer Maxwell Kennerly has some questions from a distance about what looks to have been a dysfunctional client-attorney relationship.
December 29, 2008
Judge Colombo's asbestos ruling, cont'd
Posted by Walter Olson The Wall Street Journal editorializes in praise of a Detroit judge's crackdown on dubious medical testimony: Defendants presented evidence that Dr. [Michael] Kelly was neither a radiologist nor a pulmonologist and had failed the test that certifies doctors to read X-rays for lung disease. They also showed that the overwhelming majority of hospital radiologists who had reviewed Dr. Kelly's patients found no evidence of disease. ... According to Michigan records, Dr. Kelly has been responsible for reporting more than 7,300 cases of asbestos disease. ...
The plaintiffs firm -- Greenberg, Persky and White -- has already requested a delay in another 180 cases that were due to be heard in January and May -- and which presumably also relied on Dr. Kelly. Judge Colombo denied that request, which means the plaintiffs will either have to dismiss or find some other doctor to replicate Dr. Kelly's miraculously consistent diagnoses.
Earlier here and here.
Eric Holder confirmation hearings
Posted by Walter Olson They're shaping up as among the New Year's most contentious, reports the Boston Globe (via Damon Root, Reason). More: Civil libertarian Harvey Silverglate hasn't forgotten the "Holder Memo", with its coercive arm-twisting of defendants in white-collar cases, and hopes the nominee will have to answer some questions about it at the hearings.
USA Today on defensive medicine
Posted by Walter Olson Last month's study by the Massachusetts Medical Society continues to make waves.
P.S. More thoughts from SymTym:
December 23, 2008
Law & Disorder at Ars Technica
Posted by Marie Gryphon If you enjoy law blogs, it is well past time to check out technology webzine Ars Technica's great new blog on technology law and policy: Law & Disorder. It features elegantly written and insightful analysis on intellectual property law, privacy law, and other hot topics. Despite being only a couple of months old, Law & Disorder has already garnered a nomination for an ABA "Best Law Blawg" award (although you should, of course, vote for Overlawyered!).
To get you started, here is the Ars Washington Bureau's Julian Sanchez this morning on creative commons licensing:
Originally, the lawyers spearheading the project cooked up an elaborate smorgasbord of Fizzbinesque licenses incorporating features like time-limitations. What they realized, though, was that the legal stifling of creativity was a function of transaction costs at least as much as licensing fees--that is, the cost of navigating the bramble of overlapping rights, often held by dispersed parties, in a given set of works. High levels of customization might sound appealing to the individual creator, but in the aggregate they'd yield a self-defeating legal Babel. So the Fizzbin licenses bit the dust, and CC settled on a few simple modules that captured the core rights most people were centrally interested in.
Second, there was a surprising consensus that the deployment of the actual licenses was less important than their function as a conversation starter. That is, it wasn't so much that teachers or scientists suddenly had some legal boilerplate that could easily be slapped on their creations, but that there was a visible project they could point to and ask: "Should we be doing something like this?" Professional conferences would hold panels asking not, "Is sharing a good idea?" but "Which Creative Commons license is best suited for us?"
Reminder: Vote for Overlawyered
Posted by Walter Olson I'll be taking a posting break for a few days for Christmas and to meet a writing deadline. Just a reminder that my other website, Overlawyered, is in hot contention again this year for an ABA "Best Law Blog" award. Last year it lost by only 19 votes. Take a moment to vote, and tell your friends!
Loser-pays featured in WSJ
Posted by Walter Olson The paper's Dan Slater has an excellent write-up based on Marie Gryphon's new Manhattan Institute study on loser-pays. Among those commenting are Vanderbilt lawprof Richard Nagareda. And Marie Gryphon has a new op-ed in Investor's Business Daily on the study.
Republic Windows sit-down strike, cont'd
Posted by Walter Olson Confirming once again that the New York Times would never think of subjecting its op-ed columnists to the indignity of fact-checking, the incorrigible Bob Herbert is at it again with a column praising the recent Republic Windows sit-down strike in Chicago as having secured "severance pay and benefits that [workers] were owed by law", with no mention that the law's "unforeseeable business circumstances" provision cast much doubt on whether the WARN benefits were in fact owed by law or not -- and if they weren't, then the action was one to coerce the payout of cash that no one owed. At Prawfsblawg, Rick Esenberg of Marquette is troubled by the "secondary -- if not 'boycott'" aspect of aiming the campaign at third-party banks, rather than at the company itself that owed (or didn't owe) the WARN payment. And Carter did a nice post at ShopFloor, for which I'm grateful, summarizing my City Journal piece of last week on the action.
Getting sued -- for linking to a website?
Posted by Walter Olson CyberTelecom Blog notes that one very big, very famous law firm is still clinging to this very doubtful theory in its suit against a small real estate website: "since Voldemort is of the persuasion that merely linking to its website gives rise to a cause of action, we will avoid doing so like a hound dog avoids taking a bath." For more on Jones Day v. BlockShopper, see posts at Overlawyered here, here, and here.
December 22, 2008
Around the web, December 22
Posted by Walter Olson
- Arguments for why the proposed Employee Free Choice Act might be unconstitutional on Takings Clause and First Amendment grounds [Manhattan Institute scholar Richard Epstein, WSJ]
- Key case on NYC "pothole" law: state's high court says judges shouldn't rubber-stamp famous trial-lawyer-generated map as proof of notice of sidewalk trip hazards [Sewell Chan, NYT; background]
- Corp-governance scoldery that flourished after Enron collapse seems to have helped very little in crash, SEIU/Calpers not exactly role models these days [Weisenthal, Ribstein]
- Despite reputed collegiality of English bar, awards-ceremony tiff indicates personal injury lawyers split "along tribal lines" [Telegraph; hard feelings from asbestos-suit clashes]
- Charged by some fellow academics as stooge of ruling-class exploiters, Rick Hills declines invitation to self-criticism session [Prawfsblawg, guest appearance by Brian Leiter]
- Thoughts about the ethics of nonrefundable attorneys' fee retainers [Greenfield]
TARP "Trojan Horse" clause
Posted by Walter Olson No one knows what powers it might give the government over banks and other program beneficiaries.
December 21, 2008
Around the web, December 21
Posted by Walter Olson
- Peter Schuck's "legislative checklist" is terrific idea for reducing needless litigation -- but of course it assumes that lawmakers want to make laws clear [WSJ law blog]
- Are New Hampshire's med-mal screening panels working? [TortsProf; earlier here and here]
- "NERA Releases Year-End Securities Litigation Report", on pace to reach ten-year high [D&O Diary]
- Nothing much came of dire predictions after California extension of common carrier liability to roller coasters [TortsProf]
- Altria anti-preemption result: what does it bode for Wyeth v. Levine? [Beck & Herrmann, Hills/Prawfsblawg]
- Ongoing Federal Judicial Center study of CAFA (Class Action Fairness Act) [Consumer Law & Policy, Thomas Willging and again]
December 20, 2008
Alien Tort Claims: 9th Circuit skeptical on Papua New Guinea/Rio Tinto case
Posted by Walter Olson Courthouse News: "A divided 9th Circuit ruled that U.S. courts might not be the right venue for Papua New Guinea residents to litigate their claims that British mining company Rio Tinto incited a savage 10-year civil war. A plurality of judges remanded the case to determine whether 'prudential exhaustion analysis' applies and, if so, whether the plaintiffs must exhaust their remedies in Papua New Guinea before proceeding in U.S. courts." (via Above the Law). Bloomberg also reports, the opinions are here, and Howard Bashman has more about the court's unusually complicated five-way (!) split. Our extensive coverage of Alien Tort Statute litigation can be found here.
December 19, 2008
"Trial Lawyers Inc. -- Louisiana"
Posted by Walter Olson The newest installment of the Manhattan Institute's popular Trial Lawyers Inc. series is on the Pelican State, lately rated second-worst of the fifty for business defendants in a survey of corporate lawyers. There are profiles of leading tort lawyer Russ Herman and former attorney general Charles Foti, mild praise for the state high court's refusal to destroy insurance law in the aftermath of Katrina, and mentions of the toxic tort litigations for which the state is particularly known, such as those over asbestos and mold. Something I didn't know: "In Louisiana's pension funds, Trial Lawyers, Inc. found its most accommodating and enthusiastic plaintiffs; indeed, three Louisiana pension funds are among the five most active lead plaintiffs nationally." (& Legal NewsLine).
P.S. While on the subject of Louisiana, AP reports that a judge has dismissed former AG Foti's post-Katrina antitrust suit against hurricane insurers.
Tarullo's arc: from Crit to Fed governor
Posted by Walter Olson President-elect Obama has named one of his top economic advisers, Georgetown lawprof Daniel Tarullo, to fill a seat on the Federal Reserve Board. A law professor would ordinarily be an unusual pick for the central bank, but some guess that Tarullo's role will be to push for more stringent financial regulation, a topic closer to his academic interests. National Journal's James Barnes has described him as the Obama campaign's "go-to guy on currency, foreign investment, and trade".
Legal-academia-watchers may also remember Prof. Tarullo's name because of his role in the now-decayed Critical Legal Studies movement, which for a few years was the hottest new thing in the nation's law schools, with its penchant for high theory, "trashing" and deconstruction of prescribed norms and concepts, and contempt for liberal legalism. As this series of Harvard Crimson articles recalls, Tarullo was one of three CLS adherents whose denial of tenure at Harvard in the 1980s became a cause celebre badly dividing the institution. (The others were Clare Dalton and David Trubek.) Twenty years is a long time, of course, and we shouldn't assume that Tarullo's views haven't evolved since then. Perhaps the moral is that being denied tenure at Harvard Law is by no means the end of the world.
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