On Break
March 23, 2009
American Courthouse will be taking a Spring Break this week. Check back next week when normal programming will resume!
Testimony before Missouri Senate Committee
March 23, 2009
As I reported in an earlier post, Missouri state Senator, Jim Lembke, has introduced legislation that would make the Show Me state’s judicial selection process more open, more accountable and less influenced by legal special interests.
Earlier this month, I participated in a hearing on the legislation held by the Missouri Senate’s Committee on Governmental Accountability and Fiscal Oversight. Below is a copy of my testimony.
TESTIMONY BEFORE THE MISSOURI SENATE GOVERNMENT ACCOUNTABILITY AND OVERSIGHT COMMITTEE
Chairman Purgason, Vice Chairman Lembke, members of the Committee: Thank you for inviting me to participate in a critical debate that is taking place, not just in Missouri, but in states across America: How should we choose the public servants who control one-third of our state governments?
I applaud Senator Lembke for his leadership in introducing legislation that would make the high court selection process in Missouri more open, more accountable and less susceptible to influence by special interests. Read more
Repealing Michigan’s Drug Shield Law: “A Step In The Wrong Direction”
March 19, 2009
The Detroit News published an important editorial yesterday urging Michigan lawmakers not to repeal the state’s drug shield law – which protects pharmaceutical companies from abusive litigation and which the trial bar has tried for years to reverse. A state House committee is scheduled to take up the bill today. Highlights:
Following the law’s adoption “investments in bioscience have grown in Michigan more quickly than in other parts of the country. According to a 2008 report…Michigan during the prior six years produced academic research valued at $910 million in biosciences. During that period, 2,225 patents were awarded to researchers in Michigan, primarily in pharmaceuticals. Additional venture capital investments totaling $269 million, again primarily in pharmaceuticals, were directed toward this state.”
Repealing the law “would tell all prospective investors that Michigan is a very dangerous place in which to do business….In a state with the nation’s highest unemployment rater and an economic base much in need of diversification, this legislation is a step in the wrong direction.”
As the Manhattan Institute reported in an update to its Trial Lawyers, Inc. series, life sciences companies have invested $355 million in R&D in Michigan, supporting 12,000 jobs paying an average of $60,000. But, the Detroit News points out, “trial lawyers have long chafed at the limitations imposed” by the law – a polite way of saying the state trial bar wants to turn drugmakers into a plaintiffs’ lawyer ATM machine. They don’t just want to open drugmakers up to future lawsuits, they want to make the repeal retroactive so they can sue going back to 1996.
Here’s one question legislators considering this bill might ask: How many jobs has the trial bar created in Michigan over the last 13 years? Or here’s a better one: How many jobs have trial lawyers destroyed?
Does A Bull Have Horns?
March 18, 2009
Is the American Bar Association biased against conservative judicial nominees? Yes! – according to a new study by three political scientists who “specialize in studying the intersection the courts and politics.” Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University and Emory University Ph.D. candidate Susan Smelcer examined every nominee to the federal courts of appeal between 1985 and 2008. This analysis of 23 years of judicial nominees revealed:
- Nominees appointed by Democratic presidents are more likely to receive higher ABA ratings than nominees of Republican presidents;
- The more conservative the nominee, the less likely he/she will receive a high ABA rating.
The Bush Administration stopped submitting names of judicial candidates to the ABA prior to their nominations because of this ABA bias, but the Obama Administration will likely revive this practice. Read more about the study in the National Law Journal.
$600 Billion-$900 Billion Per Year…$8,000-$12,000 Per Year For Family Of Four
March 18, 2009
That’s how must our litigation-happy culture costs American families and America’s economy every year, according to Ted Frank, Director of the American Enterprise Institute Legal Center for the Public Interest. In recent testimony before the Senate Republican Conference, Frank adds more hard facts to the legal reform debate. Some highlights:
- The direct costs to the U.S. economy from excessive tort litigation are at least $128 billion per year.
- The indirect costs to the American economy include:
- Over $400 billion per year of loss from the effect of tort litigation on wages;
- Between $30 billion and $120 billion per year from deadweight loss on defensive medicine;
- Between $30 billion and $120 billion from deadweight loss from the deterrence of manufacturing innovation;
- Between $11 billion and $104 billion per year from lives lost due to lost innovation in the pharmaceutical industry.
All in all, the total “tort tax” on America’s economy comes down to between $600 billion and $900 billion per year or $8,000 - $12,000 every year on a family of four. Although Frank uses different methodology, his final tally is in the same ballpark as a 2007 report issued by the Pacific Research Institute, which estimated that “America wastes $589 billion each year from excessive tort litigation” or $7,848 for a family of four.
Responding To The Latest From The Palmetto State’s Plaintiffs’ Bar
March 17, 2009
In a guest column in today’s edition of South Carolina’s The State, Pete Strom, president of the South Carolina trial lawyers association, claims the Palmetto state has “benefited from its good reputation for an efficient, fair, cost-effective judicial system.”
But business owners and business managers disagree.
In its most recent survey of business leaders, the U.S. Chamber of Commerce ranks South Carolina near the bottom, 43rd worst in the nation. When it comes to the impartiality and fairness of a state’s judges, South Carolina came in 44th in both categories. Although Governor Mark Sanford has enacted several important legal reforms, “pro-plaintiffs’ bar legislators continue to dominate the judicial nominations process,” according to the “2008 State Litigation Guide” published by Directorship magazine.
If Mr. Strom is serious about enhancing South Carolina’s reputation as a good place to do business, he should support legislation (S.350 and H.3489) to make the state’s courts more fair and predictable by establishing reasonable limits on non-economic damages. Cam Crawford of South Carolina Civil Justice Coalition recently wrote an important guest post on this reform legislation and how it will help South Carolina. You can find it here. Somehow I doubt Mr. Strom’s endorsement will be forthcoming, since trial lawyers specialize in redistributing wealth instead of creating it.
Hobson’s Choice: Judicial Selection In Alaska
March 16, 2009
The Washington Times had a story yesterday about Alaska Governor Sarah Palin’s most recent appointment to the Alaska Supreme Court earlier this month. The Anchorage Daily News story on the same issue is here.
Here’s an excerpt from the ADN:
“Under the state Constitution, Palin had to select from among the nominees sent to her by the seven-member Alaska Judicial Council, made up of lawyers, public members appointed by governors and the Supreme Court chief justice, currently Dana Fabe.
“Last week, without explaining why, Palin took the unusual step of asking the Judicial Council to send her all information it had on the two finalists, Christen and Palmer Superior Court Judge Eric Smith.
“The council nominated them from a slate of six applicants. It takes four council votes for a candidate to be sent to the governor. None of the other candidates received any votes….”
“…Christen’s application included her membership in several charitable groups, including some from her past, but did not mention that she was on the board of Planned Parenthood in the mid-1990s. The organization, which didn’t provide abortions in Alaska until 2003, is now on the opposite side of a Palin-supported bill to require girls under 17 to get parental consent for an abortion.
“Back in the 1980s, Smith was executive director of the public interest environmental law firm, Trustees for Alaska. The group currently is on the opposite side of Palin over the listing of Cook Inlet beluga whales as endangered.”
So Palin was given a choice between someone who had served on the board of Planned Parenthood which is now on the opposite side of a law that Palin is championing – not something that would naturally appeal to a pro-life leader like Palin – and someone who had long served with a prominent environmental law organization and worked at the EPA as an attorney – also not something that would appeal to Palin given her stance on development of her state.
The ADN story also notes that “The Judicial Council’s bylaws direct them to nominate the ‘most qualified.’” – but again, only they get to interpret this subjective standard. So from the perspective of the judicial council, apparently these two were the only ones who were “most qualified,” which seems odd.
All this sure sounds like an attempt to tie the Governor’s hands.
But back to Governor Palin for a minute. Her Hobson’s choice is the real world of “merit” selection – where a favored few get to make the real pick of judges, even if a state governor formally gets the “choice.” The people may elect whom they will as Governor, but we get to pick the judges, and we’ll tie her hands by claiming that our choices are the “most qualified,” without offering any evidence as to why.
Then again, it shouldn’t matter whether Palin is pro-life or pro-choice or even whether the judges are. What matters is that the people should get to choose the judges whose decisions impact their lives and their state’s economic future.
Some Back and Forth On Democratic Judicial Elections
March 16, 2009
An article in this Sunday’s Telegraph Herald (Dubuque, IA) rehashes the typical arguments against democratic judicial elections (too expensive, too nasty, too political) but also the comments of University of Wisconsin-La Crosse Professor Joe Heim, who rightly says elections make judges more accountable.
More on the Wyeth Decision
March 16, 2009
Liberal columnist Michael Kinsley has an important article on last week’s Wyeth decision. Read the whole piece, but here are some highlights:
“The flaws of litigation as a method of making important government decisions are well rehearsed. It is ungodly expensive: The lawyers typically cost more than even the most worthy plaintiff ever gets. It is arbitrary: The same issues get litigated again and again, usually with a different result each time. Most people who suffer never sue and get nothing. While the FDA has scientists, the courts have jurors, for whom ignorance of the subject at hand is not merely the norm but a virtual requirement. And because trials only occur when a risk has gone wrong, they inevitably overemphasize the risk and undervalue the benefit. Why did Levine return to the hospital for a second time the same day? After long spasms of retching and vomiting, she was desperate for a treatment like Phenergan.”
The Impact of Wyeth: Putting Juries and Trial Lawyers In Charge Of Drug Labeling
March 12, 2009
Dr. Darshak Sanghavi – a pediatric cardiologist and a University of Massachusetts Medical School Professor – has a well-argued piece in Slate regarding the consequences of the U.S. Supreme Court’s Wyeth ruling last week. As Dr. Sanghavi writes:
“A win for Wyeth would not (as is popularly believed) have immunized big drug companies from all litigation. [Furthermore] the ruling has the potential to undermine the centralized authority of the Food and Drug Administration – which, though far from perfect, is arguably the most effective public-health agency in the nation’s history.”
The result: the Wyeth ruling will put state tort juries influenced by trial lawyers in charge of determining what drug label warnings are medically appropriate, rather than the experts at the FCC. Read more