You are here

OpenMarket: Law and Constitution

  • Bureaucrats Block Voluntary Mad Cow Testing

    May 30, 2007
    Amazingly enough, the Agriculture Department is fighting a meat packer's plan to voluntarily test all slaughtered cattle for mad cow disease. The government doesn't need to test all slaughtered cattle for mad cow disease, since the danger of mad cow disease from any given cow is extremely, astronomically low, verging on nonexistent. It would be a waste of taxpayer money and limited agency resources. Other food-borne illnesses are more of a reality and thus merit priority in screening. But a small number of Americans won't eat beef because of their mad cow fears, however irrational such fears may be. The market for beef would thus increase slightly if a meatpacker were allowed to cater to such idiosyncratic people by carrying out voluntary mad cow testing. Moreover, the image of the government...
  • Crying Wolf: Demagoguing About Discrimination

    May 30, 2007
    Yesterday, by a vote of 5-to-4, the Supreme Court actually enforced the 180-day statute of limitations contained in Title VII of the Civil Rights Act, dismissing an employee's claim that she had been subject to sex discrimination years earlier that affected her pay. For enforcing the plain language of the statute, the justices in the majority were denounced by the dissent, which speculated that they were "indifferent to the insidious way in which women can be victims of pay discrimination." Press accounts about the decision in Ledbetter v. Goodyear Tire and Rubber Co. have ...
  • Nigerians Sue Big Tobacco, Seeking Billions

    May 26, 2007
    In 1998, the major tobacco companies reached a deal with 46 state attorneys general. They agreed to pay a whopping $250 billion over 25 years, and more in perpetuity.  In exchange, the states agreed to drop their lawsuits against Big Tobacco and pass statutes that would protect Big Tobacco's market share against their competitors by imposing escrow fees on cigarettes sold by little tobacco companies.  This deal, known as the Master Settlement Agreement (MSA), is being challenged by CEI in a lawsuit in Louisiana. The MSA itself wasn't too bad for Big Tobacco in the short run, since it was structured to allow the tobacco companies to pass on their increased costs on to their customers, smokers.  (Although the tobacco companies did end up paying $14 billion to the trial lawyers under the settlement). But...
  • Federal Hate-Crimes Bill Promotes Double Jeopardy

    May 23, 2007
    Yesterday, I wrote about the fact that many supporters of the federal hate crimes bill want to allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court. Apparently, this was true of the most prominent supporter of the bill when it was first introduced, the Clinton Administration. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton's Attorney General, backed the bill as a way of providing a federal "forum" for prosecution if prosecutors fail to obtain a conviction "in the state court." As Sullum notes, the hate crimes bill exploits a loophole in constitutional protections against double jeopardy, known as the "dual sovereignty" doctrine. The Supreme Court created this...
  • Hate Crimes Bait and Switch

    May 22, 2007
    The federal hate-crimes bill is a classic example of bait and switch. Its purpose is to circumvent constitutional protections against double jeopardy. But it is being sold to the public as simply a way to protect gay and lesbian rights, in order to brand opponents of the bill as homophobes, and deflect constitutional objections to it. The bill would allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court. As one supporter put it, "the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails." The claim that the justice system has "failed" when a jury returns a not-guilty verdict is truly scary...
  • Yogi Berra and the Federal Lawsuit

    May 22, 2007
    The Supreme Court's dismissal of an antitrust lawsuit Monday in Bell Atlantic v. Twombly calls to mind Yogi Berra's advice that "if you come to a fork in the road, take it." The Supreme Court often takes Yogi Berra's advice one step further. Confronted with a choice between two inconsistent alternatives, it often chooses both, to the bewilderment of lawyers and judges alike. It did that in its 1957 decision in Conley v. Gibson. In that case, the Supreme Court first said that even at the start of a lawsuit, the plaintiff's complaint must give the defendant "fair notice" of what the suit is about, since that is required by Rule 8(a)(2) of the Federal Rules of Civil Procedure. But then it contradicted itself by saying that a defendant who wants to get a lawsuit dismissed prior to discovery has the almost impossible burden of showing that "it appears beyond doubt that...
  • Immigration Deal Criticized

    May 21, 2007
    Earlier, I called the Senate immigration deal "lackluster." Apparently, a lot of people across the political spectrum agree with me. Conservatives are unhappy because it is an amnesty for illegal immigrants, and because low-income, uneducated illegal immigrants will be able to take advantage of hundreds of billions of dollars in government and Social Security benefits as a result of the amnesty. (Illegal immigrants are not entitled to most government benefits until they become legal). Legal immigrants are...
  • Trial Lawyers at the Public Trough

    May 17, 2007
    Legal Newsline has an interesting story today on President Bush's executive order forbidding federal agencies from hiring trial lawyers on contingency. Bonus: it quotes our work on the 1998 master tobacco settlement.
    Some attorneys general most known for the use of outside attorneys being paid on a contingency fee basis are Connecticut's Richard Blumenthal and West Virginia's Darrell McGraw. In the 1998 Tobacco Master Settlement Agreement, the Competitive Enterprise Institute says trial lawyers received $14 billion nationally in attorneys' fees under a $246 billion-plus settlement. The organization also says Blumenthal steered $65 million in fees to his own allies and the associates of former Gov. John Rowland, later convicted...
  • Lackluster Immigration Deal

    May 17, 2007
    Democratic and Republican Senators and the White House have apparently reached a deal on immigration. Since the deal was reached by Senators across the political spectrum -- ranging from liberal Ted Kennedy (D-MA) to conservative John Kyl (R-AZ) -- it stands a good chance of passing the Senate. Too bad it's not a better deal. It primarily serves the interests of Latino advocacy groups, rather than the needs of business or the interests of taxpayers or consumers. That's not surprising, given that the Senate's Democratic leaders gave those special interest groups a veto over any bill they didn't like. The country badly needs more skilled immigrants to maintain the competitiveness of America's high-tech sector. Moreover, skilled immigrants pay much more in taxes to...
  • President Bans Contingency Fees

    May 16, 2007
    The President has just signed an executive order barring federal agencies from hiring trial lawyers on a contingency fee to bring lawsuits. State attorneys general have hired trial lawyers on contingency fees to bring lawsuits demanding hundreds of billions of dollars. In the process, they have gotten defendants to agree to pay billions of dollars to the trial lawyers in exchange for settling those suits. This is described in greater detail in CEI's recent essay on The Nation's Top Ten Worst State Attorneys General. The Executive Order is a good thing for several reasons. First, contingency-fee arrangements are often used by government officials to transfer huge amounts of money to trial lawyers for bringing lawsuits that require little skill...


Subscribe to OpenMarket: Law and Constitution