As year end 2011 arrives, a powerful and popular book is Thinking Fast and Slow, by 2002 Nobel Prize winner Daniel Kahneman, a research scientist focused on how our minds actually work. The Nobel Prize was for economic science, and would have been shared with a colleague but for an untimely death. The book is reviewed in depth here (the Guardian), here (NYT), here (Financial Times), and here (Economist).

In short, the book compiles lessons from many years of scientific experiments, and proves that intuition, judgments and more forms of "thinking"  are frequently produced without much (or any) conscious weighing of factors. That outcome occurs because the dominant part of our thinking process is a fast, automatic system that processes information in ways influenced by factors far more subtle than one would suspect (System 1 is the book's label).  Ideas take hold, for example, when they become familiar from repetition, regardless of whether they are correct or good ideas. Ideas also take hold when we are "primed" towards a thought, with "priming" occurring in incredibly subtle ways (e.g. young people will walk more slowly after reading a group of words related to being elderly). Our predominant "fast" thinking contrast with "slow" thinking involving, for example, math calculations and other complex tasks (System 2 thinking). Slow thinking taxes people both physically and mentally, and so the natural tendency is to reduce slow thinking and leave decisions to fast thinking.

Year end 2011 also brings evidence tending to prove the argument that political thought is now on sale, cheap. The sale arises through the U. S. Supreme Court's Citizens United decision -background here and here. The decision prohibits effective limits on the money poured into political speech. The proof of the power of the money - and tight ties to candidates - is arising now through primary elections in Iowa. There, about $2.8 million of advertising by a wealthy super PAC appears to have turned the tide against Mr. Gingrich, and in favor of Mr. Romney, as detailed by Nicholas Confessore and Jim Rutenberg in the New York Times and by The Iowa Republican web site. And the super PAC is run by former key aides to Mr. Romney. 

$2.8 million buys massive advertising. Repetition. Priming. Fast thinking. Political thought now on sale, cheap. 

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Reinsurance companies frequently sit "behind" insolvent primary insurers. When the primary carrier fails, some policyholders seek to sue the reinsurer directly in these '"cut through" suits. Courts usually but not always reject such "cut through" efforts. A brief, recent article by Robert DiUbaldo summarizes two recent federal district court opinions which rejected cut through claims. 

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I'm one of those people who tends to comment on service - bad or good. The service provider below is one that I use domestically, and it's been great. So, I'm passing along its international offering.

_______________________________________________________________________________

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As asbestos litigation continues its global growth,  Australia's highest court issued a December 14, 2011 opinion ruling on evidentiary and causation issues in a mesothelioma case.  The outcome has been summarized by the Curwood firm,  an Australian firm which represents insurers, among others.  The short version of the summary is immediately below - the longer version is pasted further below. The summary below should soon be on the Curwood's website under case notes. 

The issues arise in the context of litigation against former James Hardie entities which sold automotive brake linings for many years, among other products.  Some former Hardie entities are now part of  the Asbestos Injuries Compensation  Fund - the website is here, and some corporate background is here.  

Curwood's summary is set out below:

"Implications

The decision has affirmed the proposition that all exposure to asbestos may be regarded as being capable of causing mesothelioma, creating a greater challenge for defendants in successfully disputing liability on the grounds of causation in low-dose exposure matters.

As observed in the Curwoods' Case Note on the Court of Appeal decision, the Courts have found that there was sufficient evidence available by 1953 to demonstrate that there was a risk of serious injury arising from exposure to asbestos in an industrial setting (including motor mechanics handling asbestos brake pads) over prolonged periods.

 ____________________________________________________________________________

Australia: High Court adopts cumulative effect theory and rejects single fibre theory for mesothelioma caused by exposure to asbestos brake linings
Curwoods Case Note

Article by Andrew Spearritt  and David Chong

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Intersections between disciplines are increasingly important. Law is very much about economics, as is often demonstrated by the University of Chicago Law School.  Scientific research is shaped by economics. So, how to better understand the intersections and reach good decisions?  One hopes we can turn to economists for help and indeed many excellent economists offer much sage advice.  But in evaluating arguments, it is useful to bear in mind the lack of  a code of ethics for economists. The absence of an ethical code for economists is drawing more attention. Indeed, 2011 started off with a significant book arguing that economists should have a code of ethics. The Economist's Oath: On the Need for and Content of Professional Economic Ethics, by George F. DeMartino.

Published by Oxford University Press, the book’s promotional page explains the issues in terms that are useful to keep in mind as an overview:

"Economics is today among the most influential of all professions. Economists alter the course of economic affairs and deeply affect the lives of current and future generations. Yet, virtually alone among the major professions, economics lacks a body of professional ethics to guide its practitioners. Over the past century the profession consistently has refused to adopt or even explore professional economic ethics. As a consequence, economists are largely unprepared for the ethical challenges they face in their work.

The Economist's Oath challenges the economic orthodoxy. It builds the case for professional economic ethics step by step-first by rebutting economists' arguments against and then by building an escalating positive case for professional economic ethics. The book surveys what economists do and demonstrates that their work is ethically fraught. It explores the principles, questions, and debates that inform professional ethics in other fields, and identifies the lessons that economics can take from the best established bodies of professional ethics. George DeMartino demonstrates that in the absence of professional ethics, well-meaning economists have committed basic, preventable ethical errors that have caused severe harm for societies across the globe. The book investigates the reforms in economic education that would be necessary to recognize professional ethical obligations, and concludes with the Economist's Oath, drawing on the book's central insights and highlighting the virtues that are required of the "ethical economist."

The Economist's Oath seeks to initiate a serious conversation among economists about the ethical content of their work. It examines the ethical entailments of the immense influence over the lives of others that the economics profession now enjoys, and proposes a framework for the new field of professional economic ethics."

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Various authors, including Tyler Cowen at Marginal Revolution, are mentioning a January 2012 book on how economics shapes the ways that science is researched and pursued.  The publisher is Harvard University Press; the page for the book includes the table of contents and a "search inside" function. And of course it's available at Amazon.  The author is Paula Stephan - she's a professor at Georgia State and prior author of an 880 page compendium of papers on science and economics 

Some of the academic reviews are set out below from the Book's webpage: 

“Paula Stephan is the undisputed authority on the economics of science and her book is a delight. Laced with dozens of revealing anecdotes about everything from transgenic mice to the competition for high h-indexes and the Nobel Prize, How Economics Shapes Science reveals the economic logic behind the workings of modern science and makes a compelling case for using incentives to rationalize our use of scarce resources.”—Charles Clotfelter, Z. Smith Reynolds Professor of Public Policy and Professor of Economics and Law, Duke University

“Paula Stephan is one of the world’s leading scholars of the economics of science. Her comprehensive analysis—as readable as it is timely—is a must read for anyone worrying about the future of science policy or the economics of universities.”—Ronald G. Ehrenberg, Irving M. Ives Professor of Industrial and Labor Relations and Economics, Cornell University

“This is a marvelous book—lucid, cogent, and lively, full of fascinating anecdotes and news about what university science costs, who pays for it, and who benefits. Paula Stephan saw science as an economic enterprise long before other economists did, and she’s written what will be the definitive book for years to come.”—Richard Freeman, Herbert Ascherman Chair in Economics, Harvard University

“This fascinating book makes senior scientists like me keenly aware of the travails that await our students and post-docs as they pursue the many years of scientific training that lead to a very uncertain career. As Paula Stephan shows, from the point of view of income and stability, our students might be better off getting MBAs. All senior scientists should read this book. It gives a sobering dose of reality to our love of science.”—Kathleen Giacomini, Professor of Bioengineering and Therapeutic Sciences, University of California San Francisco

“How do economic considerations shape what scientists do? How do scientific developments affect economic progress? In a world facing challenges like global warming and threats of economic stagnation, these are critical questions. Paula Stephan’s treatment is masterful—and readable outside the ranks of economists, too.”—Richard R. Nelson, George Blumenthal Professor Emeritus of International and Public Affairs, Business, and Law, Columbia University

“Scientific research and professional training are now inextricably linked. At the same time the perceived costs and benefits of science have skyrocketed, with governments and universities setting economic incentives in the race for productivity and prestige. Stephan’s groundbreaking economic analysis shows the complex results of these policies.”—Mara Prentiss, Mallinckrodt Professor of Physics, Harvard University

“We in Europe often invoke the U.S. science system as the frontier for us, but most of us don’t know in detail how it actually operates. With its wealth of facts and stories, and its rich multidisciplinary perspective, Paula Stephan’s book can teach us. It will help scientists understand their environment and help policy makers see what levers they have (or do not have) to direct science. No one other than Paula Stephan could write with such insight and depth.”—Reinhilde Veugelers, Professor of Managerial Economics, Strategy and Innovation, Katholieke Universiteit Leuven

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Twenty-five beautiful libraries around the world. Beautiful knowledge - one world. 

Merry Christmas - for 2012, a wish that you experience abundant peace, joy, love and hope ! 

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Legal humor for Christmas. The words have been circulating by email, and also are online at the Madison County Record. The image is courtesy of the Record, so far as I know.

Merry Christmas to all !

'Twas the Night Before Christmas (Legal Version) 

 

 

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter "the House") a general lack of stirring by all creatures therein, including, but not limited to a mouse. 

A variety of foot apparel, e.g. stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter "Claus") would arrive at sometime thereafter. 

The minor residents, i.e. the children, of the aforementioned House, were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams. 

Whereupon the party of the first part (sometimes hereinafter referred to as "I"), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter "Mamma"), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g. kerchief and cap.) 

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtent to said House, i.e. the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance. 

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter the "Vehicle") being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus. 

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donder and Blitzen (hereinafter the "Deer"). (Upon information and belief, it is further asserted that an additional co-conspirator named Rudolph may have been involved.) 

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney. 

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations. 

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute "gifts" to said minor pursuant to the applicable provisions of the U.S. Tax Code.) Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as "lookouts." Claus immediately departed for an unknown destination. 

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: "Merry Christmas to all and to all a good night!" Or words to that effect. 

-- Author Unknown

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Current events provide yet another reminder that it is wrong to pretend that law and civil litigation are still (if they ever were) a noble calling where obligations to clients are trumped by economic self-interest. The pretenders include various bar associations on all sides of issues.

The pretenders' postures cannot be reconciled with bankruptcy court. There, conflicts of interest are rife, proceedings are settled based only on economics, and litigation claims are traded almost as freely as futures contracts offered on the MERC. The most recent example is provided by a bankruptcy court approving the power to trade in claims against the now-infamous MF Global. Indeed, the court went further and approved banks to use "ethical walls" to create a way to trade claims related to MF Global even though they owe conflicting duties to other members of the creditors' committee the banks sit on because they also are creditors. Meanwhile, on Wall Street, hedge funds are trading MG Global claims to make money. The University of Chicago Law School has it right - law is about economics. 

Bloomberg has part of the story - key excerpts are below:

Dec. 20 (Bloomberg) -- JPMorgan Chase & Co., a lender to bankrupt MF Global Holdings Ltd., asked a judge if it can trade claims on the company, including its bank loans and 6.25 percent bonds.

The biggest U.S. bank asked U.S. Bankruptcy Judge Martin Glenn, who is handling the bankruptcy, to create a so-called safe harbor so that its trading isn't deemed to violate its duty as a member of MF Global's creditors committee, and its claims aren't disallowed.

Like fellow committee members Bank of America Corp. and Elliott Management Corp. who sought permission to trade MF Global claims, JPMorgan said it would have “ethical walls” to ensure that knowledge it gains from being on the committee doesn't reach its traders, it said in a court filing today.

“Although JPMorgan owes fiduciary duties to the unsecured claimholders of these estates, it also has fiduciary duties to maximize returns to its respective clients,” including pension funds and high-net-worth individuals whose money it manages, the bank said.

Glenn gave his approval in an order issued today to Bank of America for its trades in MF Global claims, saying he would “take action” if there were any violations.

Such requests are common among banks and hedge funds that have loans and investments in bankrupt companies along with separate trading desks. Elliott sought and got permission to trade claims in the Lehman Brothers Holdings Inc. case, where it also is a member of the creditors' committee.

MF Global's $325 million of 6.25 percent notes traded at 33 cents on the dollar on Dec. 19, according to Trace, the bond price reporting system of the Financial Industry Regulatory Authority. The debt, issued at par in August, has declined from 50 cents on the dollar since the company's Oct. 31 bankruptcy filing. The bonds have declined from 35 cents at the end of November.

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For hundreds of years, scientists assumed that only the dose made the poison, and that more was always worse. Scientists also paid scant or no attention to the timing of the dose.

Today, we know better. We know that for some substances, less is more - that is, a lower dose will or can cause more harm than a large dose - this rule seems to apply especially to endocrine disrupters. We also know that the timing of the dose matters - think thalidomide and children with malformed or missing arms and legs if their mothers took thalidomide early in a pregnancy, as described in a 2009 paper from the Proceedings of the National Academy of Science. 

ScienceDaily now brings a new example of why timing matters. In a new paper in Nature, from scientists at Salk Labs, they've shown some small part of the biology behind why timing of a dose matters in terms of receiving a dose during sleeping and non-sleeping hours. The Salk press release includes the following key excerpts: 

In a paper published last week in Nature, scientists at the Salk Institute for Biological Studies report finding that proteins that control the body's biological rhythms, known as cryptochromes, also interact with metabolic switches that are targeted by certain anti-inflammatory drugs.

The finding suggests that side effects of current drugs might be avoided by considering patients' biological rhythms when administering drugs, or by developing new drugs that target the cryptochromes.

"We knew that our sleep and wake cycle are tied to when our bodies process nutrients, but how this happened at the genetic and molecular level was a complete mystery," says Ronald M. Evans, a professor in Salk's Gene Expression Laboratory, who led the research team. "Now we've found the link between these two important systems, which could serve as a model for how other cellular processes are linked and could hold promise for better therapies."

For more information:
Nature
Authors: Katja A. Lamia, Stephanie J. Papp, Ruth T. Yu, Grant D. Barish, N. Henriette Uhlenhaut, Johan W. Jonker, Michael Downes, Ronald M. Evans
Cryptochromes mediate rhythmic repression of the glucocorticoid receptor

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The Southern Copper/Grupo Mexico case has been quite the drama with its $1 billion + damages award for a corporate deal that was deemed not fair to shareholders other than the controlling shareholder. Now, Delaware Chancellor Strine has awarded attorneys' fees of$ 300 million+. Professor Bainbridge covers the award, and more, as to the litigation industry in Delaware. See also this paper cited and linked by Professor Bainbridge - it addresses the market share for the Delaware courts. 

The American Tort Reform Foundation and the US Chamber of Commerce routinely complain about awards of attorneys' fees to "trial lawyers," and disparage as "judicial hellholes" the courts where plaintiffs do well.  So, one can now wonder if the US Chamber of Commerce will attach the hellhole label to Delaware's famed Chancery Court.  Somehow that seems not likely but one never knows. 

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Europe's REACH regulations are significantly ahead of US regulations on "toxic" substances, and will be important in toxic tort litigation over the next decades. The ongoing REACH processes include various 2012 deadlines. A Keller & Heckman webinar offers a way to learn a fair amount in a convenient way. One of the firm's email ads is pasted below.   

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Set out below is an ad I received for an interesting looking book on state liability claims. The topic to me is interesting because nations like China are so tied into many of its industrial businesses that are investing in Brazil and other nations, and no doubt have been or will be releasing toxins. Some of these businesses  inevitably will end up being identified as causes of personal injury and property damage claims, and probably will be sued in mass tort claims of the future. 

New Title from Hart Publishing

I am pleased to announce the publication of the title shown below. If you would like to order this title with your 10% discount you can do so through our website* (please mention ref: ‘E-MAIL LIST’ in the special instructions field) or you can complete and return the order form that is included at the bottom of this message.

*Please note the discount will not show up on your order confirmation but will be applied when the order is processed.

Now available in Paperback

State Liability in Investment Treaty Arbitration

Global Constitutional and Administrative Law in the BIT Generation

Santiago Montt

Reviews of the Hardback Edition

“... Montt has authored a thought-provoking and welcome contribution to the current literature on international investment law.”Valentina S. Vadi, Journal of International Economic Law

“State Liability in Investment Arbitration is a valuable and truly interdisciplinary contribution to the growing body of literature on international investment law. It offers novel analytical approaches to analyzing the emergence and evolution of the BIT generation, and sheds light on some of the hitherto less explored issues of state liability for interference with foreign investment.” Mavluda Sattorova, Transnational Dispute Management

“The book is widely supported with authorities and references. In every subject, Montt excels at combining the historical perspective, the conceptual analysis and a critical look at the future. His work has an unquestionable intellectual and academic value. Were I to recommend it, then I would surely do to scholars and researchers.” Albert Badia, Journal of World Energy Law and Business

Today there are more than 2,500 bilateral investment treaties (BITs) around the world. Most of these investment protection treaties offer foreign investors a direct cause of action to claim damages against host-states before international arbitral tribunals. This procedure, together with the requirement of compensation in indirect expropriations and the fair and equitable treatment standard, have transformed the way we think about state liability in international law.

We live in the BIT generation, a world where BITs define the scope and conditions according to which states are economically accountable for the consequences of regulatory change and administrative action. Investment arbitration in the BIT generation carries new functions which pose unprecedented normative challenges, such as the arbitral bodies established to resolve investor/state disputes defining the relationship between property rights and the public interest. They also review state action for arbitrariness, and define the proper tests under which that review should proceed.

State Liability in Investment Treaty Arbitration is an interdisciplinary work, aimed at academics and practitioners, which focuses on five key dimensions of BIT arbitration. First, it analyses the past practice of state responsibility for injuries to aliens, placing the BIT generation in historical perspective. Second, it develops a descriptive law-and-economics model that explains the proliferation of BITs, and why they are all worded so similarly. Third, it addresses the legitimacy deficits of this new form of dispute settlement, weighing its potential advantages and democratic shortfalls.  Fourth, it gives a comparative overview of the universal tension between property rights and the public interest, and the problems and challenges associated with liability grounded in illegal and arbitrary state action. Finally, it presents a detailed legal study of the current state of BIT jurisprudence regarding indirect expropriations and the fair and equitable treatment clause.

Santiago Montt has a JSD and an LLM from Yale University, an MPP from Princeton University, and an LLB from Universidad de Chile, and has taught administrative law and international commercial arbitration at Universidad de Chile, and competition law at Universidad Diego Portales.

Click here for further information about the ‘Studies in International Law’ Series

Dec 2011   460pp   Pbk   9781849462136  US$ 50

DISCOUNT RATE TO E-MAIL LIST SUBSCRIBERS: US$45

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Conglomerate has an interesting new December 14, 2011 post by Marcia Narine on new ideas about what science says regarding how corporations should be regulated and how employees should be compensated. The ideas are set out in a book and forthcoming article from Professor Lynn Stout.  Excerpts from the blog post are below:

"But how does a corporation really act? Doesn’t it act through its people? And do those people behave like the members of the homo economicus species acting rationally, selfishly for their greatest material advantage and without consideration about morality, ethics or other people? If so, can a corporation really have a conscience?

In her book Cultivating Conscience: How Good Laws Make Good People, Lynn Stout, a corporate and securities professor at UCLA School of Law argues that the homo economicus model does a poor job of predicting behavior within corporations. Stout takes aim at Oliver Wendell Holmes’ theory of the “bad man” (which forms the basis of homo economicus), Hobbes’ approach in Leviathan, John Stuart Mill’s theory of political economy, and those judges, law professors, regulators and policymakers who focus solely on the law and economics theory that material incentives are the only things that matter.

Citing hundreds of sociological studies that have been replicated around the world over the past fifty years, evolutionary biology, and experimental gaming theory, she concludes that  people do not generally behave like the “rational maximizers” that ecomonic theory would predict. In fact other than the 1-3% of the population who are psychopaths, people are “prosocial, ” meaning that they sacrifice to follow ethical rules, or to help or avoid harming others (although interestingly in student studies, economics majors tended to be less prosocial than others). 

***

In her forthcoming article “Killing Conscience: The Unintended Behavioral Consequences of ‘Pay for Performance,’” she applies behavioral science to incentive based-pay. She points to the savings and loans crisis of the 80's, the recent teacher cheating scandals on standardized tests, Enron, Worldcom, the 2008 credit crisis, which stemmed in part from performance-based bonuses that tempted brokers to approve risky loans, and Bear Sterns and AIG executives who bet on risky derivatives. She disagrees with those who say that that those incentive plans were poorly designed, arguing instead that excessive reliance on even well designed ex-ante incentive plans can “snuff out” or suppress conscience and create “psycopathogenic” environments, and has done so as evidenced by “a disturbing outbreak of executive-driven corporate frauds, scandals and failures.” She further notes that the pay for performance movement has produced less than stellar improvement in the performance and profitability of most US companies.

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One factor in the rise of the litigation industry has been increasing knowledge of hazards, which accelerates the propensity to sue. That's why media in the US today are full of real and faux news stories on asbestos, with the Internet, late night tv, and sporting events much used to broadcast the word "mesothelioma." Accordingly, it's worth noting that the UK government apparently is planning to resume its ads warning about asbestos-related health hazards, as described here by British press.

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One factor in the rise of the litigation industry has been increasing knowledge of hazards, which accelerates the propensity to sue. That's why media in the US today are full of real and faux news stories on asbestos, with the Internet, late night tv, and sporting events much used to broadcast the word "mesothelioma." Accordingly, it's worth noting that the UK government apparently is planning to resume its ads warning about asbestos-related health hazards, as described here by British press.

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The litigation industry includes many inconsistencies. For examples, big business has tended to work hard to force arbitration on customers. But not always. Today, big banks are opposed to and are trying to stop FINRA arbitrations involving claims of financial fraud. The issues and some history are nicely summarized in a December 1, 2011 AmLaw article by  Nate Raymond. Set out below is a list of FINRA awards taken from the article - one can see why banks do not like FINRA arbitrations. 

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During my clerkship for a Justice of the Illinois Supreme Court, I learned (from being assigned to do the research) that most of the world builds its judiciary  through a professional career path aimed at judging, and/or some form of "merit selection."  In contrast,  judges are chosen via political elections in some of the United States, including, for example, Illinois, Texas and West Virginia. The system of electing judges by popular vote is fraught with problems, including raising campaign funds. Fund raising usually involves an election committee for a judge asking for contributions from lawyers or committees. When lawyers or groups contribute any meaningful amount of money, questions arise regarding influence and/or an appearance of impropriety. But we keep using this process, and both defense and plaintiff groups keep giving money, sometimes stunningly large amounts. 

This contribution process - and bad appearances - recently played itself out in Madison County, Illinois,   after the conclusion of the process of awarding valuable trial dates for asbestos trials for 2013. Specifically, Judge Crowder is the current  "asbestos judge" responsible for all of the hundreds of mesothelioma cases that are filed in Madison County each year. Cases are filed there for many reasons, including the vast and firm supply of trial dates which are the catalysts for resolving cases, especially when insurers are involved.  As described in prior posts (here and here), there is process for awarding trial dates in Madison County, and it was unfolding over the last 30 days. Then, last week, Judge Crowder last week issued an order granting 485 trial dates for 2013, with 82% of the trial dates being awarded to plaintiff's firms with offices in the Madison County area. 

As it turns out, Judge Crowder's campaign also was out asking for campaign contributions, which appears to be legal but very ill-timed. The Madison County Record reported the facts in a story by Ann Maher. According to others, contributions were being sought from a range of lawyers, including both defense and plaintiff firms. And, the contributions were duly reported to the Illinois State Board of Elections. As it turns out,  contributions were made and amounted to $ 30,000, with $ 10,000 being contributed by various members of each of three plaintiff's firms. Each of the three plaintiff's firms received a large number of trial dates through the recent order.  

After the contributions became public, Madison County's  Chief Judge, Ann Callis, issued an order removing  Judge Crowder from her role of managing the asbestos docket. It has been said that the decision to remove Judge Crowder was made after a vote of all the circuit court judges - I do not know if that's true. Judge Clarence Harrison was appointed to replace Judge Crowder on the asbestos docket. 

Obviously the timing and facts smell bad regardless of what infers or does not infer. Remember, every contributor knew the contributions should be and presumably would be publicly reported. Similar bad smells and issues arise too often, based on contributions from both defense and plaintiff groups. Indeed, two years ago, the U.S. Supreme Court confronted the Caperton case, which raised due process issues arising from a West Virginia Supreme Court decision that favored a company with ties to massive campaign contributions to one of the justices of the West Virginia Supreme Court. Voting 5-4, the Court held that the West Virginia Justice was required to recuse himself. Set out below are key quotes from the opinion, as taken from this post on the great blog maintained by the Brennan Center for Justice at the New York University School of Law.  The fractured views illustrate at least part of why the judicial election process is so fraught with issues. We really ought to be able to find a better way to build our state court judiciaries.

Here's a later article confirming that Judge Callis consulted with the other judges before removing Judge Crowder. Yet a later article highlights that the contributions were sought and made after the trial dates were awarded, and that little had changed from last year. Thus, the activity showed poor judgment and timing, but was not a quid pro quo.  And, Judge Crowder is planning to return the money. 

"Justice Kennedy, writing for the majority:

"We conclude that there is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.  The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election." 

"Justice Benjamin did undertake an extensive search for actual bias.  But, as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved...The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process."

"Our decision today addresses an extraordinary situation where the Constitution requires recusal."

Justice Roberts, dissenting:

"...a ‘probability of bias' cannot be defined in any limited way. The Court's new "rule" provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be."

Justice Scalia, dissenting:

"The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution.  Alas, the quest cannot succeed - which is why some wrongs and imperfections have been called nonjusticiable."  

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Business Insurance has a new article by Louise Kertesz on the best strategy for dealing with medical malpractice - admitting fault, paying the claim and moving forward. The topic truly matters because malpractice in general continues at alarming rates as described by the New England Journal of Medicine, and specific examples are sometimes horrific, as illustrated by this recent example. Meanwhile, various "tort reformers" continue to posture - incorrectly - that the problem is caused by "trial lawyers" ginning up claims. While certainly there are some bogus suits every year, I've yet to find any empiric evidence supporting the claims of tort reformer claims. Instead, one finds that medical malpractice is happening, and hospitals and insurers are failing to stop it from happening.  When conservative Fred Thompson was seeking the Republican nomination for President of the United States, he made a point of acknowledging that damages caps are bad policy, and an arrogant and unfair form of government intervention, which conservatives supposedly abhor. 

The advantages of honesty and apologies are in a way old news - the point in general is made here by a German study of corporate response to its own mistakes, as highlighted here by Conglomerate. As to medical malpractice in particular, the University of Michigan proved the point in a 2009 article reporting its experience. See A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, by Richard C. Boothman, Amy C. Blackwell, Darrell A. Campbell, Jr., Elaine Commiskey, and Susan Anderson. The article is published online, and collects a wide range of research on the subject. The abstract and cite are as follows:

ABSTRACT: The root causes of medical malpractice claims are deeper and  closer to home than most in the medical community care to admit. The University of Michigan Health System’s experience suggests that a response by the medical community more directly aimed at what drives patients to call 

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Out of town lawyers would like to lock up trial date slots in ever ready Madison County, but did not have much luck for 2013 trial dates. See this prior post for the background.  Set out below is a Madison County Record article providing the results of the latest dance over trial dates. The bottom line is that local law firms took dwon 82% of the trial slots. Out of town lawyer received very little certainty in the way of trial dates, but there are some possibilities for dates if they have clients who are alive but likely to die quickly. The dance can be macabre. 

Crowder sets 2013 asbestos docket; Three local firms get 82 percent of trial slots 
12/8/2011 3:46 PM By Steve Korris 

Madison County Circuit Judge Barbara Crowder has provided Simmons Browder law firm of East Alton with 185 valuable trial slots in her asbestos court for 2013.

She granted Simmons Browder nine weeks with 19 exclusive slots each week, plus 14 slots on a tenth day, in a preliminary order on Dec. 1.

Simmons Browder captured more than 38 percent of 485 slots she granted.

She provided 128 slots, more than 26 percent, to Gori Julian of Edwardsville; and she provided 84 slots, more than 17 percent, to Goldenberg Heller of Edwardsville.

Together, the three firms captured 82 percent of the slots.

She granted all three the number of weeks they requested.

She provided 24 slots each to O'Brien Law Office and Maune Raichle, both of St. Louis, in three weeks they will share with other firms.

Maune Raichle had asked for four weeks.

She provided 16 slots each to Saville and Flint, of Alton, and Shrader Law Office of Houston, Texas, in two weeks they will share with others.

Shrader had asked for four weeks.

She provided slots only for the seven firms, but designated eight slots in two weeks for a "cause docket" available to anyone else.

She set three other weeks of cause dockets showing no specific numbers.

"The court intends to avoid having one defendant in trial in more than one courtroom on any docket absent exigent circumstances," Crowder wrote at the end of the order.

"Counsel must also be aware that a living plaintiff who may be seriously ill takes priority.

"The court will make every effort to fairly accommodate all parties in the event of conflicts and retains the authority to make exceptions to this order."

The deepest disappointment among plaintiffs fell on Michael Bilbrey of Edwardsville, the only lawyer with slots in 2012 who won't receive any in 2013.

The deepest disappointment among defendants fell on those who proposed to curb Madison County's reputation as an open jurisdiction.

Robert Shultz of Edwardsville offered the proposal for Union Carbide in November, and dozens of defendants joined it.

Shultz wrote that reserving slots in excess of local need opens Madison County to litigation with no connection to the county.

He wrote that nine firms requested dates without representing that they had local clients to fill the dates.

He wrote that awarding dates without need "has transformed the right to trial into a popular commodity in Madison County."

He wrote that only three of 43 cases set on next year's trial docket have any connection to the county.

These defendants joined Union Carbide's proposal to curb Madison County's reputation as an open jurisdiction:

ALCOA
Allied Glove
Aurora Pump
Breeding Insulation
BW/IP Inc.
CBS Corporation
Clark Equipment
Conoco Phillips
Cummins Inc.
DeZurik
Duriron Company
Flowserve Corporation
Foster Wheeler Energy
Grobet USA
H.M. Royal Inc.
Hamilton Sundstrand
Hopeman Brothers
IMO Industries
J.H. France Refractories
Kentile Floors
Kinney Vacuum
Leeds and Northrup
Lighnin/Mixing Equipment
Lindberg
M&O Insulation
New York Air Brake
Rexnord Corporation
Reynolds Metal
Riley Stoker
Seco/Warwick
Sunbeam Products
Swindell Dressler International
Taco Inc.
Timpte Industries
Utility Trailer Manufacturing
Viking Pumps
W.S. Darley & Co.
Warren Pumps 

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Out of town lawyers would like to lock up trial date slots in ever ready Madison County, but did not have much luck for 2013 trial dates. See this prior post for the background.  Set out below is a Madison County Record article providing the results of the latest dance over trial dates. The bottom line is that local law firms took dwon 82% of the trial slots. Out of town lawyer received very little certainty in the way of trial dates, but there are some possibilities for dates if they have clients who are alive but likely to die quickly. The dance can be macabre. 

Crowder sets 2013 asbestos docket; Three local firms get 82 percent of trial slots 
12/8/2011 3:46 PM By Steve Korris 

Madison County Circuit Judge Barbara Crowder has provided Simmons Browder law firm of East Alton with 185 valuable trial slots in her asbestos court for 2013.

She granted Simmons Browder nine weeks with 19 exclusive slots each week, plus 14 slots on a tenth day, in a preliminary order on Dec. 1.

Simmons Browder captured more than 38 percent of 485 slots she granted.

She provided 128 slots, more than 26 percent, to Gori Julian of Edwardsville; and she provided 84 slots, more than 17 percent, to Goldenberg Heller of Edwardsville.

Together, the three firms captured 82 percent of the slots.

She granted all three the number of weeks they requested.

She provided 24 slots each to O'Brien Law Office and Maune Raichle, both of St. Louis, in three weeks they will share with other firms.

Maune Raichle had asked for four weeks.

She provided 16 slots each to Saville and Flint, of Alton, and Shrader Law Office of Houston, Texas, in two weeks they will share with others.

Shrader had asked for four weeks.

She provided slots only for the seven firms, but designated eight slots in two weeks for a "cause docket" available to anyone else.

She set three other weeks of cause dockets showing no specific numbers.

"The court intends to avoid having one defendant in trial in more than one courtroom on any docket absent exigent circumstances," Crowder wrote at the end of the order.

"Counsel must also be aware that a living plaintiff who may be seriously ill takes priority.

"The court will make every effort to fairly accommodate all parties in the event of conflicts and retains the authority to make exceptions to this order."

The deepest disappointment among plaintiffs fell on Michael Bilbrey of Edwardsville, the only lawyer with slots in 2012 who won't receive any in 2013.

The deepest disappointment among defendants fell on those who proposed to curb Madison County's reputation as an open jurisdiction.

Robert Shultz of Edwardsville offered the proposal for Union Carbide in November, and dozens of defendants joined it.

Shultz wrote that reserving slots in excess of local need opens Madison County to litigation with no connection to the county.

He wrote that nine firms requested dates without representing that they had local clients to fill the dates.

He wrote that awarding dates without need "has transformed the right to trial into a popular commodity in Madison County."

He wrote that only three of 43 cases set on next year's trial docket have any connection to the county.

These defendants joined Union Carbide's proposal to curb Madison County's reputation as an open jurisdiction:

ALCOA
Allied Glove
Aurora Pump
Breeding Insulation
BW/IP Inc.
CBS Corporation
Clark Equipment
Conoco Phillips
Cummins Inc.
DeZurik
Duriron Company
Flowserve Corporation
Foster Wheeler Energy
Grobet USA
H.M. Royal Inc.
Hamilton Sundstrand
Hopeman Brothers
IMO Industries
J.H. France Refractories
Kentile Floors
Kinney Vacuum
Leeds and Northrup
Lighnin/Mixing Equipment
Lindberg
M&O Insulation
New York Air Brake
Rexnord Corporation
Reynolds Metal
Riley Stoker
Seco/Warwick
Sunbeam Products
Swindell Dressler International
Taco Inc.
Timpte Industries
Utility Trailer Manufacturing
Viking Pumps
W.S. Darley & Co.
Warren Pumps 

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"Tort reformers" (usually insurance companies)  often argue that damages caps of $1 million or $ 500,000 are "fair."   Consider such limits as applied to the following victim of medical malpractice - the facts are taken verbatim from this article in the December 9, 2011 issue of The Chicago Daily Law Bulletin.

By the way, the hospital's defense firm is one of Illinois' most respected defense firms. 

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The Conglomerate includes an interesting post on Dodd-Frank, plus  SEC whistleblower statistic for the first seven weeks. The commentary is from a guest blogger, former insider lawyer, Marcia Narine, now working as a law professor. The theme of this specific post, she seconds the view that the current crisis has been wasted due to less than perfect reform. In other posts, she's taken on legal issues and practical realities related to conflict mineral legislation, and is to propose an affirmative defense to corporate criminal liability. Interesting commentary from someone with real world experiences worth sharing. 

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Reuters brings this interesting story of GlaxoSmithKline creating a new metric - core earnings - that excludes various categories of costs, including costs for litigation. According to the article, the metric brings GSK in line with some other large pharma entities. One might think the new metric is at least in part a testament to the fact that the litigation industry does matter as companies face large claims. Here's a key excerpt from the article:

"GSK, which announced in July it was changing the way it reports results to give shareholders "clearer visibility of our anticipated progress in 2012 and beyond," presented further details on the move in a briefing for analysts on Thursday.

Legal costs have proved a persistent drag on profits across the drugs industry in recent years, following a slew of patient liability claims and an increasingly aggressive stance by U.S. authorities over cases involving mis-selling of medicines.

Four other elements will also be excluded from GSK's new definition of core EPS -- other operating income and profits on disposals; amortisation and write-offs of intangible assets; major restructuring costs; and accounting adjustments related to material acquisitions.

Up until now, GSK has focused on earnings "before major restructuring."

Setting out the impact of the change, which will take effect from the first quarter of 2012, GSK said that core EPS in 2010 would have been 125.5 pence, rather than 53.9p reported under the old before-restructuring system.

The big difference reflects the fact that massive legal costs were taken in 2010 related to the settlement of claims over its Avandia diabetes drug and sales practices for a range of other products."

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Tobacco industry defense is the driving force behind 25 or so lawyers exiting Shook, Hardy to join Hughes Hubbard. The Kansas City office of Shook Hardy is famous as the long time home for the national strategy for tobacco defense and defense of Phillip Morris. But today, Lorillard and Phillip Morris seek to have separate counsel, so lawyers are leaving Shook's Kansas City office to work for Hughes Hubbard in a new Kansas City office it is creating to serve Lorillard. AmLaw Daily has the story here. Excerpts follow on the tobacco litigation industry aspects of the moves:

"The Kansas City office opening is largely a product of the shifting regulatory landscape confronting Big Tobacco.

With the Food and Drug Administration turning up the heat on tobacco makers in recent years, industry rivals are increasingly at odds over how far regulators should go, says Stephen Sugarman, a professor at the University of California, Berkeley School of Law who has written extensively on tobacco litigation and regulation.

Philip Morris, Sugarman says, has generally been more supportive of stricter regulations, in part because  its dominance within the industry—in 2010, the company controlled nearly half the domestic retail market for cigarette sales—makes it more immune to those regulations. Bans on certain types of advertising, for example, would have less impact on a nationally recognized brand such as Philip Morris's Marlboro than on lesser known brands trying to elbow their way into the market, Sugarman says.

Until the 1990s, the industry presented more of a united front, says Sugarman. That unity began to crumble with the landmark $200 billion Tobacco Master Settlement Agreement in 1998, in part because the settlement stipulated that several industry groups disband, he says.

That tobacco industry rivals are following divergent paths is no different than what has happened in other industries, according to Murphy, who adds that Hughes Hubbard was the only firm in the running to take over Shook's Lorillard team.

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Researchers continue to refine models for the likelihood of developing mesothelioma after asbestos inhalation. Here is the abstract for a new European Respiratory Journal article with a model based on numbers drawn from mesotheliomas in France.  The abstract states the following:

Temporal patterns of occupationalasbestos exposure and risk of pleural mesothelioma

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Now that Scotland and Northern Ireland are allowing lawsuits for compensation for pleural plaques, trade union UNITE is arguing that England and Wales also should allow pleural plaques claiming, as illustrated here. But England already - and wisely - seriously considered but rejected legislation to allow pleural plaques claiming - there was an entire consultation process and negotiations with the unions, see here and here for some history. For a broader view across the EU, see this prior post. 

Hoepfully England and Wales will not repeat the mistakes of their brethren. Simply put, pleural plaques litigation takes money and time away from resolving the far more serious problems of persons suffering from lethal and brutal  mesothelioma tumors. There also are myriad other reasons not to allow pleural plaques claiming. I covered the issues at some length in 2008 in a detailed submission to the UK government's consultation process. The 37 page outline is here, along with its exhibits.

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Like Scotland, legislation in Northern Ireland will permit recoveries for pleural plaques. The legislation takes effect next week, and is covered in this government press release.  The BBC has the story here. A past government memo on the subject is here. Background is here from Herbert Smith, a UK  firm on the insurance company side of things. 

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This past weekend, US television magazine 60 Minutes added its voice to the dialog about the absence of criminal prosecutions for the Wall Street fiasco.  The transcript is here from interviews with 2 "whistleblowers"  - one senior executive from Countrywide and a less senior Chase executive. 

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An ABA panel is recommending that the ABA allow non-lawyer owners of law firms if they work for the firm. The panel is not recommending allowing straight outside investment, as is now done in the UK and Australia. AmLaw Daily has more color to the story , with links to this new paper and this older paper related to the recommendation. 

Change arrives slowly in law.  For now, the ABA's stance may slow the demise of the local general practice firm that handles will and real estate matters. But law schools, prospective lawyers and colleges all need to adjust  - within a decade, there will no longer be much of a  place for lawyers handling rote tasks. Instead, technicians will handle standard transactions and issues. 

On a more frightening level, consider the beasts that insurers will create to "defend" clients and refuse to pay claims. Some of today's captive law firms already make precious little use of real legal skills. When outside workers can own much of the law firm, claims adjusters seem sure to move in, willing to work for less than lawyers. There is a reason the insurance industry has been a big part of commoditizing law, as it did with medicine.  

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Hearings start today on a group of test cases intended to resolve  "trigger" issues for employers liability coverage in the UK for persons who develop mesothelioma. The story is here in regular media, and a more detailed background story is here on the website of the International Ban Asbestos Secretariat. The hearings follow up on a major coverage ruling last year. The hearings will be available here on SKY tv.

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Australia will be the forum for a 2012 global conference on the possibility of completely banning asbestos use. The conference will be hosted by the Australian government and the International Ban Asbestos Secretariat (IBAS). The story is here from ABC News, and was announced by Australia's Foreign Minister, Kevin Rudd, and by Laurie Kazan-Allen of IBAS. The IBAS website does not yet include a story. Ms. Kazan-Allen is the sister of Steve Kazan, a prominent US plaintiff's lawyer in asbestos litigation.

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The marvelous post pasted below is from Alex Tabarrok at the blog titled Marginal Revolution. He says it all so well, I've taken the liberty of repasting the post in toto. The original is here, and is followed by an interesting series of comments. 

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Trial date tango. It's a dance unique to litigation. It's also a unique dance because it takes at least three to dance - a judge, a plaintiff's firm and a defense firm. For asbestos cases, there's a mosh pit of dancers because so many defendants are named in most cases. And at least one defendant (John Crane) dances so often that most say it's dirty dancing, but that's a story for another day.   

For plaintiff's lawyers, the trial date dance is about certainty and market power - they want pretty much all the dances they can obtain, and sooner is usually (but not always) better than later. For defendants, less is usually more, but some trial dates are inevitable, so it's about balancing. Trial dates stop defense expenses, and for the vast majority of insurance companies, it's only about the total spend. 

Trial date tango is an important annual ritual in the Circuit Court of Madison County.  It's important because the Madison County court is the venue for over 1/3 of all mesothelioma cases filed each year in the entire US. If one assumes that's about 600 cases per year at $ 1.5 million each to settle, then the Madison County litigation industry is an over  $1 billion operation located in Edwardsville, Illinois, a town of about 25,000 people.  The industry value also may well be higher, depending on what one assumes about average settlement values.

Why is Madison County so busy? That's a story that dates back for decades, and is too much for this post. But, one of the keys today is the certainty produced by the predictable outcome of the annual trial date tango.  Even though cases should settle earlier, they usually don't, for many reasons, and so trial dates are the catalysts to resolving cases. Madison County's "asbestos judges" understand that reality. Each year they slot hundreds of trial dates, and allocate the trial dates between the plaintiff's firms. With dozens of trial dates in hand, the Madison County plaintiff's firms then use the trial dates as part of their pitch to obtain cases from other plaintiff's firms around the country. For the most part, the residence of the plaintiff simply does not matter in Madison County (although that could change one of these days.)

Madison County's  annual trial date ritual was performed this week as about sixty lawyers showed up to talk with Judge Crowder about trial dates for 2013 (2012 is already set with 28 trial weeks with 19 cases per trial setting).  The Madison County Record has the story here by Steve Korris and Christina Stueve, told mainly from the defense perspective that is inherent because the Record is owned by the US Chamber of Commerce. That said, it's great that the public domain includes more information rather than less. 

Note a few things about this year's dance. The big dogs in the plaintiff's bar sat quietly. Some new plaintiff's firms asked to join the dance. Some plaintiff's firms want to bring new dates - 40 or so lung cancer cases, on top of mesothelioma cases.   Only a few defendants had anything to say, and only one was willing to buck conventional wisdom, thus illustrating once again the power of  the herd mentality in mass tort litigation. Some defendants opposed giving trial dates to new plaintiff's firms. Now all wait to hear from Judge Crowder about the dance card specifics, but the dance inevitably will go on, in a big way.

Some key quotes from the article are set out below: 

"EDWARDSVILLE - In America's asbestos court, where procedure and reality seem to run in opposite directions, lawyers debated politely for 45 minutes on Wednesday about how many hundred trials to schedule for the year after next.

No one at the hearing before Circuit Judge Barbara Crowder expected more than a trial or two to actually occur in 2013, but only one lawyer proposed not to pretend.

Union Carbide lawyer Kent Plotner, of Heyl Royster, told Crowder she should set cases for trial as needed without pre-slotting.

He said Crowder could determine where to slot them when they come in.

"When a case comes in and the merits of the case stand alone, your honor can set that case," Plotner said. 

He said it didn't make sense to have slots for cases that don't exist.

***


In 2010, there were 752 asbestos cases filed in Madison County. This year's figures are on pace to exceed last year's total. 

Defendants have argued that Madison County's advance calendar setting encourages plaintiff lawyers to go out and market the asbestos docket.

And they claim that during any given trial week (there are 28 this year) - where 19 individual cases are set for trial - defendants don't know on Monday morning of that trial week which plaintiff among 19 will go to trial.

After Plotner spoke, no defense lawyer seconded his motion.

Crowder took under advisement a proposal from plaintiffs to set 27 trial weeks with 19 trials a week, a total of 513 for the year 2013.

The firm that files the most Madison County asbestos cases, Simmons of Alton, has requested 10 trial dockets for 2013. In 2011 and 2012, the firm was assigned nine settings.

And the second most prodigious asbestos firm, Gori and Julian of Edwardsville, has requested seven trial dockets for 2013, up from six the firm was assigned in 2011 and 2012. 

***
Crowder is full time asbestos

Chief Judge Ann Callis appointed Crowder as Madison County's first full time asbestos judge last year, transferring all her pending cases to other judges.

Crowder succeeded retired Circuit Judge Daniel Stack, who managed the asbestos docket for five years while presiding over other civil suits.

While Crowder said she does not know how many cases she currently presides over, the ones that are moving are ones with more serious claims.

"The only cases on this docket are people with a terminal diagnosis," she said. "They're dying or already dead."

***

At the hearing

For Crowder's hearing on the 2013 trial calendar, about 60 lawyers showed up.

After Plotner pitched his plan, defense lawyer Brenda Baum of Hepler Broom said the plaintiff proposal sets up many conflicts among plaintiff firms.

She said five firms asked for slots on June 17, 2013, for instance. And, two to four firms asked for slots on other days, she said.

The total shouldn't exceed 475 slots, with no more than two firms on any date, she said.

Baum proposed a minimum number of filings for a firm to qualify for the docket.

Defense attorney Ray Fournie, of Armstrong Teasdale, said multiple firms on one docket made it hard to anticipate the time and effort of preparation.

He said that with one firm, defendants can negotiate properly.

He said the number of firms with standing on Madison County's docket went from eight to 10 since last year.

He said there was a potential increase in the number of firms with no connection to Madison County. He also said Crowder can't prevent outside firms from filing.

He said he recognized the predicament their constitutional right creates.

Most plaintiff lawyers in the room kept quiet. 

No one from the Simmons or Gori firms spoke. 

Five commented briefly, one so softly that people 10 feet away couldn't hear.

Only Elzabeth Heller, of Mark Goldenberg's firm in Edwardsville, scored points on the plaintiff side.

She said defendants changed their theme from, "If you build it they will come," to, "Madison County, the last open jurisdiction." 

"The sky is not falling," she said. "The system is working."

She said cases without merit are being dismissed or transferred.

She said the Goldenberg firm filed 86 cases this year, 59 of them mesothelioma cases. Her firm will file in excess of 100 before the end of the year, she said. 

"We represent more than 3,000 Madison County residents with non-malignant cases on the deferred docket," Heller said. 

She said they track those cases to see if clients develop lung cancer.

"We have a backlog of 40 ready to be set," she said. 

Crowder said she would get an order out quickly.

After the hearing, Fournie said a trial docket with 513 slots was a challenge for the court and more so for defendants.

"We are here all the time," he said.

"Trying to juggle that without a huge financial drain on our clients is tricky," he said.

He said he represents General Electric, Hercules, Chicago Bridge and Iron, and others.

He said a central forum simplifies litigation because, "A lot of people worked at a lot of different places."

He said he didn't know how many asbestos suits he currently defends.

"If there are 500 slots, one of my clients is going to be in 490 of them," Fournie said."

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Do you remember your law school course on international human rights treaties? Neither do I. Most of us over 40 do not have such a memory because the course did not exist. But today some number of law students will learn about the treaties through courses and work. For the rest of us, there's an apparently strong new treatise on the subject by Marko Milanovic.

In a post at Opinio Juris, Professor Milanovic provides some comments, including the following apt observation about the increasing prominence of human rights law:  

"The book’s main focus is on case law, and most of the case-law that I examine is of fairly recent extraction. It appears that the problem of the extraterritorial application of human rights treaties has been growing progressively more acute in the past decade or so. It is indeed rather startling that such a fundamental issue regarding the scope of application of these treaties has not been definitively resolved much earlier during their life-span. One, almost trite response to this observation would be that in the age of globalization states are increasingly affecting the human rights of individuals outside their borders, and that this explains both the increase of litigated cases on extraterritorial application and the growing importance of the issue generally."

The treatise is being discussed at Opinio Juris for the next few days, as you can read below from a cut and paste of this post this morning: 

Opinio Juris and EJIL: Talk! are happy to announce that over the next few days we will both be hosting a discussion of Marko Milanovic’s recently published book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford Univ Press).  Marko’s book examines the question when a State owes human rights obligations under a treaty to persons located outside its territory. This is a question on which there has been conflicting case law and much confusion.

This [book] attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties’ extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

A very distinguished group of scholars, from both sides of the Atlantic, will offer their views on Marko’s book and on this vexed question of extraterritorial application of human rights obligations.  On EJIL: Talk!, Yuval Shany (Hebrew University of Jerusalem), Vaughan Lowe (Oxford) and Irini Papanicolopulu (Milan-Bicoca and Oxford) will offer their views. On Opinio Juris, it will be Sarah Cleveland (Columbia), Kal Raustiala (UCLA) and OJ’s own Peggy McGuinness (St John’s). We are grateful to them for agreeing to participate in what I am sure will be a fascinating discussion.

The discussion will start with an introduction by Marko (on both blogs) of his book. Our commentators will weigh in with comments through the rest of this week.  Marko will respond to their comments early next week. Readers are invited to join in the discussion.

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Opinio Juris includes this new post on a new article on targeted killing.  The article is said to be quite good.

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Lawyers around the world are increasingly forming cross-border alliances to bring claims for plaintiff. A recent example is set out in this opinion linked from this article in the NLJ, and arises in the context of a sued filed by the Russian customs authority. 

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The global asbestos claiming industry remains hard at work. Here and here are recent promotion posts from the Asbestos Disease Awareness Organization. The pieces include YouTube videos about victim's rights conferences in India. 

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