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Category Archives: Policy Issues

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Brief and Declaration of Former National Security Officials in State of Washington v. Trump

Posted in Civil Rights, Due Process, Executive Orders, Policy Issues
The issues in State of Washington v. Trump can be framed broadly or narrowly. If framed broadly, the issues may have notable impacts as precedent that goes to the tripartite structure of our government, and the extent to which courts can, should, or will “look behind” the actual words of an executive order. The brief… Continue Reading

Timely, Open Access Web Site Provides a Great Way to Track the Civil Rights Cases Challenging the Various Executive Orders

Posted in Civil Rights, Class Actions, Litigation Industry, Policy Issues
With so many executive orders being challenged in many forums, keeping track of the events presents challenges similar to the challenges in tracking events in mass tort litigation. Below, a note on the best resource I know of for tracking the civil rights cases. Guest posts are welcome if others know of better resources. A… Continue Reading

“U.S. Chamber of Commerce Undeserving of “Cancer Gold Standard” Because of Its Global Lobbying for Big Tobacco”

Posted in Cancer, Policy Issues, Science
You knew this well-targeted attack was going to be launched by someone. Kudos to the Campaign for Tobacco-Free Kids for pointing out the absurdity of some group of CEOs giving an award to the US Chamber of Commerce for supposedly being useful in reducing lung cancer. The award by the CEOs reflects an obvious failure… Continue Reading

Personal Injury Class Actions, Mass Tort Bankruptcies, and Evolving Science: NFL Concussion Arguments this Week Highlight Conflicts of Interest Between Current and Future Claimants

Posted in Asbestos, Asbestos Bankruptcy, Cancer, Litigation Industry, Mass Tort Issues, Policy Issues
One of the struggles in mass tort litigation arises from the economic conflicts of interest between current and future claimants. The issues can arise in multiple places: class actions, mass tort bankruptcies (which are de facto class actions), and current claims seeking punitive damages that realistically could exhaust the assets of defendants that lack deep… Continue Reading

Concussions, Science, Sports and the Movies

Posted in Litigation Industry, Mass Tort Issues, Policy Issues, Reputation Risk, Science
For organizations indirectly or directly involved with health, the current world can present massive opportunities and risks due to media that can reach around the globe to millions, in a relative instant. A new example? Concussions, research and emerging science, the subject of a new Will Smith movie in theaters at Christmas, as described here… Continue Reading

CBO Publishes Estimate for Extension of 9/11 (Zadroga) Fund

Posted in Asbestos, Litigation Industry, Mass Tort Issues, Policy Issues
CBO has published a preliminary estimate of costs related to extension of the 911 (Zadroga) fund. CBO provided the following summary: “The Congressional Budget Office has completed a preliminary estimate of the effect on direct spending that would result from enacting S. 928, the James Zadroga 9/11 Health Compensation Reauthorization Act, as introduced on April… Continue Reading

The Tort Wars Continue for Control of Courts: “Bankrolling the Bench”

Posted in Asbestos, Litigation Industry, Mass Tort Issues, Policy Issues
Spending continues apace on judicial elections as defense and plaintiff interests jockey to keep or put judges in office. The overall point is highlighted by the latest study on spending, which is Bankrolling the Bench from the Brennan Center group most would call “liberal,” even if the label is not accurate.  And the money flows the most… Continue Reading

Judicial Messaging: Delaware’s Chief Justice Speaks to a Conference of Directors

Posted in Asbestos, Litigation Industry, Policy Issues, Transparency
Today, a fact of life is that judges are invited to and do speak at conferences that gather persons interested in a topic. Sometimes the judges show up with a message. Thus, this week’s Perrin conference on asbestos litigation included a panel composed of “asbestos judges” from some of the key venues for asbestos litigation.… Continue Reading

VW’s Global Software Fiasco Illustrates Global Scale Problems and Inadvertently Support Justice Breyer’s New Book: The Court and the World

Posted in Comparative Law, Litigation Industry, Mass Tort Issues, Policy Issues
Software and data operate in binary code that changes very little, if at all, for borders (excluding homeland security issues for some software). Therefore, global problems are generated by defects in data or software. VW is the current poster child for this reality as it now has acknowledged global issues involving some 11 million cars,… Continue Reading

Delaware and More Change in the Civil Litigation Industry; “Intergalactic Releases” and Disclosure Only Deals

Posted in Litigation Industry, Policy Issues
Some naive lawyers (e.g. me) long ago thought civil litigation was about truth, justice and the American way. Not so; the University of Chicago law and economics focus plainly is correct; civil litigation is about money. Therefore, it’s not a surprise that Delaware Chancery judges now issue opinions with warnings about their thoughts on future… Continue Reading

Childbirth Left Her a Quadriplegic After Medical Malpractice; How Would Damages Caps Be Fair to this Family?

Posted in Caps on Damages, Damages, Insurance, Litigation Industry, Medical Malpractice, Policy Issues
Advocates of damages caps in medical malpractice cases seldom, if ever, confront the gross unfairness of leaving on one person the economic burden of a medical error. That risk instead can and should be spread to many since actuaries say they can predict the general patterns of medical treatments and error rates, and can provide… Continue Reading

SCOTUS, Overreach, and Be Careful What You Wish For

Posted in Litigation Industry, Policy Issues
The past week’s rulings at SCOTUS are bad news for at least some who (accurately or not) label themselves as “conservatives.”  Some lawyers are now explicitly arguing that overreach is hurting “conservative” causes at SCOTUS because “cause” lawsuits are resulting in litigation of extreme, overreaching views/arguments. That’s the thesis of this June 25 NYT article. In… Continue Reading

New York Changes Judicial Appointment Process and Transfers Judges to Upgrade Commercial Bench to Jockey with Delaware for More Big Cases

Posted in Asbestos, Elected Judges, Litigation Industry
In another indicator of the importance of the litigation industry, New York and Delaware courts continue to compete for big commercial cases. A recap of some of New York’s recent moves is set out in a June 6, 2015 AmLaw Daily article about Barry Ostrager taking the bench in New York. The article includes, however,… Continue Reading

An Essay for Doctors, But Useful for Anyone Trying to Understand More About Why Patients Join Walks for Cancer

Posted in Cancer, Policy Issues, Science
My personal view is that “fundraiser walks” for any disease serve the unfortunate role of letting government off the hook when it fails on its obligation to invest in research against cancer and the many other awful diseases. Cancer and other awful disease truly the greatest terrorists in the world, but cancer, for example,  receives… Continue Reading

Transparency, GM and the Intersections of Criminal Law and Product Liability

Posted in Litigation Industry, Mass Tort Issues, Policy Issues, Reputation Risk, Science, Transparency
Product liability and criminal penalties may soon come together for General Motors due to the ignition switch issues, according to a May 25, 2015  Wall Street Journal article. Risks continue to increase for companies that choose not to share information with regulators and others. Transparency may become a tool for defense.… Continue Reading

The Newest Rand Report Related to Asbestos: “Bankruptcy’s Effect on Product Identification in Asbestos Personal Injury Cases”

Posted in Asbestos, Asbestos Bankruptcy, Litigation Industry, Mass Tort Issues, Policy Issues
Rand’s latest is out. See below: Bankruptcy’s Effect on Product Identification in Asbestos Personal Injury Cases This report investigates whether bankruptcy reduces the likelihood that exposures to the asbestos-containing products of bankrupt parties will be identified in interrogatories and depositions. http://www.rand.org/pubs/research_reports/RR907.html… Continue Reading

Endocrine Disruption: “Plastics, tiny penises, and human evolution” ?

Posted in Litigation Industry, Mass Tort Issues, Policy Issues, Science
In the Graduate, Dustin Hoffman received one word of advice about the future: plastics. It may have been good advice for a recent graduate seeking work. Others, however, continue to raise questions about the effects of plastics for humans. See  Plastics, tiny penises, and human evolution. Over time, science will provide more answers to the… Continue Reading

“Genomics is Changing Causation Evidence in the Courtroom Forever”

Posted in Asbestos, Cancer, Epigenetics, Litigation Industry, Mass Tort Issues, Policy Issues, Science
For toxic tort lawyers, a new interview of Gary Marchant provides notable insight into the major changes ahead for the future of toxic tort litigation. Gary’s background is as a Kirkland trained lawyer with a PhD in genetics and a Master’s degree in public policy. Today, Gary thrives in and leads the way in the… Continue Reading

Cancer: “The Emperor of All Maladies” – Do Not Miss This Week’s 6 hour PBS Miniseries

Posted in Asbestos, Cancer, Litigation Industry, Mass Tort Issues, Policy Issues
“More will die from cancer over the next two years than died in combat in all the wars the United States has ever fought, combined.” In the US, more people die of cancer every 2 days than died in the terrorist attack of September 11, 2001. “For 2014, the American Cancer Society estimated 15,780 new cases… Continue Reading

Be Careful What You Wish For – The Latest Asbestos Example

Posted in Asbestos, Litigation Industry, Mass Tort Issues, Policy Issues
Be careful what you wish for remains an important maxim for lawyers, lobbyists and risk managers. The latest example arises as it appears the plaintiff’s bar in Illinois out hustled the defense lobbying groups, and achieved a repeal of the 10 year Illinois statute of repose for “premises” claims.  The state legislative record is available online at… Continue Reading

A New Study on the Race to the Bottom in Corporate Law – the “Lax Law” of Nevada is Attractive to “Aggressive” Companies Prone to Restatements

Posted in Policy Issues, Race to the Bottom
“Aggressive” companies prefer the “lax law” of Nevada. That’s the bottom line of a new paper on the race to the bottom in corporate law. The information arrives courtesy of an October 29, 2014 post at the CLS Blue Sky blog that links to a Harvard blog on corporate  governance.  Here’s the opening from the… Continue Reading

Political Donations and Asbestos Litigation – a 2014 Update on One Side of the Coin

Posted in Asbestos, Elected Judges, Litigation Industry
Years ago, Joe Rice very correctly said something to the effect of:  “Why would Congress ever end asbestos litigation. It’s the nation’s most consistently big fundraising and lobbying topic, ever.” For 2014, Legal Newsline provided an August 15, 2014  report on contributions from some asbestos plaintiff’s firms to politicians. The numbers are impressive and telling… Continue Reading

Scholarly Analysis of The Attributes of Delaware, and Other Outlier Jurisdictions, Including Tax Whore Jurisdictions

Posted in Corporate Social Responsibility, Good Faith & Fair Dealing, Litigation Industry, Policy Issues
When and how do a handful of states or nations take on outsized legal significance through legislation aimed at specific subjects? For example, jurisdictions with legislation focused on corporate law (Delaware) or legislation focused on outlier tax rates (tax whore nations and states, such as Bermuda, Ireland or Florida).  Do the outlier jurisdictions become dominant… Continue Reading