trial lawyers

Jerry Brown Is the Nation’s Worst State Attorney General

by Hans Bader on July 22, 2010 · 1 comment

in Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

California Attorney General Jerry Brown is the worst state attorney general in America, as I documented in a recent study.

But how was he worse than Connecticut’s Richard Blumenthal and Oklahoma’s Drew Edmondson, who likewise received failing grades across the board in CEI’s recent study? (Just like Jerry Brown, they all got an “F” in each of the four judging criteria — (1) ethical breaches and selective application of the law, (2) fabricating law, (3) usurping legislative powers and (4) predatory practices.)

Jerry Brown tops the list because of his repeated refusal to defend state laws.   Defending state laws is an attorney general’s most basic duty.   Yet Brown has repeatedly chosen to attack his own state’s laws, seeking to nullify the democratic process.  Had it been successful, one of Brown’s attacks would have undermined longstanding laws that his office is charged with defending or enforcing, like California’s bill of rights for crime victims.

One example of a law Brown refused to defend was a state constitutional amendment prohibiting gay marriage (but not civil unions) passed by voters as Proposition 8.  This constitutional provision was upheld by the state Supreme Court, which rejected Brown’s argument that it violated the state constitution.  I publicly opposed Proposition 8, but by definition, a state constitutional provision cannot violate the very constitution of which it is a part, and it was wrong for Brown to argue to the contrary.

Brown also refused to defend Proposition 209, a state constitutional amendment banning racial set-asides and racial preferences.  That constitutional provision was upheld by a federal appeals court in 1997, but a dozen years later, Brown refused to defend it, claiming that its ban on racial discrimination was itself discrimination in violation of the Constitution’s equal protection clause.  That’s a logical absurdity.

Even critics of these laws criticized Brown for abdicating his duty to defend them. As the Los Angeles Times noted, Brown’s decision to attack Proposition 8 “surprised many legal experts. The attorney general has a legal duty to uphold the state’s laws as long as there are reasonable grounds to do so.” And even critics of Proposition 8 admitted that it had plausible legal defenses.  As one civil libertarian put it, Brown “ripped up his job description” when he unilaterally decided not to defend Proposition 8 in court. Even some liberal law professors criticized Brown’s position.  Santa Clara University law professor Gerald Uelmen said that Brown’s argument “turns constitutional law on its head,” and that he was unaware of any case law that supported it.

Brown’s rationale for not defending Proposition 8 was also troubling, for different reasons.  Brown didn’t simply object to Prop. 8 on federal constitutional grounds (The Supreme Court and other courts have rejected challenges to state bans on gay marriage (Footnote 1).)

Instead, he made a far more radical claim: that Proposition 8, which was itself part of California’s constitution, violated that same constitution because it restricted a “fundamental right” recognized by the courts based on the state constitution. (Footnote 2)  The logic of Brown’s argument would call into question vital California laws that the Attorney General’s office is supposed to enforce, harming crime victims. For example, the state’s death penalty was struck down decades ago by the staunchly-liberal California Supreme Court, which claimed it violated the fundamental right to be free of “cruel or unusual punishment” under the state constitution. (Footnote 3) That decision was subsequently overruled by an amendment to the state constitution. (Footnote 4)  Under Brown’s argument, serial killers would escape the death penalty, because the amendment reinstating the death penalty would be invalid under his logic. (Never mind that the state attorney general’s office has the designated function of defending the death penalty against court challenges in capital cases. (Footnote 5)) The attorney general’s argument would also invalidate the state constitution’s bill of rights for crime victims, which was passed by voter initiatives in response to decisions by the California Supreme Court that were perceived as soft-on-crime. (Footnote 6)

Many bad court rulings, like the U.S. Supreme Court’s horrible 1857 Dred Scott decision, are based on mistaken notions of fundamental rights that the people later reject through Constitutional amendment. (That infamous decision claimed that slaveowners had a fundamental property right to their slaves that trumped contrary statutes. The Dred Scott decision was later abrogated in part by Constitutional amendment.) The constitutional amendment process is not only a quintessential exercise of democracy. It can also be a vital safeguard against government tyranny. Brown sought to undermine that safeguard.

Footnote 1: See Baker v. Nelson, 409 U.S. 810 (1972) (affirming the Minnesota Supreme Court’s ruling in Baker v. Nelson, 291 Minn. 310 (1971), which rejected a challenge to a state’s ban on gay marriage); see also Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cit. 2006).

Footnote 2: See Jessica Garrison and Maura Dolan, “Jerry Brown Asks California Supreme Court to Void Gay-Marriage Ban,” Los Angeles Times, December 20, 2008.

Footnote 3: See People v. Anderson, 493 P.2d 880, 6 Cal.3d 628 (Cal. 1972).

Footnote 4: See California Constitution, Article I, section 27

Footnote 5: See, e.g., Ayers v. Belmontes, 549 U.S. 7 (2006) (California attorney general’s office represented state in death penalty appeal); Brown v. Sanders, 546 U.S. 212 (2006) (same); Brown v. Payton, 544 U.S. 133 (2005) (same)

Footnote 6: See California Constitution, Article I, section 28 (promoting public safety in many ways, such as by limiting bail for dangerous defendants, broadening use of prior convictions as evidence against them, and limiting use of judicially-fashioned exclusionary rules in favor of defendants, all in response to state court rulings broadening defendants’ rights); Brosnahan v. Brown, 32 Cal.3d 236, 299, 314, 651 P.2d 274, 314, 18 Cal.Rptr. 30, 70 (Cal. 1982) (upholding “The Victims’ Bill of Rights,” whose section 2 repealed a broad state constitutional right to bail; “SEC. 2. Section 12 of Article I of the Constitution is repealed. Sec. 12. A person shall be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. A person may be released on his or her own recognizance in the court’s discretion.”). Chief Justice Rose Bird, who was appointed by then-Governor Jerry Brown, dissented from the ruling, in a hyperbolic dissent. Bird, who later defended O.J. Simpson and claimed his case was about racism, was subsequently removed from office by California voters in 1986. See Rose Elizabeth Bird, “The Jury Did Its Job: Put the Blame Where It Belongs,” Los Angeles Times, October 6, 1995, at B9 (alleging racism in reaction to O.J.’s acquittal); John Marelius, “Rivals Are Lining Up to Run State in ’11,” San Diego Union Tribune, Feb. 15, 2009 (“Brown was roundly criticized for naming an inexperienced chief justice, Rose Bird, who ultimately was removed from office by voters”) (http://www3.signonsandiego.com/stories/2009/feb/15/1n15gov224926-rivals-are-lining-now-run-state-11/)

The Nation’s Worst State Attorneys General

by Hans Bader on July 22, 2010

in Deregulate to Stimulate, Economy, Energy, Environment, Insurance, Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

The nation’s worst state attorneys general abuse the power of their office for political ends, undermining the rule of law.  In recent years, many state attorneys general have “increasingly usurped the roles of state legislatures and Congress by using lawsuits to impose interstate and national regulations and extract money from out-of-state defendants who have little voice in a state’s political processes,” as I explain in a recent study, The Nation’s Worst State Attorneys General.

Six state attorneys general comprise the worst-in-the-nation list:

  1. Jerry Brown, California
  2. Richard Blumenthal, Connecticut
  3. Drew Edmondson, Oklahoma
  4. Patrick Lynch, Rhode Island
  5. Darrell McGraw, West Virginia
  6. William Sorrell, Vermont

California’s Jerry Brown tops the list, for repeatedly refusing to defend state laws he disliked.  One example was Proposition 8, a state constitutional amendment prohibiting gay marriage (but not civil unions).  This constitutional provision was upheld by the state Supreme Court, which rejected Brown’s argument that it violated the state constitution.  I personally opposed Prop. 8, but it’s clear, by definition, that a provision of the state constitution cannot violate the very constitution of which it is a part; and it’s the most basic duty of an attorney general to defend state laws, whether or not he likes them.  Another example was Prop. 209, a state constitutional amendment banning racial set-asides and racial preferences.  This constitutional provision was upheld by a federal appeals court in 1997, but a dozen years later, Brown refused to defend it, claiming its ban on discrimination violated the Constitution’s equal protection clause.

Connecticut’s Richard Blumenthal scored 2nd worst on the list.  In CEI’s previous ratings, released in 2007, Blumenthal occupied the #1 worst spot.  Blumenthal hasn’t gotten any better since then,  but competition for worst AG has gotten fiercer.

Blumenthal, who has used the power of his office to spread largesse to cronies, continues to earn low grades for his ringleader role in the Tobacco Settlement racket of 1998, which he used to steer millions of dollars to his cronies, as well as for his support of racial quotas and speech restrictions, his attack on private property rights, and various other egregious acts.

The study uses several criteria for determining who made the list of shame: ethical breaches and selective applications of the law; fabricating law, usurping legislative powers; and predatory practices (such as seeking to regulate out-of-state businesses that broke no state law).

Class Action Lawyers Ripped Off Their Clients, With Approval From Federal Judge

by Hans Bader on April 26, 2010

in Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

Class-action lawsuits all too often benefit only the lawyers, not the allegedly victimized consumers they claim to represent.  The Center for Class Action Fairness takes aim at such abuses.

Today, it filed a brief with the Ninth Circuit Court of Appeals “appealing a district court’s controversial approval of a class action settlement where attorneys recovered a $850,000 fee for themselves despite failing to provide any benefit to the class.” The lawsuit, “In re Bluetooth Product Liability Litigation, No. 07-ML-1822, alleged that three manufacturers of Bluetooth headsets for cell phones committed consumer fraud because consumers might not be aware that extensive use of headsets at high volume could cause hearing loss. Before the district court could rule on a pending motion to dismiss, the parties settled, with $100,000 going to charity, minor changes to defendants manuals and websites, and $850,000 to the attorneys — an 850% contingency fee. The purportedly injured class members received nothing.” Despite objections, “the district court approved the settlement and the entirety of the fees.”

In short, the lawyers ripped off their clients, with the trial judge’s blessing.

Earlier, I wrote in the Washington Post about how class-action lawsuit “settlements intended to benefit consumers get paid instead to groups that lobby for affirmative action, hate-crimes laws, undocumented immigrants, and public funding for abortions.”  (See Hans Bader, “Not Their Money to Give Away,” Washington Post, December 22, 2007, at A16).

The Washington Post similarly lamented how federal judges use such settlements for purposes unrelated to the underlying lawsuit, giving the money to “religious organizations,” “law schools,” and other organizations that “hire lobbyists” to influence judges  (See Editorial, “When Judges Get Generous,” Washington Post, December 17, 2007, at A20).

The practice seems to be even worse in state court than federal court.  As I noted in 2007, “In California state court, leftover money from a consumer class action settlement is commonly given not to consumer groups, but to groups that have nothing to do with consumers, like the left-wing La Raza Legal Center; the politically correct Employment Law Center of the San Francisco Legal Aid Society (which seeks to curb employers’ First Amendment rights); the ever-litigious Lawyers’ Committee; and groups that specialize in advocating affirmative action, broader definitions of ‘hate crimes’ (at the expense of civil liberties), or expanded access to welfare programs for illegal aliens. This ripoff of consumers is magnified as a result of practices like ‘fluid recovery.’”

Health-Care “Reform” Bills Increase Costs, Endanger Access for Millions, Federal Experts Say

by Hans Bader on November 15, 2009 · 1 comment

in Health and Illness, Healthcare, Insurance, Legal, Nanny State, Personal Liberty, Regulation

The healthcare “reform” bill backed by Obama “would reduce senior care,” and “could jeopardize access to care for millions,” report healthcare experts at the federal Centers for Medicare and Medicaid Services. The bill also “increases medical costs” through inflation, increasing health-care costs to 21.1 percent of GDP by 2019.

The House of Representatives recently passed the bill by a vote of 220 to 215.

According to the federal experts, the bill would likely either cost much more than projected, or result in some “hospitals and nursing homes” deciding to ”stop taking Medicare altogether,” notes the Washington Post.

The bill will increase taxes to “European levels of taxation,” while failing to provide European-style universal coverage.  It will vastly increase the costs of our health care system, rather than reducing it to European levels.   It reinforces foolish restrictions on national competition in health insurance, which do not exist in Europe.

Doctors afraid of being wrongly sued for malpractice despite providing good quality care order unnecessary tests (or defensive medicine), which wastes at least $200 billion annually. That’s nearly as much money as France spends on health-care for all its citizens.  The bill does nothing to reduce such costs, ignoring lessons from Europe.  (Many European countries have specialized health courts, rather than American-style jury trials, to cut lawyers’ bills, speedily compensate the injured, and prevent American-style baseless lawsuits against doctors.)

In European countries like France, doctors don’t need to be paid as much, because competing professions, like lawyers, are paid less.  European law is generally much more conservative than American law when it comes to lawsuits, including lawsuits against doctors.  Punitive damages are generally forbidden, and lawsuits are discouraged by making unsuccessful plaintiffs pay the other side’s legal bills.

The health-care bills backed by Obama also contain lots of waste and subsidies for politically-correct things like “cultural competency,” while cutting spending on crucial things like anesthesia.

Obama’s proposals contain provisions that he falsely claims will cut costs, but which actually exploded costs when tried by state governments.

Unemployment Skyrockets: “U.S. now beating European unemployment rates”

by Hans Bader on November 10, 2009 · 15 comments

in Deregulate to Stimulate, Economy, Employment, Energy, Environment, Global Warming, Healthcare, Insurance, International, Legal, Personal Liberty, Politics as Usual, Regulation, Stimulus to Nowhere

Unemployment is now higher in the U.S. than in Europe,  reports the Washington Post.  “The official U.S. unemployment rate, reported last Friday, now stands at 10.2 percent,” compared to “9.7 percent” in Europe.   This is the highest rate in more than 26 years, and marks a huge change from the recent past, in which unemployment was double the American rate in much of Europe, such as in France.

Unemployment is at 10 percent in France, which refused to adopt a U.S.-style stimulus package, and only 7.6 percent in Germany, which adopted a stimulus package that was smaller relative to its economy than ours was.  (Countries that refused to adopt big stimulus packages have fared better than those that imitated President Obama. And the biggest-spending countries have suffered worst in the recession.)

A “broader measure of U.S. unemployment,” including discouraged workers, puts U.S. unemployment at 17.5 percent, reports the New York Times.

As the Post notes, “For many on the left, the lament for years has been: Why can’t America be more like Europe? Why can’t rustic Americans be more like sophisticated Europeans? The sentiment has resurfaced in recent months as the health-care debate has raged on — why can’t the American health-care system be more like Europe’s?”

Well, America is now more like Europe when it comes to unemployment.  But not when it comes to social benefits and protections.  The American Left knows how to import Europe’s failures, but not its successes.

The massive health-care bill passed by the House on Saturday is a classic example.  It would expand health care coverage somewhat, but not to European levels, and it would vastly increase the costs of our health care system, rather than reducing it to European levels.   It would also increase taxes to “European levels of taxation.”  The health care bill contains politically-correct provisions that Europeans would never put up with, like pork for trial lawyers and racial preferences.  And restrictions on national competition in health insurance, which do not exist in Europe.

In France, doctors don’t need to be paid as much, because competing professions, like lawyers, are paid less.  French law is much more conservative than American law when it comes to lawsuits, including lawsuits against doctors.  There are NO punitive damages, and France discourages lawsuits by making unsuccessful plaintiffs pay the other side’s legal bills.  (Other European countries have specialized health courts, rather than American-style jury trials, to cut lawyers’ bills, speedily compensate the injured, and prevent American-style baseless lawsuits against doctors.)  There are no racial preferences — even my Marxist father-in-law, a French trade unionist who likes Michael Moore’s book Stupid White Men, thinks that racial preferences are evil.  French people do not let political correctness shackle their minds the way American leftists do.

Europe is not as far to the left of America as people think, and America’s business climate is already not much more favorable than Europe’s.  For every three ways in which Europe is more socialistic than America, there are two ways in which it is less socialistic than America.  The Obama administration is getting rid of our advantages, but not our disadvantages.

American tort law and family law are much more burdensome, anti-business, and bent on redistribution of wealth, than Europe’s.

Confronted with the specter of new burdens under the health-care bills and global-warming bills backed by the Obama administration, many businesses with the money to do so are afraid to hire people and create jobs lest they be stuck with a large tab for things like health care benefits for newly-hired, less-skilled employees.

The Congressional Budget Office has repeatedly admitted that Obama’s stimulus package will shrink the economy “in the long run.”  It contained welfare and repealed welfare reform.  Unemployment is higher now than if Congress had voted it down.

An Explosion of Litigation

by Hans Bader on March 13, 2009 · 1 comment

in Bailout Watch, Economy, Employment, Healthcare, Labor, Legal, Politics as Usual, Precaution & Risk, Privacy, Regulation, Stimulus to Nowhere

Already burdened by $8 trillion in new federal spending commitments and the likelihood of higher taxes to pay for bailouts, pork, and welfare, the economy now faces an additional threat: an explosion of litigation.

Even liberal Washington Post columnist Michael Kinsley can’t stand the Supreme Court’s liberal 6-to-3 ruling in Wyeth v. Levine, which let a patient sue an innocent drug maker for an injury caused by a physician’s assistant who disregarded repeated warnings by the drug maker. (The ruling indirectly “will cost lives“). As Kinsley notes,

“Diana Levine, a professional guitarist, showed up at the hospital for the second time in one day complaining of . . . hours-long spasms of ‘retching’ and ‘vomiting.’ She was injected with an anti-nausea drug called Phenergan. The label on Phenergan says six times, in different ways, some of them in boldface capital letters, that if Phenergan gets into the arteries, the result can be disastrous. Nevertheless, a physician’s assistant used the wrong method of injection, and Levine’s arm turned gangrenous and ultimately had to be amputated.”

“The drug company Wyeth has sold Phenergan, with Food and Drug Administration approval, since 1955. The official question in Wyeth v. Levine, decided last week by the Supreme Court (the quotes above are from Justice Samuel Alito’s dissent), was whether that federal government approval “pre-empts” a Vermont jury ruling in favor of Levine. The court said no. A more interesting question is: How did we end up with such a crazy system for making important decisions? . . .”

“What happened to Diana Levine is a tragedy and a scandal. But what did Wyeth do wrong? Is there any way the company could have stayed out of trouble? It’s unlikely. Phenergan has been legal for half a century. (If you Google the word “Phenergan,” the results include pages containing an ad for Phenergan online.) So if you can’t get them for the product itself, you nail them for a “failure to warn.” The basic fiction at the heart of the whole system of regulation by lawsuits is that people read and act on warning labels. But the FDA approved Wyeth’s original warning label and every change since. “Not good enough,” said a Vermont jury, and, incredibly, a majority of the Supreme Court agreed.”

The arbitrary litigation fueled by this decision will cost lives over the long run by discouraging medical innovation, notes Gordon Crovitz in the Wall Street Journal. Jim Copland and Paul Howard call the counterproductive Wyeth decision “a ‘cure’ worse than gangrene.”

Ted Frank calls the Wyeth decision the most anti-business decision in more than 40 years. Yet, amazingly, the liberal New York Times, which wants even more lawsuits, accused the Supreme Court of “reflexive deference to corporations“!!!

Greg Conko observes that the jury’s decision was baseless and undermined the FDA’s labeling process. “The physician’s assistant injected Phenergan into Ms. Levine’s artery, in direct contravention of six label warnings against arterial injection. More or sterner warnings against arterial injection would not have prevented Ms. Levine’s injury.” “FDA made a regulatory decision that the benefits of IV injection outweighed the risks, and the agency permitted the product to be labeled accordingly. . . letting a Vermont jury penalize Wyeth for not ruling out IV injection on Phenergan’s label is tantamount to letting a group of laymen over-rule FDA’s expert opinion regarding safety.” Yale Law School’s Peter Schuck similarly criticizes the Supreme Court’s decision.

Don’t expect any help from Congress. Incredibly, it is moving to abolish what little limits there currently are on state court lawsuits that undermine federal drug-labeling requirements. The day after the Wyeth decision, trial lawyer allies like Rep. Henry Waxman (D-Cal.) proposed legislation to completely abolish any preemption of such lawsuits, even in the exceedingly narrow circumstances where the Supreme Court admits preemption is appropriate.

Drug and device lawyers explain the Wyeth decision as being partly the judiciary’s reaction to the 2008 election, when liberal politicians friendly to lawsuits, and hostile to (often mythical) “deregulation,” made big gains. As the humorist Finley Peter Dunne noted a century ago, the Supreme Court reads election returns.

Workplace lawsuits also will rise. A costly comparable-worth bill backed by the Administration, the Paycheck Fairness Act, passed the House earlier this year on a largely party-line vote. And a law that largely eliminates the statute of limitations in pay-discrimination cases, the Lilly Ledbetter Fair Pay Act, was signed by Obama in January. Obama made false claims about the Supreme Court decision the Ledbetter law overturned (and the facts of that case), and broke campaign promises he made by signing it into law without the opportunity for public comment.

Obama also backs the so-called Civil Rights Restoration Act, which would radically rewrite federal discrimination law in several ways, such as scrapping limits on punitive damages (and allowing them in situations never before permitted by any federal court), and making schools liable for many more instances of “peer harassment” by students (increasing the pressure on colleges to adopt speech codes).

Other “radical employment law changes will create lots of work for attorneys,” according to the National Law Journal.

The economy-shrinking stimulus package Obama signed also contains multiple provisions creating new grounds for lawsuits. It contains increased damages and state attorney-general rights to sue under the burdensome and expensive HIPAA law, which contributed to the Virginia Tech shootings, has impeded public safety, and causes billions of dollars in losses due to pointless red tape. The stimulus package also contains vague and expansive whistleblower provisions allowing suits over actual or perceived wrongdoing.

The Administration also shows no interest in tempering the excesses of a law Obama supported, the Consumer Product Safety Improvements Act, which has shut down thrift stores and entire industries, and gives state attorney generals and their trial lawyer allies broad new powers to bring lawsuits over toys, clothes, and books, resulting in children’s books being thrown out and pulled from library shelves by the thousands.