• comment on a post The Fallacy of Tort Reform over 7 years ago

    Excellent post.

    If you're interested in further debunking the tort "reform" movement visit. www.tortdeform.com

  • comment on a post Obama's Habeas Corpus "A" over 7 years ago

    I'm getting in on this thread late, but will just add a few points.

    I think Obama is a great candidate for President for a lot of reasons. He just made a bad decision on this particular bill.

    If I were some sort of civil justice crazed lunatic who didn't believe in human rights and bought the Bush terror agenda - I would say, you think it's more important to give people who tried to kill Americans a right to access the courts than to allow American right here at home to hold corporations and people accountable who physically or financially injure or ruin them through the class action mechanism?

    But that point of view is merit less.

    Both restoration of habeas corpus for detainees and consumer protections through the class action mechanism are important issues.

    Both should be supported. One may categorize one as more important than the other, and that may be valid, but somebody who wants to be an excellent representative should do right by both of these issues - it's a false and unnecessary choice to just do right by one.

    Indeed, although is seems like an issue of criminal law, habeas corpus is technically a civil proceeding - and thus related to the idea of civil justice.

    Although I made a satirical statement above, there is a bit of truth to the approach, albeit inclusive instead of exclusive.

    If we support access to the courts for review of their detention for alleged acts of attacking the United States or its personnel, we should support access to the courts for those within the US injured by corporate misconduct through a class action.

    If we support access to the courts for those within the us injured by corporate misconduct through a class action, we should support access to the courts for review of their detention for alleged acts of attacking the United States or its personnel.

    The shared value is access to justice, and it's an important value.

    I very much respect Obama's stance on habeas corpus, politically it's a hard one to take, and it shows he has incredibly great values.

    It's just that in this particular case, he didn't apply the value broadly enough.

  • comment on a post Obama's Civil Justice Related "C" over 7 years ago

    Hey there.... here is some more information.

    Judge for yourself.

    On a personal level I think that Obama is a truly excellent candidate for President for a lot of reasons.

    That doesn't change the fact that he simply made a bad decision on this particular bill.

    Here's an overview of the bill from Public Citizen, the leading consumer advocate organization in the country.

    http://www.citizen.org/documents/Text%20 of%20S%205.pdf

    In its conclusion the overview states in part that  

    "The Class Action Fairness Act marks the first major success of the Bush Administration's
    efforts to enact pro-defendant civil justice legislation. Although the Act's provisions
    concerning the fairness of class action settlements seem likely to have but limited
    effect on the substance of class action settlements, its jurisdictional and removal provisions will substantially change class action practice in the United States."

    Here is a letter from several Attorneys' General (including NY Governor Elect Eliot Spitzer)
    opposing the bill...and noting the opposition of several other consumer and civil rights groups.

    http://www.citizen.org/documents/Spitzer _Letter.pdf

  • Hi,

    Great points. I agree that arbitration CAN be done well and differently, it's just not happening right now.

    The fact of the matter is that a different kind of arbitration could be great in some cases, but now it is simply used as a means of bankrupting, intimidating, and striping the rights of Americans in the hopes that they will just give up their case and go home.

    http://www.tortdeform.com/movabletype/mt -search.cgi?Include
    Blogs=1&search=mandatory+arbitration +

  • Hi,

    Great discussion.

    I'm not really sure that you can  say that arbitration is less expensive than normal court costs. I could be wrong but arbitration fees appear to be much larger than normal court fees.

    However, more importantly arbitration fees must be paid upfront. Normal court fees are just not as high, an when a lawyer takes a case on a contingency basis, the plaintiff may pay nothing upfront to get their claim heard.

    Can you explain why you believe arbitration is cheaper?

    Like has been said, arbitration could be a great thing in some cases, but the framework is plays out in now is smply unfair.

  • Hi Steve, I think that there are ways arbitration could meet the goals that are usually ascribed to it, but I think that the current arbitration process rarely succeeds in doing so. As the above post describes plaintiffs are at a horrible disadvantage in this process. As the above post describes the process can be prohibitively expensive. Moreover, in addition to being forced to pay for your forum plaintiffs also must often still incur the additional cost of an attorney and litigation. Attorneys in some types of cases may simply take a contingency fee (as they would outside of arbitration) but the costs of having to also pay for the forum increases the financial difficulties of the process.

    Finally, many companies are attempting to preclude class actions through their mandatory arbitration provisions. The result is that in many cases where a company financially or physically harms a large group of people, but in ways that will not create large amounts of compensatory relief, there is no remedy.

  • Congressman Nadler also sponsored a bill in the House that I do not believe has been voted on yet.

    It accomplishes the same goal.

    http://www.house.gov/apps/list/press/ny0 8_nadler/911CompHealthBeneAct090706.html

    The 9/11 Comprehensive Health Benefits Act would provide medical treatment and health care for those who need it and channel much needed federal resources and coordination to the institutions and programs that have been on the frontlines in this crisis. The bill has two major components:

    It would extend Medicare benefits to individuals with adverse health or mental health conditions associated with exposure to the terrorist attacks - including first responders, rescue and recovery personnel, those accidentally caught in the cloud, as well as those who have resided, gone to school, or have been employed in a building that was exposed to hazardous substances, pollutants, or contaminants from the collapse of the World Trade Center - and cover their 9/11 health-related illnesses. All costs for such illnesses, including premiums, deductibles, and co-pays would be covered. For those with private insurance, Medicare would provide supplemental coverage for these 9/11-related conditions to ensure complete care.

    2. It would establish a consortium of institutions, practitioners, and community-based organizations that would comprise the Federal government's primary mechanism for screening, monitoring, testing and research for 9/11 health conditions. As part of establishing the consortium, the federal government would also be responsible for setting up a state-of-the-art clinical facility in Lower Manhattan focused on 9/11 health.

  • oh sorry. my bad

  • Similar problem is that corporations can chose the arbitration companies. as a reuslt, if they trend awayfrom the corporation towards the consumer, they may be dropped. This happened when one fo the companies said they supported the use of class action arbitrations.


  • Great.... also let me know if any access to justice issues come across your desk.


  • Hi thanks for your comment,

    I think that everybody should ALWAYS report any inappropriate sexual comments to them. Just the action of reporting it might serve as a catalyst for it to stop (it may make the aggressor more hostile - but the flip side is that if this makes them retaliate they are easier to bust.)

    The purpose of my post was to draw additional attention to the problem that the law (as interpreted by most judges as opposed to necessarily its plain textual meaning) does not really protect women from behavior that is very horrible.

    I don't think that we disagree. In my post I state that sexual harassment IS illegal under the FHA. The problem is that if there is no retaliation under 3617, or if the harassment cannot be proven to be quid pro quo - i.e. the landlord takes some specific action because there offer is denied, you can only rely on a hostile environment claim - and this claim is very hard to make anbd allows a lot of really horrible conduct before kicking in.

    YES, there is increasing movement to use 3604(c) - we need to support it - but it is a claim that that has not been made a lot by advocates (not the court's fault), and has as of 2002, never been upheld as an independent basis for relief with its own unique standards separate from another provision of 3604 (the court's fault). Perhaps since 2002 some courts have, but is not widespread - we NEED to make it more so but it's not being made right now. There is comprehensive law review on the lack of use of 3604(c),

    Robert G. Schwemm & Rigel C. Oliveri, A New Look at Sexual Harassment Under the Fair Housing Act: The Forgotten Role of Section 3604(c) 2002 Wisc. L. Rev. 771 (2002)

    and why exactly as you argue, it SHOULD be interpreted to prohibit this conduct - your point is great - and in my post I forgot to advocate that judges take just that route. If you have found any cases that solely rely on 3604(c) without also finding under another 3604 provision and using this standards please send it my way... maybe a judge read the article...and changed there ways in the last couple of years.

    So judges read

    Robert G. Schwemm & Rigel C. Oliveri, A New Look at Sexual Harassment Under the Fair Housing Act: The Forgotten Role of Section 3604(c) 2002 Wisc. L. Rev. 771 (2002)

    And get with the program.

    Sorry that this comment is super technical...............


  • Hi could you talk  ore about this issue?

  • Thanks for your response to my post.

    I think that your response ignores a few of the court's findings that speak to the company's role in misleading the public as to the health risks:

    1.    Nicotine in cigarettes is addictive.

    2.    The defendants concealed or omitted material information not otherwise.
    known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.

    3.    All of the defendants agreed to misrepresent information relating to the health effects of cigarettes or the addictive nature of cigarettes with the intention that smokers and the public would rely on this information to their detriment.

    4.    The defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.

    The question is not necessarily whether or not smoking is or is not bad for you. The company's liability in large part comes from misrepresenting that it is not bad for you and/or HOW bad it actually is.

    I think it is great that you after 17 years that you were able to quit, but every person may be more or less predisposed to become addicted to nicotine. Frankly, one response to your personal claim is that isn't it possible that you KEPT smoking for 17 years because you WERE so strongly addicted?

    Do you think that you would feel differently if you developed one of the diseases or the symptoms of the diseases the court found are caused by cigarettes? It's of course hard to say before you actually personally got sick whether or not you mind have a different view if your health was implicated.

    Cyrus Dugger
    Senior Fellow in Civil Justice
    Drum Major Institute for Public Policy

  • Hi,

    Thank you for your response.

    I am struggling to see how your challenge remains. The larger purpose of the post was to look at an example championed by the tort reform movement (I prefer to call it the anti-civil justice movement) and to show how it was contorted by said movement. There is, like it or not, a coordinated effort supported by the current president to curtail our access to civil justice. The post gave an example of the efforts of said movement.

    As stated in previous comments on this post, the best overview of this movement is offered by

    William Haltom and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis (University of Chicago Press 2004)

    I hope that I am not a credit the the ATLA, or a credit to any particular interest group, but instead credit to a truthful and honest dissection of the issues (so i don't take association with any group - aside from the Drum Major Instiute and a few others- as a compliment).

    There are legal standards for frivolous lawsuits just like there are standards for malpractice. One might say that both standards should be easier to meet, but this is an issue of adjusting the standard, not its existence or non-existence as you imply.

    Indeed, despite passing a bill aimed at getting more class actions thrown out by moving them to federal courts, Congress still chose not to change the standard for what constituted a "frivolous" class action. One may argue that federal judges will better apply said standard, but the point is that Congress was satisfied, at least in principle, with the current standard.

    Democrats should defend our right to access our courts to the fullest extent possible. It often the most disadvantaged groups (as I will describe in a future post) that are in most need of judicial and administrative remedies.

    I assume that Democrats, more than Republicans, represent and support said vulnerable groups.

    Moreover, as chronicled online today, corporate misconduct is incredibly high.

    A recent survey found that 74% of 4000 of employees surveyed said that they had observed misconduct in the previous year. at http://www.canadianunderwriter.ca/issues /ISArticle.asp?id=57875&issue=070520 06.

    If their misconduct is high, and the government isn't doing anything about it, what other mechanism is there for keeping them in check besides lawsuits?

  • I think that you make some great points. Even when litigants win in the civil justice system they can never be made entirely whole again. In fact, they have to go through the horrible series of hurdles that you mention, and sometimes never even get anything even when they (at least arguably) should have.


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