Posted 6:53 PM by David Bernstein
The Times reports on Lawsuits against the drug industry:


In addition, the plaintiffs' bar has refined a technique in drug lawsuits that it has used effectively against many asbestos companies. Lawyers file a few cases with very sick plaintiffs in states and counties considered favorable to plaintiffs, while building big "inventories" of less seriously ill patients, or so-called pill-taker cases, even people who have used the drug but are not sick.
If the lawyers can win large verdicts in the early cases, they then refuse to settle the claims of their other very sick clients unless the defendants also agree to pay the claims of people who are less sick. Under those circumstances, the companies face a difficult choice. If they go to trial in a case that includes a few seriously injured plaintiffs and hundreds more who are less affected, they risk losing hundreds of millions of dollars in a single case, frightening Wall Street and spurring more suits. But if they settle cases without a trial, they run the risk of being perceived as an easy mark for lawyers.


Hmm. Trial lawyers are filing lawsuits in "magic" jurisdictions and then using victories in front of bought and paid for local judges (I still can't believe that judges are not required to recuse themselves in cases brought by attorneys who contribute to their campaigns) to coerce the industry into paying billions of dollars to people who aren't, and won't become, sick (much less who are able to trace injuries to any malfeasance by the defendant drug companies). If this was any other industry but the legal profession, the perpetrators of this scam would at best be moral outcasts, and perhaps be facing jail. Instead, bar membership confers an undeserved immunity on these scoundrels, who also happen to be the most important financiers of the Democratic Party (especially important right now, because the party is concerned that some its important Jewish backers may support President Bush in 2004). Not to mention the utter stupidity, almost beyond belief, of letting lay jurors decide complex cases involving scientific evidence, despite their demonstrated inability (e.g., in the Bendectin and breast implant litigation) to separate the scientific wheat from the junk science chaff. Among other things, class action reform, and the spread of the Daubert/Kumo/Joiner reliability test for scientific evidence to the states (as discussed here), are long overdue.

Posted 7:36 AM by David Bernstein
Arturo Moreno has bought the California Angels. Not especially interesting in and of itself, but here's a notable outtake from the New York Times story on the sale:

Both [baseball commisssioner] Selig and Moreno played down the fact that Moreno is the first Hispanic, or even member of a minority group, to buy controlling interest in a Major League Baseball team. There's even some question whether Moreno can be considered a minority-group member. He is of Mexican descent, but as he said: "I'm fourth-generation American. First thing is I'm an American'' He was born and raised in Tucson and has homes in Phoenix and Southern California. "I'm proud of being a Mexican-American, but as far as being a first minority," he added, he didn't place any significance on that. "I think we're all Americans. Most of us are immigrants from someplace, and I think we always try to do our best being an American."

Sentiments not heard in the major media very often these days. (BTW, despite his wealth and his being a fourth generation American, Moreno would certainly qualify as a "minority" under every affirmative action program that I am aware of, and there is no question that he is a "minority group member," given that Mexican-Americans are both statistically and legally a "minority," and he "proudly" identifies himself with that group).

Posted 7:22 AM by David Bernstein
In the ridiculous lawsuit department, Judicial Watch has filed a complaint claiming that the Senate Democrats fillibustering of Bush's judicial nominees is unconstitutional. One can make a plausible argument that it is unconstitutional (as beyond the advise and consent power), but not a plausible argument that it is justiciable. Similarly, even if race preferences by government are unconstitutional, it would not be justiciable to sue the President for using such preferences while going out of his way to appoint a "diverse" group to the federal bench. Members of the Executive and Legislative branches of government take an oath to uphold the Constitution, and for some issues the public has to rely on their consciences, such as they are. In any event, there is an obvious nonjudicial solution to the fillibustering of judicial (and other presidential) nominees: by majority vote, the Senate can eliminate fillibusters for such nominees. The Republicans don't really want to do this, however, because they want to save that power for nominees of, say, President Hillary Rodham Clinton.

Unfortunately, Judicial Watch makes a habit of filing dubious (but publicity-getting) lawsuits, and receives much less criticism in conservative circles for this than it should (maybe for fear of being sued?, the blogger said, tongue only mostly in cheek).

Posted 8:57 AM by David Bernstein
Oreo lawsuit update: Having received the publicity he wanted, the lawyer who was suing to ban the sale of Oreos has dropped his case. As Tim Sandefur notes, using the courts primarily for p.r. purposes arguably violate rules of professional ethics; it certainly violates the public trust to file a lawsuit suggesting that you think you have a proper legal claim, then immediately drop it because you really don't but just wanted publicity. Maybe the court shouldn't let the lawyer withdraw his complaint, but make it face California's version of a Rule 11 hearing.

On a more general note, I've noticed that no matter how ridiculous an idea someone has, they can get tremendous publicity for it by filing a lawsuit (and hiriing a p.r. person to flack the lawsuit). On the other hand, some people have great ideas, and get no attention for them, and then file a lawsuit and are inundated with attention. The Institute for Justice, for example, rarely gets much attention for its various pro-liberty crusades until it files a lawsuit, and which time the publicity often comes flooding in. I don't know what bizarre quirk in American culture makes it so legal-centric, but I know it's not healthy.

Not only do all public issues in the United States eventually wind up in the courts, but many issues become public issues to begin with via lawsuits. For example, how many stories were there between say, 1991 and 2001 about a link between fast food and childhood obesity, compared to how many followed the filing of what I consider the ridiculous lawsuit against McDonald's on behalf of obese children in 2002? I'll give you some crude statistics. A Westlaw search on the Allnews database for CHILD! /P OBESITY /P "FAST FOOD" reveals 335 stories for 2002, compared to 246 stories for the entire preceding decade!

Update: Perhaps the problem is that folks in the media don't realize how easy it is to file a lawsuit in the United States. Literally, anyone can sue about anything, with only a remote possibiilty of any negative consequences to the plaintiff no matter how absurd the lawsuit. Do reporters know that the mere filing of a lawsuit not only doesn't mean that a court has found that the lawsuit has any merit, but it doesn't necessarily even mean that the person filing the lawsuit thinks it has any merit? And if reporters do realize this, why do they breathlessly report on silly lawsuits?

Posted 1:48 PM by David Bernstein
Harry Potter at a discount: Cheapest price I've seen on the forthcoming Harry Potter book, "Harry Potter and the Order of the Phoenix"(presented as a public service, I'm not getting a comission on this).
Update: The price is still good, but it's been raised from $13.99 to 16.99, plus a low shipping charge.

Posted 1:28 PM by David Bernstein
Duct Tape doesn't kill people, people kill people. Via Best of the Web.

Posted 12:18 PM by David Bernstein
Over at the Volokh Conspiracy, Eugene is blogging about UCLA's proposed speech code, which, as he argues, is clearly unconstitutional. This would not be the first time UCLA has tried to stifle unpopular speech. From my forthcoming You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws:

UCLA suspended an editor of the student newspaper for running an editorial cartoon ridiculing affirmative action preferences. In the cartoon, a student asks a rooster on campus how it got into UCLA. The rooster responds, "affirmative action." [Nor was that the end of the story.] After the editor was sanctioned by UCLA, student editor James Taranto reproduced the cartoon in the California State University, Northridge student newspaper and criticized UCLA officials for suspending the paper's editor for engaging in constitutionally protected expression. Northridge officials suspended Taranto from his editorial position for two weeks for publishing controversial material "without permission." However, when Taranto threatened a lawsuit, the school removed the suspension from his transcript. Taranto continued to pursue a career in journalism and currently edits Best of the Web on Opinionjournal.com.

UCLA, meanwhile, seems to want to invite more such lawsuits.

Posted 10:15 AM by David Bernstein
Jayson Blair and Saddam Hussein: A match made in reality-challenged heaven.

Posted 9:23 PM by David Bernstein
The last thing affirmative action supporters (including me, sometimes; I'll save that discussion for some other time) needed when the Supreme Court is about to decide the fate of affirmative action in higher education is the Jayson Blair fiasco, which many (e.g., Mickey Kaus) are blaming on the Times' "diversity" policies. Think of it this way: if a past recipient of a minorities-only science program had just won the Nobel Prize in Physics, that would likely help the pro-AA side before the Court (or at least the swing Justices), no? Current events in theory should not matter to Supreme Court decisions, and I'd hate to think that such an important decision would be affected by the actions of one individual. But I wouldn't be surprised, either. The Justices are only human, and human cognition being as limited as it is, it takes a conscious effort to not generalize from individual cases. The New Republic, meanwhile, helpfully distinguishes between affirmative action and "the fetishization of diversity."

Posted 7:57 PM by David Bernstein
A used book service listed on Amazon is selling a "collectible" edition of my book, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. The reason the book is "collectible" is apparently because it's the first printing. I have news for the seller: there is only one printing, and unless sales pick up (anyone with a huge American history class want to assign the book?) that's all there is likely to be. At least the "collectible" edition is selling for 35% or so off retail.

Posted 3:54 PM by David Bernstein
Hapsburg Update: Reader James M. Guinivan points me to a N.Y. Times article that suggests there is more to the Hapsburg story than meets the eye.
According to the Times, "There is little doubt that the Hapsburgs lost their property because they opposed the Nazis. Otto von Hapsburg spoke out in Austria against Hitler and warned of dire consequences for Austria in the event of Anschluss, the incorporation of Austria into Germany." And "Three of Otto's cousins enlisted in the United States Army and fought against the Nazis in World War II. A fourth cousin, Robert von Hapsburg, flew with the Royal Air Force against the German Luftwaffe during the Battle of Britain, in 1940. In exile in France, Otto and Carl-Ludwig von Hapsburg helped persuade a diplomat from neutral Portugal to issue visas to thousands of Jews fleeing the Nazi advance, also in 1940." The property was "given" to the Hapsburgs by the Austrian government when they were forced to abdicate, but (and correct me if I'm wrong here) the property was assumedly part of what they had acquired as rulers of Austria-Hungary. Now, I know that the Hapsburgs, as monarchs go, weren't anywher near the worst of the lot, and presided over a relatively tolerant multicultural empire. And members of the family who opposed Hitler and helped Jews definitely deserve gratitude, kudos, perhaps even a reward from the Austrian government. But I'm not sure I'm convinced that former monarchs can ever have a claim to the fruits of their rule. On the other hand, as long as we here in the U.S. let sugar barons in Florida, Archer Daniels Midland, and other modern day robber barons [update: worse than the original robber barons, who mostly made their money through honest market transactions] loot the public fisc through price supports, subsidies, etc., it hardly seems sporting of me to pick on the Hapsburgs's attemtpt to get their property back.

Posted 7:23 AM by David Bernstein
Today's New York Times story on the suicide murder bombings in Saudi Arabia contains these gratuitous lines:
"The Saudi ruling family has warned repeatedly that the failure to promote peace in the region would inflame extremist sentiment and that the occupation of Iraq would only serve to fuel such attacks." Let's be clear: Al Qaeda was engaging in attacks against U.S. targets when Israel and the Palestinians seemed on the verge of a peace agreement, and the yesterday's attack was almost certainly planned well before the invasion of Iraq. As for the real cause of yesterday's murders, look no further than the recent raid of an Al Qaeda hideout by Saudi Arabia. All nineteen men associated with the hideout (seventeen of them Saudi citizens) managed to escape, and none have been caught despite a massive publicity campaign by the Saudi government. Obvious conclusion: they were tipped off by someone in the Saudi government, and are also being protected by someone in the Saudi government. Some of these men likely either participated in yesterday's murders, or at least knew about them in advance. Glenn Reynolds' Hashemite restoration idea is sounding better every day.
Update: Debka claims that the Saudi raid of the Al Qaeda hideout (which included a shootout) wasn't so much a raid as hot pursuit of terrorists who had tried to assassinate Prince Bandar. As always, it's impossible to know how accurate Debka's report is, though I often find myself reading things in the Times that I read in Debka weeks or months earlier. In any event, it's hard to see how nineteen known terrorists can get away from a massive raid and hide in a police state like Saudi Arabia without some official help.
Another update: Interesting background info from the Washington Post. Note that the Saudis, who have a generally brutal criminal justice system, was letting Qaeda members off easy. The message, apparently, was as long as you attack Americans outside the kingdom, we won't bother you. Now, the deal has been broken. It's truly horrifying to think there are armed fanatics out there who think Saudi Arabia is too liberal and Westernized.

Posted 3:54 PM by David Bernstein
Kids today seem, well, oversupervised. My six and a half year old niece isn't allowed to play in her own backyard alone. My cousin's thirteen year old son isn't allowed off the premises without at least one friend accompanying him. Lest you think this is just a Bernstein meshugas (a) my own childhood, complete with two overprotective parents, was nothing like that--I used to write my bike on the streets and on deserted paths, play stickball in the street, and generally be left to my own devices as far as my free time went and (b) there is a brilliant essay in the Washington Post by Liz Mundy discussing the general oversupervised child phenomenon. She worries that the children are suffering harm. I worry also a bit about the parents, who, as she says, "don't send our kids out. We either drive them to soccer or else we keep them in, where we ourselves (or our husbands, or the babysitter) entertain them. We paint rocks with them. We make soap with them, and candles, and jewelry boxes. We do homework with them. We organize play dates and elaborate birthday parties!" I think it's wonderful that many parents are so attentive to their children these days, but too much of it comes from irrational fears of child abductions, which get tremendous attention on 24 hour news stations, but are actually very rare. As Mundy points out, in general children have never been safer. Parenting must have been a lot easier when everyone wasn't so worried all the time.

Posted 2:12 PM by David Bernstein
Thanks to Eugene over at the Volokh Conspiracy for a nice plug. Eugene says I'm "one of the leading libertarian law professors in the country," but I wonder if that isn't a bit like (with apologies to Mark Spitz, Sandy Koufax, Hank Greenberg, and Goldberg) being one of the leading Jewish athletes of all time?
Update: Or perhaps (with apologies to Jean Laffite), being one of the leading Jewish pirates of all time.

Posted 11:34 AM by David Bernstein
An attorney is suing to ban the sale of Oreos because they contain transfat, a "dangerous" ingredient. I'm no nutritionist, but even when I was eight years old I knew Oreos weren't good for me (actually, because they weren't kosher in those days, and my school and family home were, I ate the apparently defunct "Hydrox" imitation Oreos). What's needed in this country is judges with the courage to not only throw out cases like these, but to sanction the attorneys who bring them.
Update: According to this website, Hydrox was the original, and Oreo the imitation.

Posted 10:48 AM by David Bernstein
On the importance of settling the issue of the Palestinian right of return before a sovereign Paletinian state is established. Nothing could be more dangerous for Israel, or the stability of the region, than an irredentist Palestinian state. The basic outlines of the agreement that must be made are already known: The Palestinians give up their claim to pre-1967 Israel, Israel gives up most of the territories, the Palestinian refugees and their descendants get to return to the Palestinian state, not to Israel. I would add one element that might actually help both sides--some of the Palestinian towns in the Galilee in pre-1967 Israel become part of the new Palestinian state. These towns are hotbeds of Islamist radicalism, and, given that Arabs are already almost 20% of Israel's population, are the potential staging grounds for future civil war. Discussions I have had with Israeli Jews suggest that there is little hope that these Arabs will be integrated into Israeli society any time soon. They go to Arabic language schools, date and marry only other Arabs, etc., and both most of them and most Israeli Jews seem content with this situation. Even many very liberal Israeli Jews don't want to give Galilee Arabs the choice of going to mainstream Israeli (hebrew language) schools, not out of racism but out of fears of cultural imperialism. When I've asked how the Arabs can be expected to integrate into society and do well economically when their first language is not the language of the economy, I get no coherent response. Ah, the dilemmas of multiculturalism.
I wouldn't force the Arabs in question to be part of Palestine. Any of them who wish to move elsewhere in Israel should be allowed to do so. And there should be a long phaseout of the social welfare benefits they get from Israel. But not only would transferring these towns to Palestine limit future problems for Israel, it would give the refugees the opportunity to "return" to one part of pre-1967 Israel, and make up for the Judean (West Bank) lands that will be given to Israeli sovereignty, which could perhaps unruffle some feathers.
Update: Just in time to increase the relevance of my post, Israel has announced a crackdown on Islamist militants with ties to terrorism in the Galilee.

Posted 10:32 AM by David Bernstein
Nate Oman defends the bluebook.

Posted 9:41 AM by David Bernstein
Looking for the post about citation syles, or the one about cake and muffins? I'm still learning the Blogger software, so I've managed to archive those posts while inadvertantly removing them from the front page . So to see the missing posts, click here.
Update: The missing posts have mysteriously reappeared below!

Posted 10:52 PM by David Bernstein
I think it's safe to say that I'm not soft on Naziism, or even on Austria's general refusal to own up to the fact that after the Aunchluss its citizens overall were even more enthusiastic Nazis than the Germans. Nevertheless, this is chutzpah: The Hapsburg family, which looted its subjects as rulers of the Austro-Hungarian empire, now wants democratic Austria to compensate it for its ill-gotten property confiscated by the Nazis. Next thing you know, the czar's distant relatives are going to demand compensation for property confiscated by the Communists. How exactly did the Hapsburgs manage to get Holocaust reparations negotiator Stuart Eizenstat to support their claims?

Posted 9:46 AM by David Bernstein
My two recent papers on Lochner v. New York (an infamous 1905 Supreme Court case constitutionalizing "liberty of contract"), to be published in the Texas Law Review and Georgetown Law Journal, have recently been posted on SSRN, here and here. In these papers, I make what I hope is a convincing case that the origins of Lochner and its progeny lie in the fundamental rights tradition, not, as others have alleged, in a desire to constitutionalize the common law or to combat "class legislation." I have two more Lochner papers forthcoming, one a review essay in the Michigan Law Review on Lochner and protective labor laws for women, and one a review of the history of the Lochner case, a chapter of the volume Constitutional Law Stories edited by Mike Dorf of Columbia. I'll link to these when they are posted on SSRN.
On the intersection of Lochner, labor history, and African American history, see my 2001 Duke University Press book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. Many reviews are available on the book's homepage, linked above.

Posted 9:18 AM by David Bernstein
Neoconservatives criticized the Bush Administration for sending Colin Powell to Syria just after the war in Iraq concluded. This, they argued, would send Syria the wrong message of conciliation just when the U.S. had an opportunity to leverage its victory in Iraq to cow Syria into abandoning its support for terrorism. It looks like the neocons were right. From Haaretz :
"Syrian President Bashar Assad told The Washington Post that he hadn't promised Powell anything, and that any progress in fulfilling the Americans' demands was contingent on the handing back of the Golan Heights to Syria. The Syrian positions remain as rigid as ever. Powell's visit was viewed in Damascus as a signal that the United States has no plans to attack Syria or undermine Assad's regime, and, as in the past, will suffice with merely reading the demands out from the paper on which they are written."