Lawyers, Lawsuits, and Legal Rights: the Battle Over Litigation in American Society

Total Page:16

File Type:pdf, Size:1020Kb

Lawyers, Lawsuits, and Legal Rights: the Battle Over Litigation in American Society Preferred Citation: Burke, Thomas F. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley: University of California Press, c2002 2002. http://ark.cdlib.org/ark:/13030/kt9n39q5pr/ LAWYERS, LAWSUITS, AND LEGAL RIGHTS The Battle over Litigation in American Society THOMAS F. BURKE UNIVERSITY OF CALIFORNIA PRESS BERKELEY LOS ANGELES LONDON 2002 ― ― [Dedication] To my mom, Juanita Burke, whose love of learning was the beginning of all this Preferred Citation: Burke, Thomas F. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley: University of California Press, c2002 2002. http://ark.cdlib.org/ark:/13030/kt9n39q5pr/ ― ― [Dedication] To my mom, Juanita Burke, whose love of learning was the beginning of all this ― ― CONTENTS Acknowledgments ix INTRODUCTION 1 1. THE BATTLE OVER LITIGATION 22 2. THE CREATION OF A LITIGIOUS POLICY 60 The Americans with Disabilities Act 3. A FAILED ANTILITIGATION EFFORT 103 The Struggle over No-Fault Auto Insurance in California 4. A SHOT OF ANTILITIGATION REFORM 142 The Vaccine Injury Compensation Program 5. UNDERSTANDING THE LITIGATION DEBATE 171 Notes 205 Index 261 ― ix ― ACKNOWLEDGMENTS This book is the end of a long and mostly enjoyable journey, eased by the support of several generous institutions and graced most of all by the friends I met along the way. The first interview I conducted for this book was in San Francisco, the last in Stockholm, Sweden. In between were stops at such varied locales as Charlottesville, Virginia, Simi Valley, California, Turton, South Dakota, and of course, Washington, D.C. I am indebted to the many people, famous and not so famous, who kindly agreed to be interviewed. This book began as a dissertation at the University of California, Berkeley. I spent much of my time as a graduate student at Nelson Polsby's Institute for Government Studies, a marvelous place that provided generous financial support, camaraderie, intellectual stimulation, and room for my books. I learned much from my fellow graduate students at Berkeley, especially Sandra Bass, Jon Bernstein, Alyson Cole, Paul Edwards, Eric Patashnik, Ron Schmidt, Craig Thomas, Elaine Thomas, Christine Trost, and Kathy Uradnik. My friendships with Nate Teske and James Martel sustained me both at Berkeley and beyond. Among the faculty, I especially want to thank Sandy Muir, Judy Gruber, Bruce Cain, Laura Stoker, and Jack Citrin, as well as my extraordinary thesis committee: Martin Shapiro, Hanna Pitkin, and Nelson Polsby. Thanks above all to my chair, Robert Kagan, who has been an unending source of advice and support. In the unlikely event that an academic advisor Hall of Fame is created, I will make sure he is one of the first inductees. I was fortunate enough to be a Brookings Research Fellow, which entitled me to spend 1993– 94 in Washington, D.C., at the Brookings Institution, another source of both financial and intellectual support. Thanks to Robert Katzmann, Pietro Nivola, John Kingdon, Margaret ― x ― Weir, Constance Horner, and Tom Mann, as well as my "classmates," Doug Reed, Valerie Heitshusen, and Dan Tichenor. My lucky streak continued after graduate school, when I became a professor at Wellesley College, just outside Boston, a great environment in which to write and teach. Among many friends at Wellesley I particularly want to thank Adrienne Asch, Brock Blomberg, Roxanne Euben, Jeff Gulati, Kyle Kauffman, Sally Merry, Craig Murphy, Kathy Moon, Rob Paarlberg, Ellie Perkins, and Alan Schechter. Susan Silbey is a friend and mentor who teaches me something every time I am fortunate enough to be in her company. Moreover, she provided her good judgment about my manuscript at a crucial point. My Boston-area friends kept me sharp and helped even out the peaks and valleys of academic life: Nancy Aykanian, Barb Connolly, Keith Bybee, John Gerring, Anna Greenberg, David Hart, Dan Kryder, Martin Levin, Paul Pierson, and Steve Teles. Gerring, Greenberg, Gulati, and Kevin Esterling all nursed me through the quantitative roll-call study that appears in chapter 5, but they are not to blame for any statistical sins I may have committed. I had wonderful research assistance at Wellesley from, among others, Ruth Zeable, Lydia Chan, Cortney Harding, Christine Ho, and Belinda DelaCruz. I thank Jane Choi, whose research assistance was supported by the National Science Foundation Awards for the Integration of Research and Education Program (award no. 9873771). Thanks for superb administrative assistance to Cyndy Northgraves and Sue Lindsey. A fellowship with the Robert Wood Johnson (RWJ) Scholars in Health Policy Research Program brought me back to Berkeley and allowed me to put the finishing touches on this book in the California sun. I thank Nathan Jones and Claudia Martinez, the program's Berkeley site administrators, for their hard work, dedication, and flexibility in responding to the diverse needs of RWJ scholars, and I thank the Robert Wood Johnson Foundation for creating this generous program. I am grateful to Chuck Epp and Frank Baumgartner, my University of California Press reviewers, whose comments stimulated major improvements in the book. Thanks also to Steve Rotman, a lifelong friend who contributed his razor-sharp editing skills (to only two chapters, alas), John Skrentny, who provided a thorough and helpful critique of an early draft, and Lauren Leve, whose moral support was invaluable. And thanks to my family, who have patiently stood by while this manuscript slowly, painfully at times, became a book. ― 1 ― INTRODUCTION Although Alvin Laskin grew plants for a living, no one would ever accuse him of being an environmentalist. Yet Laskin's entrepreneurial efforts managed to create employment for many environmental scientists—and hundreds of lawyers. In the early 1970s, when Laskin's Ohio nursery business slumped, he found a more lucrative trade: used oil. Laskin bought the oil from factories and sold it for a variety of uses, particularly dust control. Most of Laskin's old oil presumably ended up with his customers, but hundreds of thousands of gallons of the stuff were inadequately stored in corroded tanks and ponds. By the late 1970s, when Ohio officials first investigated the Laskin Poplar storage site, a chemical sludge containing lead, dioxin, and PCBs had leached into the soil and threatened the groundwater.[1] An extensive cleanup was required, eventually costing about $32 million.[2] The Environmental Protection Agency, which administered the cleanup, would have been happy to bill Mr. Laskin, but he was "judgment proof" —too poor to make it worth going after him. So instead the EPA sued seven of Mr. Laskin's largest customers, big corporations who had either bought or sold the waste oil. That was just the beginning. The seven corporations decided to sue Laskin's other customers, eventually more than six hundred, to help pay for the bills. The federal government became involved in these lawsuits as a third party. Then the big companies sued each other. Later some of the companies sued their insurers. At one point the disputants literally ran out of lawyers in the Cleveland area to handle all these suits and countersuits.[3] It took five years for the first group of defendants to settle, and four more years for most of the rest.[4] In 2001, seventeen years after the first lawsuit, lawyers were still battling over who would pay for Alvin Laskin's environmental sins.[5] ― 2 ― LITIGIOUS PEOPLE/LITIGIOUS POLICIES Stories like this, about litigation seemingly run amok, are common in American popular culture. Anyone who regularly reads a newspaper or watches television has heard, for example, the story of Stella Liebeck, the woman who sued McDonald's after she burned herself with its coffee.[6] Through the media we encounter despondent New Yorkers who jump in front of subways and sue for their injuries, students who sue their professors for bad teaching, parents who sue because their toddlers came to blows on a playground, golfers who sue after being hit by errant tee shots, nonprofit agencies that sue to collect from wavering donors, snackers who sue when their overcooked Pop-Tarts catch fire, prisoners who sue to get chunky peanut butter instead of the smooth kind, game show contestants who sue over a disputed question, and overweight people who sue movie theaters because their chairs aren't sufficiently spacious.[7] There are also "urban legends" that radiate out from the media with ever more outrageous (and almost entirely fanciful) claims, of handymen who sue after their ladders slip on cow manure, restaurant customers who collect thousands of dollars after eating "Kentucky Fried Rat," and psychics who assert that CAT scans withered their powers and receive hundreds of thousands for their troubles.[8] These are not simply amusing vignettes. Although they appear in the media as unconnected anecdotes, a serious theme underlies these stories. They are parables about a fundamental breakdown in American society. The prerequisites for peaceful community life, the stories suggest, have evaporated. Greed, individualism, and contentiousness are winning out over, as one book puts it, "common sense."[9] This theme is so readily accepted that such stories resonate even when demonstrably false. Meanwhile, careful academic research that debunks the notion of a "litigation explosion" in the United States fails to make much of an impression. [10] Nearly everyone, a few lawyers and legal academics to the contrary, seems to believe that litigation is out of control. Explanations for litigiousness are eagerly pronounced. Many blame greedy lawyers, always an easy target.[11] Others point to changes in American culture, with its growing emphasis on individual rights and neglect of the common good. Americans, it is said, have become whiny victims who sue at the first opportunity.[12] These explanations share a common feature: they focus on the individual's decision to sue.
Recommended publications
  • The Brief (The Summer 1978 Alumni Magazine)
    Southern Methodist University SMU Scholar The Brief (Law Alumni Magazine), 1965-2002 Law School History and Archives Summer 1978 The Brief (The Summer 1978 Alumni Magazine) Southern Methodist University, School of Law Follow this and additional works at: https://scholar.smu.edu/brief Recommended Citation Southern Methodist University, School of Law, "The Brief (The Summer 1978 Alumni Magazine)" (1978). The Brief (Law Alumni Magazine), 1965-2002. 31. https://scholar.smu.edu/brief/31 This Book is brought to you for free and open access by the Law School History and Archives at SMU Scholar. It has been accepted for inclusion in The Brief (Law Alumni Magazine), 1965-2002 by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. t e rie OF" THE SCHOOL OF" LAW SUMMER, 1978 SOUTHERN METHODIST UNIVERSITY VOL, 11 No. 2 - HONORING THE 50TH ANNIVERSARY Of' THE CLASS Of' 1928 THE F'IRST GRADUATING CLASS Of' THE SCHOOL Of' LAW, the brief OF THE SCHOOL OF LAW SOUTHERN METHODIST UNIVERSITY SCHOOL Of" LAW SUMMER, 1978 Cover, The Closs of 1928 Pictured left to right- top row: Paul L. Williams, James F. Gray, Edgar H. Selec­ man, and John W. Randall; middle row: Hubert 0. Wills, DeWitt Horry, Erin Bain Jones, Harry S. Pollard, and J. Harold Goode; bottom row: Ellis P. House, Euell Moseley, W. Autry Norton, and Ely Straus (photo courtesy of J. Harold Goode) Reminiscences of the Dean 3 A Short History of the School of Law 4 Professor Joseph W. McKnight Fifty Classes 6 Michael H. Hoffman International Friend 6 Continuing Legal Education 7 Ted Reiner CLE Program Schedule 8 News Briefs 9 Title History of the SMU Law Quadrangle 10 Professor Lennart V.
    [Show full text]
  • Restatement of the Law of Liability Insurance and the Duty to Settle Leo P
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2015 Restatement of the Law of Liability Insurance and the Duty to Settle Leo P. Martinez UC Hastings College of the Law, [email protected] Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Part of the Insurance Law Commons Recommended Citation Leo P. Martinez, Restatement of the Law of Liability Insurance and the Duty to Settle, 68 Rutgers L. Rev. 155 (2015). Available at: https://repository.uchastings.edu/faculty_scholarship/1443 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. THE RESTATEMENT OF THE LAW OF LIABILITY INSURANCE AND THE DUTY TO SETTLE Leo P. Martinez* Abstract More than sixty years ago, Judge Robert Keeton authored what has come to be the definitive exegesis on the insurer’s duty to settle.1 Judge Keeton was followed some twenty-five years later by Professor Kent Syverud with what has come to be the second definitive work on the insurer’s duty to settle.2 Since that time, a scattering of articles have addressed the duty to settle but none have done so in Syverud’s comprehensive way. The occasion of the American Law Institute’s (“ALI”) project, the Restatement of the Law of Liability Insurance, initiated five years ago, provides the opportunity to revisit the insurer’s “duty to settle.” * Albert Abramson Professor of Law, University of California, Hastings College of the Law.
    [Show full text]
  • Nuisance, Ultrahazardous Activities, and the Atomic Reactor Monroe H
    Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship Winter 1957 Nuisance, Ultrahazardous Activities, And The Atomic Reactor Monroe H. Freedman Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Monroe H. Freedman, Nuisance, Ultrahazardous Activities, And The Atomic Reactor, 30 Temp. L.Q. 77 (1957) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/706 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. TEMPLE LAW QUARTERLY VOL. 30 NO. 2 WINTER 1957 NUISANCE, ULTRAHAZARDOUS ACTIVITIES, AND THE ATOMIC REACTOR MONROE H. FREEDMANt INTRODUCTION In the words of President Eisenhower, " . The atom stands ready to become man's obedient, tireless servant, if man will only allow it." I A new day, artificially irradiated by nuclear power, is about to dawn. But there is a radioactive cloud on the horizon. However real or fanciful the hazards attending atomic reactors may be, the public has come to equate "atomic" with "bomb." Although everyone wants lower utility rates and the obvious financial benefits of living near a tax- able utility, there will be a cautious few who would forego these ad- vantages to avoid the concomitant risks. This latter group would undoubtedly grow to substantial proportions if there should be even a minor, much less a major, atomic reactor accident.
    [Show full text]
  • Marquette Lawyer Spring 2009 Marquette University Law Alumni Magazine
    Marquette Lawyer Spring 2009 Marquette University Law Alumni Magazine Marquette Lawyers On the Front Lines of Justice Also Inside: Doyle, Lubar, McChrystal, O’Scannlain, Rofes, Sykes, Twerski Marquette University Rev. Robert A. Wild, S.J. TABLE OF CONTENTS President John J. Pauly Provost 3 From the Dean Gregory J. Kliebhan Senior Vice President 4 Marquette Lawyers On the Front Lines of Justice Marquette University Law School 1 2 A Conversation with Mike McChrystal on Eckstein Hall Joseph D. Kearney Dean and Professor of Law [email protected] 1 8 2008 Commencement Ceremonies (414) 288-1955 Peter K. Rofes 2 2 Law School News Associate Dean for Academic Affairs and Professor of Law 2 6 Public Service Report Michael M. O’Hear Associate Dean for Research and Professor of Law 3 7 Alumni Association: President’s Letter and Annual Awards Bonnie M. Thomson Associate Dean for Administration 4 1 Alumni Class Notes and Profiles Jane Eddy Casper Assistant Dean for Students 5 5 McKay Award Remarks: Prof. Aaron D. Twerski Daniel A. Idzikowski Robert C. McKay Law Professor Award Assistant Dean for Public Service Paul D. Katzman 5 8 Rotary Club Remarks: Sheldon B. Lubar Assistant Dean for Career Planning Devolution of Milwaukee County Government Sean Reilly Assistant Dean for Admissions 6 4 Bar Association Speech: Hon. Diane S. Sykes Christine Wilczynski-Vogel The State of Judicial Selection in Wisconsin Assistant Dean for External Relations [email protected] 7 4 Hallows Lecture: Hon. Diarmuid F. O’Scannlain Marquette Lawyer is published by Lawmaking and Interpretation: The Role of a Federal Marquette University Law School.
    [Show full text]
  • Retaliatory RICO and the Puzzle of Fraudulent Claiming
    Michigan Law Review Volume 115 Issue 5 2017 Retaliatory RICO and the Puzzle of Fraudulent Claiming Nora Freeman Engstrom Stanford Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Litigation Commons, and the Torts Commons Recommended Citation Nora Freeman Engstrom, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 MICH. L. REV. 639 (2017). Available at: https://repository.law.umich.edu/mlr/vol115/iss5/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. RETALIATORY RICO AND THE PUZZLE OF FRAUDULENT CLAIMING Nora Freeman Engstrom* Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individu- als’ incentives and opportunities to seek redress. Unsatisfied with these con- ventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initia- tion of certain nonmeritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows.
    [Show full text]
  • Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function Peter N
    University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 1991 Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function Peter N. Swisher University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Insurance Law Commons Recommended Citation Peter Nash Swisher, Judicial Rationales in Insurance Law: Dusting Off ht e Formal for the Function, 52 Ohio St. L.J. 1037 (1991). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. 01HO STATE LAW JOURNAL Volume 52, Number 4, 1991 Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function PETER NASH SWISHER* Judicial opinions [in insurance law] are less than ordinarily enlightening about principled bases for decision. Often . the favorite generalization advanced by outside observers to explain a judgment against an insurance company at variance with policy provisions is the ambivalent, suggestive, and wholly unsatisfactory aphorism: "It's an insurance case." -Professor [now Judge] Robert E. Keeton BASIC TEXT ON INSURANCE LAW 341 (1971) Disinterested legal doctrinal analysis of the traditional kind remains the indispensible core of legal thought, and there is no surfeit of such analysis today. I daresay that many legal scholars who today are breathing the heady fumes of deconstruction, structuralism, moral philosophy, and the theory of second best would be better employed..
    [Show full text]
  • Consumers Win on Product Liability
    Consumers Win on Product Liability Senator Ernest F. "Fritz" Hollings (D-SC) differing views on proposals to establish Exon, who was hospitalized, was one of crafted a major upset victory for alternative compensation systems which the senators whose proxies Hollings pro- American consumers when his lead- would reduce the need for lawsuits. duced in his masterful strategic victory. ership blocked anti-consumer product liabili- Senators Slade Gorton (R-WA) and Christo- "The bill is not dead," says Kimmelman, ty legislation in the Senate Commerce, pher Dodd (D-CN) have proposed that an "but the committee vote is both a fantastic Science and Technology Committee. administrative procedure be established victory for victims and a significant set- Hollings' masterful strategy surprised the whereby persons injured by defective prod- back to those who would impede recovery proponents of S. 100 and denied a majority ucts could recover damages directly from for injuries caused by defective products to the bill, which would wipe out essential the manufacturer without going to court. and reduce incentives to manufacture safe consumer protections contained in current Damages, however, would be limited to costs ones—both of which S. 100 would do." state product liability laws. such as lost wages and medical care, pro- Kimmelman characterized the commit- In recognition of his role in a victory hibiting payments for pain and suffering tee vote as a "major embarrassment" for that was totally unforeseen, Hollings will or punitive damages. business representatives who were clearly receive a special Distinguished Public In seeking votes for S. 100, Danforth "outfoxed" by Hollings. Service Award at Consumer Federation of promised hearings on the latter proposals "The momentum is now going against America's 15th annual Awards Dinner on before attempting to bring the Kasten bill the business alliance which had already June 19.
    [Show full text]
  • July 21 ,2020 Honorable Edward Markey
    July 21 ,2020 Honorable Edward Markey United States Senate Washington, D. C. 20510 Dear Senator Markey: We are writing as national and state consumer and public interest leaders and advocates who have spent our careers advancing public health, safety, consumer and environmental protection policies in Congress, the Executive Branch, the Courts and the State of Massachusetts. We want to thank you for your lifetime of instrumental work in Massachusetts and in the U.S. Congress, writing laws and forcing issuance of regulations for social justice, public health, safe and affordable transportation, environmental sustainability, a fair marketplace, investor protection, public access to electronic communications, public access to the courts, and personal privacy. A group of us analyzed your record and we have attached our list of your most notable achievements. In all these areas, you are one of the greatest leaders and legislators in Congress. In addition, we appreciate your latest work advocating for healthcare as a right, for preserving the advances under the Affordable Care Act while pressing for Medicare for All, and your focus on emergency measures for families ravaged by the coronavirus pandemic. In addition, the cutting-edge “Green New Deal” you proposed with freshman Rep. Alexandria Ocasio-Cortez has given new hope to a generation of young activists demanding that the existential threat of the climate crisis be addressed immediately and urgently. This is a realistic plan, defined by your determination to transform our job-shrinking fossil fuel economy into a job-building renewable fuel economy. These are just some recent examples of your advocacy of innovative solutions to deeply embedded problems regardless of the powerful, aggressive special interests that may oppose your remedies.
    [Show full text]
  • Prosser and Keeton on the Law of Torts
    Vanderbilt Law Review Volume 39 Issue 3 Issue 3 - April 1986 Article 7 4-1986 Keepers of the Flame: Prosser and Keeton on the Law of Torts Craig Joyce Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Legal Education Commons, and the Torts Commons Recommended Citation Craig Joyce, Keepers of the Flame: Prosser and Keeton on the Law of Torts, 39 Vanderbilt Law Review 851 (1986) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol39/iss3/7 This Book Review is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. REVIEW ESSAY Keepers of the Flame: Prosser and Keeton on the Law of Torts (Fifth Edition) and the Prosser Legacy PROSSER AND KEETON ON THE LAW OF TORTS. By W. Page Keeton (General Editor), Dan B. Dobbs, Robert E. Keeton, and David G. Owen (5th ed.). St. Paul, Minn.: West Publishing Co., 1984. Stu- dent Edition: pp. xxiii, 1286, $25.95. Lawyer's Edition: pp. xxiii, 1456, $44.95. Reviewed by Craig Joyce* "Prosser on Torts! It has a completed sound, a belonging sound, a natural sound, a sound to be remembered for years to come."' O 1986 by Craig Joyce and Vanderbilt Law Review. * Associate Professor of Law, University of Houston Law Center. B.A., 1970, Dartmouth College; M.A. (Jurisprudence), 1972, Oxford University; J.D., 1975, Stanford Law School. For assistance in the preparation of this Review, the author thanks Alvin L.
    [Show full text]
  • President-Elect Biden Transition Letter on Regulations
    Dec. 9, 2020 Dear President-Elect Biden, The country faces enormous challenges. As you transition into your presidential term, the American public is counting on you and your administration to repair the damage from the Trump Administration’s extreme and dangerous deregulatory agenda. Hundreds of rollbacks of protections under the previous administration -- imperiling our planet, endangering workers and consumers, facilitating corporate rip-offs, eroding workers’ pay, enabling discrimination based on race, gender and sexual orientation and leaving our nation more unjust -- must now be undone. At the same time, the nation needs strong new safeguards to address the COVID-19, climate, economic and racial justice crises, and to rebuild the public’s trust and confidence that our government agencies are working for them. In the face of a potentially divided Congress, the regulatory process will be one of the most critical avenues for your Administration to meet these challenges. The Coalition for Sensible Safeguards (CSS) — an alliance of more than 160 consumer, labor, scientific, research, faith, community, environmental, small business, good government, civil rights, public health and public interest groups representing millions of people — supports a regulatory agenda that makes our government work for the American people, not special interests. It is especially important to ensure that the main White House regulatory office, the Office of Information and Regulatory Affairs (OIRA), take on the mission of advancing – not slowing or derailing – a strong proactive agenda for safeguarding the public, workers and the environment. CSS and the 95 under-signed groups and individuals offer the following recommendations to help ensure that our regulatory system works to protect, workers, consumers, our environment, and our economy.
    [Show full text]
  • Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function
    01HO STATE LAW JOURNAL Volume 52, Number 4, 1991 Judicial Rationales in Insurance Law: Dusting Off the Formal for the Function PETER NASH SWISHER* Judicial opinions [in insurance law] are less than ordinarily enlightening about principled bases for decision. Often . the favorite generalization advanced by outside observers to explain a judgment against an insurance company at variance with policy provisions is the ambivalent, suggestive, and wholly unsatisfactory aphorism: "It's an insurance case." -Professor [now Judge] Robert E. Keeton BASIC TEXT ON INSURANCE LAW 341 (1971) Disinterested legal doctrinal analysis of the traditional kind remains the indispensible core of legal thought, and there is no surfeit of such analysis today. I daresay that many legal scholars who today are breathing the heady fumes of deconstruction, structuralism, moral philosophy, and the theory of second best would be better employed... synthesizing the law of insurance. -Professor [now Judge] Richard A. Posner 7he Decline of Law as an Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761, 777 (1987) You knew the law, Portia. But you didn't know the judge. -RUMPOLE OF THE BAILEY PBS Television * Professor of Law, University of Richmond Law School; B.A. Amherst College, 1966; M.A. Stanford University, 1967; J.D. University of California, Hastings College of the Law, 1973. Member of the California and Virginia State Bars. 1038 OHIO STATE LAWJOURNAL [Vol. 52:1037 I. INTRODUCTON Many decisional patterns in insurance law cases are very difficult to understand, and the judicial rationales underlying these conflicting decisions are seldom expressly stated. Indeed, one writer has suggested that insurance contract cases "frequently read like a chapter out of Alice in Wonderland,"1 and two other authors write: 'Welcome to the wonderful world of Insurance.
    [Show full text]
  • An Alternative Explanation for No-Fault's Demise
    DePaul Law Review Volume 61 Issue 2 Winter 2012: Symposium - Festschrift Article 5 for Robert Rabin An Alternative Explanation for No-Fault's Demise Nora Freeman Engstrom Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Nora F. Engstrom, An Alternative Explanation for No-Fault's Demise, 61 DePaul L. Rev. 303 (2012) Available at: https://via.library.depaul.edu/law-review/vol61/iss2/5 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. AN ALTERNATIVE EXPLANATION FOR NO-FAULT'S "DEMISE" Nora Freeman Engstrom* INTRODUCTION Rumor has it that in 1896 there were only four motor vehicles in all of the United States and two, improbably, collided, thus ushering in the era of auto accidents on American soil-a problem that plagues us still.' Automobiles are central to the American way of life, "per- mit[ing] an impatient people to conquer space and time." 2 Yet, as many of us know too well, they sometimes collide, and when they do, the cumulative toll they take is breathtaking. Since the time of that first auto accident, nearly 3.5 million Americans have perished, and today, auto collisions injure 2.5 million Americans per year, constitute the leading cause of death for those from age five to thirty-four, and kill roughly 35,000 Americans annually.3 Their practical influence on tort law is unparalleled, accounting for the majority of all injury claims and three-quarters of all injury damage payouts.4 And their economic cost is substantial, accounting for expenditures of $255 billion annu- * Assistant Professor, Stanford Law School.
    [Show full text]