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Lawsuits Are Trial Bar's New Cash Cow, James Copland, Washington Examiner, 10-25-11
Obama's CFPB Nominee
Abused Private Attorney Contracting in Ohio, James Copland, Washington Examiner, 10-25-11
Copland on Wall Street Journal Live
He discussed his new report, Trial Lawyers Inc.: Attorneys General on 10-27-11.
James Copland appeared on the following radio programs to discuss his new report, Trial Lawyers Inc.: Attorneys General:
FM News Talk 97.1's "Randy Tobler Show," 10-29-11
WABC's "John Batchelor Show," 10-27-11
WTPL's "Bulldog Live with Brian Tilton," 10-26-11
SBA's "Small Business Advocate with Jim Blasingame," 10-26-11
Honorable Edwin Meese, James Copland, and Professor Lester Brickman discussed
Trial Lawyers Inc: State Attorneys General in a nationwide conference call.
View the event.
IN THE NEWS
Contracts Criticized, Madison County Journal, 10-27-11
Report Details The Ties That
Bind AGs, Trial Lawyers, Forbes, 10-25-11
Miller Denounces Report Ranking Him Among Friendliest To Trial Lawyers' Agenda,
Politics New Report Exposes Cozy
Relationship Between State AGs and Trial Lawyers, The Blaze, 10-25-11
McGraw Criticized in National Report
on State Attorneys General, West Virginia Watch Dog, 10-25-11
Hood Says Political Foe Abused His Office at DPS,
Picayne Item, AP, 10-25-11
Report: Obama Nominee, Some AGs Too
Close To Plaintiffs Bar, Legal News Line, 10-25-11
State Attorneys General Rake in Trial
Lawyer Cash, Dole Out Contracts, Watchdog.org, 10-25-11
MAKING A NUISANCE
State Attorneys General and Trial Lawyers, Inc.
Twist an Ancient Doctrine into a New Profit Center
Not all the lawsuits launched by the Trial Lawyers, Inc.–state AG partnership allege fraud, as, for example, do those complaining of the padding of Medicaid bills or the failure of companies in which state pension funds have invested to disclose material information. Other classes of lawsuits allege instead a more direct tort—public nuisance—that, when they are successful, assign to state attorneys general and their allies in the plaintiffs’ bar sweeping regulatory powers unbounded by statute.
The old tort of “public nuisance” is a relic of the criminal law dating from the era preceding the rise of the regulatory state (see below “An Ancient Writ Reborn”). A matter of strict liability—that is, not requiring a showing of fault—the public-nuisance tort was used in olden days to attack obstruction of public roads and waterways, limit noise and air pollution, and even go after public immorality. The scope of the tort is thus vast, applying in modern times to any “significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience.”
The Emergence of Modern Public-Nuisance Litigation
Though the traditional public-nuisance tort was used injunctively—to halt a course of conduct, not to extract money damages—contemporary applications have sought to require private parties accused of creating a nuisance to pay for the public costs of “abating” the harm. An early example of such an application came in the 1980s, when a federal court allowed state and federal governments to bring a public-nuisance action against Hooker Chemical for the costs of abating toxic exposure in the “Love Canal” section of Niagara Falls, New York. The large-scale Love Canal episode—which inspired federal Superfund legislation—would prove somewhat anomalous, however, since courts generally continued to reject public-nuisance claims that closely resembled product-liability actions initiated by parties other than the affected landowners.
The public-nuisance doctrine resurfaced, however, during the Scruggs-Moore lawsuits against tobacco companies, which, in addition to seeking compensation for Medicaid costs, alleged that tobacco companies had created a public nuisance. Since the suits settled, this contention has never been tested, except in one Texas case, where it failed. Still, the financial and policy successes of the tobacco claims and the open-ended nature of public-nuisance law offered an avenue of opportunity to Trial Lawyers, Inc. and its political allies.
AN ANCIENT WRIT REBORN
The long-standing “nuisance” tort, dating to 12th-century England, originated as a criminal cause of action brought by the king of England to police infringements on his own lands or public roads or waterways. In its earliest days, nuisance actions substituted for a general “police power” and came to include such disparate actions as public embezzlement, abetting a murderer, and selling impure foods. For four centuries, nuisance remained a flexible doctrine—but enforceable only by the crown, making it nothing less than a crime.
In 1535, a nuisance tort enforceable by private parties was proposed in a judicial dissent, and sometime later embraced by treatise makers. To bring a private right of action for damages, an individual had to suffer “special” or “particular” injuries different from those of the general public. Notably, nuisance law was linked to land and protected the rights of landowners against offensive odors, sounds, or emissions. Individual plaintiffs could recover only monetary damages, with the provision of injunctive relief left to government authorities, under the older public-nuisance doctrine.
As imported into early America, public-nuisance law was used by the state to protect public waterways and highways, but gradually came to be adopted as an early mechanism for policing establishments perceived as a threat to public morals—from taverns to gambling establishments to “houses of ill repute.” With industrialization, public-nuisance law functioned as an early mechanism for controlling noise and air pollution.
The use of the nebulous and undefined public-nuisance tort waned with the rise of the regulatory state, as specific statutes targeted “public” offenses and supplanted ad hoc judicial remedies. By the time of the New Deal, public nuisance was such “a footnote” in the law of tort that it was unmentioned in the 1939 version of the Restatement of Torts, published by the American Law Institute (ALI), a widely heeded legal research and reform organization.
Public nuisance was not, however, to be relegated to the dustbin of history. In the drafting of the Second Restatement of Torts of the 1960s, the particular scholars enlisted by the ALI didn’t, in many instances, merely assess the current state of the law but looked into ways of expanding liability. In this atmosphere of receptivity, environmental activists—before the Environmental Protection Agency had been established—pressed the ALI’s scholars to reinvigorate and expand public-nuisance law to encompass their concerns.
Such activists were initially turned back by the principal drafter of the Restatement, William Prosser, who, despite being an advocate for expanded liability, thought that tort cases resting on a theory of public nuisance should be limited to circumstances giving rise to criminal charges. But activists later persuaded the ALI’s scholars to reconsider public-nuisance doctrine and eventually wound up with relatively broad and ambiguous language defining the tort as “an unreasonable interference with a right common to the general public” that “involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience,” regardless of whether such “public nuisance” was already prohibited by a regulation or statute.
The Broad Sweep of Modern Public Nuisance
After the tobacco litigation, the first major suits filed against product manufacturers under a public-nuisance theory were those against gun manufacturers. These cases were largely spearheaded by big-city mayors beyond the influence of the National Rifle Association, but they were also joined by attorneys general. The lawsuits claimed that gun manufacturers’ sales practices abetted a black market in illegal guns that facilitated crime, but the theory was rejected by most, if not all, courts before Congress nullified such claims with the Protection of Lawful Commerce in Arms Act of 2005.
The next major wave of public-nuisance torts led by AGs involved “abatement costs” for removing paint containing lead. The first such suit was formulated by Motley Rice attorney Jack McConnell, a veteran of the tobacco litigation, in cooperation with the then–attorney general of Rhode Island, Sheldon Whitehouse, and launched against private paint companies in 1999 (see below “Painting Influence”). Like similarly inspired cases, the claim was hollow: because lead can cause neurological damage in children, sale of lead-based paint was banned by federal law beginning in 1978; paint companies, of their own accord, had largely relegated its sale to specified outdoor use beginning in 1955. The Rhode Island Supreme Court ultimately threw out a $3 billion verdict against the paint companies, holding that public-nuisance theory was improperly applied, but similar lawsuits are still being litigated elsewhere; some state supreme courts—notably, Wisconsin’s—have viewed lead-paint public-nuisance suits more favorably.
It is common practice for federal judges to be nominated to the bench based on political connections. But it is rare for such judges to be major donors and fund-raisers for political campaigns: since 1993, a total of 68 of President Obama’s first 69 judicial nominees averaged $3,371 in total political contributions, based on Federal Election Commission records. The 69th judicial nominee, Jack McConnell, is of a different mold. The former chairman of the Rhode Island Democratic Party, McConnell gave $253,660 to federal candidates directly (all but $2,000 to Democrats), and he and his family members gave over $550,000 to federal candidates and committees and a reported $700,000 to political campaigns overall.
McConnell, you see, is a rich man, owing to his career as a plaintiffs’ lawyer working hand in hand with state attorneys general. Over the next 15 years, McConnell stands to receive $2.5 million to $3.1 million annually from proceeds of the multistate tobacco settlement, in which he and his law partners in what is now the Motley Rice law firm teamed with Dickie Scruggs. McConnell followed up his tobacco work with a similar, public-nuisance-based lawsuit on behalf of Rhode Island seeking to force paint companies, which had stopped producing paint containing lead in 1978, to pay for the costs of removing old paint from private homes around the state. The Rhode Island attorney general who hired McConnell to lead the lead-paint suit, Democrat Sheldon Whitehouse, was subsequently elected the state’s U.S. senator. McConnell was confirmed to the federal bench in spring 2011.
Public-nuisance suits have formed the basis of much of the states’ modern environmental litigation—not all involving contingency-fee contracts but all potentially benefiting Trial Lawyers, Inc. It remains to be seen just how indulgent courts will be toward environment-based public-nuisance theories. The U.S. Supreme Court struck a blow for common sense this summer when it unanimously threw out another multistate public-nuisance suit filed by state attorneys general against energy companies, which they sought to blame for global warming. Nevertheless, the Court’s rationale was rather narrow, holding merely that the federal Clean Air Act’s designation of the Environmental Protection Agency as the body with the authority to regulate carbon emissions that may cause global warming displaced the federal common law of public nuisance. Whether courts will employ a similar logic to upset state common-law public-nuisance actions by finding that federal law preempts state actions in other areas of environmental concern awaits further litigation.
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91. Restatement (Second) Of Torts § 821B (1979).
92. See United States v. Hooker Chems. & Plastics Corp., 722 F. Supp. 960, 963-70 (W.D.N.Y. 1989).
93. See, e.g., City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986) (asbestos); City of Bloomington v. Westinghouse Electric Corporation, 891 F.2d 611, 614 (7th Cir. 1989) (PCBs); E.S. Robbins Corporation v. Eastman Chemical Company, 912 F. Supp. 1476, 1493-94 (N.D. Ala. 1995) (chemicals).
94. See Texas v. American Tobacco Co., 14 F. Supp. 2d 956 (E.D. Tex. 1997).
See C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract 3-5 (1949).
96. See id.
See Robert Abrams & Val Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer, 54 Alb. L. Rev. 359, 362 (1990).
98. Y.B. Mich. 27 Hen. 8, 10 (1535).
99. Louise A. Halper, Untangling the Nuisance Knot, 26 B.C. Envtl. Aff. L. Rev. 89, 90 (1998).
See Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 806 (2003).
See Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755, 839 (2001).
Cf. William L. Prosser Private Action for Public Nuisance, 52 Va. L. Rev. 997, 997 (1966).
103. Restatement (Second) Of Torts § 821B (1979).
See NRA-ILA, Reckless Lawsuits: Courts Reject Lawsuits against Gun Makers, (Oct. 16, 2003, 12:00AM), http://www.nraila.org/Issues/FactSheets/Read.aspx?id=37&issue=022.
See Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, 119 Stat. 2095 (2005) (codified at 15 U.S.C. §§ 7901-7903 (2006); 18 U.S.C. §§ 922, 924 (2006)).
See Lisa Rickard, McConnell Is Unqualified to Sit on the Federal Bench in Rhode Island, Providence J., May 26, 2010, available at http://www.projo.com/opinion/contributors/content/CT_rickard26_05-26-10_R2IK31U_v15.3d4077c.html.
See id.; see also OpenSecrets, Donor Lookup, open secrets (http://www.opensecrets.org/indivs/search.php?capcode=vxwq8&name=mcconnell&employ=&cand=&state=RI&zip=&all=n&old=Y&c2008=N&c2010=N&c2012=N&sort=A&page=6) (last visited Sept. 29, 2011).
108. See Rickard, supra note 106.
See Center for Legal Pol’y, Manhattan Inst., Trial Lawyers, Inc.: Environment: Unnatural Claims: Litigation Industry Usurps Regulators’ Role; Credible Claims Suffer (2010) available at http://www.triallawyersinc.com/updates/tli_update_environment_0810.html.
110. AEP v. Connecticut, 131 S. Ct. 2527.