Britain Celebrates Implementation of its Supreme Court

I learned a couple of weeks ago that Britain would soon be implementing a Supreme Court instead of the House of Lords. Here is a new AP article on the formal ceremony.

An interesting additional point to the article is that some members of our Supreme Court went over for the ceremony (and Justice Ginsberg tried to go over). One wonders if this means they are now more willing to listen to and consider the rulings made by the courts of other nations.


Queen Elizabeth II Opens New U.K. Supreme Court

The Associated Press

October 16, 2009


Queen Elizabeth II formally opened Britain's new Supreme Court on Friday in a ceremony attended by high court justices from the United States and around the world.

Prime Minister Gordon Brown and top judges from Canada, Australia, India, South Africa and Europe attended the ceremony for a court the government says will make the workings of justice visible and accessible to the British public.

U.S. Chief Justice John Roberts and justices Stephen Breyer and Antonin Scalia watched the ceremony, which included prayers led by Archbishop of Canterbury Rowan Williams and a verse for the new court by former poet laureate Andrew Motion.

U.S. justice Ruth Bader Ginsburg also had been scheduled to attend, but she became ill just before her plane took off from Washington late Wednesday and was briefly hospitalized. U.S. court officials said Ginsburg, 76, became drowsy because of a reaction to medicine.

For hundreds of years, Britain's highest court of appeal was the Law Lords, a group of justices who sat in Parliament's upper chamber, the House of Lords.

Earlier this month the judges shed their wigs and ermine-trimmed robes and moved to a new home in a renovated 100-year-old courthouse across Parliament Square from the Houses of Parliament. The court began hearing cases Oct. 5.

The government says the new court corrects one of the quirks of Britain's ancient and unwritten constitution, separating the country's judicial and legislative powers after hundreds of years of muddled compromise.

Brown said that, with the formation of the court, "a separation of powers once only guaranteed by convention is now cemented by statute."

The new court also is equipped with cameras and microphones so proceedings can be broadcast. Recording is prohibited in most British courts.

Justice Secretary Jack Straw said Friday that the Supreme Court underlined the independence of the judicial system. He said the work of the Law Lords had been "opaque and was obscured from public view." "In this place we now have this court -- public, accessible, visible -- situated in this square at the heart of our nation's history over a millennium," Straw said.

Galleon Hedge Fund - Insider Trading Ring

Here are the insider trading charges against Galleon's founder and here is an NYT article on the scam. The insider trading ring is described as follows;

" As outlined by law enforcement officials, Mr. Rajaratnam tapped a vast network of informants across a swath of corporate America: a senior official at I.B.M. considered a contender for the top job at that firm; executives of Intel and the consulting firm McKinsey & Company; two former Bear Stearns employees who had moved to a hedge fund, New Castle Partners; and an analyst at Moody’s Investors Service.

While trading secrets, though, one crucial piece of information was not shared — the phones were tapped. The wiretaps, said by prosecutors to be the first in an insider-trading case, were made with the assistance of an unnamed cooperating witness, a former Galleon employee who was said to ply Mr. Rajaratnam with information originally to land a job."

"Legal Reform Summit" - Views of the US Chamber of Commerce and Academics On Litigation Funding and Other Tort Related Topics

So, what do academics and the US Chamber of Commerce think about litigation funding? I'm not sure, but if you want to know, then plan to attend an October 28 seminar in DC. The front page for the seminar is pasted below, in pertinent part. Here is the link for online registration.

Note also that there are various other tort topics, including the last panel - predicting the agenda for the plaintiff's bar.

___________________________________________________________________

OCTOBER 28, 2009 - U.S. CHAMBER OF COMMERCE — WASHINGTON, DC

Please join the U.S. Chamber Institute for Legal Reform for our 10th Annual Legal Reform Summit on Wednesday, October 28, 2009, featuring:

Legislative Keynote Morning Address
by U.S. Senator Jeff Sessions, Ranking Member of the U.S. Senate Judiciary Committee

and

“Leading in a Climate of Change”Keynote Luncheon Address
by Jeb Bush, former governor of Florida.

In addition, Tom Donohue, President and CEO, U.S. Chamber of Commerce, will provide special remarks. The Summit will also feature distinguished panelists exploring a variety of timely legal topics, including:


Courting New Money: Third Party Financing of Litigation and its Consequences. Should Outside Investors Have a Stake? Academics will release new research and discuss and debate the growing trend of third parties financing lawsuits.

Climate Change Litigation: The New Mass Tort for the 21st Century? Panelists will speak to the legal theories and trends in climate change litigation as well as regulatory and legislative developments and their impact on the business community.
Judicial Selection: Best Practices in Nomination States. ILR will release a “best practices” guide to judicial selection in nomination states.

It’s Economics Stupid: Exploring the Relationship Between Lawsuits and Rising Healthcare Costs. Jeb Bush will facilitate a panel discussion on the economic impact of lawsuits on the practice of medicine and rising healthcare costs.

Trial Lawyer Crystal Ball: Predictions and Prognostications on the Road Ahead. We will host a discussion on the trial bar’s priorities.

Tort Wars - The Next Step in the Toyota Saga Regarding Alleged Document Destruction

Here is a different example of how mass tort litigation ends up becoming a media story. In this instance, the media consists of the latest story on Toyota's battles regarding alleged destruction of internal documents in order to avoid the information becoming evidence in rollover cases.

The short version is that after suing Toyota for wrongful discharge, a former inside lawyer has turned over to a federal judge four boxes of documents that are said to support his claim that documents were wrongfully destroyed by Toyota. The judge has ordered the documents to be secured, scanned and coded, and will give Toyota a chance to claim privilege regarding the documents. No doubt plaintiff's lawyers will then assert the crime-fraud exception applies to any otherwise privileged documents. The judge's ruling presumably will be widely reported.

How would you like to be the General Counsel dealing with this situation ? What would you want to know and then what would you decide to do when no one will give you the answers you need ? Much wisdom on the subject of crisis management has been spelled out before by business consultants. See, e.g,, Stop The Presses: The Crisis and Litigation PR Desk Reference. Written by Richard Levick and Larry Smith of Levick Strategic Communications, the book addresses crisis management in general, and its chapters 7 and 8 deal with strategies for dealing with blog stories and other issues that were more or less immaterial as little as 5 years ago. Also potentially relevant is its chapter 9 on the impacts of media related to prosecutorial activity.

Mass Torts, Media, and the Dole Chemical Exposure Cases

Here is a story regarding yet another aspect of the "mass tort" litigation industry - movies and other media drivers of public opinion. Remember - this situation is not unique. Indeed, other movies about "mass torts" were far bigger, such as Erin Brokovich and A Civil Action. Today, the mass tort wars are fought on many fronts and there are many forums for the battle over public opinion and perception, all of which can effect corporate reputation and the corporate stock price.

Recall also that there are two sides two every story, and that Dole's actions were portrayed as less than laudable in this August 19, 2009 Wall Street Journal article by Steve Stecklow. Set out below are 1) the AP article and 2) key excerpts from the WSJ article.

________________________________________________________________

Dole withdraws lawsuit against Swedish filmmaker

By MALIN RISING (AP) – 4 hours ago

STOCKHOLM — Dole Foods is withdrawing a defamation lawsuit against a Swedish filmmaker after complaints in Sweden that it was trying to limit free speech, the company said Thursday.
Dole had sued filmmaker Fredrik Gertten for showing his controversial documentary "Bananas!" despite a court ruling that said it was based on a fraud.
The move sparked protests in Sweden, critics said the food company was trying to interfere with the freedom of speech.
In a statement, Dole said it decided to withdraw the lawsuit "in light of the free speech concerns being expressed in Sweden, although it continues to believe in the merits of its case."
"While the filmmakers continue to show a film that is fundamentally flawed and contains many false statements we look forward to an open discussion with the filmmakers regarding the content of the film," Dole's Executive Vice President and General Counsel, C. Michael Carter said.

The documentary shows the alleged plight of Nicaraguan workers who say they were made sterile by a pesticide used at Dole banana plantations in the 1970s. It was completed before a fraud was uncovered showing that the workers were recruited by a lawyer to lie. That ruling has been appealed.

Earlier this week Swedish food chain ICA — a Dole customer — held a meeting with the company saying it felt the filmmaker had the right to express his side of the story.
"We met their European division and ... put forward our view on the matter," ICA's fruit and vegetables chief Lars Astrom told The Associated Press. "We said we thought they should withdraw the lawsuit and asked them to get back to us, and now they have done that."
The film's producer, Margarete Jangard, welcomed Dole's decision.
"It feels fantastic that we have been able to make a difference, without an
y money, only with the help of all the people who have supported us," she told the AP.

The film was shown twice in June with a lengthy written disclaimer by Los Angeles Film Festival organizers who said it did not present a fair and accurate account but was worth showing as "a case study" of what happens when a story changes after a documentary is completed.
Copyright © 2009 The Associated Press. All rights reserved.


______________________________________________________________
Excerpts from WSJ:

" DBCP, short for dibromochloropropane, was widely used around the world in the 1960s and 1970s to control microscopic worms called nematodes that attack roots and destroy crops. "The first year after we used" the pesticide, "the bananas were huge," says Isaias Paz, who worked for years as a foreman on a Dole-operated banana plantation outside Chinandega.
In 1977, California health officials discovered that workers at a DBCP manufacturing plant there had become sterile. Another manufacturer, Dow Chemical Co., one of Dole's suppliers for Central America, stopped production and announced a recall.
Dole, which began using the pesticide in Nicaragua in 1973, had a contract to purchase DBCP for another two years. It threatened Dow with breach of contract for stopping deliveries, stating there was no evidence that plantation workers who apply DBCP had been rendered sterile, according to records in a lawsuit later filed by Dow against a Dole unit in Michigan circuit court. In 1978, Dow agreed to sell Dole some of its remaining stocks only after the fruit company agreed to hold Dow harmless from any injury claims.
In 1979, the U.S. Environmental Protection Agency banned DBCP in the U.S. for nearly all uses, including bananas, stating that "farm workers, pesticide applicators and the public at large...run varying degrees of risk of cancer, gene and chromosomal damage" and male infertility. Dole stopped using the pesticide in Nicaragua in 1980, according to Scott A. Edelman, a Dole attorney. The company's "use of the remaining stocks" of DBCP from 1978 to 1980 "was legal," he says."

SEC Sued by Investor for Failing to Stop Mr. Madoff's Scheme

Here is a link to an American Lawyer article detailing a defrauded investor's suit against the SEC for failing to uncover and stop Mr. Madoff's fraud. According to the article, plaintiff's counsel is a former SEC lawyer who acknowledges sovereign immunity rules but has tried to plead around them. The claims are asserted under the Federal Tort Claims Act.

Canadian Court Allows Indirect Purchaser Antitrust Class Action

Here is an interesting paper from Davies Ward Phillips & Vineberg on a Canadian trial court decision certifying an antitrust class action for indirect purchasers of hydrogen peroxide products. The commentators view the decision as a potentially significant expansion of Canadian law if the decision withstands appeals. A key excerpt is as follows:


"In Irving Paper, Justice Rady relied on two more recent decisions of the Ontario Court of
Appeal – Markson v. MBNA Canada Bank and Cassano v. The Toronto Dominion Bank – to
frame her analysis of the issue. In her view, these two decisions have overtaken Chadha
and signal a relaxation of the evidentiary threshold prescribed by Chadha. Among other
things, Her Honour interpreted Markson as establishing "that not every class member need
have suffered a loss and so it is not necessary to show damages on a class-wide basis".
Justice Rady also relied on the Ontario Superior Court's 2004 decision in Hague v. Liberty
Mutual Insurance Co. and the Ontario Court of Appeal's decision in Cloud v. Canada
(Attorney General) as authority for the proposition that she was not required to reconcile the
conflicting expert opinions before her regarding the existence of a workable class-wide
means to prove liability.

Another US Plaintiff's Firm Moves into Europe

Mark Lanier's plaintiff's firm is expanding operations into London. As described in the media, the firm is establishing an arbitration practice. Here is the firm's press release and here is a law.com article.

The press release does not say this but one can envision that this effort has larger goals than simply handling some commerical cases. Instead, one can see this move as following a model set by others. That is, branch out to a new market using a product that will pay for itself more quickly than does tort litigation. That is, business litigation for hourly and/or contingent fees usually follows a time line that is shorter than the timeline for tort litigation. At the same time, that business litigation platform provides a basis for developing local skills and contacts that will be exploitable as the market for tort litigation evolves and expands over time.

Vice Chancellor Strine's Comments on Corporate Decision Making and Risk Taking, Including Conflicts of Interest Between Constituencies

One reality of modern life is that large scale corporate actions and decisions can and do profoundly effect the financial and physical lives of innumerable people. To name but a few, consider the financial impacts of the ongoing financial fiasco and large-scale scams exemplified by Mr. Madoff, and consider the physical impacts of now-banned chemicals and asbestos. Accordingly, the subject of corporate decision-making is important to many currently ongoing policy debates that involve both national and international laws.


On the topic of corporate decision-making and regulation, I commend for thought the following words by Vice Chancellor Leo Strine, an experienced and respected Delaware Chancery judge. Note especially his comments about conflicts of interest between corporate constituencies. In that vein, consider also the Parmalat ruling discussed here last week on the in pari delicto defense and its elements.

My view? Mr. Strine's observations are correct. Unfotunately, most judges, legislators and academics do not have the benefit of Mr. Strine's experiences and and so many but not all of our legislatures, agencies and common law courts are making far less than optimal decisions because they do not understand or acknowledge the complexities and conflicts of interest present in much of modern corporate behavior and in many cases presently in litigation. One result is that efforts to legislate or regulate are increasingly ineffectual. Another result is that corporate mistakes and/or fraud are followed by explosions of litigation, and soon all sides are more or less accurately complaining that litigation is too slow and too expensive. And, some times, the lawsuits produce only woefully tiny sanctions for those who were part of or turned a blind eye to grossly illegal behavior. Moreover, because we are human and grow tired of the past, there is a lessening of the attention paid to white papers and committee reports any particular problem, and so attention turns to the next debacle.

Will societies ever break out of this cycle? I hope so, and suggest that doing so requires the arduous but necessary step of making better decisions at the start by hearing from more conflicting constituencies at earlier points in various decision-making processes.


(As a preface for those readers who may not know, Vice Chancellor Strine sits in the Delaware Chancery court that each year is the venue for a large percentage of the major corporate litigation in the US. The judges of that court each year see and resolve myriad legal issues involving corporate decision making at board room levels. The judges often decide cases based on extensive testimony from senior players in the business and m & a world, and the judges also see many of the writings of the decision-makers, some genuine and spontaneous emails and others comprised of legal word smithing designed to provide evidence to support a later defense that the actions were not illegal. These experiences offer the chancery judges some unique windows to look inside corporations to see how decisions in fact are made.)

The comments by Vice Chancellor Shrine are online here, and also are pasted in below in full text. Vice Chancellor Shrine's comments are part the NYT Dealbook pages presenting an online dialogue last week regarding the roots and causes of the financial fiasco. Most of the entries are worth reading. Hat tip to the Conglomerate blog for drawing my attention to the fact that Mr. Strine was a participant.


_________________________________________________________________


" Why Excessive Risk-Taking Is Not Unexpected
October 5, 2009, 1:30 pm



Whatever the possible causes of the recent financial debacle, it seems clear that there is one cause that can be ruled out: that the directors and managers of the failed firms were unresponsive to investor demands to take measures to raise profits and increase stock prices.

Rather, to the extent that the crisis is related to the relationship between stockholders and boards, the real concern seems to be that boards were warmly receptive to investor calls for them to pursue high returns through activities involving great risk and high leverage. Indeed, the recent financial industry debacle is perhaps most surprising for its predictability in light of mundane realities accepted by social scientists of the center left and right.
It is well known that businesses aggressively seeking profit will tend to push right up against, and too often blow right through, the rules of the game as established by positive law. The more pressure business leaders are under to deliver high returns, the greater the danger that they will violate the law and shift costs to society generally, in the form of externalities. In that circumstance, if the rules of the game themselves are too loosely drawn to protect society adequately, businesses are free to engage in behavior that is socially costly without violating any legal obligations.

Moreover, the ability of any particular firm to resist imitating the overly risky, but law-compliant behavior of competitors will be compromised to the extent that managers face criticism or even removal for not keeping up with so-called industry leaders whose high, short-term returns have pleased a stock market filled with short-term investors looking for alpha.

Similarly, when power and influence over corporate activities is exerted by those whose primary interest is immediate gain and who have little or no intention to stay invested until the full costs of risky activity are borne — e.g., certain institutional investors who invest the money of others — corporate managers will have an incentive to be responsive to their demands.

When the marketplace presents opportunities for corporations to generate immediate gains through transactions structured so the profits are taken up front and the risks are perceived as minimal, corporations seeking to please a short-term-focused market are likely to seize them. Risks might be sold immediately to others, or theoretically contracted away through arrangements that look like insurance but don’t involve counterparties meeting the standards that apply to insurance companies. Or perhaps the risk is structured to kick in several years down the road.

Likewise, when institutional investors with strong voting clout encourage corporations to increase leverage in order to engage in stock buybacks, increase dividends or reap higher trading gains, responsive corporate boards may leave their corporations without adequate capital to weather tough times, times when many of the proponents of leverage are likely not to be around as stockholders anymore.

If an industry senses that the United States Treasury has its back in the event that risky activity threatens the industry’s health, its leaders may respond even more freely to these market incentives, because they view the industry as having a form of insurance from the taxpayers. When the industry and its leaders have also designed compensation systems that reward managers for generating short-term profits through risky activity — systems often implemented with the encouragement of investors desiring to give managers a strong incentive to pump up stock prices — managers who might otherwise be more focused on the long-term health of their employers are encouraged to go hellbent for leather for immediate gain, too.

During the last 30 years, it is indisputable that: (1) regulatory standards have been greatly relaxed, giving the financial industry free rein to leverage itself to the hilt and to engage in a wide range of speculative and increasingly opaque, complex activities, often without rigorous safeguards; (2) the power of stockholders to influence the composition of corporate boards and the direction of corporate strategy has been markedly enhanced; (3) institutional investors who hold stocks, on average, for a very brief period of time and are highly focused on short-term movements in stock prices have become far more influential and prevalent; and (4) “pay for performance” compensation systems were implemented to align the interests of managers with stockholders by giving managers incentives to pump up corporate profits in a manner that will increase the corporation’s profits and stock price immediately, rather then durably.

Distilled down, what is most critical is that robust prudential regulation protecting society from risky corporate activity abated, precisely when corporations faced increasingly strong pressures to engage in much riskier endeavors in order to generate short-term results. In the financial sector, this potent cocktail was chased by several governmental interventions to rescue the industry when its “innovative” activities threatened its health, a course of conduct that suggested that the financial industry could take risks other industries could not, because it had a de facto form of federal insurance.

There is, of course, much that is simplified about this description. But, it is in the main true. And it suggests that policy makers need to be mindful of the relationship between the power of the stock market to influence corporate policies and the strength of prudential regulation. Because even diversified long-term stockholders are likely to have an appetite for risk that exceeds what is socially prudent, there will always need to be strong rules of the game to govern industries whose failure poses socially unacceptable risks.

There is no escape from the fact that although corporations are sometimes seen as owned by those who own their equity and elect their boards, the actions of corporations affect a broader range of constituencies, including workers, creditors, consumers and society more generally; no sensible regulatory system can ignore that fact.

The difficulty is compounded when those who directly influence public corporations are not primarily end user investors focused on the long term and keenly worried about excessive risk — think workers who must invest in mutual funds for retirement — but far more likely to be financial intermediaries whose investment horizons are often less than a year.

Strong regulatory standards are indispensable, not simply for society, but also for end-user long-term investors themselves, who bear the long-term costs of corporate idiocy.

Therefore, if the correct policy balance is to be struck regarding regulation of the financial industry and other industries that pose large systemic and societal externality risks, policy makers cannot continue to avoid the obvious alignment problem that now vexes our corporate governance system.

Most Americans invest with a rational time horizon consistent with sound corporate planning. They invest with the hope of putting a child through college or providing for themselves in retirement. But individual Americans don’t wield control over who sits on the boards of public companies. The financial intermediaries who invest their capital do. These intermediaries have powerful incentives — in important instances, not of their own making — to push corporate boards to engage in risky activities that may be adverse to the interest of long-term investors and society. That is, there is now a separation of “ownership from ownership” that creates conflicts of its own that are analogous to those of the paradigmatic, but increasingly outdated, Berle-Means model for separation of ownership from control.

Unless these incentives and conflicts are addressed, it should be expected that corporate boards will continue to face strong pressures to manage their enterprises in a manner that emphasizes the short term over the long term, and that involves greater risk than is socially optimal. As a result, more stringent than optimal prudential regulation will have to be in place to bar the financial sector from taking risks that endanger society as a whole, rather than simply the capital of their investors and the employment of their employees.

There is nothing new about the insight that the more incentives businesses have to generate short-term profits, the more likely it is that they will engage in excessively risky activity, especially if they believe that the risks will be borne by others if they come to fruition. We simply have another hard-learned lesson to point to about the costs of ignoring these realities.

In shaping the future, policy makers might therefore focus on two key objectives: re-instituting sound prudential regulation over financial institutions critical to the overall well-being of our capital markets and economy, and implementing policies that focus stockholders and boards on the objective of having corporations produce wealth in both sound, durable fashion.

Ideally, we want a system where corporate boards are highly accountable and responsive to their stockholders for the generation of sustainable profits. But for that policy objective to be achieved, stockholders themselves must act like genuine investors, who are interested in the creation and preservation of long-term wealth, not short-term movements in stock prices. So long as many of the most influential and active investors continue to think short term, it is unrealistic to expect the corporate boards they elect to strike the proper balance between the pursuit of profits through risky endeavors and the prudent preservation of value.

Leo E. Strine Jr., vice chancellor of the Delaware Court of Chancery, is also the Austin Wakeman lecturer in law of Harvard Law School, an adjunct professor of law at the University of Pennsylvania and Vanderbilt law schools, and a Crown Fellow with the Aspen Institute."

Proposal for National Juries for Mass Tort Cases

Here is a late September post presenting a condensed version of a law review article proposing "national juries" for mass tort litigation. The proposal is from Professor Laura Gaston Dooley, a professor at the Valparaiso University Law School. Looking quickly through her CV at the school website, it appears Prof. Dooley clerked for two years for federal judges and then joined academia. Her work also includes being a part of the "Members Consultative Group, Project on Aggregate Litigation. American Law Institute," which is a group identified here.

Set out below are some excerpts from the condensed version. The proposal makes some interesting points. I've not read the full law review article. The condensed version does not hone in on two topics that seem key to me: state-by state variations in the applicable legal rules, and the manner in which a jury would cope with the applicable and evolving science in a mass tort "toxic tort" case.

See below for the excerpts that most caught my eye.
___________________________________________________________________


"The reexamination problem reflects tension between competing values in complex litigation: Consolidated cases may lead to unconstitutional reexamination of overlapping issues, yet trying individual cases presents problems of efficiency loss and forum manipulation. We must therefore choose between the evil of bifurcation and the evil of inefficient relitigation of the same issue, with the concomitant risk of inconsistent results. A third option—treating a single litigation as a national unit—vests too much power in one local jury to unleash national consequences.

Is there a fourth option? Empanelling a national jury would mitigate reexamination problems while preserving the efficiency gains of aggregation. A national jury would also address the concern that a local citizenry should not decide issues of national importance. And, most importantly, it would vindicate the animating concern of the Seventh Amendment: citizen participation in civil dispute resolution.

Our willingness to work out the logistical details of the national jury proposal and to absorb its inevitable costs is a function of our commitment to citizen participation in large-scale litigation. One difficulty, of course, will be assembling a national jury pool representative of a country as large and diverse as the United States. Even in much smaller jury districts, underrepresentation of minorities on jury venires has sparked an enormous amount of scholarly literature and litigation.8 Congress would have to consider how to assemble a nationally representative venire. A starting point might be to draw candidates for the national jury pool from congressional districts, since those boundaries have already withstood constitutional and statutory scrutiny under election laws.9 The census process could also be used to draw districts.

The expansion of jury pools from local to national may also require us to rethink the size of the venire and the petit jury, as well as verdict format and voting mechanisms. Obtaining some semblance of the required representativeness will no doubt require larger juries than the current six or twelve members. Indeed, in order for a national jury to function, the discussion may well have to shift to how large a group can effectively deliberate without becoming unwieldy.

The grand jury model may prove useful. One can imagine a national jury as a cross between the grand jury and the special jury: Jurors could serve for specified lengths of time, perhaps in particular courts hosting multi-district complex litigation. The learning curve for such jurors would be high. Having decided, say, causation issues in one products liability case, the national jury would have an informational advantage in understanding procedure and applicable substantive law for other cases. And this gain can be realized without sacrificing the democratic makeup of the jury—a quality lost in elitist special juries.

The civil jury, though steeped in history, is not frozen in time. In an era of increasingly complex litigation, the civil jury must adapt structurally to modern disputes while preserving its rich history and constitutional function. Empanelling national juries in cases of national scope may well be the only way to preserve meaningful citizen participation in large-scale litigation."

Transcript of June 25 GM Hearing on Withdrawal of Request for Asbestos Futures Representative

As a result of bugging the clerk's office and the court reporter's office, the transparency-blocking 90 day veil has now been lifted from some of the General Motors bankruptcy hearing transcripts.

Here is the June 25, 2009 transcript that reflects the asbestos plaintiff's lawyers withdrawing the request for appointment of a futures representative. The withdrawal was based on the grounds that there would not be a section 524(g) injunction order entered in the case and that orders entered in the case do not bind future claimants.

So, the asbestos personal injury litigation saga no doubt will go on as to GM at least for future claims. And, just as the bankruptcy court orders do not bind future personal injury claimants, the orders also should not bind underlying case co-defendants which decide to bring in those cases a contribution or apportionment claim against the new GM entity, if it survives.

Who Will Invest in UK Law Firms When It Becomes Legal in 2011 ?

Law firms as an investment opportunity for non-lawyers? You bet. It is by now well-known that an Australian plaintiff's firm went public back in 2007. This August 3 article from Bloomberg covers the reality that in 2011, it will become legal in the UK for non-lawyers to invest in law firms, and describes several groups that say they are interested in investing in UK law firms.