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Tuesday, October 25, 2005

Bits and Pieces

Covert Changes to Rule 11: Stilting the Rules in Favor of Corporations

The Corporate Republican Party continues their assault on the American legal system. The Orwellian named "Lawsuit Abuse Reduction Act" will be voted on in the House of Representatives tomorrow. This act, H.R. 420, will fundamentally change Federal Rule of Civil Procedure 11 and create enormous incentives for plaintiffs to drop their cases or never file them to begin with. Corporations will be the primary benefactor.

There is no evidence that Rule 11, as is, isn't working. Lawsuits have gone down since the rule was overhauled in 1993 so empirical evidence indicates that it is doing its job. Conservatives point to antecdotal evidence to claim that so-called "frivolous lawsuits" are out of control. These lawsuits that they speak of are essentially exclusively against large corporate defendants.

H.R. 420 is a massive bill and the following will be completely uninteresting unless you have some familiarity with Rule 11. (It's all Civil Procedure.) Rule 11's goal is to discourage frivilous lawsuits by enacting sanctions when applicable. Rule 11 requires all claims and defenses to be warranted either by existing law or by non-frivolous arguments for the modifications to law. Generally, this means The changes will help Rule 11 punish plaintiffs by making it much more hazardous to bring lawsuits.

First, H.R. 420 will make Rule 11 sanctions mandatory, not discretionary. Judges familiar with the process often decide that either 1) sanctions are really not applicable under the circumstances or 2) a sanctions proceeding is simply not worth the time and expense. Making sanctions mandatory makes the judicial system less efficient and discourages meritorious claims. The only benefit whatsoever is that plaintiffs will be discouraged from filing lawsuits and mega-rich corporations can save money on their legal expenses. Further, large corporations can decrease precaution in safety standards because they will know that it is less likely that a plaintiff will prevail on a lawsuit. From a purely efficiency standpoint, this change is nuts.

Second, H.R. 420 eliminates the minimum contacts test for foreign corporations. The result is to effectively immunize foreign corporations for harms in the United States as long as the plaintiff's homestate or state of injury lacks minimum contacts with the corporation. Today, people injured by foreign corporations can sue in any state in which minimum contacts exists between the foreign corporation and the state. H.R. 420 would limit lawsuits against foreign corporations to 1) the plaintiff's home state, 2) the state of injury or 3) the state of the corporation's "principal place of business." The problem is that often the plaintiff's homestate or the state of injury will lack sufficient minimum contacts with the corporation. For example, If France's CheeseCo manfactures poison cheese, sends the poison cheese to New York which then gets shipped to Florida, an injured consumer in Florida would be unable to sue after H.R. 420. CheeseCo lacks minimum contacts with Florida, the plaintiff's home state and state of injury. Currently, the plaintiff could sue in New York becuase CheeseCo has minimum contacts with New York. If HR 420 is passed, however, since CheeseCo's principal place of business is not New York, and a conventional minimum contacts analysis is barred, the plaintiff's only recourse would be to sue in France. Given the expense, it's not going to happen.

Third, H.R. 420 will allow the recovery of "reasonable attorney fees" on a Rule 11 sanction. This burdens the party with less bargaining power because now relatively poorer plaintiffs have to fear the possibility of paying for the defendant's attorney fees. Again, this will discourage meritorious claims and encourage social waste on the part of large corporate defendants.

Fourth, H.R. 420 will dispose of the "safe harbor" protection of Rule 11. As it currently stands, Rule 11 allows an attorney 21 days to withdraw an objectionable pleading under the rule. H.R. 420 will impose mandatory penalities instead. Minor technical violations will not automatically give rise to penalties whereas before all attorneys received was the change to fix the minor errors. "Safe harbor" protects all parties from minor errors and increases judicial economy by preventing sanctioning hearings when unneccessary.

Fifth, H.R. 420 would result in detrimental reliance because it would apply as soon as Bush signs the bill. All pending litigation would be subject to the New Rule 11. Needless to say, the benefit to corporate defendants is immediate considering that plaintiffs currently filing lawsuits must fear being subject to New Rule 11 violations.

Finally, H.R. 420 will force state courts to conduct Rule 11 hearings. This is a revolutionary, potentially unconstitutional, encroachment on federalism. Conservatives claim to be for state's rights; if it wasn't obvious before that they don't care about state's rights, that's clear now.

Fight back against the right-wing assault on the legal system. Corporate Evil will be unquestionably furthered by H.R. 420. Help preserve Rule 11 as is by visiting this link.

Cheney Revealed as Mastermind Behind Plamegate

Will this be another Watergate? Unlikely, considering the partisan breakdown of Congress, but not impossible. Republicans are already starting to turn against Bush as his popularity dwindles. Every GOP Congressmen and many Senators need to run for re-election next year; the game at this point is to do anything and everything to win, including turning on beloved Bush.

All of this is relevant, of course, due to the stunning admission that Dick Cheney was I. Lewis Libby's source in the Valerie Plame investigation. To recap the story, Libby told several journalists, including right wing hack Robert Novak, that Bush administration critic Joe Wilson had a wife named Valerie Plame. Plame was a CIA officer who worked undercover on weapons of mass destruction. Novak printed an article outing Plame, her cover was blown, and the millions of dollars of Plame's work was wasted. Some have speculated that some of her contacts may have been killed as the result of having her cover blown. Regardless, it is a federal crime to knowingly disclose the identity of an undercover government agent. This is a lot more serious than Whitewater and even more serious than Watergate when you consider that people have died for Cheney's craven political move.

Stay tuned. Libby, and likely Karl Rove as well, will be indicted later this week. The crimes of the Republican Party continue to mount. For once, they are having to actually pay the price.

The Fine Line Between Torture and Murder

I know that many normally kind hearted liberals take a rather conservative stance when it comes to torture. Many people think that torture is justified by the potential to prevent future terrorist acts or other civilian deaths.

First, the problem is that medical experts don't believe that torture is an effective means of combating terrorism. Second, torture that ends up in death becomes first degree murder via premeditation and deliberation.

Up to this point, most torture proponents would scoff at the notion that the United States kills detainees during torture. The smoking gun that torture kills arrived yesterday. The ACLU released a report documenting that 44 people have died during or after interrogations. Enough evidence exists to classify 21 of those deaths as homicides. The most chilling part of the report: 8 of the homicides resulted from abusive techniques by military or intelligence officers, such as strangulation and blunt force injuries.

The Republican led defense department has created a climate where interrogators believe that they have the right to kill. All the harms of torture are abundant -- the killings, the physical pain, the psychological damage inflicted upon both the tortured and torturer -- yet none of the so-called "benefits" of torture exist. No terrorist attacks have been prevented via torture; obviously the Bush administration would publicize such an event had it occurred.

Comments on ""


Anonymous CriminLmstrmind said ... (1:15 PM) : 

Excellent article on HR 420.


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