Please Stop Calling Amazon A Monopoly

  I read a lot of book-related publications and blogs, and thus I have endured weeks of Hachette-versus-Amazon posts, as the publishing giant has wrangled with the online retail giant over the terms of their contract. Perhaps unsurprisingly, the writers and publications with ties to the “Big Five” in the publishing industry have sided with Hachette, whereas the commenters to the articles and the blogs (most of which are presumably customers of books) tend to wonder why a garden-variety dispute between two big companies over money is being billed as the downfall of civilization.   I ignored most of these ... Continue Reading

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Daubert Doesn’t Ask Judges To Become Experts On Statistics

Back in 2012, I wrote: “Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.”   There have been some missteps in the law’s use of scientific proof as evidence in civil litigation — like when the Supreme Court affirmed a trial court holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that an engineer with a Masters in Mechanical Engineering who had worked in tire design and failure testing at Michelin was nonetheless incompetent to testify about tire failures — but, by and ... Continue Reading

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This Is Rice: How To Get Better At The Practice Of Law

  This month the Smithsonian has long profile on Anthony Bourdain that ends with, “What would you like your last meal to be?” In typical Bourdain fashion, the meal he has in mind is virtually impossible to get without reservations weeks in advance: a sushi course at Sukiyabashi Jiro, the three Michelin star restaurant profiled in the excellent documentary Jiro Dreams of Sushi. As Bourdain explains:   Watch the film and you will understand. It is an 88-year-old man doing the same basic 30 or 40 basic cuts of Edo-style sushi, meaning nothing innovative. Every night he’s been going to ... Continue Reading

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Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?

Two weeks ago, I attended the Pennsylvania Bar Institute’s Federal Bench-Bar Conference, which featured a panel discussion on “Ethical Issues During Depositions: Hypothetical Scenarios.” The panel included two federal judges and two Fellows of the American College of Trial Lawyers.   The panel raised a number of interesting issues. It also tried to tackle the vexing questions of how, exactly, you stop an opponent from obstructing your deposition and how you identify and prevent manipulation of a witness’s testimony. Deposition misconduct and discovery obstructionism are subjects I’m keenly interested in (and subjects I’ve spoken on as part of an ABA ... Continue Reading

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Taking The Law Out of Harvard Law School

  An article last month in The Harvard Crimson (“The Changing Face of the Law Professor”) explained that, fifty years ago, the typical Harvard Law School professor was someone who knew a little about the law but nothing about how it works:   “Somebody who got into a top law school, did very well and then completed a prestigious clerkship was well situated to be hired on the basis of those credentials,” said Law School professor Richard H. Fallon, who attended Yale Law School and clerked for U.S. Supreme Court Justice Lewis F. Powell.   These days, however, the typical ... Continue Reading

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The Supreme Court’s Results-Oriented Summary Judgment Precedent

Civil procedure in the federal courts has changed dramatically over the past few years, primarily through the Supreme Court’s manipulation of doctrine to encourage lower courts to dismiss tort, class action, antitrust, and civil rights cases. As I wrote a year ago in a guest post at TortsProf:   [A]s the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying ... Continue Reading

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Tom Goldstein (“The Hustler”) and Atticus Finch

The most sacrosanct tenet of American law is enshrined on the facade of the Supreme Court: “Equal Justice Under Law.” The aspiration is ancient; the phrase comes from Pericles’ funeral oration. My favorite rendition of the concept as applied in American law is in To Kill A Mockingbird:   But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution gentlemen, is a ... Continue Reading

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Judge Cote And The Pre-Trial Preview In The Apple–Amazon e-Books Case

Vanity Fair has a profile of Federal Judge Denise Cote (of the Southern District of New York) that revolves around her involvement in the Apple–Amazon e-books antitrust brouhaha. The article is helpfully titled “The Judge That Apple Hates” for anyone who didn’t know how the case turned out.   I wrote about that case when the Department of Justice first filed it, voicing my support for the DOJ’s claims. Whatever one thinks of Amazon’s impact on the book publishing world, it’s hard to dispute that Apple and the publishers entered into a collusive agreement for the purpose of raising prices ... Continue Reading

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ACOG Improves Its Guidelines On Brain Injury At Birth (A Little)

For lawyers who represent birth malpractice victims, few phrases conjure up as much ire and frustration as “the ACOG report,” the shorthand for a 2003 document put out by the American College of Obstetricians and Gynecologists (“ACOG”) called “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis.” Despite its title, the report made no effort to explain how a doctor could determine the cause of a particular child’s cerebral palsy, and it made no effort to explain how the incident of neonatal encephalopathy (i.e., newborn brain damage) could be reduced. (Bob Schuster has a little more on its origins, and MedScape ... Continue Reading

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery

“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989).   The First Judicial District of Pennsylvania, better known as Philadelphia state court, is one of the most efficient high-volume civil justice court systems in the country. Part of this success owes to the “Day Forward” program implemented years ago, which ... Continue Reading

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