Category Archives: Legal Times

Stuart Taylor, Jr.’s Legal Times media appearances.

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Making Litigation Not Pay

by Stuart Taylor, Jr.

Republican rule on Capitol Hill has put new wind in the sails of some dubious proposals for striking at the very real problem of wasteful and abusive litigation tactics.

"Reforms" like the English "loser pays" rule and numerical caps on damages, which are in the House Republicans’ Contract With America, would surely stop some unwarranted suits, but they would also thwart many injured people with legitimate claims.

There are some better ideas in the hopper-ideas aimed at slashing billions in wasteful litigation costs rather than shielding business from liability to injured individuals. One of the most intriguing, endorsed by an impressive array of legal luminaries, seems well-designed to help deserving plaintiffs get swifter, surer compensation and to ease the litigation burden on business (as well as on plaintiffs)-and all without limiting any plaintiff’s right to seek full redress.

What’s the trick? You guessed it: Take it out of the lawyers’ hide.

But this proposal is not the kind of crude, probably counterproductive fee cap that some states have passed. It is an ingenious, largely self-executing mechanism aimed at restricting contingent fees to cases in which lawyers really earn them, while promoting early settlements in the many cases in which liability is easy to establish.

Here’s how it would work:

Any plaintiffs lawyer seeking a contingent fee in a personal-injury case would have to notify each defendant of the claim and provide routinely discoverable information about the plaintiff’s injuries, medical costs, and the like. The defendant could then make a settlement offer within 60 days, also accompanied by relevant discoverable information.

If such an early offer were made and accepted, the plaintiffs lawyer-having done little work-would be limited to hourly fees, capped at 10 percent of recoveries up to $100,000 and 5 percent of any additional amount.

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Iraqgate: Mother of All Phony Scandals

by Stuart Taylor, Jr.

"This is a bigger cover-up than Watergate ever was… It involves the decision by George Bush to arm Saddam Hussein."

–Vice President nominee Albert Gore Jr., Oct. 25,1992

‘We did not find evidence that U.S. agencies or officials illegally armed Iraq…. We also considered whether the Justice Department’s earlier work…. was subverted for political purposes, and found that it was not…. I found no evidence of corruption or incompetence…. On the contrary, the work of the Department and other agencies has by and large been thorough, persistent, and careful."

–John Hogan, counselor to Attorney General Janet Reno, in final report of special task force investigating alleged Bush administration crimes involving Iraq, made public Jan. 23, 1995

So the last word is in. At least, it will be the last word for all but the looniest of conspiracy theorists. The great "Iraqgate" scandal of 1992-a cavalcade of claims democrats and big-shot journalists that the Bush administration secretly and illegally armed Saddam Hussein’s Iraq, then lied to Congress and obstructed justice to cover it up-has been found phony, by none other than the Clinton administration.

John Hogan, a longtime close aide to Attorney General Janet Reno, whom Reno chose in June 1993 to get to the bottom of Iraqgate, has now issued a carefully documented 119-page report, summarizing the work of nearly 20 prosecutors and investigators over 15 months.

The bottom line: no evidence of Bush administration crimes, no evidence of a cover-up, no evidence of a "decision by George Bush to arm Saddam Hussein," no evidence of obstruction of justice.

As Hogan notes, with admirable understatement, "Neither I nor the Justice Department have any stake in protecting earlier administrations from embarrassment."

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Outrages and Curmudgeonly Complaints

by Stuart Taylor, Jr.

In the spirit of the season, and in the hope of a fresh start-with malice toward none, with charity for all-in the new year, I hereby purge myself of various vexations left over from the old year.

LEFT-WING CLALAP

• The dangerous demagoguing of the Medicare issue by President Bill Clinton and other Democrats, who seek profit from big lie that the Republicans would destroy the program-when, in fact, they would not cut much more than the president himself has proposed. The Democrats’ tactics may make it politically impossible to avoid budget deficits that are so huge, for so long, as to risk fiscal disaster.

• The Sept. 29 suggestion by Willie Brown-the former speaker of the California Assembly who was elected mayor of San Francisco this month-that students should "terrorize professors you don’t like" to demonstrate displeasure when those professors support the "racist" and "crazy" idea that university admissions should not be based on race.

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Outrages and Curmudgeonly Complaints

by Stuart Taylor, Jr.

In the spirit of the season, and in the hope of a fresh start-with malice toward none, with charity for all-in the new year, I hereby purge myself of various vexations of the old year:

LEFT-WING CLAPTRAP

• The hypocrisy of feminists who airily dismissed former clerical worker Paula Corbin Jones’ claim of sexual harassment against President Bill Clinton this year (Pat Schroeder "It just makes me want to throw up.") after having reflexively embraced law professor Anita Hill’s not-necessarily-more-credible claim against Clarence Thomas in 1991.

• Especially rich was the complaint by then New York Times columnist Anna Quindlen (PC feminism’s George Will) that "[a]bove all, her timing is troublesome," because Jones waited almost three years, until Clinton was president, to go public. Perhaps Quindlen forgot that her heroine Anita Hill waited 10 years to blow the whistle on Thomas, who was voted a federal judgeship (and from whom Hill sought and accepted a few favors) in the interim.

• The Rev. Jesse Jackson’s demagogic claim that the Rev. Pat Robertson’s conservative Christian Coalition (or its antecedents) had been a "strong force in [Nazi] Germany" and was associated with the Holocaust and with slavery in the old South.

• The "Equal Employment Opportunity Handbook" of the Food and Drug Administration’s Center for Biologies Evaluation and Research, a formula for quota hiring that warns against inquiry into virtually all of the things that an employer might want to know about an applicant’s qualifications. For example:

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Why Term Limits Flout the Framers Intent

by Stuart Taylor, Jr.

"A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of public business…The greater the proportion of new members and the less the information of the bulk of the members, the more apt they will be to fall into the snares that may be laid for them."

–James Madison, The Federalist, No. 53

”The gentlemen deceive themselves; the amendment would defeat their own design. When a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument."

–Alexander Hamilton (arguing at New York ratification convention that term-limits laws would make representatives less accountable to the people)

I think term-limits laws are bad policy-a cure worse than the various diseases of entrenched incumbency. Rather than some arcadian realm of "citizen legislators." term limits would (I conjecture) give us legislators whose main distinctions from the ones we have now would be a relative lack of useful experience, knowledge, and seasoning: a greater inability to coalesce behind leaders, en-sage in reasoned deliberation, and produce coherent legislative programs: a greater dependence on the lobbyists and special interests that finance campaigns and provide employment opportunities for ex-legislators.

I therefore bring a certain bias to the question of whether state laws aimed at forcing long-term incumbents out of Congress should be struck down as unconstitutional, on which the Supreme Court heard arguments on Nov. 29 in an Arkansas case. U.S. Term Limits v. Thornton. But 1 also have a countervailing bias: When in doubt, the Court should let voters try out any damn fool idea they please.

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Crazy in California

by Stuart Taylor, Jr.

California’s voters have given us an occasion for melancholy reflection about the moral underpinnings of immigration policy, and about the condition of democracy in America. By a margin of 59 percent to 41 percent, Californians voted Nov. 8 to enlarge the underclass by kicking out of school hundreds of thousands of children of illegal immigrants; to increase crime by condemning them to roam the streets; to spread infectious disease by denying them vaccinations and other basic health care; and to create a police state by enlisting teachers, doctors, nurses, and even the children themselves as Soviet-style informants against their parents.

All this, also known as Proposition 187, is brought to you by some of the same "conservatives" who are so eager to stem the expansion of our home-grown underclass as to tout the "let ‘ em starve" variant of welfare reform, and so eager to liberate The People from big-government meddling as to seek tax cuts that would bankrupt the nation.

Of course Proposition 187 supporters like California Gov. Pete Wilson say that the vote was about saving the taxpayers the estimated $1.4 billion a year that it costs to educate more than 300,000 children of illegal immigrants. But any short-term savings will be dwarfed by the long-term costs.

Supporters also suggest that 187 will discourage illegals from coming to sponge off U.S. taxpayers. The columnist George Will, for example, paints the initiative as a righteous refusal of "welfare state" benefits to "people seeking entitlements from a state in which their presence was illegal." This effort to tar public education as some kind of exotic welfare-state entitlement combines demagogic pap with mindless scapegoating of innocent children.

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Affirmative Action and Ambivalence

by Stuart Taylor, Jr.

Racial preferences, or affirmative action, or quotas, or call-them-what-you-will, are back in the news:

• The Supreme Court-which has picked up four new justices in four years while losing its three strongest proponents of affirmative action-has agreed to decide a racial-preference case for the first time since it struck down a state program in 1989 and upheld a federal one in 1990, leaving the law in a state of uncertainty. The case, Adarand Constructors v. Peña, involves the preferential award of a federal highway subcontract in Colorado.

• Likely to arrive at the Court by 1996 is Taxman v Board of Education of Piscataway, a case that the Clinton Justice Department has made famous-to the delight of Republicans hoping to unseat the president-by defending a New Jersey school district’s decision to lay off a white teacher and keep an equally qualified black teacher, on the basis of race.

Also headed for the Court is the most disconcerting case of all: Hopwood v. Texas, an appeal involving the University of Texas Law School by white applicants challenging the school’s policy of seeking 5 percent black and 10 percent Hispanic enrollment by admitting several times as many minority students as would a colorblind process and passing over hundreds of whites with higher grades and test scores. Virtually every elite university in the country does the same, 16 years after the Court held in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), that any regime that operates as a quota system driven by racial numbers was unconstitutional.

The supposedly temporary experiment with modest racial preferences on which this nation embarked in the 1970s has become a long-term, self-perpetuating addiction. With no end in sight, it is sapping the health of the body politic.

Both the benefits and the costs of racial preferences are familiar.

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The Haiti Precedent: Limiting The Damage

by Stuart Taylor, Jr.

Having accused President Bill Clinton of preparing " a near-fatal blow to the framers’ carefully crafted restraints on the president’s war-making power" ["A Betrayal of the Constitution," Sept.19 1994, Page25], I write now to concede (with some relief) that the not-quite-invasion of Haiti ended up doing less damage to the constitutional fabric than I had feared.

I also respond below to a rebuttal by Lee A. Casey and David B. Rivkin Jr. ["In Constitutional Interpretation, Read the Framers’ Words," Oct. 3, 1994, Page 24], who defend-as well as anyone could, perhaps-a position bordering on the frivolous: that the framers of the Constitution gave the president sweeping power to invade any nation in the world without congressional consent.

President Clinton committed an unconstitutional act (in my view) by ordering an invasion of Haiti on Sept. 18 without a prior congressional vote of approval. But the importance of that act as a precedent for future presidents planning unconstitutional adventures was limited, thanks to some careful lawyering by Walter Dellinger, head of the Justice Department’s Office of Legal Counsel (and thanks also to the last-minute deal with Haiti’s milijary that averted actual hostilities.)

In a Sept. 27 response to an inquiry from Senate Minority Leader Robert Dole and others, Dellinger offers a set of after-the-fact legal rationales for the unconsummated invasion that have the significant virtue of being narrow and Haiti specific. The assistant attorney general’s letter will be of less value to those claiming broad presidential power to launch future invasions than to those opposing such claims.

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Feminism and Educational Opportunity

by Stuart Taylor, Jr.

I have two daughters, 7 and 10 years old. I want them to have every opportunity to develop their educational potential to the fullest, so that they will be able to (among other things) compete against men for good jobs. And I am concerned that their opportunities will be diminished-not enlarged-by one of the feminist movement’s current crusades.

Feminist groups and their allies in the Justice Department are urging the courts to force the nation’s two remaining bastions of all-male, boot-camp-style, state-supported military education-Virginia Military Institute (VMI) and The Citadel, in South Carolina-to admit women. These cases, pending in the U.S. Court of Appeals for the 4th Circuit, seem likely to produce a major Supreme Court ruling. And if recent precedents are any guide, the feminists may well win.

I’m afraid that my daughters will be among the losers.

The immediate effect of such a decision, of course, would be to create opportunities for the tiny handful of young women who want the attend VMI and The Citadel. These institutions argue, on the other hand, that coeducation would impair the educational and social development of a considerably larger number of young men: those who thrive on the kind of harsh regimen of physical and psychological adversity that VMI and The Citadel now offer, which might have to be watered down to accommodate coeducation.

Of more concern to me is the probable secondary effect of a precedent barring all male education at VMI and The Citadel: It would raise higher the already daunting legal barriers to experimentation with any form of public single-sex education.

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A Betrayal of the Constitution

by Stuart Taylor, Jr.

In a sad display of Democratic hypocrisy-only cosmetically offset by a smaller dose of the Republican variety-President Bill Clinton is about to trash one of the Constitution’s cardinal principles: its solemn reservation to Congress of the power "to declare war."

If this would-be imperial president fulfills his lawless (and foolish) vow to invade Haiti without first seeking a congressional vote of approval, he and his congressional accomplices will have administered a near-fatal blow to the framers’ carefully crafted restraints on the President’s war-making power.

Already weakened by decades of Cold War strangulation-most recently by Presidents Reagan and Bush-those restraints may not survive this betrayal by their supposed Democratic guardians. Senate Majority Leader George Mitchell of Maine, House Speaker Thomas Foley of Washington and many others have abdicated their constitutional responsibilities and bowed to Bill Clinton’s power grab.

The planned 20,000-troop invasion of Haiti would surpass recent Republican rapes of the Constitution in at least one sense: It would be the first time a president has launched an invasion without seeking congressional consent solely because he couldn’t get it. It will also apparently be the first time an invasion has been sped up to pre-empt Congress from voting to forbid it.

Worse still, the White House claims power to launch an invasion even if Congress does forbid it. Or, at least, so one anonymous official told The New York Times, " ‘Either the [congressional] leadership figures out a way not to have the vote, or we find some compromise, or we lose and go ahead with the invasion anyway.’ " Having thus posited a presidential predisposition to commit an impeachable offense, this official blandly added, " ‘Politically, there are no great options.’ ”