Sometime ago, I read a favorable review of a documentary called The Last Campaign. (I believe the review was by David Yas, the editor of Mass Lawyers Weekly, but I cannot be certain.)
The movie made its way into my Netflix queue and arrived in my mailbox this weekend. The movie depicts the 2004 re-election campaign of West Virginia Supreme Court justice Warren McGraw. In the election, McGraw, a populist opponent of big business, was defeated by his Republican opponent, the relatively unknown Brent Benjamin.
Despite being a popular incumbent, McGraw found himself the underdog when Don Blankenship, the CEO of Massey Coal, poured millions of dollars into the election to run ads against McGraw. McGraw suffered a defeat in the election and Massey Coal succeeded in installing a justice – Brent Benjamin – whom many alleged the company had bought – on the court, right before an appeal was heard in a $50 million lawsuit against it.
Over objections that he should recuse himself from the case because of a conflict of interest, Benjamin went on to cast the deciding vote in a West Virginia Supreme Court opinion that overturned the $50 million dollar verdict against Massey Coal.
The movie does not allude to it, since it was released in 2005, but the story has a post-script: Massey Coal’s influence in the election of Justice Benjamin wound up before the United States Supreme Court in the case of Caperton v. A.T. Massey Coal Co. In that case, the Supreme Court held that the “probability of bias” by Justice Benjamin was so great that he should have recused himself and that, therefore, the decision by the West Virginia Supreme Court was invalid under the Due Process clause.
This week, a further post-script to The Last Campaign: the coal mine disaster in West Virginia occurred at a Massey-owned coal mine. Just another reason to be glad you live in Massachusetts.
Electric bicycles have long been popular in Europe and Asia but, a couple weeks ago on NPR’s Science Friday With Ira Flatow, I learned about their growing popularity here in the United States. Industry experts in America predict there will shortly be one million electric bikes on the road here in the States.
An electric bicycle is essentially your typical bicycle (ideally a bicycle with a sturdy frame) that is equipped with an electric motor or battery. Pedaling the bicycle charges the battery. Cyclists can then allow the electric motor to completely power the bicycle or merely use it to get a little extra “oomph” when pedaling up steep inclines or when fatigued.
A typical electric motor, although small and noiseless, can power the bikes up to speeds of 30-40 mph on downhill runs.
Modification kits that turn a standard bicycle into an electric one cost only a few hundred dollars.
As you can see from the Youtube video, electric bikes are a lot of fun and are pretty much the ideal form of transportation for a long bicycle ride in, say, Napa Valley or on Cape Cod. But I think most personal injury lawyers considering the coming boom in electric bikes will have worries about rider safety.
One of the leading causes of motorcycle accidents is the low profile and low visibility of most bikes. Auto drivers too often don’t see bikers and accidents are the result. This problem seems even more severe with electric bikes, since most electric bike motors are placed on a fairly standard bicycle frame.
In addition, electric bicyclists cruising around at 40 mph need better head protection than the typical bicycle helmet. Using a low-impact bicycle helmet when you’re traveling at 40 mph risks serious head and brain injury. Electric bicyclists traveling at high speeds should be wearing motorcycle helmets.
Lastly, whenever a new product comes on the market, its manufacturers generally haven’t worked through all the design flaws that they inevitably discover later.
But with conversion kits so cheap and the bikes so fun to modify, I suspect we’ll be seeing a lot more of them here on the roads in Massachusetts shortly.
Last week, I was breezing through some blog posts over at Concurring Opinions and I saw that law professor Lawrence Cunningham had posted a link to a new law review article that he had written. The post invited criticism of the article and its conclusions.
Since the article was on a topic of great interest to me – the intersection of personal injury law and economics – I took the time to read it and offer my criticisms and feedback here.
In the article, Professor Cunningham compares two approaches to personal injury law – the “traditional” approach taken by most judges and the so-called “law and economics” approach that attempts to apply the insights of economics to cases. The article compares these two different approaches – as embodied by Judge Richard A. Posner and Judge Cardozo (Posner an alive-and-kicking disciple of economics; Cardozo an influential early twentieth century judge).
The “traditional” approach to negligence, at least as described by Cunningham, is law not necessarily informed by the insights of economics. What Cunningham calls the “traditional” approach to the law of negligence is an “open-textured” approach, where juries’ determinations of negligence draw upon social norms, ethics and personal experience.
The “traditional” approach to the law of negligence differs from the approach of the “law and economics” school, which is headed up Judge Posner and which strives to apply some of the insights of economics to the law. Instead of thinking about negligence in terms of abstract legal principles, someone like Judge Posner is likely to assess whether an action was negligent through a sort of cost-benefit analysis.
Ultimately, Cunningham finds the approach of Judge Posner and others in the “law and economics” school to be lacking for several reasons, including the lack of flexibility in a cost-benefit analysis, the difficulty of assigning dollar values to certain course of action and the failure of the economic approach to yield clear outcomes. Cunningham also takes the “law and economics” school to task for its neglect of people’s personal experience and moral values.
As a practicing personal injury lawyer, I don’t see things as black-and-white as a legal academic like Cunningham does. While I agree that an economic approach to the law is necessarily incomplete, I’m not such a big fan of the “traditional” approach either. The traditional approach can every bit as arid as cost-benefit analysis and can lead to jurors giving disproportionate attention to legal doctrines that were better-suited for other times and places. (I just finished trial lawyer Rick Friedman’s book The Rules of the Road, which warns that plaintiffs always lose when they let defense lawyers frame negligence issues in terms of the (traditional) “reasonable person” standard). So far as I am concerned, an economic approach at least encourages juries to weigh things for themselves, instead of giving them some pre-assigned weight of legal importance. It frees them up to consider all aspects of social welfare and not just principles the law tells them are germane. And, I have had success in applying some of the principles of economics to personal injury actions.
Herewith, then, some criticisms of Cunningham’s article:
At times Cunningham attacks a straw man, when he assumes that an economic approach to the law requires that we believe that people behave as rational, computer-like value maximizers, as homo economicus. Cunningham argues that the merits of a cost-benefit approach are particularly suspect when we are dealing with “spontaneous decisions,” and decisions that are made by drowsy, hungry and basically all-too-human people.
In fact, however, it seems likely that economics can be stretched to be more forgiving of human fallibility. One of the most vital fields of economics right now is “behavioral economics.” Behavioral economics does not assume that humans behave as super-rational value maximizers; instead it understands that we are subject to committing certain errors because of our limited cognitive faculties. The insights of behavioral economics have turned economists like Dan Ariely into best-selling authors. In fact, some legal scholars, like Cass Sunstein, are right now applying the insights of behavioral economics to “humanize” the field of regulatory law.
Another shortcoming to Cunningham’s analysis is that it does not credit the role that economics can play for us when resort to our moral intuitions or tradition fails. This week a federal judge invalidated a patent on a breast cancer gene, upsetting long-standing belief that such genes were patentable. Obviously, with this sort of legal question, it’s difficult to draw upon traditional community standards for answers. It may also be difficult to rely on morals for guidance. I don’t like the idea of someone owning a patent on a human gene, but if patents on genes are necessary to incentivize pharma companies to do the R&D on better treatments, they may be a necessary evil. I’d look to economists for guidance about whether such a patent actually encourages R&D that could lead to us finding a breast cancer cure, rather than basing my opinion on traditions and personal ethics. (To be fair to Cunningham, however, his article dealt with the impact of law and economics in tort law, and not its suitability for work in fields like antitrust law or intellectual property).
…..This post is getting pretty long, so if you’d like to read the rest, you can find it below the fold…….