Regulation

This Law Contains Defects Known to the State of California to Cause Frivolous Lawsuits

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California Attorney General Jerry Brown is worried that mercenary lawyers (is that redundant?) are abusing Proposition 65, a.k.a. the Safe Drinking Water and Toxic Enforcement Act. The law requires disclosure of toxins and carcinogens in consumer products and authorizes enforcement by private litigators, who keep a quarter of the penalties. New York Times legal columnist Adam Liptak reports:  

The law generates 100 to 150 settlements for a total of about $10 million every year, Mr. Weil [a lawyer in Brown's office] said. "There is a group of about a dozen law firms out there who do nearly all of the private litigation," he said.

The lawyers visit stores and do research on the Internet, matching products to substances on the list. "Even a few molecules will do," the frustrated appeals court judge, Presiding Justice David G. Sills of the California Court of Appeal in Santa Ana, wrote last year in rejecting a proposed settlement…

The products need not be exotic. "Dried paint," Justice Sills wrote. "Furniture. Parking lots. Wiring. Really."

Weil complains about one lawyer in particular who "pummels small, basically defenseless companies for small amounts of money individually for cases that should not have been brought in the first place." But as Liptak concludes, the problem seems to be the law, not the lawyers who do what it invites them to do.

Update: Here's a copy of Liptak's column that's available to nonsubscribers.

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  1. that mercenary lawyers (is that redundant?)

    Sez the Geneva Convention:

    Article 47.-Mercenaries

    1. A mercenary shall not have the right to be a combatant or a prisoner of war.

    2. A mercenary is any person who:

    ( a ) Is specially recruited locally or abroad in order to fight in an armed conflict;

    ( b ) Does, in fact, take a direct part in the hostilities;

    ( c ) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

    ( d ) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

    ( e ) Is not a member of the armed forces of a Party to the conflict; and

    ( f ) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

    So by (d), as long as they are Americans doing American lawsuits, they’re not mercs.

    Thanks to Warty for the research help on this.

  2. The NYT article is behind their TimesSelect firewall.

  3. A terrible law. The market will get rid of all toxins in consumer products because people will only buy toxin-free products. Problem solved, and no lawyers needed.

  4. But as Liptak concludes, the problem seems to be the law, not the lawyers who do what it invites them to do.

    Talk about a redundant statement.

    So by (d), as long as they are Americans doing American lawsuits, they’re not mercs.

    How about vigilante: a member of a volunteer committee organized to suppress and punish crime summarily (as when the processes of law are viewed as inadequate); broadly : a self-appointed doer of justice.

  5. Vigilante could work, except you’ve got that whole “doer of justice” problem in the definition.

  6. In a multiclause statement that talks about “reporting toxins” and “private legal enforcement”, Dan imagines a gripe about reporting toxins at all just to be an ass again.

  7. mercenary lawyers (is that redundant?)

    Hey! I resemble that remark!

  8. Curse you, Two Can Play At that Game!

  9. IF lawyers were given a ‘windfall’ tax on all income from settlements, say anything over $1000 dollars per documented hour of attorney time, and $50/hr. for others, then maybe the laws, written by lawyers, for lawyers, would be OK. Trial lawyers give more money to politicans than any other profession, corporation, or organization. Does that not tell you something about the “LAW?”

    Do a piece on Jesse Jackson extortions of corporate America and trail attornies being unreasonably and unfairly compensated.

  10. Lawyers. (sniffle) Courageous idealists. Where would the little guy be without them?

  11. . Trial lawyers give more money to politicans than any other profession, corporation, or organization. Does that not tell you something about the “LAW?”

    That there should be sensible limits on political giving so that no interest group can buy the law. Good call, knock knock. They forget that around here sometimes.

  12. Two Can Play…,

    Lawyers aren’t covered by the Geneva Conventions. 😉

  13. “But as Liptak concludes, the problem seems to be the law, not the lawyers who do what it invites them to do.”

    Come on, Jacob. Maybe the law needs to be rewritten, but how about a little more outrage for unethical behavior on the part of the lawyers?

  14. mercenary lawyers (is that redundant?)

    This sort of bigotry betrays a woeful ignorance of what it means to live in a society that is ruled by law.

  15. Lawyers aren’t covered by the Geneva Conventions.

    Why not — I would think they are the very epitome of “legal combatants”?

  16. “A terrible law. The market will get rid of all toxins in consumer products because people will only buy toxin-free products. Problem solved, and no lawyers needed.”

    From what I can tell, the law doesn’t do anything to remove toxins from any product. It merely means that every business you enter in the state of Kalifornia has a prominently displayed warning sticker stating something to the effect of “These premises contain chemicals that may cause cancer …yadda …yadda …yadda”. The point being, the organic grocery store is required to post the same sticker as the paint store or face possible litigation from these “consumer protection” lawyers.

    These “warning” stickers would be akin to placing a health warning label not just on every bottle of alcohol* but also on fruit juice, water soda (basically any liquid that is put in a bottle). It’s the sticker that cries wolf.

    *stupid idea but that’s another thread

  17. “After 2003, [non-government lawsuits] must also serve a certificate of merit (statement of expert consultation(s) supporting belief of reasonable and meritorious private action) as a means of preventing frivolous enforcement actions.”

  18. Edward-

    Your comment betrays a woeful ignorance of the definition of “mercenary.”

    I’ll give you a hint- these guys wouldn’t be persuing these suits unless granted letters of marque and reprisal, with the state sharing a quarter of the spoils.

    If lawyer jokes offend your tender sensibilities, blame the lawyers that inspire the jokes. Put a little effort into shaming them into proper behavior, instead of whining about “bigotry.”

  19. The market will get rid of all toxins in consumer products because people will only buy toxin-free products. Problem solved, and no lawyers needed.

    Dan T., you could more effectively skewer the anarcho-libertarian position on this issue if you first knew what it was. You got it half right, but the other half is that any consumer harmed due to fraudulent safety claims could file a civil suit for damages. That, of course, would require lawyers.

  20. Lemme help you out there, Dave W:

    That there should be sensible limits on political giving power so that no interest group can has any reason to buy the law.

  21. but the other half is that any consumer harmed due to fraudulent safety claims could file a civil suit for damages.

    How does it work if the manufacturers (all of them) decide to make no safety claims?

    What if the consumer cannot prove that her harm is due to a specific toxin in a specific product? You understand that that can be hard to prove.

    Dan T. is correct that the “anarcho-capitalist” position is unrealistic.

  22. That there should be sensible limits on political power so that no interest group has any reason to buy the law.

    Coming from an Iraq War supporter from Texas, it is hard to take you seriously when you say this.

  23. Hey, I’m an impure libertarian who thinks some government regulation is just fine, so I’m not going to defend the anarcho-libertarian position.

    I’m just trying to help Dan T. be an interesting troll. So many of his attempts miss the mark and just leave people scratching their heads.

  24. Scooby

    Lawyers play by the rules of the game. If you don’t like the rules, work to change them, but don’t whine about the lawyers. Somebody might suspect you of being envious.

    In other words, you’re the whiner, you whiny fuck.

  25. Well played, Edward- a nice use of the “sour grapes” gambit, as a lead-in “I’m rubber and you’re glue” defense.

    Lawyers are fine. They can work the system all they want- it’s their job, after all. But mocking lawyers that work the system is a means to changing the rules. The rules won’t change themselves- they will only change when the lawmakers are shamed into changing them.

    Calling lawyer jokes “bigotry” is silly hyperbole, you whiny whining whiner.

  26. Scooby

    Only a whining weenie tit-sucking ninnny-nanny could embrace shame as a viable tactic to effect change, you simpering, finger-wagging, cluck-clucking little wussy.

  27. “If lawyer jokes offend your tender sensibilities, blame the lawyers that inspire the jokes. Put a little effort into shaming them into proper behavior, instead of whining about “bigotry.””

    Right On! And the same goes for all minorities. We should blame the people who “inspire” the great jokes, not those who merely giggle at them. You know, if it wasn’t really true, there wouldnt be a racist joke about it….

  28. Tommy, I guess you’d have something resembling a valid point if, in order to become a racial minority, one had to spend 3 years in racial minority school and pass an extensive exam.

    Edward, I realize shame is useless against the shameless. Unfortunately, the Mr. “Don’t call me ‘bounty hunter’; I’m a ‘civilian enforcer'” probably falls into that category. OTOH, his behavior seems to be annoying and/or embarassing the attorney general, so there is hope for change.

  29. Hey, I’m an impure libertarian who thinks some government regulation is just fine, so I’m not going to defend the anarcho-libertarian position.

    and, for the record, I am generally a pro-mandatory labeling person who nevertheless believes that Prop. 65 is an unwise labeling requirement.

    It should also be noted that this is an unusual labeling requirement in that it was passed as a California “Proposition,” which means enacted directly by the voters in a direct election, rather than enacted by a legislature or an executive agency. In other words, if the trial lawyers bought the government, then in this case it means they bought a majority of California voters individually. Quite a feat!! Some of the older California libertarians will recall that Prop. 13 was enacted this same direct democracy way.

  30. Scooby,

    It isn’t just that shame is useless against the “shamelees.” Trying to use shame to change behavior you don’t approve of is just so school-marmish. It’s an appropriate stance for some bleeding-heart, sob-sister leftist, but not for a manly libertarian.

  31. mmmkay. Mockery not only utilizes shame in those susceptable, but also diminishes the influence of the mocked on the electorate. Two birds with one stone. I’ll admit that mockery isn’t as manly (nor satisfying) as stringing up the offenders (in this case, rent-seeking barattors) by their ballsacs, but it does have the benefit of being compatable with a society that is ruled by law.

    While we are comparing genitalia, would you concede that equating a throw-away line questioning the motivation of lawyers (mercenary lawyers: redundant?) with racial bigotry is the act of a hypersensitive twit, and indicative of someone lacking a modicum of testosterone?

  32. Scooby

    Bigotry is bigotry; it doesn’t come in different flavors. It’s a glitch in the thinking mechanism. You might want to have yours checked.

  33. Hmm. Your ideas are intriguing to me and I wish to subscribe to your newsletter.

  34. Save your money, Scooby. Reading any newsletter would just make you lips sore.

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