Author: Dave Hoffman

2

Saddam’s Host of Lawyers

saddam.jpg

Via Drudge, I hear that 1,100 lawyers are leaving Saddam Hussein’s defense team because of security fears. But Saddam’s trial will go on.

I lack expertise in the Iraqi security situation and legal system, and so I’m left with a (perhaps naive) question: why does Saddam need over a thousand lawyers? [And how did the team apparently grow by 1,089 lawyers over a few weeks?] Only three explanations come to mind.

1. Saddam plans to mount a meticulous defense to the charges on the merits, and needs hundreds of attorneys to comb through the evidence against him, interview witnesses, and develop a coherent legal strategy.

2. Saddam plans to win at trial by hook-or-crook, and has employed a host of lawyers as a first step in rebuilding his empire of patronage and client relationships.

3. Saddam is not in control of his legal team. The person who is plans to use the opportunity as first step in building an empire of patronage and client relationships.

Possibility #1 is a joke; #2 is delusional; #3 is just sad.

4

Sex Sells Contracts: Why Not Securities Law?

markets.jpg

The ContractsProf Blog recently posted about “Sex and Contracts.” Frank Snyder notes that the post resulted in a huge traffic spike. “There’s a lesson there,” he concludes. There sure is.

I could (as this blog did) identify a case or so that directly appeals to your prurient interest in the topic. But maybe the better path is to take a step back, and consider a more academic question.

Let us assume that you, a general counsel, have just learned that your CEO is having a consensual affair with a subordinate. Also assume that the corporation has recently stated, in a regular reporting statement, that its management team is “cohesive, ethically sound, and 100% committed to shareholder value.” [Note: this is entirely hypothetical]

Putting aside other considerations, is it likely that a court or jury would find it materially misleading to have omitted disclosure of the affair?

Read More

0

Back from the Hiring Conference

I just returned from the AALS hiring conference. Temple saw some wonderful folks, including several confessed readers of this blog.

Because of the swirl of events, I didn’t get to see others who I would have liked to, even though I did mill around the Friday night reception for that very purpose! (For a pre-conference take on whether going to such receptions makes sense, see here.) Despite Al and Mike‘s fashion tips, I admit to not wearing a tie. And that is about as much as I think I can say about the experience, as the deliberative process privilege probably applies to the rest of what went on.

3

Guidant/JJ Litigation

heart.jpg

Counsel, start your time-clocks.

As has been well-reported, Guidant has sued Johnson & Johnson for specific performance of J&J’s $25.4 billion acquisition. J&J will almost certainly assert that its obligation is void under the merger agreement’s “material adverse effect” clause, and, specifically, will argue that the clause has been triggered by Guidant’s messy encounters with state and federal regulators over its heart stents.

Bill Sjostrom at the Business Law Prof Blog has been all over this looming fight.

Back in September, he started questioning the deal’s continued viability. In October, he put up a great post on the MAE at issue in the (then) potential litigation. He argued that NY AG Spitzer’s lawsuit against Guidant may strengthen JJ’s claim here. Finally, he broke news of the suit here.

Obviously, I do not know how this will turn out. But doesn’t it seem that J&J could have protected itself against this type of risk with more precision? Isn’t regulatory action the number two legal problem medical device makers potentially face, after patent claims?

For more information, Pharmablog talks about the underside of drug testing here. Finally, the Stent Blog (!) is a must-read resource if you care about the statistical likelihood of stent failure.

0

Welcome Business Week Readers

welcome.jpg

This week’s Business Week Online contains a reference to this blog’s postings on Judge Alito’s securities jurisprudence. For your reference, we’ve written about Judge Alito several times.

1. Solove on Alito and privacy law.

2. Hoffman on the power of Congress to subpoena Alito’s former law clerks.

3. Solove on the utility of mining Alito’s record.

4. Hoffman on Alito and securities law (Part I).

5. Hoffman on Alito and securities law (Part II).

6. While you are here, you may also be interested in posts that don’t appear on our main page, including Oman on the bankruptcy of France and the philosophical significance of the repo man, and Wenger on liability for blogging. Plus, you really ought to read our registration statement.

1

“Potentially Safer” Cigarettes

images.jpeg This article from the Times (UK) is interesting. Apparently, BAT is planning to introduce a cigarette that, through various filtering technologies, may cut the risk of cancer and other smoking related diseases up to 90%

There are many problems with producing, marketing and buying “safer” cigarettes. Some were explored in one of my favorite books about American business, Barbarians at the Gate. As the article points out, the BAT folks are nervous. Although “privately” they refer to the cigarette as “risk free” or “low-risk cigarettes”, they are going to be sold as merely “potentially safer”.

But here is the kicker. BAT executives understand they can’t say, out loud, that consumers using their product as it was intended to be used will not get sick. Even safe cigarettes are bad for you, even if somewhat less so than competitive brands. But the “safe” inference is the inference that BAT really would like consumers to make. Without the inference, why would smokers buy a cigarette that likely will be more expensive, or have a harder “draw,” or might even taste terribly. So, BAT is “likely to focus its advertising on the new technology,” and hope that consumers will reach the appropriate conclusion themselves.

9

Why Congress Shouldn’t Subpoena Judge Alito’s Clerks.

This morning, I read this Sunstein-influenced NYT article which reads the tea-leaves of Judge Alito’s dissents to better predict his future rulings. The guessing game is pretty risky for many political players. Both sides of the aisle face retribution from their bases if Judge Alito deviates from (their respective views of) his predicted path. Senate Republicans have more at stake: if Judge Alito does not vote to overturn Roe, which seems at least possible given the malleability of Casey, the base would be irritated beyond all measure.

If Senators want more information about a nominee than that found in his or her public record (including financial record!), they’ve a few places to go: (1) the administration (through private and public channels); (2) the Judge (through written and oral Q&A); (3) the Judge’s friends, family and colleagues, and (4) the Judge’s former law clerks.

UTR has already gotten us going on this last track, summarizing the reactions from a few of Judge Alito’s former clerks. But, obviously, these reactions are highly self-selective. Let’s assume that the Senate really wanted to know more from the clerks about Judge Alito’s privately expressed (but legal) views about abortion, gay marriage, the death penalty, securities law, executive detention, etc. Could the Senate subpoena the law clerks and force them to talk?

Read More

5

Jury Finds for Merck: Will its Critics Notice?

The NJ jury hearing the latest Vioxx case found Merck & Co. not liable for the death of Frederick “Mike” Humeston after seven and a half hours of deliberation. The ruling contrasted with an earlier Texas jury’s determination that Merck was liable for the death of Robert Ernst.

Following the Ernst verdict, a hue and cry arose against the jury system, with some claiming, for instance, that “this incident . . . raises serious questions as to the competence of lay jurors to resolve technical issues.” Now that we’ve another anecdote in hand, is it possible that these earlier critics owe the American jury system an apology?

3

Becker and Posner Mull Price Gouging

Over at the Becker-Posner Blog, the resident luminaries have gotten around to discussing the problem of whether and when to punish “price gouging” after natural disasters. Judge Posner makes the expected moves (“sheer ignorance of basic economics”; “[t]he only beneficiaries will be people with low costs of time and nonurgent demand”; “higher prices for gasoline are a source of substantial external benefits”.) However, he does concede that price gouging regulations might be appropriate under two types of circumstances.

Read More

0

Leiter, Caron and Hodnicki and a Typology of Successful Academics

It has been well-reported that Brian Leiter, Paul Caron and Joe Hodnicki have teamed up to produce the latest non-USNews law school ranking data. One part of their project measures faculty quality using the proxy of the citations of the more productive members of each faculty. The list is here.

I know our legal readers are way (way) beyond rankings, so they might not actually visit the site. That would be a shame, because the trio wrote a fascinating introductory section discussing six ways in which citation studies may be distorted. The basic theme seems to be that although we would normally assume that work that is cited more often is “better” than work that isn’t, some folks’ work will get cited more often than quality alone would dictate. Those distorted writers are (to paraphrase):

1. Drudges.

2. Treatise writers.

3. Flash-in-the pans faddists.

4. The very wrong.

5. “[O]nce-productive dinosaurs.”

6. Public law scholars, constitutionalists and crits.

Read More