Missive from Madison County

In a post today Evan Schaefer, in his Notes from the (Legal) Underground, accuses me of being "ignorant of the law" -- not only in the body of the post, but in the title as well. He's referring to my post on Milberg, Weiss in which I said:

I think it's fairly clear that the tort system has gotten out of hand, and that tort litigation now does more harm than good. That's particularly true of state tort actions, like those in Madison County, Illinois, which are decided under local rules that favor in-state plaintiffs' lawyers over out-of-state companies, consumers and shareholders

Schaefer says:

Here's my problem with this passage: as Professor Ribstein should know, since he teaches law in Illinois, tort actions in Madison County--whether class actions or not--are not decided under "local rules," as he claims, but under statutes, rules and precedent established by the Illinois legislature and the Illinois Supreme Court that are applicable to lawyers throughout the state. It's incorrect to imply that lawyers like me who practice in Madison County are some sort of independent loose cannons who are allowed to apply our own private set of rules

I stand by what I said. As should have been obvious to Mr. Schaefer upon a reasonably careful read, although I used the word "local," I was referring to state law -- the passage he quotes refers to rules that "favor in-state plaintiffs' lawyers over out-of-state" parties. The problem I was alluding to, and perhaps need to spell out for Mr. Schaefer's benefit, is that states may sometimes tend to legislate for their own citizens and contrary to national interests. This is not very controversial. It's why we have an interstate commerce clause in the Constitution, for example. It's not important or even relevant to this point whether people like Mr. Schaefer are "loose cannons."

And, yes, on this issue, as I hope on most of the things I talk about on this blog, I do know what I'm talking about. I've written or co-authored several articles on conflicts of law and litigation related matters, (for those who are interested, drafts of many of these are here and here) and taught conflicts of law. Here's a partial list:

Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004).
From Efficiency to Politics in Contractual Choice of Law, 37 Ga. L. Rev. 363 (2003).
State Regulation of Electronic Commerce (with Kobayashi), 51 Emory L.J. 1 (2002).
Ethical Rules, Law Firm Structure and Choice of Law, 69 U. Cin. L. Rev. 1161 (2001), reprinted in 44 Corporate Practice Commentator 405.
Calling a Truce in the Marriage Wars, 2001 University of Illinois Law Review 561.
From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev. 1151 (2000).

And, I might add, I do not have an ax to grind, except in this case protecting my reputation from what I view as an unfair attack.

Comments

[david giacalone]

Citations are not ideas, arguments or facts. As a lawyer with no stake in the tort reform wars (other than an ongoing battle against the use of the standard contingency fee -- see, e.g., http://blogs.law.harvard.edu/ethicalesq/2003/06/03#a21), I wish you would tell us in what specific ways Mad. County or Illinois tort law favors "local attorneys" or the local citizenry and disfavors out of staters.

[Ted]

There are local rules that apply just to individual courtrooms in Madison County--most defense lawyers aren't subject to trial calendaring where dozens of trials against the same defendant brought by the same attorney are scheduled for the same day and the plaintiff gets to pick at the last minute which one will go forward.

Too, there are readings of basic issues such as proof of causation or class certification standards that are unique to Madison County separate and independent from the rest of Illinois. And there are certainly lawyers in Madison County who operate under their own private set of rules. So Professor Ribstein has nothing to shy away from in his original claim.