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Crime, Justice and the Law Policy Studies
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Reforming Indigent Defense How Free Market Principles Can Help to Fix a Broken System
By Stephen J. Schulhofer, David D. Friedman, Cato InstituteCato Journal, 09/08/2010
Most citizens would consider it shockingly unethical for an attorney representing one side in a lawsuit to be selected or paid, even indirectly, by the opposing party. Yet this gross impropriety occurs daily in this country on a massive scale. In criminal cases, the great majority of defense attorneys are paid directly or indirectly by the prosecuting party—the state.
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False Claims Act’s Public Disclosure Bar: Does It Apply to “New Media”?
By R. Ben Sperry, Washington Legal FoundationLegal Backgrounder, 08/26/2010
This Legal Backgrounder will outline the history of the False Claims Act PDB, analyze lower court approaches to Internet sources under the statute, and propose a balanced approach taking into consideration the interests of whistleblowers and private enterprise. To achieve this balanced policy, reasonably reliable Internet sources containing news should count as “news media” under the FCA Public Disclosure Bar.
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Report Sheds Light on Parallel World of Asbestos Bankruptcy Trusts
By Mark A. Behrens, Cary Silverman, Washington Legal FoundationLegal Opinion Letter, 08/26/2010
The RAND Institute for Civil Justice recently completed phase one of a larger research project to examine asbestos-related personal injury trusts established pursuant to Section 524(g) of the Bankruptcy Code. This comprehensive report, “Asbestos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest Trusts,” provides a first-of-its-kind in-depth look at how these trusts are created, how they are organized, and how they operate. As the report explains, “Over time, companies with significant asbestos-related liabilities have filed for bankruptcy, and payments set up by bankruptcy courts have played an increasingly important role in the compensation of asbestos-related injuries. While the role of trusts in providing compensation to asbestos claimants has grown, information about the operating procedures and activities of these trusts is not readily available in a convenient form.” The report fills that critical information gap, peeling back the shadowy cover that has shrouded these trusts.
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Unnatural Claims: Litigation Industry Usurps Regulators’ Role; Credible Claims Suffer
By Manhattan Institute, Manhattan InstituteTrial Lawyers Inc., 08/25/2010
Environmental litigation is deeply rooted in Anglo-American law: the common-law tort of nuisance, which emerged in twelfth-century Britain, allows individuals to recover compensation for “real injuries” to their “lands.” Some modern environmental litigation, most prominently that which seeks redress for injuries generated by the oil spill from BP’s Gulf of Mexico Deepwater Horizon rig, falls well within this historical paradigm. But much of the litigation sure to flow from the spill is of a very different character. How should we think about suits charging BP with securities fraud for not making clear its safety risks? What about suits alleging pension fraud for not making clear the financial threat to the company’s retirees posed by its Gulf of Mexico operations? And what about suits that target not just BP but all oil companies, not for oil actually spilled but for the threat of rising sea levels resulting from global warming, itself indirectly caused at least in part by the use of fossil fuels?
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Rewarding Results: Measuring and Incentivizing Performance in Corrections
By Marc A. Levin, Texas Public Policy FoundationPolicy Study, 08/19/2010
Just like retirees monitoring their investment portfolio, taxpayers deserve to know whether the system they are funding is achieving the intended results to the greatest degree possible with each dollar spent. Unfortunately, corrections systems have historically lacked clear, outcome-oriented performance measures.
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False “Patent Marking” Suits: How Judges and IP Rights Holders Can Respond to New Litigation Trend
By James Blackburn, Monty Agarwal, Matthew Bathon, Washington Legal FoundationLegal Opinion Letter, 08/19/2010
In December 2009, the U.S. Court of Appeals for the Federal Circuit issued its decision in Forest Group, Inc. v. Bon Tool Company, 590 F.3d 1295 (Fed. Cir. 2009), which radically altered the calculation of damages for false patent marking and set off a wave of lawsuits that seek to capitalize on the increased potential for damages for false patent marking under Forest Group.
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Due Process Limits on Statutory Civil Damages? Unprecedented Ruling in Copyright Case a Double-Edged Sword for Businesses
By Ben Sheffner, Washington Legal FoundationLegal Backgrounder, 08/19/2010
When the Supreme Court, in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), vacated a punitive damages award of $2 million over a botched car paint job that caused a mere $4,000 in actual damages, the business community rejoiced. Finally, corporate defense attorneys said, the Court has put a brake on “runaway juries” that impose astronomical awards of punitive damages that bear no relationship to the actual injury suffered by the plaintiff. The business community may welcome such limits when a business is the defendant, and the alternative is a system where the sky is the limit for the jury when selecting an appropriate award. But what if the plaintiff is itself a major corporation, and the range of damages has already been set by an act of Congress? Under such circumstances, does the Constitution’s Due Process Clause impose limits on a jury’s award of punitive, or quasi-punitive, damages?
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Grokster Redux: Why the Summary-Judgment Ruling in Viacom v. YouTube Should Be Reversed
By Thomas D. Sydnor II, Progress & Freedom FoundationProgress on Point, 08/11/2010
Artists can fairly presume that the Viacom opinion will be probably be reversed on appeal by the Second Circuit or, if necessary, by the Supreme Court. Federal statutes do not hide elephants in mouseholes—or safe harbors for criminal racketeering enterprises in judicial speculation asserting that the unspoken “tenor” of bits of legislative history should be understood to reverse the usual meaning of words. By remembering this, judges can better promote the growth of legal internet commerce and reduce the risks of copyright enforcement against consumers by ensuring that as new online markets for works arise, federal law will reward the services that adopt analogs of the commendably law-abiding approach to copyrights that Google brought to the early streaming video market, and, eventually, even to YouTube itself.
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Do Drug Courts Work?
By Jessica Huseman, National Center for Policy AnalysisBrief Analysis, 08/05/2010
Drug courts are judicially supervised programs that provide long-term treatment and other services to nonviolent drug law offenders. Cases can be referred to drug courts in lieu of or in addition to traditional criminal punishment, such as incarceration or probation. Given the success of drug courts, and the projected savings if more programs were implemented, the United States should use drug courts to save taxpayers' money and effectively treat criminals with drug problems.
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Out of Balance: The False Patent Marking Landscape Post- Bon Tool and Solo Cup
By Marla Grossman, Adam Lerner, Institute for Policy InnovationIssue Brief, 08/03/2010
The December 2009 court ruling in Bon Tool provides patent protection in excess of that necessary and, in fact, results in costly and unnecessary litigation that frustrates the constitutional goal of promoting “the progress of … useful arts.” Indeed, the court’s June 2010 decision in Solo Cup demonstrates that unless a sound legislative solution is enacted, it is likely that we will continue to witness narrow judicial interpretation of the false patent marking statute in order to avoid what a court deems to be an inequitable outcome.
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Crime, Justice and the Law Features
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Climate Policy by Judicial Fiat: How Global Warming Lawsuits Subvert the Democratic Process
By Hans A. von SpakovskyAugust 27, 2010
Even if everyone were to agree on the scientific questions pertaining to global warming, there would still remain many difficult questions of public policy: Are the benefits of trying to prevent a rise in global temperatures worth the costs? What policies and/or technologies would best forestall that warming? Who should...
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Vindicating Freedom in State Courts
By Clint BolickSeptember 01, 2007
Over the past several decades, a significant pro-freedom public interest law movement has emerged, encompassing such organizations as the Pacific Legal Foundation and the Institute for Justice as well as dozens of other regional or issue-focused entities. Most of their litigation has been waged in federal courts. Together, the litigation...
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Bringing Justice to the People: A Book Review
By Charles MitchellOctober 13, 2004
There are many perks to being an intern at The Heritage Foundation. But I'd have to say that getting a free copy of Bringing Justice to the People was one of the biggest. On one of my very last days on the job, Heritage staffer Kate Pomeroy came by the Townhall.com...
