I knew that couldn't be right.

After frittering away a considerable chunk of the taxpayer's change on its successful attempt to whittle the Big Five accounting firms down to four, the "Justice" Department today saw its obstruction of justice conviction against Arthur Andersen unanimously overturned by the Supreme Court. You can read Chief Justice Rehnquist's opinion here.

It appears that it's not enough to do something that the government doesn't like for an obstruction of justice conviction; you actually have to do something that's illegal. This fine legal distinction seems to have been lost on the prosecution, the trial judge, and the Fifth Circuit. For some reason, this case had to go all the way to the Supreme Court before the Government could bring itself to accept that you can't prove that someone "knowingly... corruptly persuaded" someone to do something without showing that he knew that the something he was persuading that someone to do was in some way corrupt.

No word yet on what the Government will be doing to make it up to the 28,000 people they put out of work with their unfounded prosecution. And remember, folks, this is the same administration that rants endlessly about plaintiffs' lawyers filing "frivolous" lawsuits.

That darned legislature....

To amend the Texas Constitution, a proposed amendment has to be approved by two-thirds of each house of the legislature and then submitted to the voters for approval. House Joint Resolution 6 has now been approved by both houses. It'll be on the ballot November 8, 2005. Here's what it says (in the relevant part):

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article I, Texas Constitution, is amended by adding Section 32 to read as follows:
Sec. 32. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Yup. You read it right. The plain language of the HJR6 would prohibit the state from attaching any legal significance to the institution of marriage. Not just gay marriage, but any legal status "identical or similar to marriage."

Do they know what the word "identical" means?

One of the primary rules of construction is that if the plain language is unambiguous, you don't look at legislative intent. Which means, in a case like this, that you look only at what they actually said, not what they meant to say. And in this case, the plain language of the amendment defines marriage and then prohibits the state from affording marriage (or anything resembling marriage) any legal status.

Idiots???

I wonder.

(My first thought about this was that it's an amusing example of legislative ineptitude, but wouldn't really change anything because marriage is a fundamental right protected by the United States Constitution. On further reflection, I'm not so sure. The Supreme Court of the United States held in Loving v. Virginia (and other cases) that the right to marry, at least as it has traditionally been understood, is a fundamental right protected by the Fourteenth Amendment. But the plain language of HJR6 wouldn't interfere with people's right to marry; it would only prohibit the state from affording marriage any legal significance.)

A Musing on Gun Control

As controversial as the issue is, you might think that gun control would have been studied to death by now. And you'd probably be right. Nevertheless, when the Centers for Disease Control reviewed the extant scientific literature, it found that there was insufficient evidence to evaluate the effectiveness of gun control laws. Naturally, they concluded that more research is needed. You can read their findings here. Or you can just read between the lines. If gun control laws provided any signigficant public safety benefits, how come they're so darned hard to find?

In other news, the BBC reports that, in an article published in the British Medical Journal, researchers have determined that long pointy knives have no legitimate culinary purpose and should be banned.

I kid you not.

What about asbestos?

Laurie asks:

"[C]an you do me a favor and explain here at The Lawyer's Drudge what's going on in Washington regarding asbestos litigation and how it affects Texas? And, more importantly, how it will affect this poor little asbestos law firm paralegal. And, even more importantly, how it will affect this poor little asbestos law firm paralegal's upcoming summer bonus."

The Senate Judiciary Committee just approved the ominously titled "FAIR Act of 2005." This piece of legislation would essentially end asbestos litigation and replace it with an administrative program. For the defense side, if this passes, asbestos litigation is over.

Basically, if you're not in trial when the law goes into effect, the lawsuit is over and the plaintiff is stuck with the administrative remedy. For an asbestos law firm's paralegal (especially on the defense side), this is not at all a good thing. Plaintiffs' lawyers will still have something to do in shepherding cases through the administrative proceedings (subject to a 5% fee cap), but defense lawyers will have no more to do with asbestos that they do with Workers' Compensation or Social Security.

On the short-term upside (from the Texas asbestos defense paralegal's perspective), recent changes to Texas law have encouraged Texas asbestos plaintiffs firms to get as many cases "in trial" as possible by September. The new Texas law prohibits trying asbestos cases in groups, making it economically unfeasible to try cases with less serious injuries. It applies to cases not yet in trial come September. It'll hurt plainitffs and plaintiffs' lawyers and increase the burden on the courts, but defense lawyers should do fine and defendants will make out like bandits. And it has plaintiffs' lawyers scrambling to get as many cases in trial before the cut off. So there should be tons of work to do over the summer.

After that, though, if the "FAIR Act of 2005" passes, The Lawyers' Drudge would be happy to give you a glowing reference.

As far as your summer bonus is concerned, it comes down to whether your employers want to keep you happy while they're swamped with work, or whether they figure they'd better just grab all they can for themselves before it's too late. You'll have to figure the answer to that one out for yourself.


You can read what Reuters considers the key aspects of the bill here.

You can read the official bill summary (with links to the text) here.


A note about being "in trial": Although it's not defined in the Texas statute, The Lawyers' Drudge's research indicates that the commencement of trial under Texas law occurs when the parties begin the opening statements. Under the FAIR Act, a case isn't "in trial" until the presentation of evidence starts.


And now The lawyers' Drudge's C.Y.A. disclaimer: If there's money at stake, don't rely on what you read on the Internet. Do your own damn research. I'm not your lawyer and I'm not giving legal advice.

The Medical Malpractice Insurance "Crisis"

An study of a comprehensive database of closed claims maintained by the Texas Department of Insurance since 1988 shows that the medical malpractice insurance "crisis" was the result of insurance companies' investments going south, not "lawsuit abuse."

I guess all those changes to the Texas Constitution letting negligent health care providers (and others) off the hook for a lot of the damage they do isn't going to fix things after all. Who'd of thunk it?

And on a related note, congratulations to Priscilla Owen on the confirmation of her appointment to the Fifth Circuit Court of Appeals.