Jamesian Philosophy Refreshed

The August issue of The Federal Lawyer ran a piece by Spencer Garrett Scharff on streamlining mass tort litigation, a happy event that will only be accomplished, Scharff seems to think, when LEXECON is overturned. Personally, I suspect it would be better to distinguished LEXECON away and render it prudentially harmless than to overturn it outright. If the decision made bad law it was because it was a "bad case," an unrepresentative fact pattern. For non-initiates, Lexecon was a defamation case that arose out of a mass tort, the infamous Savings-and-Loan industry collapse of the 1980s. The plaintiff, Lexecon, was a defendants' consultant firm, which came into many cases on the opposite side of the famous plaintiffs' attorneys Milberg Weiss. A typical Milberg Weiss case in those days -- the heyday of Bill Lerach, pictured above -- might start with these facts: the CEO of XYZ Industries made certain statements on January 15th. Those statements were false, and ...

The story of a man who made a fortune on dynamite, then cleansed his name by creating a Peace Prize, is well known. Recently I've learned of an analogous story, of a man who made a fortune  running one of Europe's largest asbestos firms, then cleansed his name by turning himself into a philanthropic environmentalist. This later story is that of Stephan Schmidheiny, founder of the Business Council for Sustainable Government, one of the organizers of the Rio de Janeiro earth summit, and founder of Avina. a Latin-American oriented endowment for the study of ecological sustainability. But cleansed though he might have thought he was, Schmeidheiny found that his asbestos-,marketing past was hard to shake, and late in the spring of this year he was sentenced to 18 years in prison for his part in the deaths of thousands . This came to my attention as a page one story in the Hartford Courant last week. It was a front page story only because the Courant cares about our sta...