TorteDeForm

Justinian Lane

Are "reformers" lying or just being sloppy when they use this quote?

The American Tort Reform Association, the U.S. Chamber of Commerce, and members of other "reform" groups routinely invoke this quote as proof that the civil justice system is biased in favor of plaintiffs:

"As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me." - Former West Virginian Supreme Court Justice Richard Neely

"Reformers" especially like this quote because it comes from a Justice from West Virginia, a state which "reformers" claim is a "judicial hellhole."  Certainly, it appears damning to have a state supreme court justice make a statement like that.  There's just one problem with the quote.  The American Bar Association explains:

"In the December ABA Journal a quote about product liability cases was attributed to West Virginia Supreme Court of Appeals Justice Richard Neely.  The quote, from Neely's book "The Product Liability Mess," was taken out of context.  In the context, Neely was using an ironic style to mimic the unspoken rationale he feels some judges use to rule for plaintiffs.  The quote does not reflect Neely's personal position on the matter, and the Journal regrets inadvertently distorting his views." - ABA Journal, January 1989 (Emphasis added.)

The most recent place I saw this quote used was in the NAF's response to a BusinessWeek article criticizing arbitration. Ted Frank at Overlawyered used it as recently as January of 2008...

"Richard Neely’s previous claim to fame was stating, while Chief Justice of the West Virginia Supreme Court, “As long as I am allowed to redistribute wealth...” He’s had somewhat less success doing so as a plaintiffs’ attorney."

...and Frank's fellow Overlawyered writer Walter Olson used it in his book "The Rule of Lawyers."

Credit for debunking this quote doesn't belong to me.  It belong's to Professor Elizabeth Thornburg who explained the quote's misuse in her excellent paper "Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia." Rather than hold your breath waiting for "reformers" to issue retractions or corrections, why not read her paper?

Justinian Lane: Author Bio | Other Posts
Posted at 3:17 PM, Jun 11, 2008 in Civil Justice | Tort "Reform" Myth-Busting
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Comments

Hi, Justinian.

You're lying again.

I'm holding "The Product Liability Mess" in front of me, and Neely is most certainly not being ironic: he is making a mea culpa. From the very first page: "[U]p to this very moment in my life I have been part of the problem rather than part of the solution. As a state court judge, much of my time is devoted to designing elaborate new ways to make business pay for everyone else's bad luck." Neely goes on to argue for the need for federal preemption to solve the product liability problem to protect businesses from judges like him. I'm willing to bet you've never read the book.

Thornburg's advocacy piece ignores the real reasons why reformers justly call West Virginia a judicial hellhole; for example, her paper does not even mention the Beck/Frank critique of the West Virginia Supreme Court's decision in Perez. It doesn't even mention Perez! Her paper also dishonestly claims that WV's "medical monitoring" decision is in the mainstream, which is most certainly not true, as the New Jersey court's recent decision shows.

The only person who needs to make a retraction is you. But you've never retracted any of your lies or errors before, so we don't expect it to happen this time, either.

Posted by: Ted | June 11, 2008 3:36 PM

Posted by: Ted | June 11, 2008 4:17 PM

You're accusing me of lying? Did the ABA print that correction in January of 1989? Absolutely. Did you use the quote without mentioning the correction in January of 2008? Absolutely. Are either of my statements untruthful? Absolutely not.

You certainly have every right to disagree with both of them, but neither the author of the quote nor the American Bar Association share your view of what the quote means. I thought that perhaps you were unaware of the ABA correction. Since you are aware of it, one can only assume you intentionally failed to disclose the 1989 correction in order to strengthen your case.

I just left a message for Mr. Neely and I'm told he'll return my telephone call in the morning. I'm going to ask him to once again clarify his statement. I'll let everyone know the results of our conversation as I believe it's in everyone's best interest to fully disclose all the facts.

Posted by: Justinian Lane | June 11, 2008 4:24 PM

Again: did you read what Neely wrote before you made your accusation that I "lied" about what he said?

Posted by: Ted | June 11, 2008 4:45 PM

I never said you lied, Ted. I merely pointed out that you didn't note the correction the ABA made. The very title of my post leaves plenty of room for readers to assume you were just sloppy.

On Overlawyered, you accused me of relying on ipse dixit statements by Thornburg to determine what Neely really meant, but you're the one relying on your own ipse dixit statements. If you don't believe that Neely was being "ironic," then say so. But refusing to acknowledge that the man denies the context of the statement just makes it looks like you're more interested in carrying water for the "reform" movement than in engaging in real debate.

Again, if and when I hear from Neely, I'll let everyone know what he says.

Posted by: Justinian Lane | June 11, 2008 4:59 PM

There's nothing "sloppy" about accurately quoting someone. As I demonstrated at http://overlawyered.com/2008/06/was-richard-neely-being-ironic/, I accurately quoted him.

I don't care what Neely says in 2008 about what he said in 1988--now that he's working for the plaintiffs' bar, he has every incentive to disclaim his former words condemning his current career. I care about what Neely said in 1988.

Which you haven't read, have you, Justinian? Why won't you answer the question? Have you read the book?

(And add "ipse dixit" to the list of concepts Justinian uses without knowing what it means.)

Posted by: Ted | June 11, 2008 5:51 PM

Also, you have no business calling someone sloppy in the same post where you write about the way to characterize a quote in a book you've never read.

Posted by: Ted | June 11, 2008 5:54 PM

Are you honestly so ignorant that you don't understand your claim that Neely's quote is not taken out of context is an ipse dixit statement?

Neely says he meant "X." The American Bar Association says he meant "X." You say he meant "Y" and now say that you're right regardless of what Neely and the ABA say. This reminds me of literary critics who argue, "I don't care what the author SAID he meant, I KNOW he meant such and such." One can't win such a debate, but one can at least be honest enough to acknowledge that the author disagrees with an offered interpretation. (Oh, and Ted also admitted at OL that he never read the ABA correction.)

Well, the good news is that if anyone Google's "As long as I am allowed to redistribute wealth," this post comes up as the first hit. Now people will be able to see that the author of the quote claims it was taken out of context. Again, it's much easier to have an intelligent debate when we take into account all the facts, and don't exclude those that weaken our argument.

Posted by: Justinian Lane | June 11, 2008 6:50 PM

"Did you use the quote without mentioning the correction in January of 2008?"

Why would any journalist/blogger/etc. need to mention any "correction" if such was not from the author of the work, and in any event was wrong? Can such even be called a "correction" if it's not from the author? Can Overlawyered be subject to criticism because they didn't print an incorrect interpretation by a third party? Is that what counts as either "lying" or "sloppy" these days?

"I just left a message for Mr. Neely and I'm told he'll return my telephone call in the morning."

Justinian, don't you think you should have maybe done this before reporting on his views, and/or the "lying" and "sloppy" reporting of others? Or perhaps at least read the book on which you're basing your criticism? If you read the entire page excerpted on Overlawyered it's pretty clear that he was not at all being ironic.

Posted by: Lawyer | June 11, 2008 6:57 PM

Lawyer, the only logical assumption is that the correction was made on behalf of the author. Thus, it wouldn't be an incorrect interpretation by a third party. We'll know more if and when Neely calls me back.

And yes, Overlawyered (or anyone) can be criticized if they fail to report that an author disputes the context of a quote.

Posted by: Justinian Lane | June 11, 2008 10:19 PM

Justice Neely, pp. 70-72: "From what I know about myself and my colleagues, I have the distinct impression that in a product liability case the vote would have been 3 to 2 the other way, and the whole $10 million judgment would have been sustained. Had a defective Ford automobile killed the little boy, even I would have had none of the enthusiasm for reducing the judgment that I had when the judgment against the defendants would affect business and consumer costs in West Virginia. What do I care about the Ford Motor Company? To my knowledge Ford employs no one in West Virginia in its manufacturing processes..."

"The best that I can do, and I do it all the time, is make sure that my own state's residents get more money out of Michigan than Michigan residents get out of us."

Did you ask him if that was ironic, also?

Again, Justinian, have you read the book?

Posted by: Ted | June 11, 2008 11:38 PM

Oops. Sorry. I was looking for the fifth grade room, not the third grade one.

Posted by: Supremacy Claus | June 12, 2008 1:35 AM

I just got off the phone with Neely. He's a very colorful man with some interesting theories. I only wish I was close enough to go to lunch with him. But I digress.

Neely stated that the reviewer who thought he was being serious was a "simpleton" and that many of the passages in the book were written in an ironic or sarcastic tone specifically to "sell books." He further clarified that the passage was "absolutely not" the way he operated as a judge.

Again, Ted, you're certainly welcome to debate whether Neely meant what he said in his book. But for the sake of accuracy, I do hope in the future you'll note what the ABA said 20 years ago and what Neely said today about that quote.

Oh - I didn't see your latest comment regarding pp. 70-72; if you want to call him and ask him about that, please do let us know what he says.

Posted by: Justinian Lane | June 12, 2008 10:26 AM

One understands Neely's desire to disassociate himself from his previous comments, given his current job, but the only simpleton here is Justinian if he expects anyone to believe Neely's disavowals now. I have no reason to note what the ABA said, because it's not accurate, though if I have occasion to quote from the book in an academic work, I may well mention Neely's disclaimer and refute it there.

Since Justinian hasn't read the book, he is in no position to judge who is right here.

Posted by: Ted | June 12, 2008 10:55 AM

"I have no reason to note what the ABA said, because it's not accurate..." And we all know anyone who disagrees with you cannot possibly be right. Even if their disagreement is on a matter of subjective opinion.

".. though if I have occasion to quote from the book in an academic work, I may well mention Neely's disclaimer and refute it there." Fantastic! Now you'll give others the opportunity to view all the evidence and come to their own conclusion. In the long run, this will only help your credibility; people tend to distrust those who conceal information that hurts their cause.

"Since Justinian hasn't read the book, he is in no position to judge who is right here." I'm absolutely in a position to judge whether you should have mentioned the fact that Neely claims people are using his quote out of context.

But since you didn't know about the ABA correction (made at Neely's request) from nearly twenty years ago, it looks like you were a victim of the "reform" spin machine, too. Again, I'm glad you'll mention it in the future so readers can draw their own conclusions about Neely and his quote.

Posted by: Justinian Lane | June 12, 2008 11:21 AM

I'm not the victim of anything other than your baseless attacks. I read the book and drew my own conclusions -- which are the only conclusions anyone who read the book could honestly draw. It's interesting that Neely is lying now, but hardly changes my argument. (If anything, it nicely demonstrates that Neely's not a reliable source for anything. How do we know that he's not going to claim in a year that he wasn't being "ironic" when he criticized arbitration?)

Since you haven't read the book, you have no idea what you're talking about. It is impossible to read that book and think Neely was being ironic.

Posted by: Ted | June 12, 2008 11:28 AM

"It's interesting that Neely is lying now..."

What? Neely's position "now" is the same as it was in January of 1989 when he contacted the ABA to request a correction. Seems a little harsh to label him a liar because you don't agree with his interpretation of his own work that's been consistent for almost twenty years.

"If anything, it nicely demonstrates that Neely's not a reliable source for anything." So you're going to stop using the quote entirely then, right?

Posted by: Justinian Lane | June 12, 2008 11:50 AM

Justinian: stop digging a hole for yourself, read the book, and then come back and apologize.

Posted by: Ted | June 12, 2008 1:42 PM

This is not my space, and I'm not entirely sure I'm welcome here, but I have to ask: why do you give energy to Ted? Don't you see he uses this forum as a way of luring people to his site? He never responds to commentary in detail in your comments, but instead continues to link to his posts.

I realize that the more Ted talks, the worse he sounds and it must be satisfying to let the man hang himself. After a while though, what's really important gets lost.

you provided the clarification, you even went beyond by contacting Neely directly (personally, the man is a hero of mine), obviously Ted will not accept this, so I can't understand why the back and forth, which then serves to lessen the impact of your original writing. It stood alone, it didn't need further explanation. The more you explain, the better for Ted.

Again, I'm not a lawyer, and perhaps this adversarial debate is fun for all parties. If so, sorry if I'm intruding into what is an enjoyable exercise.

Posted by: Shelley | June 12, 2008 1:43 PM

I think you have it backwards, Ted. You should be thanking me for bringing the correction to your attention, since you admittedly never saw it.

Shelley: It's not so much that I find it enjoyable to correct Ted, but I believe I have a duty to set the record straight when he misuses or omits evidence in his case. But now that everything useful is done here, I think I'll throw in the towel on this post.

Posted by: Justinian Lane | June 12, 2008 2:29 PM

Justinian: stop digging a hole for yourself, read the book, and then come back and apologize.

Posted by: Ted | June 12, 2008 2:42 PM

"[W]hy do you give energy to Ted? Don't you see he uses this forum as a way of luring people to his site?"

Shelley,

First, it seems to me that Ted tends to respond most when Justinian post something *about* Ted. From the last two, one was a supposed critique of a brief in which Ted participated, the other called him either a liar or "sloppy."

Before, when Kia ran the show, he would just drop in occasionally when posters would get sloppy with their use of "mandatory" and their other heated think-of-the-children rhetoric.

Second, the thought that Ted would use tort deform as a vehicle to promote overlawyered is laughable. There's literally a ten-fold difference in readership here. Nobody ever heard of this blog until Ted starting calling it "bizzaro-Overlawyered." Tortdeform has got you, me, Ted, Justinian and "Supremacy Claus." That's it.

Third, it's funny that you'd criticize blog promotion. What's "burningbird.net" again?

Fourth, out of everyone on this thread (including myself, admittedly) only Ted is the one who has actually read the book. Yet his postings, his discourse, and his motives are the ones on trial here.

Perhaps "burningbird" is Native-American for "irony."

Posted by: Lawyer | June 12, 2008 3:41 PM

Lawyer, that's very gallant of you to come to Ted's defense, but you're wrong: Ted shows up in the majority of my posts, regardless of whether I mention him or not.

As for your notions of our readership v. overlawyered's? Well, I'm not privy to the stats of either site, and I don't care. If readership was my concern, I'd write gossip for TMZ. That said, I do suspect Overlawyered has a larger readership than ours because echo chambers always have large followings. Overlawyered provides a safe haven for those who are afraid to think for themselves and who need to have their world defined for them in terms of black & white, right & wrong, and good & bad. Here at Tortdeform, we recognize that the world isn't that simple.

I neither have nor want Ted's following of spineless sycophants who fawn over his every word and look to him to validate their narrow world view. I'd much rather have men like Ted challenge me and question me and attack me. Otherwise, I'm likely to get sloppy and badly fumble something as simple as how default judgments work.

Also, I find it in poor taste for you to bash Shelley for using her real name and web address. At least she doesn't hide behind a pseudonym.

Posted by: Justinian Lane | June 12, 2008 4:44 PM

Justinian, just about every post of yours has been "sloppy" or "fumbled." And you did "fumble" even your default judgment rant -- you never understood the distinctions asserted. You then tried criticising an entire brief and never even made one substantive point, because you never understood it. You don't even respond to arguments, and keep parroting straw men. Even after I called you out on it you did it *again.* You mischaracterize your opponents, and freely without caution cite every latest anti-corporate legal rumor without ever doing any research. You don't read the opinions you cite; you don't research the books you summarize; you don't fact-check the authors you quote. And you know it. Your only saving grace is the speed with which you can shift the argument against those who call you out, namely Ted. What you lack in informative content you make up in hollow comment responses, railing against "spineless sycophants." (As if there were a distinction between "spineless" bloggers and bloggers with "guts"...)

I'm hardly "bashing" Shelley when I point out the irony of her chiding Ted for linking his site, when she clearly links hers. The fact that she uses her real name doesn't make that any less ironic.

If you really had an interest in preserving an honest debate on this site you'd ask for a modicum of civility when someone invariably attacks Ted, claiming he's a "sycophant" or questioning his motives for posting comments, or implying that he's bribed. But you don't. That speaks for itself.

The real tragedy here is that there clearly is a case to be made our tort system, and preservation of certain key aspects. You simply have yet to make it.

Posted by: Lawyer | June 12, 2008 5:33 PM

Justinian, thank you for the defense.

Lawyer, one only has to look at the pattern of Ted's comments to see that I'm probably closer to the truth than you when it comes to Ted's behavior. The most Ted tends to write here is "liar, liar" in some variation, with a link to some writing of his. He did the same with Kia, he's doing it with Justinian.

By continuing to fragment the discussion, he disrupts. By continuing to point to this book, that post, some other place, he distracts from the core communication associated with each of these posts. He isn't luring people away to increase his popularity (though I imagine he wouldn't mind)--he's doing it so that people won't (can't) focus on the facts associated with each post. The facts of this post are that Neely's quote was taken badly out context in an effort to deliberately discredit. What was a compliment to Neely is that those who sought to discredit him had to use such a dubious and easily refuted approach. It must mean that he's some guy, worthy of our respect.

Lawyer, I post the link to my site to establish my identify. I feel it gives some weight to what I write. At a minimum, I feel strongly enough about what I write to connect my writing directly with who I am. I realize, though, that not everyone feels the same.

I also want people to know, unlike most of the other folks here, that I'm not a lawyer. One could say my writing demonstrates this, but seriously, "Liar, Liar" isn't normal court room banter--I don't think one can rely on the writing to differentiate the lawyers from those who are not.

As for accusation about Justinian being "sloppy", this post by Justinian was not sloppy. There was recent discussion on Neely and the "quote" and he established a context. A very strong context. Ted's immediate response? "You're lying". Well, now...that was an erudite response, wasn't it? Sent tingles down my spine with its eloquence.

I will say one thing for Ted: he puts his name with his words.

As for my linking my site to benefit from traffic from Tort Deform, no offense to the fine people here but I'm a tech book writer--lawyers don't tend to buy tech books.

Posted by: Shelley | June 12, 2008 6:10 PM

*I* never understood the distinctions? That's laughable.

Both you and Ted seemed to believe that just because a defendant doesn't show up, a default judgment is automatically issued. It isn't. I explained the difference between a defaulting defendant, and a default judgment. I explained that clerks can only issue default judgments if it is for a sum certain, and even clarified that in some jurisdictions what would otherwise be a sum certain is not if the plaintiff is requesting attorney's fees. I then explained that if the request is not for a sum certain, the plaintiff needs to put on some evidence before a judge.

Next, I explained that in NAF arbitration, the arbitrator *must* grant a default on his or her own, if the defendant fails to appear. That's simply not how it works in court, and neither you nor Ted have enough motion practice under your belts to know that.

The only straw men around here are the imaginary ones you and Ted create. Unlike the "reform" movement, there isn't a single issue I'm not willing to delve into at any depth. I'm not a paid hack, so I can criticize whoever and whatever I please - no subject has to be off limits to me for fear of offending my masters.

If you want to engage in a debate about *any* aspect of the civil justice system, you just name it. But when I do respond, have the intestinal fortitude to either admit I'm right or point out why I'm wrong - don't just allege I didn't address your argument and then dismiss my point without refuting it.

I didn't make one substantive point in my criticism of Ted's brief? How about the fact that *I* am the one who had to point out the large financial incentive the FDA has to commit Type II errors? That point actually STRENGTHENS Ted's argument. So why didn't he make it? Two possibilities. First, he's ignorant and didn't know about them. I'd bet money against that. Second, he didn't want to draw attention to the conflict of interest between the FDA and pharma, because he wants to keep pharma happy. If there's another tactical reason he forgot to mention it, I'd love to hear it.

I then rightly pointed out that the alleged causes of Type II errors in his brief have nothing to do with the tort system, but with public criticism of the FDA It's certainly a fair question then how preemption will prevent Type II errors. I even copied his brief word for word so no one would think I left out relevant sections. I gave Ted a fair shake, and stand by my critique. That's more than Ted often gives me on Overlawyered. But it's his site, and he can write whatever he wants about me.

Ted is a grownup - he can defend himself from any personal attacks he may be the victim of. Considering the fact that the man routinely denigrates the intelligence and integrity of those who disagree with him, I'm disinclined to defend him against similar attacks. Especially since he's called me an illiterate, innumerate liar more times than I can count. But hey, since I'm innumerate, it's probably not a big number, right? ;)

Shelley wasn't bashing Ted for linking his name in the comment footers. She was bashing him for constantly trolling the comment threads with comments like, "Go read my post at Overlawyered; here's a link to what I wrote about at Overlawyered; etc." Most of those site-promoting comments lack any substantive content whatsoever and are made purely to drive readership to his site.

You speak of civility, yet you note that Ted often refers to this site as Bizarro-Overlawyered. Is that civil? I don't call his site Overpaid, or Justice For Sale, or Screw the Consumer. I call it by its name. Why don't you ask him to have the civility to do the same?

I'm also done responding to you in this post, lest it just turn into even more of a flame war. I enjoy responding to your comments, and hope you (and Ted) continue to argue your points in the comment threads.

Posted by: Justinian Lane | June 12, 2008 6:20 PM

Justinian, in the name of civility why then do you refer to the tort reform movement almost exclusively in quotes? (i.e.: “reform”) It’s like referring to the American Association for Justice as the American Association for “Justice”. It’s mocking and some may consider it uncivil. Just asking.

Posted by: Jason Barney | June 12, 2008 6:59 PM

Actually, Jason, quite a few people do put quotes around the word Justice. Others still refer to them as the ATLA. And more than a few people wrote mocking articles at the name change.

I use the quotes because it's a value word, and I don't agree with that the changes they advocate are actually reform. If they called it tort restructuring, for example, I'd be OK with that.

Basically, I think there are two types of people in that movement. Reformers, and "reformers." The ones without the quotes are legal scholars who genuinely believe that changes need to be made to the justice system for the good of the public. The ones with the quotes are corporate lackeys who want to ensure that big companies never get sued.

Posted by: Justinian Lane | June 12, 2008 9:06 PM

I genuinely believe that changes need to be made to the justice system for the good of the public.

I don't want to "ensure that big companies never get sued."

I expect that you'll stop using the scare quotes.

What happened to my 7 PM post in this thread?

Posted by: Ted | June 12, 2008 9:51 PM

"Basically, I think there are two types of people in that movement. Reformers, and "reformers." The ones without the quotes are legal scholars who genuinely believe that changes need to be made to the justice system for the good of the public. The ones with the quotes are corporate lackeys who want to ensure that big companies never get sued."

This is really condescending, Justinian. I am neither a "legal scholar" nor a "corporate lackey" . I am a concerned citizen who has seen the very vitality of the nation's economy and psyche sapped by the twin evils of litigiousness and political correctness, both blights which need to be stomped out as quickly as possible.

Also, since the trial bar IS big business, I guess that makes their apologists, such as this site, corporate lackeys as well.

The American legal system is regarded by most of the world as a sick joke, and it's the civil justice system that earns us the world's approbation

Posted by: Paul W Dennis | June 12, 2008 10:33 PM

I'm not Justinian, but the following was a good point:

"This is really condescending, Justinian. I am neither a "legal scholar" nor a "corporate lackey" . I am a concerned citizen who has seen the very vitality of the nation's economy and psyche sapped by the twin evils of litigiousness and political correctness, both blights which need to be stomped out as quickly as possible."

Then you lost me with:

"The American legal system is regarded by most of the world as a sick joke, and it's the civil justice system that earns us the world's approbation"

The world can give a damn about our civil justice system. We have prisoners held without due process in Cuba, which not even the conservative dominated Supreme court can stomach. We have a disproportionate share of young black men on death row. We have a Supreme court that hovers always on the edge of removing women's right to have control over our own body. Gays can't marry because some religious conservative has decided that them marrying would threaten the state of marriage, all in a country with a 50% divorce rate..and you say that the world is focusing on our civil justice system!?

Absolutely unbelievable.

Posted by: Shelley | June 13, 2008 12:19 AM

PS Sorry, you must have meant just these incidents, Paul, not tort reform as it related to lawsuits. Civil rights, rather than corporate law and consumer litigation, correct?

Posted by: Shelley | June 13, 2008 12:24 AM

Hey, Lawyer, I'm here too.

Posted by: Joe Bingham | June 13, 2008 10:18 AM

Paul, allow me to clarify. When I said people in the "movement," I meant people who get paid to influence concerned citizens like you.

I agree with you that political correctness is generally a bad thing, but see nothing wrong with litigiousness in general. When you're wronged, you have three options: Ignore it, sue, or seek vigilante justice. The first option merely emboldens wrongdoers, and the last option only works on TV.

Posted by: Justinian Lane | June 13, 2008 10:24 AM

"When you're wronged, you have three options: Ignore it, sue, or seek vigilante justice."

You left out options four, five, and six (at a minimum) which I leave as an exercise to the reader.

What happened to my 7 pm post?

Posted by: Ted | June 13, 2008 11:42 AM

Ted, I have no control over any comments here - I can't even edit my own once they're posted.

To the best of my knowledge, no one is censoring or deleting your (or any) comments. I understand they've been working on some site glitches, and perhaps your post was lost in the ether. As I think I've mentioned before, if you're ever censored here you have a standing invitation to post it on my blog.

Posted by: Justinian Lane | June 13, 2008 11:51 AM

Quoting Walter Olson at Overlawyered:

I too have read The Product Liability Mess with minute attention, having written the Fortune magazine review of the book, which was among the more high-profile reviews it got. And Ted is right: the more context you supply for the quote from the rest of the book, the less doubt you will harbor that it was meant straight, not ironically.

Since Neely’s statements in the book were almost electrifyingly frank, I can’t say I am surprised that he would later find it expedient to back off from and indeed disavow them; aside from changing his mind on matters of policy (at least I assume he’s changed his mind), and the exigencies of his later practice as a plaintiff’s lawyer, we all assumed at the time that in his judicial role he would come under enormous pressure for seemingly having admitted to deciding cases in a way many would regard as illegitimate.

It is remarkable that he would now speak of wanting to sell books as a motivation while simultaneously maintaining that the passages in question were meant to be taken ironically. It was precisely because the statements were not presented as kidding around that they foreseeably called wide attention to the book. (This is also in tension with Thornburg’s theory that Neely was critically describing other judges’ thought processes but not his own. I have to wonder whether she, like others who have taken up this matter recently, sat down and read the book.)

After my Fortune review was published I met and got to know Neely; we appeared on panel discussions together and shared many conversations. Without breaking any confidences about the private talk, I will only observe that at the public appearances we did, he had ample opportunity to state that he had just been kidding or merely ironic in the passages at issue, which figured so prominently in my Fortune review, but I do not recall his taking any such opportunity. I do not know, by the way, whether I am the nameless reviewer he unkindly calls a simpleton, but I have reason to doubt it, since he subsequently gave an extraordinarily favorable blurb to my book The Litigation Explosion, for which I continue to be grateful.

The whole thing is regrettable on a number of levels. I continue to think the books Neely wrote in his early career (”How Courts Govern America”, etc.) have much to recommend them both in substance and in their clear, pungent style, and for many reasons regret the loss of the career as public intellectual on which he had seemed to be well launched.

Posted by: Ted | June 13, 2008 2:07 PM

I wonder if I should respond to Walter, or if he'll follow your lead and delete my comments at Overlawyered? (See More Ted Frank Follies http://www.corpreform.com/2008/06/more-ted-frank.html)

The point that Walter and you miss is that regardless of what you think Neely meant, it's still unethical not to note that he disagrees with your interpretation of his work. Who knows, maybe Neely complained on Overlawyered but you deleted his comment, too...

Tell Walter that the "simpleton" was whoever used the quote in the December 1988 issue of the ABA Journal.

Posted by: Justinian Lane | June 13, 2008 2:39 PM

Your comment is being held for moderation. When you post my 7 pm comment, your comment will not be held for moderation.

You still haven't read the book, but criticize people who have for their accurate characterization of the book. You have no business lecturing about ethics: as your posting here regularly demonstrates, you throw around dishonest accusations all the time without having the faintest idea what you're talking about. When you read Neely's book and apologize, then you can start discussing ethics.

Posted by: Ted | June 13, 2008 4:01 PM

For the umpteenth time, Ted - I have no control whatsoever over the comments posted here.

I don't have an administrative account. All I can do is make posts and make comments. If your comment has in fact been deleted/held, it wasn't because of me or my actions. Again, you're welcome to post whatever you want on my blog, and I have the administrative rights there to make sure your comment doesn't get lost.

I'm through discussing Neely with you. You're too thick to understand that even if I agree with you that Neely is lying now, that doesn't make it unethical of you not to note that he disagrees with your usage of his quote.

Posted by: Justinian Lane | June 13, 2008 4:32 PM

By that standard, every post of yours is "unethical."

Did you ask Knology if they agreed with your quote of their contract? I bet you they don't. You certainly didn't ask NAF if they agreed with your quote of their arbitration agreement, since you misrepresent the facts there.

You didn't ask me what I thought about your quote of me; instead, you just quoted me, and opined on my characterization of a book that you've never read.

And how ethical is it of you to keep changing your argument without acknowledging that your original argument was refuted?

Posted by: Ted | June 13, 2008 5:13 PM

Justinian: after you start making decent money and paying taxes, you too will make a right turn. My advice to you: start incorporating your endeavors, save your receipts, hire a good accountant, and take advantage of the sixty thousand pages of tax code Congress has given us to minimize your tax liability. Then, when some slacker tries to hire a lawyer to convince a jury that even though he really does owe you $5,000, he shouldn't have to pay it because he spent all his money on a plasma TV or a 2001 Lexus, or some other impulsive piece of material, you'll see the light. You seem like a smart guy. Look forward to your Jarry McGuire moment. When Morpheus offers you two pills, go down that rabbit hole.

Posted by: Todd Rogers | June 14, 2008 10:03 AM

Justinian: after you start making decent money and paying taxes, you too will make a right turn. My advice to you: start incorporating your endeavors, save your receipts, hire a good accountant, and take advantage of the sixty thousand pages of tax code Congress has given us to minimize your tax liability. Then, when some slacker tries to hire a lawyer to convince a jury that even though he really does owe you $5,000, he shouldn't have to pay it because he spent all his money on a plasma TV or a 2001 Lexus, or some other impulsive piece of material, you'll see the light. You seem like a smart guy. Look forward to your Jerry McGuire moment. When Morpheus offers you two pills, go down that rabbit hole.

Posted by: Todd Rogers | June 14, 2008 10:05 AM

I'm not a lawyer. My formal education was limited to art school, so generally, I admire anyone with the academic discipline required to become a lawyer. I assume they're smart. But this thread reads like an absurd, childish, middle-school slap fight. Maybe you've convinced yourself that this type of thing is a spirited, rousing intellectual debate, but really, it's a sad, emotionally stunted, irrelevant waste of time. When should we expect the hair-pulling to commence?

Posted by: plaintiffx | June 16, 2008 2:40 PM

I'm not a lawyer. My formal education was limited to art school, so generally, I admire anyone with the academic discipline required to become a lawyer. I assume they're smart. But this thread reads like an absurd, childish, middle-school slap fight. Maybe you've convinced yourself that this type of thing is a spirited, rousing intellectual debate, but really, it's a sad, emotionally stunted, irrelevant waste of time. When should we expect the hair-pulling to commence?

Posted by: plaintiffx | June 16, 2008 2:42 PM

Overlawyered is highly censored. It has zero tolerance for questioning on fundamentals. It has a corporatist agenda, not a legal reform agenda. Tortdeform is somewhat censored. Offend a named friend of Kia, and the comment gets deleted.

The lawyer cannot tolerate criticism on fundamental doctrine. He is a cult criminal and victim. He shuns, excludes and bullies anyone questioning orthodoxy. That is the way of the cult. One may question, but only within the assumed central beliefs.

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