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Life of a Law Student, University of Houston Law Center

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Empirical Study of Civil Bench and Jury Trials in State Courts from 1992-2005

Some interesting statistics on trials were released recently in DOJ, Bureau of Justice Statistics: Civil Bench and Jury Trials in State Courts, 2005. Some of the findings significantly undermine the popular mythology of large awards runaway juries that fueled tort reform.

  • In 2005 plaintiffs won in more than half (56%) of all general civil trials concluded in state courts. The plaintiff was significantly more likely to win in a bench trial compared to a jury trial. Among all plaintiff winners the median final award was $28,000. Approximately 4% of all plaintiff winners won $1,000,000 or more. Contract cases in general had higher median awards ($35,000) than tort cases ($24,000).
  • The total number of civil trials declined by over 50% from 1992 to 2005 in the nation’s 75 most populous counties. Tort cases decreased the least (40%) while real property (77%) and contract (63%) cases registered the largest declines.
  • In the nation’s 75 most populous counties, some tort case categories have seen marked increases in their median jury awards. This was particularly the case for product liability trials, where the median awards were about 5 times higher in 2005 than in 1992 and for medical malpractice trials, where the median jury awards more than doubled from $280,000 in 1992 to $682,000 in 2005.

Google’s Gatekeepers

George Washington Law Prof Jeffrey Rosen has a fantastic piece in the New York Times today on Google’s Gatekeepers, chronicling the central role the company is playing, voluntarily or not, in setting a kind of global free speech policy.

In March of last year, Nicole Wong, the deputy general counsel of Google, was notified that there had been a precipitous drop in activity on YouTube in Turkey, and that the press was reporting that the Turkish government was blocking access to YouTube for virtually all Turkish Internet users. Apparently unaware that Google owns YouTube, Turkish officials didn’t tell Google about the situation: a Turkish judge had ordered the nation’s telecom providers to block access to the site in response to videos that insulted the founder of modern Turkey, Mustafa Kemal Ataturk, which is a crime under Turkish law. Wong scrambled to figure out which videos provoked the court order and made the first in a series of tense telephone calls to Google’s counsel in London and Turkey, as angry protesters gathered in Istanbul. Eventually, Wong and several colleagues concluded that the video that sparked the controversy was a parody news broadcast that declared, “Today’s news: Kamal Ataturk was gay!” The clip was posted by Greek football fans looking to taunt their Turkish rivals.

Wong and her colleagues asked the Turkish authorities to reconsider their decision, pointing out that the original offending video had already been voluntarily removed by YouTube users. But after the video was taken down, Turkish prosecutors objected to dozens of other YouTube videos that they claimed insulted either Ataturk or “Turkishness.” These clips ranged from Kurdish-militia recruitment videos and Kurdish morality plays to additional videos speculating about the sexual orientation of Ataturk, including one superimposing his image on characters from “Queer Eye for the Straight Guy.” “I remember one night, I was looking at 67 different Turkish videos at home,” Wong told me recently.

After having many of the videos translated into English, Wong and her colleagues set out to determine which ones were, in fact, illegal in Turkey; which violated YouTube’s terms of service prohibiting hate speech but allowing political speech; and which constituted expression that Google and YouTube would try to protect. There was a vigorous internal debate among Wong and her colleagues at the top of Google’s legal pyramid. Andrew McLaughlin, Google’s director of global public policy, took an aggressive civil-libertarian position, arguing that the company should protect as much speech as possible. Kent Walker, Google’s general counsel, took a more pragmatic approach, expressing concern for the safety of the dozen or so employees at Google’s Turkish office. The responsibility for balancing these and other competing concerns about the controversial content fell to Wong, whose colleagues jokingly call her “the Decider,” after George W. Bush’s folksy self-description.

Google is clearly a victim of its success in the sense that we no longer care what Altavista’s free speech policies are. Google policies matter because of the de facto monopoly power its overwhelming market share gives it. I suspect we’ll continue to see some very interesting case law in this arena, particularly internationally.

Jeffrey Rosen, Google’s Gatekeepers, New York Times, November 28, 2008

Cross-Posting: Should We Recognize a Child’s Right To Refuse Vital Medical Care?

The post below is cross-posted from my original post Should We Recognize a Child’s Right To Refuse Vital Medical Care? on the Children and the Law Blog.

CBS News: Girl Wins Right To Refuse Vital Transplant

Hannah Jones, 13, is not afraid of dying – she is afraid of spending her remaining days in a hospital bed. In a case that raises a host of medical and ethical issues, the British teenager from a small town northwest of London has won a battle to refuse a heart transplant operation. That decision by British medical authorities has ignited a debate over whether children should have the right to refuse potentially lifesaving medical treatments or if health authorities have an obligation to intervene.

That heartbreaking story illustrates the difficult issues that surround the law’s treatment of children as individuals with a right to determine their future. When Hannah and her parents decided against the procedure the medical authorities threatened to take them to court to force her to have it.

Doctors are required to obtain informed consent before treating a patient because individuals are thought to have the right to control what is done to their bodies. This includes the right to control the course of medical treatment and even to refuse it altogether. As long as a person is competent, they have a constitutionally-protected liberty interest in refusing unwanted medical treatment, balanced against the state’s interests in protecting and preserving human life. Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). A competent person has a right to refuse treatment even if the refusal ends in the individual’s death.

In general children are thought to lack the capacity to make life-altering decisions on their own. They may not fully understand the consequences or risks of their decision or the nature of their circumstances. The law defers to the judgment of parents or guardians in such situations.

While the Court has found that just like adults, a child also has a substantial liberty interest in not being confined unnecessarily for medical treatment, Parham v. J.R., 442 U.S. 584 (1979), the Court later noted that “In Parham… we certainly did not intimate that such a minor child, after commitment, would have a liberty interest in refusing treatment.” See Cruzan.

So where does that leave us?

In Hannah Jones’ case a social worker was sent to interview her about her refusal to have a heart transplant. After discussing it the social worker then backed Hannah’s decision, which was supported by her parents as well.

According to the Department of Health, when a child is considered competent and refuses treatment, their decision will be respected. When a consensus can’t be reached, the patient can be overruled by either parents or guardians, or in more unusual circumstances, by the courts.

The harder questions are of course when the child and the parents disagree, or the state finds circumstances that they feel justifies overruling both parent and child, such as what effect to give religious views regarding surgery or blood transfusions. The rate at which this issue comes before the courts is only likely to increase given that advances in medical technology may often prolong painful treatment periods that a child or parents may instead choose to avoid to improve the quality rather than the longevity of life.

Further Reading:

  • Susan D. Hawkins, Protecting the rights and interests of competent minors in litigated medical treatment disputes. 64 Fordham L.R. 2075 (1996).
  • Hillary Rodham, “Children Under the Law”, 43 Harv. Edu. Rev. 487 (1973).

The Daily Show on Fleeting Expletives: What Not to Swear

The Supreme Court recently took up the case of ‘fleeting expletives’ aka the ‘Bono rule’ in FCC v. Fox Television Stations. It didn’t escape the notice of the Daily Show, which has in the course of it’s typical fare of sharp political satire and outlandish humor, developed the bleeped curse-word to an art form of sorts. Stooping to the occasion, the Daily Show channels their inner George Carlin for what could only charitably be described as a tour de bleeping, a magnificent piece of satire as wickedly self-referential as it is funny and appalling.

Thank goodness the FCC is here to protect us from profanity on the airwaves.

Upcoming Conference at UT Law: The Rise of Appellate Litigators and State Solicitors General

There’s a great line up of appellate litigators descending on Austin in January for The Rise of Appellate Litigators & State Solicitors General. Even one of these panels would be worth the trip.

January 22, 2009: Appellate Litigators in the Private Bar
Eidman Courtroom

Introduction
Kimberly Hicks, Editor in Chief, The Review of Litigation
Dean Lawrence Sager, The University of Texas School of Law
Hon. James C. Ho, Solicitor General of Texas

The Rise of the Appellate Litigator
Theodore Boutrous Jr., Gibson Dunn and Crutcher LLP
Hon. Walter Dellinger, Duke Law School, O’Melveny and Myers, former Acting U.S. Solicitor General
Hon. Charles J. Cooper, Cooper and Kirk, PLLC, former Assistant Attorney General, Office of Legal Counsel
Beth S. Brinkmann, Morrison and Foerster, former Assistant to the U.S. Solicitor General

Appellate Litigation From the Client’s Perspective
David G. Leitch, Group Vice President and General Counsel, Ford Motor Company
Charles W. Matthews, Jr., Vice President and General Counsel, Exxon Mobil Corporation
Hon. Steven J. Law, Chief Legal Officer & General Counsel, U.S. Chamber of Commerce (invited)

Litigating Before the Supreme Court of Texas
Hon. Nathan Hecht, Supreme Court of Texas
Hon. Tom Phillips, Baker Botts LLP, former Chief Justice, Supreme Court of Texas (invited)

Dinner Keynote: “Representing the State of Texas as Solicitor General” (closed event)
Hon. R. Ted Cruz, Morgan Lewis and Bockius LLP, former Solicitor General of Texas

January 23, 2009: State Solicitors General
Eidman Courtroom

The Development of State SG Offices: A History
Hon. James Layton, Solicitor General of Missouri
Hon. James C. Ho, Solicitor General of Texas

Should States Establish and Expand SG Offices?
Dan Schweitzer, Supreme Court Counsel, National Association of Attorneys General
Hon. Gregory S. Coleman, Yetter, Warden and Coleman LLP, former Solicitor General of Texas
Hon. Julie Caruthers Parsley, former Solicitor General of Texas
Hon. Stephen McAllister, University of Kansas Law School, Solicitor General of Kansas

Luncheon Keynote
Hon. Jeffrey Sutton, U.S. Court of Appeals for the Sixth Circuit, former Solicitor General of Ohio

Impact of State SGs on Appellate Litigation: A View From the Bench
Hon. Wallace Jefferson, Chief Justice, Supreme Court of Texas
Hon. Priscilla Owen, U.S. Court of Appeals for the Fifth Circuit
Hon. Allison Eid, Justice, Supreme Court of Colorado, former Solicitor General of Colorado

Representing the States in the U.S. Supreme Court: Stories From the Battlefield
Hon. Kevin C. Newsom, Bradley Arant Rose and White LLP, former Solicitor General of Alabama
Hon. Douglas R. Cole, Jones Day, former Solicitor General of Ohio
Hon. Caitlin Halligan, Weil, Gotshal and Manges LLP, former Solicitor General of New York (invited)

State SGs and the United States: A View From Washington
Hon. Paul D. Clement, Georgetown Law School, former U.S. Solicitor General (invited)
Hon. Barbara D. Underwood, Solicitor General of New York, former Acting U.S. Solicitor General (invited)

Editors of The Review will moderate the panels.
This schedule may change. Please check prior to symposium to ensure accuracy.

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