CA1 -- Overlawyered.com on Cloutier (problem solved)

Update: Overlawyered.com has corrected their headline, and corrected my spelling of their site.  Old post follows.  (And yes, I am anonymous.  I don't see what difference it makes.)

In Overlawyered’s proud tradition of legal analysis, they claim here that Cloutier v. Costco, No. 04-1475  holds that “Facial Jewelry not Religiously Protected.” Unfortunately, because writing propaganda is easier than reading the case, they failed to read the part of the case where the court actually specifically held that they were not holding that. In fact, in analyzing Title VII, the court had held that 1) Cloutier has not shown that the jewelry was really religious in nature; 2) they were not going to address whether the Church of Body Modification was a real religion or not; and that the 3) “only accommodation Cloutier considers reasonable would impose an undue hardship on Costco.”

Even in resting their Title VII ruling on #3 (which, itself, raises a bit of a circuit split), the court was supported by Cloutier’s failure to make to properly support her theory that other adornments were allowed by the management (not merely tolerated) and therefore it could have accommodated her.  In particular it held that:

 Costco responds that any employees who displayed facial jewelry did so without its permission or knowledge, noting that constant monitoring is impossible in a facility with several hundred employees. …In support of her position, she cites affidavits from two Costco employees identifying co-workers who "were allowed to wear facial piercing[s] . . . and were not disciplined… We find Cloutier's contention, and the affidavits underlying it, unpersuasive. To the extent that the ambiguous term ‘allowed’ implies that Costco was aware of the piercings the affidavits are marred by an evidentiary flaw: the affiants do not appear to have personal knowledge of Costco's awareness.

Everyone acknowledges that this case is a close one and it raises a number of issues which the court managed to avoid. (Which is a good thing.)

So, it may very well be that facial religious jewelry is protected, and that employers can accommodate the needs of these Americans.

Interestingly, Overlawyered refers to Michael Fox's post here, which does provide a good summary of the case, but they were not that anxious to read even that summary.  Overlawyered's earlier coverage is available here in which they say "First Circuit federal appeals court grants summary judgment in favor of store." See my post on the case here.

Disclosures: I do not wear facial jewelry.  I actual think that the CBM is a real church, but their website says here that "It is the belief and position of the CoBM that if the practice of piercing is part of your spirituality, then it is absolutely mandatory that you be allowed to wear your jewelry at all times."   Cloutier was given the option of wearing a translucent piece of body jewelry after being terminated, and although the court ducked whether this was good enough for Title VII, I think such an accommodation would have been reasonable.

Comments

[Aaron]

Wow. You mean somebody at overlawyered.com actually cares about factual accuracy? Given their tradition of factual sloppiness, invariably to skew stories in favor of "tort reform", I would not have expected such a prompt correction.

[Scotus]

Well, for better or worse, they did, and maybe it will tell their loyal readership that yes, indeed, life is complicated, and can’t be reduced to a soundbite. He seems to take umbrage at the fact that I originally called them "overlawyer" (which sounds better quite frankly), and that I post using a pen name. Awhile ago, there was a hilarious "tort reform" dispute with one of the overlawyered guys -- here http://tinyurl.com/5q45m -- which I think showed how they do their research.

[Aaron]

It's always good to see the underdog take on the overlawyer and win. ;-)

[David Behar]

When lawyers make ad hominem tu quoque remarks, they demean themselves and the profession. These are a sure sign of debate fatigue. They will result in rebuke by the Judge if made in court.

I also suggest that lawyers post real names and locations to permit accountability in accordance with the Rules of Conduct.

A brief review of the subject:

http://www.dcbar.org/for_lawyers/ethics/legal_ethics/voluntary_standards_for_civility/general.cfm

Who am I? I am the owner, a member of the public. I have paid for every jot and dot of the law. The lawyer is the bailee of my chattel.

David Behar, 1L
Bethlehem, PA

[David Behar]

Your comment section did not pick up the live link.

To review, search for the "DC Bar, Principles of General Applicability: Lawyers' Duties to Other Counsel, Parties and the Judiciary."

Thank you.

David Behar, 1L

[S.cotus]

Mr. Behar, I appreciate that as a 1L you are quite interested in studying the law and I encourage you to study it more. However, there are a few basic things that I should probably inform you of.

First of all, I do not know what the phrase “demean oneself” means. We are who we are, people judge everyone, lawyers included, by their actions. If you disagree with me, you are free to say that you do.

Secondly, lawyers frequently engage in less-than-mature attacks on others. This isn’t done in the courtroom because it doesn’t advance the proceedings, but it is done in depositions, law firms, and just about everywhere else.

Third of all, nobody engaged in an “ad hominem” attack on Overlawyered. I provided a specific criticism of their reporting, and they even agreed that they were incorrect, and to their credit, they changed their post. In general I find that their site is poorly researched, and that everyone involved in its production does not do the required research to understand the cases that they talk about. However, many people share this view. (This is why I cited their performance in the “McDonalds Coffee case.”) Indeed, looking at their site, one gets the impression that they only favor a certain segment of lawyers, those who do not represent individuals in tort suits against the corporations. But, again, to their credit, there are a number of interesting first amendment issues mentioned on site, but even those do not do the type of legal research necessary to fully appreciate the issues. So, I have a mixed opinion of Overlawyered.

Fourth, you cited the “voluntary standards for civility.” Assuming that I am a member of the DC bar, I fail to see how I would be bound by them. Likewise, they are quite vague, and I assure you that lawyers DC people violate all of them all the time.

Fifth, Anonymous speech is protected, in the same way that “named” speech is, both as a constitutional matter and a general convention amongst lawyers who blog. I do not comment on any case that I have been involved in (or even that my firm, old firm, or former employers were involved in). In fact, one of the reasons that I participate in this blog is so that I am forced to stay abreast on issues that I would not normally track. I assure you that I do not use this blog as a backdoor to insulting parties that I actually deal with, moreover, nothing that I have said would be out of place in a legal brief anyway ! Also, anonymous speech on the internet allows for the free exchange ideas between adversaries and even people who would otherwise detest each other because of their appearance or the fact that one turned the other down for a job.

Sixth, You said “Who am I? I am the owner, a member of the public. I have paid for every jot and dot of the law. The lawyer is the bailee of my chattel.” This makes no sense to me.

Seventh, I suggest you disconnect the internet and study for your exams. At the risk of sounding uncivil, if you waste your time on the internet, you will score badly on your exams. If you go to a low-ranked school this will result your expulsion (or “voluntary withdrawal.”) If you go to any other school your opportunities will be severely limited.

[Reversible Error]

Mr. Behar,

This is a professional website, devoted to a detailed study of appellate law. I was thus going to delete your comment.

But then I realized your comment has enabled us to share another "tip." Namely, don't use Latin except when a term of art is in Latin, and even then, look for a way to say it in plain English. Using Latin does not make you sound intelligent (it actually makes you sound stupid and pretentious).

You obviously have a lot to learn - about law and about civility. Reading AL&P three times a day should help you. However, you must do as S.cotus suggested, namely, stop reading us until you're finished with finals.

[David Behar]

Mr. Error: Delete this. Any use of Latin in any legal document or law and by any lawyer at work is Scholasticistic. Latin violates the Non-Establishment Clause in its every use, including the phrase, mens rea.

David Behar, 1L

[Aaron]

David, would you mind identifying your law school?

[Ted]

Perhaps you can identify a single case I talked about on Overlawyered.com that was "poorly researched" and where I did not "understand the case I talked about." That's a pretty strong (and unsupported) accusation. I like to think that I'm pretty careful about these things, and I've invariably made a correction on the rare occasion I've made a mistake in a post.

N.B. that a disagreement over normative analysis is not equivalent to an error in positive law.

[S.cotus]

Well.. if you must ask...

I don’t know if you, personally, have done such a thing, because I don’t know how your website is written – that is, I am unsure if it is just your or whether it is a team effort. In my first comment to this post, I provided the celebrated example of Liebeck v. McDonald's Restaurants, P.T.S., Inc. Your website’s commentary on that case has been, quite frankly, horrendous. However, your comments on the blog post mentioned above showed that you really were not doing the research on the issues, indeed, you string-cited a bunch of cases, to show that the Arizona approach (as employed by a the trial court) was wrong, and it was later shown that most, if not all of those cases dealt with liability under different legal theories, and all are in different jurisdictions. Now, Liebeck probably isn’t the best case to discuss serious questions of tort reform, not just because it has gotten popular press, but because most, if not all, of the trial court’s records are unavailable. Nevertheless it is trolled again and again by your website and by you, because people love to talk about a plaintiff who recovered money based on what appears to be her own stupidity.

The comments to the post that I cited show also show your general pattern of relying on newspaper articles, which is generally verboten in substantive discussion. However, to your credit in the Costco case, you rely on the First Circuit’s opinion.

Now, unlike other people I am not going to say that you are a complete tool of the defense bar. Indeed, in looking at your website, I notice that you have written some posts which indicate how parties that are normally defending lawsuits are attempting to, as you imply, “abuse the system.”

Finally, since it seems that frequently claimed that people have insulted you, or said something really bad about you, personally, I am not going to back away from any of my assertions. Indeed, a quick Google Search (which I have not verified) seems to indicate that you are known as an “Eggshell Blogger.”

[Ted]

I write the posts that I sign. Walter writes the posts that he signs. We don't edit each other's posts, except after-the-fact to send each other suggestions or corrections after they've been posted. We agree on the blog more often than not, but not 100% of the time.

The only case you critique me for is Liebeck. You call the commentary "horrendous" without providing specific errors to support your contention that the posts have been "poorly researched."

1. Since Liebeck was a trial without a published opinion, I don't see any problem with relying on newspaper articles that have gone into great detail in what happened in that trial.

2. I simply disagree with your assertion that the cases I cited on a different website have no bearing on Liebeck or coffee-spill cases in general. And, if you read the Bunn-O-Matic case I cited, you will see that a prominent federal judge does as well. Your assertion appears to be based entirely upon the assertions of one anonymous commenter to a thread who made the claim, and his analysis was, to say the least, amateurish, raising a variety of distinctions without a difference.

2(a). In any event, claiming that my research on Overlawyered.com is poor because of a dispute over arcana in support of a different contention on a different website is a bit of a non sequitur.

3. No one, but no one, has sought to claim that Liebeck is the result of something unique and idiosyncratic to Arizona tort law. So the complaint that the cases I cited were not Arizona cases seems to be a red herring. If you can identify the principle of tort law unique to Arizona that caused Liebeck to come out differently than the majority of self-spilled-coffee cases, I'll be happy to write about it for Overlawyered, but ten years of commentary on the subject hasn't identified any to date.

3(a). I never claimed the string cite was the reason that the Arizona judge ruled wrong. I cited it as evidence that most judges get it right, and that C. Clerk's analysis was inconsistent with the weight of the precedent.

4. Liebeck isn't just a case where a plaintiff recovered because of her own stupidity. It's important because the most prominent plaintiffs' bar lobby defends it, not as an aberration, but as an aspirational result. I've seen at least one tort law casebook use Liebeck as part of a lesson without asking the right questions to critique the case. And the fact that so many otherwise-intelligent lawyers find nothing problematic with the result (such as the C'y Clerk post you cited) shows that the need unfortunately remains to discuss a case where there should be a consensus that it was a ludicrous result.

5. It strikes me as curious that you're repeating one person's criticism that I'm an "eggshell blogger" when you got quite upset because Walter used the neutral phrase "apparently anonymous."

I take pride in my legal writing, and I'd like to get it correct, which is why I make corrections when I don't get it correct. Thus, I ask for an example where one of my posts has made an error of poor legal research so that I may correct it.

If your comments on this post are the entirety of your basis for your criticism that my posts are "poorly researched", I'm quite comfortable that the only thing poorly researched is your original criticism. Whether you choose to retract it with a correction will reflect on you, rather than me.

Liebeck posts:
http://www.overlawyered.com/archives/000589.html
http://www.pointoflaw.com/archives/000402.php
http://www.overlawyered.com/archives/001397.html

[Aaron]

Ted, with absolutely no offense intended, the content I have seen from Overlawyered often filters the facts through such a thick ideology that the resultantant "analysis" often seems designed to mislead the reader. Now, you can argue that the site fact checks when its assertions are challenged, and corrects factual error, but of itself that doesn't cure what I see as the fundamental deficiencies of the site:

First, the site never appears to look any deeper into the facts of a case than necessary to support its thesis, even when it appears that facts are readily available which would undermine that thesis.

Second, the facts and stories which are presented are selected not because of their relevance to the legal system, but because they are seen as useful in advancing the site's agenda.

Now don't get me wrong - it is wonderful that a site can make people famous and perhaps even rich by advocating a particular perspective or viewpoint. I personally very much enjoy good analytical work and opinion pieces, even when they come from a different perspective.

But there's a huge difference between that and scholarship. And there's a huge difference between good analytical work and opinion pieces and "knowing what the site is going to say about an issue before I even get there". With Overlawyered, whatever the case and whatever the facts, you know the site's conclusion well in advance.

Do you disagree? Does Overlawyered have an "errata" section where it has on at least one occasion admitted that on second look the site overstated its case? Does it have content speaking about litigation that it would deem beneficial to society - with or without using the concession as a backhanded criticism of the rest of the profession? Surely you, as a lawyer and litigator, see some good flowing from the work you do - where can I read about that good on Overlawyered.com?

I'll admit that I stopped looking at Overlawyered.com as "more of the same" some time ago, probably before you started contributing. If you can point me to the type of material that was sorely lacking from the site in the past, I'll take another look. If not, while I have no objection to the site's preaching to its particular choir, please don't try to sell me on its scholarship.

[S.otus]

On the contrary, “Taint’s” analysis, if not correct, was hardly amateurish. Indeed, he or she drew distinctions between various cases. Indeed, where plaintiffs had proceeded on different theories, the results have been different. The choice of theory or theories is up to the plaintiff, and a variety of considerations (such as statutes of limitation, availability of treble damages, availability of expert testimony, and grey areas in local law) dictate which theory a plaintiff will proceed under. At bottom, the difference in legal theories generally determines what a plaintiff was plead and prove to the jury. The cases you cited proceeded under a different legal theory than you claim that Liebeck proceeded under, therefore the distinctions raised between that case, and the ones you cited were hardly amateurish, but just about as on point as it can get.

I could go back through your blog and search more for other cases other than Liebeck, but I don’t think it is really worth it at the moment. I have real work for to do, and my “hobby” of covering the First Circuit. However, since your coverage of Liebeck was the first time I heard of you, that is what came to mind.

But... against my better judgment: Bunn-O-Matic, in the posture it reached the Seventh Circuit applying Indiana Law (of which Judge Easterbrook or the seventh circuit is not the final word – for a minute I thought you were his former clerk, but that is someone else who shares your name) was in the form of a product liability action against the manufacturer of the coffee maker. Judge Easterbrook found, without the benefit of a full trial by jury, that based on the facts that were not in dispute (and some which he seems to have discerned himself) that a coffee machine is not defective if it produces very hot coffee, if coffee is known to become less dangerous as it passes from the spigot to the cup to the consumer. Therefore, Bunn-O-Matic, if anything, answers a different question. Or, in the words of the judge, “Why should a tool supplier be liable in tort for injury caused by a product made from that tool?” (The answer to this question is somewhat nuanced, but there are cases where a tool supplier might be liable for the products it makes. This is not one of them.)

However, as you point out, your statements made on another blog, by you, perhaps should not be used to indicate the quality of research that one might find on your blog.

So, looking at your blog (in the pointoflaw) post you cite, I notice that you refer to the ATLA’s position. However, all I found there was your discussion of the ATLA, which was show to be not based on anything, as you were unable to actually provide any support for your characterization of the ATLA’s position, even when, on the first blog, it was demanded of you. The rest of your post seems to be devoted to screaming that the “trial lawyers” lobby is “powerful” but since you really don’t provide any basis, nor do you provide a theory about how a lobby can be “powerful” my point about your level of analysis stands.

If you can’t find actual records of a case or a published opinion, and you have to rely on newspaper reports, it is a lost cause, as you are better off forgetting about it. I know this might be painful to you (and, I confess, it is to me, as well), but newspaper reports are unreliable, and are usually based on press releases written by the losing party. (I know, I helped write such releases when I was in college.)

So, I am not going to correct myself. You did not read Bunn-O-Matic, nor do you even seem interested how the Arizona trial court and the Seventh Circuit, even if they both relied on common law principles, could both be correct.

The best you can get from me is an acknowledgment that, from time to time, you do not seem to be a mouthpiece for the defense bar (or rather their clients).

[Ted]

Aaron: I'll cheerfully admit that a web site designed to support the position that the legal system encourages too much litigation that has a harmful effect on society will post about current events that bear on that issue. It's unclear to me how you think we should instead be selecting subjects for discussion. To say we should also be writing about useful litigation reminds me of the parody of the war supporter who complains of media bias because there isn't any reporting about all of the soldiers who weren't killed and wounded. But, even so, your complaint is ill-formed. For example, just last week I wrote about the Hooters lawsuit in http://www.overlawyered.com/archives/001782.html and took pains to explicitly distinguish it from legitimate trade dress suits.

I will say that I do delve into the facts quite deeply, and I reject a number of stories that seem promising on initial glimpse because I believe there's a fair argument to be made for the opposite case, or because I feel that a particular case's scanty press coverage is too slim a reed to make a case that a lawsuit is problematic.

We certainly link to things that disagree with the site's thesis. We've given a regular forum to readers who've written to disagree with us, including attorneys in the cases we discuss. See, for example, http://www.overlawyered.com/archives/001458.html. We don't claim it's scholarship. It's blogging. We link to interesting stories and op-ed pieces, give a description, and sometimes give analysis that's generally aimed at a lay audience; on pointoflaw.com, we go into more detail on a somewhat different set of topics, including recent scholarly research. The analysis may not be "scholarly" in that, in the interests of brevity, discussion is usually restricted to a paragraph or three. But that's the nature of the medium.

Scotus, you now complain that, in one post, I called ATLA a powerful lobby without supporting that position. Aaron complains that overlawyered.com says the same things over and over again, so perhaps you might understand that the power of the ATLA lobby, which is demonstrated over and over again in several posts a year on overlawyered.com, is taken as a given when mentioned in passing rather than repeated ad nauseum.

For future reference:
http://www.overlawyered.com/archives/000251.html
http://overlawyered.com/archives/03/jan3.html#0121b
http://www.manhattan-institute.org/html/_amerspec-lawsuit_lobby.htm

I'm not sure why you think I'm not the person with my name who clerked for Easterbrook, but I did in 1994-95. And I did read Bunn-O-Matic--why do you accuse me otherwise? Your attempt to distinguish it fails. Liebeck won because the McDonald's coffee was adjudged "unreasonably dangerous" because it could and did cause third-degree burns. The Seventh Circuit, in a lawsuit applying the exact same theories of Liebeck, held that a machine that served coffee at a temperature that could and did cause third-degree burns was not unreasonably dangerous as a matter of law. The discussion in the opinion further makes clear that the Liebeck failure-to-warn theory is untenable under any circumstances, and that the Liebeck product liability theory would fail as a matter of law under the theory tried in New Mexico (not Arizona as we both mistakenly said). It's honestly a mystery to me how anyone with legal training can claim that the two decisions can be fully reconciled in the abstract. Only through sophistically narrowing Bunn-O-Matic to its facts while ignoring its reasoning can one claim otherwise.

I disagree that newspaper reports are "written by the losing party," and you would, too, if you read as many of them as I do weekly. They're much more often fed by the plaintiffs' attorneys, and there's a lot to be found in coverage as the trial goes on. Press reports are not perfect, and we criticize them often on overlawyered, but I've learned from experience as a litigator that judicial opinions are often problematic as well. (In the case of Liebeck, the Wall Street Journal did an excellent job summarizing what happened at trial, a much better job than the average opinion does.) In any event, I firmly disagree that one needs to know every jot and tittle about a case to comment upon it intelligently.

As further evidence of your poor research and reckless accusations, you baselessly claim that I made an unsupported characterization of ATLA's position on the Liebeck case. Surely now: http://www.google.com/search?sourceid=navclient&ie=UTF-8&q=atla+liebeck
Please, tell me where I misrepresented ATLA when I say that they defend the verdict as appropriate.

Little wonder he's anonymous. I wouldn't want my name on such shoddy work, either.

[Ted]

The full Bunn-O-Matic opinion can be found at laws.findlaw.com/7th/974131.html . Interested readers are invited to read it and imagine a scenario (other than outright waiver) by which the Bunn-O-Matic panel would've affirmed the Liebeck judgment.

But not until exams are over.

[Aaron]

Okay, Ted - I apologize for interpreting your assertion that you take pride in your legal writing and its factual accuracy as suggesting that you were striving for some level of scholarship in your work. As long as we are going to accept that Overlawyered is a single issue advocacy site, and not scholarship, and that if we want balance from Overlawyered we will at best find it in outbound links found somewhere on the site, we're seemingly not very far apart in our assessment of the site's merits.

If the Hooter's entry is your best example of "taking pains" to distinguish valid from frivolous lawsuits, perhaps you should have just let the point go. (And if "Aaron complains that overlawyered.com says the same things over and over again" is meant as an example of your slavish devotion to factual accuracy, well... can we say "distortion", boys and girls?)

[Ted]

Aaron, you're equivocating. You expressly distinguished "scholarship" as something different from "good analytical work and opinion pieces", and when I note that we don't claim to do more than good analytical work and opinion pieces, you make a snide comment using the broader definition of scholarship.

There's a letters section in Overlawyered. If you feel a particular piece is "unbalanced" because it reflects my opinion or Walter's opinion, write us, and your comments are likely to be posted, providing all the balance you want.

Of course, while we're regularly accused of being unbalanced, I have yet to see a specific example of a story we've portrayed unfairly. We don't misrepresent facts. We don't have to, because there are too many real problems in the system that cry out for reform and create the opportunity for compelling posts.

[Aaron]

Ted, c'mon. You are complaining that I was using the dictionary definition of "scholarship"? Whence comes your preferred definition when you were denying that Overlawyered reflects scholarship? Whose responsibility is it that you didn't apply a standard definition when denying that your Overlawyered work reflects scholarship? Are you now reversing yourself, or are you simply trying to have it both ways?

When I commented that I enjoy good analytical work and opinion pieces, I had not intended to describe Overlawyered - I thought that was pretty clear from the larger context. My comments about Overlawyered in the preceding three paragraphs reflect my impressions of Overlawyered, and at least from my perspective those defects pretty much exclude the likelihood that I will find good analytical work or interesting opinion pieces on the site. I apologize for not being more clear in that fourth paragraph.

If you can point me to a single surprise on the Overlawyered site - that is, even one Overlawyered piece where I would not anticipate in advance what argument and conclusion the site will advance - I will be happy to reconsider this stance. (And no, I don't think anybody would buy the notion that an occasional contrary opinion in the site's "letters" section could translate into editorial balance, any more than your previously referenced outbound links. Do you really believe that?) But I am of the opinion that a largely superficial analysis that always leads to the same conclusion will rarely be good, and is even less likely to be interesting.

If you don't recall seeing a specific example of a case Overlawyered has portrayed unfairly... scroll up. Because I think our hosts have done a pretty good job of describing at least one.

[Ted]

Aaron, I accepted your original non-standard use for purposes of discussion rather than pedantically correcting you, and then you switched to the dictionary definition to score a cheap rhetorical point. My apologies for thinking you were interested in serious discussion rather than simply taking shots.

As for "surprising" overlawyered posts, I think the Liebeck discussion was innovative; I made arguments that I haven't seen anywhere else and haven't seen refuted, arguments that a national newspaper columnist picked up (though he unfortunately attributed them to an imaginary Professor Richard Bernstein). Walter linked to a good analysis of why the Kerry-Edwards medical malpractice plan was likely to hurt consumers. Peter Nordberg of "Daubert on the Web", no fan of tort reform, praised my posts on Daubert on multiple occasions. The Weekly Standard picked up another post I wrote on rogue Ninth Circuit judges. Overlawyered broke the story on Howard Dean's public support for tort reform when he was Vermont Lieutenant Governor. Walter's written a number of posts in defense of gay marriage. And maybe you're sufficiently jaded by the justice system that you don't find Walter's posts surprising, but I found Overlawyered worth reading several times a week years before I started posting there: posts on the Romo case over the years were particularly interesting. I acknowledge that if one is not interested in legal reform issues, then one won't be interested in Overlawyered. Those who are will find stuff on Overlawyered that they probably won't find in their normal course of reading.

Walter described Costco imprecisely; trying to describe an appellate holding in a sentence often risks oversimplification--witness how badly SCOTUS botched his one-paragraph analysis of Bunn-O-Matic on this page. It's far from clear to me why Walter's mistaken description is somehow better "propaganda" for the cause of tort reform than the actual holding, which shows that the existing law is sufficiently convoluted as to require extensive litigation on basic common sense issues. If Walter's description was "unfair" (as opposed to simply mistaken), it was unfair to his own position.

[S.cotus]

If you want to say my analysis of product liability cases is incorrect, then go ahead. However, it seems that your best description of how I “botched” Bunn-o-Matic is as follows: "It's honestly a mystery to me how anyone with legal training can claim that the two decisions can be fully reconciled in the abstract. Only through sophistically narrowing Bunn-O-Matic to its facts while ignoring its reasoning can one claim otherwise."

Nobody is ignoring their reasoning. You have touted Liebeck, a case that was settled after a full trial and a presumably full exploration of the relevant facts as being some sort of bad thing, and you seem to say that Bunn-o-Matic is correctly decided. It has been pointed out time and time again that the makers of machines are under different obligations than the makers of products or food. To that end, if Liebeck was eventually affirmed on appeal, it would not be in conflict with Bunn-o-Matic. If someone else wants to disagree with me on this point, go ahead. However, you have made your position on this known.

Look, your blog is, as Aaron says, a single issue blog. You don’t like lawyers, especially lawyers who represent injured defendants. Fine. Heck, I don’t like lawyers who drop out of the profession and become investment bankers. If I could find a way to get paid for writing a blog about these people, I would do that as well. I probably wouldn’t care too much about whether their investment banking strategies were objectively good or even ethical. I just hate them, and I think they do a lot of damage to my country. (I don’t know if you are paid for your blog per se, or rather for your work at your think tank.) Indeed, I would provide a day-to-day commentary on every decision made by investment banks, a list of the former “lawyers” involved together with their law schools and what firm they used to work for. Alas, I wouldn’t learn too much.

Also, citing the Wall Street Journal is pretty much of no use. Newspaper articles, to us are provide one of the following: 1) neat stories about what non-lawyers are doing; 2) some indication of what our colleagues are up to; 3) areas for further reasons (e.g. the WSJ might pick up on a trial going on in a far-away jurisdiction that, for some reason, we were unaware of); and 4) details about where to park; and 5) Garfield (which isn’t in the WSJ or the NYT). Sometimes newspaper articles, themselves, are substantive such as in the cases of libel and market reports (considered a hearsay exception). But this is not the case here. Editorials in the WSJ are generally written by losers, and with rare exceptions do they bother to provide the source materials necessary to undertake serious legal analysis.

[Aaron]

Ted, I'm really not interested in hearing how I victimized you by holding you to your words, how it is my fault that you use nonstandard definitions (which you still won't source) in describing your own work, or how the Overlawyered site achieves "balance" through an occasional outbound link. I don't buy any of it. If your comments above reflect the best defense of the site, its ideology and scholarship that you can muster, you should switch sides.

And please spare us the sanctimony. I am very interested in legal reform issues, which explains in no small part why I find Overlawyered to be so disappointing.

[Ted]

Aaron, the source of my non-standard definition was your comment to this post of December 13, 1:01 pm, which is why I was unhappy with your shifting definitions. The irony is that you're accusing me of trying to have it both ways.

S.Cotus, your argument that Bunn-O-Matic is distinguishable because Bunn-O-Matic was a product manufacturer and McDonald's is a retailer is directly contradicted by the Court's statement that "both sides in this case treat Bunn and the retailer as identical. We proceed on that basis, while doubting that it is sound." This is why I say you've botched the description of the case. The irony is that you accused me of not reading the case, and then adopt a description that directly contradicts what the court said. I further note the irony that in your post, you were far more malicious to Walter over a far smaller error in description.

Motes and beams and all that, gentlemen. Good day.

[Ted]

I see Aaron's a personal injury attorney, a member of ATLA, and uses scare quotes to describe tort reform on his blog, so his claim to be a neutral "disappoint[ed]" in Overlawyered's discussion is a bit disingenuous, especially as he admits that he hasn't read the blog in at least a year and a half.

[S.cotus]

You still don’t get it, do you? The reason everyone disagrees with you on Bunn-O-Matic is that this decision was on a MSJ, in which all facts are assumed as the plaintiff alleges them. However, the what constitutes “defective” or a “tool” (or whatever you) is a question of law. However, if the plaintiff presented the same evidence for his theory that the coffee was defective as his theory that the maker was defective, it is quite possible that one was defective and one was not. In the case of Bunn, because the plaintiff seemed to argue that only the coffee was defective, and assumed that that argument applied to the coffee-maker, there was no evidence, for purposes of the MSJ that the maker was actually defective.

The subject of tort reform is a complex one which many issues that require a complete understanding of the system (if that is a word for it) now stands. Unfortunately, since your website concentrates more on providing sensational examples of things that you think that people would find alarming, it is difficult to even begin to address the issue.