Among the many wild rulings in my This Day in Liberal Judicial Activism collection is the Wisconsin supreme court’s 2005 decision in Thomas v. Mallett. In that case, a four-justice majority ruled that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment. As the dissent put it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”
Given the enormous campaign contributions of trial lawyers to President Obama and other Democrats, it’s unfortunately no coincidence that Obama has nominated to district judgeships both the author of the majority opinion, Louis B. Butler Jr. (who was voted out of office by Wisconsin voters for his excessive judicial activism), and the plaintiff’s counsel, fatcat Democratic contributor John J. McConnell Jr.