June 2004 Archives

...discussed on PointOfLaw.com this morning.

Writes Matt Conigliaro at Abstract Appeal, the Florida legal weblog: "Remember the green or yellow or red flags that could be seen on Florida's beaches, letting would-be swimmers know whether it was safe, risky, or dangerous to enter the water? They won't be found any longer on state park beaches without lifeguards, on the theory that it's better to have no flag than the wrong flag, and without lifeguards present, changing the flags in a timely fashion is too difficult.

"That's one way to look at, as presented in this story from the AP. Another way would be to look at the lawsuit mentioned in the story -- a man dove into riptide-filled waters to save a struggling couple despite red flags and wound up drowning himself, and his family sued the state for providing inadequate warnings -- and wonder if the Florida Legislature's calculus in abandoning the flag system was not as simple as: say something, get sued for saying it wrong; say nothing, avoid suit." (Abstract Appeal, Jun. 21). The AP story Conigliaro cites has been taken down, but other news clips detail the lawsuit recently filed by survivors of Daniel F. Heede, 52, of Barnhart, Mo., over his 2002 drowning at St. Andrew State Park, and the Florida Legislature's vote to remove warning flags from state parks without lifeguards. See "Lawsuit Leads Florida To Pull Warning Flags From Beach Parks", WFTV, Jun. 21.

Legal Reader (Jun. 22) on a new development in the saga of California's please-abuse-me law, s. 17200: "according to California's First District Court of Appeal, failing to include a cause of action under 17200 in many civil actions may actually constitute malpractice, even if the plaintiffs' attorney thought it unwarranted or unjustified. The opinion was filed today in Janik v. Rudy, Exelrod & Zieff. ...

"My problem is that the Court's reasoning here applies to almost any civil lawsuit against a 'business' in California. As a rule, if you can state a cause of action for anything, you can also state a cause of action under section 17200, as whatever wrongs constitute the first will also constitute the second. By including section 17200 you automatically get a bunch of 'freebies,' such as: four year statute of limitations, the ability to recover on behalf of other non-parties, and most likely a case that is at least partially impenetrable to a petition for arbitration.

"In fact, most California civil lawsuits already include section 17200 claims, but now lawyers may be subject to malpractice claims (even from non-clients) if they file compaints that don't." For an analogous problem, see "Omit a peripheral defendant, get sued for legal malpractice", Feb. 15-17, 2002. More: Declarations and Exclusions analyzed the case Jun. 24, pointing out that the ruling, while exposing the defendant attorneys to a claim of breach of duty, does not establish on the merits whether or not they did breach a duty.

Sue those rescuers: "The parents of a 15-year-old Redmond boy who died after a fall in the Crooked River Gorge [in Oregon] have filed a $9.5 million suit in U.S. District Court against the fire district and rescue workers who responded to the accident. Patricia and Michael Keller allege that their son [Elijah Keller] did not receive proper medical care from rescuers. ...According to the suit, the teenager wasn't strapped down properly when rescuers hauled him up on a stretcher, and 'his head fell sharply down to his chest during the lift up the side of the cliff.' ... Attorney Robert Lowry, who is representing the Crooked River Ranch Rural Fire Protection District and the rescue workers named in the suit, said Keller wasn't walking along the precipice's edge, but leaping from rock to rock when one rock broke loose. He said those who responded did everything they could to save the teenager." ("Briefly", The Oregonian, Jun. 20). Commenting on the case: "Rural communities depend on the no-questions-asked courage and compassion of thousands of men and women serving without pay as firefighters, EMTs and search and rescue volunteers. ... these volunteers and professional first responders keep getting signals that mistakes, no matter how they happen, carry a punishing multimillion-dollar liability". ("A delicate balance: We sue rural volunteer rescuers at our peril" (editorial), Eugene Register-Guard, Jun. 22).

...discussed today on PointOfLaw.com, including a mention of how some of the allegations in the case hark back to the EEOC's great crusade against Sears in the 1970s and 1980s.

"An accountant tapped to help clean up the state's matrimonial courts is under investigation by the FBI for allegedly making crooked evaluations in cases before embattled Manhattan Supreme Court Justice Marylin Diamond, The Post has learned. ... The feds are looking into complaints about [forensic accountant John R.] Johnson stemming from divorce squabbles in which he evaluated marital assets. The cases in Diamond's court include the divorces of millionaire lawyer Gail Koff, head of the Jacoby & Meyers law firm, and fashion designer Cathy Hardwick.

"Johnson determined that Jacoby & Meyers had zero net worth -- a finding that supported Diamond's ruling. She had ruled that Koff's husband, architect Ralph Brill, was responsible for half of the firm's $8 million debt from tax problems. ... Johnson also said that Hardwick's name had no value." (Brad Hamilton, "Divorce Expert Eyed for Covering His Assets", New York Post, Jun. 27). Koff, we note, is the author of the Jacoby & Meyers Guide to Divorce (Henry Holt, 1991).

...for his contributions as a guest blogger over the past week. Aside from Mike's postings at Southern Appeal, be sure to check out the outstanding links page he maintains at his Cumberland School of Law faculty website, and the conservative/libertarian legal scholarship reading list and pre-law reading list that he co-edits in conjunction with the Federalist Society. Also watch for his work to appear soon on Point of Law, the new Manhattan Institute website I'm editing.

Squandering consumer goodwill dept.: "For decades, model-train makers have routinely decorated their train sets with the logos of train companies past and present, without paying for the right to do so. But now, Union Pacific wants a piece of the action, and it's seeking a 3 percent royalty from companies that stick the UP logo on model trains." (James P. Miller, "Model train fans steaming mad at UP", Chicago Tribune, Jun. 27). More: "Community goodwill" would doubtless be a more accurate phrase than "consumer goodwill" in the above, and might have made blogger SlitheryD (Jun. 30) happier. See also Feb. 4, 2005 (planes, ships, etc.)

Merits of loser-pays: Five years ago, the Mattel toy company sued artist/photographer Tom Forsythe for copyright and trademark infringement over "a series of 78 photographic images of the wildly famous doll showing her nude, and sometimes posed provocatively, in or around various household appliances. ... After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million." (Bill Werde, New York Times, Jun. 28).

Fred Smith, the president of the Competititve Enterprise Institute, makes the case against pending federal legislation that would "[p]ut the Food and Drug Administration in charge of regulating tobacco in exchange for a buyout of farming quotas." The proposed deal would, according to Smith, "strengthen the nanny state at the expense of individual choice, increase black market activity, hurt lower-income consumers, and, perversely, create new health risks for all Americans." (Fred L. Smith, Jr., "The FDA poses threat to our health, liberty," Investor's Business Daily, June 21 (PDF file)).

Quota buyout legislation was passed by the House of Representatives on June 17 as title VII (the "Fair and Equitable Tobacco Reform Act of 2004") of H.R. 4520, the "American Jobs Creation Act of 2004." The focus now shifts to the Senate, which is apparently considering the deal outlined by Smith's op-ed. For more on this, see Will Snell & Kelly Tiller, "Fair and Equitable Tobacco Reform Act of 2004," U. of Ky. Dept. of Ag. Econ., June 2004 (PDF file); Jasper Womach, "Tobacco Quota Buyout Proposals in the 108th Congress," Congressional Research Service, updated April 6 (PDF file); Blake Brown & Gary Bullen, "Tobacco Buyout," N.C. State U. Dept. of Ag. & Resource Economics.

As seen from Rochester: "Unlike many other states, New York does not limit lawsuit awards against municipal governments. High awards deplete public coffers and ultimately hike taxes. And New York is the highest-taxed state." (Jay Gallagher, "Liability claims pick taxpayer pockets", Rochester Democrat & Chronicle, Jun. 22).

Massachusetts consumer protection law includes "item pricing" regulations." A shopper who picks up an item marked $3.19, but is charged $3.59 at the checkout, has been the victim of a violation of these rules. If a state wishes to address such incidents, a practical question arises: how to enforce legal rules when they involve such trifling amounts of money per incident? Enter class action lawyers, naturally. According to the Boston Globe, Massachusetts Attorney General Thomas Reilly has farmed out the enforcement of these rules to a group of private attorneys -- who are doing quite well for themselves. Cases against Home Depot and Wal-Mart have been settled; a settlement with Walgreen is pending. If the Walgreen settlement is finalized, the outcome of all this acitivity will be the payment of $3.2 million to the private attorneys, $3.9 million to "an eclectic group of charitable, consumer, and nonprofit groups," and $425,000 to the AG's Office. The list of favored groups includes, among others, the Roscoe Pound Institute and Public Citizen. The Globe points out that "it would be impossible to identify consumers hurt by item-pricing failures"; one of the private attorneys claims in the story that the payments to the favored groups will benefit Massachusetts residents, with most being used to "spur greater awareness of consumer rights." Cases against other retailers (in addition to Walgreen) are pending. (Bruce Mohl, "Reilly turns to private enforcement of item pricing," Boston Globe, June 27)

What does it take to convict an expert witness of perjury? I ask that question this morning in a posting over at PointOfLaw.com, proceeding from a Ninth Circuit case handed down last week which demonstrated that some doctors, at least, fare well in court these days.

I'll be a guest Monday morning at 8:30 a.m. PDT on Napa, Calif.'s KVON radio 1440 AM. And then on Tuesday morning at 8 a.m. PDT I'll be joining host Lee Rodgers on his popular show on KSFO 560 AM. In both cases I'll be discussing my book The Rule of Lawyers, which came out in paperback earlier this month (more). To book a broadcast interview on the book, email me directly or contact Jamie Stockton at the St. Martin's/Griffin publicity department: 212-674-5151, ext. 502. (bumped 6/28)

...and it was the Massachusetts Lottery Commission's fault, you have to understand. For our part, we intend in future to avoid drunken brawlers in Dedham, Mass. (Jonathan Saltzman, "Lottery sued after toes crushed", Boston Globe, Jun. 26). On the dangers of tippable vending machines, see also Jul. 20-22, 2001.

The AP reports that the National Education Association's plans to launch a legal challenge the No Child Left Behind Act have, thus far, come to naught. No state government has signed on to the proposed suit, announced a year ago, and NEA is rethinking its strategy. The NEA website offers its views on the Act here; Education Secretary Paige's response to the NEA's threat of a lawsuit last summer is here.

U. of Wisconsin law professor (and blogger) Ann Althouse is not exactly impressed by Judge Guido Calabresi's apology for his ACS remarks: "You'd think someone who makes principles of democracy central to his legal argument wouldn't stop at saying his argument is complicated and academic." Her earlier post on this subject is also worth reading, as is Point of Law's treatment.

The July-August issue of Legal Affairs magazine includes a debate on the question of American courts' use of foreign law, featuring Judge Richard Posner (advising against) and Georgetown law professor Vicki Jackson (making the case in favor).

Champerty in the suites: "Lehman Brothers' hopes of underwriting some juicy tort litigation crashed badly, leaving behind the toxic residue of avarice and gullibility." Forbes examines one California town's "man-made legal disaster", a saga previously covered in our posts of Jan. 12, Jan. 17 and May 8 (Scott Woolley, "Municipal bombs", Forbes, Jun. 21).

An attorney for the Hilton hotel in Clear Lake, Texas, in whose parking lot wronged wife Clara Harris ran down her cheating husband, confirms that the hotel has reached a settlement of the lawsuit filed on behalf of David Harris's children for failing to prevent the 2002 incident. (see Feb. 24, 2003). The hotel's management was "accused in the lawsuit of failing to provide effective security, notify police in time to prevent Harris' death or train employees to deal with domestic disputes." After a widely publicized trial, Clara Harris was sentenced to 20 years in prison. The Blue Moon detective agency, which had been engaged by Mrs. Harris to investigate her husband, has also settled a lawsuit in the case. ("Lawsuit by slain orthodontist's children tentatively settled", AP/KRTK Houston, Jun. 24).

"July 2 -- Thank God I'm not a litigator. Jerry just got a 137 page motion to dismiss his 85 page complaint. By fax yet, right before a holiday weekend. Jerry says he'll see the defendant's motion and raise it a hundred. I think Jerry should consider therapy." -- humorist Madeleine Begun Kane, on her former career as a lawyer, first published Pacific Magazine & Funny Times, March 5, 1993.

Last week lawyers associated with uber-tobacco lawyer Richard Scruggs fanned out across the country to file a dozen lawsuits against thirteen large non-profit hospitals in eight states. According to one press account, the lawsuits allege that "the institutions are not living up to their charitable missions, are overcharging uninsured patients and are using overly aggressive collection tactics." (Rob Kaiser, "Class actions filed against non-profit hospitals," Chicago Tribune, June 18) Scruggs characterizes the litigation as his attempt "to stop profiteering by nonprofit hospitals." (Bill Lewis, "St. Thomas among hospitals accused of 'profiteering,'" Nashville Tennessean, June 18)

The Tennessean article further explains:

"The lawsuit said Saint Thomas unfairly benefits from its long-held tax-exempt status, and the suit alleges a breach of contract, consumer fraud and deceptive business practices because Saint Thomas and the other nonprofits allegedly haven't provided enough charity care in return for their tax exemptions.

'''In exchange for its promise to operate as a charitable, nonprofit entity, defendant receives millions of dollars each year in federal state and local tax exemptions,' the lawsuit said. 'In reality, (the) defendant is anything but charitable.'

"Scruggs said he hopes to have the 13 lawsuits certified as class-action cases. Saint Thomas is the only Tennessee hospital named in the lawsuits. Scruggs said more lawsuits will follow, but he did not name the hospitals targeted.

"He criticized the hospitals named in the lawsuits for charging what he said were their highest rates to patients who do not have insurance, while giving discounts to big insurance companies. If the poor or uninsured patients cannot pay their bills, the hospitals garnishee wages and bank accounts, seize houses and force people into bankruptcy, he said."

University of Chicago law professor Richard Epstein, quoted in the Tribune article, had this reaction: "Dicky Scruggs has got a lot of money, and he's looking for a lot of trouble," Epstein said. "The question is, what's the law that's being violated?"

I became aware only this week of the publication earlier this year of Paul Teske's book, Regulation in the States, by the Brookings Institution Press. I have not yet read it, and so cannot recommend it to you from that vantage point. However, the abstract looks interesting, I think it might interest a substantial set of Overlawyered readers, and the time of a guest blogger is short. So, here's a clip from the book's abstract:

"Regulation in the States provides original quantitative analyses of state-level regulation across all the states in ten important sectors such as telecommunications, electricity, and professional licensing. Each section uses the same template for research and discussion, enabling cross-comparison among industries. Teske finds that commonly held fears of regulatory capture by industry are overblown, as are worries about an inevitable 'race to the bottom.' Legislatures and agencies still tend to base their policy decisions on their own ideologies and analysis. Teske also examines important exceptions, however, such as the case of occupational regulation."

For a short, mostly favorable review by a political scientist, click here.

A 2002 class-action settlement against cable purveyor MediaOne (now Comcast) over alleged overcharges resulted in a payout to consumers ballyhooed at $17 million, with $3 million going to fees for class counsel. Boston Globe columnist Alex Beam tries to find out how much of that $17 million was actually paid to consumers, and -- imagine! -- gets blown off by both the company and the lawyers. He also tries to check out how much consumers actually received from a settlement against the Poland Spring water company (see Feb. 2, Sept. 10) that was billed as being worth $8 million, with $1.35 million to the lawyers. The lawyer he reaches tells Beam he has no idea, and the company never gets back to him. All's well with the system (Jun. 17).

New Jersey: "County freeholders Tuesday paid nearly $26,000 to a Crest Haven Nursing Home employee who claimed she suffered a psychiatric disorder in 2001 after a nursing home visitor made an inappropriate remark to her." Nursing assistant Cynthia Allen, a longtime employee whose lawyer said she had a good work record, "alleged that she was feeding another patient in late December 2000 when a nursing home visitor said 'I bet you have some fresh stuff.'" Although the visitor later denied saying anything and no one else heard the comment, Allen said it had been made in a sexually offensive way and that she had felt intimidated when seeing the visitor on two subsequent occasions. Medical experts agreed that she had suffered psychological trauma over the incident. A freeholder who voted for the payment nonetheless termed it "bizarre" and said "This is what's wrong with our legal system." (W. F. Keough, "Visitor’s remark to worker at Crest Haven costs county $26,000 in compensation claim", Press of Atlantic City, Jun. 23 (reg)).

Cato's Robert Levy critiques California's proposed ban on smoking while beachcombing.

(Does anyone get the 1961 jazz reference in the title of this post?)

Those who follow the activities of state attorneys general know of their interest in the pharmaceutical industry. Last week, Vermont AG William Sorrell was named president of the National Association of Attorneys General (NAAG) for 2004-05. In his presidential address, Sorell announced that "the issue of drug pricing" would be NAAG's "particular focus" during his tenure. Sorrell raised the following questions:

"What drives our high drug prices? Is it true that the pharmaceutical industry is the most profitable industry in this country? Is it true that our national spending on prescription drugs more than tripled from 1990 to 2001? Do research and development costs explain the prices we pay? What are the effects of advertising and other forms of marketing on demand for prescription drugs and the amounts we pay for them? If it is true that industry direct-to-consumer advertising expenditures increased seven times between 1995 and 2001, why has this been so and how are prices affected by these increases?

"What about conduct by companies that have violated state and federal antitrust, consumer protection and other laws? Is this another cost driver? And how transparent is the prescription drug marketing and distribution system? Why are cheaper generic equivalents neither prescribed by more doctors nor desired by more patients?"

There is a NAAG meeting scheduled for Chicago in January on this subject.

For more on this subject, go to this post on Point of Law.

The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last few weeks' worth of postings in telegraphic, even punchy style. It's a great way to keep up with items you may have missed; you can even forward the email to friends to let them know about the site. Sign up today, right here.

"Everyone knows" the institution of private proprety is important to a society, but proving just how important has, somewhat surprisingly, been tricky. A new paper by Daron Acemoglu (MIT), Simon Johnson (MIT), and James Robinson (Berkeley), makes the case that "differences in economic institutions appear to be the robust causal factor underlying the differences in income per capita across countries." (Emphasis added.) The authors define good "economic institutions" as including "enforcement of property rights for a broad cross-section of society so that all individuals have an incentive to invest, innovate and take part in economic activity." Additionally, there must be "some degree of equality of opportunity in society, including such things as equality before the law, so that those with good investment opportunities can take advantage of them." In an earlier paper, the authors coined the term "institutions of private property" to cover this idea, and the term "extractive institutions" to cover situations where "the rule of law and property rights are absent for large majorities of the population."

The paper, Institutions as the Fundamental Cause of Long-Run Growth, makes fascinating reading, even for a non-economist. It is available for purchase from the National Bureau of Economic Research (NBER subscribers can download it for free). A less-than-final draft, dated April 29, is also available on Professor Acemoglu's webpage.

Lowndes County, Alabama, has a reputation for being a rather plaintiff-friendly jurisdiction. On Tuesday, however, a jury there returned a verdict in favor of Hyundai Motor Co. in a wrongful death suit. In 1999, Christine Graham was killed "when her 2,300-pound Hyundai Excel was struck by a 79,000-pound Freightliner 18-wheeler going more than 60 miles per hour. Attorneys for the Graham family argued that a faulty seat belt and door latch design contributed to her death in the accident. Hyundai attorneys said the seat belt and door latch met all safety standards and the sheer force of the accident caused the woman's death." The case had been tried once before, in July 2002, ending in a hung jury that voted 10-2 in Hyundai's favor. (Michael Tomberlin, "Hyundai prevails in crash lawsuit," Birmingham News, June 24).

It's interesting to note that Hyundai is building its first US assembly plant in adjacent Montgomery Country. When opened in 2005, the $1 billion facility will employ 2,000 people. I'll leave it to others to divine whether this had any effect on the outcome of Hyundai's case.

Point Of Law, the new site that the Manhattan Institute is launching with my assistance, has now opened its doors. There's a lot to explore including a series of top-drawer reprints of great law review articles of the past. The center attraction, however, is a new weblog on which both Ted Frank and I will be posting, along with Jim Copland of the Manhattan Institute and some players to be named later. We've been putting up experimental posts for a couple of weeks now so there are dozens of them there now which have never appeared on this site; recent topics of discussion include the controversy over Judge Calabresi's remarks at the American Constitution Society (posts by Jim Copland one, two); a report on the introduction of trial by jury into Japan; and tag-team coverage of New York Timesman Bob Herbert's ineffably lame recent diatribes on medical malpractice (Frank, Copland, Olson).

Beyond that, we've enriched the site with selected highlights from the Overlawyered archives, including Ted's must-save discussion of the Stella Liebeck versus McDonald's hot coffee case. Many more features to come, and Prof. Bainbridge has already given the site a nice welcome, as have Prof. Grace, Prof. DeBow and "How Appealing"'s Howard Bashman. Why don't you give it a look/link now too?

P.S. In response to reader inquiries: no, I have no plans to scale back (let alone discontinue!) Overlawyered. PointOfLaw is separate and additional. (expanded and bumped 6/24).

In Nashville, Tenn., Ibrahim Barzinji has sued his former employer, Arkansas-based J.B. Hunt Transport Inc., on the grounds that asking him to transport alcoholic beverages violated his religious beliefs. Barzinji, who is representing himself in the case, "said he had just trucked a load of auto parts from Clarksville to St. Louis on June 26 last year when he was asked to pick up a return load at the Anheuser-Busch plant." He informed his supervisor that he was refusing to handle the cargo, and was dismissed. "A local labor and employment attorney said that, to prove his case, Barzinji would have to convince a judge or jury that asking to be assigned a different load was reasonable and would not cause undue hardship on the company." The issue has come up before in a somewhat different context: "Muslim cab drivers at the Minneapolis airport several years ago began refusing to pick up passengers who carried duty-free alcohol, said Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a Washington, D.C.-based advocacy group." (Anita Wadhwani, "Fired Muslim truck driver sues employer", The Tennessean, Jun. 23).

The American Bar Association today released the report of the so-called "Justice Kennedy Commission." Its bottom line: "America's criminal justice systems rely too heavily on incarceration and need to consider more effective alternatives." The report's long list of recommendations -- including the repeal of mandatory minimum sentences -- will be taken up by the ABA House of Delegates at the annual meeting in Atlanta in August. (The full text of the report can be downloaded here.)

In Texas, to name one state, it's perfectly legal for lawyers pursuing personal injury claims to advance money to their clients to cover living expenses. (At common law, the practice was banned under the rubric of "maintenance".) So when Kelvin Johnson came around with a story about how he and a friend had been injured on an oil rig and how the friend was lying in a coma and had been offered a hefty settlement, it seemed like pretty much a sure thing to slip him some money. Trouble is, Johnson was pulling the scam with numerous lawyers under various names. A Corpus Christi practitioner explained why he was suspicious of what seemed the "perfect case": "I didn't think it likely that his friend could be in a coma 10 months without some lawyer signing him up." Johnson has been sentenced to 20 years. (Rick Casey, "Selling lawyers a lucrative tale", Houston Chronicle, Jun. 22) (via Texas Law Blog).

The American Enterprise Institute held a conference on this subject yesterday:

"For better or worse, the battle over the 2000 Florida election still remains with us. Billions of dollars are being spent by states to change their voting-machine systems in order to correct the perceived problems experienced in Florida. Yet much debate still exists over exactly what went wrong in Florida and whether the changes in voting machines will solve the problems or ensure an even worse disaster this November. The conference will feature experts in charge of instituting the new voting machines, academics that have studied these issues, and those responsible for the media recounts."

Copies of the papers presented and a video of the event are available online, here.

On NRO today, Jonathan Adler debunks one of the key events in the history of environmental regulation -- the 1969 fire on the Cuyahoga River in Cleveland. Says Adler: "Oil and debris on the river's surface did burn in 1969, and federal environmental statutes were the result, but so much else of what we 'know' about the 1969 fire simply is not so. It was not evidence of rapidly declining environmental quality, nor was it clear evidence of the need for federal action."

Update: This post at the Volokh Conspiracy includes a link to Adler's article-length treatment of the subject.

The 2004 edition of Clyde Crews's "annual snapshot of the federal regulatory state" for Cato is available as a PDF file, here.

Alabama governor Bob Riley this morning appointed Drayton Nabers to serve the two years remaining in the term of Roy Moore. (Moore, you may recall, was removed from the bench by the Alabama Court of the Judiciary for failing to comply with a federal court order to remove a Ten Commandments monument from the state judicial building.)

Nabers, a graduate of Princeton and the Yale Law School, clerked for Justice Hugo Black (1965-66) and practiced law in Birmingham for a number of years before joining Protective Life Corporation in 1979. He retired as chairman of the firm's board of directors in 2003 and then joined the Riley administration as the state budget director. Nabers's stature is such that a former president of the Alabama Trial Lawyers Association is quoted in the story linked above as saying, ""I believe he's such a man of integrity that he will not put his personal background in the way of fairly dealing with each issue before him."

Nabers has not decided whether he will run for re-election in 2006.

My name is Mike DeBow, and I teach property and corporate law at the Cumberland School of Law at Samford University, in Birmingham, Alabama. I am also interested in state law reform and issues surrounding state judicial selection. During 2000-2004 I served part-time as a special assistant to Alabama attorney general Bill Pryor.

Readers who, unaccountably, want more info about me can click here or here. What doesn't show up on either of those webpages is the fact that I've been a guest blogger at Southern Appeal for almost a year.

I am a long-time fan of Walter's, and a diligent reader of Overlawyered. My thanks to Walter for the invitation to join him this week.

Fresh on our letters page, we've managed to post another four reader letters from our backlog. Among topics this time: the bizarre prison death of a serial killer in Missouri; a generous assessment of what we do here from a plaintiff's trial lawyer in Chicago; we get called disingenuous, cynical, and other bad things because of our comment on a lawsuit demanding that school bus windows be redesigned; and a reader wonders whether accounting crimes which destroy life savings ought not to be seen as comparable to violent crimes which destroy lives themselves.

Good news! Florida federal agents have apparently done such a good job clearing the shores of criminals and terrorists that they've moved to tackling the perversely trivial.

Wyoming teacher's aide Hope Clarke stayed in Yellowstone last year, and was fined $50 for failing to put away her marshmallows in violation of the park's food storage requirements, a fine she was required to pay before leaving the park. But, somehow, she ended up on a bench warrant list; when her cruise ship returned from Mexico, she was rousted and handcuffed by federal agents at 6:30 am, and haled before a court in "shackles and short shorts" hours later--even though the copy of the citation showed the fine had been paid. Magistrate Judge John O'Sullivan apologized, and ordered her released over the prosecutor's suggestion that the case be transferred to Wyoming. (Catherine Wilson, AP, Jun. 19) (via Weinstein)(& letter to the editor, Sept. 10).

It's guest blogger season again, and our first guest blogger of the summer begins a week of posting tomorrow -- be sure to stop by. We've lined up another distinguished guest who will be joining us next month, and more volunteers/nominations are welcome: just email.

The Hartford, Ct. law firm of Haymond, Napoli & Diamond runs an ad that particularly annoys the state's chief justice, William J. Sullivan. According to the Connecticut Law Tribune, the ad "show[s] bags of money being dropped off by an armored truck, in a presumed showing of the attorney's courtroom prowess." (Keith Griffin, "Conn. Justice Attacks 'Aggressive' Lawyer Ads", Connecticut Law Tribune, Jun. 15). Meanwhile, New York Times columnist Bob Herbert today continues his vehement attack on those who suggest the medical liability system might be in need of some reining in, charging: "This is all about greed." ("Malpractice Myths", Jun. 21).

Between 1983 and 1993, federal courts maintained relatively strong rules authorizing the levying of sanctions against lawyers or clients who pursue ill-grounded lawsuits, pleadings, motions or defenses. In 1993, following a quiet but determined lobbying campaign by organized litigation interests, Congress more or less gutted those rules, making sanctions much harder to obtain. Reinvigorating Rule 11 has long been high on our list of reform priorities, so we're glad to see that Rep. Lamar Smith (R-Tex.), who chairs the House Judiciary subcommittee on courts, last week announced that he was introducing a bill entitled the Lawsuit Abuse Reduction Act, restoring a strong Rule 11. According to the Congressman's Jun. 15 press release, the bill (begin direct quote):

* Makes sanctions against attorneys or parties who file frivolous lawsuits mandatory rather than discretionary;

* Removes a "safe harbor" provision that allows plaintiffs and their attorneys to avoid sanctions for frivolous suits by withdrawing them within 21 days;

* Allows sanctions for frivolous or harassing conduct during discovery, which is the phase of litigation where parties disclose documents;

* Permits judges to order plaintiffs to reimburse reasonable litigation costs, including attorney’s fees.

(end direct quote). According to the release, the bill also contains a provision to curb forum-shopping, and "[e]xtends Rule 11 sanctions to state cases that affect interstate commerce". The last-mentioned clause sounds more than problematic from a federalist point of view, but presumably can be left on the cutting room floor at some point so that the other provisions can be considered on their own merits. More: Point of Law, Aug. 17.

And good for them: "rules about standing, however inconvenient, serve a purpose: limiting the power of the federal courts over our lives and government policies." (Steve Chapman, "On the pledge, the Supreme Court punts", Chicago Tribune, Jun. 17). An earlier court ruling had already established the girl's mother as guardian of her legal interests, and California plaintiff Michael Newdow (who was never married to the mother) should not be permitted to evade that determination by pursuing proceedings in a second court (more on standing).

"A good sign that Mississippi has passed fair tort reform is Ralph Nader not liking it."

-- Pete Smith, spokesman for Governor Haley Barbour.

Nearly 95 percent of felony convictions result from plea bargains rather than trial, and acclaimed documentary-maker Ofra Bikel scrutinizes the process in a PBS "Frontline" show that aired last night ("The Plea", Jun. 17). Last year (Fall 2003) the Cato Institute's Regulation magazine published pro and con articles on the practice (Timothy Lynch, "The Case Against Plea Bargaining" (PDF); Timothy Sandefur, "In Defense of Plea Bargaining" (PDF)).

The Houston-based mass tort specialist, who has long played a prominent role in these columns for his exploits in asbestos, tobacco, silicone implants and most recently fen-phen (Apr. 28, Feb. 26 and many more), is now being talked of by activists as a potential Democratic candidate for governor of the Lone Star State. (W. Gardner Selby, "Democrats appear to be in no rush to challenge Perry for governorship", San Antonio Express-News, Jun. 15). One factor helpful to him: last fall (see GregsOpinion.com, Oct. 25) Texas Democrats elected as their chairman San Marcos attorney Charles Soechting, who happens to practice at none other than the law firm of O'Quinn, Laminack & Pirtle.

"The question before the jurors was not whether legal fees amounting to $7,700 an hour were 'unreasonable.' It was whether the lawyer-plaintiffs should get $1.3 billion more." Detailed account of tobacco-fee buccaneering and the resulting courtroom antics (complete with "trained-seal" expert witnesses) in one state. When contemplating the tobacco crusade, the chief of litigation at Brown Rudnick said, "I had dollar signs in my eyes, even back at that early stage. And I know that they were large dollar signs." (Alex Beam, The Atlantic, Jun.). For our coverage of Massachusetts tobacco fees, see Nov. 4 and links from there.

Almost enough to make you want to vote for Bush: Dallas mass tort operator Fred Baron, poster boy for legal ethics and co-finance chairman of John Edwards' presidential campaign (see Feb. 19), has been named co-chairman of Kerry Victory '04, a joint effort by the Democratic National Committee and the campaign of presumptive nominee Kerry. "Baron says his contacts with contributors who can write big checks which, no doubt, include high-profile Texas plaintiffs lawyers were, in part, responsible for him getting the new post." ("Texas Lawyer With Edwards Ties Joins Kerry Team", Texas Lawyer/New York Lawyer, Jun. 2). More: detailed article on how Kerry, whose "voting record shows strong support for the plaintiffs bar", has inherited the support of John Edwards' trial-lawyer-based fund-raising machine (Lily Henning, "Edwards' Army Recruited for Kerry Cash Push", Legal Times, Jun. 18). Includes quotes from Washington mass tort attorney John Coale ("Kerry has just about a perfect record on issues that interest lawyers and trial lawyers,") and our friend Lester Brickman. What if Kerry names Edwards as his v.p. pick? "If he's on the ticket, you can reasonably predict that the amount of giving from trial lawyers will double or triple," Brickman says. "They will unzip their wallets like they never had before. This would be unprecedented." Yet more: the AP is on the story (Sharon Theimer, "Trial lawyers boost Kerry's campaign effort", AP/Houston Chronicle, Jun. 20)

Despite objections that it is institutionalizing "double dipping", New York's highest court has given its assent to a manifestly unfair practice in family court of counting the same income stream twice in calculating support payments. The issue arises because New York, alone among the 50 states, treats enhanced income attributable to a professional license as community property and awards a share of it to the other spouse. The court may then proceed to assess child support payments on top of that against a non-custodial spouse. In doing so, however, courts have been basing child support formulas on the full professional income stream, even though part of that stream is no longer available, having been awarded to the other spouse. "The immediate effect of the [new Court of Appeals] ruling is that an Albany, N.Y., physician must pay his ex-wife two-thirds of his net income, about $91,000 a year, since his child support calculation ignores the fact that she is already drawing from the value of his medical license." According to the majority of justices, this result simply follows from the phrasing of the state's child support statute, and the legislature in Albany is free to change it if it is unfair. Dissenting Justices Robert Smith and Susan Phillips Read, on the other hand, point out that the statute in question "expressly permits departure from its formula to avoid an 'unjust or inappropriate' result." (John Caher, "N.Y. Panel Upholds Disputed Child Support Formula", New York Law Journal, Jun. 14; Holterman v. Holterman opinion, Jun. 10).

Ferrell Hunter, a sheriff's deputy in Tunica County, Mississippi, was a Stakhanovite arrester of motorists on DUI charges, hailed by the state chapter of Mothers Against Drunk Driving as the state's top such enforcement officer. But something MADD did not realize was that Tunica County has had a peculiarly low rate of actual conviction for DUI defendants. It turned out that Hunter had an arrangement with former Oxford attorney Joe Gregory Stewart: Hunter would provide Stewart with the names of motorists he arrested, Stewart would approach them and sign them up as clients, Hunter would then fail to make court dates so that the charges would be dropped, and Stewart would kick him back $200 or $300 per case. Now Hunter will serve three years probation after pleading guilty to conspiracy to commit extortion, while Stewart was sentenced to three years probation, hit with a $20,000 fine and disbarred. (Andy Wise, "Former Tunica County Deputy Sentenced For Fixing DUI's", WREG, Mar. 10)(via Lori Patel).

In the complicated surgery to correct scoliosis, screws and rods are inserted and bone added into the spine. The risk of nerve damage or paralysis is such that there is something called the Stagnara wake up test, whereby the patient is woken during surgery to ensure she can move her feet. In 1999, however, Joshua Terry was one of the unfortunate 0.1% who was paralyzed during surgery. And, according to the newspaper account, his lawyer, Jay Kelley, found four surgeons to testify against defendant Dr. Ernest Lindell that "paralysis was not a potential complication" from surgery on the spine to correct scoliosis. A Lucas County, Ohio jury awarded $8.4 million to Mr. Terry and another million to his parents. And Dr. Lindell will no longer perform spinal surgery. ("Paralyzed area man wins $10M judgment", Toledo Blade, Jun. 16; P. Stagnara, et al., "Functional monitoring of spinal cord activity during spinal surgery", Clin. Orthop., 1973; 93: 173–8).

The Electronic Frontier Foundation announces a contest to find and publicize--and challenge--illegitimate patents:

In order to qualify for our ten most-wanted list, a patent must be software or Internet-related and there must be a good reason to suspect that the patent claims are invalid. We're especially interested in patents that target tools of free expression, such as streaming media, blogging tools, and voice over IP (VoIP) technology. Most importantly, the patent-holder must be aggressively enforcing its patent and suing (or threatening to sue) alleged infringers. We're particularly interested in cases where the patent-holder is trying to force small businesses, individuals, nonprofits, and consumers to pay licensing fees. Deadline to enter is June 23.

New Hampshire: "Attorney General Peter Heed resigned abruptly Tuesday because of an allegation of inappropriate conduct with a woman. Gov. Craig Benson said the alleged incident occurred at a conference last month in Bretton Woods on preventing sexual and domestic abuse. ...WMUR-TV reported that the alleged incident occurred after hours on a dance floor." (Kate McGann, "New Hampshire A.G. Heed resigns over misconduct allegation", Boston Globe, Jun. 15).

The city of Santa Monica, Calif. made headlines last year when it won a large settlement from oil companies over MTBE (methyl tertiary-butyl ether)contamination of its water supply, but now it's locked in a bitter legal dispute with the private law firms it hired over their fee bill, which could reach $66 million. The firms include Miller & Sawyer, Baron & Budd, and Sher & Leff. The case is being watched elsewhere in part because Baron & Budd and other law firms have signed up numerous other state and local governments as clients to press MTBE claims on a contingency basis. (Eric Peters, "Nation watches suit of Santa Monica v. lawyers", Contra Costa Times, Jun. 6; Blair Clarkson, "City Overcomes Final Hurdle in Oil Suit Battle", The Lookout, Mar. 4)(see Jun. 11-12, 2002, Nov. 25, 2003). See also Doug Bandow, "Energy Bill Debate Confirms a Lawyer-Democrat Alliance", Cato Daily, Feb. 14. More (via SoCalLawBlog): Gregory Crofton, "Santa Monica fighting legal bills for MTBE lawsuit", Tahoe Daily Tribune, Jun. 4.

Striking a blow for personal responsibility, the High Court of Australia has ruled that a woman who drank too much at a bar and later injured herself cannot recover from the drinking establishment on the grounds it should have cut her off sooner. Chief Justice Murray Gleeson "said the onus should not be on clubs to prevent injury to those who drank to excess" and wrote: "There are many forms of excessive eating and drinking that involve health risks, but, as a rule, we leave it to individuals to decide for themselves how much they eat and drink. There are sound reasons for that, associated with values of autonomy and privacy." (Michael Pelly, "Blaming the barman is out: court", Sydney Morning Herald (soon to adopt registration), Jun. 16)(see May 12, 2003). Judges from the highest courts of New South Wales and Queensland are among the latest to be taken in by a widely circulated list of amusing but entirely fictitious court cases which supposedly won "Stella Awards"; our debunking appeared August 2001. ("Our Stella judges", MediaWatch, Jun. 14). And the High Court in April heard a case which seeks to overturn the longstanding prohibition on negligence suits against barristers by clients harmed by the errors and omissions they make in advancing legal arguments. "Immunity for advocates has been abandoned in many other countries, including Canada and the United States. However, many Australian barristers argue that the risk of being sued would lead to spiralling insurance premiums and costly litigation." (Sonia Harford, "Lawyers wait on High Court case", Melbourne Age, Apr. 25).

The New York assembly speaker, who's done more than anyone in Albany to keep the right to sue on a continually expanding course, now faces a lawsuit charging him with tolerating an atmosphere of sexual harassment, following extremely ugly allegations of sexual assault against his chief counsel, Michael Boxley. (New York Post coverage: "Silver's slippery slope" (editorial), Jun. 13; Frederic U. Dicker, "Victim to sue Silver", Jun. 9; Frederic U. Dicker and Kenneth Lovett, "Silver 'rape' blame", Jun. 10; Frederic U. Dicker, "Pretzel popper Silver dissed my rape claim", Jun. 14. More on Silver: May 1, 2000; May 11-13, 2001; Dec. 13-15, 2002; Jun. 9, 2003. In other news, powerful Republican State Senator Guy Velella of the Bronx, whose law firm's successful injury suits against New York City were mentioned in this space May 1, 2000, has fallen in a corruption scandal ("Guy Velella Pleads Guilty", AP/WCBS, May 17).

Update Feb. 5, 2006: suit against Silver's office settles for $500K, most of it taxpayer funds.

Roller coaster, indeed: Maryland's highest court has thrown out a jury's $2.5 million verdict against the operator of the Six Flags amusement park at Largo over a 1999 incident in which park employees told a family that their 4-year-old daughter did not meet the height requirement for the Typhoon Sea Coaster ride. The family refused to get off the ride and there ensued an altercation with park employees which resulted in several family members being handcuffed and led away to security -- none were apparently seriously hurt -- before being let go an hour later. How did a dispute of this magnitude snowball into a $2.5 million jury verdict? Well, it seems that although the original charges against the park operators did not make an issue of race, lawyers for the plaintiffs (who are African-American) had repeatedly played up racial angles before the Prince Georges County jury. Finding "a significant probability that the verdict was influenced by improper and irrelevant insinuations by their attorneys and certain of their witnesses of racial discrimination by alleged employees of the corporate defendant," the court ordered retrial ("Court of Appeals overturns $2.5 million award in Six Flags suit", AP/InsideBaltimore, May 17; CoasterBuzz, May 18; Tierco v. Williams, opinion in PDF format)(via Insurance Defense Blog, Jun. 1). Just to guarantee the burning up of even more resources, the case spawned insurance coverage litigation (PDF) in Delaware.

Worried about the hypothetical privacy dangers resulting from "data mining" by federal security agencies chasing terrorists? Then you might want to spare a thought for the privacy implications of a commercial service called SmartJury, affiliated with the same database company that has been selling information on private citizens to the government for antiterrorist use. As Alex Tabarrok notes, SmartJury promises to provide trial lawyers with

real-time access to public record information on potential jurors. Within seconds of entering potential jurors, you will receive reports including information such as: Criminal Records; Political Party Affiliations; Bankruptcies; Corporate Affiliations; Real Property Ownership (including value); Motor Vehicle Registrations; Web Site Domain Names; and 2000 Census Information (including median household income, average age, average years of education, and median home value).

I'm scheduled to be a guest tomorrow morning (Tues.) at 8 a.m. EDT on Jim Blasingame's "Small Business Advocate" nationwide radio show (more), and then at 10 a.m. EDT on Cincinnati's WLW. And then on Wednesday from 11 to 12 a.m. EDT I'll be the guest of Laurie Morrow on Vermont's "True North Radio". In each case I'll be discussing my book "The Rule of Lawyers", just out in paperback from St. Martin's/Griffin (more).

If you're a booker for a broadcast show or other news outlet, you're aware that it's at times like this, with books just reaching the stores, that authors and publishers are most eager to cooperate. To ask about appearances, contact Jamie Stockton at the St. Martin's publicity department: 212-674-5151, ext. 502, or email me directly.

While we're at it, you just know that The Rule of Lawyers would make an ideal Father's Day gift, and Amazon (although its stocks are low) offers special shipping guaranteed to arrive by the weekend. It's also available from Barnes & Noble, Powell's, and (hardcover) Laissez Faire Books.

Confirming the trend we reported on Oct. 3: "A worsening shortage of providers is threatening women's access to mammograms, says a major new report that found long waits for the breast X-ray in parts of the country. ...Fewer radiologists are specializing in breast imaging because of long hours, low reimbursement, heavy regulation and fear of lawsuits," according to the Institute of Medicine study. In addition, as readers try to lean over backwards lest they be accused of overlooking an ambiguous result, the false-positive rate in mammogram results has nearly doubled since the 1980s, according to the report, which in turn "leads to costly, unnecessary repeat testing as well as the anxiety that women often cite for skipping mammograms." (Lauran Neergaard, "Scientific advisers urge increased access to mammograms", AP/San Francisco Chronicle, Jun. 10; "Advisers urge greater mammogram access", AP/CNN, Jun. 10; report, "Saving Women's Lives: Strategies for Improving Breast Cancer Detection and Diagnosis").

The medical blogs have been all over the story: MedRants, Cut to Cure, MedPundit. Last month radiologist Thomas Boyle ("CodeBlueBlog") deplored some of the economic and regulatory pressures working to kill mammography practice ("Mammactivists Killing the Mammogram", May 12, see also Jun. 11), and was no less scathing about the legal pressures:

A mammogram is an inherently limited study with relatively low sensitivity and specificity. Unfortunately, the public does not understand these limitations because the exam has been oversold as a diagnostic modality (We are told this is for the public's "own good”). As a result, people have a difficult time understanding why breast abnormalities are "missed" or "misinterpreted" during routine mammography. Personal injury lawyers ruthlessly take advantage of this dilemma by scavenging mammograms involved in breast cancer cases. They prey on this ignorance by holding radiologists to impossible standards bolstered with retrospective analyses of mammograms done by venal physicians in their stable of "experts". As a result, mammography is the single highest liability risk for radiologists (and the second highest risk in all of medicine). For a $15 reading fee, radiologists can face multi-million dollar lawsuits.

According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek "no strings" discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement. (As the law firm's web site puts it, "We believe in a team approach.") Because of Texas's permissive legal ethical rules, prosecutors decided they couldn't pursue extortion charges; state law permits Roberts to bring "creative" claims and to take discovery in advance of filing a lawsuit, and the prosecution had no way of proving that Roberts's intent in submitting the documents was a bluff rather than a "legitimate" lawsuit.

The newspaper found out only because another lawyer, Robert V. West III, sought to raise the scheme as part of a separate business dispute with the Roberts; fans of poetic justice will note that the Roberts accuse West of blackmail, and brought disciplinary charges against West and his lawyer to the state bar. The bar is investigating West, but, apparently, not the Roberts. Everyone involved denies any wrongdoing. Roberts unsuccessfully brought suit to prevent publication of the story, but the court records remain sealed. (Maro Robbins and Joseph S. Stroud, Jun. 13) (via Bashman).

Ends with a whimper dept.: "After being threatened with sanctions for frivolous litigation, a Reno lawyer said ...he has dropped a lawsuit against Coors Brewing Co. filed for the mother of a young man who died in a car wreck while driving drunk. ...when a lawyer for Coors threatened [attorney Ken McKenna] and [client Jodie] Pisco with sanctions, they decided to back off, he said." Too bad sanctions have been made so hard to get in most courts, since their deterrent effect on wrongful lawsuits is often clear, as in this instance. The original case (see Apr. 19) had drawn worldwide publicity. ("Lawyer drops suit against Coors in man's death", Reno Gazette-Journal, Jun. 2; Steven Milloy, "Lawsuits, Alcohol Advertising and Money", FoxNews.com, May 21).

Madison County has its deserved reputation as a "judicial hellhole" because plaintiffs recognize that its judges are friendlier to questionable class actions and asbestos cases, leading it to become a magnet jurisdiction for these actions. (See Apr. 15; Apr. 5; Jan. 5 and links therein; John Stockinger, "Advocates call for reform of Madison County legal system", Alton Telegraph, Jun. 9.) Now, the Astroturf trial lawyers' group "Victims and Families United" (Feb. 20) tries to defeat that perception by trumpeting some statistics about medical malpractice in the region. Previously, the group had tried to suggest there was no medical malpractice crisis, despite the fact doctors were leaving the area by the dozens, by pointing out the low number of verdicts in the area; of course, verdicts are a small fraction of payouts to lawyers in settlements. So the trial lawyers have responded by making up some numbers, and trusting that the press won't delve too deeply into the claims.

By manipulating a couple of denominators, the trial lawyers' group purports to show that settlement payouts are average for the state. The Madison-St. Clair region has 4.2% of ISMIE's $270 million in payouts in 2003, they say, and 4.2% of the population; therefore, payouts are supposedly in line with the rest of Illinois. The St. Louis Post-Dispatch uncritically reports these numbers, as well as uncritically calling the trial lawyers' group a "victims' rights group." (William Lamb, "Data do not justify Metro East's malpractice reputation, group says", Jun. 10).

But the numbers are bogus. ISMIE doesn't insure "population", it insures doctors, and doctors per capita are lower in Madison and St. Clair Counties than elsewhere in the state; off the bat, one would expect lower payout rates for these counties if they were typical for Illinois. Worse: the $270 million denominator is fictional. Using the actual denominator of $226 million (see 2003 ISMIE Annual Report at 25) or $234 million (John Stockinger, "Victims group disputes claims of insurance crisis", Alton Telegraph, Jun. 11), and the Madison/St. Clair per capita number (a number that already understates the extent of the problem) turns out actually to be 116% to 120% of the statewide average--a number that can be found nowhere in the press coverage. (Patrick J. Powers, "Claims here mirror state", Belleville News-Democrat, Jun. 12).

At least the Alton Telegraph balances it with other statistics that tend to show the fiction: average payment to plaintiffs in the area jumped from $276,000 to $495,000 between 2002 and 2003. In the past five years, ISMIE has paid out $33.5 million in verdicts, settlements and expenses, while earning only $29.6 million from Madison/St. Clair County-area premiums.

The Library of Congress, as part of a project that aims to preserve press coverage of the 2002 campaign, has archived this site as it appeared in the fall of that year, along with dozens of other weblogs. LiveJournal user "UKSubs" pays us a nice tribute in a list of favorite sites, writing: "I am still shocked by the number of ridiculous frivolous lawsuits filed in this country and others on a daily basis. Overlawyered works by finding a nice tone that is firmly between mocking and anger. Everytime I read Overlawyered, a part of me screams, what have I gotten myself into." And we got a great big influx of traffic from Neal Boortz's popular site (see Mar. 1-3, 2002) when the Atlanta-based radio host linked to our Jun. 1 item on the lawyer who hopes to offer "post-traumatic slave syndrome" as an excuse for an Oregon defendant accused of murder.

"After six years of regulations and restrictions that have cost builders, local governments and landowners an estimated $100 million, new research suggests the 'threatened' Preble's mouse in fact never existed. It instead seems to be genetically identical to the Bear Lodge meadow jumping mouse, which is considered common enough not to need protection." (Mead Gruver, "Research: Endangered Mouse Never Existed", AP/Las Vegas Sun, Jun. 11; "More mice could muddy waters in Preble's mouse fight", AP/Casper Star Tribune, May 14)(more on endangered species).

A Kentucky family court judge is ordering some dads who fall behind in their court-ordered child support payments to choose between going to jail and submitting to a vasectomy. That's part of a growing trend (see Jan. 7-8, 2003) for courts to issue edicts against procreation, notwithstanding the bad odor that court-ordered sterilization has been in for the past few decades. (Dee McAree, "Deadbeat Dads Face Ban on Procreation", National Law Journal, Jun. 10). For more on child support, see Feb. 3, Sept. 18, Feb. 25; more.

Reversing a seven-year-old precedent, the Massachusetts high court has ruled that even though employees enjoy an absolute right to seek jury trials rather than have their claims of bias adjudicated by the state antibias agency, MCAD, employers do not have a right to bring their case to a jury following an adverse MCAD ruling. In its May 6 decision, the court said that recognizing employers' right to a jury trial, as it had done in a 1997 decision called Lavelle v. Massachusetts Commission Against Discrimination, was undermining the agency's authority. Mustn't do that! ("SJC decision curbs employer access to jury trial in job-related discrimination cases", Boston Business Journal, May 7; "Bias case rulings may have wide impact", BostonWorks.com (Boston Globe), May 23; "Q&A: MCAD's Dorca Gomez, on jury trial reversal", Boston Globe, May 16). The law firm of Foley, Hoag & Eliot (May 12, PDF) said the ruling "further stacks the deck against employers in discrimination cases". Remarkably, the Massachusetts chapter of the ACLU had pressed to abolish employers' right to jury trial, and hails the new decision in a press release which seems calculated to lull the casual reader into imagining that the two sides are somehow still endowed with symmetrical rights (by de-emphasizing complainants' privilege of choosing which forum will hear the dispute). No doubt our friends at ATLA, with their frequent rhetoric about the need to prevent erosion of the jury system, will rise to deplore the stripping away of defendants' access to juries. Right?

Following hard-fought political battles, the Mississippi legislature has passed and sent to Gov. Haley Barbour for his signature a wide-ranging bill limiting liability lawsuits. It includes a $500,000 limit on pain-and-suffering awards in medical malpractice cases, and $1 million in other cases; punitive damage caps; venue reform; joint and several liability limitation; relief of premises owners from liability to contractors' employees for hazards known to the contractor; and product liability relief for "innocent sellers". In recent years Mississippi has sometimes been charged with having a legal system more tilted against civil defendants than that of any other state; the new law is likely to help ameliorate that image. (Julie Finley, "Doctors praise tort bill passage", Natchez Democrat, Jun. 3; overview of H.B. 13 at Mississippi Economic Council site; "Barbour touts tort reforms in D.C., N.Y.", Jackson Clarion-Ledger, Jun. 10; American Tort Reform Association press release, Jun. 4). For a few highlights from our coverage of the Magnolia State, see May 15, Apr. 30, Dec. 12, Nov. 16, Nov. 12, Oct. 3, Aug. 19, Jul. 1, and Jun. 29, among many others.

No new oil refineries have been built in the United States since 1976 -- not even in California, where capacity shortages have especially pinched. The reason is not the lack of demand, but the legal/regulatory environment. (Mike Angell, "Rules, Small Returns Block New Refineries", Investor's Business Daily, Jun. 10; Dale Kasler, "No new California refineries despite soaring gas prices", AP/Oakland Tribune, Jun. 10).

Common Good, the legal reform organization founded by author Philip K. Howard, has compiled a list of activities that have become less common because of liability fears. Among those deemed "rare": "Sell Girl Scout Cookies at the local gas station" and "Stop and assist a person at the scene of an accident." "Endangered": "Play on a seesaw that requires two children to cooperate" and "Lend your car to a person in need." Deemed "extinct," perhaps with poetic exaggeration: "Fire a poorly performing teacher or government official" and "Keep a public lake open for swimming." ("Save these activities ... before it’s too late!", Common Good, undated, announced Jun. 3)

"Why, after all, would a bar offer discounts to women? Not because the owner harbors a deep-seated hostility toward men, perpetuating centuries of oppression. People who run such establishments understand that a lot of men patronize taverns partly to meet women, and that they will come more often and stay longer if women are abundant than if they are scarce....[I]n New Jersey, unreasonableness rules." (Steve Chapman, "Putting the brakes on ladies' nights", Chicago Tribune, Jun. 6). See also Aug. 4, 2003 (Calif.)

Terry Williams collided with Kellie Meagher, who was allegedly talking on a Cingular phone at the time -- so Williams sued Cingular. Neither the trial court nor the Court of Appeals was impressed, even after Williams submitted a Blondie comic strip in support of the cause. The court noted that it wouldn't impose liability on a mapmaker for a driver who causes an accident while looking at a map. (Kevin Corcoran, "Court: Don't blame cell-phone maker for crash", Indianapolis Star, Jun. 5). However, plaintiffs have successfully sued employers in other cases where employees were using cell phones while driving. (Matt Sundeen, "Cell Phones and Highway Safety: 2003 State Legislative Update", NCSL, Jan. 2004).

Also via the Colorado Civil Justice League May 21 newsletter: class members will receive $240,000 and a law firm representing the class will get $350,000 in fees following the settlement of an action against Chemins Company Inc. of Colorado Springs over mislabeled powdered protein supplements. The supplements allegedly contained twice as many carbohydrates and half as much protein as specified on their label. The settlement was billed as being worth $3 million but only 117 certified claimants stepped forward instead of the projected 10,000. Hill & Robbins had originally requested $600,000 in fees but the judge said $825 an hour was too much so he cut it to $481 an hour, which still leaves the lawyers with a bigger share of the booty than their clients. (Rocky Mountain News coverage: John Accola, "Class-action morass", May 7; "Two lead plaintiffs won't get bonuses", May 7; "The class-action game and how to slow it", (editorial), May 14; letter to the editor from attorney Ronald L. Wilcox of Hill & Robbins, May 14).

The Colorado Civil Justice League, in its May 21 newsletter, reports: "The Loveland Reporter-Herald reports that a Broomfield family has sued a motel for keeping a sliding glass door too clean. The family is suing the owners of the Hobby Horse Motor Lodge after their then-8-year-old son ran through a sliding glass door at the motel because 'the glass was so transparent and clean that (he) erroneously, but understandably, assumed that the door had remained open,' according to the lawsuit."

So say Mark Kleiman (Jun. 4), Matthew Yglesias, and Brad DeLong.

June is a time for graduation, and what graduation would be complete without at least one lawsuit over who has the highest GPA? (See Jul. 12 and links therein.) Blogger Andrea comments unkindly. (Ariel Sabar, "Suit exposes cultural clash", Baltimore Sun, Jun. 7; AP, Jun. 3) (via Bonin).

For a while now I've been at work on a project which will be of interest to many readers of this site, and I'm happy to say I can now divulge its general outlines. A few months ago the Manhattan Institute (with which I'm associated as a senior fellow) asked me to develop, launch and edit an entirely new website under its auspices (unlike Overlawyered, which is freestanding). The site's mission: to take a more in-depth look at our legal system and how it might best be fixed.

Fuhgeddaboudit, Bill Bennett: "grandstanding politicos seem intent on getting the government into the business of censorship. ... It has been said that when Democrats start talking about children, it's time to hide your wallet; when Republicans start talking about children, it's time to TIVO the good stuff for posterity." (Prof. Bainbridge, Jun. 4; Adam Thierer, National Review Online, Jun. 4). And another parent, this time a New Mexico resident with a 12-year-old boy, has been menaced by authorities with child abuse charges for taking his child off Ritalin, the antidepressant drug (Brian Robinson, "Pills vs. Talking: Dad Investigated for Taking Son Off Meds", ABC News, Jun. 7). For an earlier case along the same lines, see Jul. 26-27, 2000. (via Wizbang). Sydney Smith has more (Jun. 8).

New York subway riders have long been familiar with the high-volume ad campaigns of Wilens & Baker with its hotlines 1-800-DIVORCE (on which see Dec. 18-19, 2000), 1-800-IMMIGRATION and 1-800-BANKRUPT. At the moment the firm's big campaign is aimed at recruiting patients who have received hormone replacement therapy: if they've taken Premarin or Prempro and later developed breast cancer, heart problems, or many other ailments, they may be entitled to compensation, the ads say. Wilens & Baker's website declares that the law firm has "a real understanding of the emotional hardship that accompanies extremely unfortunate circumstances".

Hmmm. It turns out the 12-lawyer firm and its partner Lawrence M. Wilens have just been censured by the New York judiciary for "engaging in a pattern of rude, neglectful and demeaning conduct toward clients" after admitting to 19 violations of the state's Code of Professional Responsibility, according to New York Lawyer/New York Law Journal, which has numerous colorful details (Anthony Lin, "High-Visibility NY Law Firm Censured", May 21). Although W&B's Prempro website declares: "You deserve a firm which specializes in personal injury and mass tort litigation", it does not mention that 80 percent of W&B's caseload is actually in immigration law. In the disciplinary proceedings, the firm's employees and Mr. Wilens in particular were found to have hurled insults at various immigrant clients, including those who could not afford to pay their bills. The firm said it had changed its practices and "Mr. Wilens and other senior lawyers at the firm completed anger management classes", but the appellate panel refused a plea to keep the reprimand secret. It was also apparently unswayed by a character reference submitted by "Richard Katcher, the chairman of Wachtell, Lipton, Rosen & Katz, one of the city's top corporate law firms. Mr. Katcher told the committee he was 'buddies' with Mr. Wilens and that they frequently dined, socialized and vacationed together. He said he had recommended Wilens and Baker on a number of occasions and Mr. Wilens was well regarded in professional and social circles." David Giacalone, whose invaluable website has again suspended its specifically legal commentary, covers the story (May 21, & see his comments section).

Minimum deposit required $4,420 and 19.8 cents, actual proffered deposit $4,420 and 19 cents even, result: misery. After the tax auction of a piece of Ontario vacation land, a rival successfully challenged the high bid on the grounds that it should have included a deposit that was eight-tenths of a cent higher. We're all in favor of formalism in the law, but... (Paul Waldie, "A penny saved . . . is a cottage lost", Globe and Mail, Jun. 5).

Thanks to David Bernstein (Volokh Conspiracy, Jun. 2) for his kind words recommending that people buy my book The Rule of Lawyers, newly out in paperback. Also to Key Monk, who calls it "another good read" (Jun. 1). Reviews of the book, from numerous perspectives, can be found here. Also, we've noticed a few more reviews of the book online in addition to those previously noted: Richard R. Forsten, "It's a Mad, Mad, Mad, Mad World", In Re: (Delaware State Bar Association), Oct. 2003; "Keeping Up With New Legal Titles", review by Harvey K. Morrell, 95 Law Library Journal (2003), (PDF)(scroll to p. 588)("In clear, lucid prose Olson keeps the reader enthralled as he recounts his tales of horror"), and George Leef, "The Learning Curve #145 -- Rule of Lawyers: A Feeding Frenzy of National Proportions", Carolina Journal, May 24, 2004 ("sardonic wit. ...a well-researched and deliciously written expose of a serious national problem.") Evan Schaeffer (Jun. 5) already has sent off for his copy, Paul of Right Side of the Rainbow (Jun. 6) plans to do the same, and you should too (revised and bumped 6/7).

"A transsexual who spent £60,000 on surgery to become a woman is suing her doctor after claiming that he misdiagnosed her with gender dysphoria." Samantha Kane, 44, of Newcastle-under-Tyne, England, had been a millionaire property owner and father of two named Sam Hashimi until deciding to change his gender in an operation seven years ago. Now Kane says she does not enjoy living as a woman and misses the parts of her body that were cut off. She is suing consultant psychiatrist Dr Russell Reid, saying he advised her improperly and should never have permitted the operation. (Helen Nugent, "Sex-change woman sues over 'terrible mistake'", London Times/Gender Trust, May 27).

...won the enactment of far-reaching liability reform in their state last year. How they did it ("The story of tort reform in West Virginia", David A. Kappel, M.D., Bulletin of the American College of Surgeons, May (PDF)). See also "Malpractice Liability in West Virginia" (survey), U.S. Chamber of Commerce Institute for Legal Reform, Nov. 19, 2002 (PDF); American College of Obstetricians and Gynecologists, "Ob-Gyns Praise West Virginia's New Law On Medical Liability Reform" (press release), Mar. 19, 2003. For the other side's views, see Public Citizen, Jul. 9, 2003, and Stephanie Mencimer, "Malpractice Makes Perfect", Washington Monthly, Oct. 2003 (& see Howard Kurtz, "Fox's Middle Man", Washington Post, Apr. 5 on publishing history of last-named piece, which was nominated for a National Magazine Award although the New Republic had "rejected it as flawed after a couple of rounds of rewriting").

"Said Petko Bocharov, a prominent Bulgarian journalist: 'The fact that today Bulgaria is a member of NATO could happen only after the efforts of this great American president. His name will forever remain in history.' ... 'For us, Reagan was important because we knew he was really anti-Communist, emotionally anti-Communist,' said Zdenek Kosina, 65, a Czech computer specialist. 'For us, he was a symbol of the United States' genuine determination to bring communism to an end.' Laurentiu Ivan, 35, a customs officer in the Romanian capital, struggled to describe Reagan's legacy and then said: 'It is due to him that we are free.'" (William J. Kole, "International reaction: 'It is due to him that we are free'", AP/Minneapolis Star-Tribune, Jun. 6).

A breakthrough? With Gov. Robert Taft's signature, Ohio has now enacted the nation's first legislation establishing medical guidelines for eligibility to file lawsuits over exposure to asbestos and silica (see Sept. 13, Nov. 12). Claimants not ill enough to meet the criteria will have their names placed on an "inactive docket" and will be allowed to proceed with suits if their physical condition worsens. The bill was a major objective of business and insurance groups and faced stiff opposition from trial lawyers, who've vowed to challenge it in court. (Jim Provance, "Taft signs bill curbing asbestos suits", Toledo Blade, Jun. 4; "Taft signs law limiting lawsuits over lung damage from silica", AP/Ohio News Network, Jun. 2). See also opinion pieces: Doug Bandow, "Asbestos Liability Should Be On Domestic Reform Agenda", Investors Business Daily/Cato Institute, Feb. 20; "Finding an asbestos compromise", Copley/TownHall, Apr. 26; Dana Joel Gattuso, "Asbestos Litigation Choking Courts with False Claimants", Heartland Institute Environment News, May 1). More: Point of Law, Aug. 20.

With soaring gasoline prices beginning to cause economic hardship, Minnesota's Commerce Department is cracking down on gas stations for charging prices that are too low. "The state adopted a law in 2001 that bars gas stations from selling gas without taking a minimum profit. These days, stations must charge at least eight cents per gallon more than they paid. The Commerce Department is now issuing its first fines for breaking the law. It fined Arkansas-based Murphy Oil $70,000 for breaking the law at its ten state stations, which are based at Wal-Mart stores," and also fined one Kwik Trip station. ("Commerce Department Cracks Down on Under Priced Gas", KARE11.com (Minneapolis-St. Paul), May 29)(via Truck and Barter). Another example, from Maryland: May 21, 2005.

Ronald A. Roberts of Granville, N.Y., who has called himself Sachem Golden Eagle of the Western Mohegans, awaits sentencing June 17 after pleading guilty to federal charges of perjury and submitting false documents in proceedings asking for recognition as an Indian tribe. Last year Mr. Roberts "sued New York State, seeking millions in rent over the last 200 years on 900,000 acres of public land throughout the Hudson Valley, including land around the Capitol. In another suit, in 1999 he had tried to stop the development of a state park on Schodack Island in the Hudson River near Albany, asserting that it was the ancestral burial grounds of his people. Judges eventually threw out both suits." According to prosecutors, Roberts advanced his claims to represent a surviving Indian tribe by submitting "an altered death certificate for his grandfather, Arthur E. Smith, on which the cursive 'W' for white on the form had been changed to 'Indian.' But prosecutors pointed out that it was not much of a forgery, since the clumsy alteration was made with a ballpoint pen, invented after the grandfather's death." Roberts "also gave the federal government a doctored version of the 1845 census of Indians in New York, in which someone had conveniently inserted his great-grandfather's name into a list of Indian household heads." (James C. McKinley Jr., "Man With Flair for Reinventing Himself Goes a Step Too Far", New York Times, Jun. 3; Hallie Arnold, "Ex-leader admits lying on tribal application", Kingston Daily Freeman, Feb. 10). For more on the curious, high-stakes legal world of tribal recognition, casinos and land claims, see May 17, Feb. 9 and links from there.

In Alabama's GOP primary Tuesday, where a slate of religious-right judicial candidates backed by former chief justice Roy Moore was financially supported by the state's leading plaintiff's lawyers (see Jun. 1), Moore loyalist Tom Parker succeeded in knocking off business-favored incumbent Jean Brown by a narrow margin; a second "Ten Commandments" candidate lost outright, while a third trailed badly in voting but may have succeeded in forcing a runoff. (William C. Singleton III, "Roy Moore's clout swings high court race", Birmingham Post-Herald, Jun. 2). Mike DeBow of Southern Appeal (Jun. 2) has more, and notes that the Democrat who will be facing off against Mooreite Parker in November, Robert Smith of Mobile, is -- unusually for a Democratic candidate in that state, it would seem -- a defense- rather than a plaintiff's-side litigator and indeed a member of the International Association of Defense Counsel.

Two months ago (see Apr. 8) a workers' comp tribunal caused a furor in Australia by awarding $A28,000 to teacher Jeff Sinclair, who was fired over an affair with a teenage student. ("School for scandal", Melbourne Age, May 3). Now Sabina Sinclair, the educator's spurned wife, is also seeking compensation for psychological injury from the New South Wales education department over the incident. "I am really fragile," she said. (Martin Wallace, "Jilted wife seeks damages", Daily Telegraph/News.com.au, May 31).

Drivers of the Ford Explorer have a lower fatality rate than drivers of other vehicles -- and a lower fatality rate from rollovers than drivers of other SUVs. The NHTSA found that there was nothing wrong with the Explorer's design after a spate of well-publicized accidents resulted in an investigation. Nevertheless, plaintiffs persist in filing lawsuits accusing the Explorer of being unreasonably dangerous. And one can see why: Ford has successfully defended the vehicle in at least ten consecutive jury cases, but on Wednesday a San Diego jury rewarded the latest roll of the dice with a $122.6 million verdict for a paraplegic plaintiff, Benetta Buell-Wilson. Ms. Buell-Wilson was driving at a high speed on Interstate 8, when the RV in front of her lost a large piece of metal; she lost control of the SUV when she swerved, and the vehicle went off the highway and flipped 4 times before landing on the roof. The jury returns today to deliberate the question of punitive damages. (Ray Huard, "$123 million awarded in SUV rollover", San Diego Union-Tribune, Jun. 3; Myron Levin, "Jury Orders Ford to Pay $122.6 Million", LA Times, Jun. 3) (via Bashman). "This was an extremely severe crash, and any SUV would have reacted in the same way under similar circumstances," Ford spokeswoman Kathleen Vokes said. "Our concern goes out to Ms. Buell-Wilson and her family, but this tragic accident was caused by a combination of high speed and a large metal obstruction in the road." ("Verdict ends Ford streak", Detroit News, Jun. 3). Ford says it will appeal; the jury awarded four times more than what plaintiffs asked for.

Update: Jury awards $246 million in punitive damages. Ford protests that it wasn't allowed to introduce evidence to the jury comparing the safety record of the Explorer to other SUVs. (Reuters, Jun. 3; Myron Levin, "Jury Adds Punitive Award in Ford Case", LA Times, Jun. 4).

Update: Judge reduces damages to $150 million; Ford has appealed. (Michelle Morgante, AP, Aug. 19; Nora Lockwood Tooher, "Explorer Rollover Yields $368.6 Million Verdict", Lawyers Weekly USA, Dec. 30).

As with all my posts, I speak for myself and not my firm or any of my firm's clients (which include Ford).

...undercutting plausibility of claim that it got into the soup by mistake. The "incident caused Cracker Barrel to stop serving vegetable soup at all of its 497 stores nationwide. ... [A spokeswoman for the company] said the Pattersons had demanded $500,000 from the company" but now they've been arrested instead. (Peter Dujardin, "Tests reveal mouse-in-soup hoax; pair charged", Newport News (Va.) Daily Press, Jun. 2)(via Legal Reader). See also Jan. 25-27, 2002.

In 1994 "Congress fiddled with the bankruptcy code in a way that allowed trial lawyers to exploit asbestos bankruptcies. It works like this: In a normal bankruptcy, a creditor's voting weight is mainly determined by how much he's owed. But thanks to the 1994 change, all asbestos 'creditors' (claimants) are treated equally." A dying cancer patient gets the same vote as someone with no detectible health impairment at all. "It didn't take long for tort lawyers to figure out how to game this system. The leading asbestos law firms team up and pool their unimpaired plaintiffs (who each get a vote), draw up a plan that gives the bulk of the money to their clients, and then outvote the other creditors." Once in control, the lawyers can begin in effect running the affairs of the company in ways that provide them with further benefits, including cutting themselves large fees for their administrative and dealmaking services. ("The latest asbestos scam" (editorial), WSJ, Jun. 1)($$) See also Mar. 15-16, 2003.

A new study for the Federalist Society finds that the U.S. Code now defines well over 4,000 crimes, and that the count has risen by more than a third since the early 1980s. A substantial share of the newer offenses, around a third, are environmental in nature, and the rate of enactment of federal criminal statutes spikes in election years, finds the author, Prof. John S. Baker, Jr. of Louisiana State University Law Center. Moreover, the trend is toward a chipping away of the traditional requirement for a mens rea -- that is, a guilty or otherwise knowing state of mind -- in favor of the criminalization of what may be inadvertent regulatory infractions. ("Measuring the Explosive Growth of Federal Crime Legislation", study in PDF format/supplementary reading). More: William L. Anderson and Candice E. Jackson, "Washington's Biggest Crime Problem", Reason, Apr.

My op-ed on the subject appears in today's Wall Street Journal. (Walter Olson, "More Punitives to the People!", Jun. 2)($$). The California governor's proposal to have the state take 75 percent of punitive awards has gotten a more favorable reception from the left/liberal side of the blogosphere than some might have expected; see Nathan Newman (calling it "the right idea")(May 17), Atrios ("not a bad idea") May 17, plaintiff's attorney Dwight Meredith (more)("I have no major objection to having a portion of punitive damages go to the state.")(May 26)(and see Jun. 1 on the governor's fanciful revenue scoring), and Kevin Drum ("probably a good idea") May 29.

See also Adam Liptak, "Schwarzenegger Sees Money for State in Punitive Damages", New York Times, May 30. More editorial and commentary links: Dan Walters, "Arnold enters battle over tort reform", Sacramento Bee/Alameda Times-Star, May 29; "Sensible concept, suspicious numbers" (editorial), San Jose Mercury News, May 25 (reg); Phil Yost, "Governor's budget counts on windfall that won't arrive", San Jose Mercury News, May 30 (reg); "A lawyer joke" (editorial), San Francisco Chronicle, May 27; George Skelton, "Proposal to Tap Punitive Damage Awards Has Many Agendas", Los Angeles Times, May 24; "State profit in punishment" (editorial), Los Angeles Times, May 24. Further: Martin Grace has some more information about collections under the Georgia "split-award" statute (Jun. 2), and Paul Caron at TaxProfBlog discussed the proposal May 20.

Stem cell research may be what's under attack right now, but the logical next target is in vitro fertilization. (Michael Kinsley, "The False Controversy of Stem Cells", Time, May 31).

Not quite the infallible science it seemed, as many were beginning to grasp even before the fiasco of the Brandon Mayfield case. (Jennifer L. Mnookin (University of Virginia Law School), "The Achilles' Heel of Fingerprints", Washington Post, May 29). More: David Feige, "Printing problems", Slate, May 27.

Exactly as predicted (see Dec. 15, Feb. 13): "Two months before it goes into effect on Aug. 2, the city's new lead-paint legislation has caused nonprofit groups and private developers to shelve plans to redevelop buildings for low- and moderate-income tenants. ... Frank Anelante, president of Lemle & Wolf, a developer and manager of lower-income apartments, primarily in the Bronx, said he had halted the rehabilitation of two five-story walk-ups in upper Manhattan because the procedures required by the law made apartment reconstruction impractical." According to John M. McCarthy, executive vice president of the Community Preservation Corporation, the largest provider of mortgages for the city's older midsize apartment buildings, the new law "leaves owners extremely vulnerable to damages in a lawsuit. We can't provide mortgages under those circumstances unless the owner is able to get insurance at a reasonable cost." (Alan S. Oser, "Lead-Paint Law Frustrates Plans for Low-Income Housing", New York Times, May 28).

Michael Gunn admits that he's guilty of plagiarism, but he's suing the University of Kent at Canterbury because, he says, they should have caught him sooner and warned him before they did catch him on the eve of graduation. (BBC, May 27) (via Jacobs).

Michael Harris, a 19-year-old delivering pizzas for Papa John's, gossiped with a manager that his supervisor, Robert Shields, was sleeping with an employee. Shields found out, and he and Harris decided to resolve their differences by agreeing that Shields would punch Harris in the chest. Unfortunately, the punch caused cardiac arrhythmia and killed Harris. Harris's family sued Papa John's, and the Iowa Supreme Court ruled May 12 that a jury would need to decide if the punch was an "adverse employment action" entitling the family to damages from the employer, or a private matter.

Today is official publication day for the paperback edition of my book The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, which came out in hardcover last year. (Amazon is still listing it as forthcoming, but I've seen advance copies and shipments should be arriving at stores.) If you've only read the hardcover version, you're missing the newly written Afterword in which I talk about the fast-food litigation, Texas's comprehensive lawsuit reform, and many other recent topics. C'mon, order your copy today -- or better yet, a bunch of copies to distribute to readers who need to catch up on this topic.

Seven leading plaintiff's law firms, which ordinarily donate to Democrats, have made themselves the leading backers of a so-called "Ten Commandments slate" of candidates for the Alabama Supreme Court backed by ousted Chief Justice Roy Moore, a hero to some on the religious right. Firms including Beasley, Allen of Montgomery; Cunningham, Bounds of Mobile; and Hare, Wynn, Newell and Newton of Birmingham have (through PACs) contributed 98 percent of the funding of Republican candidates Pam Baschab and Jerry Stokes, and about 44 percent of the support for Tom Parker. All three are running in the GOP primary against business-backed candidates. (Kyle Wingfield, "Parker, Baschab, Stokes get nearly $1 million from trial lawyers", AP/AlabamaLive, May 28; Stan Bailey, "Brown spends over $1 million on race", Birmingham News/AlabamaLive, May 28; Shaila K. Dewan, "The Big Name in Alabama's Primary Isn't on the Ballot", New York Times, May 30). Update Jun. 4: one of the Moore-backed candidates wins.

"If you're not alarmed by this situation [the availability of temptingly dessert-like coffee drinks at Starbucks] because you think coffee is no big deal, you must not be aware of the fact that the Center on Addiction and Substance Abuse has identified caffeine as a gateway drug. Last year it reported that 'girls and young women who drink coffee are significantly likelier than girls and young women who do not to be smokers...and drink alcohol.'" (Jacob Sullum, "Bad Taste", syndicated/Reason Online, May 28; Reason "Hit and Run", May 24).

By reader acclaim, from Oregon: "A Portland lawyer says suffering by African Americans at the hands of slave owners is to blame in the death of a 2-year-old Beaverton boy. Randall Vogt is offering the untested theory, called post traumatic slave syndrome, in his defense of Isaac Cortez Bynum, who is charged with murder by abuse in the June 30 death of his son, Ryshawn Lamar Bynum. Vogt says he will argue -- 'in a general way' -- that masters beat slaves, so Bynum was justified in beating his son." However, attorney Vogt may find it a challenge to secure the admissibility of the slavery-trauma theory, which has been accepted by neither the courts nor the psychiatric profession. Washington County Circuit Judge Nancy W. Campbell threw out pretrial testimony by Joy DeGruy-Leary, an assistant professor in the Portland State University Graduate School of Social Work, to the effect that the brutality of slavery, together with continuing racism, oppression and societal inequality, helps explain self-destructive, violent or aggressive behavior in African-Americans. Judge Campbell said she would reconsider allowing the defense in Bynum's September trial, but only "if his lawyer can show the slave theory is an accepted mental disorder with a valid scientific basis and specifically applies to this case." (Holly Danks, "Judge rejects slave trauma as defense for killing", The Oregonian, May 31). According to David Bernstein, writing two years ago, the standards for admission of expert testimony in Oregon are not as tight as might be wished ("Disinterested in Daubert: State Courts Lag Behind In Opposing 'Junk' Science", Washington Legal Foundation (PDF) Legal Opinion Letter, Jun. 21, 2002)(search on "Oregon" or scroll to near end of piece).