July 2004 Archives

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

The California Supreme Court, which must know a hot case when it sees one, has unanimously agreed to review the recently reinstated harassment lawsuit in which Amaani Lyle, fired as a writers' assistant on the TV comedy "Friends", complained that the atmosphere in the scriptwriters' office had included joking about women and sex (see Apr. 23, Jul. 19) (Mike McKee, "Calif. Justices Hit Rewind on 'Friends' Suit", The Recorder, Jul. 23).

The Association of Trial Lawyers of America has decided to cultivate friends on both sides of the aisle. Long viewed as a friend of Democrats, the organization is beginning to see the wisdom of courting Republicans, too:

ATLA stepped up its courting of Republicans -- particularly in the Senate -- about three years ago. David Casey Jr., a Democrat who at the time was ATLA's vice president, invited Mr. Parkinson, the Republican lawyer, to his San Diego law office....Mr. Parkinson went to see Sen. Hatch, who, he says, told him, "Not all Republican senators and House members favor the wholesale dismantling of the civil-justice system, but the view is that you're completely Democratic." If ATLA "would just try to be fair to both sides, they're going to find the reception" among Republicans more welcoming, Sen. Hatch says in an interview.

How "fair" do they have to be to get a warm welcome? Let's look at the numbers for the politicians mentioned in the article: Orrin G. Hatch, Saxby Chambliss, Lindsey Graham, and John T. Doolittle. Evidently, their work is paying off:

The trial bar's Republican push again showed results last month, when Sen. Kyl tried once more to pass his attorney-fee cap for tobacco cases. This time, 15 Republicans opposed it, two more than last time.

Money talks. And trial lawyers have no shortage of money.

Doctors in Pennsylvania had high hopes for the possibility of caps on non-economic damages in their state. They had managed to get a bill for an amendment to the state constitution that would allow the caps, only to see it killed in committee by opponents of tort reform. Evidently, the legislators don't want to take the issue to the people, who would have had to vote on the amendment. Will they be willing to answer to the consequences of their inaction? Young doctors already view Pennsylvania as a state to avoid :

In 2003, only 17% of residents who trained in Pennsylvania stayed there, according to the Pennsylvania Medical Society. The state had a net loss of 507 physicians from 2002 to 2003, and it dropped into the bottom 10 states for the number of young physicians in the state, PMS data show.

Many people volunteer for medical trials for the hope of a cure that they offer, no matter how remote. The disappointment they suffer when the experiment fails is understandable, but one group of volunteers is suing to keep a failed experiment going. Hope springs eternal. (More details at RangelMD)

An Overlawyered reader makes a point worth debating about second hand smoke and the law:

In the case of smoking, I am one of those who thinks someone smoking around me (in public, of course - they can do as they like as long as the smoke stays on their own property) is a form of assault.

You want to dip? Chew? Snuff? Take tobacco intravenously? Knock yourself out - but leave me out of it! And if the legislature won't protect my rights, then the lawyers are all I have left... Ouch, that's a terrible choice.

It certainly is a terrible choice. But, is the case for second hand smoke really analogous to chlorine gas? Chlorine gas is highly caustic and causes immediate damage to the lungs. Lung damage can occur with doses as low as 9 parts per million.

Second hand tobacco smoke, on the other hand, is a little more complex. It's composed of many different components, for one thing, kind of like smoke from a fire. One of its deadliest components is, perhaps, carbon monoxide, which can kill at concentrations of 2000 ppm and cause symptoms at doses of 200ppm. The amount of carbon monoxide in second hand smoke will vary depending on the concentration of the smoke, but even in a submerged submarine filled with smokers, the amount of carbon monoxide produced in three days is only 6.6 ppm, well within OSHA's work-safety standards.

A better analogy of second hand smoke would be perfume. As crazy as this may sound, I have never had to admit someone for an exacerbation of their asthma or emphysema because their neighbor or a relative was smoking outside on their porch. But, I have had to admit patients whose asthma or emphysema was aggravated by perfume or incense. So where do we draw the line? If the smoker commits assault with his second hand smoke, then so, too, do the heavily perfumed with their Chanel No. 5.

Pain and suffering awards -- not just in suits against doctors, but in suits generally -- top out at $280,000 (U.S. $210,000) in our northern neighbor's courtrooms. More details at Point of Law (Olson, Krauss, Krauss). Also discussed there this week: a new report on the incidence of medical errors (Krauss, Olson). And Jim Copland, the site's managing editor, dares tort czar Fred Baron to substantiate his claim that drug, insurance and chemical companies "have spent over $200 million over the last five years in ad campaigns that make trial lawyers look like villains".

The editorialists of Denver's Rocky Mountain News (Jul. 25) are critical of the settlement of a class action suit against AT&T Wireless said to be worth a maximum of $20 million in coupons, airtime and other benefits. Under the deal, most former subscribers will be offered noncash benefits with a value not to exceed $3, while current subscribers will be offered noncash benefits with an estimated average value of $10.50. Denver law firm Hill & Robbins (see also Jun. 9) is asking for $3 million cash in fees, plus $750,000 in expenses. The suit challenged the cell-phone company's practice of delayed roaming charge billing, under which some roaming fees were not charged to customers' bills until the next month, resulting in a detriment to those customers who had used up all their allotted minutes in the later month. See also John Accola, "Lawyers' bonanza in AT&T lawsuit", Scripps Howard/Sun, Jul. 20 (via Colorado Civil Justice League).

Yesterday John Tierney in the New York Times quoted me calculating that the $2.4 million that the Democrats paid for general liability insurance for their four-day convention amounted to roughly $500 per delegate/alternate, or about $120 per day apiece. My suggested line for Sen. John Edwards's acceptance speech: "I'm worth it." (John Tierney and Sheryl Gay Stolberg, "Rehabilitating the L-Word", New York Times, Jul. 29). For more on the Democrats' insurance bill (they paid an extra $86,000, on top of the $2.4 million, to add terrorism coverage), see "Democrats' Insurance Coverage To Top $2.6m For Convention", Bestwire (A.M. Best & Co.), Jul. 12.

Also welcome to readers of Wonkette, which picked up the item (Jul. 29). I should point out, however, that contrary to the site's description of me I'm not a lawyer.

Rural Madison County, Illinois has a widespread reputation as a lucrative trial venue, even for people who don't live or work there. The state legislature has not been helpful in pushing tort reform, so tort reform groups are taking their cause straight to the people - at the fair. Now that's a populist venue if ever there was one.

JibJab, creator of that popular This Land Is Your Land political parody has been warned that they are infringing on Woody Guthrie's copyright (see letter here.) As the Wired story notes, this action is the antithesis of the spirit of Woody Guthrie, who had this to say about copyrights:

This song is copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do.

UPDATE: Much discussion of the issue can be found at The Volokh Conspiracy. Just keep scrolling.

Opponents of medical malpractice tort reform often argue that malpractice premiums are on the rise because insurance companies made bad investments, not because of out-of-control jury awards. But, if that's so, then why do premiums vary so widely by geography? Consider the rates in Cleveland, Ohio, a city that can lay claim to some of the most aggressive trial lawyers in the state, as well as some of the most generous juries:

A comparison of standard, non-discounted rates the American Physicians Assurance Corporation charges in Ohio, Illinois and Michigan shows doctors in Cuyahoga County paying the highest rates in almost every category, and nearly double the Columbus tariff.

'The fact is, a day doesn't go by when a Northeast Ohio doctor doesn't get sued for multimillions of dollars,' says Myers.

Retired history professor, and former smoker, Robert Zangrando is suing his next door neighbor for smoking. The neighbor, who isn't allowed to smoke inside her rented condominium, smokes outside on her patio, where the fumes evidently waft into the professor's condo. The lawsuit, filed in January, was slated to begin this month, but has been delayed until September. In those intervening months, his neighbor has agreed to smoke in her backyard during only the first fifteen minutes of every hour. She's also decided to move her family to a new neighborhood. Conflict resolved, right? Wrong. Zangrando is still pursuing his case. He's charging her with battery and trespass and wants $50,000 in damages. The former smoker blames his neighbor's smoking, not his own, for his declining lung capacity.

The report in the The Cleveland Plain Dealer notes that there has been an increase in these second-hand smoke lawsuits:

Secondhand smoke often leads to conflicts, and more than 420 lawsuits involving secondhand smoke have been filed in the last 25 years, according to research by Edward Sweda Jr., senior attorney for the Tobacco Control Resource Center at the Northeastern University School of Law in Boston.

"There have been an increasing number of lawsuits in recent years that corresponds to people's increased awareness of secondhand smoke and the physical harm it can cause," he said, "and the gradually increasing societal disfavor of tolerating such exposure."

Well, it's not just due to an increased awareness, it's also due to the work of legal activist groups like this one.

A North Carolina woman sued a hospital for failing to correctly diagnose her husband's cancer. Except they did diagnose it correctly:

Punta Gorda resident Linda Brown filed the medical malpractice lawsuit in 2001 after her husband, Gerald, died in November 2000. Linda Brown alleged that Charlotte Regional contaminated tissue samples during a lung biopsy in 2000 which resulted in the wrong cancer diagnosis of small cell lung cancer. The plaintiff's attorneys also say that Gerald Brown never had small cell lung cancer. He had only a recurrence of non-Hodgkin's lymphoma and wasn't treated appropriately for that disease before his death.

The hospital's attorneys argued during opening statements last week that the chances of Gerald Brown's DNA being contaminated was 1 in 1.09 quintillion. In fact, the chances of that happening may be even greater since that one-in-a-quintillion person would have to be in Punta Gorda, inside Charlotte Regional, having a lung biopsy at the same time and have small cell lung cancer. But no one else in the hospital was undergoing a lung biopsy at the same time as Gerald Brown on March 22, 2000.

The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That's OK with Mrs. Brown, because now she knows "the truth." Apparently, neither she nor her lawyers, thought of having an autopsy to discover the truth. But then, autopsies cost money, with nary a chance of making money. Not even a 1 in 1.09 quintillion chance. (More: letter to the editor Aug. 16).

Point of Law points to the latest Congressional Budget Office report on tort reform, which concludes that non-economic damage caps do result in lower malpractice insurance premiums. They also decreased the practice of defensive medicine, at least when it comes to treating heart disease, without increasing mortality:

The authors found that the adoption of direct reforms led to a 6 percent drop in hospital expenditures for heart attack patients and a 9 percent decline for heart disease patients, with no significant change in mortality rates or cardiac complications.

They defined direct reforms as such measures as caps on punitive damages. Although it did take a few years to see the change in behavior and the reduction of malpractice insurance premiums, it appears from the report of this nonpartisan arm of the government, that tort reform works. Now can we give it a chance?

The practice of obstetrics is not easy. Doctors who deliver babies face long, late hours, life-threaatening complications that can spring up in a split second without warning, and the constant threat of litigation for events beyond their control. Now, the malpractice crisis is making it even harder, with doctors in crisis states like Pennsylvania finding themselves in a manpower crunch thanks to the exodus of obstetricians from the state. Not only are doctors leaving, but hospitals are shutting down their obstetrics departments:

According to the 2003 American College of Obstetricians and Gynecologists Survey on Medical Liability, 12.5 percent of OB/GYNs in Pennsylvania have stopped practicing OB and 57.5 percent have made some change in their practice because of issues with affordability or availability of liability coverage, including relocating, retiring, dropping OB, reducing number of deliveries, reducing amount of high-risk OB care, or reducing gynecological surgical procedures.

Those statistics, however, do not come close to revealing the extent of the current problem of obstetrician supply in the five-county Philadelphia region, which lost 25 percent of its staffed OB beds between 1993 and 2003, according to Delaware Valley Healthcare Council President Andrew Wigglesworth. Within the past 18 to 24 months, he says, the region lost 10 hospital OB departments, including those at MCP, Methodist, Nazareth, Warminster, Mercy Fitzgerald, Episcopal and Elkins Park; while OB services were also lost from hospital closures including City Line, Sacred Heart in Norristown and Community Hospital in Chester.

That means longer hours and a greater proportion of riskier cases for the hospitals and doctors who remain. Which means they're more prone to errors. It also means that they can no longer spread themselves as thinly as they once did. Hospitals that once staffed inner city public health clinics are can no longer spare the staff to do so, leaving the poor without easily accessible prenatal care. Remember that the next time you hear John Edwards say that he has spent his career helping the down and out.

Regarding a dispute between a townhouse owner and his homeowners' association: "Their quarrel, which began over a basketball hoop and a parking space, has resulted in at least four separate actions, with an intimation of more to come. At a loss as to why so little has generated so much conflict, we can only surmise that we are in the middle of what may be the litigatory equivalent of road rage. The number of actions, the sheer ferocity with which they have been pursued, and the inconsequential nature of what has been sought offer us little hope that we are wrong in this assessment." -- Maryland Court of Special Appeals in Campbell v. Lake Hallowell Homeowner's Association (PDF) (via Dave Stratton, Insurance Defense Blog, Jul. 19).

"Saying a newly revised Missouri law bars such legal action, a state appeals court refused Tuesday to reinstate the city's [St. Louis's] lawsuit that sought compensation from gunmakers, distributors and related trade groups for gun-related injuries. ... Tuesday's decision upheld a St. Louis County judge's dismissal last October of the city's 1999 lawsuit. In that ruling, Circuit Judge Emmett O'Brien said such lawsuits would open 'a floodgate to additional litigation,' and that 'issues of both logic and fairness' favored throwing out the case." (Jim Suhr, "Appeals court rejects St. Louis city's lawsuit against gunmakers", AP/Kansas City Star, Jul. 27)(via Conservative Contrarian)(see Oct. 29).

More: One of the few bright spots for the anti-gun side has been a decision by the Indiana Supreme Court allowing the city of Gary's suit to stay alive. The victory however was not exactly a famous one: "Although Indiana's high court ruled that the city's pleadings were legally sufficient, the unanimous panel expressed skepticism that Gary's counsel could connect all of the links in the causal chain from manufacturer to injured party." (Andrew Harris, "Court reinstates Indiana gun suit", National Law Journal, Jan. 5).

One of the most frustrating aspects of the medical malpractice business from the physician's perspective is the seeming carelessness with which malpractice attorneys launch suits. It usually works like this: Someone has a bad outcome, say, in the hospital. The attorney gets the medical record, but he doesn't use it to determine who is at fault. He uses it to collect all the physician names within it, from the doctor who saw the patient in the ER to the resident who ordered a Tylenol for a fever. The suit is then filed, naming every last doctor with a legible name. It's only after the suit has been filed - and defense attorneys get involved - that the names are whittled down to who is deserving of being sued - a process that often takes months and thousands of dollars. In some cases, the lawyers don't even make an attempt to determine if they have the right doctor, as in the case of this family physician from rural Oklahoma who was willing to share his story with Overlawyered:

I was served at my university job (where I was an academic fellow at the time) with papers for a lawsuit that at first blush looked absolutely horrific.  I think that there in fact were material questions of possible physician negligence that resulted in a patient's death.  I was devastated, and began racking my brain trying to recall the specifics of this case (I had been an attending physician for a residency at the time I practiced there so it could have been any of a number of patients I had passing involvement in).  I went home and called my fiance and began to get very depressed.  Then I noticed something...the dates of the alleged incidents.  I HAD BEEN GONE FROM THAT HOSPITAL FOR OVER A YEAR AND A HALF BEFORE THIS PATIENT WAS EVER ADMITTED!!!  Apparently the order in question read "telephone order from Dr. A".  It hadn't been signed off, and the lawyer for some reason decided that I must be the "Dr. A" in question. 

There were about a dozen docs named in that suit initially. All but two were dropped within two months of the intial filing. My experience was apparently not unique.

Unfortunately, it isn't unique, but all too commonplace. It is, in fact, the "standard of care" for plaintiff's attorneys. When asked about the practice, even defense attorneys shrug and explain it's a necessary evil. If a plaintiff's attorney fails to name someone in the original suit, they can't go back and add him. No one wants to explain to an angry client that they overlooked the person truly responsible.

And yet, this strikes us as a poor excuse for actions that have such far-reaching consequences for so many innocent bystanders. Prosecutors have to have fairly good evidence that they're charging the right person before they file a criminal case. They don't bring charges against everyone who ever encountered the crime victim. Shouldn't malpractice attorneys have to live by the same standards?

MORE: Fellow medical blogger and Georgian surgeon Bard-Parker notes that doctors with illegible signatures get sued, too - as Dr. John Does (scroll down to "Itinerant Blogging".

Michigan's Supreme Court overturned a $21 million verdict in the kind of case that made John Edwards the man he is today. The Court ruled 6-1 that the basis of the jury's decision in the original 1997 trial was faulty, because the expert witness testimony was faulty. Not that this means that the courts now recognize that cerebral palsy is rarely caused by birth injuries. Rather, the lower court failed to allow the defense an opportunity to object to the admission of the expert's testimony. (An expert that they maintained had "novel" theories about the origin of cerebral palsy.) Still, it might be a step in the right direction toward correcting much that's wrong with today's malpractice litigation - "experts" who aren't really experts.

I'm honored to have been asked by Walter Olson to guest blog here at Overlawyered this week. For those of you who aren't familiar with me, I'm a family physician in solo practice in Northeast Ohio. I usually blog at Medpundit on all topics medical. I'll be confining my guest blogging here to ways in which the law touches the practice of medicine, which in this day and age of soaring malpractice insurance premiums and litigation is a touch too much.

A Washington Times editorial asserts that John Edwards during his career as a plaintiff's lawyer "took no pro bono cases", which if true might expose him to obloquy and also could put him into conflict with the ABA's Model Rule on the subject ("The science of malpractice", Jul. 25; see KipEsquire, Jul. 25). Tucker Carlson voiced the same charge on CNN "Crossfire" Jan. 12 (transcript).
But is the charge accurate? In a quick search on "John Edwards" + "pro bono", the most prominent article to turn up is Adam Liptak's Jul. 14 New York Times piece, "Edwards's Lawyerly Style Drew Fierce Foes and Fans", which phrases things rather differently: "Mr. Edwards handled no notable pro bono cases, the typical vehicle for lawyers who want to have a larger impact." (emphasis added). The difference is potentially significant, since an attorney might devote considerable effort to pro bono work without handling any court cases that his colleagues might recognize as notable (say, because they sought to shape the course of the law).

No doubt we'll be hearing more about the nature and scope of Edwards' pro bono efforts as the campaign proceeds. In the mean time, those of us who are skeptical of his candidacy should be careful not to let our criticisms run ahead of the available evidence.

Unlike his running mate John Edwards, John Kerry has willingly disclosed the identities of his "bundlers", the financiers responsible for raising large amounts of money in grouped donations. (He has 266 who've come in at the $100,000+ level, compared with more than 525 for George W. Bush.) Names familiar to readers of this site are well represented: "Trial lawyers who represent injured people in suits against business are prominent Kerry fans. Among his $100,000 Vice Chairmen are Florida plaintiff's lawyer Kirk Wager, who hosted Mr. Kerry's first presidential fund-raiser at his Coconut Grove home in December 2002, and attorneys Richard Scruggs of Mississippi and John Coale of Washington, both part of the tobacco companies' $206 billion settlement with 46 states." However, Mr. Kerry (like Mr. Bush, but unlike Mr. Edwards) also raises large amounts from other types of law firms, including firms known for lobbying and for general business work, including Mintz Levin and Piper Rudnick. (Wayne Slater, "Vested interests in Kerry", Dallas Morning News, Jul. 25).

"Lawyers, especially trial lawyers, are the engine of the Kerry fundraising operation," reports the Washington Post. "Lawyers and law firms have given more money to Kerry, $12 million, than any other sector. One out of four of Kerry's big-dollar fundraisers is a lawyer, and one out of 10 is an attorney for plaintiffs in personal injury, medical malpractice or other lawsuits seeking damages. ...

"Among the trial lawyers who raised money for Kerry early in the campaign were Michael V. Ciresi of Robins, Kaplan, Miller & Ciresi LLP, who represented Blue Cross and Blue Shield of Minnesota in its successful $6.5 billion suit against the tobacco industry, and Michael T. Thorsnes, who recently retired from his San Diego law firm after winning $250 million in settlements and verdicts." After Kerry locked up the race, "One trend was a sharp increase in the number of trial lawyers joining the Kerry fundraising campaign. Among those soon joining as major fundraisers were John P. Coale, one of the nation's most prominent trial lawyers, whose better-known cases include the Union Carbide disaster in Bhopal, India, and at least 16 plane crashes; Robert L. Lieff, founding partner of Lieff Cabraser Heimann & Bernstein LLP, a San Francisco-based firm that lists four class-action settlements in 2004 alone totaling $176.5 million; and San Francisco lawyer Arnold Laub, whose firm Web site lists its participation in the $3.7 billion fen-phen settlement, a $185 million toxic chemical award and $4.5 million for a pedestrian accident case. ... John Morgan, an Orlando lawyer whose firm specializes in medical malpractice, said he has helped raise more than $500,000 for Kerry." (Thomas B. Edsall, James V. Grimaldi and Alice R. Crites, "Redefining Democratic Fundraising", Washington Post, Jul. 24)(our politics archive).

Well folks, thanks for letting me part of the Overlawyered community for a week. Though come to think of it, I have been part of the Overlawyered community on the reading side for the entire year or so since I discovered blogs, and hope to continue in that role for a long time. If you have suffered through my guest posts, things are looking up for you as the guest guard changes. (Incidentally, a guest blogger at Crescat Sententia has some musings on guest blogging generally; he also has been thinking about blog crushes.) If you ever find yourself nostalgic for vice talk, please visit us at Vice Squad.

I'll depart with one further observation, one that shouldn't be surprising given my week o' posts, or to anyone who follows Vice Squad. Here are some of the happenings during the past week -- happenings so common, so mundane, that they almost manage to fly under the radar: 38 arrested in Chicago; 42 arrested in Chatham County, Georgia; 4 arrested in Reno; 10 arrested in Decatur, Alabama; 9 arrested in Willimantic, CT; 16 arrested in Elmore County, Alabama…

And what is the noble purpose served by this frenzied feeding into the maw of the insatiable criminal justice system? To make it a little bit harder for some of our friends and neighbors to consume a substance that they choose to consume.

Thanks again to Walter Olson and Ted Frank, and be sure to check in tomorrow for a new, improved guest blogger.

OK, I am feeling a little guilty that during my week of guest blogging I didn't really focus on core Overlawyered topics. To make partial amends, let me ask a couple of questions drawn from the intersection of Overlawyered's and Vice Squad's areas of interest. Should drug users be held responsible for their decisions to use drugs? Should addicts be held accountable for other criminal acts that are undertaken either under the influence of drugs, or to serve the needs of drug acquisition? If addiction is a disease, shouldn't addicts be excused for their habits or for their actions, even otherwise criminal actions, that flow from their addictions?

With respect to serious crimes, the law agrees with our general intuition: a condition of intoxication or addiction is not an excuse for criminal behavior. Nevertheless, many people are willing to be indulgent of less serious social indiscretions if the perpetrator "had a bit too much to drink." Chronic addicts, however, often become unsympathetic characters -- even compassionate social workers find themselves "blaming the victim" (the client or patient) when they deal extensively with junkies.

Many treatment programs, including Alcoholics Anonymous, Narcotics Anonymous, and Gamblers Anonymous, explicitly adopt a disease perspective towards their respective addictions. Nevertheless, these programs do not absolve the addict of responsibility for his or her behavior -- quite the contrary, they emphasize personal accountability. Even if biological conditions make drug use a nearly overwhelming necessity for some addicts, it is the drug use which is the necessity -- not bank robbery or car theft or other crimes. And generally even the drug use will be deterred if a police officer is standing over their shoulder.

Incidentally, in the mid-1960s it looked as if the US Supreme Court might make the status of addiction an excuse for some sorts of crimes. This impression was squelched via the 1968 case of Powell v. Texas.

If Fox News is going to have to hire lawyers to defend the accuracy of its "Fair and Balanced" against MoveOn.org's silly and abusive complaint (see Jul. 20), how many other media outfits are going to need to worry about backing up their puffish slogans? David Giacalone, guest-posting at Legal Underground, has a funny post (Jul. 24) listing various newspaper slogans that publishers might wish to reconsider, from the Atlanta Journal's "Covers Dixie Like the Dew" (substantiation, please) to the Toledo Blade's "One of America's Great Newspapers -- In One of America's Great Cities".

Last night I mentioned some of the difficulties in trying to justify racial profiling on the grounds of efficient policing. I just wanted to add a few more comments. First, in my paper with Mike Alexeev, our generally anti-profiling "results" apply to situations where the probability of being stopped is relatively low, as it is in standard highway enforcement. If the police can stop a substantial proportion of folks (a' la airport screening), then our results are not applicable. Second, choosing whom to stop is the first stage, but as or more important is the next stage, how those who are stopped are treated. Is the stop limited in time and intrusiveness? (Here's one way not to treat people.) Further, is the goal that ostensibly is being served actually benefiting from the profiling? In a fine paper that looks very closely at Maryland's I-95 stops, Samuel R. Gross and Katherine Y. Barnes attack Maryland's stop-and-search policy partly on the grounds that it accomplishes essentially nothing in impeding the flow of drugs to Baltimore and Washington, DC. Third, I am almost ashamed to admit that my own views on racial profiling changed a bit when I found myself to be a "profilee." (I briefly recounted the tale during an earlier guest-blogging appearance at Crescat Sententia -- oh no, I don't want to develop a reputation as someone who blogs around!) Funny how it is easier to suport a policy (our drug war comes to mind) when you are pretty sure that you and yours will not bear the costs of it.

Today will mark the end of Jim Leitzel's (Vice Squad) week as guestblogger at Overlawyered. Check back tomorrow, when a new guestblogger -- a well known figure in the blog world -- joins us for a weeklong stint.

It's said to afflict many lottery winners, resulting in impulsive spending and social isolation. What about lawsuit winners? I raise the question on PointOfLaw.com (Jul. 23), where my dialogue with Michael Krauss on gun suits and federalism is also now complete.

Our pipeline is still sadly backed up, but we've posted four new pieces of correspondence on our letters to the editor page. Among them: Peter Nordberg writes in (and I respond) regarding the Illinois practice (see Jul. 23) of letting medical malpractice plaintiffs use an anonymous physician reviewer to certify the merits of their claim; the newly filed lawsuit by disabled applicants asking for more time and fewer distractions in taking the medical school admission exam; and two letters about scuba diving litigation.

The Vancouver radio station lists us as one of its "Geek of the Week" sites (Jul. 25). First-time visitors often enjoy our personal responsibility pages (first series, second series), and we've got a special page for items from Canada.

Should the police use race as one of the characteristics upon which they make decisions about stopping and searching motorists or pedestrians? (The question assumes, of course, that the police are not operating from a description of a specific individual believed to be involved in a crime.) Among those who have answered "no" to a question of this sort is our nation's Attorney General. Others think that the practice is OK, as long as it is consistent with efficient policing: after all, you wouldn't want to focus lots of law enforcement on groups that are rare offenders, such as elderly women. But is it right that a black driver on I-95 in Maryland in the late 1990s was five times more likely to be subject to a search than was a white driver?

Those who take the "efficient policing" position often say that the disproportionate number of stops is OK, as long as the probability that a searched motorist is carrying contraband (in the case of anti-drug enforcement, the aim of most of the highway searches) is about the same for blacks as for whites. (This probability is sometimes called the "hit rate.") By this reckoning, if only 5 percent of the blacks who are searched are found to be carrying drugs, while 20 percent of the whites searched are carrying, then the racial disparities in searches are not consistent with efficient policing and should be curtailed, eliminated, or reversed. On the other hand, if the hit rate for searches is about 20 percent for both groups, then the use of race as an indicator might be acceptable.

But I and my co-author, Michael Alexeev of Indiana University, think that this standard "efficient policing" story is mistaken, for reasons that I will mention after the "Continue reading..." link.

Starting in late October, Brazil intends to shoot down planes flying within its airspace that it suspects of drug trafficking. The story began to receive publicity about a week ago, and today's New York Times has an article. Brazil's decision stirs memories of the tragic killing of a US missionary and her child under a similar policy in Peru in 2001.

The Times article includes a couple of quotes from "Gen. Mauro José Miranda Gandra, a former chief of the air force who is now director of the Air Institute at Estácio de Sá University in Rio de Janeiro." Gen. Gandra is concerned, it seems, that the shootdown policy will not be applied to any planes with children in them:"'This really left me perplexed, because it practically undermines the very purpose of the decree,' General Gandra said. 'What you're doing is creating a safe-conduct pass for drug-smuggling aircraft carrying kids and creating the possibility that children will be kidnapped and used as human shields.'"

Yes, drugs are so evil that you have to be willing to shoot down planes with children in them to combat drug trafficking. Anything short of that is a dangerous half-measure.

"A group of national law firms that failed to recover significant damages in federal antitrust suits against Microsoft is demanding a cut of the $15.5 million in fees awarded to plaintiffs lawyers in a Florida class action suit against the software giant." Cohen, Milstein, Hausfeld & Toll and thirty other firms that prosecuted a mostly unsuccessful federal class action say the lawyers in the Florida case used information they developed and, although they never signed an agreement to share fees, should cough up a quantum meruit. "The federal lawyers were spectacularly unsuccessful and only got one small class certified," said Daryl Libow of Sullivan & Cromwell, who represents Microsoft. "They weren't satisfied with the fees, so they started roaming the country to see if they could get more." (Laurie Cunningham, "Lawyers in U.S. Microsoft Case Want Cut of Fees in Miami Suit", Miami Daily Business Review, Jul. 23). More on Microsoft cases: Jul. 9, Mar. 31 and links from there.

Now I am no lawyer (we are overlawyered anyway, right?), so don't rely upon this information, but I don’t think you can legally set up a clown mannequin on your property near the street and booby trap it in such a way that if a little kid walks up to the clown, he will, say, fall into a deep ditch. It's called an attractive nuisance, and your argument that you should not get in trouble, that the kid was himself behaving illegally by trespassing, is likely to fall upon deaf ears.

But if we are the government, what can we do? We can make it illegal to traffic in a commodity that many people want to consume. Then, a black market will develop, and of course it will develop primarily in bad neighborhoods where schools are rotten and legal earning prospects are poor. Then, we will occasionally police the black markets, and any young men who actually are tempted to sell the verboten commodity we label as reviled "drug pushers" or maybe even "drug kingpins," and we put them away for a long, long, time. And the penalties applied to adults will be so significant, in fact, that 12 and 13 and 14-year old kids in these poor neighborhoods will have a comparative advantage in working in the trade, so we will have to arrest them, too, even if we can't lock them up for quite so long. And we will shake our heads at the immorality of those folks in the bad neighborhoods who allow their youngsters to become drug pushers.

And while we are at it, we can set up ongoing integrity tests for the police, too. As drug transactions are voluntary, they generally don't involve a direct victim who has incentives to go to the cops (especially if the transaction is not creating a public nuisance). A less-than-vigilant drug enforcement officer will not have complaints piling up on his sergeant's desk, as he might if he neglected to investigate robberies, say. Anti-drug officers will quickly learn that their own efforts aren't going to alter much of anything, that people will still buy and sell drugs, anyway, and that the drug use in and of itself only directly harms the user. And the officers also see that they can earn a lot of money, maybe thousands of dollars a month, by turning their heads at the appropriate times. Some of them do, and some of those get caught, and we are happy to label them "corrupt cops" and "bad apples," and ship them off to prison, too, shaking our heads at their immoral acts that have brought shame upon our nation's finest.

Now I am no lawyer, but maybe we should think about extending this notion of attractive nuisance to some of our drug laws, too.

Singapore executed a man last week after he was caught with 6 pounds of marijuana. In the more enlightened US of A, he would have been unlikely to receive more than 20 years in prison.

Surely, if marijauna use would have been widespread during the Scottish enlightenment, Adam Smith would never have written about a smuggler in the terms that he actually did use in 1776: "a person, who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been, in every respect, an excellent citizen, had not the laws of his country made that a crime which nature never meant to be so."

It won't come as much surprise to readers of our May 31, 2001 item ("Fieger's firecrackers frequently fizzle") that the Michigan Supreme Court has thrown out controversial attorney Geoffrey Fieger's $20 million jury win on behalf of Linda Gilbert, a female millwright harassed by co-workers at a Chrysler assembly plant in Detroit. "The jury verdict is so excessive and so clearly the product of passion and prejudice that there can be no justification for the trial court's denial of defendant's motion for a new trial," wrote Justice Robert Young Jr. in the majority opinion. Three dissenting justices on the seven-member court thought that reducing the award would be adequate remedy for the problems with the trial. (David Eggert, "Michigan Supreme Court Overturns $21 Million Verdict Against DaimlerChrysler", AP/Law.com, Jul. 23). More: Dawson Bell, "Harassment verdict is overturned", Detroit Free Press, Jul. 23; Ernie the Attorney.

Radley Balko has some. (And for Cheney, too.) "A Few Questions for the Vice Presidential Candidates", FoxNews.com, Jul. 15). P.S. John Stossel does, too (more).

My initial Overlawyered guest post calling for higher excise taxes on alcohol in the US motivated a particularly thoughtful and lengthy reply from Radley Balko over at The Agitator, and his post has been followed by a fair number of comments. While I agree with many of the arguments that Radley and his commentators raise, there are a few points of contention. I will make a couple of remarks here, and then move any further discussion on my part to Vice Squad. If you are already tired of this, do not click on the “Continue reading…” link.

The meter in the Enron bankruptcy just hit $700 million (Brendan I. Koerner, "Explainer: Who Pays Enron's Legal Bills?", Slate, Jul. 15)(see Dec. 6 and links from there). And it's not as if the execs in the Pacific Gas & Electric bankruptcy are doing too shabbily for themselves either (David Lazarus, "Bankruptcy has its rewards for PG&E execs", San Francisco Chronicle, Jul. 23).

While national alcohol prohibition in the US is widely (if not quite universally) regarded as a failure, there remains substantial support for our current tragic folly, drug prohibition. The respective prohibitions are not identical, however, and I want to point out two ways in which drug prohibition is worse than alcohol prohibition. First, during alcohol Prohibition, purchase and (for the most part) possession of alcohol were not crimes. (People often seem surprised to learn this these days, as if the drug war has made a firm link in their minds between prohibition and the criminalization of possession and purchase.) In other words, what we refer to as a "decriminalization" regime with respect to drugs today is pretty much what we had with alcohol prohibition: drug prohibition is much more severe than alcohol Prohibition.

The second major difference is that alcohol prohibition was restricted to a handful of countries, whereas drug prohibition is global. As a result of the limited geographical scope, there was plenty of legally produced alcohol during Prohibition, such as that made in Canada (and then illegally smuggled into the US) by Seagrams. But more importantly, the fact that other countries had legal alcohol -- and were often just as successful in reducing consumption and alcohol-related problems as the US -- provided ongoing evidence of the extent to which Prohibition was a policy blunder. With global drug prohibition, we are very limited in the types of policy experiments that can be run; even in the Netherlands, marijuana is technically just as illegal as it is in the US. This helps to explain the odd "self-justifying" nature of drug prohibition. Bad outcomes under drug prohibition should tend to discredit prohibition as a policy. This is what would likely occur if there were a visible alternative policy with outcomes that were better. Instead, bad outcomes under drug prohibition are met with the logic that if there were fewer drugs, there would be fewer bad outcomes. So to reduce bad outcomes under prohibition, we need... a stronger, more committed prohibition!

From the Chicago Sun-Times:

When a doctor is sued for malpractice in Illinois, another physician must sign a statement certifying the lawsuit has merit.

Moreover, the physician alleging malpractice must be an expert in the field. The idea is to prevent frivolous lawsuits.

But there's a catch. The name of this expert physician is kept secret. ...

When the expert's name isn't revealed, there's no way for the defense to question his or her qualifications, said Robert Kane of the Illinois State Medical Society.

The plaintiff's bar in Illinois is strenuously defending the right of their certifying experts to remain anonymous, saying they might face retaliation if they revealed their identities. However, it seems the current policy also has the convenient effect of insulating the lawyers themselves to some degree from accountability for misconduct:

Dr. William Sullivan, an emergency room physician at Advocate South Suburban Hospital, believes a certifying physician should not be able to hide behind anonymity. Sullivan once was sued at another hospital, along with about 10 other doctors, by the family of a woman who died from car accident injuries.

Sullivan said he was named as a defendant, even though his only involvement in the case was to insert an IV line. When the case against him was dropped, Sullivan, who is also an attorney, turned around and sued the woman's law firm for "malicious prosecution."

Sullivan also sued "physician John Doe," the doctor who certified Sullivan had committed malpractice. Sullivan said he needed to interrogate Dr. Doe in order to prove the case against him had been frivolous. But Sullivan never was able to learn Dr. Doe's identity, so he had to drop his case.

(Jim Ritter, "Doctors seek to lift veil on malpractice cases", Chicago Sun-Times, Jul. 5 (link no longer online except as $ archives))(& letter to the editor, Jul. 26).

...discussed by Jim Copland at Point Of Law, here and here. Also discussion of tobacco litigation (here and here), asbestos bankruptcies and Wal-Mart. And of course my discussion with Michael Krauss of whether gun-suit pre-emption by Congress is compatible with the Constitution continues on the featured discussion page, with one more day left to go before we wrap things up.

Ambulance drivers dealing with emergencies have been known to put on their lights and sirens, followed by occasional speeding and the running of red lights. Police generally do not pull over the ambulances and fine the drivers who are behaving in this fashion. But police officers have human discretion, while cameras that automatically record speeding or red-light running offenses do not.

In Britain, where speed cameras are pretty common, ambulance drivers have been receiving hundreds of speeding tickets each week. It should come to an end now, at least in England and Wales, because at the beginning of July the police reached an agreement with the health minister calling for a cessation to the tickets -- as long as the ambulance's blue emergency lights are visible in the photograph. The agreement was spurred by a particularly notorious case, as reported in this article from the Guardian on July 3: "Pressure for a change to the penalty procedure mounted last year after Mike Ferguson, a Bradford ambulance driver, was charged with speeding as he delivered a liver for a transplant operation in Cambridge."

So, man triumphs over unfeeling machine -- but maybe we shouldn't be too pleased with ourselves. In the pre-camera days of the 1960s, British law against red-light running did not include an exception for emergency vehicles. As with the recent circumstances with the cameras, the 1960s situation placed drivers of fire engines in a quandary: their licenses (and hence livelihoods) were at risk, while some chief officers of fire departments mandated that their drivers ignore red lights. An exception to the red-light law was finally carved out for fire engines and other emergency vehicles, first in the common law -- in 1971! -- and later by an Act of Parliament.

He made a fortune suing doctors, then moved up to the California State Senate as a Democrat representing Orange County communities including Anaheim, Santa Ana, Fullerton and Garden Grove. Now he's one of the chief guardians of trial lawyer interests in Sacramento. Will he run for state attorney general in 2006? (Michael A. Glueck, "The runaway trial lawyer", Jewish World Review, Jul. 9). Dunn was chief sponsor of the first-in-the-nation bill signed into law by Gov. Gray Davis last year, authorizing lawyers to file private damage suits over labor code violations; see Oct. 20.

Britain is rethinking its strategy towards regulating a variety of vices, from gambling, to marijuana, to alcohol, to prostitution. In all of these areas, changes under consideraton are quite far-reaching, almost revolutionary. (A smaller change, concerning an issue raised here yesterday, is this week's announcement by the British communications regulatory agency of its intention to curtail television alcohol advertising that might appeal to underage drinkers in a variety of ways.)

Revolutions in vice regulation are not uncommon. A Chicagoan who turned 100 years old today would have lived through times when heroin was legal, prostitution was legal, marijuana was legal, cigarettes were illegal, alcohol was illegal, novels like Lady Chatterly's Lover were illegal, state lotteries were non-existent, out-of-wedlock sex that involved crossing state lines was illegal, etc. There is no reason to believe that our current legal line drawing in the vice world will prove any more stable.

Vice Squad has looked at some of the pressures for vice laws (here) or their associated punishments (here) to change.

You probably heard a couple of months ago that the state of Arkansas decided to start providing the parents of school children with "report cards" on their kids' weight. School children will have their "Body Mass Index" (BMI) measured at school, and the results sent home. What I just learned today, from this MSNBC story, is where the funding originated for the obesity report cards: "The BMI test came into existence as a result of a cash windfall to the state from a tobacco lawsuit settlement tagged to fund public health programs."

It's particularly ironic because decreased smoking, apparently, is one of the major factors promoting the American obesity epidemic.

On Monday I was again a guest on Laurie Morrow's True North Radio show reaching listeners around Vermont and nearby states. And yesterday I was a guest on QR77 in Calgary, Alberta, on the afternoons with Dave Taylor, with guest host Rob Breakenridge substituting for Taylor. To book a broadcast interview on my book The Rule of Lawyers, email me directly or contact Jamie Stockton at the St. Martin's/Griffin publicity department: 212-674-5151, ext. 502.

My friendly debate at PointOfLaw.com with Prof. Michael Krauss of George Mason University on federalism and the gun pre-emption bill has now gone through two rounds and has attracted notice from Ramesh Ponnuru at National Review Online and from Jacob Sullum and Nick Gillespie at Reason "Hit and Run". Check it out and you'll learn more about the federal Commerce Clause, states' tendency to engage in "beggar-your-neighbor" strategies on product liability, and the question of whether the failure of most of the municipal gun suits means we can relax about a threat to Second Amendment liberties.

"Would-be California medical students with learning disabilities filed a discrimination suit Monday saying their prospects of becoming doctors are being thwarted because they aren't given enough time on the medical school entrance exam." Disability Rights Advocates in Oakland is backing the suit, which demands extra time and a distraction-free setting. (Bob Egelko, San Francisco Chronicle, Jul. 20). For more on the war on entrance exams and other educational admission standards, see Nov. 13 and links from there. More: RightRainbow. (& letter to the editor, Jul. 26)

Britain: the need for liability insurance is "the hidden, insidious enemy of variety in communal life", choking off all manner of neighborhood get-togethers and local fun. Goodbye to a football barbecue: "In order to cover against someone contracting a stomach ailment and then deciding to sue, it would have cost the football club more than £250 for one afternoon to run the barbecue". Goodbye also to the local annual tradition of "pole-walking" on a greased telegraph pole in a seaside Welsh village, deemed uninsurable though no one had actually hurt themselves seriously doing it. And "no one dares go ahead without cover. It is happening everywhere: fêtes and fund-raising events shredded of anything that might carry potential for injury, and thus potential for fun." (Jim White, Daily Telegraph (U.K.), Jul. 5).

Walter Olson has brought my attention to this recent article on alcohol promotion lawsuits; the article is by Doug Bandow of the Cato Institute and it appears in The American Spectator. I share many of the concerns about the lawsuits, but the claims that advertising has no effect on overall drinking or on problem drinking seem overstated to me. For instance, here’s the abstract of a recent working paper that suggests that higher alcohol advertising is associated with higher youth consumption (even though the advertising is not targeted at kids). One of the co-authors of that paper earlier found, in a cross-country study (abstract here -- oops, and another one here), evidence that total alcohol consumption decreases following a ban on alcohol advertising.

Bandow makes another argument about the Constitutional protection of commercial speech: "The Constitution protects freedom of speech, and that includes commercial speech by alcohol producers. We punish brewers and distillers for selling their legal products at our peril, since there's no reason to assume that the regulatory paternalists won't soon find another unpopular vice to penalize." Again, I share the concern that it shouldn't be the case that simply by labeling an activity a vice, the government gains carte blanche to control advertising of that activity. But imagine and compare three broad alternatives in regulating vice: (1) laissez faire: the vice is legal and advertising is legal; (2) the vice is legal and advertising is controlled or banned; (3) the vice, and its advertising, is illegal.

I generally prefer option (2), to be honest, but my point here is that those of you who prefer option (1) might not want to push too hard against option (2) – or you might end up with option (3). (Now, I don’t believe that the government actually has the right to ban adult vice consumption, but when we are arresting 1.5 million people per year on drug offenses and another 90,000 or so on prostitution-related charges, what I believe is not all that important.) I think that the history of vice regulation suggests that vice is legally tolerated only when it is made palatable to the non-customers, and in-your-face vice advertising has a way of getting folks riled up. And for those of you who now think that I am a hopeless statist, let me mention that John Stuart Mill, who would have no truck with making prostitution or alcohol or drugs illegal, did not view advertising restrictions as manifestly unjust infringements upon personal liberty -- for him, it was a close call, as he makes clear in Chapter V of On Liberty.

Vice Squad has struggled with advertising controls in the past, including on November 19, 2003 and (briefly) on April 9, 2004.

A six-person jury took two hours to render a verdict for the defense in a lawsuit (Jul. 15) over a home-plate slide that broke a catcher's leg (or kneecap, says one press account). (Jonathan Mummolo, "Collision a fair play", Newsday, Jul. 20; Richard Weir and Owen Moritz, "Catcher's suit thumbed out on L.I.", New York Daily News, Jul. 20).

My friendly argument with Michael Krauss over federalism and gun litigation (he thinks the Constitution bars national pre-emption, I don't) just began at PointOfLaw.com. I've just posted my initial volley, and Michael tells me he'll have a response ready to post this morning. We'll be going through Thursday or Friday, exploring different aspects of the issue. Stop by and, if the issue interests you, check in often for updates.

In Florida, the state supreme court has certified for the fall ballot a doctor-backed initiative (see Mar. 1) that would cut lawyers' fees in malpractice cases, and also three lawyer-backed "revenge" initiatives aimed at the doctors. And in Colorado, a proposed amendment is headed for the ballot that would write into the state constitution broad rights to sue over construction defects. Major battles are expected on both -- details at Point Of Law (Fla., Colo.).

Hello folks, my name is Jim Leitzel and I generally hang out at Vice Squad. But the Overlawyered denizens have been kind enough to share their pixels with me this week, so here I am. I'll probably talk mostly about vice, but I am an economist, not a lawyer, so I won't be able to hold up my end of the lawyerly dialogue.

I'll start with a quiz (though I won't vouch for the correctness of my suggested answer). Imagine that you are concerned about three U.S. health-related problems: suicide, cancer, and sexually-transmitted diseases. Alas, you are limited to implementing only one policy reform. What should you do? To build suspense (is it working?), I'll put my suggestion after the break...

Given its role in campaign speech suppression, we've long associated the goo-goo group Common Cause with scary assaults on free speech, so we can't say we're exactly surprised at this latest: in a petition to the Federal Trade Commission, it and the leftist MoveOn.org are alleging that the Fox News Network should be exposed to penalties for consumer fraud for using the slogan "Fair and Balanced" while repeatedly broadcasting views strenuously disapproved of by C.C. and MO.O. (Jake Coyle, "Fox News' use of 'Fair and Balanced' challenged legally", AP/San Diego Union-Tribune, Jul. 19; Charles Geraci, "Activists Ask FTC to Take Action Against Fox News", Editor and Publisher, Jul. 19). Fox "doesn't have the right to market its network services to prospective viewers and advertisers by masquerading as a news network," claims former FTC chairman Michael Pertschuk, who we're very relieved held that position way back in the Carter era rather than more recently. (Albert Eisele and Jeff Dufour, "Under the dome: 'Fair and balanced' fight: Lefties hit Fox with FTC petition", The Hill, Jul. 20). No word yet on whether equally inflamed right-wingers plan to haul the New York Times off to the authorities for using the slogan "All the News That's Fit To Print", which is no more believable than Fox's (via Amy Ridenour). More: Jul. 26.

St. Petersburg Times columnist Robyn Blumner on the recently reinstated California harassment case over the alleged bandying of sexually oriented jokes around the studio/office where TV scriptwriters worked on the series Friends (Jul. 18). For more on the case, see Apr. 23. Update: Jul. 31.

Beginning tomorrow we'll be joined for a week by a new guest blogger. Be sure to stop by.

My op-ed from last Monday's Wall Street Journal on some of the more dubious men behind John Edwards' campaign has now been posted on the WSJ's OpinionJournal site, which makes it available to everyone and not just Journal subscribers. (Walter Olson, "Edwards & Co.", OpinionJournal, Jul. 19)(WSJ version).

Who's going to be left delivering babies? Maybe foreign medical graduates, who still perceive themselves as having fewer options than the U.S.-born medical students who are increasingly steering clear of obstetrics as a specialty. Of course there's also the option of departing a state like Maryland, where the prevailing insurance premium for an ob/gyn is slated to rise this year to $160,130, and starting up practice instead in a state like Wisconsin, where tough tort reforms keep the corresponding figure to an average of $45,000 to $50,000, according to Dr. Douglas Laube, head of an American College of Obstetricians and Gynecologists panel on obstetrics residency. (Jonathan Bor, "Obstetrics is failing to draw new doctors", Baltimore Sun, Jul. 11).

"Whatever you think about democracy and human rights, the Coalition successfully imported one thing from the West into post-Saddam Iraq -- the compensation culture. Iraq has become a hotbed of legal claims and counterclaims, of individual complaints and class action lawsuits, for everything from physical and mental injury to destruction of property. Iraqis demand compensation for damage caused to their gardens by American tanks, or for the scrapes and dents to their cars caused by run-ins with speeding Humvees. American soldiers have threatened to sue the US military for exposing them to death and injury by terrorist attack, while British soldiers want compensation for injuries sustained in friendly fire incidents. Ambulance-chasing (or perhaps Humvee-chasing) human rights lawyers are everywhere in Iraq, encouraging Iraqis to sue, sue, sue." (Brendan O’Neill, "Invasion of the lawyers", The Spectator (U.K.), Jul. 10 issue, posted Jul. 17)(reg).

Updating our report of Aug. 30, 1999: "A federal appeals court [last month] threw out a class action seeking overtime pay for more than 9,000 government attorneys because the lawyers didn't get the proper written approval before putting in extra hours. ... The largely anonymous class sought $500 million in overtime pay for work performed between 1992 and 1999, when Congress passed a law barring overtime pay." We have observed before that the antediluvian overtime-pay mandates of federal labor law are easy to break inadvertently, and this would seem to be an illustration: neither the government agency charged with making everyone else obey the laws, nor its highly skilled lawyer-employees, seemed to have their eyes on the ball with regard to overtime obligations until the possibility of a retroactive claim came up. (Jeff Chorney, "Federal Circuit Says No Back Pay for DOJ Lawyers", The Recorder, Jun. 24).

"The University of Utah agreed yesterday to let students opt out of activities that conflict with their religious beliefs, settling a lawsuit brought by a Mormon drama student who refused to recite lines that contained the F-word and took the Lord’s name in vain. Christina Axson-Flynn, 24, had sued the university in federal court, accusing it of violating her to right to freedom of speech and religion." ("College, Mormon student settle theatrical-swearing case", AP/First Amendment Center, Jul. 15; Elizabeth Neff and Shinika A. Sykes, "U. settles case over student's rights on stage", Salt Lake Tribune, Jul. 15). The "university will reimburse Axson-Flynn for tuition and fees paid during the 1998-99 academic year and, through the state's risk management office, pay her attorneys' fees of approximately $250,000." (Angie Welling, "U., Axson-Flynn settle civil rights suit", Deseret News, Jul. 15). See our coverage of Jan. 24, 2000 and Feb. 16, 2004.

"I have cerebral palsy, and it's not my doctor's fault." -- David Robinson, "Lawyer Logic: A Villain For Every Victim", Wall Street Journal/OpinionJournal.com, Jul. 16).

The litigation lobby has worked hard to advance the theme (accepted at face value in places like the New Republic) that a few bad apples in the medical profession account for most malpractice claims. On the other hand, some medical observers (see Apr. 10-13, 2003) have pointed out that if it's true that five percent of doctors account for a majority of malpractice payouts, the most accurate description of that five percent would be not "incompetent M.D.s who should not be in practice" but rather "members of high-risk specialties in litigious localities".

Reinforcing this latter view, a Pew Foundation project has surveyed 1,333 Pennsylvania specialists and drew responses from 824 physicians in high-risk fields including emergency medicine, general surgery, neurosurgery, orthopedic surgery, obstetrics/gynecology and radiology. "Eighty-six percent of specialists had been named in a malpractice suit at least once during their careers, and 47 percent had been sued in the three years prior to the survey." Details today at Point Of Law, which also has new posts on Eliot Spitzer and on John Kerry's Pennsylvania fund-raising.

An outfit called EDDix, which markets services relating to the electronic data discovery (EDD) aspects of litigation, recently published an annotated list of its 50 favorite legal-related weblogs, which includes kind words about this site (we're among 16 deemed "must reading"). Perhaps the list was meant to boost EDDix's profile -- it's certainly done that -- but it's worth a look in its own right. I don't remember seeing elsewhere such a useful pocket guide to the so-called blawgosphere, including information on the people who put out the sites, and it alerted me to the existence of a number of promising sites new to me.

In Great Britain, where there is no First Amendment to protect free expression, Home Secretary David Blunkett has proposed a law banning so-called hate speech directed against religion, apparently in a gesture toward Muslim clerics offended by vigorous criticisms of their preachings. David G. Green, Director of Civitas: the Institute for the Study of Civil Society, warns that such a step would endanger Britain's history of intellectual liberty -- Hume, for one, might have been open to prosecution given the rude things he said about priests -- and would act as a protective charter for religious extremism by giving its adherents a way to persecute scoffers by dragging them through the courts. ("Background Briefing", Civitas, undated). Iain Murray comments as does Mark Steyn ("Blunkett's ban will fan the flames", Daily Telegraph, Jul. 13)(via AtlanticBlog). More: Mick Hume, "Don't you just hate the Illiberati?", The Times/Spiked-Online, Jul. 12. For earlier proposals along the same lines, see Oct. 19-21, 2001.

Central Washington state: "Nearly three years after four local firefighters died in a wildfire, some family members are suing the manufacturer of the fire shelters they were using. ... They claim the instruction manual for the shelters encouraged the firefighters to set them up on rocky terrain. But hot gas from the fire was able to seep in and kill them. The lawsuit names the manufacturer and the National Association of State Foresters, which helped write the manual." (Craig Galbraith, "Thirtymile Fire Lawsuit", KIMA-TV (Yakima, Wash.), Jul. 9). According to a Sept. 2001 press release from the office of Sen. Maria Cantwell (D-Wash.), the Forest Service report on the incident found that the deaths were not caused by faulty equipment. "According to this investigation, these deaths occurred due to poor judgment at several critical junctures and a failure to follow established procedures". (USFS fire investigation reports).

Despite Republican pronouncements critical of overreaching litigation, the Bush Department of Justice has insisted on pursuing the racketeering lawsuit against cigarette makers that it inherited from the Clinton people (May 29, more). "Until the president does something about the DOJ's rogue $280 billion lawsuit against the tobacco industry, cries about John Edwards' trial lawyer connections will ring hollow." (Steven Milloy (Cato Institute), "Injustice at the Justice Department", FoxNews.com Views, Jul. 9). More: Vanessa Blum, "Drowning in Paper", Legal Times, Mar. 18.

Over-35 Men's Slow-Pitch softball player Michael Licitra is suing an opposing player, John Knowles, and the Village of Garden City for $2 million over a broken left leg suffered in a collision at home plate in September 2001. Knowles claims he legally slid head-first; Licitra claims it was a collision that violated league softball rules, though that doesn't explain why it's the city's fault. (Jonathan Mummolo, "Injured softballer crying foul", Newsday, Jul. 15) (via Romenesko). State Supreme Court Justice Bruce D. Alpert held that the doctrine of assumption of risk "did not relieve the defendant from the obligation of using reasonable care to guard against a risk which might reasonably be anticipated," which begs the question what Garden City should've done differently other than ban softball.

Which, according to Alex Tabarrok, is what is happening to the British school tradition of playing conkers, which occasionally results in bruises from inadvertent (but apparently inevitable) contact. Liability concerns are causing schools to ban the game--along with rugby, soccer, and even recess. The New York Times has an article about the larger issue of the growing problem of American-style lawsuits in Britain. Medical negligence claim costs have risen more than a hundredfold after inflation in the last thirty years. (Sarah Lyall, "Britain's Stiff Upper Lip Is Being Twisted Into a Snarl", Jul. 13).

In a far-reaching reform intended to curb its rising litigation rate, Ireland recently adopted the system sometimes known as scheduled damages: an official panel, the Personal Injuries Assessment Board, has been established to publish recommended guidelines (the "Quantum") for the pain and suffering component of sued-over serious injuries, thus reducing the need to litigate each damage determination afresh. Scheduled compensation and like devices are often encountered in European court systems but, aside from workers' compensation, are virtually unknown here. I discuss the Irish reforms and their implications at more length today on Point of Law.

Ramesh Ponnuru at National Review Online ("Robber Baron?", Jul. 15) thinks the Department of Justice would be warranted in opening a RICO probe of the Dallas-based firm based on the contents of a detailed statement attached by Sen. Jon Kyl (R-Ariz.) to a report of the Senate Judiciary Committee, exploring at length the allegations concerning Baron & Budd's practices in asbestos litigation (PDF) (see pp. 81-184 and specifically 86-137). For much more, see Jun. 17 and the many links from there.

"Parker Hannifin Corp. of Cleveland, the world's largest maker of hydraulic equipment, was told by a Los Angeles jury to pay $43.6 million to the families of three people killed in a 1997 SilkAir crash in Indonesia.

"The Los Angeles Superior Court jury yesterday determined that defects in a rudder control system caused the Boeing 737 to plunge from 35,000 feet, killing all 104 people aboard. The National Transportation Safety Board concluded that there were no mechanical defects and the pilot intentionally caused the crash." Boeing and SilkAir had already settled out, and the jury refused to apportion any fault to them. "'We are incredulous,' said Lorrie Paul Crum, a spokeswoman for Cleveland-based Parker Hannifin, who said the company will appeal. 'This is the best case for tort reform I've seen yet.'" ("Parker Hannifin will appeal jury award", Akron Beacon Journal, Jul. 8). "The trial established Parker Hannifin's liability and relatives of about 30 other people will now go to trial in the same Los Angeles court to determine how much Parker Hannifin owes them in damages, [said Walter Lack of Engstrom, Lipscomb & Lack, attorney for the families]". Parker Hannifin says it plans to appeal. ("SilkAir crash: US firm told to pay US$44m", Business Times of Singapore, Jul. 9).

The central character in a new Tom Hanks movie, "The Terminal", is a hapless Eastern European tourist by the name of "Viktor Navorski," a name recalling that of the veteran left-wing author and Nation magazine publisher Victor Navasky. "Whenever a commercial for 'The Terminal' appeared on television, my phone would ring and it would be another attorney assuring me that my ship had come in. Clearly I had a case for "misappropriation of my name and likeness,' 'expropriation of my right of publicity' and my favorite, 'product disparagement.'" (Victor Navasky, "You Say Navorski, He Says Navasky", Los Angeles Times, Jul. 5).

As we noted May 24, trial lawyers are livid about the Food and Drug Administration's program of filing amicus briefs in liability suits urging state courts not to second-guess the wording of warning labels which the agency had chosen to approve. The battle now seems to be escalating, and is being personalized into an attack on the FDA's respected general counsel, Dan Troy, who was the target of a press conference thrown the other day by Democratic Rep. Maurice Hinchey of New York. ("U.S. House Democrat Says Agency Aiding Drugmakers", Bloomberg News, Jul. 13). Jonah Goldberg has more at National Review "The Corner", as does Jonathan Adler (who excerpts an interesting Jun. 2003 speech by Mark McClellan to the Commonwealth Club in San Francisco discussing pharmaceutical liability).

The fundamental craziness at work here is that an agency like the FDA can spend years considering the best way to balance the risks associated with a drug (including the risk of scaring away patients who would benefit from it); it can decide to require thus-and-such a warning and not some other kind; then, after a drugmaker carefully adopts that exact warning, following the agency's guidelines in each and every particular, trial lawyers claiming side effects can invite an open-ended series of juries, one at a time, to decide that some entirely different wording should have been used. They need only win occasionally for the game to work financially. Way back in 1988 my colleague Peter Huber explained it very well in his book Liability: The Legal Revolution and Its Consequences, whose relevant chapter was titled: "Knowledge of the Law is No Excuse". Dan Troy is completely right to call the courts' attention to the agency's stake in this problem: let's hope he outlasts his critics.

Jacob Levy explains why Chicago's Hyde Park neighborhood, home to the University of Chicago, is so depressing (Volokh, Jul. 13; Jane Galt, Jul. 13).

...discussed at Point of Law today. Plus: Manhattan Institute launches new health policy site (more).

"Do you like shrimp but wish it cost more? Need some bedroom furniture but hate getting a good deal on it? If so, you're very different from most Americans. You are, however, one of the few people who can rejoice in our national trade policies. ... The laws against dumping are supposed to correct the problem by banning any imports that are sold below 'fair value,' a baffling concept understood by bureaucrats but not economists." (Steve Chapman, syndicated/Baltimore Sun, Jul. 9).

Speaking of crashing into a crowd of bystanders: "Eleven lawsuits were filed Tuesday on behalf of two people who were killed and nine who were injured when a car plowed through a crowded farmers market last summer." Named as defendants in the suit by Brian J. Panish, Timothy J. Wheeler and Geoffrey S. Wells are the City of Santa Monica; "the company that oversees the market, a farmers association, Los Angeles County's agricultural commissioner and the state of California"; and General Motors. Oh, yes, and the actual driver, 88-year-old George Russell Weller; almost forgot him. ("Lawsuits filed in Santa Monica farmers market car crash that killed 10", AP/San Francisco Chronicle, Jul. 13; "Greene Broillet Files 11 Lawsuits Against the City of Santa Monica for Wrongful Deaths and Personal Injuries Arising out of the July 2003 Santa Monica Farmers' Market Tragedy", press release, Jul. 13). In all, ten people were killed and 63 injured in the accident last July. (& see Sept. 15).

Stuart Taylor, Jr. takes a hard look at the Kerry/Edwards ticket and weighs the likelihood that it will do much to rein in the litigation biz. Quotes my comment comparing Sen. Edwards to a cleaned-up Michael Moore ("Edwards and the Problem with the Trial-Lawyer Lobby", National Journal/Atlantic Online, Jul. 13). At Salon, reporter Tim Grieve pens an all-out defense of Edwards which is kind enough to quote me in two places ("The GOP war on trial lawyers", Jul. 13 (subscription or ad-based "day pass")). And the Dallas Morning News, in the person of editorial columnist Rod Dreher, includes this site in a short list of recommended weblogs, coincidentally quoting an item of mine on locally based lawyer Fred Baron and his involvement with this year's Democratic ticket ("Welcome to the blogosphere", Jun. 23).

"Another measure of the magnitude of the high cost of lawsuit abuse is the number of products and services that have been withdrawn from the U.S. market due to fear of liability, irrationally applied. Volvo, for example, makes an integrated child booster seat that is not sold in the U.S. because of product liability concerns....

"Similarly, fears of silicone implant lawsuits in America caused Japanese silicone makers to quit production of silicone coating for hypodermic needles, which reduces the pain of an injection. The director of one of these firms stated, 'We're sure our product is safe, but we don’t want to risk a lawsuit.'...

• Monsanto Company abandoned the planned production of a safe, biodegradable, and effective reinforcing phosphate fiber that would have been a substitute for asbestos.

• Union Carbide decided to forego developing a suitcase-sized kidney dialysis unit and offering intravenous equipment.

• Sunstar, a health-spa manufacturer, decided not to market a safety device due to a liability-related increase in its insurance costs. The product would have set off an alarm every time the cover of a spa was opened. Because the product was a safety device, only one insurance company was willing to write a policy.

-- Excerpted from Steven B. Hantler (DaimlerChrysler Corporation), "The Seven Myths of Highly Effective Plaintiff's Lawyers", Manhattan Institute Civil Justice Memo #42, Apr. (PDF) (more on paper)

...and the kind of coverage they get in the New York Times, discussed on Point Of Law this morning.

"A former Canadian sailor will not be allowed to sue Swissair for the trauma he suffered following the crash of Flight 111 in 1998, a Nova Scotia Supreme Court judge ruled today. Lorne Joudrey, 40, had argued that the airline should compensate him for the psychological damage that resulted from his role in the recovery operation in the days after the jet plunged into the ocean near Peggy's Cove, N.S., killing all 229 people aboard." ("Ex-sailor can't sue Swissair over trauma", Canadian Press/Toronto Star, Jul. 7). For a similar ruling from a federal judge in New Mexico, see Apr. 1.

That's Eugene Volokh's capsule summary (Jul. 12) of the jury result reported by the St. Louis Post-Dispatch: "Tony Twist, the former rock 'em-sock 'em Blues hockey player, was awarded $15 million Friday by a jury that concluded comic book artist Todd McFarlane had profited by using Twist's name without his permission. McFarlane, formerly the principal artist and writer of Spiderman comics, gave the name Tony Twist to a violent New York mob boss in McFarlane's Spawn comics in the early 1990s." (Peter Shinkle, "Tony Twist wins $15 million verdict", Jul. 10). Brian J. Noggle also comments.

I've got an op-ed in today's Wall Street Journal arguing that the scariest thing about John Edwards (see Feb. 19 and many other links on this site) is the "tightly organized fund-raising and electoral machine" he has constructed most of whose key backers "are drawn from the tiny handful of tort lawyers even more successful than he". In particular, four of the most powerful men behind Edwards -- Fred Baron, John O'Quinn, Tab Turner, and Paul Minor -- personify in various ways some of the most objectionable features of today's personal-injury litigation scene. (Walter Olson, "Edwards & Co.", Jul. 12, paid subscribers only)(free OpinionJournal.com version).

George Will, Lynne Cheney, Arnold Schwarzenegger, Rudolph Giuliani, and Bob Barr are all on record opposing this wretched would-be Constitutional amendment, and they're right. See Faith Bremner, "Conservatives opposing marriage amendment", Gannett News Service/The Coloradoan, Dec. 11, 2003. For our earlier posts on the subject, see Feb. 20 and Feb. 25. For a comeback to the ripely absurd "FMA is needed to bolster fertility rates" argument, see Jacob Levy, Volokh Conspiracy, (Jul. 9); for some ribbing of social conservatives who seem determined to borrow the "precautionary principle" from enviro absolutists for this occasion, see Jane Galt's co-blogger "Mindles H. Dreck" (Jul. 8, Jul. 9). "As for the gay Republicans whose votes Mr. Bush might then lose, Mr. Weyrich [Paul Weyrich, prominent in the Washington religious right] wrote, 'Good riddance.'" (Carl Hulse and David D. Kirkpatrick, "Senate Braces Itself for Fight on Gay Marriage", New York Times, Jul. 9). And the same kind sentiments to you, sir!

More: And the Chicago Tribune (Jul. 13), and the Wall Street Journal, and Richard Epstein.... Update Jul. 14: defeated 48-50 on procedural vote. Yet more: Dale Carpenter (U. of Minn. Law School), "The Federal Marriage Amendment: Unnecessary, Anti-federalist, and Anti-democratic", Cato Institute White Papers, Sept. 23; Rep. Christopher Cox (R-Calif.), "The Marriage Amendment Is a Terrible Idea", Wall Street Journal, Sept. 28 ($).

In Sunday's New York Post, I favorably review James Surowiecki's new book The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations (though I didn't like the title and think it leaves anything but an accurate impression of the book's contents). (Walter Olson, "Mob Wisdom", Jul. 11). On-topic snippet: Surowiecki offers an account (among much else) of "why juries, political factions or artistic coteries that start out with similar leanings can talk each other into more extreme positions than any of them took originally".

"In one recent 18-month period, seven federal and state courts imposed sanctions on Union Pacific, the nation's biggest railroad, for destroying or failing to preserve evidence in crossing accidents, and an eighth court ordered a case retried. One sanction has since been overturned on appeal." Big New York Times front-pager endorses charges from plaintiff's bar that the railroad has been less than diligent in preserving potentially unhelpful evidence after rail-motor vehicle crashes (Walt Bogdanich, "In Deaths at Rail Crossings, Missing Evidence and Silence", Jul. 11).

Sign of the times: Bankruptcy Creditors' Service, Inc., has launched a new publication entitled Catholic Church Bankruptcy News, its mission being to keep track of legal proceedings in the case of the insolvency of the Diocese of Portland, Oregon, and whatever other dioceses or church institutions follow the same path into Chapter 11 under pressure from abuse claims. Subscribers will have to pay $45 for each issue, expected to appear approximately every 10 to 20 days, but a sample issue can be perused for free. (via Amy Welborn). One of the claimants suing the Portland diocese over abuse, whose trial had been set for Jul. 6 until stayed by the bankruptcy filing, is demanding $135 million; another wants $36.5 million. For more, see Ashbel S. Green, "Church bankruptcy and the courts", Religion News Service/Salt Lake Tribune, Jul. 10.

"When the lawyers at EFF [Electronic Frontier Foundation] first sat down and asked 'Whom could we sue under the Induce Act [the Inducing Infringements of Copyright Act (PDF), proposed by Sens. Hatch, Daschle, Leahy, Boxer and others] if we were an abusive copyright holder?' the answer was clear: pretty much everybody. Playing the devil's advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love -- CD burners, MP3 players, cell phones -- and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff." ("Prelude to a Fake Complaint", EFF website, Jun. 24). See Bryan Chaffin, "EFF Demonstrates How To Use New Law Against Apple, iPod", Mac Observer, Jun. 25. For more on the bill, see Legal Reader, Jun. 10.

"Separate soccer seasons for girls' teams in two Westchester, N.Y., school districts violate civil rights laws banning gender discrimination in athletics, the 2nd U.S. Circuit Court of Appeals ruled [last month]." The Mamaroneck and Pelham school districts had unsuccessfully argued that logistical concerns -- notably a shortage of soccer fields to play on -- justified the practice of having boys play soccer in the fall and girls in the spring. (Mark Hamblett, "Separate Soccer Found to Violate Civil Rights", New York Law Journal, Jun. 8). For a similar ruling in Michigan, see Dec. 24-27, 2001; letter to the editor, Feb. 28, 2002. More: May 7, 2005.

I'm slated to appear on the Fox News Channel's "Your World" today between 4 and 5 pm, to discuss Martha Stewart, Ken Lay, class action reform, the Edwards pick, and other legal topics. Guest host will be Stuart Varney, in Neil Cavuto's absence.

...summarized with links on Point Of Law this morning.

The self-described "bounty hunter" lawyer, whose exploits around L.A. have been previously detailed in this space Nov. 4-5, 2002 and Mar. 12 of this year, has turned his talents to disabled-rights enforcement and swooped down on the city of Fresno, filing more than 130 lawsuits against local businesses over such alleged infractions as a too-high bathroom mirror and a hard-to-reach soda dispenser. Businesses usually pay between $5,000 and $12,000 to settle, says San Diego defense attorney James Reynolds. (Robert Rodriguez, "Fresno Businesses Are Sued Over Act", Fresno Bee, Jul. 4) (via Southern California Law Blog). For more on ADA filing mills, see Mar. 9 and links from there and my City Journal article, "The ADA Shakedown Racket".

The software company will pay as much as $59 million in attorneys' fees and a face value of $174.5 million in vouchers for purchasers, although many or most will apparently never get redeemed. A Microsoft spokesman said the company believed it had a solid defense but "settled to avoid the potential of a jury verdict that favored the plaintiffs, and to avoid disruption at the company. 'How much is a week's worth of Bill Gates' time to shareholders? A lot,' he said," referring to the expected appearance of the company chief at trial. (Gregg Aamot, "Microsoft to Pay Up to $241 Million in Minnesota Class Action", AP/Law.com, Jul. 2). More on MS settlements: Mar. 31 and links from there.

The incomparable James Lileks (Jul. 7) describes the settlement much more entertainingly than we have done above ("Microsoft once again promised to hand over its wallet if the kicking stopped, and agreed to remain rolled in a fetal position until the money is counted. .... When it came to distribute the organs of the corpse the lawyers got the liver, spleen, lungs and most of the brain; the consumers got some regulatory glands, some teeth and a selection of minor toes."). Then he goes on to notice that it contains a remarkable provision:

they need higher participation rates, since it looks bad when you advocate on behalf of an Inflamed Public that turns out to be utterly indifferent to the supposed offense. So the state has come up with a novel means of informing citizens that Microsoft owes them money. It was buried at the end of the story in the local paper last week.

The state will subpoena local computer resellers to learn who bought PCs.

Maybe it’s just me, but: imagine the outcry if the Justice Department decided it wanted a database of computer ownership in America. Who had what. Oh no you don’t would be the general reaction, even if people couldn’t quite explain why they didn't like the idea. It smacks of typewriter-registration laws in totalitarian states, even though we all know no one will kick down the door and demand to know where you put that 386 you bought in '92. But this is the mindset of the well-intentioned government lawyer: gee, people might not claim their rebates. How about we use the power of the state to force private businesses to turn over customer lists so we can mail informational material to computer owners? It’s for their own good.

Glimpses of the world of shareholder litigation: "Shareholder suits are a big part of the practice at [Colchester, Ct.-based] Scott & Scott, but in the firm's seven years of existence, none has gone to trial, [firm attorney Neil R.] Rothstein said." ("Commerce Bancorp sued over indictments", Philadelphia Inquirer, Jul. 7).

David Frum says very kind things about me and this site (and interesting things about lawyers, politics, and Sen. Edwards) in his column today for National Review (Jun. 8). Last night on NRO's "The Corner" NR contributor John Derbyshire was generous about my latest literary production, The Rule of Lawyers ("Walter Olson's book is a great source on the social harm done by the trial lawyer culture", Jun. 7). And Jim Copland of the Manhattan Institute, managing editor of our related site Point of Law, has an NRO commentary on the Edwards affair, with a link to us ("Kerry-Edwards & Co.", Jul. 8).

Tipple your way to court, latest: "A drunken passenger who fell two decks from a staircase while aboard Royal Caribbean's Monarch of the Seas asked Florida's 3rd District Court of Appeal on Monday to reinstate his personal injury lawsuit against the cruise line." In oral argument, the appellate court's chief judge appeared inclined to reinstate the suit, rejecting the cruise line's argument that it is covered by a state law protecting sellers of liquor from being sued. (Kelly Cramer, Miami Daily Business Review, Jun. 29). More tipple-your-way-to-court cases: Apr. 19, Apr. 7, Apr. 3, 2004; Dec. 21, Dec. 17, Oct. 13, Aug. 16, Aug. 8, Jul. 21, 2003, and earlier cases.

I'm scheduled to appear tonight on two shows to discuss John Edwards' selection for the Democratic ticket: Catherine Crier Live on Court TV at 5 pm, and News Night with Aaron Brown on CNN at 10 pm.

I've got an op-ed in today's New York Sun (Walter Olson, "Kerry's crafty operator", Jul. 7). See also below.

...discussed here and here on Point Of Law, along with a lot of John Edwards stuff.

In an article in USC Annenberg's Online Journalism Review, writer Mark Thompson examines some recent instances in which webloggers have been threatened with defamation actions on questionable grounds, such targets including Justene Adamec (Calblog) (see Jan. 22) and the pseudonymous "Atrios". One source of jeopardy is courts' penchant for narrowly construing statutes intended to protect press freedom: for example, the Wisconsin Court of Appeals refused to extend to the Internet a state law providing that newspapers and magazines cannot be sued for defamation until they've been given a chance to retract an item. Also mentions our commentary on the Luskin/Atrios case (see Oct. 30). ("Law Offers Internet Publishers Scant Guidance on Libel", Jun. 16).

Have you been skipping past items about California's abuse-ridden s. 17200 business practices act (see Jun. 30, Apr. 22, Mar. 12, Feb. 16 and links from there) just because you don't happen to live or do business in California? Then read on. Under a case currently on appeal to the state's supreme court, a business located anywhere else in the country, perhaps even the world, can be sued under s. 17200 if it advertises for customers in California -- and such advertising may take the form of maintaining a website accessible to California customers. In the case at issue, a Los Angeles appeals court ruled this March that several Nevada casino hotels "could be sued by a man seeking class action status on behalf of all California residents hit with a $3-per-night energy surcharge while staying in Las Vegas, Reno or other gambling towns." The court held "that hotel advertisements, toll-free numbers and interactive Web sites provided sufficient contact to give Los Angeles-area resident Frank Snowney jurisdiction to sue in California" under the ultra-liberal state law. According to a Fulbright & Jaworski lawyer who is representing the casinos on appeal, the ruling "may affect any hotel, cruise ship, club, theater, museum, sporting venue, rental car company, restaurant, etc., operating exclusively outside of California, but accepting online reservations." (Mike McKee, "Businesses Quake Over California Case", The Recorder, Jul. 2). More: There turns out to be a whole blog dedicated to s. 17200, and it takes exception to the Recorder article's slant, interpreting the pending case as primarily about the scope of state jurisdiction generally and only incidentally about s. 17200 (via Legal Reader).

In South Portland, Maine, a jury has awarded Neil Maietta $3 million in a complicated medical malpractice claim against anesthesiologist Dr. Kenneth Blazier over an infection that set into Maietta's spinal discs after a medical procedure. "The verdict was unusually large for Maine, where awards of more than a million dollars are rare. It was particularly surprising in this case because a medical malpractice review panel had unanimously found that the doctor and hospital were not at fault for Maietta's injury. The panel's finding was disclosed to the jury, but it found for Maietta anyway. 'I'll take my chances with a jury any day,' said Maietta's lawyer, Daniel J. Lilley of Portland." (Gregory D. Kesich, "Man wins $3 million for injury by doctor", Portland Press Herald, May 27)(via SickOfLawsuits.org).

Senator Kerry has selected former trial lawyer Senator John Edwards as his running mate. Jim Copland covers on PointOfLaw. Overlawyered has had extensive coverage of Edwards's career and fund-raising (Feb. 26; Feb. 3; Feb. 2; Jan. 26; Jan. 23; Jan. 20; Sep. 16; pre-July 2003; and links therein). The Chamber of Commerce is so distressed by the selection that the Wall Street Journal reports that it may abandon its traditional stance of neutrality to campaign against the Kerry-Edwards ticket. (Alan Murray, "Business Elite Vows To Take On Kerry If He Taps Edwards", Wall Street Journal, Jul. 6) (via Kaus). Murray suggests that Edwards could allay fears that he's in the pockets of the plaintiffs' bar by joining the bipartisan support for class action reform (see Mar. 16 and links therein). To do so, however, Edwards would have to flip-flop his previous opposition to the Class Action Fairness Act; he consistently voted against reforms in committee. (Senate Report 108-123).

According to guidelines issued by the city council of the city of Derby, England, teachers who plan to lead students on summer trips should "consider keeping a supply of maximum factor suncream to spray onto pupils, although they are told not to rub it in for fear of being accused of inappropriate contact." Meanwhile, in the city of Bristol, staff at Hillcrest Primary school confiscated a bottle of factor 60 sunblock that a mother had given her easily sunburned 8-year-old son to take to school, saying it was forbidden for students to possess medication and that the youth should instead have worn a long-sleeved shirt and sun hat. Perhaps as a concession to the intractable problem of achieving all the different kinds of complete safety at once, the Derby council guidelines urge educators to consider canceling field outings entirely on days that are too sunny. ("Schools warned over sunny trips", BBC, Jun. 4)(via Common Good "EdWatch"); "School stops boy using sun cream", BBC, May 4).

Overlawyered was launched on July 1, 1999, which makes us five years old. Hurrah! We're going to celebrate by taking off the Fourth of July holiday -- see you next week.

...now has its own book-length compilation: Kevin L. Hoover, The Police Log: True Crime & More from Arcata, California (via Sam Smith's Progressive Review, which is newly redesigned along blog lines).

Lurid allegations flew in a Cleveland courtroom after the breakup of medical-malpractice and personal-injury firm Kampinski & Mellino. A jury eventually ordered Charles Kampinski to pay almost $621,000 to Christopher Mellino, who had resigned from the firm. He can probably afford it: "Trial evidence indicated Kampinski earned about $36 million between 1997 and 2001 -- $15.8 million in 2000 alone. Mellino, his longtime sidekick, raked in some $5.5 million over that span -- peaking at $2.53 million in 2000 -- under a pay scale that gave him 1 percent of the firm's net fees for every year he worked there." (Jim Nichols, "Ruling ends bad breakup of lawyers", Cleveland Plain Dealer, Jun. 18) MedPundit (Jun. 18) comments. Despite the Cleveland paper's description of the law firm as "one of Ohio's most successful personal-injury and medical-malpractice firms", it does not boast a particularly high Google profile, currently scoring only a dozen or so hits under its former name.