April 2005 Archives

If you see fewer trees in your California city, it's because attorney Matthew Davis is making a practice out of suing landowners or public agencies when people are injured by falling tree limbs in highly populated areas. Cities may well find that cutting down trees is cheaper than maintaining them to a standard that avoids lawsuits, or taxpayers may find themselves footing the bill for insuring the public when the bough breaks. (Justin Scheck, "Lawyer's Accidental Specialty in Tree Lawsuits Bears Fruit", The Recorder, May 2).

After eight years and three trials, a group of protesters whose eyes were swabbed with pepper spray during a series of anti-logging demonstrations finally won their case Thursday against Humboldt County sheriff's deputies and Eureka police—but were awarded only $1 each in damages.

The protestors had blocked a public road by locking their arms together inside metal pipes, and argued that the police should have used a grinder to cut through the metal. One press account credulously repeats: "'It was never about the money,' [attorney Dennis] Cunningham said. 'It was always about the principle.'" This contradicts the complaint in the case, which asked for punitive damages, and I wonder if the press will remind Cunningham of his statement when the plaintiffs ask for attorney's fees—which are now potentially available to the plaintiffs because of the "success" of the $1 verdict in a civil rights case. The plaintiffs' web page estimates that they will ask for about a million dollars. (Stacy Finz, "Logging protesters win pepper spray case", SF Chronicle, Apr. 29; Justin M. Norton, AP, Apr. 29; Plaintiffs' web site).

Jennifer Diaz, ex-wife of Mississippi Supreme Court Justice Oliver Diaz Jr., has struck a plea agreement with prosecutors and may become "a witness against him and others charged in a federal corruption probe". "In 2000, Jennifer Diaz received a loan for campaign funds that was guaranteed by prominent trial lawyer Dickie Scruggs in the amount of $80,000," but did not report the amount as income when Scruggs forgave the debt. Scruggs was not charged in the investigation, which led to indictments of the Diazes, prominent trial lawyer Paul Minor, and two former judges; trial on the charges "is set to begin May 9 in Jackson". (Jerry Mitchell and Julie Goodman, "Judge's ex-wife might be prosecution witness, officials say", Jackson Clarion-Ledger, Apr. 26). See Feb. 22, 2004 and links from there.

"During the two decades [millionaire murder defendant Fred] Keller has lived in Palm Beach County, he has filed more than 160 lawsuits. Most were landlord-tenant actions in connection with his commercial real estate empire," but there were also a large assortment of others, including suits naming several relatives and a former girlfriend against whom he waged a 16-year campaign to collect a $2,225 debt. Keller, 70, is headed for a retrial next month after a jury deadlocked on charges that include "first-degree murder in the death of his fifth wife, Rosemarie, and attempted first-degree murder in the wounding of her brother in November 2003." (Larry Keller, Palm Beach Post, Apr. 25)(via Sploid).

In St. Cloud, Minnesota, a drunk started a fight with an employee of the Red Carpet Nightclub, and was on the losing end when a bouncer got involved; Justin Smiley eventually died from injuries sustained when his head hit the concrete. A tort suit in the making, but state ethical rules prohibit soliciting the decedent's family directly. What to do if you're an enterprising plaintiff's lawyer hoping to comply with the letter of the rules? Post an ad in the paper! To wit, one asking "Have you or anyone you know been injured in a local bar?"

"To say that this ad was in poor taste would be akin to describing wearing a halter top to a funeral as being a a bit underdressed," says a St. Cloud blogger, who reprints the offending ad. King Banian agrees, as do local newspaper readers.

It's time to round up and thank some of those who've said or done kind things on our behalf recently. That would include Denise Howell, one of the earliest and best-known lawyer-bloggers (Bag and Baggage), who's recently helped launch a new group blog at Corante on technology, culture and the law called Between Lawyers, featuring Ernest Svenson and others; in the comments section she calls Overlawyered "an excellent blog I recommend highly" (Mar. 28, comment section). Kevin O'Brien at Aero-News.net calls us "always-interesting" (Apr. 21) and while glad to return that nice compliment we note that it lacks intensity compared with what Donna Baver Rovito, dynamo of Pennsylvania physician activism, wrote recently (Mar. 17):

...just for the record, I would walk on broken glass for Walter Olson and Ted Frank in gratitude for the unbelievable research offered up on their websites Overlawyered.com and PointofLaw.com.

Wow. Evan Schaeffer probably wouldn't go along completely with that sentiment but has lately extended congratulations to one of us and coffee mugs to both. We've also been recommended recently by Frazzle.com (Apr. 23), by Australia's WogBlog (Apr. 27, calling us "terrific"), and, in Portuguese, Lado Negro da Web (Apr. 24). And the new legal blog aggregator Juris Novus, which fills the same general niche left by the late and lamented DailyWhirl, gives prominent placement to this site among its offerings. More: Precision Blogging (Apr. 29) calls us the "perfect antidote for a beautiful Spring day," but seems to mean that in a complimentary way.

We get mail:

You mention in your "District of Columbia v. Beretta, U.S.A." post that other commentators, such as Mr. Healy and Mr. Levy, have argued that individual states, not the federal government, should be initiating legislation preventing lawsuits against gun manufacturers. The idea is that businesses can "withdraw from doing business in a state that has an oppressive tort regime." Your counter-argument, however, is that the latter idea "doesn't help gun manufacturers who don't do business in the District of Columbia to begin with."

But, in fact, can’t businesses withdraw from states to the point where these businesses no longer have the "minimum contacts" necessary for the state courts to assert personal jurisdiction over the businesses? Then the businesses would be avoiding the oppressive tort laws of those states, but the states would not have personal jurisdiction for any lawsuits against these businesses.

Chris Schmitthenner

It is correct that gun manufacturers will, in litigation, attempt to get themselves out of the case by arguing lack of personal jurisdiction via such precedents as Asahi Metal Industry Co. Ltd. v. Superior Court of California. However, there are two separate issues that prevent Asahi from providing complete relief.

First, plaintiffs will argue that there are minimum contacts that suffice for personal jurisdiction. They'll argue that the manufacturers placed ads in magazines that would be seen by residents of the state. They'll argue purposeful availment under the same factual theories that underlie the "nuisance" claims in the Weinstein litigation. Cf. GTE New Media Services v. BellSouth Corp. (D.C. 2000) (plaintiff entitled to discovery whether defendant, while not physically present in District, intended for District residents to do business with it and caused injury within District); LaMarca v. Pak-Mor Mfg. Co. (N.Y. 2000) (distinguishing Asahi to find personal jurisdiction). In the case of the D.C. city council law, the manufacturers may even have problems to the extent they have lobbyists in the area. A particular judge may well decide that it's a jury issue, and many manufacturers won't want to take that risk.

Second, even if D.C. courts do not have personal jurisdiction over the manufacturer, little stops a D.C. plaintiff from suing a gun manufacturer in a state where there is personal jurisdiction. For example, in Peterson v. BASF, Minnesota state courts applied the New Jersey Consumer Fraud Act to a nationwide class; in Ysbrand v. DaimlerChrysler, Oklahoma state courts applied Michigan law. One can easily imagine a D.C. plaintiff and a well-funded attorney filing suit in Los Angeles County against a California manufacturer asking for application of D.C. law. I think, in such a circumstance, gun manufacturers have strong arguments under the principles behind Phillips Petroleum v. Shutts that, if D.C. has no personal jurisdiction over a defendant, choice-of-law principles cannot be used to apply D.C. law to the defendant in a manner consistent with due process. But the question, to my knowledge, has not yet been resolved definitively; the defendants in Peterson and Ysbrand certainly were within the personal jurisdiction of the forum whose law was applied. Cf. also the different case of Keeton v. Hustler Magazine, Inc., where a New York plaintiff was allowed to sue an Ohio/California defendant using New Hampshire courts and laws, solely for the purpose of taking advantage of a favorable statute of limitations.

In short, gun manufacturers have strong arguments for application of the Healy/Levy federalism theory should such a suit actually happen. But plaintiffs get to choose their forum, and a large part of forum-shopping is finding a forum where the courts are less likely to resolve issues of law in favor of the defendant. The advantage of an immunity law is that it removes that uncertainty.

I've opened comments on the narrow question of the interrelationship between personal jurisdiction and choice of law. Please keep discussion civil and limited to this issue.

Update:David Hardy provides another example.

Until today it looked as if the first Vioxx wrongful-death action to go to trial against Merck & Co. since the painkiller's withdrawal from the market would be Cheryl Rogers' lawsuit in an Alabama state court over the death of her late husband Howard. Now, at the request of a federal judge who is presiding over other Vioxx cases, the parties have agreed to postpone trial in the Rogers case, which had been set to start next month. (Theresa Agovino, "First Vioxx trial to be postponed", AP/Business Week, Apr. 28). That's a pity, since it would have been illuminating to get to the bottom of the allegations about the case aired in recent weeks. Per AP:

Dave Boaz of the Cato Institute, a friend of this site, is debating the matter over at Legal Affairs' Debate Club this week with Judy Waxman of the National Women's Law Center. See Apr. 13 (linking to Steve Chapman column)(& letter to the editor, May 10).

Various nationalist governments and well-intended archaeologists are trying to shut down the worldwide trade in antiquities, but it's far from clear that declaring governments to be the sole rightful owners of historical relics leads to better conservation or better public understanding of them. As the U.S. government increasingly shows itself willing to enforce foreign states' claims of ownership in artifacts, collectors in this country are tangled in legal uncertainties and faced with demands that they affirmatively document long-ago provenances, an often impossible task. And some of the "cultural patrimony" subject to demands for repatriation is of distinctly recent vintage: China seeks title to "calligraphy and paintings dating from as recently as 1912". (Steven Vincent, "Ancient Treasures for Sale", Reason, Apr.). Inasmuch as governments such as those of China, Cambodia and Afghanistan have themselves been pre-eminent destroyers of their own store of cultural antiquities -- the damage done during China's Cultural Revolution period is incalculable -- the dispersal of an ancient culture's artworks around the world may turn out to be an important safeguard in making sure that in future such episodes at least a portion of the treasure survives the wreck.

Anne Haight is photoblogging the scene of the finger incident (Apr. 25)(via Instapundit)(see Apr. 22, etc.)

I'm pleased to announce that I'm taking a dream job: on July 1, I will start at the American Enterprise Institute for Public Policy Research as a resident fellow and director of the AEI Liability Project. I should continue writing for Overlawyered, but I'll also have the additional time and freedom to do longer and more comprehensive articles and books, as well as the opportunity to work with scholars on empirical and public policy research on litigation reform issues and questions. In the words of Glenn Reynolds, I've taken the Boeing, though I'm not sure that metaphor works for a lawyer taking a paycut.

I certainly want to thank the editor of this site; this opportunity wouldn't have been possible if Walter Olson hadn't been generous enough over the last couple of years to let me regularly speak on a prominent platform he spent years building. Wally's been a great mentor and, while we won't be at the same thinktank, I'm looking forward to the many chances we're going to have to work together over the years on these issues. I want to thank Jim Copland and the rest of the Manhattan Institute for the same reason.

I leave O'Melveny & Myers on May 6. Even if my first day hadn't been September 10, 2001, I'd always remember starting at the firm. I've had some tremendous experiences with what the American Lawyer magazine called the "Litigation Department of the Year," including dodging fallen trees in the middle of Hurricane Isabel to make it to the office to write a contingent emergency Supreme Court petition in the event that the Ninth Circuit Court of Appeals issued a mandate to shut down the 2003 California recall election, or working on a gigantic ITC administrative trial where the judge regularly held court until midnight. But it's the people who have made the last three and a half years great. I've gotten to work with some of the great lawyers of today, including, but not limited to, John Beisner, Walter Dellinger, Brian Boyle, Chuck Diamond, Mark Samuels, Pat Lynch, and Rich Parker, as well as wonderful attorneys who will be recognized as the greats of tomorrow, including, but not limited to, Brian Brooks, Ian Simmons, Jessica Davidson Miller, Evelyn Becker, David Applebaum, and Matthew Shors. [bumped by editor; originally posted by Ted 4/26 at 17:59]

If you oppose one or another agenda item of the organized religious right these days, you're apt to get accused of "anti-religious bigotry". Gordon Smith (Apr. 26) provides a handy summary with links of the current flap over judicial nominations. Longtime readers will find it little surprise that I think Cathy Young ("An ugly new chapter in the religious wars", Boston Globe, Apr. 25) has the better of the argument (also check out Mark Kleiman, Apr. 26) while Prof. Bainbridge is barking up a desperately wrong tree (Apr. 25) when he declares that Senate Democrats' actions have a disparate impact on nominees "of faith"; the disparate-impact concept has done enough damage already in the realm of employment discrimination law without encouraging it to debilitate the rest of American discourse.

P.S. Were I a Senator I would no doubt happily vote to confirm most of the disputed nominees. But between the Schiavo case and the collaboration of Hill Republicans in demagogic events like "Justice Sunday", is it any wonder GOP popularity is plummeting?

David Giacalone has some reflections (Apr. 24). Irresistible first paragraph:

Sherman Adams, chief of staff to President Eisenhower, almost prevented the creation of Law Day, in 1958. Adams burst into the President's office yelling "Do not sign that paper praising lawyers!"

"In the first legal action of its kind in Britain, Stacy Dow is claiming her local NHS trust should pay to help her raise the daughter she never expected to have." (Michael Blackley, The Scotsman, Apr. 25).

Doesn't a proper respect for federalism require us to stand back and let individual states assert whatever powers they wish to assert on the matter of product liability? No, it doesn't, because to do so is in many cases to deprive the other states of a chance to adopt their own favored policy. We've belabored this point for years (particularly in the gun context; see here and here, for example), but now Eugene Volokh sums up the whole matter (Apr. 25) with great clarity. He concludes with the following points:

Finally, I would caution against appeals to tradition here. It's true that most tort law has traditionally been state law; but that's partly because historically most tort liability has involved either entirely intrastate behavior or behavior that's largely intrastate. In particular, I don't think there has been a long tradition of tort law imposing liability on defendants' purely out-of-state behavior in the first place, especially when defendants' behavior was lawful in the state in which it took place.

Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what's "traditional" here.

The plaintiff's husband, Francisco Garcia Lopez, died of lung cancer at the age of 68 after smoking 3 packs a day for 42 years.

Edgardo [García Prado] testified that he "would tell [his father] to stop smoking every day and he would pay no attention." Still another son, Orlando, testified that, when family members or friends would tell his father that smoking was harmful, he would say "that we all have to die some time from something . . . . He always had the same answer." Decedent's brother, Demetrio García Lopez, testified that he had been telling his brother that smoking was harmful since about 1970. Demetrio said he did not know his brother's perception of the health risks of smoking, noting, "[t]he thing is that he would not pay any attention to anybody, so it just didn't matter to him."

Nevertheless, the family sued for "failure to warn" on the grounds that Lopez couldn't have been expected to know smoking was dangerous. In support, they offered the "expert" testimony of Marly Ferrer Montalvo, who had a bachelor's degree in history and had written a thesis on Haiti, but she had done a few months of photocopying tobacco advertising for a professor. Thankfully, neither the district court nor the First Circuit bought this, and the case was dismissed on summary judgment, but Alvarez's lawyer, Herbert Muriel, won a wrongful death jury verdict on this sort of concocted theory in September 2002 before it was thrown out of court. (Irene Cruz-Vargas v JTI Japan Tobacco INT, No. 00-2334 (D.P.R.), aff'd by Irene Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271 (1st Cir. 2003); Virginia Prado Alvarez v. R.J. Reynolds Tobacco Co., No. 04-1695 (1st Cir. Apr. 21, 2005)).

Neither Waddah (Martin) Mustapha, of Windsor, Ontario nor his wife Lynn consumed the dead fly they found in a bottle of Culligan bottled water, nor did they drink any of the water that had come in contact with it, since they discovered the fly before opening the bottle. They were so traumatized, however, that a court has just applied the calamine of cash to their psychic wounds to the extent of a third of a million dollars (Canadian). Mr. Mustapha, a hairstylist, said he had nightmares and lost sleep after the fly incident; he "also testified that he lost his sense of humour and became argumentative and edgy," among other ill consequences. Let's hope the couple never goes on a picnic. (Chris Thompson, "Man wins $340,000 in bottled fly lawsuit", Windsor Star, Apr. 23). Update Feb. 17, 2007: appeals court reverses judgment and awards $30K in costs to defendant Culligan.

It was foggy on the morning of January 31, 1997, when James Bowman decided to pass a truck on a two-lane bridge in Morganza, Louisiana. Unfortunately, this resulted in a head-on collision with a car driven by 22-year-old Deependra Charan, and Charan was paralyzed. A jury found $21 million in damages, and attributed 30% of the accident to the Louisiana Department of Transportation for not building a second bridge. Because, after all, head-on collisions in foggy weather never happen on two-lane roads that aren't bridges. Because Louisiana adopted the tort reform of abolishing joint and several liability, taxpayers are stuck with only a bit over $6 million, rather than the entire bill. (Roy Pitchford, "$21 million awarded in La. 1 crash", The Advocate, Apr. 23).

Though the press coverage isn't clear, I've confirmed that the case involves the Morganza Spillway, which is a narrow four-mile long flood-control structure that would not be feasible to duplicate. The plaintiffs' alternative suggestion, a barrier between the two lanes, may or may not be possible, but would certainly make crossing the bridge behind slow traffic (the Spillway seems to be a popular bicycle touring spot) unbearable.

Not included in the press coverage: the jury did not get to hear that James Bowman had a blood-alcohol level of .10, nor that the accident was his third DWI.

We get mail:

I read your post about the juror who was caught buying a newspaper during a murder trial with interest because my brother, William Boge, was one of the defense attorneys.

While I agree that simply buying a newspaper when instructed not to by the judge (especially if the trial isn't covered in that paper) is not necessarily grounds for an automatic mistrial, I think there were some important points left out of this discussion that makes the mistrial more reasonable.

First, the juror bought two newspapers, not one. And it's reasonable to assume if she bought newspapers that day, she probably bought them other days as well. And one of the papers she bought (the Potomac News) was a local one, and covered many aspects of the trial, including information NOT allowed to be presented at the trial. So, who's to say she didn't read the papers on those days, too?

Second, because it was the defense attorney (John Shields) who accused her of buying the paper (and the Judge asked her directly if she had seen Shields at the 7-11 that morning), she would understandably hold some anger against him, which could impair her ability to make a fair decision in the case.

Finally, this case was entirely circumstantial. There was not one piece of evidence linking the defendant to the crime. Based on this, my guess is that the judge was very hesitant to let stand a murder conviction and a 40-year prison term, based solely on circumstantial evidence, if there was any doubt that the jury had been influenced by outside evidence.

Regards,
Matt Boge

The first point is certainly a valid argument. If the judge made a finding that the juror was prejudiced from reading newspapers other than the ones seen being bought, that could be grounds for a mistrial. We don't know from the press accounts whether the judge actually made this finding, which was certainly possible: on April 12, the Potomac News reported about an inadmissible affidavit Marissa Lara made before her murder where she accused her estranged husband of raping and threatening to kill her. But why not question the other jurors to determine if Lindy Heaster had reported this information in deliberations?

I don't find the second argument persuasive. If this were a legitimate reason to find prejudice, an attorney could deliberately try to alienate jurors and then complain that the juror might wish to retaliate. If it were possible for the judge to do so (and it may not have been), Judge Alston should have taken steps to quiz the juror about the 7-11 purchase without letting it be known who saw the juror.

Nearly every murder case involves solely "circumstantial evidence," which just means non-eyewitness testimony. And the circumstantial evidence here was strong: Gerardo Lara had the motive to kill his estranged wife; Lara had previously violently attacked her (and someone trying to rescue her) in a different incident in front of witnesses; Lara was caught trying to get his sons to lie about an alibi; the victim's body was found in a Mitsubishi, wrapped in a sleeping bag resembling that of one of Lara's sons, and both sets of the keys to the Mitsubishi were found in Lara's home--including a set in a briefcase hidden underneath the bed. All of that would be sufficient evidence to convict Gerardo Lara of murder even if one completely discounts the jailhouse confession he allegedly made.

Other readers have asked whether the judge has the power to issue a $30,000 civil contempt fine to compensate for the costs of the mistrial. The contempt proceeding on July 1 would probably have to be a criminal contempt proceeding, though, if so, it contradicts the press account stating that the judge has already held Heaster in contempt. The proposed fine is likely substantial enough to entitle Heaster to a jury trial; Virginia law has in a similar case limited civil contempt fines to $50. Brown v. Commonwealth, 26 Va. App. 758, 497 S.E.2d 147 (1998). But all of this remains to be litigated, and, if I were the juror, I would probably be more concerned about the possible felony perjury charges the peeved prosecutor is likely to bring.

It's been a while since we've added any new topical categories, so we've just created one that's been overdue: Eat Drink and Be Merry, covering lawsuits over bacon cheeseburgers and obesity, booze sales, foreign objects that turn up in the chili or bottled water, calorie-labeling goofs, and, of course, hot coffee spills. We might throw in a few related stories about claims of "addictive" entertainment, too. Several of these topics are obviously closely related to the themes of our ever-popular personal responsibility subpage, which will remain unchanged.

A word about our topical pages (which are a great way to use the site for research, or just browse what we've published on a topic you find of interest): our subpage on product liability is a catch-all for cases in that category that don't fit into the more specific pages covering guns, tobacco, cars, aircraft, microchips, and so forth (and now food and drink). If you're interested in product liability as a general subject, you should consider visiting these other pages too. And our subpage on environmental law ranges somewhat afield to take in topics that include zoning, landmark preservation, mold claims and (always a favorite) animal rights. The full list of topics can be found along the right column of Overlawyered's front page, just below the list of archives arranged by month.

...asks Forbes. Its answer: "The ones that are sure to generate big fees, of course." University of Arizona law professor Elliott Weiss and New York University economist Lawrence White studied lawsuits filed in Delaware Chancery Court over mergers of Delaware companies between 1999 and 2001. Of 564 mergers, 104 attracted lawsuits, and there was a pattern: the deals sued over "were among the largest, often involved all-cash offers and in more than half the cases the acquiring company owned stock in the firm it was buying." As it happens, "Delaware law subjects cash takeovers and buyouts by controlling shareholders to much tougher scrutiny than most stock-swap mergers" and in such deals acquirers frequently anticipate negotiations with independent directors, and thus enter a somewhat lower initial bid to leave scope for concessions. It is common, however, for the lawyers who sue to wait for the deal price to rise and then claim credit for having made that happen, thus entitling them to compensation: "according to the study, they sought and got fees averaging $1,800 an hour in the cases where the price rose." The authors "conclude that in many cases lawyers are 'exploiting their "license to litigate" primarily to enrich themselves.'" (Daniel Fisher, "Free Riders", Feb. 14).

Among the latest recreational activities to fall afoul of liability fears: the cow-pie bingo event at Westby, Wisconsin's Syttende Mai Festival, an annual celebration of Norwegian folk heritage (pictures). Last year, it seems, a Holstein named Baby managed to escape the designated containment, and although nobody was hurt some kids were scared, causing the organizers to reconsider the whole venture. "In cow pie bingo, a large area is marked as a grid with up to 500 squares, and gamblers bet $2 a square (six for $10) on where Baby will deposit a fresh meadow muffin." (George Hesselberg, "Hopping Holstein shuts down cow pie bingo", Wisconsin State Journal, Apr. 24).

A judge has sentenced once-prominent San Francisco attorney Nikolai Tehin to 14 years in jail for stealing $2 million in settlement money from clients he represented, including impoverished tenants and brain-damaged infants on whose behalf malpractice suits had been filed (see Jul. 16, 2003). (Jeff Chorney, "Lawyer Who Stole $2M From Clients Draws 14-Year Sentence", The Recorder, Apr. 20).

A federal judge has given the nod to the $40M settlement (see Nov. 17). With details as to how straying opt-outs are nudged gently back to the fold (Josh Gerstein, "Judge Approves $40M Settlement Against Abercrombie & Fitch Chain", New York Sun, Apr. 15).

Via Prof. Bainbridge (Apr. 22) comes word of an automatic checker that will rate the readability of a website, assigning it scores according to its "fog index", its reading ease, and the educational level it demands of readers. When we run the current front page of Overlawyered.com through the checker it tells us, among other things, that our average sentence contains 8.24 words, of which 15.48% are of three syllables or more. (The first number seems low; maybe the checker is using a nonstandard definition of "sentence".) At any rate, our "fog index" stands at 9.49 on a scale on which Time and Newsweek stand at 10 (that is, slightly harder to read than us) and most popular novels score between 8 and 10. On the alternative "Flesch reading ease" measure, on which "Authors are encouraged to aim for a score of approximately 60 to 70," we come in at 65.29. Finally, on the "Flesch-Kincaid grade level" calculation, we score a 6.20, suggesting that a seventh grader might be capable of following along with the posts here, though we can't recall hearing from any who do. As a check, we ran the March 2005 archives through and got a slightly more difficult rating: 10.74 fog (comparable to the WSJ), 60.25 reading ease, and a grade level of 7.58. Overall, we come off as easier to read than Prof. Bainbridge himself or the Volokh Conspiracy, but not so easy to read as Glenn Reynolds -- no great surprise on either front.

Animal-rights extremist group PETA has failed in its effort to invoke California's s. 17200 unfair-practices act to suppress a state advertising campaign characterizing California dairy products as coming from "happy cows". Without comment, the state Supreme Court has denied review of an appeals court decision throwing out the lawsuit, which had held that official government activity (in this case that of the state's farmer-funded milk advisory board) is not covered by the statute (see Nov. 30, 2004 and Jan. 16, 2005). (Bob Egelko, "State justices refuse PETA a hearing on the life of cows", San Francisco Chronicle, Apr. 21).

To settle litigation filed by the attorneys general of 47 states, the Blockbuster video chain

has agreed to take down the "No Late Fees" signs in its video stores. Customers will continue to pay extra to rent movies for longer than a week -- but Blockbuster won't call that a late fee.

It will be a "restocking" fee or something similar.

The company also agreed to make refunds available for some customers who paid under the earlier policy, and to pay $630,000 to the state AGs for their pains. New Hampshire and Vermont declined to join the action, with the head of consumer protection in New Hampshire explaining that there hadn't been complaints from his state's customers; New Jersey continues to pursue its own suit (see Mar. 10). (Michael D. Sorkin, "Blockbuster settles case over signs advertising no late fees", St. Louis Post-Dispatch, Mar. 30; Peter Lewis, "State settles Blockbuster late-fee allegations", Seattle Times, Mar. 30; "N.H. opts out of Blockbuster late fees settlement", Portsmouth Herald News, Mar. 31).

Gerardo N. Lara was convicted by a jury of first-degree murder in the stabbing of his wife, Marissa Lara. But the defense attorney saw one of the jurors buying a newspaper during the trial; at a mistrial hearing, the juror, Lindy L. Heaster, denied the purchase, but a videotape from the 7-11 proved otherwise, and the judge threw out the verdict. Heaster's been held in contempt for violating the court's orders to disregard press coverage and lying to the court, and could be socked with the costs of the trial.

While the juror certainly committed contempt and (from the news reports) seems to have committed perjury, I wonder if the mistrial remedy for the defendant is a bit extreme. The April 15 Washington Post Heaster bought had no coverage of the trial. And if Heaster read the April 15 Potomac News coverage of the trial, the only thing she learned was that an argument the defense wanted to make that the judge refused to tell the jury. Should the law recognize the potential for harmless error here? I've turned on comments; please keep discussion civil and limited to this topic. (Tara Young, "Indiscretion Gets Juror In Trouble", Washington Post, Apr. 22; Maria Hegstad, "Judge declares mistrial in Lara case", Potomac News, Apr. 21; Tara Young, "N.Va. Murder Conviction Erased by Juror Buying Newspaper", Potomac News, Apr. 21; Rob Seal, "Lara found guilty", Potomac News, Apr. 16). More discussion: Apr. 25 post.

Anna Ayala was arrested late last night, and San Jose police will hold a press conference at 1 this afternoon to announce charges--bad timing for Wendy's, since this means that the exoneration from a month of bad publicity from a finger supposedly found in its chili that has substantially hurt its sales in California and Las Vegas will take place in the Friday evening news cycle. Previous entries: Apr. 9 and Apr. 20.

A disappointed jury can be a dangerous thing. Just ask Jodi Hoos. Prosecuting a gang member in Peoria, Ill., for raping a teenager in a local park last year, Hoos told the jury, "You've all seen CSI. Well, this is your CSI moment. We have DNA." Specifically, investigators had matched saliva on the victim's breast to the defendant, who had denied touching her. The jury also had gripping testimony from the victim, an emergency-room nurse, and the responding officers. When the jury came back, however, the verdict was not guilty. Why? Unmoved by the DNA evidence, jurors felt police should have tested "debris" found in the victim to see if it matched soil from the park. "They said they knew from CSI that police could test for that sort of thing," Hoos said. "We had his DNA. We had his denial. It's ridiculous."

Television's diet of forensic fantasy "projects the image that all cases are solvable by highly technical science, and if you offer less than that, it is viewed as reasonable doubt," says Hoos's boss, Peoria State's Attorney Kevin Lyons. "The burden it places on us is overwhelming." Prosecutors have a name for the phenomenon: "the CSI effect."

On the other side of the coin, there are prosecutors who use junk science from quacks who claim to be using forensics, such as Sandra Anderson, who regularly faked evidence for her "forensic dog" business. (Kit R. Roane and Dan Morrison, US News & World Report, Apr. 25) (via Volokh and PrawfsBlawg).

Frightening decision in District of Columbia v. Beretta, U.S.A. today: the highest court in D.C. upheld the legality of a provision that allowed victims of gun violence to sue gun manufacturers for the misuse of their products. (The law in question applies only to "machine guns", but then defines "machine guns" to include semi-automatic weapons with large magazines.) As Professor Volokh notes, this has the effect of permitting the D.C. city council to regulate gun sales nationwide. The Cato Institute's Gene Healy and Robert A. Levy have written elsewhere that national litigation reform legislation to bar such gun lawsuits is a violation of federalism principles, but the Beretta case shows how misguided that position is: individual states (and, in the case of DC, a single city) can create liability regimes that affect interstate commerce nationally. Healy and Levy suggest that the remedy for businesses is to "withdraw from doing business in a state that has an oppressive tort regime" but that doesn't help gun manufacturers who don't do business in the District of Columbia to begin with.

Evan Schaeffer points us to the site of a Seattle attorney, J. Michael Gallagher, who uses prom-dressed legal assistants called "Gallagher's Gals" to attract clients. One would imagine that the family lawyer isn't worried about alienating half of his potential clientele since he's also the author of "She's Not Your Friend - A Man's Guide To Understanding Women." Two Seattle law school bloggers comment here and here.

There are ways, claims Mary Roach in the San Francisco Chronicle, channelling Walter Sobchak. ("Fingering the finger", Apr. 18 (via Romenesko)). "I would put good money on the digit hailing from someplace other than the hand of a meat or tomato or onion processor who works in a plant that processes ingredients for Wendy's. People who work in processing plants do not have long, well-groomed fingernails. Long nails are against the rules in these plants." Scott Herhold of the San Jose Mercury News is reminded of a 1987 hoax involving a finger that wasn't. ("1987 finger mystery just a lot of tripe", Apr. 17). Earlier entries: Apr. 9 and link therein.

"Where are the promised obesity lawsuits?" Evan Schaeffer asks, citing an April 18 Reuters story by Gail Appleman. (He miscredits Overlawyered with the prediction of particular timing, however; we simply quoted a Lawyers Weekly USA headline that in turn relied upon the public statements of plaintiffs' attorneys.)

Schaeffer goes on to suggest that the several states that have enacted laws protecting the fast-food industry have wasted their time. But of course the states that bar obesity lawsuits aren't seeing obesity lawsuits. The plaintiffs' bar bragged about how they used the media to change the playing field for tobacco litigation, and the fast-food industry stepped forward to prevent an instant replay, and won the public debate--thus discouraging many lawyers from spearheading these actions so far ahead of public opinion, especially when state law prevented recovery. But Richard Daynard, speaking at an AEI conference on the subject last month, certainly didn't sound like he was going to give up: "I think these cases in the long term may have viability." And John Banzhaf complained just yesterday that a 93% downward revision by the CDC of the estimated effects of obesity was a corporate conspiracy that wouldn't affect lawyers' plans for future lifestyle litigation. (Joyce Howard Price, "CDC says obesity deaths overestimated", Washington Times, Apr. 20). It's to the credit of the plaintiffs' bar that many recognize that the lifestyle litigators may have bitten off more than they can chew; one suspects that the true concern is that such litigation could create a backlash against the compensation culture that funds Trial Lawyers Inc.

There's a strange disconnect in Schaeffer's argument. He suggests that reformers are deliberately exaggerating the risk of lifestyle litigation to get legislation passed -- but what would be the motivation for achieving that goal if the risk is exaggerated? If the plaintiffs' bar is really opposed to lifestyle litigation, as Schaeffer suggests, why not score some cheap political points by supporting the legislation instead of fighting it so hard? A cynic might suggest that they're trying to keep the door open for copycat litigation in case the pioneers find a jurisdiction that will let the claims proceed. As it is, the Pelman decision (Jan. 27) will likely cost McDonald's shareholders millions of dollars in litigation costs.

Yesterday, I had the honor and pleasure of debating Professor Jonathan Turley on litigation reform issues at a Knight Center seminar on "Law and the Courts" in front of a few dozen journalists. Some of the topics we and the audience questioners touched upon all too briefly there merit follow-up in a forum where citations are easier.

Overlawyered posted on the drunk driving car window case we discussed.

In "The Myth of the Ford Pinto Case", 43 Rutgers L. Rev. 1013 (1991), Gary Schwartz demonstrates that the Pinto's safety record was comparable to other cars of the era, and that the Mother Jones prediction of hundreds of deaths was wildly off. This site's editor's articles, "It Didn't Start With Dateline NBC" and "Exposing the 'Experts' Behind the Sexy Exposés: How Networks Get Duped by Dubious Advocates" are both good reading for more on the Pinto legend and on the topic of lawyers' attempts to manipulate the media.

There appears to be a tradition that no litigation reform debate can be held without reference to the McDonald's coffee case. The fact that Professor Turley defends this verdict (and presumably teaches the same to his Torts students) shows that this ten-year-old case is still relevant. The much-better reasoned McMahon v. Bunn-O-Matic threw out a lawsuit with an identical theory of liability for third-degree coffee burns in one's lap. Professor Turley attacked the decision on the ad hominem grounds that Judge Easterbrook is conservative, but if that were so, one could presumably point to the part of the opinion infected by political bias, and I have yet to see anyone do so.

Professor Turley claims the urban legend of the lawsuit involving the guy who used a lawn mower as a hedge-clipper has infected the tort debate, but a Google search shows that the vast majority of references on the web to this story come from reprints of Turley's article on the subject. I'd like to see a source for Professor Turley's claim that this anecdote is taught in law schools; when I was in law school in 1992, the tale wasn't treated as anything other than an urban legend, as one Chicago 1L shared with the pre-blog Internet urban folklore group. One columnist who didn't fact-check before passing on e-mail glurge doth not a trend make.

There were a lot of questions about asbestos litigation; Jim Copland's short overview on the topic is a good starting place, with many links to more detailed analyses.

I disagree with Professor Turley's claim that medical malpractice rates would go down if there was "experience rating", mostly because it appears that the malpractice liability system in place today is sufficiently random that past claims are not a good predictor of future claims. (Raymond Lehmann, "Medical-Liability Debate Puts Rate-Setting Complexities Under Microscope", BestWire, Feb. 22 ($)). I've elsewhere commented sardonically on the claims that insurance industry incompetence is the reason behind the malpractice crisis.

Under Alabama law, if you've had too much to drink and decide to sleep it off in your parked car, officers can and do arrest you for DUI, no matter that the keys never left your pocket. A sheriff explains that, after all, the inebriate might wake up and decide to start up the car, so it's better to make an arrest (which carries a penalty for a first offense that includes loss of license) before that can happen ("Drunks Arrested For Parking Under the Influence", WAFF Huntsville, Apr. 13; Sheryl Marsh, Decatur Daily, Apr. 12) (via Balko who got it from DUIblog, who has more).

Donald Carroll says the Borgata casino in Atlantic City was too helpful in getting his credit reinstated. (Judy DeHaven, "Gambler says Borgata took him on limo ride back to debt", Newark Star-Ledger, Apr. 3). See Apr. 28, 2004 and links from there (& letter to the editor, May 10).

Kevin Brancato, a Ph.D. candidate at George Mason who heads the masthead at the economics blog Truck and Barter, also publishes a weblog entirely devoted to following the fortunes (policy and otherwise) of the Wal-Mart Corporation, by the name of AlwaysLowPrices.net (see our cites to it on Apr. 13, 2004 and Apr. 6, 2005). In contrast to the Wal-Mart-bashing line taken by so many other sites, Brancato frequently, though not invariably, rises to the defense of the company and the efficiencies of its way of doing business. This has done nothing to prevent Wal-Mart's lawyers from sending him a cease and desist letter ordering him to vacate the name and URL "AlwaysLowPrices", a phrase which is of course Wal-Mart's service mark. (T&B, Apr. 5). Kevin Heller at TechLawAdvisor (Apr. 6) doesn't think he stands much of a chance if Wal-Mart goes to court.

Getting more of a workout in Pennsylvania these days, what with neurosurgeons and trauma centers becoming scarcer outside the biggest cities (Reid Kanaley and Dawn Fallik, "Medevacs becoming more frequent fliers", Philadelphia Inquirer, Apr. 18).

By reader acclaim, from Canada:

A mountain biker who launched a million-dollar lawsuit after falling off his bike has lit a fire under Collingwood area bike enthusiasts who fear the suit will close their trails. James Leone is suing the Toronto Outing Club and its Kolapore Uplands Wilderness Ski Trails Committee as well as the Town of The Blue Mountains, the Grey-Bruce Trails Network and the province for an accident he had while mountain biking last August.

The 31-year-old personal injury lawyer from Toronto claims he suffered fractured vertebrae and several soft-tissue injuries when his bicycle came to an abrupt stop after hitting a hole in the trail, sending him over the handlebars.

A trail specialist with the International Mountain Bike Association, Laura Woolner, said the case could have an "enormous impact on non-profit clubs" because of the need to buy expensive insurance: "Essentially it could shut them down," she said. (Tracy McLaughlin, "Lawsuit a threat to trails", Toronto Sun, Apr. 17). Fark has a long, disrespectful thread. More: the hazards of mountain biking also figured in Ted's Mar. 29 entry.

Decline and Fall of Western Civilization (that's the name of the blog) on some antecedents of overzealous use of the courts (lower case in original):

it seems we are far from the first society to be so enthralled. china under the 17th c qing dynasty saw the rise of the songshi, the "litigation master", who was blamed for a massive litigation backlog that overwhelmed the system of adjudication and worked to undermine the classical and confucian principles of harmonious social behavior. (the songshi were ultimately proscribed in the 18th and 19th c.) the elizabethan pettifogger is another derisory example from an age that saw itself awash in trivial litigation.

"Gaius Marius", who writes the blog, has more on Confucius-influenced attitudes toward litigation as disharmonious and a breach of the social peace; the word songgun apparently translates from the Chinese as "litigation hooligan". All that plus a kind reference to this site as "invaluable" (Mar. 14).

"A man who bullied Eminem at school has been told he cannot sue the superstar over lyrics in which the rapper claimed he was almost killed by his schoolmate. A Michigan appeals court dismissed DeAngelo Bailey's legal action because most fans would not take Eminem's story of a vicious attack seriously." ("Eminem safe from bully's lawsuit", BBC, Apr. 16; Ben Schmitt, "Eminem's bully loses court appeal", Detroit Free Press, Apr. 16). More: opinion (PDF) courtesy ALP.

A federal judge ruled last month that the current state of intellectual property law does not necessarily preclude Bikram Choudhury's claim to copyright over a particular sequence of yoga postures; litigation continues in the case (see Feb. 9, 2004). ("Yoga Is Focus in Groundbreaking Copyright Case", PrimeZone/Linux Insider, Apr. 9). The Seattle Times ("Download", Apr. 4) notes that Choudhury's adversaries, a group of yoga instructors calling themselves Open Source Yoga Unity (OSYU), say they have banded together to fight the "litigious position of Bikram Choudhury": "Hmmm, you have to wonder what that position might look like in the studio."

A group of volunteer parents and teens built the Uncle Bud Skate Park in downtown Marshfield, Massachusetts over the last five years, but the state Office on Disability is threatening to order the park closed to the public because the park does not meet accessibility requirements. (The park does contain an ampitheater, so it's not just an issue of accommodating disabled roller-bladers.) So far Public Works Superintendent R. Jeb DeLoach has responded in Harrison Bergeron fashion, by removing a bench and a portable toilet that was not handicapped accessible. (Needless to say, this does not make the park any friendlier to the handicapped, but rather makes it equally unfriendly to the non-disabled.) There's still an issue because only one of the three entrances to the park is accessible; compliance costs for this and other violations will raise the cost of the park 25%. (Shamus McGillicuddy, Patriot-Ledger, Apr. 12) (via Newman, who asks, "[I]f you hated the handicapped and wanted to hatch a plot that would cause children and their families to resent them, could you really do better than this?"). For the tale of the wheelchair ramp in the mountains, see Jul. 9, 2003.

On Apr. 7 I wrote (prematurely as it turned out) that the Illinois legislature had killed two bills which would have encouraged lawsuits against gun manufacturers and dealers, the bills having been defeated in the Judiciary committee of the Illinois Senate. Sought by Chicago Mayor Richard Daley, the bills were aimed in part at reviving his litigation against gun dealers and manufacturers, which had been thrown out by the state Supreme Court. However, Daley's allies in the legislature hastily got a different committee in the state's upper house, the Executive Committee, which is more heavily dominated by members from Chicago, to give its narrow approval to the measures in order to bring them to the floor (Brian Mackey, "Gun-control measures approved", Copley/Peoria Journal-Star, Apr. 14). To no avail: the full Senate defeated both measures Thursday night by 24-31 votes. (John O'Connor, "Gun bills fail to pass Senate", AP/Bloomington Pantagraph, Apr. 15).

92-year-old Rosa Parks "has dementia and is only faintly aware of what is happening around her," but that didn't stop lawyers from filing a $5 billion lawsuit on her behalf against the music companies that permitted the music group OutKast to release a song with the title "Rosa Parks." (Jan. 17). The case has settled with the promise of a CD and a television tribute to her, featuring her guardian, Dennis Archer, as host. No conflicts of interest there. I couldn't find any press coverage indicating how much Parks's current lawyer, Willie Gary (Oct. 14, Aug. 13, 2003, earlier links), was paid in the process; Archer refused to discuss financial terms. (Peter Slevin, "Settlement Commits Music Producers to Honor Rosa Parks", Washington Post, Apr. 15). The Sixth Circuit held that the rappers did not have a first amendment right to name their song "Rosa Parks" because they could have called it "Back of the Bus" rather than use an allusive title. One looks forward to more federal court diktats over song titles. (Parks v. LaFace Records (6th Cir. 2003) (argued by the late Johnnie Cochran)). (And welcome Slate readers: check out the main page.)

Now here's a post I wish I'd written: John Steele of the excellent new Legal Ethics Forum blog contrasts the attitude toward lawyers' advertising of the highly dignified Henry S. Drinker of Philadelphia, author of the 1950s standard textbook Legal Ethics, with that of Jim "The Hammer" Shapiro, who starred in many manic TV ads to promote his ethically troubled and now-defunct Rochester personal injury practice (see Jun. 17-18, 2002, Dec. 5, 2003, and May 24, 2004). One big difference: Drinker would probably never have promised TV viewers to "rip out the hearts of [the defendants]" and "hand you their severed heads." (Feb. 22, linking to this page on Rochester TV ads).

Continuing juvenile humor litigation day at Overlawyered: "We were very nearly sued out of existence by Janet Jackson," said former Onion editor-in-chief Robert Siegel, thanks to a story headlined "Dying 13-Year-Old Gets His Wish, Will Pork Janet Jackson." (Samara Kalk Derby, "Jackson almost killed Onion, editor reveals", The Capital Times, Apr. 12) (via Romenesko).

That's the monicker of a World Wrestling Federation star turned conservative political commentator; he has a Director of Communications who sends nastygrams that certainly go further than your garden-variety nastygram (Something Awful, Apr. 11, see especially second and third pages).

The New York State Commission on Judicial Conduct has censured Acting Supreme Court Justice Diane A. Lebedeff "for presiding over a case in which she had a 'significant social and professional relationship' with the plaintiff, attorney Ravi Batra". The case in question was none other than the one described in our Nov. 11, 2003 entry, in which Batra, a noted judicial kingmaker in city politics, was demanding $80 million in damages for a fall off a swivel chair in his office, eventually settling with the furniture store for $225,000. Reports the New York Law Journal:

One of the aggravating factors the commission's unanimous decision pointed to was that during the five years Lebedeff handled Batra's case, she excused the defense lawyers on approximately five occasions, saying she wanted to "engage in 'gossip' or other social conversation not related to the case, with Mr. Batra."

...Batra said, "The fact that the judge and I were friendly is a stipulated fact in the determination and was contemporaneously known to defense counsel, who never objected."

An attorney with Gair, Gair, Conason, Steigman & Mackauf, representing the judge, "said that Lebedeff accepts the censure because she recognizes that there was an appearance of impropriety. He stressed, however, that there was no claim that any of her actions were improper." (Daniel Wise, "Presiding Over Friend's Trial Results in Censure", New York Law Journal, Apr. 11). Norm Pattis (Apr. 12) finds defense mistakes in part to blame.

In far-famed Madison County, Ill., 40-year-old Rhonda Nichols is suing the Lowe's Home Center in Alton, saying she was seriously injured when a bird flew into her head at the outside gardening area. She wants more than $50,000:

According to the suit, filed by the St. Louis firm of Anderson & Associates, the store "allowed wild birds to enter the Gardening area in which customers travel ... (and) that said wild birds created a dangerous condition."

Nichols claims the bird caused injuries to her head, brain, neck, muscles, bones, nerves, discs, ligaments, as well leading to the loss of neurological functions and cognitive skills.

...The suit said the incident occurred "on or about April 15, 2003." Bobbi Rose, an assistant manager at Lowe's, said the store had no record of any human-bird collisions on that date.

(Paul Hampel, "Woman sues store, claims she was attacked by bird", St. Louis Post-Dispatch, Apr. 13). Update Feb. 12: federal judge throws out suit.

Due in part to expansions of copyright law lobbied for by Disney and other giants, a huge volume of writing, art and music which would otherwise by now have entered the public domain is still under copyright, even though the rights to much of it -- things like picture postcards, ephemeral commercial illustration and sheet music issued by long-defunct publishers or with no identifying marks at all -- cannot be traced to any particular current successor-owner even by good faith efforts. Per Wired News:

According to comments submitted to the copyright office, one married couple couldn't get a wedding photograph repaired: The photography shop would not scan and reprint the photo because it was taken by a professional and the shop was afraid of violating copyright, even though the photographer was out of business.

"For heaven's sake, this is a photograph of me and my wife, and I can't have it legally repaired!!! Wrong, wrong, wrong!" wrote William Haynes.

(Katie Dean, "Copyright Reform to Free Orphans?", Apr. 12).

With comptroller Alan Hevesi in charge, the state of New York acted as lead plaintiff (via the New York State Common Retirement Fund) in the WorldCom securities case, but according to Forbes, the large settlement that resulted may not have been such a great deal for Hevesi's client:

"Judging by a plaintiff expert's own estimate of shareholder losses, New York's claim of a $317 million hit would entitle it to 1.1% of the kitty, or a mere $11 million .... Hevesi's suit cost New York's pension fund by deflating the value of its investments in the banks it sued. The Hevesi fund owns stakes in J.P. Morgan, Citigroup and BofA. These three banks took aftertax charges totaling $3.2 billion for WorldCom settlement costs. The fund's pro rata share of these losses, and those of smaller-fry defendants, totes up to $13 million."

(Neil Weinberg, "Cui bono?", Forbes, Apr. 25).

Hevesi's campaign ties to the private lawyers who file these suits, which have come under scrutiny before (see May 14 and Dec. 10, 2004) are again a topic of criticism in parts of the press. Lyle Roberts of 10b-5 Daily (Apr. 13) rounds up the links, including a New York Sun editorial ("Hevesi by the letter", Apr. 12).

She's dropping her plan to sue the fast-food chain, following all the skeptical attention (AP/CNN, Apr. 13)(see Apr. 8, Apr. 9). And the Recorder of San Francisco (Justin Scheck, Mar. 31) has a roundup of icky foreign objects found, or claimed to have been found, in food.

A 63-year-old West Texas woman has won an age-discrimination suit against a company run by an entrepreneur who is 72.

On Friday, a Dallas jury awarded Garlan Cunningham of Ranger more than $965,000 for lost wages, mental anguish and punitive damages after being derided as an "old nag," a possible Alzheimer's victim and an "old fart," her attorneys said Monday.

Cunningham said Doris Richeson, a septuagenarian herself, organized the campaign of ridicule, which included an email referring to Cunningham as a lazy cowhand who'd been "in the saddle too long". The company of which Richeson is founder and chairman operates 49 Dairy Queens in Texas; it denies Cunningham's allegations and says it plans appeal. (Barry Shlachter, "Texas woman wins discrimination suit", Fort Worth Star-Telegram, Apr. 12).

The Manhattan Institute Center for Legal Policy (with which I'm affiliated) this week unveils a "new comprehensive study of the devastating impact of California's lawsuit industry" entitled "Trial Lawyers Inc.: California". It builds on 2003's much talked-about "Trial Lawyers Inc." report and, like that one, has been assembled by Jim Copland of the Institute.

Tomorrow (Apr. 14) from 10 to 2 at the St. Francis Hotel in San Francisco, the Manhattan Institute and the Pacific Research Institute are sponsoring an event (details) to call attention to the new report. Panelists include Jim Copland, Steven Hantler of DaimlerChrysler, and John Sullivan of the Civil Justice Association of California; there follows a keynote luncheon speech by author/TV host Catherine Crier, introduced by PRI's Sally Pipes. P.S. The study has now been posted on the web, and is here. And Jim has an op-ed in the San Francisco Examiner (Apr. 13).

(cross-posted at Point of Law)

Meals-on-wheels officials in Gloucestershire were preparing to distribute to elderly clients paper napkins printed with tips on how to avoid being a crime victim, but paused the initiative after being warned that no safety assessment had been made of the possible choking hazard should pensioners insert the napkins into their mouths; the distribution eventually went forward, but critics said the episode encouraged the portrayal of aged persons as senile (Martin Wainwright, "No napkins ... elderly might eat them", The Guardian, Apr. 13). The Royal Chesterfield hospital is locked in a longstanding battle with claims-chasers who prowl its accident and emergency facilities promoting no-win, no-fee legal practices. Said a spokesman: "They have been approaching patients, asking them how they came about their injuries, was it their fault and if they want to sue. We have had several complaints from patients. These people are also handing out official-looking leaflets with an NHS-type logo which makes it look as if the hospital is endorsing their actions." (Nick Britten, "Hospital lawyers target 'ambulance chasers'", Daily Telegraph, Apr. 14). Until recently a number of Scottish prisons provided inmates with chamberpots rather than in-cell toilets for overnight use; the practice has now been ruled a human rights violation and taxpayers are on the hook for compensation claims that some see rising as high as £100 million. (Hamish MacDonell and John Robertson, "Slopping-out prisoners 'to sue for £100m'", The Scotsman, Feb. 11; Kirsty Scott, "Slopping out judged a breach of human rights", The Guardian, Apr. 27, 2004). And the newsletter of the Association of Lloyd's Members, serving participants in the venerable London insurance market, will be reprinting with credit occasional items from this website (after having asked our permission, which we were happy to grant).

Neither "pro-choice" nor "pro-life" advocates are being especially consistent about upholding it, notes Steve Chapman ("The Right to Choose or The Power to Compel?", Chicago Tribune/Real Clear Politics, Apr. 7). More: see Apr. 28.

It's among supporters of federal legislation to protect the firearms industry from abusive litigation, as are less surprising counterparts on the business side such as the National Association of Manufacturers, U.S. Chamber of Commerce and National Association of Wholesaler-Distributors. (UMWA letter at National Shooting Sports Federation site (PDF), with other statements of labor support as addendum; Mar. 15 House testimony of NSSF's Lawrence Keane).

We've just added four more entries to our stack of reader correspondence, which constitutes its own page with a blog-like format. Among topics this time are high-speed cop chases; a reader asks equal time to bash defense lawyers; step right up and grab your class action prizes, advises a garish GoogleAd; and a family's pipe and valve distribution business gets caught in the asbestos-litigation snare.

A check for 49 cents arrives in the mail, in settlement of a class action against Bank of America. A staff writer for the L.A. Times starts digging and finds that the lawyers who filed the suit are going to swallow half the $4.2 million settlement. As for residual unclaimed funds, they're going to a charity, but one the parties are unwilling to name. (Doug Smith, Los Angeles Times, Apr. 11). On the Schwartz v. Citibank class action, filed by the same lawyer (Brian Strange) and involving the same issues, see our coverage of Dec. 14, 2003 (letter to the editor), Jan. 10 and Jan. 16, 2004.

From a report on an Apr. 5 Phoenix symposium on health care sponsored by Arizona State University: "[Former Sen. and vice presidential candidate John] Edwards, once a highly successful plaintiff's personal-injury lawyer, also pointed to lawyers as a problem. They need to be held accountable for frivolous lawsuits that help drive up the cost of malpractice insurance." (Jodie Snyder, "Ex-senator urging changes in U.S. health care system", Arizona Republic, Apr. 6).

Greg Sizemore (Mar. 21) and Ron Coleman (Apr. 7 -- and see comments on both posts) have some thoughts on the question of whether Major League Baseball or its players can legally block fans and fantasy sports leagues from making commercial use of player statistics. Update: May 22, 2006.

In Rochester there's a food fight going on in court over a dubious local culinary specialty, the "Garbage Plate", which consists per AP of "a heaping platter of hot dogs or hamburger, home fries, macaroni salad and baked beans smothered in a meaty hot sauce". Nick Tahou's restaurant has held a registered trademark to the Depression-era dish since 1992 and may fear, like the promoter of the breakfast health food in the Saki story, losing its market supremacy once rivals introduce yet more unpalatable-sounding concoctions. Copycat platters sold by other Rochester restaurants include Messy Plate, Sloppy Plate, Dog Dish and Plat du Refuse. (Ben Dobbin, "In Rochester food fight, 'Garbage Plate' takes on 'Plat du Refuse'", AP/Buffalo News, Apr. 9).

Another story repeating what Overlawyered readers know well. (Christopher Snowbeck, Pittsburgh Post-Gazette, Apr. 11)

The feds want unprecedented authority to snoop into them, but say it's only to combat money laundering and terrorist finance -- for now, at least. They've been tightening the screws on banks that aren't forthcoming enough in reporting cash transfers deemed suspicious: "Some smaller community banks have sold out to larger companies for fear of increased liability, banking officials say, and banks have dropped some money-transmittal businesses that do significant business overseas because of the risk. Some executives, meanwhile, are steering away from serving on bank boards, concerned that they will be hit with punitive measures, banking industry officials say." But the regulations do not seem especially promising in blocking money transfers intended to abet terrorism, most of which are smallish in size or otherwise not facially suspicious. (Eric Lichtblau, "U.S. Seeks Access to Bank Records to Deter Terror", New York Times, Apr. 10). For more, see my Reason column for Mar. 1999.

When one uses a Wal-Mart gift card for a purchase of less than the amount of the gift card, the remainder remains on the gift card for use in future purchases. This wasn't enough for Ashley Peach, who used two $10 gift cards to buy $18.61 worth of stuff at Wal-Mart, and was upset that she wasn't given $1.39 in cash as change. So she's suing, demanding punitive damages, and seeking class action status in Madison County. Her lawyers: the Lakin Law Firm. Having found gift cards such a traumatic experience, you'd think Peach would avoid them, but she has two essentially identical suits pending against K-Mart and Fashion Bug for similar misunderstandings. (Steve Gonzalez, "$1.39? Wal-Mart next in line for Peach", Madison County Record, Nov . 7).

The Peach family are frequent Madison County litigants, with at least five suits going in the system, including a very strange suit against Granite City, where Armettia Peach paid $68,900 (including $20,000 in cash) for a house she had never seen, sued Granite City and some bystanders for allegedly failing to inspect a leaky roof, sold the house for $40,000 to a LLC that then sold it to Granite City's mayor's sister-in-law for $57,000--and then received a $104,000 default judgment from Granite City (including $26,000 in legal fees to the Lakin Law Firm), when the town failed to respond to the complaint. Something fishy is going on here, but one doesn't know what, and whether Granite City officials are victims or participants in something sinister. (Steve Korris, "Plaintiff Peach awarded windfall judgment against Granite City", Madison County Record, Mar. 31; Steve Korris, "Anatomy of Peach v. Granite City", Madison County Record, Mar. 31; Steve Korris, "Home repairman gets trapped in legal web", Madison County Record, Mar. 31).

The aim of proposals before the Senate Finance Committee may be to crack down on financial abuses by some charitable entities, but the result could be to impose onerous regulatory burdens on the good and bad alike. (Heather Higgins, "Death by Bureaucracy", OpinionJournal/WSJ, Apr. 10).

Last year (see May 19) Jack Henneman of TigerHawk discussed the "apology privilege" for doctors that is under debate in a number of states (which would shield physicians from having apologies to patients used as evidence against them in court), and suggested that it might make sense to apply the principle to everyone, not just doctors. Now he's got some further thoughts and a concrete proposal (Apr. 9).

Smuckers' patent no. 6,004,596, which attempted to claim, inter alia:

A sealed crustless sandwich, comprising:

a first bread layer having a first perimeter surface coplanar to a contact surface;

at least one filling of an edible food juxtaposed to said contact surface;

a second bread layer juxtaposed to said at least one filling opposite of said first bread layer, wherein said second bread layer includes a second perimeter surface similar to said first perimeter surface;

a crimped edge directly between said first perimeter surface and said second perimeter surface for sealing said at least one filling between said first bread layer and said second bread layer;

wherein a crust portion of said first bread layer and said second bread layer has been removed.

was rejected by the Federal Circuit this week. Dennis Crouch has details in a series of three posts sufficiently comprehensive that it would be redundant for me to comment further. (Earlier posts: Jan. 30 and May 1, 2001). More: May 31.

The mystery of the San Jose Wendy's chili finger deepens, as police execute a search warrant for Anna Ayala's Las Vegas home, and Ayala claims new litigable injuries from the search. The local newspaper has four different reporters investigating. (Alan Gathright, Dave Murphy, Maria Alicia Gaura, "Police search home of woman who found finger", SF Chronicle, Apr. 8; Ryan Kim, Dave Murphy and Alan Gathright, "Finger-finder has history of legal battles", SF Chronicle, Apr. 9; "Woman Who Found Finger In Chili May Sue", Good Morning America, Mar. 28). Earlier entry: Apr. 8. See also the Snopes page on the Pepsi-can syringes of 1993.

Remarkably, the media coverage never suggested that some skepticism might be warranted regarding a finding of a finger in chili until the execution of a search warrant seventeen days later. The media was similarly suckered by the tale of a juice bottle supposedly containing a human penis back in 2001.

Bad ideas from the U.S. hit Canada ten years later dept.: two Canadian provinces are seeking to replicate the success of state attorneys general in the U.S. and scoop up large amounts of money from tobacco companies through lawsuits without the bother of raising taxes. British Columbia's legislature followed the lead of several U.S. states (Florida, Maryland and Vermont) and enacted an explicitly retroactive "we win, you lose" statute undercutting tobacco companies' defenses against cost recoupment. Now Manitoba has joined in, its decision announced by Theresa Oswald, who bears the scary title of Healthy Living Minister. ("Manitoba to back B.C. in tobacco case", CBC, Feb. 25)(B.C. law).

Back in the news again, with the president of the AMA saying malpractice-suit fears are the reason obstetricians veto videotaping (AP/WTSP, Apr. 5). See Oct. 18, 2000.

"The woman who claims she bit into a human finger while eating chili at a Wendy's restaurant has a history of filing lawsuits – including a claim against another fast-food restaurant in Nevada." (Ken Ritter, "Woman who claimed to find finger at Wendy's has litigious history", AP/San Diego Union-Tribune, Apr. 8)(via Malkin)

Tomorrow (Friday, Apr. 8) I'm scheduled to participate in a panel discussion on medical malpractice at Chicago's Union League Club, sponsored by various units of the University of Illinois (law school, medical school, Institute for Government and Public Affairs). And on Apr. 20 I'll be giving a luncheon speech in Orlando to the Federalist Society Lawyers chapter there, on the themes of my most recent book The Rule of Lawyers. (Updated Apr. 9 to add Illinois web link and remove mention of a third appearance now likely to be canceled).

To book either Ted or me for speaking engagements, by the way, just send us email at the addresses indicated in the right-hand column.

A Kent State student resold unopened Microsoft software at a profit, the giant company sued him, and things just spiraled from there. The two sides have settled now, though. (Denise Grollmus, "Kill Bill", Cleveland Scene, Mar. 30).

Legislation is once again moving through Congress to pre-empt lawsuits which seek to saddle the manufacturers and lawful sellers of guns with the costs of crime. At the request of supporters of H.R. 800, the Protection of Lawful Commerce in Arms Act, I wrote a letter to the House Judiciary Committee explaining why such a bill is warranted now more than ever (longtime readers may recall that I testified on the Hill two years ago in favor of the measure). The new letter is here. (More: Mar. 15 hearings; chairman's opening statement.)

Also, the Illinois legislature has soundly defeated efforts, backed by Chicago Mayor Daley and pro-gun-litigation groups, to alter state law so as to encourage lawsuits against gun dealers ("More Daley-backed gun bills go down in Senate committee", AP/KWQC, Mar. 15; "House rejects measure to let victims sue gun dealers", AP/KWQC, Apr. 6). (Update Apr. 16: backers revive measures, but they are defeated on floor of Ill. Senate). And David Hardy of the extremely promising-looking new blawg Arms and the Law finds that when law reviews present a viewpoint one-sidedly hostile to the right of individual gun ownership, it's sometimes owing to the careful spadework of a generous outfit called the Joyce Foundation (Apr. 3)(further controversy on last point: here and here).

The concept of appellation controlee, along with an accompanying high-stakes lawsuit, hits the world of traditional British pork pies. (Raffi Melkonian, Crescat Sententia, Aug. 5, 2004).

San Francisco politicos have promised to soften some of the most speech-chilling aspects of draft legislation (see Apr. 3), but Eugene Volokh (Apr. 5) takes a close look and still finds plenty to worry about (& update May 20: plan dropped.

...complains the LA Times' David Shaw, who is surprised to find that most restaurants won't serve him a hamburger cooked rare, or even medium-rare. With a little research, he finds that nothing in California law prohibits serving a burger rare if a customer asks for it, but he's bound to be disappointed when he discovers that that's not the cause: the chefs aren't obeying a bureaucrat's nanny-state directive, but orders from corporate headquarters to avoid lawsuits from customers who exercise their choice and complain later.

Earlier burger coverage: Sep. 30 and links therein.

I find these letters depressing. These are the kind of letters that cause people to hate lawyers.

Notice of the problem and the trademark holders’ intent to file a claim are required by the [Anticybersquatting Consumer Protection Act], but the tone of these letters is not. Instead of nicely explaining what the law is, what the goal is and how appreciative the trademark holder would be if the domain name holder was courteous enough to transfer the name as requested, these letters bombard the recipients with legal jargon and serious threats without context or explanation. ...

When I have a client on either side of the cybersquatting scenario, I urge starting with the polite request approach. Usually, I can succeed that way through some polite explanation of the law over the phone and a little patience. That approach also costs my clients less that either court or arbitration would since both of those require filing fees and lengthy legal briefs. More importantly, solving disputes through discussion makes me feel good and helps me prove that, at least occasionally, lawyers can act like human beings and make someone’s day instead of ruining it.

(Judith Silver, Cybersquatting Ain't What It Used To Be).

Where you might see a store that offers lower prices than its competition, this site sees a goldmine:

Imagine that you are a Wal-Mart customer. You first park your car and walk through the parking lot, onto the sidewalk, and through the front doors. Looking at the listing of cases you can see there have been lawsuits involving each of these activities; for example, customers have been injured by automatic doors. Now continue shopping. As you proceed down the aisle way all manner of injuries can occur, notably slipping and falling on wet substances (including products) on the floor. Next, consider the fact that thousands of customers are injured each year by falling merchandise. As you, the imaginary shopper, continue you may encounter falling shelves, chairs or benches that collapse, falling signs, and injuries caused by Wal-Mart employees pushing carts or pallets. Continue to pretend you are a shopper and you can visualize situations where Wal-Mart security personnel falsely accuse you of theft. Finally, you may have an unhappy experience with the items you purchased, including mis-filled prescriptions from a Wal-Mart pharmacy, or defective goods such as toys or electrical appliances.

The attorney, Lewis Laska, will sell you for $135 a packet of materials dealing with lawsuits against Wal-Mart for "Parking Lots- Uneven Surface and Protrusions." And do you think it's just reformers who refer to the "litigation lottery"? Laska is the proud author of "How Trial Lawyers Win Jackpot Verdicts in Medical Malpractice Cases," which unfortunately does not exist beyond the title page is not currently on the web, though Google has a cache that merits its own post.

Addendum: Alas, when researching this post, I looked up Laska in our archives, rather than the web-page title, and missed Walter's post of Jul. 7, 2000, which noted the "Pallets or Dollies Left in Aisle Ways (12 items, $100)" "Shopping Carts - Overloaded (4 items, $45)", and "Restrooms - Water on Floor (3 items, $40)" items on the price list. Kevin Brancato writes us to say his blog about (but not affiliated with) Wal-Mart covered this Mar. 23.

A reader writes requesting my opinion of the Terri Schiavo case. For what it's worth, I find Jacob Sullum's and Glenn Reynolds' analyses of the case (and, specifically, the issue of federal intervention) to be generally persuasive. For factual background on the case, the place to start is Matt Conigliaro's.

Comprehensive and damning coverage in the March American Lawyer by reporter Alison Frankel, who terms the annals of the diet-drug litigation a "veritable catalogue of ignominy":

Law firms allegedly attempting to fleece a lawyer-built victims trust fund. Doctors working for contingency fees, filing questionable supporting reports. Corporate executives, facing the prospect of ruin, hurling money at claimants. The fen-phen class action approved in 2000 was supposed to be a new paradigm of how to resolve a mass tort equitably. Instead the iron law of unintended consequences has ruled. Misconduct has not been punished, but rewarded. Some uninjured people have been paid to go away while thousands of claimants alleging real injuries still wait for compensation.

Lawyer advertising and generous settlement standards drew claimants "like ants to a picnic", and some law firms figured out how to game the system by arranging echocardiograms that would diagnose supposed heart troubles in entirely uninjured patients: "in one horrifying case, a patient whose condition was overstated for the sake of obtaining payment through the trust ended up having unnecessary heart valve replacement surgery." Frankel quotes Michael Fishbein, a plaintiff's attorney who helped negotiate the initial settlement:

"...We all believed it would be done in an honest way, that doctors would not endanger the health of their patients by making phony diagnoses."

Says Fishbein: "I guess we were naive."

Also see Jim Copland, Point of Law, Mar. 1. We've covered the fen-phen saga extensively, and nearly nine years ago I was sounding the alarm about the medical dangers that arise from litigation-driven diagnoses.

The mushrooming "legal finance" industry offers to advance injury claimants cash on the barrel, to be repaid only if their suits are successful. Some firms have charged effective interest rates exceeding 100 percent a year, but the business generally operates beyond the reach of moneylending laws and has mostly escaped the sort of hostile attention that has been directed at say, the payday loan industry and its alleged "predatory lending". That may be changing, however. New York Attorney General Eliot Spitzer (who says he gets only unflattering attention in this space?) has reached settlements calling for clearer disclosure of fees from at least ten litigation-cash-advance firms, including one based in New Jersey which billed a client $19,000 for a cash advance of $3,000 two and a half years earlier, later accepting a smaller sum. (Joseph P. Fried, "Waiting To Settle a Lawsuit? Beware of Cash Advances", New York Times, Apr. 4). For a glimpse of how the business sometimes works, see Barbara Ross, "Costly trip for Zongo family", New York Daily News, Feb. 14.

More: Financial Rounds (Apr. 5) points out that we shouldn't assume the legal finance company is actually pocketing an extraordinarily high overall return on its cash advances since in cases where client/plaintiffs obtain neither a verdict nor a settlement it will lose the money. Fair enough; but once again suggestive of the near-parallel with subprime lenders, many of which also must write off a nontrivial share of debt holdings as uncollectable. Do legal finance companies (which of course can screen for case "collateral" based on quality) in fact suffer a rate of nonpayment that much exceeds that of so-called predatory lenders? It would be interesting to find out.

The Wyoming injury lawyer is known for his extended rants on the theme of the People versus the Interests, which makes it piquant to see his name turn up so prominently among exploiters of a federal tax provision intended to benefit the needy, in this case -- through his Trial Lawyers College -- allowing him to maintain his control over a spectacular 220-acre ranch while dodging the taxman. ABC News has the details (Jake Tapper and Avery Miller, "Wealthy Cash In on Charity Tax Loophole", Mar. 24). Trial lawyer/blogger Mike Cernovich, a satisfied customer of Spence's seminar operation, praised it here, while his co-blogger Norm Pattis more recently noted the tax-avoidance story.

A New Jersey appellate panel, split 2-1, has ruled that parents can't sign a legally binding waiver of their kids' right to sue a skateboard park for injuries. And kids can't sign such a waiver either. If the result is that one or another recreational activity just isn't offered to kids at all, well, tough noogies. Appeal is likely, but for now the message is: your family's right to sue is far too important to let you decide whether to give it away. And quit that muttering about "choice", bud; we're making the choices around here. (Henry Gottlieb, "Parents Can't Waive Child's Right to Sue for Skateboard Park Injuries", New Jersey Law Journal, Mar. 24). For more on kids' recreation, follow these links as well as the many newer links on our personal responsibility page.

A jury didn't buy Desiree Goodwin's race and gender complaint against the university, one of whose themes had been that she had been regarded as too "pretty" or "sexy" for the job. (AP/San Francisco Chronicle, Apr. 4; see Apr. 1).

Because of a misprinted number in a New York Daily News circulation-boosting game called Scratch n' Match, hundreds of people thought they'd won the top $100,000 prize. The rules printed on the back of each ticket specify that there is to be no liability "in the event of printing, production or other error", but Queens attorney Steven Gildin says the News can't "cower behind fine print": "Thousands of people thought they had their shot at the American dream". And now, to give them that shot, he and other lawyers are preparing lawsuits. "A lot of people keep their hopes alive on these lotteries," said one of Gildin's law partners referring, it would seem from context, to the scratch-off tickets rather than the courtroom filings. (Clyde Haberman, "American Dreaming? Take a Number", New York Times, Apr. 1).

That's NBC's Brian Williams, describing last week's Supreme Court opinion making it easier to file age-bias suits. If this claim makes any sense at all, it's only by ignoring the possible unintended or second-order effects of litigation. Mickey Kaus explains (no permalinks, scroll to Mar. 31 entry).

Suits against cruise lines by passengers who get sick on board are bringing the courts quite a bit of business at the moment, but the lawsuit against Holland America Line by 81-year-old Bernice Oltman and her son, Jack Oltman, goes further. "The Oltmans said they suffered from a gastrointestinal illness, and also saw crew members eating directly from buffet platters. 'During the scheduled stop in Ecuador, Jack Oltman noticed some crew members openly associating with prostitutes,' the lawsuit said." (There was an overflowed toilet, too.) "The Oltmans said they expected to be compensated by Holland America for pain and suffering, emotional distress, loss of earnings, legal fees and medical expenses, including a colonoscopy and hemorrhoid surgery, the lawsuit said." ("Cruise Line Sued for 'Unsanitary' Cruise", Reuters, Apr. 1). "Scandalous" pleadings, as described in legal authorities such as Federal Rule of Civil Procedure 12, include those which serve to heap disrepute on the opponent without advancing any colorable claim; presumably the Oltmans' attorney is prepared to demonstrate a convincing link between the alleged tarts and the alleged torts.

The San Francisco Board of Supervisors will vote April 5 on a proposed campaign finance regulation that would define "electioneering communication" to include weblogs that receive more than 500 hits from San Francisco voters. There would be a disclosure requirement (that must be made in a 14-point typeface) and potential reporting requirements. (via Southern California Law Blog and Personal Democracy Forum).

This new organization, among other functions, serves as a clearinghouse for the latest information about litigation reform efforts around the country; its site has updates on the recent progress of such legislation in Missouri, South Carolina, Florida and elsewhere. The AJP also recently produced an audio feature (downloadable/streamable) in which three of us (myself, Steven B. Hantler of the DaimlerChrysler Corp., and Fox News commentator Judge Andrew Napolitano) discuss the topic, specifically from the standpoint of: what can a business person do to make a difference? If you're interested in the ongoing battle over litigation reform, you'll want to spend some time checking out the whole site.

A San Diego mother is suing the makers of such cereals as Trix, Cocoa Puffs and Froot Loops "seeking class-action status for all consumers in the state who bought the low-sugar cereals thinking they were healthier than full-sugar versions." The manufacturers, her suit alleges, substitute other refined carbohydrates for the missing sugar, leaving calorie count and nutritional value little changed. ("Mother sues cereal makers over 'lower-sugar' slogan", AP/Pasadena Star-News, Mar. 28; Greg Moran, "Mother sues over cereal nutrition", AP/San Diego Union-Tribune, Mar. 29; "Mother sues over 'deceiving' cereal labels", ABCNews.com, Mar. 30). Among those who wonder why she couldn't have looked more closely at the nutrition label in the first place: Christine Hurt, GeoBandy, and commenters at DrudgeRetort. See also Mr. Sun.

Reason #45,219 for college presidents to zip their lips on a wide variety of controversial topics: their comments may be thrown back at the university in court. "In court documents filed recently in support of her lawsuit, Goodwin [Desiree Goodwin, the "too pretty" librarian whose widely publicized bias suit against the university is now at trial] cites controversial remarks made by Harvard President Lawrence Summers in January, when he suggested at an academic conference that intrinsic differences in ability are a key reason why fewer women are in the applicant pool for jobs at the highest levels of science." ("'Sexy' library worker pursues discrimination case against Harvard", AP/Boston Herald, Mar. 21; see Red State Law Blog, Mar. 22). For more on the lawsuit, see Nina L. Vizcarrondo, "Testimony Begins in Worker's Lawsuit", Harvard Crimson, Mar. 23; more news links.

Paging Sally Satel: Acting New Jersey Gov. Richard J. Codey last week signed into law legislation requiring doctors to receive so-called cultural competency training as a condition of obtaining or renewing their licenses to practice medicine. The measure is apparently the first of its kind, but advocates are pushing similar measures in other states as well. (Shawn Rhea, Camden Courier-Post, Mar. 24). Background: Sally Satel and Jonathan Klick, "Don't Despair Over Disparities", Weekly Standard, Mar. 1, 2004, reprinted at Satel's site.