Under the Civil Rights Attorney's Fees Award Act of 1976, plaintiffs collect fees if they win even in part, but pay no fees if they lose. That puts a bludgeon in the hands of objectors in church-state lawsuits (as well as in many other kinds of lawsuits characterized as being about civil rights). Rep. John Hostettler of Indiana has introduced the Public Expression of Religion Act, a bill that would attempt to level the playing field as regards claims of religion-related civil rights violations by public officials. It would do so, however, by eliminating fee entitlements entirely; that would indeed deprive long-shot suits of much of their in terrorem effect, but at the cost of undercutting valid claims brought under the act. Why not take a look at moving toward full two-way fee shifting instead? (Christopher Levenick, "High Noon at Sunrise Rock", WSJ/OpinionJournal.com, May 27).
May 2005 Archives
Touched on again in Ted's travelogue (May 25):
Another hot-water datapoint: a television commercial featuring an older British housewife talking about her need for a "cuppa" during the day, and showing off her "space-age kettle." She then proceeds to set the temperature of her water to 85 Celsius, or 185 degrees Fahrenheit.
Seems they've now arrived in Sacramento and nearby Solano County: Ron Wilson and Byron Chapman, who say they're disability rights activists, "together have filed more than 100 ADA lawsuits in Sacramento federal court in just the past four years. In some cases, the lawsuits come without warning." "The number he quoted to me was $75 an hour, he'll do the consulting," said Vacaville businessman Tom Phillippi, of Wilson. "You pay him $75 an hour as a consultant and you won't necessarily face him in court." ("Businesses Come Together To Fight Disabled Lawsuit Abuse", KXTV, Mar. 8). For more, see Mar. 18 and many other posts linked from there.
Cleveland Scene magazine follows up on the reverses suffered by the Smucker company in its efforts to patent the crustless peanut-butter-and-jelly sandwich (Rebecca Meiser, "The Peanut Butter Jam", Apr. 20)(see Apr. 9, 2005; Jan. 30 and May 1, 2001). On a more serious note, Dennis Crouch of Patent Law Blog has two recent posts on the politics of patent reform in Congress (May 25, May 26).
Some years back, Justice Janice Rogers Brown of the California Supreme Court wrote a dissent in the widely noted harassment-law case of Aguilar v. Avis, in which the court ordered the drawing up of a list of forbidden words that employees of a rental car franchise were to be prohibited from using to each other on the job even in private conversation (see Sept. 11, 2000). The other day a New York Times editorial ("Disarmament in the Senate", May 25) assailed Rogers for her supposedly extreme position in dissenting from Aguilar (which was decided 4-3), and James Taranto of the WSJ's "Best of the Web" quite appropriately rises to her defense (May 27). As Taranto notes (but the Times somehow fails to), Justice Stanley Mosk, regarded as the California high court's most liberal member, joined Brown in dissenting from Aguilar as a prior restraint on speech rights. For more, see Tim Sandefur, Sept. 23, 2004.
Zavala County, Texas: Judge Amado Abascal of the 365th District Court has refused Ford Motor Company's request for a new trial in that very curious $31-million-verdict case in which Ford alleges that juror Diana Palacios, city manager of Crystal City, turned out to be romantically involved with one of the plaintiff's lawyers suing Ford, Jesse Gamez, and even "allegedly helped Gamez sign up three of the victims as clients in the lawsuit against Ford". Further tidbit from the new coverage: Palacios is said to work as a jury consultant. See Mar. 7, Mar. 22, and, on other issues raised by the case, May 13 and May 16. (Tresa Baldas, "A Small Town's Big Verdict Leads to Ugly Charges", National Law Journal, May 27).
Unreviewed, but sounds promising: Brand Name Bullies, by David Bollier (website), published last December, bills itself as an "impassioned, darkly amusing look at how corporations misuse copyright and trademark law to stifle creativity and free speech." The publisher, John Wiley & Sons, has a website with excerpts. For many examples of that phenomenon, see our pages on intellectual property/technology and free speech/media law.
Want to know what destructive craziness the trial lawyers are up to? Legal thinker Walter Olson records every jot and tittle on his constantly updated website Overlawyered.
-- from p. 117 of the hit new book South Park Conservatives: The Revolt Against Liberal Media Bias, written by my Manhattan Institute colleague Brian C. Anderson (buy on Amazon).
No, of course it doesn't stop with guns: The British Medical Journal, which we have had occasion to criticize in the past (see Dec. 17, 2001 and links from there), has run an editorial entitled "Reducing knife crime: We need to ban the sale of long, pointed kitchen knives". (John Schwartz, "British Medical Experts Campaign for Long, Pointy Knife Control", New York Times, May 27; Edward Black, "Doctors seek kitchen knife ban", The Scotsman, May 27). Dave Kopel (May 27) has more. And: Max at Untamed Fire of Freedom comments (May 27).
Via Common Good "Society Watch", and we can't do better than to just repeat their description of the case:
The mission of the Earth Conservancy, a non-profit organization in Northeastern Pennsylvania, is to revitalize "16,300 acres of former coal company-owned land. ... More than 10,000 acres of Earth Conservancy land has been dedicated to open space and recreational activities." But the Conservancy now faces a lawsuit from the mother of 30-year-old James Bertrand, who died "when the Jeep in which he was a passenger ran off a dirt roadway, down an embankment and into a 15- to 20-foot-deep waterhole on conservancy property." The property in question is open to the public, but motorized vehicles are strictly prohibited. Had Bertrand obeyed the rules, says conservancy executive director Mike Dziak, the accident would have been avoided.
(Kasia Kopec, "Woman sues Earth Conservancy over son's drowning in 2004 four-wheeling accident", Wilkes-Barre Times-Leader, Mar. 29)
A federal jury has disapproved a $300,000 "success bonus" that a Greenwich, Ct. divorce lawyer tried to charge his client following a high-pressure five-day divorce mediation. Noted lawprof ethicist Geoffrey Hazard, testifying for dissatisfied client Gary Zimmerman, said the extra charge resembled a contingent fee on the lawyer's part and that contingent fees are supposed to be disallowed in divorce litigation. (Thomas B. Scheffey, "$300,000 'Success Bonus' for Five-Day Mediation? Not So Fast, Says Jury", Connecticut Law Tribune, Mar. 29). David Giacalone has more (Mar. 29).
If you're not visiting our sister site Point of Law regularly you're missing out on an awful lot. F'rinstance: contingency-fee tax collection in Mississippi, courtesy of that state's AG; Alan Dershowitz's coincidental whereabouts during the Larry Summers flap; liability reform in Georgia, South Carolina and Missouri, and (on asbestos) in Texas and Florida; topical TrackBack spam pings; the "Constitution in Exile" brouhaha; overtime lawsuits; crying wolf on class action reform; pressure for cooperation in white-collar crime cases; how Westchester County, N.Y. residents subsidize wildman enviro-litigator Robert F. Kennedy, Jr. and California residents subsidize trial-lawyer front groups as well as propaganda for antitrust enforcement; jury selection in Scotland; several posts on The American Lawyer's recent special issue, "Plaintiff's Power"; the supposed hypocrisy of lawsuit reformers; high-tech shareholder suits; much, much more from Ted on silicosis doctors' testimony; Mike DeBow on Ford Crown Victoria suits; and Jim Copland on the Second Circuit's dismissal of a tobacco class action. And don't miss Ted's priceless story of what happened to ATLA's own insurance company (did you really think those guys would be good at running one?).
There'll always be a California, cont'd: "Buying cereal, olives, potatoes, bread, almonds -- even prune juice -- at the grocery store soon might come with a cancer warning from the state of California. State officials are considering a requirement that grocery stores, retailers and restaurants alert customers about acrylamide, a carcinogen created when starchy foods like potatoes and breads are baked, roasted, fried or toasted." (Greg Lucas, San Francisco Chronicle, May 25). For more about the naturally occurring compound and the litigation it has already provoked, see Dec. 27-29, 2002, Sept. 19, 2003 (final item), and Apr. 6, 2004. For more on Proposition 65, the bounty-hunting statute under which lawyers will inevitably file more suits against businesses that fail to post signs warning of acrylamide should the proposed regulation become effective, see Nov. 4-5, 2002 and these links.
Now it's the $60 million in legal fees from the bankruptcy of Pacific Gas & Electric-affiliated energy companies that's drawing criticism. (Tom Schoenberg, "$60M Bankruptcy Bonanza", Legal Times, May 6). See Jan. 13, Sept. 22, 2004 (hundreds of millions in main PG&E bankruptcy), etc.
It's a parody from The Onion (May 25), and more than one reader has written in to direct our attention to the final paragraph.
Loads of coverage of health matters in recent weeks over at our sister website, including: liability fears and emergency room admissions; New Jersey bans "retaliating" against expert witnesses over testimony they give, no matter how untrue it may be; Ted on one lawprof's grossly misleading use of med-mal statistics, and a second round of the same; pain medication in nursing homes (and more on nursing homes); two doctors pick up stakes; Australian med-mal rates fall after reform; same thing in Texas; HHS introduces a distinctive "early offers" program for medical malpractice claims involving its clients; please don't let him grow up to be an M.D.; Pennsylvania hospitals' bill; MICRA and Prop 103; the March of Dimes wants Bendectin back; federal judge Loretta Preska in Manhattan throws out a major Dickie Scruggs case against the non-profit health sector; and a must-read article on defensive medicine. To explore all this and much more, follow the links provided or visit the site's topical page on medicine and law.
After eight days of deliberation, an all-female federal jury in Detroit has voted $10.6 million, including $7 million in punitive damages, $2 million for mental anguish and emotional distress and $1.6 million in compensatory damages, to former radio host Erin Weber, who said she was made ill by a co-worker's perfume and later fired after WYCD-FM's owner, Infinity Broadcasting, failed to resolve her complaints. Weber said that exposure to colleagues' use of nail polish remover triggered sensitivity to the emanations of a co-worker wearing Tresor, a popular scent which Lancome describes as "romantic, sensual, emotional" and as based on such ingredients as rose and lilac. "Weber claimed exposure to Tresor caused her to lose her voice and take lengthy absences from work. She also said she once 'felt an electric shock quell through my entire body' and required heavy medication to combat the effects," according to the Detroit News. In addition, Weber claimed, the co-worker, who is also a radio host, continued exposing her to the perfume despite her complaints and even walked by her on purpose. Infinity lawyer Daniel Tukel said the company had ordered the co-worker to stop wearing perfume and disputed Weber's claim that it had "blacklisted" her from radio employment. The company says it will appeal, and a reduction in the award is likely, since federal law "generally caps punitive damages at $300,000 for the claims that Weber brought." (David Shepardson, "Radio DJ wins $10.6 million in stink over perfume", Detroit News, May 24; Kim North Shine, "DJ takes in sweet smell of victory", Detroit Free Press, May 24). For some earlier posts involving claims of unusual sensitivity to widely encountered chemicals, see May 6, 2002, Apr. 25, 2001, and Jul. 3-4, 2000. For complaints about perfume, see May 17-19, 2002 and Apr. 24, 2000 (& welcome James Taranto readers). Update Jul. 6, 2007: federal judge after trial reduced Weber's award to $814,000.
Sonoma County, Calif.: "State wildlife officials believe someone planted endangered flowers at a Sebastopol building site to try to stop a disputed housing development. Saying the act amounts to criminal fraud, state Department Fish and Game botanist Gene Cooley said his agency concluded that Sebastopol meadowfoam plants found on the Laguna Vista site were transplanted from somewhere else." (Mary Callahan, Santa Rosa Press-Democrat, May 14)(via Jonathan Adler, Commons Blog, May 14).
Over at Ted's personal website -- whoops, I don't think I was supposed to mention yet that he has one -- he's recording various touristic impressions of the British scene, including Cadbury's hot chocolate machines, whose prevalent dispensing temperature of 92 Celsius (c. 200 degrees Fahrenheit) may shed light on the Stella Liebeck vs. McDonald's hot-coffee-spill controversy (May 20). The headline "New Bid To Curb Greedy Lawyers", incidentally, can be traced to this Evening Standard piece (Joe Murphy, May 17) which summarizes new proposals from the Blair government aimed at bringing no-fee, no-win lawyers under greater control and curbing the rising perception of a "compensation culture" in the United Kingdom.
Massachusetts' highest court has rebuffed John Otis III of Scituate, who first won a largely uncollectable $6.5 million verdict from a drunk driver and then tried to get that victory overturned so as to extract money from others. Otis, a pedestrian, was hit by inebriated motorist Todd Cusick, whose insurance policy limits were only $50,000. Here's what happened next, according to reporter Sue Reinert of the Quincy Patriot-Ledger:
In a complicated legal maneuver, Otis agreed to free Cusick from his liability. In return, Otis got authority to sue Cusick's attorneys and his insurer, Arbella Mutual Insurance of Quincy, on Cusick's behalf. Otis would collect any winnings from the suit.In this second lawsuit, Otis contended that Cusick got a raw deal from his lawyers, who were hired by Arbella. Cusick would have won the lawsuit if his attorneys had done a good job, Otis argued.
To make his case, Otis' attorney, Driscoll, had to present the exact opposite arguments that he had made in winning the $6.5 million judgement, yesterday's ruling said. He even contended that some crucial facts were different, the decision written by Justice Martha Sosman said.
"In short, Otis' position in the present suit is that he should not have recovered anything in the first suit," Sosman wrote.
Otis's downfall proved to be the doctrine of judicial estoppel, which per Wikipedia "precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings", at least if the position proved successful in the first round. (Sue Reinert, Quincy Patriot-Ledger, Mar. 15)(via Common Good Society Watch). For a 2004 case in which Judge Edith Jones of the Fifth Circuit invoked judicial estoppel to stymie the attempt of a bankrupt debtor to pursue a personal injury case not disclosed during his Chapter 13 bankruptcy proceedings, see In re Superior Crewboats (PDF), summarized at the Louisiana blawg Naked Ownership (Jun. 21, 2004).
Reader Bob Woolley of St. Paul, Minn. calls our attention to Durdahl v. City of Hastings, a Minnesota Court of Appeals decision filed May 17, which he summarizes as follows:
The plaintiff was a passenger in a car driven at excessive speeds by a drunk driver. The driver lost control and skidded into a parked semi-truck. The driver and one passenger were killed; two passengers survived with injuries. The case is one of those passengers suing the *city* for having granted a construction company permission to park its truck on the side of the road at a construction site. The city had done this because the site was too muddy for the truck to enter, and the volume of material to be loaded and unloaded made it impractical for the truck to park farther away. Obviously, that makes it the city's fault that this woman's driver was drunk and trying to take a 30 mph curve at 83 mph, right?Fortunately, the court of appeals affirmed the sensible decision of the trial court, which was to dismiss the case.
Gail Heriot (May 3), Erin O'Connor (Apr. 30), and Martin Grace (May 2) all comment on the case of Heidi Baer of Quincy, Mass., who having failed the medical boards three times is now suing the National Board of Medical Examiners under the Americans with Disabilities Act for not giving her extra time on the exam to accommodate her dyslexia. (J.M. Lawrence, "Med student's dyslexia plea: I need time to pursue dream", Boston Herald, Apr. 30). For more on ADA and test accommodation, see Jul. 21, 2004, Nov. 13, 2003 and links from there. In Connecticut, meanwhile, Dr. Benjamin Smith is seeking $2.5 million from Norwalk Hospital over alleged overwork and failure to accommodate his attention deficit disorder (ADD). The two sides dispute whether Smith was made to work beyond the 80-hour maximum that is supposed to be placed on residents' workloads; Dr. Eric M. Mazur, chairman of the hospital's internal medicine department, denies that the institution was insensitive to Dr. Smith's needs, saying it "rearranged some of his schedules, reduced his patient load and put him on days instead of nights" and wound up terminating him for performance. He added what must count as one of the strongly worded statements of its kind we've seen in a while:
"The medical establishment is often accused of not policing itself, and not clearing out bad apples," Mazur said. "It was the consensus of the faculty that his continued employment would endanger patient care."
(Marian Gail Brown, "Doc asks $2m for overwork", Connecticut Post, Apr. 21)(& welcome Grand Rounds XXXVI readers).
The Lincolnshire town of Boston has canceled its annual flower and craft show, a major tourist draw, because it believes the risk of litigation is too high to proceed without hiring licensed stewards at prohibitive rates. (Nick Britten, "Flower show wilts in blame culture", Daily Telegraph, Apr. 16). In Scotland, "Schools across Renfrewshire have banned pupils from taking part in after-school football [soccer] over fears they would be sued for injuries. ... They were banned because volunteer coaches were not covered by the schools' insurance schemes for after-class games." ("Legal fears prompt football ban", BBC, Mar. 12)(via Greg Skidmore, Mar. 14). At the secondary school in Chippenham, Wiltshire, students kick around a soda bottle (presumably of plastic rather than glass) after the school banned conventional footballs from the recess field; at other schools, tag and marbles are now against the rules, and don't think of touch rugby. "Lots of people just play with bouncy balls, but I suspect that'll be banned too before too long," says a 15 year old boy at Abbeyfield (Tony Freinberg, "Can we have our ball back, please?", Daily Telegraph, Mar. 20). And: "Children have been banned from collecting chickens' eggs at the National Trust's showpiece farm [Wimpole Hall in Cambridgeshire] because it is now deemed by health and safety advisers as too hazardous." (David Sapsted, "Trust bans children from egg collecting", Daily Telegraph, May 17).
However, in a widely noted case, a swimming club seeking the right to take winter swims in ponds north of London in the absence of lifeguards won a victory in the high court against the Corporation [i.e., city] of London, which "had claimed that it risked prosecution by the Health and Safety Executive if it allowed unsupervised dips." Mr. Justice Stanley Burnton
ruled that the corporation had fallen into legal error and said club members should be able to swim at their own risk. He spoke out in favour of "individual freedom" and against the imposition of "a grey and dull safety regime", adding that by granting permission to the club the corporation would not be liable to prosecution for breaches of health and safety.
Mary Cane, chair of the Hampstead Heath Winter Swimming Club, said:
"This was a test case with wide implications for all open swimming in England and represents another successful attack by ordinary citizens on the nanny state and the cult of health and safety."Ms Cane said that the club was proud to have played its part "in re-establishing an important principle of personal freedom in this country, taken for granted everywhere else, that responsible adults must be free to decide for themselves whether to pursue recreational activities involving an element of risk".
(Clare Dyer, "Hardy bathers win right to swim unsupervised", The Guardian, Apr. 27; Joshua Rozenberg, "Pond swimmers win right to take the plunge", Daily Telegraph, Apr. 27; "Take the plunge" (editorial), Daily Telegraph, Apr. 27).
The North Carolina Bar Association is pressing to abolish the state's unusual cause of action for alienation of affection, a carryover from common law days in a few states which allows a wronged spouse to sue the other spouse's paramour for having broken up the marriage. The law is still sometimes used, and in fact damage awards have been escalating briskly in the Tarheel State, reaching $500,000 (later reduced) in a 1990 Forsyth County case and $1.2 million in a case eight years ago in the same county. "Most of the time, lawyers said it costs as much or more to try these kind of cases than the injured party stands to win," and Raleigh family law practitioner Lee Rosen says he often discourages clients from filing such a suit because by poisoning the atmosphere it "destroys the possibility of future cooperation" on, e.g., custody matters. (Amanda Lamb, "Some Want To Get Rid Of 'Alienation Of Affection' Lawsuits", WRAL, Feb. 2). See Nov. 16, 2004; May 18-21, 2000.
Great moments in economic regulation, cont'd: now it's Maryland that's cracking down on service stations for the sin of pricing gasoline too cheaply. (Justin Blum, "Maryland Hits Brakes on Fleeting Gasoline Price War", Washington Post, May 6). For an example from Minnesota, see Jun. 5, 2004.
...is now officially dead, reports Bill Quick (May 16)(via Instapundit)(see Apr. 6). The Federal Election Commission, on the other hand, remains a threat, according to Redstate.org (May 20)(also via Instapundit)(see Mar. 17, Mar. 31). More on campaign finance law and free speech: Jonathan Rauch, "McCain-Feingold at Rest", National Journal/Reason Online, May 9.
A team of researchers led by Richard Gun, visiting research fellow at Adelaide University, "has found patients who engage a lawyer after receiving their injury are five times less likely ever to return to work. He says they also appear to suffer more pain and for longer periods than accident victims who do not have lawyers." Even allowing for an expected correlation between the two variables -- persons with more serious injuries are presumably more likely to retain lawyers -- legal representation appears to have an independent effect in prolonging the process of recovery, Sun says. (Nick Grimm, ABC News Online (Australian), Feb. 23 (summary); "Accident victims who hire a lawyer take longer to recover: study", The World Today, ABC News Online (Australian), Feb. 23)(interview transcript); Gun et al., "Risk Factors for Prolonged Disability After Whiplash Injury: A Prospective Study", Spine, Feb. 15 (abstract and $ link to study). For similar findings from a study published in the New England Journal of Medicine based on Saskatchewan data, see Apr. 24, 2000.
Students at San Francisco's Farragut Elementary School and an educational foundation are scrambling to raise funds to make it possible for students to perform a Congolese dance routine in the city's May 29 annual Carnival parade. "In previous years, the school has supported the Foundation's efforts financially, but this year, the school has withdrawn its support '[d]ue to liability concerns.'" (Sarah Rohrs, "Students step lively for Carnivale", Vallejo Times-Herald, May 17)(via Common Good Society Watch).
Major news on the asbestos front: the U.S. Attorney's office for the Southern District of New York, one of the most powerful prosecutorial offices in the country, has convened a grand jury to probe allegations of fraud in the mass prosecution of silica and asbestos claims in Texas and elsewhere. In recent court proceedings in Corpus Christi, doctors admitted that they had never met or interviewed claimants for whom they had provided written diagnoses of silicosis, often after the same claimants had been accorded diagnoses of asbestosis. Federal judge Janis Graham Jack said one doctor's testimony was raising "great red flags of fraud". (Jonathan D. Glater, "Civil Suits Over Silica in Texas Become a Criminal Matter in New York", New York Times, May 18). Ted Frank has been following the developing story in detail at Point of Law: Feb. 2, Feb. 17, Feb. 27, Mar. 2, Mar. 14, Mar. 16, Mar. 21, and other entries on that site's asbestos page. This site's product liability page has also extensively covered dubious litigation of this sort (examples: Jan. 21 and Aug. 5, 2004, Sept. 13 and Nov. 12, 2003 and earlier items).
"A Russian court has ruled that an astrologer can sue NASA over plans to bombard a comet whose destruction would 'disrupt the natural balance of the universe'." Reversing a lower court, the panel ruled that it was appropriate for Russia to take jurisdiction over Marina Bai's lawsuit, which demands $310 million. According to her lawyer, Alexandra Molokhova, Ms. Bai "believes that the project infringes upon her spiritual and life values, as well as the natural life of the cosmos". ("Astrologer courts trouble for NASA", Melbourne Age, May 8; Anna Arutunyan, "Russian Astrologist Plans to Crash NASA’s Independence Day", MosNews, Apr. 19; "Russian astrologer seeks $310 million of moral damage compensation from NASA", Pravda, May 6).
"The Las Vegas man whose severed fingertip ended up in a cup of Wendy's chili gave his mangled digit to a co-worker to settle a $50 debt -- but had no idea it would be used in an alleged scheme to swindle the fast-food chain, the man's mother said Tuesday." (Alan Gathright and Meredith May, "Worker gave his finger to settle $50 debt", San Francisco Chronicle, May 18)(see May 16, etc.).
Researchers at the Yale Child Study Center led by Walter S. Gilliam have found that a surprisingly large number of 3 and 4 year olds are expelled from community and private preschools, perhaps 5,000 or more annually. Zero tolerance and liability fears may be among the factors at work: "The study did not gather information on why the children were expelled. But Dr. Gilliam said a wide range of behavior could lead to expulsion: aggression toward the teacher or other children; actions that violate a zero-tolerance policy, like taking a toy gun to school; or anything that might cause a teacher to worry about injury and liability, like running out of the classroom to the parking lot." (emphasis added) (Tamar Lewin, "Research Finds a High Rate of Expulsions in Preschool", New York Times, May 17). Last December the Times reported (Dec. 7) on how liability fears sometimes drive colleges' decisions to impose involuntary leave on students; colleges, like preschools, generally enjoy greater flexibility in expulsion and discipline than do conventional K-12 public schools.
Financier Ronald Perelman wins $604 million, with a request for punitive damages still to come, against Morgan Stanley on claims that the Wall Street firm defrauded him seven years ago when he sold camping equipment maker Coleman to Sunbeam Corp., a Morgan client. (Bloomberg/New York Times/AP). The unexpectedly large verdict came after the Florida state judge presiding over the case blasted Morgan and its law firm for not responding in a forthcoming way to requests for discovery of electronically stored records, and instructed the jury to infer that the withheld documents demonstrated fraud. Blog commentary: Monica Bay, Francis Pileggi, Lisa Stone (and earlier), Litigation Support Guy (and again), Tom Kirkendall (and earlier), Really Think. More: jury votes $850 million in punitive damages (Jill Barton, "Perelman Wins $1.4 Billion Total in Suit Against Morgan Stanley", AP/Law.com, May 19); Tom Kirkendall comments (May 18). Updates Dec. 17: Morgan Stanley files appeal; Mar. 22, 2007: appeals court overturns verdict.
Eugene Volokh and Christine Hurt (both May 17) analyze the Massachusetts case everyone is talking about, in which a man sued his girlfriend after suffering a particularly intimate (and awful-sounding) trauma in bed. The court decided that the standard for liability over sexually inflicted injury should be wantonness and recklessness, rather than mere lack of reasonable care.
This time it's securities regulation, rather than sexual harassment law, that's at odds with privacy: "In an attempt to crack down on insider trading, the directors of companies quoted on Spain's stock exchange will have to come clean, on a twice-yearly basis, about anyone with whom they are having an 'affectionate relationship'. ... Company directors must also provide information about their wives or husbands and family, but it is the idea of a 'lovers' register' -- in which bosses could have to admit to having affairs or out themselves as gay -- which has sparked reactions ranging from disbelief to fury among businessmen." (Tony Jefferies, The Scotsman, May 12; Giles Tremlett, "Bosses told: list assets -- including lovers", The Guardian (UK), May 11; Amaya Iribar, "When love is a conflict of interest", El Pais/INA Daily, May 16).
Ernie the Attorney has more (May 11) on boilerplate legal disclaimers, including the gem quoted above, which calls to mind for him the country song lyric, "if the phone don't ring you'll know it's me". (via Blawg Review #6)(see May 9).
Just business as usual in Philadelphia:
Candidates for judge paraded before a gaggle of ward leaders assembled by consultant Pete Truman last Friday at the Airport Sheraton.They entered one at a time. Each candidate handed each ward leader an envelope. Each envelope contained a check, $1,000 or $2,000, depending on the size of the ward.
If the ward leader planned to support the candidate in Tuesday's Democratic primary, the check was accepted. If not, it was returned.
(Gar Joseph, "Like sheep being led to slaughter", Philadelphia Daily News, May 13). And various Philadelphia political figures convicted of crimes have emerged after serving their sentences as practitioners of a largely unregulated trade, serving as campaign consultants to judges (Tom Ferrick Jr., "Judicial process isn't all negative", Philadelphia Inquirer, May 13).
How is Britain's new Health Secretary, Patricia Hewitt, addressing public alarm about "superbug" infections in hospitals? In part by floating the idea of criminally prosecuting hospital personnel after infections break out. And of course prosecutors will never for a moment consider bringing such charges without strong evidence of culpable mens rea on the part of the hospital personnel. Right? (Andrew Sparrow, "Warning to hospitals over MRSA", Daily Telegraph, May 16). Hat tip and thanks for the link: Michelle Malkin, May 16.
Ted (who reports that he's having trouble posting directly while away) writes as follows:
I'm less than twelve hours into my first trip to London, and one can see right up front how badly the compensation culture has stunted the US compared to the UK. My ride from the airport was in a Mini Mayfair, which is even smaller than the small Mini Cooper, but one can also drive around the city in something called a "Smart Car," an even teenier two-seater akin to the one Sam Lowry drove in Brazil. Any manufacturer trying to sell a car like that in the US would risk getting socked with punitive damages the first time the car ended up a loser in a collision with an SUV; after all, the disingenuous plaintiff's attorney would say, the manufacturer was clearly more concerned with profits than with safety by daring to sell a small car. (Never mind the environmental differences, or the fact that the availability of a cheap SmartCar could vastly improve the lives of many working poor.)The escalators in the Underground move about 60% faster than the ones in the DC Metro. I'm looking forward to studying whether London has a worse safety record with its escalators. I would hypothesize that, aside from the King's Cross fire, they do not: people are just more careful, because (1) the escalators are plainly dangerous, rather than giving the illusion of safety that a slow escalator does; and (2) Brits know that if they hurt themselves, they can't blame someone else, much less potentially collect millions (Feb. 13). It's just so nice to be treated like an adult.
I wouldn't trade the American way for the British way, but we could learn a thing or two.
San Jose police say the finger that Anna Ayala says she found in a bowl of Wendy's chili (Apr. 27, Apr. 22, etc.) has now been identified; it belonged to a co-worker of her husband, James Plascencia, who lost it in the tailgate of a truck in an on-the-job accident. Authorities believe it then fell into the possession of Mr. Plascencia. (Dan Reed, Linda Goldston and Chuck Carroll, "The jig is up", San Jose Mercury News, May 14; "Worker: Finger found in chili severed in tailgate", AP/CNN, May 15).
The Lost Coast Brewery in Humboldt, Calif. says it will take off the shelves its Indica India Pale Ale, whose label currently depicts the Indian elephant-god Ganesh "holding a beer in one of his four hands, and another in his trunk". Although brewery co-owner Barbara Groom said her Hindu friends don't mind the label, a California man named Brij Dhir sued the brewery, along with other defendants such as the Safeway supermarket chain, claiming that it is offensive and intimidates Hindus from practicing their religion. "Dhir seeks at least $25,000 and his lawsuit mentions that $1 billion would be appropriate to compensate Hindus around the world." "It's a hate crime", Dhir told the Contra Costa Times. ("Brewery pulls label showing Hindu god", RealBeer.com, May 9). (& welcome visitors from Blog Mela, the periodic tour of India-related blogs, hosted this time by Shanti Mangala, and from Sepia Mutiny). And: reader Rich B. from Baltimore is reminded of the recent post (Mar. 17) on the theme of how we're lucky we don't have blasphemy laws the way Europe does, and asks: why make a law when you can just sue about it?
"History may record that what offended them [American voters in 1994, when Congress changed hands] wasn't liberalism but busybodyism -- the endless, frenetic search by elected officials for ever-new ways to make the country more fabulous. Bush and his Republicans are close to proving that busybodyism can become a creature of the right as well as the left." (Andrew Ferguson, "Operation Overreach", Weekly Standard, May 16)(via Sullivan).
Belatedly following up on the Mar. 7 report about the $31 million verdict against Ford Motor in Zavala County, Tex., on attorney Mikal Watts's theory (as we put it then) "that the [ejection] injuries were Ford's fault because it should have used laminated instead of conventional glass in the side windows as a sort of substitute restraint system," law student Shane Murphy (George Mason U.) had the following comment:
Laminated glass, which is two layers of plate glass with plastic laminate in between, is used on automotive windshields. It has been used for decades to keep objects from easily getting through the windshield and entering the vehicle, not the other way around. In fact, I have seen more than one hapless unbelted occupant of a vehicle propelled fully through a laminated windshield.Safety glass, which is designed to shatter into very small pieces, is used on side windows in cars. This type of glass is easy to shatter should you need to make a hasty exit from the vehicle, and that's a key reason it's put there. It also shatters into small pieces with very little "sharding," reducing the opportunity for serious injury from broken glass.
Laminated glass requires a special saw to get through. With 12 years of experience, it still takes me five minutes to saw through a car windshield. If your car is on fire you'd prefer safety glass for this reason alone. Laminated glass also causes serious head and facial injuries to those who do full face-plants against the windshield despite seat belt warnings. It will have the same effect in a side window if an occupant is unbelted.
Some automakers are putting laminated glass in the side windows of high-end cars, but this trend should be viewed with great caution. This type of glass does prevent people from "popping a window" to escape from a vehicle in an emergency situation. Two examples of emergencies of this type are vehicle crashes with resulting fires and accidents where a vehicle ends up partially submerged in a body of water. In both cases, the electrical system will likely short out and will prevent easy exit since nearly all cars now have power windows.
I really cannot believe this theory about auto glass even got past the laugh test, never mind into the jury room. Automotive glass should not be used to keep people in the vehicle. Using automotive glass as a backup safety feature would do more harm than good. Seat belts are to keep you in the vehicle, not windows. In fact, I much prefer glass that breaks easily.
More: reader Brian Poldrack of Houston, Texas writes in to say:
Attorney Gerald Skoning of Seyfarth Shaw in Chicago does one of these roundups every year (see Apr. 1, 2003 and Apr. 13-15, 2001). Among his winners in this year's compilation: the case in which the Seventh Circuit ruled punitive damages excessive following a supervisor's history of remarks like "You're being a blonde again today"; the Nova Scotia case in which a court of appeal found that a worker of Mi'kmaq tribal origins was not discriminated against by her boss's having called her Kemosabe, "the oft-used word from the 1950s show The Lone Ranger"; and a case in which a manufacturing worker who'd engaged in flirtatious banter was reinstated after his dismissal, the arbitrator noting that so far as atmosphere goes "the shop floor is entirely unlike high tea at the Savoy". ("The 10 Most Bizarre Employment Cases of 2004", National Law Journal, Apr. 20).
With the warmer weather (and some real-world writing projects that will be demanding my attention) it's time for me again to remind readers that there's fun to be had in volunteering for a guestblogging stint here (or at Point of Law, which also could use guestbloggers). Blogging experience is preferred but not necessary, and the technology is easy to learn. Drop me a line at editor - at - thisdomainname.com.
From a Forbes article on safety problems in charter aviation:
Businesses pay [Joseph Moeggenberg's] company, Aviation Research Group/U.S., or "Argus" in the trade, as much as $20,000 per month for full access to ratings reports on 848 charters, or $249 for a single report. Argus provides specifics about a flight, the jet's history, the owner, whether the plane is double-booked from another charter, the pilot's record and so on. It assigns a red, yellow or green light on safety (36% receive reds or yellows).One charter outfit got a prescient "Does Not Qualify" rating from Argus: Aviation Charter of Eden Prairie, Minn., which flew U.S. Senator Paul Wellstone of Minnesota in a Beechcraft King Air A100 as he campaigned for reelection in October 2002. When a newspaper later reported that Aviation Charter got a bad rating, the company sued Argus for defamation but lost the case on summary judgment; the case is pending on appeal. The flight crashed at the Eveleth, Minn. airport in October 2002, killing all eight people aboard, including the senator, his wife and their adult daughter. Says Argus attorney Eric Heiberg of Minneapolis: "I can't imagine we're going to lose."
(Seth Lubove, "Flight of Fear", Forbes, May 9). An online summary of the case (Aug. 2004, courtesy Cousineau McGuire & Anderson; scroll to "Federal Courts -- Defamation") indicates that the court agreed that the rating contained inaccuracies which harmed Aviation Charter's reputation, but found no proof that Argus had acted with malice or reckless disregard for the truth. Update Mar. 15, 2006: Eighth Circuit (in summer 2005) dismissed suit, ruling ratings subjective.
Ramesh Ponnuru at NRO "The Corner" punctures a weak op-ed on the subject, and incidentally points to an interesting and new-to-us paper by Michael Greve on Justice Brandeis and the "laboratories of policy experimentation" trope.
Evan Schaeffer is a plaintiffs' lawyer, but he's made it to the Overlawyered blogroll with an entertaining weblog about balancing a real life with a law firm career; law students' contributions to blogs; law and literature; and clever, if fallacious, anti-litigation-reform posts and attacks on this site's positions. Now on the site is an e-mail interview with me about my new job. And don't miss the discussion in the comments about whether consumers are smart enough to make their own economic decisions in response to my answer to Evan's last question. More: Blawg Review #6 takes note.
According to UCLA lawprof Lynn LoPucki, about 60 percent of recent big corporate bankruptcies have been filed in courts away from the companies' hometowns. Although not all motives for selecting a distant bankruptcy venue are improper, forum-shopping can assist incumbent managers in finding a court that will cede them broad control during a reorganization (including the payment of large "retention" bonuses), while lawyers and other professionals may seek to steer filings into courts that are indulgent about approving fee requests. Among the losers: many creditors, which in some cases may include the companies' workers. An opponent dismisses the charges as "baseless and offensive", but some judges agree that the indictment holds merit. The Southern supermarket chain Winn-Dixie filed in New York City, then after a furor agreed to move the proceedings to its home state of Florida. (Pamela A. MacLean, "Forum Shopping Alleged in Chapter 11 Cases", National Law Journal, May 3). See, among other posts, Mar. 8, 2004. More: Larry Ribstein (Jun. 22) has some thoughts on the market for jurisdiction-shopping.
Four more missives from our ever-interesting readers appear on our letters page. Among the topics this time: caprice in the workings of the death penalty, lawyers' fees and fen-phen fraud, gamblers suing casinos, and pharmacists' rights.
The Norway Supreme Court has ruled that Conoco Phillips owes two workers about $40,000 each for firing them for looking at Internet porn on the job. (Jonathan Tisdall, "Final porn decision", Aftenposten English, Apr. 22).
The Aftenposten story has been widely repeated on the web, but it's worth noting that the supposed decision has not yet been catalogued on the English version of the Norges Høyesterett website, though that site is only up to date to March 31. That said, this page looks suspiciously like the decision in question, though my Norwegian language skills are decidedly limited. I further note that it is utterly charming that Norway is sufficiently non-litigious otherwise that its Supreme Court apparently has the time to regularly decide appeals of speeding tickets. (& letter to the editor, Jul. 13).
There's an unspoken implication of a decision valuing a housepet at $45,000. If one is driving a vehicle of average value in Washington state, and sees a pet dart out in front of the car, the state would apparently prefer that you total your car to avoid hitting the animal. Just make sure that the tree or wall or parked car you hit instead doesn't also have non-economic sentimental value.
And why isn't it contributory negligence to leave a housecat outside? The press coverage doesn't say if this was raised in the litigation.
Seattle: "A woman who sued a neighbor after his dog mauled her cat to death has been awarded more than $45,000. Retired teacher Paula Roemer's 12-year-old cat, Yofi, was attacked in her back yard in February 2004 by a chow belonging to her neighbor, Wallace Gray. The dog had repeatedly escaped in the past, according to the lawsuit." ("Woman Gets $45K for Cat Killed by Dog", AP/Las Vegas Sun, May 9). The award included $30,000 for the personal value of the cat -- tying a record for a pet, according to her lawyer -- plus $15,000 for emotional distress; Ms. Roemer "was so traumatized that she began having sleep disturbances and panic attacks, sank into depression and began smoking heavily, she wrote in a sworn declaration." (Jessica Blanchard, "Woman awarded $45,000 in cat death", Seattle Post-Intelligencer, May 9). More coverage: Seattle Times, KOMO-TV. Meanwhile, a timely op-ed spells out why damage awards reflecting pets' sentimental value, by scaring away veterinarians and other caretakers, could lead to needless animal deaths. (Emily Laird, "See Spot Sue", New York Times, May 8). A similar case has been made many times in this space: see Mar. 15 (letter to the editor) and links from there.
If you ever receive email from lawyers -- or from anyone who works at a law firm or in-house legal department -- you'll probably recognize some of the boilerplate formulas that Ernie the Attorney has fun with here (May 9). And: a follow-up from Ernie (May 10).
Major software and hardware companies, tired of facing financial demands from companies organized for the purpose of buying up and suing over otherwise dormant patent rights, are calling for a change in patent law so that owners who are not using their patents would no longer have the right to sue for injunctions against alleged infringers (suits over damages could still be filed). Support for the idea is far from unanimous even among manufacturers, however. For more on the controversy over patent-licensing firms, see May 2, etc. (Brenda Sandburg, "A modest proposal", The Recorder, May 9).
Should we name him this site's Man of the Year? Last week, after finding the freshly cut fingertip of an employee in his frozen custard at a Wilmington, N.C. dessert stand, Mr. Stowers "refus[ed] to return the evidence so it could be reattached. And now it's too late for doctors to do anything for 23-year-old Brandon Fizer."
Soon after Stowers found the finger in a mouthful of chocolate soft-serve he bought Sunday at Kohl's Frozen Custard in Wilmington, he put it in his freezer at home, taking it out only occasionally to show to television cameras.He refused to give it to the shop's owner, and refused to give it to a doctor who was treating Fizer, who accidentally stuck his hand in a mixing machine and had his right index finger lopped off at the first knuckle.
Medical experts say an attempt to reattach a severed finger can generally be made within six hours.
But according to the shop's management, Stowers wouldn't give it back when he was in the store 30 minutes after the accident.
"The general manager attempted to retrieve it and rush it to the hospital," reads a statement posted Thursday on Kohl's Web site. "Unfortunately, the customer refused to give it to her and declared that he would be calling the TV stations and an attorney as he exited the store."
What attorney decided to represent Mr. Stowers? Glad you asked; it's Lee Andrews of Greensboro, N.C., who
wouldn't say if a lawsuit against Kohl's is planned, saying he needed "to get some more facts."But Andrews said his client is concerned about possible disease in the fingertip and kept it because he wanted someone to test it for "all the diseases that are out here now."
"He's upset to the point that he's been debilitated to some degree," Andrews said. "Emotionally, it's been very upsetting to him."
("Fight over finger found in custard", AP/CNN, May 6).
Her kids are "too attached" to her, she was told by her soon-to-be-ex husband. Huh? Well, maybe there's more to it than that: "His lawyer had advised him that to get what he wanted in the divorce, he would need to take a hard line on custody because that's what mattered most to me." (Katie Allison Granju, "Losing Custody of My Hope", New York Times, May 8). And divorced British fathers crusade against a court system they see as stacked against them (Susan Dominus, "The Fathers' Crusade", New York Times Magazine, May 8).
"I fully realize that there are dangers and risks to which I may be exposed by participating in Cookie Decorating" begins the waiver and release required by the University of Pittsburgh for a particular extracurricular activity. (Tip of the Overlawyered hat to J.M.)
Perhaps this explains the real motivation behind the evisceration of the raison d'être of Sesame Street's Cookie Monster; Jonah Goldberg explores the new political correctness.
In what an assistant U.S. Attorney said signals the start of a second wave of arrests in the Mississippi fen-phen fraud affair, Gregory P. Warren of Lafayette, La., is cooperating with authorities and is expected to plead guilty to charges arising from his role in recruiting fen-phen clients for the law firm of Schwartz & Associates in Jackson, which has not been charged. According to the AUSA's office, Warren recruited claimants who had never in fact taken the drug; he "also is accused of failing to report on his tax return nearly $200,000 he was paid by attorneys in 2000 for recruiting Fen-Phen plaintiffs." (Jimmie E. Gates, "More guilty pleas in Fen-Phen case", Jackson Clarion-Ledger, May 4). For more on the scandal, see Feb. 12, Jan. 9, etc. (& letter to the editor, May 10).
The U.S. Supreme Court, sending a case back to the Sixth Circuit, has kept alive Michigan school athletic directors' hopes of proving that they have a rational basis for scheduling some girls' sports in different seasons than the equivalent boys' sports (see Dec. 24-27, 2001; Jul. 10, 2004). ("Supreme Court ruling delays decision", Saginaw News, May 3; Hope Yen, "High Court Asks 6th Circuit to Reconsider Girls Sports Seasons Ruling", AP/Law.com, May 3). Mick McCabe of the Detroit Free Press says that based on actual results, the schools deserve to prevail; Michigan has one of the nation's highest rates of participation by girls in sports and disproportionately graduates girls who win athletic scholarships in the relevant sports of volleyball and basketball. ("Gender equity no-brainer as Title IX case", May 6).
"What does a high-powered Harvard Law School professor do when he gets in a dispute with a neighbor? He sues, of course -- even if that neighbor takes care of his young son after school every day." The lawprof, for those who don't want to follow the link, is executive-compensation-scourge Lucian Bebchuk, who's joined with a few other Harvard-affiliated property owners to fight their neighbor, the nonprofit Agassiz Neighborhood Council, which would like to install a children's art studio on its property. (Steve Bailey, "Sue thy neighbor", Boston Globe, May 6).
Jack Chin at CrimProfBlog has a roundup.
Our email newsletter summing up what's new on the site was significantly delayed this time around by technical difficulties we had with our old list administrator, Topica, so we've moved it over to Google Groups. To join or leave the list, visit this page (requires Google registration). Each issue summarizes a few weeks' worth of postings in terse style. If you're an existing subscriber and want to leave, you can also send email to Overlawyered-unsubscribe - [at] googlegroups [dot, com]. Thanks for bearing with us during this transition.
In Bexleyheath, Kent, England, Michelle Alabaster is celebrating her victory in a nine-year legal battle over a government mistake which led her private employer to undercalculate the amount of maternity leave owed her in 1995. The case ramified and went up to the appeals level before its recent resolution, under which Ms. Alabaster was found indeed entitled to the disputed £204.53; Her Majesty's government estimates that it spent £350,000 defending its side of the dispute. The disproportion is not actually as irrational as it might seem, however, since the issues contested are likely to affect entitlement to maternity leave in many other cases (Becky Barrow, "Mother wins maternity case after nine years", Daily Telegraph, May 4).
"There is some evidence that plaintiffs and their attorneys are profitably short-selling the stock of the companies they intend to sue," writes Moin Yahya of the University of Alberta law faculty in a new paper called "The Legal Status of 'Dump & Sue'" (SSRN, Mar. 9). Strategic litigants or their attorneys thus stand to capture two distinct strands of revenue: one from the eventual settlement of the suit, the other from the profits they capture after their adversary's stock declines on the announcement of the suit. (Alternatively, some lawsuits might be rendered profitable by the gains from short-selling even though they never win settlements at all.) Does insider-trading law as it currently stands prohibit such goings-on? Not necessarily, since litigants and their lawyers don't ordinarily count as "insiders" in conventional terms. But given securities regulators' goal of upholding what they call market integrity, it's hard to see why they would not want to prohibit the sleazy practice. For a dissenting view, see Larry Ribstein (Apr. 11).
Another Seattle case in which a merchant got in trouble for not admitting a dog which was accompanying its owner for purposes of psychological assistance (as distinct from the service provided by seeing-eye and hearing dogs for the physically disabled). This time the Wicker Basket grocery store in Ballard was fined $21,000 after owner Hojoon Park wouldn't let the dog into the shop. ("Merchant fined $21,000 for barring service dog", Seattle Post-Intelligencer, May 3). For earlier cases, see Feb. 28 of this year; Oct. 25 and Dec. 2, 2004; and Jul. 9, 1999, from Seattle.
That would be the withdrawal of Tysabri, a drug that showed markedly better action against progression of multiple sclerosis than any of its predecessors and also combats "flare-ups" of the condition, but was pulled after reports of a possible link to fatalities from a rare side effect. "Some disappointed patients who benefited from the drug have said they're willing to take the risk," but that option's not open to them. (David Rumbach, "Suffering withdrawal", South Bend Tribune, May 4; Michael Fumento, "'Murder on Patients'", TechCentralStation, May 4).
In Palmer Lake, Colo., cops entered the card-playing venue "with guns drawn, lasers trained on people's heads" according to one present. Palmer Lake police chief Dale Smith described the tactics as "standard habit and practice for these kinds of situations." (Jane Reuter, "Small-town poker bust criticized as overblown", Colorado Springs Gazette, Apr. 29)(via Dispatches from the Culture Wars).
The Dive Blog (Mar. 30) discusses a suit filed in Orange County, California in which Brenda Palmer-Shatz of Laguna Niguel blames the actions of Steve Feldman "whether negligent or intentional" for the drowning of her husband Daryll Shatz on Nov. 30, 2003. Feldman had been acting as Shatz's "diving buddy" in the common practice by which scuba divers help watch out for each other's safety. Mrs. Palmer-Shatz's allegations of intentional misconduct, which are of the most incendiary and scandalous nature, are enough to make the suit highly unusual; but her separate allegations of negligence raise some issues of broad importance to the future of scuba diving as a sport, as DiveBlog notes:
I would hate for the perceived potential for liability to cause someone to abandon the buddy system altogether. To my knowledge, there have been very few (if any) instances where a negligence suit has succeeded against a dive buddy.
Reporter Peggy Lowe's coverage of the story in the Orange County Register is reprinted at Underwater Times and Cyber Diver News Network.
You might think it's easy to get people outraged at the idea of the government's pushing for its own favored policies by quietly funneling tax money to one side in public debate. At least when the topic isn't tobacco; in that case, taxpayer-funded Astroturf efforts seem to be perfectly fine. (Tony Messenger, "When judging anti-smoking efforts, follow the money", Columbia (Mo.) Daily Tribune, Apr. 17)(via Jacob Sullum, Hit and Run, in a post titled "Bowing to Their Own Pressure"). For a particularly egregious example from California, see Jan. 5, 2000.
The agency insisted there was a "pattern and practice" of sexual harassment at a company that owned 350 Burger King restaurants in 13 states, but the judge was not impressed with the agency's statistics, and neither is George of the eponymous Employment Blawg (Apr. 27)(via Blawg Review #4).
An appeals court in Houston has ruled that two men can proceed with their intended class-action lawsuit against six strip clubs for having added a $5 fee to the price of a lap dance when paid for with a credit card, a practice they say violates Texas law. As has been previously noted (see Sept. 10, 2003), the fun is likely to begin if and when standard notices go into the mail informing past lap dance customers that a lawsuit has gone forward in their name; many of these notifications are likely to be opened by wives and other family members in the class member's absence. (Roma Khanna, "Panel says men can sue strip clubs over extra fees", Houston Chronicle, Apr. 23)(via The Slithery D). More: Wave Maker (May 5) wonders whether it might not be divorce lawyers, rather than class action lawyers, behind the scheme.
The Canadian maker of the wireless email device in March agreed to pay $450 million to settle the claims of NTP, a company which manufactures nothing and instead makes its way in the world by asserting rights in old patents. Not all is sweetness and light, however: "Critics of the patent system maintain that these companies -- called 'patent trolls' by their detractors -- rely on excessively broad patents, particularly for software, that should never have been granted in the first place." For more on the controversy over patent-licensing firms, see various posts on our technology and intellectual property page. (Ian Austen and Lisa Guernsey, "A Payday for Patents 'R' Us", New York Times, May 2).
Britain's High Court has rejected an appeal by Charlie Brooker of Kent over his conviction for carrying a bladed instrument without good reason. Brooker's lawyer, Mark Hardie, argued that the butter knife in question "had no handle, sharp edges or points and therefore could not fall foul of a law intended to protect people from dangerous weapons", but the judges observed that the law by its terms did not confine itself to sharp or dangerous blades. "During the hearing, Mr. Hardie said the law would now catch even plastic knives restaurants and cafes supplied to customers with take-away food." (Duncan Gardham, Daily Telegraph, Apr. 14; John Aston, "Carrying A Butter Knife May Lead to Prosecution", The Scotsman, Apr. 13).
Why get annoyed at the federal medical privacy law (discussed in this space Mar. 16, Feb. 5, 2004, etc.)?
*Because it means your patients at the VA hospital often have no names on their doors? (MedRants, Mar. 31);And: MedRants has more (May 2).* Because it keeps you from talking about a patient's condition when members of his extended family call to express concern? (Virginia A. Smith and Dawn Fallik, "Questions remain two years after medical privacy act", Jewish World Review, Mar. 5);
* Because it brings out the worst in editorial writers at papers like the Philadelphia Inquirer? (Jeff Drummond's HIPAA blog, Mar. 23).
Last year, after taverns in Madison, Wisconsin bowed to pressure from official programs discouraging youth drinking and agreed to end "happy hour" discounts in the university town, a law firm from Minneapolis swooped down to file an antitrust suit demanding millions for the offense of having colluded to charge higher prices (see Mar. 29, 2004). Now, however, Circuit Judge Angela B. Bartell has dismissed the suit on summary judgment, finding that the bar owners had acted against their will under regulatory constraint. An alderman who represents the downtown area where most of the bars are located "said bar owners had racked up more than $250,000 in legal fees defending themselves"; given our lack of a loser-pays rule, they have no expectation that either attorney Steven Uhr or the three students on whose behalf he filed the action will chip in to defray any of those outlays. (Ryan J. Foley, "Judge: Bars didn't fix price of drinks", AP/Capital Times, Apr. 8; Megan Costello, "Judge dismisses drink special suit", Badger Herald, Apr. 8).
The Christian Science Monitor reports that a computer program designed by a team of criminologists and computer scientists is able to predict the outcome of death penalty cases with better than 90% accuracy. The program considers no law or legally significant facts in making its assessment, instead basing its analysis entirely on factors such as age, race, sex, and marital status of the offender and the date and type of offense.I was considerably less impressed by the 19-variable model. I can devise a zero-variable model that will have a better-than-80% accuracy rate for predicting the outcome of modern American death penalty cases simply by having a model that will always answer "no" to the question "Will the death row inmate be executed?" Given states like California where the death penalty is on the books, and juries regularly sentence criminals to death, but the Ninth Circuit refuses to let the state perform executions, there's little surprise that a model that accounts for location and year of conviction can do even better. (As an ACSBlog commenter notes, part of Harper's "arbitrariness" is reflected in the difference in state laws.) Between 1973 and 2000 there have been about 4500-5000 death row inmates, and fewer than 800 executions. (Susan Llewelyn Leach, "Using software to model death row outcomes", Christian Science Monitor, Apr. 27)(& letters to the editor, May 10 and Jun. 8).The implication, says Dee Wood Harper, one of the researchers and a professor of criminal justice at Loyola University in New Orleans, is that "if this mindless software can determine who is going to die and who is not going to die, then there's some arbitrariness here in the [United States justice] system."
...is raising questions about another sex abuse conviction, this time of a Catholic priest in New Hampshire named Gordon MacRae. ("A Priest's Story", Wall Street Journal/ OpinionJournal.com, Apr. 30). One detail worth recording: a would-be "sting" phone call to the priest, which it was hoped would get him on record making incriminating statements, was made not from police headquarters but from the office of the personal injury lawyer representing an accuser. The New Hampshire press, reporting on Rabinowitz's articles, relays the views of many involved in the legal proceedings against MacRae who consider the accusations against him well-founded (Daniel Barrick, "Writer takes up convicted priest's case", Concord Monitor, Apr. 29; "A radical claim" (editorial), Apr. 29; Denis Paiste, "Judge stands by priest's sex abuse sentence", Manchester Union Leader, Apr. 29). Amy Welborn has a thread. More: Mar. 22, 2004, and links from there; earlier posts.
"A disabled woman who unsuccessfully sued her mother's doctor for wrongful life has won the right to take her case to the High Court." Alexia Harriton, 24, born with multiple handicaps, says a doctor was negligent for not diagnosing her mother's rubella infection during pregnancy; had the infection been diagnosed, mom would have had an abortion. (AAP/News.com.au, Apr. 29). More on wrongful life/wrongful birth cases: Sept. 16, 2004 and links from there. Update May 27, 2006: court rules against wrongful life concept.
