...results in courtroom commotion in Mississauga, Ont., Canada. ("Boy, 10, sues hockey association over demotion", CBC News, Jun. 19; "Hockey lawsuit put off until fall", Mississauga News, Jun. 24). Brendan Butrimas allegedly got booted from the Applewood Hockey Association because of conflicts between his father and officials. His family says the C$10,000 suit is -- had you guessed? -- Not About The Money. "It's not a money grab. This is a case to protect the rights of children," said attorney Harry Kopyto, the family's legal agent. ("Boy sues over fight between his father and hockey league", CP/Globe and Mail, Jun. 19). (Corrected Nov. 27 to specify standing of family's legal agent; a reader writes in to say that Kopyto was disbarred by Ontario legal authorities but "is allowed to appear as an agent/paralegal in Small Claims Court".)
June 2005 Archives
The reality TV show "Trauma: Life in the ER" was filmed at 35 hospitals in 23 states over a five-year period. Now lawyers are pursuing would-be class actions against the New York Times' television subsidiary, Discovery Communications, and various hospitals claiming that the privacy consent given by patients and family members was defective or obtained under false pretenses. Despite protests from defendants that the issue of validity of consent is intrinsically one that requires case-by-case determination, a New Jersey judge has certified a class action for lawsuits within that state. The judge estimated that the number of potential class members nationwide might reach into the hundreds of thousands. (Charles Toutant, "Hospital Patients Filmed for Reality TV Certified as Plaintiff Class", New Jersey Law Journal, Jun. 20). Florida Masochist notes (Jun. 24) that a plaintiff's lawyer suing in Orlando, per the Sentinel coverage, "said the lawsuit doesn't question the right to broadcast the material, but the filming and production process". (Pedro Ruz Gutierrez, "Patients sue over TV appearances", Orlando Sentinel, Jun. 24). That sounds puzzling: if the persons suing aren't objecting to the broadcast of the material, how seriously were they injured by the alleged affront to their privacy?
Opinions vary among physicians as to the likely usefulness of a new device which indicates whether a patient is awake or asleep during surgery. One thing is certain, however: hospitals' decisions on whether or not to adopt the new technology will be strongly influenced by the aim of avoiding litigation, as distinct from the device's perceived medical merits. (Daniel Fisher, "Defensive Medicine", Forbes, Apr. 25).
In a fairly stunning ruling with far-reaching significance for Indian land claims in the Northeast, a panel of the Second Circuit Court of Appeals has thrown out the Cayuga tribe's lawsuit against New York State and local landowners over possession of 64,000 upstate acres, including the $248 million that a trial court judge had earlier determined was owed to the tribe in damages (see Jun. 24-25, 2002). The majority in the 2-1 opinion, led by Judge Jose Cabranes, relied on the U.S. Supreme Court's recent opinion in City of Sherrill v. Oneida, which disallowed a tribe's efforts to assert reservation sovereignty over tracts of land it had added piecemeal through purchase to its previous holdings. According to the majority opinion, the Sherrill ruling revitalizes the equitable defense of laches, or undue delay, which many observers had assumed was unavailable to defendants in the Indian land claim suits. In a dissent, Judge Janet Hall agreed that ejectment of current homeowners was now barred by the Supreme Court's evolving jurisprudence but argued that claims for cash damages should be allowed to go forward.
Should the ruling be upheld following the inevitable petitions for en banc reconsideration, Supreme Court certiorari, etc., it could spell doom for most and perhaps all efforts to revive long-defunct Indian land claims, which have for decades now inflicted injustice and disruption on innocent landowners and others. For our extensive coverage of the issue, see Jun. 27 (Shinnecocks' Hamptons suit) and many links from there. (Diana Louise Carter, "Judges throw out Cayugas' land claim", Rochester Democrat & Chronicle, Jun. 29; Scott Rapp, "Judges To Indians: You're Too Late To Reclaim Land", Syracuse Post-Standard, Jun. 29; Jim Adams, "Second Circuit throws out New York state land claim", Indian Country Today, Jun. 28; William Kates, "Appeals Court Tosses $248M Award to Tribe", AP/Washington Post, Jun. 28). More: New York Law Journal (& welcome Howard Bashman readers). Update Apr. 14, 2006: U.S. Justice Department petitions for certiorari.
Blissful Knowledge is providing extensive coverage (via Megan McArdle)(see Jun. 26, Jun. 20, etc.).
Okay, so lawyers constantly serve as press sources for coverage critical of the people they litigate against, but still.... After the New York Times reports on a revenue-splitting dispute between Lord of the Rings director Peter Jackson and New Line Cinema (Ross Johnson, "The Lawsuit of the Rings", Jun. 27), Jack Shafer wonders: "[S]houldn't there be a Times policy against giving a partisan source, in this case a defense attorney, the cover of anonymity to call the plaintiff in a case against his client piggish?" ("Lord of the Pigs?", Slate, Jun. 27).
Who says you'll never get rich working at Wal-Mart? A federal magistrate judge has just approved a $2.8 million award for disability-based discrimination on behalf of plaintiff Patrick Brady, who suffers from cerebral palsy. The company's offense? It "violated federal and state laws by making a prohibited inquiry [relating to his disabilities] before giving Brady an employment offer. The company also subjected Brady to adverse employment conditions by transferring him from the pharmacy to a more physically taxing position pushing carts in the parking lot, according to the verdict." The magistrate judge complained bitterly about having to reduce the award from the $7.5 million in damages, including $5 million in punitive damages, originally voted by the jury. On the tendency of stringent liability exposure to discourage employers' hiring of disabled persons (workplace participation of whom actually went down, not up, after the ADA was passed), see, among other sources, Jul. 11, 2000, and this NBER paper. (Michael Bobelian, "Court Reluctantly Trims Wal-Mart Penalty", New York Law Journal, Jun. 23).
Tom Kirkendall, and Professors Ribstein, Bainbridge, and Henning on the prospect of charges against unindicted alleged co-conspirator Milberg Weiss (Jun. 27).
Professors Rebecca Tushnet and Eugene Volokh discuss how language in Monday's Supreme Court Grokster opinion could leak into dramatic ripple effects for other industries and products.
Kevin, MD has a continuing series of real-life tales of defensive medicine.
The June 3 Medical Economics article (and associated ten sneaky lawyer questions by Berkeley Rice is old news to any litigator who's defended a witness, but laypeople may be surprised how little the process has to do with truth-seeking. (via Newmark and KevinMD)
Our free periodic newsletter went out to subscribers this morning. Each issue summarizes a few weeks' worth of postings in terse yet wry style. To join the list, change your address, etc., visit this page (requires Google registration).
I've got an op-ed in yesterday's New York Times (in the zoned Long Island weekly edition) on the Shinnecock Indians' recent lawsuit asserting land claims over much of Southampton, N.Y. Readers of this space will not be surprised to learn that I take a dim view of the claim. (Walter Olson, "This Land Is My Land", Jun. 26). For more, see my City Journal treatment of the issue, and, on this blog, most recently Jun. 13 and Jun. 19 (& welcome Michelle Malkin readers).
More: it's reported there's dissension among tribe members about the action (William L. Hamilton, "Casino Interest in Land Bid Divides Tribe in Hamptons", New York Times, Jun. 26). And according to the Washington Post, while the lawsuit looms as a serious hassle for some in Southampton, the wealthiest of the wealthy are paying little heed: "The high-net-worth crowd doesn't really worry about this sort of thing. That's for the locals," says Hampton Sheet publisher Joan Jedell. Insecurity of property as a hazard? That's only for the little people. (Michael Powell, "Old Money and Old Grievances Clash in Haven of the Very Rich", Jun. 25).
(Bumped 6/27, a.m.)
Following a three-year federal probe (see Jan. 28-29, 2002), a grand jury in Los Angeles has indicted retired Palm Springs entertainment lawyer Seymour Lazar, 78, on charges that he collected millions in kickbacks from attorneys in exchange for acting as a plaintiff in dozens of class-action lawsuits. Milberg Weiss, the law firm that represented Lazar, was not named in the indictment; it said it was "outraged" at the "baseless" implications that its lawyers had acted improperly. Mr. Lazar's lawyer, Thomas H. Bienert, described his client as a "crusader for consumer advocacy". (John M. Broder, "Ex-Lawyer Is Indicted on Kickbacks in Lawsuits", New York Times, Jun. 25; Reuters/L.A. Times; Washington Post; Law.com/The Recorder; W$J).
The whole point of the rule of law is the certainty it gives the citizen. There is no greater injustice than for a citizen to be unable to determine what legal consequences would flow from an action contemplated.
-- Matthew Parris, writing on the vaguely worded speech-prohibitions in the British Government's proposed Racial and Religious Hatred Bill. ("This is no sort of way to make a law -– and no sort of law to make", The Times (U.K.), Jun. 25). For more on the legislation, see Jul. 16, 2004 and Jun. 11, 2005.
"The Incredibles" made this point (Dec. 2 and links therein), but, with the critical and box-office success of the comic-book movie "Batman Begins," it's worth exploring how today's litigation culture would make sequels impossible in real life. (Lots of spoilers after the jump.)
Creationists apparently have no monopoly on unscientific nonsense. There's an excellent article in the New York Times on the thimerosal controversy (Jun. 20 and links therein), though it fails to follow the money from the plaintiffs' bar behind the pseudoscience. (Gardiner Harris and Anahad O'Connor, "On Autism's Cause, It's Parents vs. Research", NY Times, Jun. 25). Meanwhile, the Huffington Post spouts irresponsible conspiracy theories for why ABC refused to endorse Robert Kennedy Jr.'s attack on the vaccine industry. The excellent Skeptico blog follows up its earlier post on the subject. And you just knew Michael Fumento would weigh in, and he shows the real costs of the plaintiffs' bar scaremongering:
The conspiracy-mongers have scared parents into not protecting their children. "Sadly, as exemptions proliferate, disease 'hot spots' are cropping up across the United States," observed an article in the Winter 2004 University of Michigan Journal of Law Reform. "Outbreaks of measles, whooping cough, mumps, rubella and diphtheria are reoccurring, costing hundreds of lives and hospitalizing thousands more."Remember that next time you hear the plaintiffs' bar taking credit for safety innovations that have saved lives.
The L.A. Times has a lengthy account of the continuing litigation against famed psychologist Elizabeth Loftus, who after publishing an article in Skeptical Inquirer casting doubt on the "recovered memory" claims of a claimed abuse victim described as Jane Doe, was sued for defamation and invasion of privacy by the real-life woman behind the pseudonym. We originally posted on the case Aug. 26, 2004. (Maura Dolan, "Memory, Pain and the Truth", Los Angeles Times, Jun. 21)(via Nordberg). More: LawLimits (Jun. 23) has more, including the latest procedural status of the case (Calif. Supreme Court agrees to review Loftus's attempt to get the case thrown out under the state's "anti-SLAPP" law, which a lower court declined to do).
Once again the inevitable worldwide triumph of tobacco litigation turns out to be not so inevitable after all: "In the first case of its kind in Britain, a judge rejected Margaret McTear's attempt to sue Imperial Tobacco over the death of her husband Alf 12 years ago. ... Lord Nimmo Smith, at the Court of Session in Edinburgh, said the test case failed on every count. He ruled that Mr McTear knew what he was doing and there was no proof that his cancer was caused by a particular cigarette brand." (Auslan Cramb, "Widow fails to pin blame on tobacco company", Daily Telegraph, Jun. 1). Ever the gracious loser, Northeastern University lawprof-advocate and interest-nondiscloser Richard Daynard called the ruling "an extraordinarily ignorant opinion": "The UK suffers from a conservative, narrow-minded judiciary who don't know or don't want to know the relevant medical and social facts," he said. (Stephen Davis, "Smokescreen", New Statesman, Jun. 27)($).
The High Court of Australia has dismissed a claim against British Airways and Qantas by a businessman who suffered a stroke arising from deep-vein thrombosis (DVT), sometimes known as "economy-class syndrome", after a long-distance flight (see Sept. 12, 2004). "If his case had succeeded, it could have opened the floodgates to dozens of DVT cases which had been prepared to go before Australian courts." (Chris Herde, "Court throws out DVT-related case", The Australian, Jun. 23). More: Oct. 3, 2004 and links from there.
Retiree Diane Hutto of Fort Walton Beach, Fla. bought the giant cosmetics company's "anti-aging" products, but aged anyway. A refund of what she paid wouldn't do the trick, it seems; her lawyer's asking for class action damages that could exceed $5 million depending on the size of the class. (Patrick Danner, "Retiree sues Estee Lauder over anti-aging claim", Knight Ridder/Salt Lake Tribune, Jun. 18).
The mystery guestblogger over at Point of Law has now been revealed: it's Prof. Martin Grace of the highly recommended site RiskProf. He's an insurance and liability expert and will be contributing comments this week and next. We originally announced that there would be a second guestblogger at Point of Law this week as well, but that personage is being held at an undisclosed location and is expected to stop by next month instead.
Also at Point of Law, check out Ted's posts on Kelo v. New London, the eminent domain case decided today by the Supreme Court, and on anesthesiologists and malpractice; Jonathan B. Wilson's posts on recent California Supreme Court rulings on punitive damage limits, a $300 million fee for Bill Lerach, and scary scam suits by prison inmates; and my contributions on such topics as how some securities lawyers get clients and the politics of loser-pays.
Advice for employers, at job interviews ("Interview questions you shouldn't ask", HRHero.com, Jun. 17, adapted from Louisiana Employment Law Letter)(via Michael at George Lenard's).
More: reader Mark Moss comments:
The first item on the list of questions you can't ask prospective employees is, "What is your age?" But sitting on my desk right now is a memo from HR about "I-9 Compliance Update". The DHS requires me to show my employer documents showing citizenship or right to work in this country -- either 1 from list A (e.g., a passport), or one each from list B and C (e.g., driver's license and Social Security card).Apparently, HR is on their honor to skip over the date of birth listed on these documents.
And: George Lenard writes in to say:
Regarding the above observation, as I noted in our comments section, there is a distinction between illegal and unwise questions.ASKING about age when it's irrelevant is a red flag, smoking gun or whatever, not to mention divisive. (Response: "What's it to you, youngster? How old are YOU, son?").
KNOWING about age incidentally, whether from passport, birth certificate, drivers license, or gray hair, wrinkles, and baldspot, is inevitable at some point. I'd look to keeping such information out of the early screening process at least, so the early rejects can't claim age discrim (OK, you and I both know they can CLAIM and SUE for anything whatsoever; I'm talking about doing so without confronting a strong defense -- employer's ignorance.)
We covered this case in detail Nov. 24 and Dec. 21. The court reduced punitive damages from $98 million to $20 million, which means that the total injustice is $23.75 million instead of $101.75 million. The AP version of the story doesn't even acknowledge the auto company's defense. (Randy McClain, "Judge slashes damages against carmaker", The Tennessean, Jun. 21; AP, Jun. 21).
Lawyers Weekly USA has more details about the trial, including the fact that the jury wasn't allowed to hear that, with 7.1 million vehicles on the road, there were only three deaths from collapsing seatbacks. Moreover, the judge permitted plaintiffs to argue liability based on a post-sale duty to warn of (allegedly) improved technology, unprecedented in Tennessee and most other states: thus, according to plaintiffs, when Chrysler merged with Mercedes, Chrysler had a legal duty to inform every single one of its car owners of any safety features on Mercedes vehicles that weren't on Chrysler vehicles (and, one would imagine, vice versa). How this would have prevented a pick-up truck from slamming into the rear of a minivan at twice the speed limit, one wonders, but too many judges have stopped requiring causation to be an element of a tort. (Reni Gertner, "Parents Of Baby Killed In Seatback Collapse Win $105.5M", Lawyers Weekly USA, Jan. 2005).
"I like employment law because it revolves entirely around crazy people," explains the anonymous "Opinionistas," who claims to be a junior associate at a prominent New York firm, at least until senior partners discover her cynical blog:
"Honey, how was your day?" "Um, well, actually I got pissed off and peed all over the floor of the ER, in front of 2 potential cardiac arrests and a trauma victim, so I'm kinda fired. But it was discrimination! They actually fired me because I'm one-fifteenth Native American on my mother's side!" So the guy gets a scummy lawyer to take his case, he sues the hospital, and the hospital calls us for help. Then we demand to see the Urinator's (I come up with little nicknames for all of them) personal email account. Then the real fun begins. Hours spent reading about his extramarital flirtation with Marta, the 3rd floor nurse anesthetist, his anger with his boss for not permitting 3 20-minute coffee breaks each morning, his wife's current interest (or lack thereof) in sex.She also has summer associate gossip (via Legal Reader).
Auburn, Washington dentist Robert Woo mysteriously thought it would be funny to photograph a staff assistant who was under anesthesia with a pair of fake boar tusks in her mouth. When confronted with the photos, she quit and sued for "post-traumatic stress disorder" allegedly triggered by the battery, eventually settling for a quarter-million dollars. Any argument Woo has to victimhood for the ridiculous damages claimed is obliterated, however, because he himself turned around and sued his insurance company for emotional distress for failing "in bad faith" to cover the incident as "dental services." A judge let the matter get to trial, and a jury hit Fireman's Fund Insurance for three times the amount of the original law suit, $750,000, plus another $600,000 in attorneys' fees, before the Washington Court of Appeals threw the case out last week. (Maureen O'Hagan, "Appeals court rules against dentist", Seattle Times, Jun. 16; Woo v. Fireman's Fund Insurance Co. (Wash. App. Jun. 13, 2005); Romensko blog, Jun. 20). Other stories of bad-faith-insurance litigation: Sep. 7 and May 5, 2004.
A senior associate at megafirm Baker & McKenzie's London office fails to understand that he's outranked by his secretary, tries to bill her four pounds for stain dry-cleaning costs, and finds himself the laughingstock of Britain. (Jon Ashworth and Martin Waller, "How a few ketchup splashes, a £4 bill and an e-mail have become the talk of the City", London Times, Jun. 17; Jonathan Brown, "Lawyer in argument over £4 ketchup stain quits firm", The Independent, Jun. 22) (via Leiter).
Amusement park managements in California are unhappy about a new 4-3 decision by the state's supreme court holding that operators of park rides constitute "common carriers" akin to bus and trolley lines for safety purposes, thus exposing them to a higher standard of care in injury lawsuits. Of particular concern: given that passengers on ordinary conveyances are supposed to be protected from dangers that would occasion acute personal fear and emotional distress, what are the implications for roller coasters and other thrill rides in which conveying sensations of that sort is the whole idea? Maybe the brass at Disney (which was the defendant in the suit at hand) weren't being entirely overcautious when they slowed down the Mad Hatter's spinning teacups (see Mar. 4 and Mar. 9, 2004). (Maura Dolan and Kimi Yoshino, "High Court Raises Bar for Safety of Thrill Rides", Los Angeles Times, Jun. 17)(via Ken Masugi, Claremont).
The interests of a fair trial come first, rules New York's highest court. The New York State Defenders Association, for one, had weighed in with an amicus brief in favor of the no-camera policy. The ruling "was a total loss for Court TV", which "had attempted to achieve through litigation what its lobbyists at Ostroff, Hiffa & Associates of Albany could not achieve legislatively. Records maintained by the state Lobbying Commission indicate Court TV has spent next to nothing on lobbying the last few years as its attorney, David Boies of Boies, Schiller & Flexner in Armonk, N.Y., pursued the legal case." (John Caher, In Loss for Court TV, N.Y. Judges Continue Ban on Cameras in Courts, New York Law Journal, Jun. 17).
Jim DeLong surveys the terrain and finds that many significant proposals being considered command a fairly broad consensus; the two most important categories of reform are those aimed at "(1) Reducing the transaction costs of the system, especially litigation; (2) The 'patent quality' issue". ("Patent Reform Hits the Hill", TechCentralStation, Jun. 21).
Jonathan Turley is fond of claiming (without any real basis) that litigation reform advocates make up stories to promote tort reform. The reality is that the plaintiffs' bar provides us with stories far more entertaining than any fictional Winnebago lawsuit.
Remember the day of June 21, 2005, because that's the day that a sufficient number of the world's problems were solved that a "public-interest group" has nothing better to do than to troll for plaintiffs to sue the dairy industry for not putting warning labels on milk about lactose intolerance. This is yet another publicity stunt of Dan Kinburn and the misnamed Physicians Committee for Responsible Medicine, over 95% of whom are not physicians; last time they asked for publicity, we gave it to them. The American Medical Association has called PCRM a “fringe organization” that uses “unethical tactics” and is “interested in perverting medical science.” (via Taylor, who is waiting for vegetarians to sue over beef commercials)
Mostly of interest to other webmasters: the continued assault of trackback spam (hundreds a day now) is making it increasingly hard to maintain our trackback function, especially given the tendency of this site to comment on matters involving casinos, obesity, pharmaceuticals, and other chronic spam-magnet topics. Rather than disabling trackback entirely, I'm going to experiment with turning it off for older posts that are heavily affected. If you happen to link to an older post on which trackback has been turned off, consider sending me an email to alert me (can't guarantee a response, though, I'm afraid).
...is now up, hosted by Al Nye the Lawyer Guy. Our post on the hapless Virginia couple who served liquor to their son's friends comes in for a link, and the host has some very kind things to say about this site and about my book The Rule of Lawyers (which -- have I mentioned? -- makes a great gift for graduates, or belated Father's Day offering).
Other highlights of the review: George Lenard discusses a Seventh Circuit ruling that the MMPI, a standard personality test, counts as a "medical examination" which when administered by an employer to applicants before a job offer is made triggers the application of the Americans with Disabilities Act; and Carolyn Elefant offers advice on how to benefit from blogs without spending a whole lot of time on them.
In Connecticut as well as some other states, land developers have teamed up with low-income housing advocates to promote laws which impose on towns a duty to boost their level of so-called affordable housing and give homebuilders willing to include such housing in their developments a cause of action to go to court to overturn local building restrictions. Norm Pattis of Crime and Federalism (May 9) isn't buying the idea that the resulting litigation, with its tendency to replace the formerly diverse land-use practices of different towns with homogeneous sprawl, really should count as progressive.
Here's a Business Week writer who shares our general view of the federal tobacco suit: "The real affront is that this ill-conceived legal campaign was not halted years ago. ... The Justice Dept. took a mountain of evidence, much of it uncovered by other investigators, applied speculative legal theories, and then proceeded to seek ridiculously overinflated damages. Now most of its original case has been thrown out by the courts, and the agency is scrambling to devise a remedy that will justify all the effort. ...If they indeed are trying to get rid of a Clinton-era case they have never embraced ideologically, as Waxman suggests, the weakness of the case itself only made that all too easy to do." (Nanette Byrnes, "The Tobacco Suit That's Going Up In Smoke", Jun. 27). "I don't know that what the Bush administration has done is any more politically based than what Clinton did in bringing the case in the first place," Paul Honigberg, a member of the Justice Department's legal team on the case until September 2001, told the New York Times. (Eric Lichtblau, "Political Leanings Were Always Factor in Tobacco Suit", Jun. 19)(via Orin Kerr). Before the Clinton White House intervened in the late 1990s, the Justice Department had taken the position that the federal government had no cause of action against the tobacco companies of the sort later asserted. For more, see Sept. 29 and Sept. 23, 1999 (filing of suit), Sept. 21, 2004 (start of trial), and more recently Feb. 5, Jun. 13, etc.
Do you run a cruise ship that may stop at an American port of call, in addition to those of a dozen other countries? Then you may have to retrofit your vessel in various ways to comply with the consumer-accommodation requirements of the Americans with Disabilities Act. Or such is the apparent implication of a U.S. Supreme Court decision handed down Jun. 6. Three Justices dissented. (Spector et al. v. Norwegian Cruise Line Ltd., opinion courtesy FindLaw; Brian Doherty, "Sea of Litigation", Reason, June; Pat Cleary, NAM Blog, Jun. 6; Georgetown Law webcast). See Mar. 2.
One of America's least credible public figures, celebrity environmentalist Robert F. Kennedy Jr., wades into the mercury in vaccines/autism controversy (Dec. 29, 2003, earlier posts) with a "special investigation" for Salon and Rolling Stone rehearsing the contentions of anti-thimerosal activists ("Deadly Immunity", Jun. 16). Orac at Respectful Insolence, who's covered the controversy extensively, hits back hard here, here and here. Reactions from Salon's readers are here, and the online magazine has already been obliged to post several corrections of Kennedy's errors, including the following remarkably embarrassing one:
The article also misstated the level of ethylmercury received by infants injected with all their shots by the age of six months. It was 187 micrograms -- an amount 40 percent, not 187 times, greater than the EPA's limit for daily exposure to methylmercury.
More: Skeptico (Jun. 20) challenges RFK Jr.'s account of a supposedly hush-hush meeting of vaccine scientists held outside Atlanta (via Adler, the Corner).
Once again the application of class action procedure to the world of exotic dancing is raising privacy issues not encountered in your ordinary everyday class action. In recent Texas litigation (see May 3), the concern is the sending of notices in the mail to past lap-dance customers informing them of their rights to recovery over alleged fee overcharges (which notices will in some cases be opened by their outraged spouses and significant others). And now in a San Francisco wage-and-hour class action, former managers of one club are arguing that many of the exotic dancers themselves don't want their real names known and face potentially harmful intrusions into their privacy under any notification plan likely to be effective ("Dear Former Exotic Dancer..."). A lawyer pressing the class action, which concerns alleged misclassification of the dancers as independent contractors, dismisses the management argument as merely tactical. (Pam Smith, "Privacy Worries Don't Shake Up Stripper Class Action", The Recorder, Jun. 14).
On the day the Shinnecock Indian tribe filed the first of an expected series of lawsuits laying claim to wide swaths of the Hamptons (see Jun. 13), the tribe disclosed that its courtroom offensive was being underwritten by wealthy Detroit casino investors Marian Ilitch, who with her husband Michael founded Little Caesars Pizza and since then has gone on to purchase baseball's Detroit Tigers as well as the city's Red Wings hockey team, and real estate developer Michael Malik. "Gateway Funding Associates, a company backed by [Ilitch and Malik], signed an agreement with the tribe more than a year ago to pay for the lawsuit and other 'economic development' initiatives in exchange for a part of any future proceeds, said Tom Shields, a spokesman for Gateway." Champerty has been defined as the practice of aiding in a lawsuit in return for a share in the benefits being sued over; it was illegal at common law but "the prohibitions have been greatly relaxed in modern times" and in some cases abolished. (Katie Thomas, "Shinnecocks launch legal claim to Hamptons land", Newsday, Jun. 16; "Lawsuit backers invest in casinos" (sidebar), Jun. 16; James Langton, "Native American tribe lays claim to the Hamptons", Sunday Telegraph (U.K.), Jun. 19).
"A council is cutting down dozens of healthy trees because it fears that it will be sued if people slip on fallen fruit. Mature crab apple and pear trees are the prime targets of the cull by Havering council, east London, which said it had never been sued by anyone over rotten, slippery fruit on the pavement but the potential existed for such action." Homeowners have protested, to no avail so far. (David Sapsted, "Trees cut down amid fears of fruit case", Daily Telegraph, Jun. 18).
Draconian character of philanthropic legislation, cont'd:
The Virginia Court of Appeals upheld yesterday the convictions of an Albemarle County couple sentenced to 27 months in jail for providing alcohol at their son's 16th birthday in August 2002.George and Elisa Robinson were sentenced originally in Albemarle Juvenile and Domestic Relations District Court to eight years in prison but received the lesser terms after they appealed to Circuit Court....
The Robinsons have acknowledged a mistake in judgment but said they decided to provide alcohol in a safe environment to make sure that no one at the party would be driving under the influence of alcohol.
Cops had entered the couple's property without a warrant; according to the Richmond paper, no sentence as high as 90 days had previously been handed down locally for a similar offense. (Alan Cooper, "Court upholds couple's sentence", Richmond Times-Dispatch, May 18). Radley Balko has more (May 27).
Putting up signs warning visitors of the dangerous rip currents off New Jersey's Long Beach might seem like an obvious step. "However, Long Beach Township Attorney Richard Shackleton said there are liability issues to consider. According to the law, the town does not have to warn people about natural conditions, and if Long Beach put up a sign and a jury found its warnings to be inadequate, the town could possibly be found liable for a drowning or injury. Having no signs, he said, reduces the risk of being sued." (Brian Prince, "Warning: Rip tide alerts not islandwide", Asbury Park (N.J.) Press, Jun. 15). See Jun. 30, 2004 (similar).
Atlanta attorney Jonathan B. Wilson, author of the newly released book Out of Balance: Prescriptions for Reforming America's Litigation System, has now begun blogging at our sister site Point of Law and also has his own weblog site which is eminently worth checking out. And next week two guest bloggers -- both already well established on their own blogs -- are scheduled to begin guestblogging stints there as well. Check it out!
Overruling a trial judge, the Fourth Circuit has ruled that Carin Constantine can sue the George Mason University Law School in northern Virginia as well as professor Nelson Lund (whose work we've cited favorably in the past) over alleged failure to accommodate her disability, in this case severe migraine headaches which led to attendance problems and to an "F" on an exam. Her suit also charges that the university retaliated against her for voicing complaints, chilling her exercise of First Amendment rights. (Jerry Markon, Washington Post, Jun. 15).
They're in pretty sorry shape, but the city government isn't wild about the idea of letting volunteers spiff them up. "Topping the list are liability concerns -- what happens if someone throws out their back patching the gopher holes in the outfield and decides to sue the city?" On top of that, there's the reluctance to pick a fight with unionized city workers who might feel entitled to be paid for the same work. (Rachel Gordon, "Teams offer help on parks", San Francisco Chronicle, Apr. 29)(via Common Good Society Watch).
Good news for a change: a bill awaiting the signature of Texas Gov. Rick Perry would restore some discretion to school boards, reducing the chances that students will be expelled over inadvertent violations of zero tolerance rules. In particular, according to a newspaper report quoted at Zero Intelligence (Jun. 6),
If the bill becomes law, students still could face severe sanctions for serious offenses, such as bringing a weapon onto a campus or a school-sponsored activity off campus. But if the bill passes, administrators would be able to consider the student's intent or lack of intent, disciplinary history, a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the conduct and whether the action was done in self-defense.
Both Democratic and Republican lawmakers took active roles in support of the bill. (Helen Eriksen, "Discipline bill on Perry's desk", Houston Chronicle, Jun. 4).
Trademark and copyright battles, it turns out, have helped shape the course of development of comic-book superheroes, including their names, histories and even the array of powers they wield. Jon Rowe (Jun. 12) sorts out some of the complications.
After golfer Payne Stewart and several others were killed in a 1999 plane crash, Stewart's survivors sued a list of defendants starting with the aircraft's owner and its operator; perhaps the deepest pocket sued was that of Canadian-owned Learjet, which stood its ground, took the case to trial and was entirely vindicated by a jury last week. ("Jurors clear Learjet in Payne Stewart crash", AP/FoxSports, Jun. 10; "Payne Stewart family sue over air crash", GolfToday (U.K.), undated 2000). DropZone has a comment thread which includes a discussion of the practice of suing multiple defendants after air crashes (and then working up theories against them individually as needed) and also includes some jaded comment about Instance #785,423 of It Not Being About The Money:
Tracey Stewart, her teenage son and college-aged daughter and Fraley's widow, Dixie Fraley Keller, said through a statement that "their hope in this effort was to make air travel safer ...""They brought this litigation not because of money in any capacity; it was always about responsibility," said attorney Gregory McNeill.
The suit had demanded $200 million.
It's not exactly a secret around Washington that Sen. Chuck Grassley (R-Ia.) has been a good friend to the corps of plaintiff's lawyers who employ the False Claims Act (the so-called "whistleblower" law) to sue universities, defense firms and other federal contractors. But is he also doing favors for the team of lawyers headed by Dickie Scruggs suing many of the nation's nonprofit hospitals over alleged failure to meet charitable obligations? The American Spectator's anonymous "The Prowler" assembles some of the evidence ("Grassley, Lott & Scruggs", Jun. 14).
David Bernstein and commenters (Jun. 10) discuss a 1999 case (Canesi v. Wilson) in which the New Jersey Supreme Court held that a woman could sue over the "wrongful birth" of a baby with birth defects because the doctor didn't warn her that a drug he prescribed during the pregnancy was suspected of causing such defects, even though she was unable to offer any expert testimony indicating that the drug had actually caused the defects (and scientific evidence was accumulating that it had not in fact done so).
David Asman, reflecting on his wife's experience in British and American hospitals, notices some patterns ("There's No Place Like Home", American Spectator/Wall Street Journal, Jun. 8):
There is also much less of a tendency in British medicine to make decisions on the basis of whether one will be sued for that decision. This can lead to a much healthier period of recuperation. For example, as soon as my wife was ambulatory, I was determined to get her out of the hospital as much as possible....Now try leaving a hospital as an inpatient in the U.S. In fact, we did try and were frustrated at every step. You'd have better luck breaking out of prison. Forms, permission slips and guards at the gate all conspire to keep you in bounds. It was clear that what prevented us from getting out was the pressing fear on everyone's part of getting sued. Anything happens on the outside and folks naturally sue the hospital for not doing their job as the patient's nanny.
Why are the Brits so less concerned about being sued? I can only guess that Britain's practice of forcing losers in civil cases to pay for court costs has lessened the number of lawsuits, and thus the paranoia about lawsuits from which American medical services suffer....
...is up at InternetCases.com. Coverage includes our reparations posts.
It's one thing when heavily lawyered-up Indian tribes bid to eject the residents of, say, Syracuse or Binghamton. But this is the Hamptons! It's, like, a real news story now (Ann Givens and Andrew Metz, "Pricey bay tops tribal wish list", Newsday, Jun. 12; Bruce Lambert, "Shinnecock Tribe Plans Suit, Claiming Land in Hamptons", New York Times, Jun. 12).
L.A. Times has some good coverage of the Justice Department's much-criticized decision last week (see Jun. 10) to scale back the damages it's asking in its wretched Clinton-legacy tobacco suit:
Law professor Turley [Jonathan Turley of George Washington University, not suspected of overmuch sympathy with the views of this page] said he believed "legal realism and political realism" were the main reasons for the 11th-hour retreat.The Justice Department had "seemed to be in institutional denial," Turley said of the consequences of the appeals court defeat [in February, before a D.C. Circuit panel]. "By reducing the (requested) damages it brings the case more in line with that ruling."
Noting that the case has lasted six years at huge cost to the government, Turley said Justice officials are "very sensitive about the 'resume factor' in this case." The change "lays the groundwork for the spin that they labeled the industry as racketeers and they got the damages they asked for," he said.
Tobacco lawyers have ridiculed the new proposal. Ted Wells, a lawyer for Philip Morris USA, said it was a $280 billion case, then a $130 billion case, now a $10 billion case and "eventually it will be a zero-dollar case."
(Myron Levin, "Civil case against tobacco is turning to ash", Los Angeles Times/Detroit News, Jun. 11).
Does a health insurer risk legal liability if it urges its insureds to save money on prescriptions by splitting pills in two, and even provides them with pill-splitting devices to do so? On Mar. 25 Ted reported on the apparent failure of one such lawsuit; now Beldar (Jun. 10) and his commenters are having an extended discussion of the question.
Last Monday I addressed Manhattan physicians at the annual meeting of the New York County Medical Society (more on its views). And this coming Friday I'll be on a panel discussion at the annual meeting of the Arizona Bar Association in Tucson. If you're interested in booking either Ted or me for appearances, just email.
When prominent Mississippi trial lawyer asked his old law school classmate Leonard Radlauer to do him a favor -- serve as the go-between in a transaction in which Minor paid off a $118,652 loan owed by former circuit judge John Whitfield -- Minor was quite concerned that the local media not get wind of the transaction, according to Radlauer's testimony in the ongoing corruption trial. Oops... (Jimmie E. Gates, "Minor's money transfer recalled", Jackson Clarion-Ledger, Jun. 7). More: Apr. 30, 2005, Sept. 20, 2003 and many others.
Texas Lawyer has a well-reported and personality-filled article, unfortunately not online, detailing how the state's plaintiffs lawyers became "in many ways...the victims of their own success"; it happened when "tort reformers, provoked by the plaintiffs bar's hubris, particularly as it was asserted at the state Capitol in Austin, galvanized themselves over the past 15 years to topple the trial lawyers' dominance over Texas politics." Also a lot about asbestos-suit reform (Miriam Rozen, "Paradise Lost; Plaintiffs Bar Bemoans End of an Era as Tort Reformers Target Asbestos", Texas Lawyer, Feb. 28, not online). A Medill News Service dispatch from last December quotes me on the subject of class action jurisdiction (Betsy Judelson, "On the Docket: Getting Out of Madison County", Medill News Service, Dec.). And Automotive Industries, in an ambitious backgrounder on the liability explosion, mentions my Hillsdale College speech of last year (Gary Witzenburg, "Urgent Need for Tort Reform", April).
Blasphemy laws vs. free speech: The courageous Italian journalist has been ordered by a judge in Bergamo, Italy, to stand trial on charges of defaming Islam in her book "The Strength of Reason". (Marta Falconi, "Judge Orders Italian Author to Stand Trial", AP/San Francisco Chronicle, May 25; Stefan Beck, New Criterion "Armavirumque", May 25; Jun. 11-12, 2002). For more on European blasphemy and "hate speech" laws, see Aug. 23-25, 2002 (prominent French author tried and acquitted on charges of "insulting Islam"); Mar. 17, 2005. For similar proposals in Great Britain, see "Rushdie fears govt bill will undermine freedom of speech", ABC (Australian), Jun. 10; Jul. 16, 2004.
Jacob Sullum has some comments (see May 22, Feb. 5 and links from there).
Reader John Steele Gordon writes, concerning the Wachovia announcement: "The WSJ had a story on May 10th about the same thing, only then it was J.P. Morgan Chase's turn to grovel and donate. I wrote the following, which they had the bad sense not to publish:
Regarding the article about J.P. Morgan Chase spending heaven knows how much money to uncover the fact that some remote corporate ancestor had held a mortgage on slaves:
Laws requiring corporations to do this are a historians' relief act and, naturally, I'm all in favor of employing historians. But far more perniciously, these laws in effect work "corruption of the blood." This medieval doctrine visited numerous legal disabilities upon the descendants of those attainted for treason, sometimes for generations. My distant ancestor Lt. Col. Daniel Axtell, for instance, was hanged, drawn, and quartered for the crime of regicide, having commanded the guard at the trial of King Charles I. His son, unable to practice law in England because of his father's crime, emigrated to South Carolina.
The Founding Fathers, in their wisdom, forbade this grotesque inequity in Article III, Section 3 of the Constitution, and England abolished it in the reign of King William IV, 170 years ago.
Now it's back, at least for corporations if not, yet, people. But in fact it's even worse. Daniel Axtell at least committed a crime under the laws of the day and was savagely punished for it. The Citizens Bank of Louisiana, fully four generations ago, did nothing whatever that was illegal and suffered no retribution in its day. But its remote descendants -- the stockholders of J. P. Morgan Chase -- are being punished, ex post facto.
This is not progress.
More: Michelle Malkin, who was on the issue last week, generously links to our coverage in a post today.
Or does actor Russell Crowe just have deeper pockets and greater vulnerability to legal process than your everyday telephone-throwing ragehead? (Daily Telegraph (Austr.), Jun. 10).
The Thirteenth Amendment abolished slavery in 1865. Wachovia Corp. was founded in 1879. But the corporation found it necessary to issue a public apology for its "role" in slavery: to wit, slaves owned by "the Bank of Charleston and the Georgia Railroad and Banking Co.—two of the approximately 400 financial institutions dating back to 1781 that over the centuries merged with or were acquired by other institutions that eventually became part of the conglomerate known today as Wachovia." Jeff Jacoby is critical of the decision.
'Forcing Wachovia to ransack old records for links to slavery is nothing but a prelude to a shakedown," warns Peter Flaherty, president of the National Legal and Policy Center, which has published a detailed critique of the reparations campaign. ''By trying to appease these hustlers, Wachovia only encourages greater demands."(Boston Globe, Jun. 9; NLPC report) (via Volokh). Earlier coverage: Jan. 26, 2004.
This is really priceless, and was called to our attention by Prof. Bainbridge (May 31): the Securities and Exchange Commission menaces publicly held companies with ruinous legal enforcement actions if their accounting controls fall short, even sometimes when the lapse arises through inadvertence. But according to a General Accounting Office report (GAO-05-244), its own house is in far from perfect order:
In GAO's opinion, SEC's fiscal year 2004 financial statements were fairly presented in all material respects. However, because of material internal control weaknesses in the areas of recording and reporting disgorgements and penalties, preparing financial statements and related disclosures, and information security, in GAO's opinion, SEC did not maintain effective internal control over financial reporting as of September 30, 2004. (emphasis added)
Accounting watchdog, audit thyself!
Tom Leykis's highly successful Westwood One radio show is geared to reach men 25-34, an advertiser-coveted demographic. When Marty Ingels, a 67-year-old talent agent and former sitcom actor (1962's I'm Dickens, He's Fenster) called in to the show, he was eventually put on the air, but Leykis launched into a series of japes poking fun at his age. Ingels proceeded to sue under California's super-broad Unruh civil rights act and its equally super-broad s. 17200 unfair competition law, but an appeals court has now agreed with the broadcaster's request to throw out the suit as violative of the state's SLAPP statute, which is aimed at restricting some lawsuits that threaten free speech. (Kenneth Ofgang, "C.A. Rejects Age Bias Suit Over Exclusion From Radio Talk Show", Metropolitan News-Enterprise, May 31; Ingels v. Westwood One, opinion in PDF format courtesy FindLaw; Silicon Valley Media Law Blog, May 26).
...probably don't raise much of a liability problem for the airline, according to commenters at Dissemination.org (Jun. 7). More: although the announcements may not pose a problem safety-wise, they did land Southwest in legal hot water a couple of years back in the famous "Eenie Meenie" brouhaha: see Jan. 22, 2004.
Foreseen if authorities tighten regulation of the wild fungi business. (Kate Pickert, "Intelligencer: Mushrooming Anxiety", New York, May 9).
Another short stack of correspondence appears on our letters page. Among topics this time: wheelchair access to lifeguards' towers; more on the arbitrariness of capital punishment; the high error rate of civil litigation; and Johnnie Cochran, Jr.'s most famous case.
With help from the folks at Verio and Movable Type, it looks as if we've managed to restore the site to full functionality, including TrackBack. Anyone who linked to posts made in the last couple of days should be advised that 1) recent posts were renumbered as part of the restoration of the site, which will break incoming links; 2) pings sent to us over that period were lost.
The Kentucky Bar is advancing the unreasonable position that when a lawyer operates a weblog, every post he or she puts up counts as an advertisement for legal services. Ben Cowgill is at the center of the controversy, and on the case are David Giacalone, Eugene Volokh, Larry Ribstein, Evan Schaeffer and John Steele, among others. More: Stephen Bainbridge enters a partial dissent.
Some of us have been worried for years that the movement for black reparations, which henceforth has mostly concentrated on demands for money from large institutions, might develop in the direction of a movement to contest land titles in the South and elsewhere, with hugely destructive results. Now comes word of the "Reclamation Of Southern Assets, or ROSA, project", funded in part by a Congressional Black Caucus initiative. Here's a bulletin from Chicago:
From noon to 3 p.m. on June 11, six law students from DePaul and five from Southern universities will listen to stories from forgotten heirs. They will review documents and compile information needed to research claims. Over the next eight weeks, these future lawyers will arm themselves with deeds and titles....Besides helping Chicagoans sort through their land claims, the ROSA project allows law students to get a jump on their careers.
Ray Waters, an instructor at DePaul's College of Law, "hopes the ROSA project will result in legislation that will make it easier for heirs in Chicago to bring suit in federal court against relatives in the South". Wait a minute -- suing relatives? Well, that's a second and perhaps unexpected dimension to the story: although much of the political rhetoric concentrates on the misdeeds of white owners and businesses, it turns out that a large share of the land grudges that preoccupy displaced black Southerners are against their own kin. (Mary Mitchell, "Reclaiming land may be bigger than reparations", Chicago Sun-Times, Jun. 5; "Shady down-South stuff", Feb. 20).
Concerned citizens demand that it be stopped!
Around 24-36 hours ago Overlawyered suffered an unexplained failure in our posting software, arising from a breakdown in the system's handling of TrackBack pings; the ill effects have included an inability to update our front page. I've been working with the people at Movable Type all day and following their suggestion have deactivated TrackBack pings for the moment, which seems to restore the site's other features, including front-page posting, to normal operation. (Old incoming pings have not been lost, but are just not being displayed). I expect there will be quite a bit of further work needed in coming days to fix matters for the future including, I hope, restoring TrackBack functionality.
Incidentally, if at any time the site should show signs of having frozen up, it is always a good idea to check my other site, Point of Law, for updates.
...is up at Jurispundit, and includes a link to Ted's informal London-based hot beverage research.
"Ralph Nader says an architectural firm is now 'putting final touches on the plans'" for his long-envisioned Museum of American Tort Law in his hometown of Winsted, Ct. "So far, says Nader, he's raised half of the $4 million needed to open the museum -- adding that he expects the rest to come from the trial-lawyer industry." A New York Post editorial (Jun. 4) says all that needs to be said about the matter. See also John Leo's 1998 column on the museum proposal, and our posts for Sept. 27, 1999 and May 16, 2000. P.S. Readers Troy Hinrichs and Walter E. Wallis write in to foretell the headaches the museum's designers and groundskeepers will face as they try to prepare for opening day; the impending arrival of the world's most litigious clientele will test to the limit their ability to anticipate slip-fall hazards, handicap compliance problems, potential injuries to burglars trying to sneak into the building after hours, and so forth.
Graduation time is here. "My advice to other principals is, Whatever you do, do not name a valedictorian. Any principal who does is facing peril," is the quote from one Florida high school principal in a New Yorker article on the subject. Subhead: "Students are suing their way to the top." Valedictorian controversies have escalated into numerous lawsuits (which we've covered the last two seasons: 2004 and 2003 (also here)). (Margaret Talbot, "Best in Class", Jun. 6).
A Glenview Elementary School teacher briefly left his sixth-grade class unattended, and the kids decided to play a game called "Chubby Bunny" to see how many marshmallows they could hold in their mouth at one time. Unfortunately, 12-year-old Catherine "Casey" Fish was a tad overambitious, and choked to death on the three or four marshmallows she had in her mouth, and her parents sued the teacher and the school district for not having a teacher physically present to deal with the consequences of their daughter's actions. The school district decided to settle the case with insurance funds. As is inevitable, the family's lawyer denied that money was at the center of the case, and the newspaper allows the fiction: "John and Therese Fish's wrongful-death lawsuit involving their late daughter, Catherine, was never about money but was meant to publicize hazards of such 'idiotic' games, the couple's attorney, Francis Patrick Murphy, said." It's not likely we'll see follow-up on how much of the money the Fishes spend on anti-marshmallow-choking public service advertising. (Rummana Hussain, "Family of girl who choked to death gets $2 mil.", Chicago Sun-Times, Jun. 3; Lisa Black, "Settlement reached in choking lawsuit", Chicago Tribune, Jun. 2; Romenesko blog, Jun. 5).
"It doesn't chase ambulances. Honest." Also quotes me (Margot Sanger-Katz, "Scenes: The Mobile Law Office", Legal Affairs, Mar-Apr.)(see May 18, 2004).
The New York Times reports on what can be a real estate nightmare. Jay W. Rosen stole $3.6 million from his clients, and will be sentenced to prison after pleading guilty. (Patrick Healy, Jun. 5).
"The fan who originally gloved and then fought to keep Barry Bonds' 73rd home run baseball may still owe his former attorney more than what the ball fetched at auction, a California appeal court ruled May 24." Attorney Martin Triano says Alex Popov owes him $473,530; lawyers for Patrick Hayashi, the other disputant in the squabble, agreed to roll back their fees so that he would not come out behind on the episode. (Warren Lutz, "Bonds' Ball Litigant Strikes Out in Fee Fight", The Recorder, May 31). See Jul. 1 and Jul. 12, 2003 and Jan. 3, 2004. And independent filmmaker Michael Wranovics has made a documentary about the whole episode entitled "Up For Grabs" which won the Audience Award for Best Documentary at the Los Angeles Film Festival and has been getting good critical reviews (Clint O'Connor, "A record-breaking hit brings out the base instincts in sports fans", Cleveland Plain Dealer, May 27; Glenn Whipp, "Big hit, comedy of errors", Long Beach Press-Telegram, May 12; "Film Listings: Ongoing", San Francisco Bay Guardian, May 4-May 10; Neil Davis, "You gotta catch 'Up For Grabs'", Stanford Daily, May 9).
The embattled New Jersey attorney, best known for international reparations claims, is now responding to charges that he mishandled money he secured for Holocaust victims. (Kate Coscarelli, "Embattled Holocaust attorney blames state", Newark Star-Ledger, Jun. 2). More: Mar. 18, Feb. 16, Feb. 5 and many others.
"Welcome to New Jersey. A horrible place to do business," reads the billboard message [erected by William Juliano, a discontented Mount Laurel, N.J. businessman]...So far, the state has done nothing about the billboard, and it's unclear whether it could. "At some point, we'll have to consider action against him," [Environmental Protection chief Bradley] Campbell said, implying a potential legal fight.
(Geoff Mulvihill, "A sign of the times: New Jersey 'horrible'", AP/Akron Beacon Journal, Jun. 2). More: Ron Coleman also noticed this one (Jun. 2).
AP takes a look at the relentless, money-driven efforts of state law enforcement officials and tobacco majors in league together to suppress competition from upstart cigarette-sellers, a story covered often on these columns (see Feb. 15, 2005; Feb. 28 and May 11, 2004, etc.) "'It's 46 state attorneys general, the 200 or so wealthiest trial lawyers in the world and the six largest tobacco companies against a bunch of very small businesses who are losing money,' said Jeremy Bulow, an economics professor at Stanford University." (Stephanie Stoughton, "Landmark tobacco settlement faces increasing challenges", AP/Maryville (Tenn.) Daily Times, May 31).
More wince-making fact patterns in (for all we know perfectly meritorious) litigation: the exploding porta-potty that badly injured a hapless worker at a West Virginia coal mine, allegedly ignited by leaking methane gas (Natalie Neysa Alund, "Porta-John blast victim sues for $10 million", Morgantown Dominion Post, Jun. 2); the instance of alleged police brutality inflicted on a Western Pennsylvania woman nabbed on suspicion of prostitution and thrown into a cop car with such force that one of her breast implants burst (according to her lawyer, Harry J. Smail Jr., who has figured in these columns before)(Matthew Junker, "Arnold police slapped with federal civil rights lawsuit", Pittsburgh Tribune-Review, May 26). More in the genre: see, for example, Jan. 7-8, 2002.
Who gets your ones and zeroes? (John Boudreau, "Pondering new puzzle: who inherits digital data", San Jose Mercury News/Wichita Eagle, May 29)(via Denise Howell, Between Lawyers).
Following up on Monday's post about the controversy over nominee Janice Brown's dissent from Aguilar, a California Supreme Court decision which extended the reach of harassment law at the expense of free speech: James Taranto notes (May 31) that at the time the court handed down its decision in Aguilar, the San Francisco Chronicle described it as a "blockbuster" that "stunned constitutional experts". He wonders: "How can dissent from a decision that 'stunned constitutional experts' turn in a few years into a view that's totally 'out of the mainstream' [the New York Times' words]?" And Eugene Volokh (Jun. 1, crediting Hans Bader) points out that while the AFL-CIO now blasts Brown for her "troubling and extreme" refusal to go along with the Aguilar majority, "the National Writers Union -- a member union of the AFL-CIO -- proudly filed an amicus brief urging the same result that Justice Brown endorsed."
Another big defeat for the gun-control-through-litigation movement: a Florida appeals court has upheld a trial court's decision to throw out a $1.2 million jury award against gun wholesaler Valor Corp. over the murder of Lake Worth English teacher Barry Grunow, murdered by a student who had stolen a Raven-brand handgun distributed by Valor from his grandfather. See Dec. 13-15, 2002 and Feb. 4-5, 2003. (Sara Olkon, "Judges: Gun distributor not to blame in death of Lake Worth teacher", Miami Herald, Jun. 1). More from Dave Kopel (Jun. 2) (Corrected Jun. 2 to fix erroneous description of relationship between gunmaker and wholesaler).
These seem to be popular among the opinionizers at the new Huffington Post, but medblogger Orac casts a deeply skeptical eye on them (Mar. 25)(via Grand Rounds). More on these theories and the very considerable litigation they have spawned: Dec. 29. 2003, earlier posts.
Our free periodic newsletter went out to subscribers this afternoon (in fact, they may accidentally have received two copies -- we're still getting the hang of the new interface). Each issue summarizes a few weeks' worth of postings in terse yet wry style. To join the list, change your address, etc., visit this page (requires Google registration).
Pseudonymous blogger "Robert Musil" has resumed his financial and political blogging after a hiatus and is drawing pointed lessons (May 31, Jun. 1, Jun. 2) from yesterday's unanimous Supreme Court decision overturning the conviction of Arthur Andersen in the Enron affair. For more on the Andersen case, see Point of Law's coverage yesterday and today. Among other financial topics "Musil" has been commenting on lately: the Enron scandal itself (here and here), Sarbanes-Oxley (here and here), and the Supreme Court's recent rebuke to the Ninth Circuit on the calculation of damages in securities cases, in the Dura case.
On a different note, alas, Tim Sandefur is suspending posting at his Freespace blog, which has been a valuable resource on law and libertarian philosophy and often the target of links from this page. Incidentally, the blogroll on Overlawyered's front page (right-hand column) is deliberately kept short (and rotated fairly often), but the site's General Links page offers a longer blogroll which readers may enjoy exploring, as does Point of Law (left column).
Doctors admit ordering unnecessary diagnostic tests or avoiding troublesome patients for fear of malpractice lawsuits, perhaps harming care in the process, a survey released on Tuesday said.The survey of 824 Pennsylvania physicians [in six specialties considered susceptible to litigation] found 93 percent confessed to ordering unnecessary tests, while 42 percent said they referred patients elsewhere if they had complex problems or were perceived as litigious. Both practices are referred to as so-called defensive medicine.
"The most frequent form of defensive medicine, ordering costly imaging studies, seems merely wasteful, but other defensive behaviors may reduce access to care and even pose risks of physical harm," wrote lead author David Studdert of the Harvard School of Public Health.
(Andrew Stern, "Doctors' Fear of Lawsuits May Hurt Care", Reuters/ABCNews.com, May 31). For more on defensive medicine, see, among others, Feb. 1, 2004, Jun. 5, 2002, Point of Law, Apr. 10, and this Peter Huber column on an earlier Daniel Kessler study. Plus: KevinMD has more links here and here on the new study.
Creatively resolving grievances without resort to legal process:
As time went on [at my first job after law school, at the federal courthouse in Kansas City, Mo.], I met all manner of people who had business for the court. We met several people who complained that some government department or other was beaming invisible rays at their heads. One of these poor souls came in on a quiet Friday afternoon, so another clerk and I took him over to the Lexis terminal, at that point an imposing stand-alone console about the size of a small desk. We turned it on, typed in "Stop beaming rays at John Doe's head," hit "enter" and turned it off. Doe left happily, the voices in his head now silent, and we returned to our duties, knowing that we had helped one American citizen obtain justice in an imperfect world.
(Tom Alleman, "Are Pro Se Suits Ridiculous, Per Se?", Texas Lawyer, May 9).
The weekly roundup of medical blog posts, hosted this week by Dr. Sanity, is kind enough to mention our post on disabled doctors and their legal rights.
