November 2005 Archives

This evening I took advantage of the hospitality of the folks at TechnoLawyer.com who secured the use of a dandy bar in Tribeca for the launch of a new eBook they are giving away to their customers, "BlawgWorld 2006: Capital of Big Ideas". The book is discussed at length over at Evan Schaeffer's today by Ted, Mike Cernovich and others. I enjoyed meeting other guests, among them Bruce MacEwen of Adam Smith Esq. and Arnie Herz of LegalSanity, both of which blogs are deservedly popular among practicing lawyers.

Arizona Republic takes a look at lawyers' advertising (Hal Mattern, Nov. 27).

The first battle over the constitutionality and scope of the Protection of Lawful Commerce in Arms Act is taking place in Judge Weinstein's courtroom in City of New York v. Beretta U.S.A. Corp.. The AEI Liability Project has the briefing available in the November 29 entry in its Documents in the News page. Previous coverage: Apr. 13, 2004, Nov. 9, and Nov. 25.

Our discussion of overcriminalization (Nov. 20) has got Coyote to thinking (Nov. 21) about some of the headaches involved in complying with labor and employment law:

Now, I'm not talking about chaining employees to the assembly line or even paying below the minimum wage. I am talking about $45,000 fines for not splitting the two portions of a Davis-Bacon wage out correctly on a pay stub or getting sued for not properly posting one of your required labor department posters or having a counter 1/2" too high for ADA regulations.

Follow his links to learn about an instance in which labor regulators refused to concede that a camping business in a national forest qualified as recreational.

First BlackBerry, next eBay? As patent disputes threaten to shut down whole pillars of the electronic economy, the question becomes more urgent whether patent holders should be entitled to automatic injunctions against infringers. Abolishing the injunction entirely might be too radical, argues Fortune's Roger Parloff; the better course may lie in giving judges more discretion. ("Pay Up -- or You’re Done For", Fortune, Dec. 12). More on the BlackBerry case: Oct. 11, May 2. And a news update: "Setback for BlackBerry maker", Reuters/Money/CNN, Nov. 30.

Sen. Arlen Specter has risen to the level of self-parody and "accused the NFL and the Philadelphia Eagles of treating Terrell Owens unfairly, and might refer the matter to the antitrust subcommittee of the Senate Judiciary Committee." The AP story quotes a couple of experts as noting that there isn't an antitrust problem in much more polite terms than I would have. (AP/ESPN, Nov. 29 (hat-tip L.S.)). Owens seems to provoke a lot of silliness: see Nov. 24 and links therein.

It's not as if these fraud rings were anything new (more), but a few of the details this time are particularly piquant:

A lawyer recruited 29 people, including some from a Bible study class, to stage more than 60 automobile crashes on Los Angeles freeways and collected millions of dollars in bogus insurance claims, authorities said Wednesday.

Typically members of the ring would head out in two cars onto a freeway and box in an unsuspecting SUV or commercial truck, then slam on the brakes so as to cause an accident for which passengers in the lead car could file a legal claim.

Although no one was seriously injured in the accidents, one victim was forced to close his business after his truck was totaled, officials said....

Among those involved were members of a Bible study group from the Inland Empire, said Marty Gonzales, chief investigator for the California Department of Insurance....

Many of the suspects were illegal immigrants who were promised they would earn hundreds if not thousands of dollars, Gonzales said.

In reality, some were paid nothing....

According to the insurance commissioner's office, [22-year-old Humberto] Carlon set up the accidents and Laufer [personal injury lawyer Bernard Laufer, 52, of Huntington Park] paid him a fee to represent the phony victims in claims against insurance companies....

Such crash rings are not new to Southern California.

A family of three burned to death on the Long Beach Freeway in 1996 in an accident linked to a crash ring.

(Amanda Covarrubias, Los Angeles Times, Nov. 24).

Point of Law is your one-stop shop for detail on the Vioxx-litigation background of it all. (Linda A. Johnson, AP/ABCNews.com, Nov. 28).

She's from Albany, not New York City, which may possibly be one reason Sarah Chamberlain and her family have no plans to file suit over the accident at the Macy's Thanksgiving Day Parade. One of the giant balloons hit a lamppost and brought debris raining down on Sarah, who needed nine stitches to her head, as well as her disabled sister Mary, who wasn't seriously hurt:

Sarah and Mary's father, Stephen Chamberlain, staff director for the Public Employees Federation, said the family has no intention of taking Macy's or the city to court.

"To me, the lawsuit-lottery stuff is almost dishonest," he said. "This was an accident. We're just very thankful no one was seriously injured."

(Joe Mahoney, Celeste Katz and Tracy Connor, "Her spirits are sky high", New York Daily News, Nov. 26). "Miracle on 34th St.", one columnist calls the family's lack of litigiousness (Arnold Ahlert, New York Post, Nov. 28).

More: "The father's words should be inscribed on a plaque and affixed to the base of the pole, memorializing a place in the city where a mishap occurred and nobody went to court," writes Daily News columnist Michael Daly, who quotes a subway ad and website which dangle enticing dollar sums in front of potential litigants. "'Between the two of them [Sarah and her sister] you could hit a million dollars,' one noted attorney said yesterday." ("Greed didn't suit him", Nov. 27). And CBS Early Show commentator Harry Smith calls Mr. Chamberlain's attitude "heroic and refreshing" ("Accidents Happen", Nov. 28).

Lawyers blame Jacksonville Navy hospital doctors for Kevin Bravo Rodriguez's severe cerebral palsy (Nov. 12; Nov. 4, 2004; Feb. 2, 2004; Aug. 13, 2003; etc.). He cannot see, speak, swallow, or move his arms and legs, and will not live past age 21. Modern technology saved Bravo Rodriguez's life after he was born without a heart-rate or respiration, and keeps him alive with 24-hour care that was adjudged to cost $10 million over the course of short life. The verdict included $50 million in pain and suffering. Because this was a Federal Tort Claims Act case, a judge was the finder of fact, and Carter-appointee Senior District Judge Jose A. Gonzalez can be credited with the largest FTCA verdict in history, which (including the millions in jackpot attorneys' fees) will come out of taxpayers' pockets unless it is reversed on the government's promised appeal. (Nikki Waller and Noaki Schwartz, "A bittersweet $60.9 million", Miami Herald, Nov. 25). This is attorney Ervin Gonzalez's second appearance in Overlawyered this year for a $60 million+ verdict—see July 10.

...of EnviroPundit green building blog, for kindly nominating Overlawyered for Best Law Blog in the Weblog Awards 2005 nominations.

Comedian Sacha Baron Cohen, on a website supposedly maintained by his "Borat" character, claims to welcome the Kazakhstan government's threats to take legal action against him for his spoof. ("'Sue me', says Borat", Stuff (N.Z.), Nov. 28; Althouse, Nov. 25; see Nov. 16).

Wade Byrd gave $100,000 in soft-money to John Edwards, and a personal-injury attorney at his firm was named chairman of the North Carolina Democratic Party, but Byrd failed to follow in Edwards's footsteps in a recent cerebral palsy case when a jury that had sat through the five-week trial found for all of the defendants after an hour of deliberation. Byrd had sought $30 million from Wake Forest University Baptist Medical Center, two doctors, and a nurse who had the bad fortune to be present when Joseph O'Hara was born with severe brain damage. Though O'Hara had lesions on his placenta, and though there's no relationship between C-sections and cerebral palsy rates, Byrd tried to claim that the fetal heart rate monitor showed wrongdoing. (James Romoser, "Doctors found not liable in baby's brain damage", Winston-Salem Journal, Nov. 23).

In other cerebral palsy litigation news, a clever group has reserved the web-domain AskTheDoc.org, and must be paying a fortune to advertise on Google for "cerebral palsy" search terms. While masquerading as medical advice (and the website does have some rudimentary resources), the website encourages parents of children born with cerebral palsy to believe that most cerebral palsy is caused by malpractice. It's not clear if trial lawyers are behind the website (as they are with this similar site that fails to distinguish between "it's" and "its" and is registered in the same state with a similar IP address), or if it's just a spam source. The latter website gives some "indicators" that "a medical mistake may have caused your child's cerebral palsy," including "a specialist was called to care for your newborn."

Christine L. Boone was fired as director of the Pennsylvania Bureau of Blindness and Visual Services (allegedly for "insubordination" when she refused to carry out a superior's directive regarding making a college aid program more available to students who weren't receiving merit scholarships) and was replaced by another blind woman, Pamela Shaw. Nevertheless, Boone sued through her lawyer Arch Stokes, alleging that she was discriminated against because of her blindness, though the AP's quote of Stokes' opening statement of the federal trial before U.S. District Judge Sylvia H. Rambo makes it sound like a civil-service dispute. Boone only received $180,000 of the $1 million in the "future lost wages" she sought, but the $1.5 million for emotional distress should provide solace. Boone will ask the judge to reinstate her to her job; the AP did not get comment from Shaw, who currently holds the position. (Mark Scolforo, AP, Nov. 28; Mark Scolforo, AP/Boston Herald, Nov. 8). The National Federation of the Blind of Pennsylvania opposed Boone's firing; that may or may not make it a bad decision, but a bad decision isn't federally actionable, only a discriminatory one is.

"Under Vermont's limits, a candidate for state representative in a single-member district can spend no more than $2,000 in a two-year cycle. Every mile driven by a candidate—or a volunteer—must be computed as a 48.5-cent campaign expenditure. Just driving—and not much of it—can exhaust permissible spending." ("Free Speech Under Siege", Newsweek, Dec. 5). More: Aug. 23, etc.

John Hawkins, Craig Newmark, Haje Jan, David Svendsen, GM InsideNews, RightNation and their commenters aren't impressed with the jury's decision. Neither is the Henderson Daily Dispatch editorial board.

We covered the case Nov. 17.

Amazingly, a jury awarding $61 million in a ludicrous case like this is so "dog-bites-man" these days that there's been no next-to-no follow-up press coverage, other than a Miami Herald profile of the plaintiff, Joan Hall-Edwards, that might as well have been a press release from the attorney; the story makes no effort to question whether the driver is to blame for falling asleep or losing control when he swerved after waking up from hitting the rumble strips or Hall for not wearing his seatbelt properly. (Susannah A. Nesmith, "Jury: Ford must pay for teen's death", Miami Herald, Nov. 18).

• Antonio Chatman has already pled guilty to charges of fleeing police (the third time he's been in trouble for doing so in his lengthy criminal history) and resisting arrest, but now claims that he jumped upon a Dumpster to give himself up, and sued the city of Johnstown and police officer Michael Page over its use of Obi, a police dog that bit him when he fought the apprehending dog. A jury didn't buy his story.

  On Thursday afternoon, Page shook hands with and thanked the jurors who cleared him. The 35-year-old also said the threat of a lawsuit can haunt officers as they make split-second decisions on the street.

  “You have these type of things in the back of your mind,” Page said. “And unfortunately, that hesitation may cause me or somebody else to get hurt.”

  Chatman's attorneys argue that Page should have been equipped with a baton, though Page was over 50 feet away. (Mike Faher, "Jurors clear police dog", Tribune-Democrat, Nov. 18; Id., "Police defend dog accused of biting", Nov. 16; Id., "Officers testify in dog-bite lawsuit", Nov. 15; Id., "Police-dog bite lawsuit begins", Nov. 14). The district court had granted summary judgment, but the Third Circuit reversed (as the law required them to do) because of the "he said, he said" factual dispute. Unless Pennsylvania prosecutes Chatman for perjury, he will suffer no consequences for bringing the lawsuit.
  


• Patrick Sterling was fleeing police after being caught drag racing when he lost control of his Honda Civic and killed a thirteen-year-old pedestrian, Dennis Howard. So, of course, the family is suing the town of Orange. (Gerard A. Frank, "City faces lawsuit in boy’s death due to chase", East Orange Record, Nov. 17; Scott Weinberger, "Family's Claim About Cop Unfounded", WCBS, Nov. 11).
  


• A Houston policeman complains about the safety implications of the city's implementation of police-chase regulations. "Basically, that's telling the crooks out there to just go on and do what you want and get away with it, because we're not going to be chasing you." The city denies that the revisions are the result of lawsuit fears, though it has been subjected to litigation over an innocent killed by a criminal fleeing police. (Jeff McShan, "HPD: To chase or not to chase", KHOU, Nov. 23).
  


• An interview of a teenage car thief provides more support for the proposition that regulating police chases just encourages criminals to drive dangerously more often: "The police in the District would see us and chase us, but once they saw us go over 70 miles an hour they stopped." In the words of one policeman, "If the [DC and Maryland] police were allowed to do their job and chase stolen cars, people wouldn't run from the police. They don't have this problem in Virginia. If you steal a car in Arlington, the Virginia State Police will chase you all the way to Georgia." DC has gotten sufficiently lawless that Police Chief Charles Ramsey's car has been stolen. (Michael Patrick Carney, "'Don't hurt me, I'm just a kid'", Washingtonian, Dec. 2005).

Earlier coverage: Oct. 26; Mar. 29; Mar. 15 and links therein.

"The parents of a 13 year-old boy who died falling from a building are suing World of Warcraft developer Blizzard, claiming that the massively-multiplayer online game is to blame for their son's death. According to Chinese news agency Xinhua, the parents, who reside in the city of Tianjin, claim the boy jumped to his death whilst re-enacting a scene from the game. They are supported by Zhang Chunliang, a well-known activist whose campaign seeks to highlight the dangers of Internet addiction....There are more than 1.5 million World of Warcraft players in China -- making up more than a third of the game's worldwide subscriber base, even though the game only went on sale there in June." (Ellie Gibson, "Parents set to sue Blizzard after World of Warcraft player dies", GamesIndustry.biz, Nov. 21)(Joystiq.com thread). More on computer- and videogame suits: Oct. 21, Nov. 9, etc.

Kate Coscarelli of the Newark Star-Ledger is covering them:

The brash-talking attorney was the focus of two days of disciplinary hearings that will ultimately decide whether he should be disbarred for mishandling client funds. The sometimes-contentious hearings were held ...in a third-floor room at state Superior Court in Hackensack before retired Judge Arthur Minuskin, who is the special ethics master in the case.

The state Office of Attorney Ethics has charged Fagan with mishandling almost $400,000 in client funds, including money from two Holocaust survivors: Estelle Sapir, who got a large settlement from the Swiss banks, and Gizella Weisshaus, a Brooklyn woman who was the first survivor to sue the banks.

("Holocaust lawyer fights his own court battle", Nov. 17). More on attorney Edward Fagan: Aug. 27, Jun. 4 and many more.

The Illinois State Bar Association has found that people in focus groups are upset about the miscarriages of justice that occur in Madison County and corruption in the system, and have been motivated to take action. So are they going to clean up the system and support reform? No! Rather, they hope to have a million-dollar advertising campaign to improve the image of attorneys and engage in more market research. (Gail Applebaum, "State Bar may advertise to help lawyers", St. Louis Post-Dispatch, Nov. 23). In the press account, ISBA official David Anderson disingenuously argues that Madison County isn't a judicial hellhole because of the number of medical malpractice verdicts—ignoring that the number of med-mal verdicts has nothing to do with Madison County's deservedly poor reputation.

Eastern District of New York Judge Jack Weinstein heard the first challenge to the Lawful Commerce in Arms Act Monday. Tom Perrotta of the New York Law Journal reports that Weinstein was dismissive of the constitutional arguments, but possibly open to the plaintiffs' attempt to expand an exception in the Act into a loophole that would encompass virtually all litigation against gun manufacturers. (NYC Claims Exception in New Federal Law Allows Gun Suit, Nov. 23). See also Nov. 9; Apr. 13, 2004.

Budget Rent A Car won sanctions for its adversary's filing of a frivolous appeal, but lost its ability to recover its fees when it submitted what the court, in a Judge Posner opinion, called an "exorbitant" nine-thousand-dollar bill. (David L. Hudson Jr., ABA Journal eReport, Nov. 18). But were the fees really that exorbitant? Point of Law explores why they perhaps might not have been.

Also on Point of Law:

• the Vioxx MDL rules on expert evidence;
• attorneys get $22 million while their ostensible clients get nothing, or worse than nothing;
• a study on the impact of litigation on small business;
• plaintiffs aren't kidding when they say they're going to make welding the next asbestos;
• how the multistate tobacco deal penalizes the growing Sun Belt states; and
• a plaintiffs' lawyer makes an interesting nationwide cardiological diagnosis.

Read it every day.

Lyle Roberts's excellent The 10b-5 Daily now has some competition in the securities-law blog arena from the other side of the aisle. Bruce Carton of Institutional Shareholder Services offers the Securities Litigation Watch and Milberg Weiss attorney Christopher Jones offers the PSLRA Nugget.

An NFL arbitrator has upheld his suspension from the Philadelphia Eagles. The Eagles had not commented much to the press during the controversy, leaving the coverage relatively lopsided. The full opinion is on ESPN.com, and adds much detail showing the decision to be considerably more justified than press coverage had indicated—a worthy reminder the next time your local news gives a three-minute segment over to a plaintiff's attorney's unrebutted claim against a corporate defendant. Earlier Owens coverage: Nov. 14 and Jan. 27.

Chris Newman reports: "Opposing counsel has served a request for judicial notice of facts contained in a Wikipedia article. If you understand the operative terms in that sentence, you probably understand why I've been chuckling all morning."

Maryland PIRG complains about the toy industry:

Some toy manufacturers are over-labeling toys by placing choke hazard warnings on items that do not contain small parts. This could dilute the meaning of the warning labels, making them less useful to parents.

One looks forward to the day where a Ralph Nader-founded organization intervenes as amicus in a failure-to-warn lawsuit to make the argument that liability should not be found because holding a manufacturer liable will create incentives to over-label and dilute the meaning of warnings.

Katie Newmark notes the following apology on her University of Chicago grad-school application:

Due to circumstances beyond our control, some race and ethnicity questions on this application are redundant. Most of this information is used to provide ad hoc reports on applicant diversity to government agencies. We apologize for the incovenience.

Cathy Young:

This also brings to mind a comment I heard at a 1992 academic feminist conference at Radcliffe College. One [of] the panelists, Stanford Law School professor Deborah Rhode, pointed out that white men constitute only 8% of world's population and added, to great mirth and delight from the audience, "That's a very encouraging fact." Because, of course, all those non-white men around the world are so much friendlier to women's rights.

Cathy retells the anecdote here with trivially different wording and a 1993 National Review article by Stephanie Gutmann, "Are all men rapists?", includes the following: "The [65-page] committee report [on the Violence Against Women Act] cites a book by Stanford law professor Deborah Rhode, who recently announced at a conference that 'white men make up only 8 per cent of the world population. I find that such an encouraging fact.'"

A "consulting outfit called Open Source Risk Management has partnered with Lloyds of London underwriter Kiln and broker Miller Insurance Services to offer insurance against open-source liability" -- that is to say, the risk of getting sued for use or development of open-source software. OSRM chairman Daniel Egger says he was inspired to start the outfit by SCO Holdings's suits against IBM and other defendants over Unix-derived code: ""What was striking was the amount of uncertainty and fear caused by a relatively weak claim," Egger said. "Just because they cried wolf doesn't mean there aren't wolves out there." (Marie-Anne Hogarth, "Open-Source Software: Open to Liability", The Recorder/Law.com, Nov. 15). See Nov. 13, 2004 and Nov. 6, 2003.

The New Yorker's talented medicine correspondent, Atul Gawande, is said to have an article in the Nov. 14 of that magazine "about who pays the price when patients sue doctors". It isn't online, but the magazine's website has posted an excellent Q & A with Gawande.

Diabetic William Ulmer didn't take his insulin as prescribed when he got behind the wheel of his employer's truck, and the resulting hypoglycemic attack caused him to collide with six other vehicles in an eight-mile drive before he hit Corrie Johnson head on. Attorney Tom Edwards argued to the jury that "Rent-Way knew of Ulmer's medical history" and the jury thus found them liable to the tune of $4 million. (Press accounts are not clear why the doctrine of respondeat superior did not apply, but perhaps Ulmer was held not to be negligent for his medical condition.) Edwards's comment is intriguing: "They knew that this man had problems, but yet they did nothing about it." What was Rent-Way supposed to do that didn't violate the ADA and leave themselves liable to Ulmer? ("$4 Million Awarded To Victim In Diabetic Driver Accident", News4Jax, Nov. 18).

Tom Edwards was recently in the news with the fascinating suggestion that attorneys could get around the recently passed Amendment 3 limiting attorneys' fees in medical malpractice cases by asking clients to "waive their rights." Hey, I'm all for that—if only attorneys would let clients waive their rights in other contractual arrangements, such as with doctors, we'd need a lot less tort reform. (Stewart Verney, "Lawyers may ask clients to waive new amendment rights", Jacksonville Business Journal, Nov. 26, 2004).

Now they've reached France:

A ruined French gambler yesterday sued a casino for failing to prevent him losing his money. Jean-Philippe Bryk, 44, claimed the Grand Cafe casino in the spa town of Vichy owed him a duty of "information, advice and loyalty"....

A spokesman for the casino said the "idea of gambling is that one runs the risk of losing".

(Jon Henley, "Gambler sues casino that let him lose £500,000", The Guardian (U.K.), Nov. 15; Lucy Mangan, "Bad gamblers rejoice - the casino's to blame", The Guardian, Nov. 16). See Apr. 19, etc.

Amazingly, our Nov. 17 report wasn't even the first time this year a Florida jury held Ford liable for millions because a driver fell asleep.

28-year-old Tami Martin was a passenger in her mother's Ford Aerostar, but her mother fell asleep at the wheel and plowed into the back of an ambulance. The mother walked away from the accident, but Martin was reclining in her seat with her feet against the dashboard. So, though the airbag deployed, it did not provide protection. Martin jackknifed over the seatbelt, damaging her vertebrae and spinal cord, leaving her a paraplegic. Martin sued Ford for not putting the "Do not recline your seat in a moving vehicle" warning more prominently on the windshield visor next to the airbag warnings; Ford had made the warning in the owner's manual, but Martin felt that insufficient because she didn't read the manual. (Of course, if every potentially fatal injury in the owner's manual is placed on the windshield visor, then the visor looks like the owner's manual and doesn't provide any warning at all.)

A Jacksonville jury has held Ford liable for $16.95 million. You'll be pleased to know it's "not about the money," as supposedly demonstrated by Martin's willingness to surrender half her award if Ford follows Martin's preferences about warnings (which, of course, will lead to other lawsuits). The offer is considerably less generous than it sounds if Martin's attorney, Robert Langdon, thinks she has a substantial chance of losing on the appeal Ford plans to take (plaintiffs frequently settle for a fraction of a verdict for precisely this reason), but at least one press account breathlessly and gullibly reports it as generous. (News4Jax, "Jacksonville Jury Awards $17 Million in Reclining Seat Case", Nov. 18; Kyle Meenan, "Lawsuit Winner May Reject Millions", First Coast News, Oct. 24; Pittsburgh Tribune-Review editorial, "Driving & sleeping", Oct. 29). Special quote for H.M.D.: "'I knew God would use me to reach other people,' Martin said." Overlawyered is proud to assist in God's mission: read your owner's manual, don't recline your seat while in a moving vehicle, and don't fall asleep while driving.

Welcome to Blawg Review #33, the latest installment of the weekly carnival assembling some of the best recent weblog posts about law.

If this is your first visit to Overlawyered, we’re among the oldest legal sites (launched in July 1999, practically the Eocene era), and over the years we’ve built a vast collection of information (with links/sources) on strange, excessive and costly legal cases, examples of the over-legalization of everyday life, pointers on litigation reform, policy stuff of generally libertarian leanings, and much more. We’re a fairly high-volume site; 6-8,000 unique visitors on a weekday is pretty typical. And although our work is regularly critical of trends in the legal profession -- or maybe because of that fact -- practicing lawyers around the world are among our most valued and loyal readers.

More specifically, there are two of us posting here. One of us (Walter Olson) has been writing about these topics for twenty years as the author of several books (The Litigation Explosion, The Excuse Factory, The Rule of Lawyers) and a great many shorter articles. He’s a senior fellow at the Manhattan Institute who lives and works in Chappaqua, N.Y., north of New York City. More recently Ted Frank, who’s in Washington with the American Enterprise Institute, joined as a regular blogger. Unlike Walter, Ted is a lawyer, having practiced until lately with O’Melveny & Myers. Both of us also blog at the (somewhat more serious-toned) website Point Of Law, which unlike this one is sponsored by our respective institutes and boasts numerous other contributing writers.

Enough about us. Here’s Blawg Review #33, written by Walter with

indented sections by Ted.

* * *

The week in headlines

The talk of the blawg world last week? The New Yorker’s unmasking of the girlish “Article III Groupie” who’s blogged anonymously about federal judges at “Underneath Their Robes”, as, in fact, a (male) Assistant U.S. Attorney in Newark. Much more on that from Ted, below.

The pace of commentary on Samuel Alito Jr.’s Supreme Court nomination has slowed a good bit, despite the release of a 1985 memo detailing Alito’s views on abortion (which occasioned this post by Will Baude taking exception to a Dahlia Lithwick Slate column) and, more tantalizingly, on the Warren Court’s reapportionment cases (see posts by Nathan Newman and Steve Bainbridge). Alito is now heavily favored among bettors to win confirmation, notes San Diego lawprof Tom Smith.

Possibly the week’s strangest headline, discussed by J-Walk: “1,100 Lawyers Leave Saddam Defense Team”. 1,100?

And the Fifth Circuit is coming back to New Orleans (Tom Kirkendall).

* * *

Splendors and miseries of legal practice

Find out:

* What makes a talented 39 year old attorney burn out of a criminal defense practice? (Norm Pattis, Crime and Federalism)

* What sorts of squirm-inducing compliments do criminal defense lawyers hear from their clients after scoring legal points on their behalf? (Ken Lammers, CrimLaw)

* Is it smarter for big law firms to compensate their partners on an “eat what you kill” model, a “lockstep” model, or something between the two? (Bruce MacEwen, Adam Smith, Esq.)

* How do licensing professionals decide what’s a reasonable royalty rate? (Patent Baristas)

* What sorts of bad things can happen to a law firm when one of its individual lawyers behaves rudely to a stranger? (Jim Calloway)

* * *

Controversies galore

Read, ponder, and make up your own mind:

Did Texas execute an innocent man, Ruben Cantu? (Doug Berman)

Conservatives are still griping about the Ninth Circuit, but the new twist is that they think its judges aren’t activist enough. (Eugene Volokh)

Every so often, through luck or pluck, the “fair use” side manages to win one in copyright litigation (Ron Coleman, Likelihood of Confusion).

A group is “pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.” Atlanta attorney Jonathan B. Wilson calls it “one of the worst reform ideas ever”.

Michael Newdow, of Pledge of Allegiance suit fame, has filed a new legal action demanding that the motto "In God We Trust" be removed from U.S. currency. Jon Rowe winces.

Our own Ted Frank takes a look at the much-talked of “Dodgeball” document and concludes that it by no means proves Merck’s guilt in the Vioxx matter. (Point of Law). Also at Point of Law, James Copland of the Manhattan Institute and Dr. Bill Sage of Columbia have been engaged in a spirited debate on med-mal litigation.

In a Providence courtroom, the state of Rhode Island is demanding that companies that once manufactured lead paint be held liable for the cost of lead abatement programs. Speechwriter/ghostwriter Jane Genova is liveblogging the case’s retrial, and suggests that the defense side has been making its points more effectively.

A court has ordered the Armour Star meatpacking concern to pay $3 million for using a strength test to screen applicants for a job requiring much lifting. George Lenard’s Employment Blawg originally covered the case last month, Overlawyered picked it up, and now George has returned to the subject, observing that those dissatisfied with the suit’s outcome should realize that sex discrimination law’s distrust of strength tests isn’t something the EEOC just came up with the other day and in fact dates back at least a couple of decades. (I quite concur, having written at length on the subject back in the 1990s.)

The British government recently published a white paper entitled “The Future of Legal Services: Putting the Consumer First”. Dennis Kennedy at Between Lawyers provides a link.

In other consumer news, State Farm conceded earlier this year that when it disposed of many wrecked-and-repaired vehicles it failed to ensure that they were given appropriate “salvage titles”. E.L. Eversman at AutoMuse has been following the issue.

The head of the NY state bar association is advising prospective clients not to be swayed by lawyers’ advertising. David Giacalone, who frequently discusses legal advertising on his blog f/k/a, isn’t impressed.

San Diego lawprof Gail Heriot discovers a convicted rapist is living a few doors down from her, which gets her to thinking about the interaction of “Megan’s Law” statutes and statutory rape.

New York AG Eliot Spitzer has gone after former NYSE head Richard Grasso but not the board that approved Grasso’s plans. Larry Ribstein suspects the worst, charging that Spitzer “gets securities industry political support if he handles this so only Grasso gets hurt.”

* * *

Student division

Scheherezade at Stay of Execution, who wrote a classic post last year giving advice on whether or not to go to law school, now fields a reader’s question: Should I transfer to a higher-ranked law school?

Called for jury duty, Jeremy Blachman gets shown a somewhat hokey video entitled “Your Turn: Jury Service in New York State." “I wanted to really mock the video, but in all honesty it was a better explanation of the jury system than anything we got in law school”.

Michael Froomkin offers a surprising and counterintuitive quiz on the U.S. Constitution in the form of a “scavenger hunt”. He also suspects that a national ID card might abet price discrimination.

And this from Ted:

Congratulations to Amber, G, Marissa, Grigori, Eve, Jeremy, and others who passed the bar. Third Attempt failed for the second time, and is opening a blog on the subject of his third try, with links to other passers and failers. Only 13% of those who repeated the California bar passed.

On the lighter side, law student Kurt Hunt quotes his prof's maxim that “Cahoots is not a crime” but wonders what would happen if “tomfoolery, cahoots, no-gooding, antics and shenanigans were redefined as 'Crime-Lite'". And Colin Samuels of Infamy or Praise is among the many human beings who don’t manage to eat as well as (UCLA lawprof) Steve Bainbridge’s dog.

* * *

Buzz about blogs

Now I’ll turn the floor over to Ted again to discuss the UTR affair:

The blawgosphere likes nothing more than navel-gazing, and the New Yorker's outing of anony-blawger "Article III Groupie" as Newark AUSA David Lat and resulting implosion of "her"/his popular "Underneath Their Robes" blawg has generated lots of curiosity and posts with Austin Powers references; the story even made Drudge and the New York Times. Blawg Review has a retrospective look at the blawg. Howard Bashman has done the most original reporting, interviewing Jeffrey Toobin, who revealed Lat's identity, and publishing the reminiscences of a former co-worker of Lat's. Denise Howell provides an obituary for the blawg. The Kitchen Cabinet's "Lily" comments from the perspective of another anonymous blawger, as does Jeremy Blachman, who got a book deal from his anony-blogging. Ann Althouse muses on the nature of humor; Professor Solove and Howard Bashman comment on blogger anonymity, as does Half Sigma, who pulled a similar hoax using the photo of a Russian mail-order bride earlier this year as the image of "Libertarian Girl." Another blawgger claiming to be a libertarian female, this one with the implausible name of "Amber," meta-comments on the various shattered blog-crushes exhibited in the garment-rending Volokh Conspiracy reader comments on the subject; JD expresses his own disappointment. (Judge Kozinski claims to have known all along, but Judge Posner has proof of his foresight.) And Ian has sound commentary on A3G's "status anxiety." (And speaking of status anxiety, a Harvard Law School admissions dean snarks on Yale and gets snarked back. One can understand the sniping: HLS and YLS are good schools, and there's a lot of competition for who's #2 behind Chicago Law.)

Some fallout: anony-blogger "Opinionistas" got an e-mail accusing her of really being a man, and Will Baude and Heidi Bond make a bet over the gender of anony-law-prof Juan Non-Volokh, who promises to come out of the closet soon.

Taking second place in interblog buzz is the IP sticky wicket that awaited the former Pajamas Media (discussed by Blawg Review here) when shortly before launching it decided to switch to the more dignified monicker of Open Source Media. Turned out there was already a well-known public radio show by the name of Open Source which hadn’t been consulted even though it occupied such URLs as opensourcemedia.net. Ann Althouse has been merciless (here, here and here) in needling the OSM organizers, while Prof. Bainbridge piles on with a law and economics analysis of OSM's market.

Monica Bay passes along the views of legal-tech consultant and frequent CLE presenter Ross Kodner, who charges that law blogs are “narrow-minded” and display “elitist exclusionism". “I am sick and tired of being repeatedly asked why I don't have a blog,” he declares. Okay, Mr. Kodner, we promise never to ask you that.

* * *

In conclusion

Finally, intellectual property lawyer Doug Sorocco, of the ReThink(IP) and phosita blogs, arrives “fashionably late to the BlawgThink ball” (in Chicago last week). Sorocco’s Oklahoma City firm also figures prominently (as the acquiring party) in what Dennis Kennedy says may amount to a milestone: “the first move of one legal blogger to the law firm of another legal blogger.” Stephen Nipper has more details about this "move" at ReThink(IP).

By coincidence, and giving us a nice way to wrap things up, phosita is going to be the home of next week’s Blawg Review #34. Blawg Review has information about that and other upcoming matters, as well as instructions how to get your blawg posts considered for upcoming issues.

P.S. As Bob Ambrogi notes, you can now check out -- and tag your own location in -- Blawg Review’s reader map feature.

We've added, along the right column of this site's front page, a new sidebar feature entitled "Greatest Hits", linking to a selection of our and readers' favorite posts from the past (and maybe a stray article or two we've written fitting the theme). It's intended as a rotation, so periodically some posts will drop off and be replaced with others.

An archive of links from the feature follows the jump.

In a paper published by the Golden, Colo.-based Independence Institute, Mike Krause and Chelsea Johnson examine the problem of overcriminalization in one state, Colorado. (Publication # IP-9-2005, Sept., PDF). More: via Mike Cernovich, here's word of a symposium on overcriminalization in the American University Law Review with contributions from (all PDF): Ellen S. Podgor, John S. Baker, Jr., John Hasnas, Peter J. Henning, Erik Luna, Sara Sun Beale, Geraldine Szott Moohr, and Paul Rosenzweig.

Sainsbury's, the British grocery chain, says it will have to go back on a plan to sell Christmas puddings with "lucky sixpences" inside because of health and safety regs under which they are regarded as a choking hazard; instead it will attach the coins to "collectors' cards" and suggest that customers place them under the plate or placemat of a lucky family member. "[G]ood luck charms have been added to Christmas puddings for more than 500 years." (David Derbyshire, "Unlucky sixpences miss out on Christmas", Daily Telegraph, Oct. 18). For an analogous U.S. story involving the New Orleans specialty, "king cake", see Feb. 1-3, 2002. The police force in Derbyshire, England, has tested its dogs to see whether their barking is in compliance with the Control of Noise at Work Regulations being introduced next April; the canines' level of noisiness barely passed muster under the new standard, and modifications such as earplugs for police may needed when use of the dogs in anti-crime work combines with another source of noise such as that of a crowd. (Nick Britten, "Police take the lead on barking regulations", Daily Telegraph, Oct. 27). For more on British and EU noise regulations, see Nov. 10, 2005 (kids' playing); Sept. 2, 2005 (Army tanks); Jan. 12, 2004 (orchestras); Mar. 8-10, 2002 (bagpipes); Dec. 22-25, 2000 (military brass bands and gunfire during infantry training). In Worcester, England, teenager Natasha Hughes, who is accused of grievous bodily harm directed at another woman and was charged with violating her bail conditions, will not have to wear an electronic monitoring anklet after she successfully argued that the device violated her fashion sense and looked bad with skirts. (Nick Britten, "You can't tag me. . . I like to wear skirts", Daily Telegraph, Nov. 11). For a similar argument made in this country, see Dec. 4, 2000 (exotic dancer). And the following exchange was heard on the floor of the House of Lords this Wednesday:

Lord Mackenzie of Framwellgate: My Lords, is my noble and learned friend aware of the case that I read about recently in which there were three main suspects for a crime: a rich lawyer, a poor lawyer and a tooth fairy? Needless to say, the rich lawyer was arrested because the other two were figments of the imagination.

Lord Falconer of Thoroton: My Lords, it does the House no credit to do anti-lawyer jokes.

(Hansard, Nov. 16). Reader Bob Clarke, of Birmingham, U.K. who called this exchange to our attention, writes: "I don't think that my learned Lord should drop his day job and start being a stand-up comedian. He made the same joke in 2000".

After too long a hiatus, we've resumed our separate letters to the editor feature. Among topics this time: a teacher writes to protest our 2001 coverage of her lawsuit over a parent's injurious handshake; reflections on the recent $22.6 million settlement of a claim that "toxic mold" from wet building lumber had caused a child's autism; a reader doesn't agree that the "happy hour" antitrust case against taverns in Madison, Wis. was lacking in merit; and this site gets used as instructional material in a class on liability issues in law enforcement. More good letters remain in the pipeline.

Litigation-reform opponents regularly criticize the mention of the McDonald's coffee-case lawsuit on the phony grounds that the McDonald's coffee was unusually hot, and thus "defective." A search of this website can find many other lawsuits over hot coffee causing third-degree burns, and you can now add Dunkin' Donuts to the mix. Sharon Shea was holding a tray of two cups of coffee that allegedly "toppled over" and received second- and third-degree burns on her left leg and ankle. The 60-year-old is suing Dunkin' Donuts for $10 or $15 million in New York state court in Staten Island. (Jotham Sederstrom, "$15M suit for burns from java", New York Daily News, Nov. 18; Hasani Gittens, "$10M suit for java jolt, NY Post, Nov. 17) (hat-tip: Roth).

L.A. Times and Law.com's Recorder both bring word from inside the investigation (Myron Levin and Molly Selvin, "1995 Suit May Be Focus in Milberg Weiss Probe", Los Angeles Times, Nov. 17; Justin Scheck, "Complexity Slows Milberg-Lerach Probe", The Recorder, Oct. 31). See Oct. 10 and links from there, Nov. 5, PoL Nov. 13, etc.

Vincent Carroll of Denver's Rocky Mountain News has a good column on the incident ("Stick it to them", Nov. 11). You know you're in trouble when a "bad experience that your grandparents would have shrugged off after a day or two becomes the traumatic focus of your entire existence." See Nov. 14.

The National Rifle Association, breaking with its usual pro-freedom stance, favors the enactment of state laws of this sort. But they're a really, really bad idea. (Prof. Bainbridge, Nov. 15).

Could still find themselves in some extremely hot legal water, reports the New York Times (Matt Richtel, "Celebrities Taking a Gamble", Nov. 16). Christine Hurt comments (Nov. 16). See Apr. 21, 2004. More: Nick Gillespie at Reason "Hit and Run" (Nov. 16).

...to this site on Tuesday. Thank you, FARK.

Howard Bashman has full coverage, including links to transcripts, of Fieger's alleged attempt to block an investigation into Fieger's alleged campaign finance violations by revealing details of the attorney general's extramarital affair (Nov. 10). Fieger allegedly spent $400,000 on a Michigan Supreme Court race without disclosing his spending. "Sandler, in statements to sheriff's investigators, says Fieger warned he would pat down Sandler so he did not wear a listening device."

In 1997, Melahn Parker fell asleep while driving a 1996 Ford Explorer at highway speeds; the SUV crashed, killing 17-year-old passenger Lance Crossman Hall, who was ejected because he was reclining in the front seat, thus preventing his seat-belt from restraining him. Parker was charged with careless driving, but a Miami jury viewed the accident as Ford's fault, and awarded $61 million in damages yesterday, $60 million in pain and suffering. The plaintiff, Joan Hall-Edwards's, Hall's mother, has thus won a marvelous windfall in that her son was killed by a careless driver instead of by a means where she would have no deep pocket to seek lottery-style damages.

Ford will appeal. "This tragic accident occurred when the driver of the vehicle fell asleep at the wheel while traveling at highway speeds. Real-world experience and testing show that the Explorer is a safe vehicle, consistently performing as well as or better than other vehicles in its class," Ford spokeswoman Karen Shaughnessy said.

Hall-Edwards's attorney was Bruce Kaster, who complained that Ford blamed defective Firestone tires for what he called Explorer handling problems. This is a curious complaint, because Kaster calls himself "the nation's foremost authority on tires and their defects," has brought several lawsuits against Firestone, and has reserved the domain name "tirefailures.com" for his law firm. On his site, Kasten complains that Ford models don't have the same features as the more expensive Volvo models made by Ford's subsidiary. Is it really to be considered a "defect" if an inexpensive car has fewer safety features than a more expensive car? Are consumers not permitted to make the decision for themselves how safe a car to purchase?

No doubt there will be further details than what the AP has provided so far, and we'll update as more becomes known. (Jennifer Kay, "Ford Ordered to Pay $61M in SUV Accident ", AP, Nov. 16).

Job applicants wouldn't do that on purpose, would they? At least not unless they were following the advice of a EEOC staff lawyer interviewed for a Wall Street Journal article. According to McGuire Woods attorney Lou Michels, writing in the new-to-us blog Suits in the Workplace, "what the EEOC attorney appears to be proposing is simply outrageous" and "reeks of gamesmanship". (Oct. 11).

Tom Kirkendall has some thoughts on the state's "utterly unsupportable system" of judicial selection (Nov. 14).

Next Monday, November 21, this website will be hosting Blawg Review #33, the thirty-third weekly carnival of the best postings about legal matters from around the blogosphere. A different site hosts the roundup each week; last week's Blawg Review #32 was hosted in honor of (U.S.) Veteran's Day by JAG Central, which covers the world of military law.

You can help assemble the material for Blawg Review #33 by following the instructions at the Blawg Review site. If you're a website proprietor, you should nominate your favorite post from the past week or so from your own site. And any reader can nominate a favorite recent post from any weblog on a legal topic (the weblog needn't be one that specializes in legal issues). (Sorry, we can't guarantee that all nominations will be used.) All submissions are due in by this Saturday night, but earlier submissions are greatly appreciated to reduce the last-minute editing duties.

According to the Providence Journal: "Lawyers for defendant lead-paint companies called for a mistrial [Tuesday], after the state asked a witness if any of the companies had ever paid any money to help clean up lead paints in Rhode Island. The question had been put to former state Health Director Patricia Nolan. It immediately drew objections from the defense, and she was not permitted to answer." (Peter B. Lord, "No decision yet on request for lead-paint mistrial", Nov. 15) (sub-only). Jane Genova continues to blog the trial with posts on Nolan's earlier testimony here, here and here. See Nov. 1. Update Wed. afternoon: no mistrial, judge orders curative instructions to jury; see Genova blog.

On his popular HBO show, comedian Sacha Baron Cohen portrays various outrageous characters among them "Borat", supposedly a TV personality from the (real) former Soviet republic of Kazakhstan. Now "Kazakhstan's Foreign Ministry is threatening to sue him for portraying the central Asian state in a 'derogatory way.'" (Buck Wolf, "Kazakhstan Not Laughing at 'Ali G'", ABCNews, Nov. 15).

Yesterday afternoon our periodic newsletter went out to subscribers, in shorter-than-usual format due to time overcommitments. If you haven't subscribed yet, you really ought to; sign up here (requires Google registration).

The site was down for about half an hour yesterday, which may or may not have had something to do with our meat-packing post getting Fark'd, bringing in a big surge of visitors. In general, traffic on the site has been up markedly since the redesign/rehosting a month and a half ago. Could be the more search-friendly URLs, could be the experiment with comments on some posts, could be increasing numbers of RSS/XML users -- hard to tell exactly.

The comments experiment notwithstanding, the letters to the editor feature should be restarting before long. There are many good reader letters in the pipeline.

It's not just plaintiffs' attorneys who attempt to distract juries with irrelevancies. A Florida court of appeal has reversed a medical malpractice defense verdict in a case where the defense attorney made repeated reference to the plaintiff's marijuana use—even though there was no evidence that that usage affected her injuries, treatment, or recovery. (Shaw v. Jain, No. 1D04-4178, Fla. App. Oct. 20, 2005 (via Conigliaro)).

Point of Law's latest "Featured Discussion" is between Bill Sage, professor of law at Columbia and a prominent researcher on issues of medical liability, and the Manhattan Institute's Jim Copland, discussing the Institute's recent "Trial Lawyers Inc. -- Health Care" report. It's scheduled to run all week and should not be missed by anyone interested in malpractice issues (more).

At the Armour Star meat packing plant in Fort Madison, Iowa, run by a subsidiary of the Dial Corporation, workers are expected to engage in "repetitive lifting of a 35-pound rod of sausages to a height of approximately 65 inches.” Concerned about a high rate of worker injuries, the company foolishly thought that it could introduce (in 2000) a physical test which "required the repeated lifting of 35 pounds to a height of 65 inches." Wrong: sued by the Equal Employment Opportunity Commission, the company is now going to be paying out $3 million for its troubles. The EEOC argued, and a court agreed, that the test had "disparate impact" on women because 97 percent of men but less than 40 percent of women passed, that it appeared some applicants who failed the test might nonetheless be able to handle the job duties (by standing on tiptoe while heaving the weights, for example, which the test did not permit), and that the company had not shown a "business necessity" to use the test since it could take other measures to improve safety. According to the EEOC, "52 women who were rejected for entry-level production jobs because they had failed a strength test will be offered jobs at Dial and will share approximately $3,390,000.". (EEOC press releases, Feb. 8 and Sept. 29) (via George's Employment Blawg)(& welcome Fark readers).

"SLAPP" suits sighted in Canada, too: Activa Holdings Inc., a large developer in the Waterloo, Ont. area, is suing stay-at-home mother Louisette Lanteigne for C$2 million because of a website she has put up complaining of allegedly hazardous environmental conditions. The company charges defamation. (CP/CTV, Nov. 14; Mike Oliviera, CP/Macleans, Nov. 13)(Slashdot thread)(cache of her now-overloaded site).

Ralph Nader is arguing that the Philadelphia Eagles' decision to suspend star wide receiver Terrell Owens (for, inter alia, publicly criticizing the team and quarterback, shouting at coaches, a physical altercation with a teammate, and then failing to apologize) is consumer fraud because season-ticket holders had an expectation that Owens would play for the team, which barely lost the Super Bowl last year, and was an early favorite this year. (But what about all those New York Times subscribers who expected to read Judy Miller?) The suggestion rises to self-parody, though it exhibits the absurdity of modern consumer fraud law in that it isn't crazier than suits that actually succeed. But I'm somewhat sanguine about Nader's latest foray; if he's tilting at the windmill of trying to make football coaching decisions litigable (Can a fan sue the Washington special teams coach for costing the team the game against Tampa Bay because it reduced the chance the team would go to the Super Bowl and the resale value of his season tickets?), it means he's not spending time trying to wreck more important industries.

(Yes, I know that one shouldn't blame the Washington special teams coach for losing the game. But it would be actionable under the Nader regime if a lawyer can find a fan who purchased tickets after hearing coaches say they were trying to avoid senseless penalties this season.)

Instead of making investments that would create 75 jobs, Max & Erma's Restaurants is spending half of its profits on Sarbanes-Oxley compliance. The company will go private to avoid the regulatory hassle, but that limits the company's access to the capital markets—and everyday investors' access to opportunity. (John Berlau and Anastasia Uglova, "Sarbanes-Oxley 'reform' harming economy", Pittsburgh Post-Gazette, Nov. 13). And Larry Ribstein sees SOx behind Georgia-Pacific's decision to go private.

The trial lawyers' lobby has a new technique for pressing its opposition to proposals that would reduce or eliminate liability for drug companies to manufacture vaccines.

Run a Google or Yahoo search for "bird flu" or "avian flu" and a sponsored link will pop up, leading to ads by a group called People Over Profits -- which is actually a unit of the Association of Trial Lawyers of America. They bear such headlines as "Bird Flu and Viagra: What do they have in common?" and "President Bush and Bird Flu: What Bush is not telling you." (The group also purchased the search term "Rafael Palmeiro," not because he has anything to do with the issue but because the ballplayer gets Googled a lot in the steroids controversy.)

Now even Web searchers aren't safe from lobbying! And since sponsors can monitor the traffic, says ATLA spokeswoman Chris Mather, "you can change your message during the day if it's not working."

(Howard Kurtz, "CIA Article Sidebar: A Story of Deja Vu", Washington Post, Nov. 14). Of course, it's more important for trial lawyers to have lawsuit opportunities than for manufacturers to be able to make vaccines. More: Apr. 11, Oct. 19, 2004, Dec. 24, 2003.

"...Never ever ever ever ever mention that the job of a lower judge is to apply the decisions of higher courts. Treat his opinions as if they represented his personal views of what the law should be." David Nieporent's (Jumping to Conclusions) commentary on judicial nomination fights is reprinted at Point of Law.

Columnist John Leo's annual survey of the year in victimization (U.S. News, Nov. 21).

"A man who sued Home Depot claiming that a prank left him glued to a restroom toilet seat has passed a lie detector test, a newspaper reported." After Bob Dougherty made headlines with his allegations that employees of the home improvement chain failed to respond to his calls for help, "Ron Trzepacz, former director of operations in Nederland, where Dougherty lives, said that Dougherty claimed in 2004 that he was glued to a toilet seat in the town's visitor center but pulled himself free." However, Dougherty said he knew nothing of Trzepacz or of such an incident and offered to take the polygraph test, which was arranged by a local television station. (AP/CNN, Nov. 11). Amid the numerous puzzling aspects of the case, one aspect is reassuringly familiar, namely that it's Not About the Money (see Nov. 7, etc.) "It's not about the money. I want my health back. I want to be back to normal,' Dougherty said. 'I want to make sure this doesn't happen to anybody ever, ever again.'" His lawsuit asks $3 million for pain, humiliation and other losses. (AP/CNN, "Man glued to toilet may have history", Nov. 8). Possibly the most groanworthy headline, of several candidates, was the Dallas Morning News's: "Toilet allegation: Was it stunt No. 2?" (Nov. 8).

Fourteen-year-old Jahkema "Princess" Hansen was dating 28-year-old murder suspect Marquette Ward. Police detectives visited Hansen to see if she had any information about the murder over a PCP-laced marijuana cigarette, which she allegedly witnessed. She told them she didn't, and then (according to prosecutors) went to Ward and asked for compensation for keeping quiet. The night after the interview, a friend of Ward's, Franklin Thompson, allegedly stormed Hansen's DC townhouse and shot her dead, execution-style. (Ward and Thompson have plead not guilty to the two murders, and go to trial in March.)

But what makes this sordid story one for Overlawyered was the reaction of Hansen's mother, Judyann Hansen, who, through her attorney, Donald Rosendorf, sued the Washington, DC, police department, blaming them for Hansen's death. "Any time a police officer sets foot in that neighborhood, it gets around and it gets around fast," Rosendorf said. Thus, he argued, the mere fact of the interview created a legal duty to provide special protection for Hansen. A D.C. Superior Court judge has disagreed, and dismissed the suit. (Henri E. Cauvin, "D.C. Police Not Liable in Witness's Death, Judge Rules", Washington Post, Nov. 10). A Marc Fisher column in the WaPo in February painted a more sympathetic portrait of the Hansen family (which included two adult sons serving time for crack-dealing), which led to a Charlotte Allen fisking.

"At last count, Congress Assembled contains two physicists, two chemists, two biologists, one geologist, 234 lawyers and an astronaut. This puts the lawyers within striking distance of an absolute majority in the 538-member Congress." (Russell Seitz, "Congressional Math", Wall Street Journal, Nov. 11)(sub-only).

When "a recent question about a preschool prompted a mother and shop owner to recount a bad business encounter with the school's director, the husband of the school's director threatened to sue the board's moderators for defamation." As "Mr. [Edward B.] Safran's threats of a lawsuit continued, the moderators were scared into shutting down the message group's entire archives this month." (Mokoto Rich, New York Times, Nov. 13).

I'm off to the Federalist Society's annual Lawyers Convention in Washington, D.C. and expect to be back posting on Sunday.

"In a decision that could have ripple effects across Long Island's East End summer playground, a Suffolk Supreme Court justice hearing a swimming pool accident case has ruled that a sharehouse owner may be held to the same liability standards as the owner of a hotel, motel or inn." After Flavio Fornaro injured himself diving, his lawyers argued that the owner of the house in Quogue should have mounted decals on the swimming pool to indicate relative depths, a step that might be standard for a hotel or motel pool but which is not expected of homeowners. A judge ruled that the claim could go to trial. "The decision could create a whole host of new and previously unanticipated duties for both rental property owners and others who have pay-to-attend events at their homes." One Riverhead attorney wondered whether the hiring of lifeguards might be required, and a realtor called the decision "quite disturbing", with its implication that prudent private owners might need to mimic the safety precautions of commercial establishments: "You can't take a person's residence and make it a Starbucks." (Andrew Harris, "Sharehouse Owners Held to Public Accommodations Standards in Pool Accident Case", New York Law Journal, Nov. 2).

A man named Christopher Roller, who can be safely described as eccentric at least in his views, is suing magician David Copperfield for that alleged offense. (Squander Two blog, Nov. 3).

More on health and safety regulation in the U.K.: "The traditional firing of a salute to mark the beginning and end of the two-minute silence has been cancelled for Remembrance Sunday this weekend on health and safety grounds." (David Sapsted, Daily Telegraph, Nov. 8).

Further fireworks from the frequently fascinating Fieger files:

Michigan Attorney General Mike Cox accused a potential 2006 political opponent, high profile Oakland County lawyer Geoffrey Fieger, of blackmail Wednesday, claiming that Fieger threatened to reveal his extramarital affair if Cox did not drop an investigation into the lawyer's alleged campaign finance violations.

(Dawson Bell and L.L. Brasier, Detroit Free Press, Nov. 9). For more on Fieger, whose activities have long been a mainstay of this site, see Mar. 13, Oct. 24, and many others.

More on the story: David Shepardson and Mike Martindale, "Sex scandal", Detroit News, Nov. 10 (check sidebar for over-the-top statement by Fieger); L.L. Brasier and Patricia Montemurri, "Figure in Fieger-Cox sex scandal has criminal past", Detroit Free Press, Nov. 10); Dawson Bell and L.L. Brasier, "Cox: Fieger made threat over affair", Detroit Free Press, Nov. 10 ("one of the most bizarre events in recent Michigan political history"):

Fieger has a long history of stirring up trouble, both for himself and others, and sometimes on a personal level.

In 1998, when he was the Democratic nominee for governor, he suggested that his opponent -- then-Gov. John Engler -- was not the father of triplet daughters born to his wife, Michelle, in 1994.

Over at Point of Law, Ted looks into a supposed smoking gun in the case against Vioxx, and finds it nothing of the sort (Nov. 10).

It can consist of kids' playing, as in this British case in which an irate neighbor called in "the environmental health" to complain about a nearby nursery school. The school has agreed to restrictions under which "games such as What's the Time, Mr Wolf? can no longer be played outdoors." (Stewart Payne, "Nursery children must stay inside to protect neighbour's rights", Daily Telegraph, Nov. 10).

Eugene Volokh eviscerates a Slate smear of the Protection of Lawful Commerce in Firearms Act:

The gun industry has been exposed to novel theories of legal liability, which don't apply to other industries: If I'm hit by a 20-year-old driver who was drunk on Coors and driving a Ford Mustang, I wouldn't be able to hold the alcohol manufacturer or car manufacturer liable — even if the manufacturer sold the Coors to a liquor store in a college town (so that the manufacturer must surely have known that some fraction of its products would end up in the hands of the underaged), even if the manufacturer knew that the liquor store had been suspected in past unlawful sales (but still was allowed by the state to sell beer), and even if I can persuade the jury that car manufacturers shouldn't be able to sell really fast and powerful cars, especially to 20-year-olds, who are notoriously prone to speeding. Yet many of the gun manufacturer lawsuits were very similar to these lawsuits, and Congress was right to preempt them.

Read the whole thing.

One can expect the first constitutional challenge to the law on November 21, when Judge Weinstein will hear a motion to dismiss New York City's lawsuit against gun manufacturers. (Tom Perrotta, "Judge Stays New York City's Suit Against Gun Industry", New York Law Journal, Nov. 9). We discussed the case Apr. 13, 2004.

"Jack Thompson, the colorful Miami attorney who has become synonymous with lawsuits against video game companies, withdrew as the attorney for the plaintiffs in Fayette’s video game trial."

...Thompson’s withdrawal comes after a hearing on a motion from the defense attorneys, who represent video game manufacturers and distributors, to revoke Thompson’s privilege to practice law in Alabama during the case. Judge James Moore granted Thompson, pro hac vice, the legal term for the temporary privilege, when the suit was filed.

Defense Attorney Jim Smith claimed that Thompson bombarded him, his co-counsel Rebecca Ward and his law firm, Blank Rome, with threatening and harassing e-mails and letters. He also accused Thompson of violating legal ethics, misrepresenting an alleged past history of disciplinary problems and attempting to poison the jury pool with frequent press releases and appearances in the news media....

Since defense attorneys filed the motion, Thompson has claimed they were “coming after" him. He said Blank Rome’s strategy has always been to attack its opponents.

("Robert DeWitt, "Attorney in Fayette case bows out", Tuscaloosa News, Nov. 8). More coverage: IGN, GamePolitics.com, GameSpot News, The Inquirer. For more on Thompson's antics, see Feb. 19, Oct. 21, etc.

In Washington state, voters defeated I-330, a doctor-backed plan to limit medical malpractice awards and lawyers' fees, by about a 54-46 margin, while also drubbing I-336. a lawyer-backed alternative (Seattle P-I, Seattle Times). California voters trounced, by a 61-39 margin, Proposition 79, which would have regulated drug prices via freelance lawsuits among other means; they defeated Proposition 78, a drug-industry-backed alternative, by nearly as wide a margin. (L.A. Times, Sacramento Bee). In Virginia, former Richmond mayor and Democrat Tim Kaine, who had been criticized by the American Justice Partnership (Nov. 2), won the governorship anyway (Wash. Post). Texas voters easily passed an anti-gay-marriage constitutional amendment that Houston attorney Warren Cole, chairman of the State Bar of Texas' family law section, called "horribly drafted" and which would prohibit the recognition of any "legal status" that is "similar to marriage" (more from Cathy Young)(see yesterday's post) (Dallas Morning News) (cross-posted at Point of Law).

Over at Point of Law, I've been collecting links on California's Prop 79 (empower trial lawyers to sue over drug prices, among other provisions) and Washington's I-330 (med-mal). Also, Virginia Postrel reminds Texans to vote no on Proposition 2, which is billed as banning gay marriage and in fact, like some tricky predecessors in other states (see Mar. 20, etc.), would probably extend much further than that.

Three years ago, when he was 2, a medical exam discovered brain lesions on Kellen Gorman. His family blames "toxic mold" for his autism (though his two siblings weren't affected) in the house, and sued 17 defendants—including the lumberyard that supplied the wood for the house. Six weeks into trial, the case has settled for $22.6 million and, amazingly, it's the lumberyard that's paying the bulk of it: $13 million, or more than $200,000 for each of its sixty employees. As it was, the lumberyard had hired seventeen experts to try the case, but had ten of them (including a toxicologist and microbiolgist) excluded when they missed a court-ordered deadline for disclosure. (The Gormans' attorney, Brian Witzer, accuses a defense attorney of trying to backdate a document, and says he has filed ethical charges.) The Gormans already have plans for their millions: "We'll tear [the house] down and take it to a hazardous waste dump and build a really nice house," [Dana] Gorman said. "It will cost a lot to tear down and rebuild." (Josh Grossberg, "Manhattan Beach family wins $22.6 million suit", Los Angeles Daily Breeze, Nov. 7; NBC-4, Nov. 4). And if housing seems a bit more expensive in California, it's because even the raw materials suppliers must purchase insurance against the risk of multi-million-dollar junk science verdicts.

The widely read technology correspondent discusses the controversy arising from the revelation that Sony has been "injecting an undetectable copy-prevention utility into Microsoft Windows". On the one hand, lawyers have already filed a class-action suit against Sony complaining of the practice; on the other hand, consumers who try to rid their computers of the anticopying program are at risk of violating "Section 1201 of the Digital Millennium Copyright Act, which bans the 'circumvention' of anticopying technology." McCullagh goes on to observe:

If your head isn't spinning by now, it should be. It's a wacky result when both Sony and its hapless customers could be embroiled in legal hot water at the same time.

These citations to state laws, federal statutes and common law torts above should demonstrate an obvious point: The American legal system is, all too often, used as a weapon against businesses or individuals who can't hope to comply with every regulation on the books. Entrepreneurs write checks to law firms instead of developing products. Guilt and innocence turn too often on technicalities rather than whether an action was inherently right or wrong.

Why? As Manhattan Institute fellow Walter Olson documents on Overlawyered.com, our legal system is set up to encourage lawsuits. They're easy to file and difficult to dismiss. Plus, politicians receive attention by enacting new laws, not by repealing them. No wonder the Federal Register was growing by between 55,000 and 70,000 pages annually even by the first Bush presidency. ...

("Perspective: Why they say spyware is good for you", CNet News, Nov. 7).

Declaring that he had "better things to do", U.S. District Judge Frederick Motz in Baltimore has dismissed for lack of jurisdiction an action by plaintiff's lawyers seeking to grab more than $24 million from a $79 million fee pot awarded another group of lawyers for their work suing Microsoft in six states and the District of Columbia. The lawyers are still free to pursue their claims in state courts. (Brian Witte, "Federal judge dismisses request for legal fees in Microsoft case", AP/Grand Forks Herald, Oct. 27). More on MS fee-ing frenzies: Jul. 25, 2004 and links from there.

Confirming every suspicion about ice hockey:

A former minor-league hockey player who injured his shoulder in a fight he claimed his coach told him to start is entitled to workers' compensation, a Virginia appeals court ruled.

The Virginia Court of Appeals upheld a Virginia Workers' Compensation Commission finding that "fighting is an integral part of the game of hockey" and that Ty A. Jones' injury arose in the course of his employment as an "enforcer."

(Sonja Barisic, "Court: Workers' comp covers hockey player", AP/Detroit News, Nov. 4).

In our continuing series (see Jul. 5): the family of 58-year-old Gerald Glover, who became ill following the recent Toronto outbreak of Legionnaire's Disease, is suing. "It's never been about the money," said his daughter Cheryl. The suit seeks class action status and asks C$600 million. ("Legionnaires' class action suit seeks $600M", CTV, Oct. 26) (via KevinMD). Other suits that were not about the money: Apr. 30, Jun. 15, Jun. 30, and Jul. 5, 2005; Aug. 16, 2004; Mar. 27-28 and Sept. 3-4, 2002; Apr. 24 and May 9, 2001; Jul. 26-27, 2000. And one that was: Jun. 14, 2001.

Jason Shafer is seeking $50,000 for medical expenses and pain and suffering for neck and shoulder injuries allegedly sustained in a fender-bender with the late-model BMW of attorney Rex Carr (Dec. 23; May 4, 2004). (Steve Gonzalez, "Rex Carr sued for allegedly causing rear-end collision", Madison County Record, Nov. 3).

Last year, as has been mentioned in this space (May 18, 2004, Oct. 19, 2005) a Texas judge handed down a sentence of 24 years in prison to Dynegy executive Jamie Olis, convicted by a jury of committing accounting fraud which advanced his employer's aims but from which he did not benefit personally. Now Fifth Circuit Judge Edith Jones has handed down a ruling (PDF) finding that Olis is entitled to resentencing and laying down guidance which likely will result in a shorter sentence. Tom Kirkendall is covering the story as usual (Nov. 1, Nov. 4) as is Larry Ribstein (Nov. 1).

Advancing toward prohibition, 25 feet at a time:

On Tuesday, Washington state voters will consider the first statewide ban on smoking within 25 feet of buildings that prohibit smoking....

Limits on smoking outdoors have taken off in the past two years, says Maggie Hopkins of the American Non-smokers' Rights Foundation.

Among the examples: many beaches in California (see Jun. 24, 2004), and hospital grounds in Iowa: "Patients and visitors will have to trek off hospital grounds -- one campus is 44 acres -- to smoke." (Dennis Cauchon, "Smoke-free zones extend outdoors", USA Today, Nov. 1). See Jul. 27 (smoking while driving); Aug. 15 (prison terms proposed for smoking too close to buildings).

Josh Gerstein of the New York Sun has details ("Class-Action Expert Pleads Guilty", Nov. 4). The plea agreement, on charges unrelated to his class-action expert witness testimony, "does not contain any language requiring Torkelsen to cooperate with the inquiry" into Milberg Weiss, reported earlier (see Oct. 10).

Prime Minister Paul Martin incorrectly blamed the United States for gun crime in Canada by using an unsubstantiated figure to assert that 50 per cent of this country's gun crimes involve smuggled firearms, U.S. Ambassador David Wilkins said yesterday.

Mr. Wilkins said that Canadian officials admitted in meetings with U.S. Secretary of State Condoleezza Rice this week "that that figure was just grabbed out of thin air."...

The figure, which others have used previously, is not based on any statistical study that could be traced by The Globe and Mail, and police forces and other authorities said yesterday it is not verifiable.

"I know that figure of 50 per cent has been bandied about, but no one can substantiate that figure," said Staff Sergeant Paul Marsh, a spokesman for the Royal Canadian Mounted Police.

As noted Oct. 24, Martin's government says it is considering suing American gun manufacturers for failing to prevent the smuggling of their products across the border. (Campbell Clark, "Don't blame U.S. for gun crime, Canada told", Globe and Mail, Oct. 27).

Are you reading Point of Law regularly? If not, you're missing

• extensive analysis of the Alito nomination;
• the meaning of the New Jersey Vioxx verdict;
• the plaintiffs' lawyer who asked for $60 million because he had successfully forum-shopped for a court with judges he helped elect;
• Eliot Spitzer bullying competitors of the Postal Service;
• multiple refutations of the plaintiffs' bar's attempt to lie about medical malpractice insurance;
• ongoing coverage of the silicosis litigation scandal;
• an extensive discussion of what it means to be an ethical litigator; and much, much more.

"A 67-year-old man who says he doesn't even like watching movies has been sued by the film industry for copyright infringement after a grandson of his downloaded four movies on their home computer." The Motion Picture Association of America earlier demanded $4,000 from Fred Lawrence of Racine, Wisc. and is now suing him for as much as $600,000 in damages. Lawrence says the grandson, who was 12 at the time, downloaded the files out of curiosity and deleted them immediately; the family already owned three of the four films on DVD. (AP/Business Week, Nov. 2).

Continuing a trend toward the protection of "gripe sites" as free speech, a Manhattan judge has ruled that a New Jersey man's website assailing an auto warranty company did not constitute actionable defamation. Penn Warranty Corp. sued Ronald DiGiovanni over eight allegedly libelous statements posted on his site, including assertions that it is a "blatantly dishonest company" that has been "running scams," "committing fraud on a grand scale," and "ripping off its contract holders for quite a while." The judge granted DiGiovanni's request for a summary judgment dismissing the action, however, ruling that "the web site, when viewed in its full context, reveals that defendant is a disgruntled consumer and that his statements reflect his personal opinion based upon his personal dealings with plaintiff. They are subjective expressions of consumer dissatisfaction [and] are not actionable because they are defendant's personal opinion." (Mark Fass, "Court Finds 'Gripe Site' Is Protected Free Speech, Not Defamation", New York Law Journal, Nov. 1).

They've been fighting over a A$1.8 million bequest left by the late Edith Melva Thompson, with the result that at least a third of the sum is expected to be consumed in legal fees. (Katrina Strickland, "Lawyers the winners in bequest to opera", The Australian, Oct. 27).

Point of Law contributors have been following the case, and KevinMD rounds up blogger reactions.

Bob Felton of Civil Commotion got a fund-raising appeal from the ACLJ in his email last April, and was not impressed by its contents. He hasn't been troubled with any follow-up appeals, though. See yesterday's post.

That's how many visitors our servers recorded yesterday, thanks in part to Andrew Sullivan and others who linked to our Jay Sekulow item. Not sure that's the highest number ever for one day, but it's certainly among the better showings.

Netflix has settled a purported class action in California state court complaining about alleged false advertising over "unlimited" DVD rentals. One is reminded of Lionel Hutz:

"Mr. Simpson, this is the most blatant case of false advertising since my lawsuit against the movie The Neverending Story!"

Class members get a free one-month upgrade in service level (e.g., those who have a subscription entitling them to eight DVDs rented at a time may now rent nine DVDs at a time)—but will be billed for the upgrade for future months unless they remember to ask for a downgrade before the free month expires. The plaintiffs' attorneys will ask for $2.5 million, money well spent by Netflix since a court-ordered settlement will permit them to engage in upselling marketing tactics that might not be permissible otherwise. Precisely how the class is better off remains (at a minimum) questionable. (Chavez v. Netflix, Inc. (San Francisco Superior Court No. CGC-04-434884)) (hat-tip to D.F.). More from Baude, 3YOH, and Hit & Run.

The settlement remains subject to the court's approval, and two class members have had discussions with me about representing them in filing an objection; I'm considering it, as are they. (Threatening to take away $2.5 million from a lawyer might get him angry enough to retaliate with harassing discovery.) Of course, the Class Action Fairness Act will help to act to prevent abuses like this in the future; will the California courts protect class members from their attorneys' neglect of fiduciary responsibilities in the present?

Update, Thursday morning: This site has links to printable opt-out forms. Note that a 5% opt-out rate doesn't necessarily keep the settlement from being approved (and the lawyers from being paid); it just gives Netflix the option of backing out of the settlement if they think there will be further litigation from the opt-outs. If Netflix attorneys believe that, even with a high opt-out percentage, there is unlikely to be further litigation and it will be cheaper to go forward with this settlement than continuing to litigate against Frank Chavez, they will proceed with the settlement. The 5% clause is there to protect Netflix from having to deal with a second class action. Opting out may just cost you 37 cents, and lead to a new class action settlement that you probably won't like much better.

The Netflix Fan site (via Boing Boing (hat-tip A.T.)) notes that Netflix is budgeting for $3.0 to $4.0 million in settlement expenses—which implies $2.5 million for the plaintiffs' lawyers, a few hundred thousand in legal and administrative expenses for Netflix, and negligible benefit to class members.

Class members as a whole are clearly worse off from this settlement: if they're happy with the company, it's financially injured by having to pay protection money to plaintiffs' lawyers; if they're unhappy with the company's service, their recovery is illusory—even if the company had done something illegal, which it doesn't appear that it has. Worse, consumers as a whole are worse off, because the ability of the plaintiffs' lawyers to recover millions from a meritless lawsuit will encourage them to file other meritless lawsuits, diverting money from useful endeavours to lawyers' pockets, and raising costs for everybody.

Note that one can only object to the settlement (or join in a filed objection) if one does not opt out of the settlement. Opt-outs are no longer members in the class, and will not have "standing" to object.

Here's the settlement website. Geektronica post and comment thread. Bond comments.

And a trenchant observation from the Metafilter comments page:

I do wonder why the plaintiffs' attorneys agreed to it.

'Cuz they got paid $2.5 million.

(This post is expanded and bumped from Nov. 2, 10:32 am, when it was titled "Lawyers Imitate Lionel Hutz Department." Post title changed to be friendlier to Google searches.) Update Jan. 11, 2006 (FTC objects); Jan. 21 (settlement delayed because of large number of objections).

The humor publication, taking note of lawmakers' recent passage of industry-by-industry liability limits protecting gun manufacturers and makers of fattening food, suggest a bunch more "New Corporate Responsibility Laws". Among them: "Camera manufacturers no longer held accountable for embarrassing intimate photos posted on Internet" and "Slushee Corporation cannot be blamed for lowered sexual desire when product is accidentally spilled on lap".

One can understand why Wal-Mart is upset that a former executive, Tom Coughlin, allegedly swiped a half-million dollars, and wants to stop paying him in addition to referring the matter to federal prosecutors. But one doesn't understand why Wal-Mart, in an effort to recover a fairly small sum, is arguing to the court that it should disregard the mutual waiver and release that Coughlin signed with Wal-Mart when he left the job. Surely the corporation would be better off on the whole with a legal rule that strictly enforces releases than one that judges the validity of a release on a case-by-case basis. (AP, Nov. 2).

The CJAC has an idea for the Harvard School of Public Health: rather than make an embarrassing decision to give a "Health Award" to the facile celebrity, why not give the award to Norma Zager, the Beverly Hills Courier reporter who exposed Erin Brockovich's quackery? (May Habib, "Brockovich Awarded SPH’s Highest Honor", Harvard Crimson, Oct. 19; Jessica Heslam, "Lawyer group protests award for `Erin Brockovich'", Boston Herald, Oct. 18). Earlier coverage: Oct. 6 and especially Sep. 30 and links therein.

New York Times columnist Clyde Haberman, on a jury's determination last week (Oct. 27, Oct. 29) that negligent security on the part of New York's Port Authority was more responsible for the damage from the first (1993) bombing at the World Trade Center than the Islamist terrorists themselves:

Through some mathematical wizardry, the jurors held the authority to be 68 percent at fault, the murderers only 32 percent.

Poor terrorists! Guess they couldn't help themselves. They must have felt they had no choice but to take advantage of a security lapse.

("Sometimes Big Brother Is a Protector", Nov. 1, immured behind Times Select wall).

The "Online Freedom of Speech Act", H.R. 1606, which will exempt the Internet from McCain-Feingold (as was the case in the 2004 election), is being considered by Congress today. If Democrats continue to oppose it, the FEC will pass court-ordered regulation that could affect the ability of websites like this one to use the authors' First Amendment rights to legally comment on federal elections, which in turn could set a precedent for state regulation. It's fascinating to watch Daily Kos folk tie themselves in knots over the inevitable repercussions of the evisceration of the First Amendment in McCain-Feingold and McConnell v. FEC while simultaneously trying to hold the idea that this sort of campaign finance regulation is a good thing. But it's also important that some roadblocks be placed in the way of the slippery slope. If this isn't persuasive, then consider the fact that the New York Times opposes the legislation. Call your Congressperson. (Rep. Hensarling Redstate post.)

Major investigative piece by Tony Mauro for Legal Times on "the leading Supreme Court advocate of the Christian right," alleging that Sekulow has feathered his nest very nicely through the use of his American Center for Law and Justice, which in 2003 raised $14.5 million for its high-profile legal advocacy. Among the specifics: payments to Sekulow that are very high by non-profit standards, along with perks such as the use of a private jet, chauffeur-driven cars and several houses; jobs for his family members on the payroll; and circuitous routings of both donations and expenditures that have the effect of sanitizing ACLJ's financial statements. "A review of publicly available tax and court documents, as well as interviews with several former employees, paints a stark portrait of Sekulow as a hard-charging man who emerged from bankruptcy and allegations of securities fraud in the late 1980s to build a complex network of personal, business, and nonprofit entities. At times, those financial dealings have alienated employees and been criticized in court." They have also produced a backlash among many associates who believe that Sekulow's handling of his organizations' finances, which draw heavily on support by small donors, does not well exemplify Christian teachings. Vital reading ("The Secrets of Jay Sekulow", Legal Times, Nov. 1). More: Mike Cernovich, Jeremy Richey, Legal Reader, Mike Airhart. And: Jonathan Rowe, Ed Brayton, Rob Huddleston, Radley Balko, Greg Prince; and welcome Andrew Sullivan readers.

Looking forward to next Tuesday's election:

* The American Justice Partnership is blasting Virginia Democratic gubernatorial candidate Tim Kaine, noting that while a practicing trial lawyer he was sanctioned by a court for filing a suit deemed meritless and that while mayor of Richmond he asked staffers to look into the possibility of having the city sue gun manufacturers. For an account of the 1989 suit, see AP coverage, Jan. 10, and this Commonwealth Conservative post, the comments section of which indicates the Kaine campaign's response. The Kaine campaign's response on the gun-suit issue is here.

* * In California, campaigning continues on Proposition 79 (see Oct. 26), which would among other provisions empower anyone to sue pharmaceutical companies for the vaguely defined offense of "profiteering". (William Finn Bennett, "Libertarians blast both prescription drug initiatives", North County Times, Oct. 29). The Civil Justice Association of California strongly opposes the measure, as should we all.

* Washington state doctors and lawyers continue to battle down to the wire on legal-fee limits (see Ted Frank, PoL, Sept. 12) and now the lawyers appear to have thrown in the towel on their counter-initiative so as to devote all resources to defeating the doctor-backed I-330. (Ralph Thomas, "Doctors, lawyers toss mud to tout message", Seattle Times, Oct. 10; Seattle Times, "Lawyers' new goal: Defeat I-330", Oct. 31) (via KevinMD). Pro-I-330 forces have put up a website whose contents, like its name, are rather rude: TheirLipsAreMoving.com (if you need the reference to the old lawyer joke explained, visit the site). And Arizona doctors are studying the Washington initiative with an eye to possibly launching one of their own, despite trial lawyers' threats of a revenge-initiative if they do (Phil Riske, "Doctors, lawyers still might square off on the ballot", Arizona Capitol Times, Oct. 31).

Last week the Manhattan Institute (with which I'm associated) released Trial Lawyers Inc. -- Health Care, the third in its series of "annual reports" on the doings of the litigation industry. (The first two were a general nationwide report under the title of "Trial Lawyers Inc.", and a report on trial lawyers' doings in California). While I can't take credit for the new report -- Jim Copland, who heads the Institute's Center for Legal Policy, is the one to thank -- I can report that the new publication is chock full of valuable facts and statistics about the health care litigation scene, and is must reading for anyone who wants to follow the subject. Subdivision/chapters include:

Drugs and Medical Devices
Special Focus: Vaccines
Medical Malpractice
Special Focus: Hospitals
Health Maintenance Organizations
Government Relations/Public Relations

For our posts on these issues, see our "Bad Medicine" pages, first and second series, and (for pharmaceutical matters) our products liability page. The new TLI report, again, begins here in HMTL form, and can be downloaded in PDF form here.

A cherished friend, wise adviser and writer/activist of formidable gifts, Joan Kennedy Taylor died on Sunday at age 78 after a long illness. Joan was a key figure in the early history of the Manhattan Institute; her supremely thoughtful work helping Charles Murray to shape and present the argument of Losing Ground, the book that demonstrated the failure of the War on Poverty and revolutionized the welfare debate, rightly became a legend in the policy world. Much of Joan's own writing sought to advance the themes with which she was above all else associated, namely those of an individualist feminism grounded in Enlightenment values and committed to liberty and specifically to free expression. Her unique book for the Cato Institute and NYU Press, What to Do When You Don't Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, was discussed on this site Nov. 12 and Nov. 13-14, 1999 and Feb. 19-21, 2000.

Joan made an enormous impression on me when I first met her in 1976, having already been a fan of her radio commentaries (she was one of the contributors to CBS radio's rotating "Spectrum" lineup). When I landed in New York City ten years later it was inevitable that I would seek out her renewed acquaintance. Only much later did I learn about the fascinating life she had led, born to a family of much cultivation (her father was the prominent music critic and composer Deems Taylor), and later close for many years to Ayn Rand. Joan's preferred methods of persuasion, however, could hardly have stood in more contrast from those of Rand, as may be evident from this profile:

While her views put her at odds with many "mainstream" feminists, Taylor says she prefers to work to build alliances rather than accentuate differences. "New Deal feminists may put more faith in government solutions than would libertarians or classical liberals," she said in an online discussion (May 7, 1999). "But I think it makes sense to keep the bridges to what is good about the liberal tradition, so that one can call upon our common heritage in the Enlightenment and the American constitutional tradition of individual rights."

Always reluctant to turn political disagreements into occasions for acrimony and denunciation, Joan raised to a virtual art the search for common ground with others of good will. Other comments: Jesse Walker, Cathy Young, Ed Hudgins (and more) and Wendy McElroy (cross-posted at Point of Law).

P.S. There is now a tribute blog whose first post offers a more detailed account of her life. And now Charles Murray has published, in Reason, a beautifully written appreciation (Nov. 1). More: Chris Sciabarra, Dave Zincavage. And an obituary article by Jeff Riggenbach.

The state's public nuisance action against companies that long ago sold lead paint for interior use, the only such lawsuit filed by a state government, ended in a mistrial three years ago: see Oct. 30-31, 2002. Now it's come to retrial in a Providence courtroom, with huge potential stakes. (Eric Tucker, "Landmark lawsuit against lead paint industry to return to court", AP/Boston Globe, Oct. 16; "New lead paint trial set in Rhode Island", UPI/Science Daily, Oct. 17.) Speechwriter/blogger Jane Genova is blogging it live from the scene, with first posts here and here. DuPont paid this summer to be let out of the case: see Jul. 2. On the politics behind the suit, see Jun. 7 and Jun. 8-10, 2001.