Disturbed at the growth of recent sizable rulings and requests for non-economic damages for pets (Sep. 7; Mar. 8; Nov. 21, 2003; Jul. 30, 2003), the Animal Health Institute is lobbying for liability reform that precludes such damages. (Judy Sarasohn, "Tort Watch for Animal Lovers", Washington Post, Dec. 29).
December 2005 Archives
Hooters, dissatisfied with a district court ruling (Dec. 7, 2004) that it could not use the mechanism of trademark law to preclude competing restaurants from having tank-top-clad waitresses serve mediocre chicken wings, has appealed, and the Eleventh Circuit will hear argument on January 13; the Fulton Daily County Report has all the detail you could ever want.
If you like this site, you'll love our sister site, Point of Law, which explores similar issues, often in greater detail than we have room for here. Recently, at Point of Law:
- Bill Sage and Jim Copland debate medical malpractice issues
- A profile of Steve Hantler, the DaimlerChrysler attorney often quoted here
- More on the Katrina litigation
- Why the success story for anesthesiologists may not be the panacea for medical malpractice it's often sold as
- The Illinois Supreme Court strikes down an absurd $10.1 billion judgment
- And the latest on the Vioxx litigation and the Alito nomination.
And I've also been writing elsewhere: AEI has released my working paper on the Vioxx litigation in two parts: Part I and Part II.
Posting and comment-approval from me will be at best light until after the New Year as I celebrate family activities. Have a great 2006.
This just in:
Bethlehem, Judea -- Authorities were today alerted by a concerned citizen who noticed a family living in a barn. Upon arrival, Family Protective Service personnel, accompanied by police, took into protective care an infant child named Jesus, who had been wrapped in strips of cloth and placed in a feeding trough by his 14-year old mother, Mary of Nazareth.During the confrontation, a man identified as Joseph, also of Nazareth, attempted to stop the social workers...
Also being held for questioning are three foreigners who allege to be wise men from an eastern country. The INS and Homeland Security officials are seeking information about these who may be in the country illegally. A source with the INS states that they had no passports, but were in possession of gold and other possibly illegal substances...The chemical substances in their possession will be tested.
I've got a "Rule of Law" column in today's Wall Street Journal on the unique problems presented to the state of Washington by the decay of longstanding doctrines of "sovereign immunity" which have left it financially liable for many crimes committed against its citizens, specifically when perpetrated by parolees or persons under the supervision of social welfare agencies. (Walter Olson, "Lawsuit Reform in Washington", Wall Street Journal, Dec. 24). For one such cause celebre, see Ted's Sept. 19 post on the case of Joyce v. Washington Department of Corrections, in which the state was sued after a parolee ran a red light and killed a Tacoma woman. For more on freshman Washington AG Rob McKenna's plans to curtail the state's liability, see Andrew Garber, "McKenna eyes liability limits", Seattle Times, Nov. 27. (More discussion: Jan. 4).
Also of interest to readers in Washington state: I'll be in Seattle Friday, Jan. 6 as the luncheon speaker at the Washington Liability Reform Coalition's annual meeting. Contact WALRC for more information about that event.
California: "A driver who had been drinking and admitted he took a curve too fast can sue The Newhall Land and Farming Company because his car skidded off a Valencia road and hit a berm on the firm's land, causing his sports car to overturn. ... Motorist Douglas Domel of Santa Clarita also has legal action pending against the city of Santa Clarita and the manufacturer of the 2001 Dodge Viper he was driving." (Patricia Farrell Aidem , "Court: Driver can sue developer", L.A. Daily News, Dec. 23). For a related case, see Nov. 7, 2003 (homeowner not liable for garden-wall crash).
SCOTUSblog is sponsoring an auction of a Justice Rehnquist bobblehead for charity, the winner to donate proceeds to charity. I'm currently the lead bidder, and my donation will be split between two good causes I invite you to support also: the Benjamin Franklin High School Katrina Reconstruction Fund and the Institute for Justice. IJ's merry band of litigators needs no introduction because of their work on Kelo, so let me talk about Franklin.
I graduated Benjamin Franklin High School in New Orleans in 1987. Franklin is not only one of the leading academic public schools in the country, averaging 23 National Merit Semi-Finalists a year and sending 99.5% of its graduates to college, but it is one of the few racially integrated schools in the city of New Orleans, maintaining its academic standards in the face of pressure ranging from a legislature that outlawed the teaching of evolution in the 1980s to modern-day school-board racial politics seeking to abolish magnet schools. The school was one of the few pieces of New Orleans that worked.
Unfortunately, Franklin was located on the New Orleans Lakefront, one of the lowest-lying areas of the city, and suffered $3 million in physical damage from the storm and flooding. Dedicated parents, faculty, and alumni are undertaking heroic efforts to re-open the school as a federal charter school with many of its pre-hurricane teaching staff on January 17, 2006—the tricentennial of Benjamin Franklin's birth. Federal and state funds are expected eventually, but there is an immediate need for money to pay for faculty salaries, startup costs, and instructional materials.
The Benjamin Franklin Alumni Association, a 501(c)(3) nonprofit, has set up three funds: the Katrina Recovery Fund provides money to twenty needy families of Franklin students; the Franklin Reconstruction Fund goes to reopen the school; or one can sponsor a specific distressed family.
100% of your tax-deductible donations go directly to help families or the school, with no administrative fees. (Paypal may be charging a transfer fee, but one can mail a check directly.)
I know that I make many of my charitable donations at this time of year, and hope you consider the Franklin Alumni Association's efforts among your other choices. Click here to donate and let them know I sent you.
Many Maryland towns string Christmas lights from powerlines, but the town of Lonaconing made the mistake of asking for permission, rather than forgiveness, and Alleghany Power, afraid of the legal risks of an accident if it approved the display, was forced to forbid it. Protesting citizens have erected an inflatable Grinch protesting against Verizon and the power company, but their efforts would be better directed at the litigation culture that forced these company's decision. (JoAnna Daemmrich, "Grinch pulls plug on a cherished ritual", Chicago Tribune, Dec. 22).
Litigation and the threat of litigation may be costing California taxpayers more than they know, if a secret settlement of the threat of an employment lawsuit—without approval from the Board of Regents—is more than an aberration. The San Francisco Chronicle reports (via Newmark).
That's what media critic Dan Kennedy (Dec. 21) calls an excerpt from one of the handwritten letters that Boston judge Ernest Murphy sent to Boston Herald publisher Pat Purcell following Murphy's securing of a libel judgment of more than $2 million against the newspaper (Dec. 8). One of the letters proposes to Purcell an "AB-SO-LUTE-LY confidential and 'off the record'" meeting which he is not to tell Brown Rudnick, the newspaper's chief legal counsel, about.
So here's the deal. I'd like to meet with you at the Union Club on Monday, March 7....You will bring to that meeting a cashier’s check, payable to me, in the sum of $3,260,000. No check, no meeting.
And Dan Kennedy comments:
This much is certain: If Murphy's letters are typical of what takes place between parties in a lawsuit, then the legal sausage-making process is a lot uglier than many of us realize.
(via Romenesko, who has links to the Boston press coverage). Boston Phoenix media critic Mark Jurkowitz also covers the story here and (Murphy's lawyer's response) here. A Jurkowitz commenter observes: "Settlement discussions are frequently unsightly -- they often have a 'Surrender, Dorothy' flavor."
Via Martin Grace, Craig Newmark tag teams with David Kopel on the Price v. Philip Morris case:
The plaintiff's theory--agreed to, mind you, by the trial court--was thatPrevious commentary at Point of Law and links therein.. . . the marketing of "light" cigarettes was a form of consumer fraud. Because the cigarettes have less tar, some smokers compensated for the lower quantity of tar in an individual cigarette by inhaling deeper, or smoking larger quantities. Thus, according to the trial court, Philip Morris deceived smokers into thinking the cigarettes were safer.How strange, except that if the theory were widely accepted the plaintiff's bar would have more work than they could handle until the end of the world. Economists have good evidence that seatbelts change drivers' behavior a little for the worse. So should any devices--padded dashes, anti-lock brakes, airbags--that make drivers safer. "Child-proof" caps on medicines also seem to have made people less careful in storing drugs. And Kopel notes that the theory seems tailor-made to sue makers of low-calorie foods. If this theory of harm were accepted, all those companies and more--many more--would, I assume, be liable.Kopel concludes:
That the tobacco companies were sued for manufacturing and advertising a safer product is a good example of the perversity of modern tort law, and of the determination of anti-tobacco extremists to punish cigarette companies even when cigarette companies took affirmitive steps to reduce the dangers of smoking."Perversity," indeed.
From "Vic" in the Volokh comments, on the furor over that temporary restraining order against David Letterman [typos cleaned up]:
I think this illustrates the problem with trying to enumerate how many lawsuits are frivolous.Most attempts at enumerating the amount of frivolous lawsuits have focused on asking judges about their perception of the number of frivolous lawsuits that pass through their corthouse. And the judges say: a trivial amount. I have always felt that the reason this number is said to be trivial is that the judge who allows a garbage lawsuit to go to trial, when he/she could have stopped it from proceeding further, is not going to say: Yeah, it was frivolous, but I didn't want to throw it out when I could have.
Also David Kopel examines the question of whether it's now illegal for Letterman to possess a gun (Volokh, Dec. 22). Update Jan. 2 (judge lifts order).
We've posted four more missives on our letters page. Among the topics this time: a reader notices a funny warning label on a prescription purchase ("If unconscious, call right away!"; another defends "patent trolls"; the writer of a book about Lord of the Rings tangles with the Tolkien estate; and reflections on discrimination against persons of "Appalachian heritage".
Writing in the L.A. Times Magazine, Andy Meisler profiles Napa-based environmental lawyer and former SDSer Mark Pollock and his crusade to drive silver dragées, the little confectionery balls found on some Christmas cookies and gingerbread houses, out of the California market (while garnering some nice legal fees at the expense of the bakers, food importers and others he sues). ("A Tempest on a Tea Cart", Dec. 18). Virginia Postrel calls Pollock a petty tyrant, says his activities illustrate the need for serious litigation reform, and has some kind words for us along the way (Dec. 19; also see Reason "Hit and Run"). Jim Hu at Blogs for Industry (Dec. 20) investigates exactly how hazardous the little silver balls are and finds the apparent answer: not very hazardous, compared with many other things people choose to eat. He also points out that "dragée is pronounced dra-'zhA and is derived from the same root as 'dredge'". For more on California environmental-suit bounty-hunting, see Nov. 4-5, 2002, Apr. 6, 2004 and these links.
As injustices go, it's a tiny one. But the everyday citizenry of California has to wait six months after a separation for a divorce decree. Renee Zellweger got around this law by filing for an annulment of her short marriage to Kenny Chesney. Except that annulments are only available on fairly limited grounds. Zellweger plead fraud in her annulment filing—and admitted in a press release within days that there wasn't any actual fraud, but that she had made the allegation out of convenience. It's not often that a major celebrity admits committing perjury, and it's even rarer that a court rewards the admitted perjury with the sought-after relief. But that's what happened here, and, as of December 20, Zellweger has an annulment that wouldn't be available to the hoi polloi.
Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman's property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer's lawyers are now attempting to get lifted. Ms. Nestler's application for the order
requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter....
When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.
(Jason Auslander, "Letterman lawyers: End Santa Fe claim", Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges' over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).
When riding in an elevator with jurors who've just rendered a verdict against your client, avoid calling them "crackers" to their face (John Shiffman, "Workers' bias suit ends in win, slur", Philadelphia Inquirer, Dec. 20).
Some Texas personal injury lawyers, feeling squeezed by that state's far-reaching liability reforms, are eager to shift into contingency-fee patent litigation work, especially in the plaintiff-friendly little jurisdiction of Marshall, Texas (see Jan. 14)(Alan Cohen, Law.com/IP Law & Business, Nov. 14).
New right spotted on the horizon: that of continuing to teach at a private Catholic elementary school, though unmarried and pregnant, and despite having signed a pledge to "convey the teachings of the Catholic faith by [one's] words and actions". The New York Civil Liberties Union is suing to force St. Rose of Lima school in Rockaway Beach, N.Y. to rehire Michelle McCusker. A New York Daily News editorial says, "It's called freedom of religion. By all rights, the NYCLU should defend the school's position rather than assault it." ("Bigotry - on whose part?", Nov. 23; Josh Getlin, "Pregnancy sparks faith-based clash", L.A. Times/Chicago Tribune, Nov. 27; John Leo, "The case of Michelle McCusker", syndicated/TownHall, Dec. 5).
In San Mateo, Calif., Katina Britt was nearly jailed a few days ago for her refusal to testify against the ex-boyfriend who allegedly battered her. (He was convicted anyway and the charges were dropped.) Under present California law, sexual assault victims cannot be jailed for refusing to testify against their attackers, but domestic violence victims can. Chief Deputy District Attorney Steve Wagstaffe said the court order compelling Britt to testify was "for her own protection". (Malaika Fraley, "Ultimatum in abuse case: Testify or go to jail", San Mateo County Times, Dec. 10; Michelle Durand, "Assemblyman to back abuse testimony bill", San Mateo Daily Journal, Dec. 20; more coverage via Google News). Wendy McElroy wonders: "How has the issue of DV drifted from its early roots of empowering 'victims' and encouraging their voices toward imprisoning them and coercing their testimony?" ("Don't jail domestic violence victims", Enter Stage Right, Dec. 19).
Despite the enactment of the federal pre-emption bill, some politicians, like New York Assembly Speaker Sheldon Silver, are still pushing the idea:
Gun dealers could be held liable if they sell weapons that are later used to commit a crime under an Assembly proposal that's under fire by gun-rights proponents.
The measure's chances for passage are considered remote, though. (Heather Yakin and John Milgrim, "Gun dealers balk at proposal to hold them liable", Middletown, N.Y. Times Herald-Record, Dec. 20).
Which New York elected official has the legal authority and responsibility to take action against the union's lawbreaking, but almost certainly won't? Ted has the answer. (Hint: initials are E.S.)
P.S. Thanks to our commenter for pointing out that our prediction above wasn't accurate as worded, since reports are that Attorney General Spitzer is willing to go to court to enforce the injunction. Ted's point, which I should have been more careful in conveying, is that it's doubtful Spitzer will proceed to "seek the full measure of damages on behalf of New York citizenry, and criminal penalties for the criminal contempt of the union leadership".
More (Dec. 21): The judge's $1 million/day contempt fine against the union may sound high, but needs to be set against economic damage to the city and its residents amounting to hundreds of millions a day. As Ted points out in comments, it amounts to $30/day per union member; MTA bus drivers make $60,000 a year. In addition, unions frequently succeed in negotiating an amnesty for fines as part of an eventual strike settlement; Steve Malanga of the Manhattan Institute notes that in the TWU's illegal eleven-day walkout in 1980, "when a judge imposed fines on workers, they simply upped their demands to cover the costs, winning 18% wage increases over two years." ("What Would Reagan Do?", WSJ (sub), Dec. 21; "Make the TWU Pay For the Harm It's Done", (editorial), New York Post, Dec. 21 (reg); "The transit strike" (editorial), New York Sun, Dec. 20; John P. Avlon, "Hostage for the Holidays", New York Sun, Dec. 16).
A local columnist reminisces:
Salt Lake City attorney Brian Barnard used to sift through state and local statutes passed decades earlier and since declared unconstitutional, then find a plaintiff to fight them in court.The laws were normally declared unconstitutional through agreement with government lawyers and the court. Barnard then would be paid attorney fees by the state.
But former Attorney General David Wilkinson disliked the idea of paying Barnard attorney fees, so for a time during his 1980s tenure, he would fight the claim of unconstitutionality. That would require Barnard to file more briefs, adding hours to his work and eventually giving him a fatter paycheck when the attorney's fees came due.
One time, however, Wilkinson was so late in approving Barnard's attorney fees that the civil rights attorney persuaded a judge to garnishee Wilkinson's state salary to satisfy the payment. Wilkinson approved the payment right away.
(Paul Rolly, "Attorney steps on some toes", Salt Lake Tribune, Dec. 9) (via State of the Beehive).
According to the email sent by the DUI defense lawyer:
"they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."
(Nate Morabito, "Tri-Cities Attorney Arrested For Contempt Of Court", News Channel 11/Tricities.com (Tenn./Va.), Nov. 30). It's almost unheard-of for lawyers to be prosecuted for telling clients to lie on the stand -- see here, for example -- but it looks as if it may happen this time. (via Volokh who got it from CrimLaw)
That's the Houston Chronicle's society-page coverage of the annual Christmas party thrown by attorney Mark Lanier, who this year brought in Dolly Parton to entertain 7,000 guests. (Shelby Hodge, "No objections raised at bash", Dec. 14). See Dec. 23, 2003 (similar).
From Santa Ana, Calif., an old reliable class of story, the secret sharer who pops up to claim a share after a big lottery win:
Seven workers at a California medical lab who shared a $315 million Mega Millions lottery jackpot are being sued by a co-worker.Jonathan De La Cruz said he wants a share of the pot.
In his lawsuit, he claims he had always been a part of the group when they bought lottery tickets before, but that he was off work the day they bought the winning ticket.
He said the group had an oral agreement that everyone would be included when they pooled their money to buy tickets.
The winners said his claims are nonsense.
They said it was the first time they had bought tickets together and that it had been almost a year since any of them had pooled money with De La Cruz for tickets.
They also said that when they won, he didn't claim that he deserved a cut.
The winners will each receive about $25 million before taxes.
("Co-Worker Sues For Share Of Big Lottery Jackpot", Channel3000.com, Dec. 15).
A lawsuit by a convicted drug dealer in Athens County, Ohio, demanding $450,000, names police investigators, the county sheriff, the trial judge who ruled in the case and also Andi, the police dog who helped in the raid. "That dog could've done something to me or one of my attendants," said Wayne Francis Green, 46, who said "that he felt endangered by Andi's presence....With a paw print, the dog 'signed' the paper indicating he had been formally served with the complaint." (AP/San Francisco Chronicle, Dec. 14).
Did you know that when you do your last-minute online shopping through our Amazon store page, a portion of the proceeds goes to support this website? You can also check our book recommendations which include links to buy the books.
The newspaper of H.L. Mencken gave this site a nice recommendation Nov. 24 (not online) in its column about the Web, "The Monitor":
What's the point? -- This site explores the ever-increasing litigiousness of society by reviewing law blogs (aka "blawgs"), and linking to and discussing articles and papers on cases, laws and so on.What to look for -- Check out posts on such recent cases as a man who says he got glued to a toilet seat in the bathroom of a Home Depot and last week's accusations that Dunkin' Donuts' coffee is too hot.
The financial services firm has now filed its appeal of the mega-verdict (see May 18) awarded in a Florida court to billionaire financier Ron Perelman, who sued Morgan over its role in a 1998 deal involving Sunbeam Corp.'s acquisition of the Coleman camping equipment firm. "Before trial, Judge Maass issued an order for partial summary judgment based on a violation of her discovery order. Her ruling prevented Morgan Stanley from disputing any of the facts alleged by Perelman." (Carl Jones, "Morgan Stanley: 'Record Is Clear' That Florida Judge Erred", Miami Daily Business Review, Dec. 14). Update Mar. 22, 2007: appeals court overturns verdict.
The combination of high malpractice insurance rates and inflexible Senate ethical rules may force Senator Coburn to stop practicing medicine (via Medpundit).
Following up on our Aug. 24 post: "A federal judge threw out a $10-million wrongful-death lawsuit brought by the family of a young rock climber killed in a 1999 slide in Yosemite Valley, short-circuiting a legal battle that some climbers feared could threaten a mecca of the sport." (Eric Bailey, "Suit by Climber's Family Dismissed", Los Angeles Times, Dec. 12).
They're facing an emergency of their own:
An increasing number of Palm Beach County doctors, including many who no longer have malpractice insurance coverage, are refusing to work in the emergency room or reducing the days they are willing to work there because they fear the added liability risk.The problem has led to delays in treatment and required some emergency patients to be transferred to -- or "dumped" on -- hospitals in Miami, Fort Lauderdale and as far away as Gainesville.
(Phil Galewitz, "Cures sought for ER doctor shortages", Palm Beach Post, Dec. 11)(via KevinMD).
Also from KevinMD regarding emergency rooms, here's some advice from a plaintiff's lawyer on how to behave if you're a patient using an ER. It does not go over well with Kevin's readers.
Dianne Reading was speeding in foggy conditions in her Ford Explorer, when she jerked her wheel to the right to avoid a deer, and flipped her vehicle. Unfortunately, she had not belted her minor son, Andrew, and he died. A Texas jury found Reading 65% responsible, but attributed 35% of the accident to Ford for not using "wider tires," and then assessed so much in damages that Ford is still on the hook for $16.6 million. Ford will appeal. (Scott E. Williams, "Ford hit with historic $16.6M verdict", Galveston County Daily News, Dec. 15).
Paul Sykes had a criminal record when he was hired by FedEx Kinko's; FedEx says their background check didn't turn it up. Sykes solicited Kinko's customers for work for his outside computer repair business; one family hired Sykes and his disturbingly-named "Facts and Fantasy" service, and Sykes went on to (allegedly) molest their eight-year-old son, a crime for which he has been arrested, charged, and has pled not guilty. The family is suing FedEx. (Bloomberg News, "FedEx Sued In Child Sex Assault Case", Dec. 15; AP/Newsday, Dec. 14).
The Oxford English Dictionary recognizes "ollie" as a skateboarding move, but now Alan "Ollie" Gelfand, who invented the move as a teenager in 1976, and got around to registering a trademark in 2002, claims exclusive use of the term, and is suing Disney, Sega, and numerous other defendants $20 million for their use of the word. (Patrick Danner, "If you use the 'ollie,' pay Ollie", Miami Herald, Dec. 7).
The Illinois Supreme Court sent Price v. Philip Morris back to the lower court with instructions to dismiss the case. Michael Greve criticized the trial court decision in his AEI Liability Project monograph "Harm-Less Lawsuits?" Full coverage is available on Point of Law.
Let's face it, Dahlia Lithwick points out: "the law offers a whole host of opportunities for wrecking the lives of others". In fact, lawyers have been known to boast about the way they've spoiled the other side's holidays:
Consider the perfectly timed restraining order, or the spontaneous motion for an order to show cause -- or in fact anything that could bury the other side in research and paperwork the day before Christmas. Think about the possibilities for 11th-hour changes in the visitation schedule for the children -- requiring canceled plane tickets and Christmas Eve court appearances. Or the last-minute effort to have a local crèche or tree deemed unconstitutional.
So Slate, for which Ms. Lithwick writes, is holding a contest in which lawyer-readers can submit "the meanest thing you've ever done to an opponent on the holidays":
The best stories will be reprinted here shortly, and the Most Evil Attorney in the World will be showered with Slate paraphernalia. This contest is also open to anyone, anywhere with stories of hideous pre-holiday lawyer shenanigans, whether they were perpetrated upon you by counsel on the other side, by bosses in your law firm, or you merely heard about them from some sad-sack lawyer in a bar on Christmas morning.
All forced jollity aside, doesn't this present bar authorities -- forever fretting about the profession's image -- with a goal worth working toward, namely, find ways to revamp the practice of litigation to make such "hideous...shenanigans" rarer? ("Billable Horrors", Slate, Dec. 13).
Law.com: "New York Judge Thomas J. Spargo refused to second-guess the referee of a high school championship wrestling match last week, declining to 'establish a precedent of reviewing and potentially reversing a referee's judgment call from the distant ivory tower of a judge's chambers.' Several judges from the top of the state judicial system to the trial courts have expressed sentiments ranging from disappointment to disgust when competitors turn to the courts to resolve athletic disputes." (John Caher, New York Law Journal, Dec. 13).
Melik Kaylan has advice for prospective curator/jailbirds: "The morality around acquiring antiquities parallels that of hunting certain species -- it was OK for millennia and suddenly isn't anymore." ("A Civilized Solution to Looted Art", WSJ/OpinionJournal.com, Dec. 14). More on museums in legal hot water: Apr. 28, Dec. 5.
National Review's 50th Anniversary Issue is on the newsstands (table of contents) and one of its features is a mini-symposium by ten writers on the topic "How To Increase Liberty In America" (more: "Corner", Jacob Sullum at Reason "Hit and Run", criticizing Robert Bork's entry). I'm one of the contributors; my piece calls for reviving the vital old principle of assumption of risk in our courts. The piece is online to subscribers only at the moment.
Speaking of symposium entries that are online to subscribers only: the October issue of The American Lawyer ran a supplement on the cost of litigation, again with contributions from numerous authors. My piece focused on the cost of the discovery (information-demanding) phase of lawsuits.
At some future date I may get around to posting these pieces. In the mean time, readers should consider supporting both these fine publications, whether by subscribing or by buying single copies.
A couple of ambitious lawyers have managed to sue the Vatican itself in pursuit of the Catholic Church's priest-abuse scandals, but it isn't easy:
...even if a process server could get past the Swiss guards, handing the pope a copy of a lawsuit doesn't count as service.Because the Vatican is a foreign country, all documents must be translated into its official language.
In this case, that means Latin. And there's still the major obstacle to get around of the Foreign Sovereign Immunities Act, which bars most suits against foreign governments. (Ashbel S. Green, "Suit reaches new heights: the Vatican", The Oregonian, Dec. 11). See PoL Mar. 10. More on church scandals: this site Sept. 16, 2003, Jul. 11, 2004; Point of Law Aug. 10, Sept. 29, 2004; Aug. 28, Aug. 31, Sept. 1, 2005.
The Manhattan Institute, with which I'm associated, has posted notice of two job opportunities related to the study of the legal system: a contemplated spot for an Empirical Fellow in Law and Economics and an Assistant Managing Editor for the website Point of Law. To learn more about applying for one of these jobs, follow the links.
There have to be countless Americans who condemn gangs and haven't brutally murdered four people, much less founded a gang that is responsible for hundreds of murders and tens of thousands of crimes by itself. Maybe some celebrities can pick one of these men or women and take up their cause.
Witnesses at Tookie Williams's trial include the woman who sold Williams the murder weapon, his roommate, his roommate's wife, an accomplice, three citizen-witnesses who corroborated the accomplice's version of events, a jailhouse informant, and an expert who identified Williams's own handwritten notes of the incident. Another accomplice, who has been sentenced to life and didn't testify at Williams's trial for Fifth Amendment reasons, has never wavered in his identification of Williams as a murderer.
Before his conviction, Williams attempted an escape in a conspiracy that would've killed two guards and one of the witnesses against him; he wrote a note indicating that he had obtained dynamite in support of this escape, which was foiled before he could commit additional mass murder. After his conviction, Tookie Williams looked at the jurors and told them he was "going to get all" of them. (One of the jurors, William James McGurkin, was black, contrary to several Williams supporter and press claims that blacks were excluded from the jury.) While in prison, Williams threatened two guards with death in two separate incidents (telling one that "I have dusted many officers on the street, one more would not make any difference," chemically burned another guard in the eyes, engaged in several fights, and ordered an inmate stabbed by fellow Crips. The LA County's DA's office has extensive details.
The only reason Williams had a chance to at least pretend to redeem himself (through children's books but not through debriefing prison officials on Crip activities, which Williams called "snitching" up to his dying day) is that his appeals (including five separate habeas petitions) took California and the Ninth Circuit twenty-four and a half years to resolve. Rich Lowry and Jack Dunphy have more.
Prompted by the (ongoing) corruption trial of former Illinois governor George Ryan and co-defendant Larry Warner, University of Chicago lawprof Albert Alschuler has written a series of posts at the Chicago Law Faculty Blog using the trial "to illustrate the unfairness of the mail fraud and RICO statutes". He notes that "prosecutors call the federal mail fraud statute 'our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart', with the closely related Racketeer Influenced and Corrupt Organizations Act (RICO) law second on the list of favorites.
In the Ryan case, the alleged misconduct to be brought out at trial "will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors." Are all those things illegal? Well, they might be, ever since Congress added a vaguely worded new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme 'to deprive another of the intangible right to honest services.'” The interpretations of this language have been so broad that even an elected official's violation of his announced personal policy on a matter, not otherwise illegal, may be construed to deprive constituents of honest services.
In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies. ... Does every broken promise by a politician (“read my lips”) now constitute mail fraud?
The mail fraud statute, Alschuler argues in a third post, encourages "kitchen-sink" proceedings in which a vast assortment of dubious actions, not in fact closely related to each other, get treated as a single vast "scheme" for purposes of prosecution. Finally, a fourth post discusses RICO charges, which prosecutors can build up on a foundation of "predicate acts" that:
may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.
For our comments on the abuse of the RICO statute by the Clinton and Bush administrations in litigation against tobacco companies, see Sept. 23, 1999 and many other posts.
"Canadian auto regulators are testing a system that would enforce speed limits by making it harder to push down the car's gas pedal once the speed limit is passed, according to a newspaper report. The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car's speed and position. If the car begins to significantly exceed the speed limit for the road on which it's travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail's website." ("Device stops speeders from inside car", CNNMoney, Dec. 4). Kaimipono Wenger at Concurring Opinions (Dec. 4) says the idea "seems wrong on so many levels it's hard to list them all" and should not necessarily be viewed as pro-safety, since speeding in some circumstances -- say, on rural roads in an emergency on the way to a hospital -- can be vital to life and limb.
The government of Great Britain looked at the idea a few years ago ("Go slow -- like it or not", BBC, Oct. 23, 1998; "'Spy in the sky' targets speeders", BBC, Jan. 4, 2000). A 2002 research paper (PDF) funded by the U.S. Department of Transportation on New England traffic recommended speed governors as the "most effective way of achieving speed compliance" (p. 4). Last year a Gallup poll for NHTSA (PDF) found that the idea was generally not popular with the public, commanding only 35 percent support (pp. 11, 64); Eastern, female, Hispanic and black respondents were relatively favorably disposed. Back on Oct. 26, 1999 we took note of a report that trial lawyers were taking a look at trying to get courts to hold automakers liable for not installing speed governors on vehicles.
The practice was common and unremarkable during the Golden Age of Radio, yet somehow the Republic survived (John Hood, "Warning: Coke, Though Refreshing, Is A Sponsor of This Program ", Reason, Nov. 22).
Ted has been covering developments in the case against Merck at length over at Point of Law, with occasional contributions from others such as Michael Krauss and me. On the New England Journal of Medicine story of last week, see also Derek Lowe, Dec. 9, and Evan Schaeffer, Dec. 8.
...is up at AutoMuse, and mentions our posts on immigration penalties and on suing moms in Alberta.
An appeals court in Missouri has ruled (Susan Mello v. Anita Davis and McDonnell-Douglas) that a lawyer who represented a client in an employment claim is not entitled to collect 35% of her client’s future salary and benefits by way of a claimed contingent fee. Best (if somewhat unsettling) quote from the court's caustic opinion:
if it was Mello’s intent to have her client surrender 35 to 45% of all future earnings until the welcome hand of death freed her from this servitude, the contract needed to say as much.
(Via George Lenard, Dec. 9, who says the case "would be funny if it weren't so sad").
In today's New York Times Book Review I've got a review of After the Victorians, the new book by journalist/author A.N. Wilson surveying the history of Great Britain in the first half of the twentieth century, a period of marked geopolitical decline culminating in the dissolution of the Empire. I praise the book as cleverly organized, engagingly written and rich in content, but point out that it is utterly wrongheaded in blaming the decline of British power in the 1940s on the supposed perfidious schemes of the United States (Walter Olson, "Damn Yankees", Dec. 11).
Britain's highest court, the Law Lords, "ruled that lesser courts correctly threw out an application by passengers or their families seeking to sue two airlines, British Airways and China Airlines, for death and injury from deep vein thrombosis (DVT). The action was a test case that could have thrown the air industry open to compensation claims for millions of pounds." (Martin Hickman, The Independent, Dec. 9; Simon Calder, The Independent, Dec. 9; Joshua Rozenberg, Daily Telegraph, Dec. 9). More: see Jun. 25 (Australia), Oct. 3, 2004 (U.S.), etc.
A few weeks ago (see Oct. 27, Oct. 29) a jury decided to hold the Port Authority of New York and New Jersey 68 percent to blame for the first World Trade Center bombing, and the terrorists themselves only 32 percent responsible. Now the authority has filed court papers declaring that the verdict "shocks the conscience" and urging that it be set aside. According to the motion, the outcome in the case "stemmed directly from the court's jury instructions and verdict sheet interrogatories that violated the Port Authority's fundamental right to a fair trial." The authority also faults Judge Nicholas Figueroa for "banning testimony from terrorism experts called by the authority," and for asserting that he would be justified in overturning a defense verdict should the jury return one. (Anemona Hartocollis, "Port Authority Seeks Voiding of Jury Verdict", New York Times, Dec. 7). Andy MacCarthy has a comment at National Review Online.
"The federal government has indicted three defendants in a judicial bribery case for the fourth time, adding conspiracy to the list of charges against former Biloxi lawyer Paul Minor, former Circuit Court Judge John Whitfield and former Chancery Court Judge Wes Teel." (Biloxi Sun-Herald; AP; Jackson Clarion-Ledger). In August, a jury acquitted state Supreme Court justice Oliver Diaz Jr. of all charges in the case, acquitted Minor and Whitfield of some charges, and was unable to reach agreement on the other counts against Minor, Whitfield and Teel. For our coverage, see Sept. 18, Aug. 17, Aug. 15, Aug. 11, etc. More legal woes for Minor: Julie Goodman, "Minor may lose bond following La. arrest", Jackson Clarion-Ledger, Nov. 5 (federal prosecutors allege violations of Minor's bail requirements after police charge him at crash scene "with operating a vehicle while intoxicated, failure to maintain control, driving without an insurance certificate and reckless driving. ...The motorist in the other car, who subsequently hired an attorney, complained of back and chest pain, he said"); "Attorney in bribery case faces new bond conditions", AP/Biloxi Sun-Herald, Nov. 8; "Judge to consult doctor who tested Paul Minor", AP/Sun-Herald, Nov. 25.
Our free periodic newsletter went out to subscribers last night, summarizing highlights of recent postings in terse yet wry style. To read the latest installment -- or to join or leave the list, change your address, etc. -- visit this page (requires Google registration).
The Central Asian country has dropped its lawsuit against comedian Sacha Baron Cohen, the Boston Globe reported (Joshua Glenn, "Surprise Kazakh", Nov. 27)(via Amanda Butler)(see Nov. 16, Nov. 29).
Voting remains open and indeed re-voting is welcomed, provided you don't do it more than once a day. We're probably not fated to catch up with the top three contenders, but numerous weblogs including this one are clustered at and following the #4 position.
Norm Pattis at Crime and Federalism (Nov. 21) describes a temptation felt by many trial lawyers during "the periodic lull in cases of merit": taking on the cause of a vengeful, deluded or disturbed complainant:
You know the type. The injured, angry, pissed off, ornery cuss of a client who has been waiting, hoping, praying for a lifetime for someone to commit a tort, any tort will do, against them. Armed with this tort, this anger addicted fiend of a plaintiff will demand the scorching of any Earth within one thousand miles of their rubbed raw hangnail.
Will such a client find a lawyer willing to take his case? Very possibly he might:
Each year the bar belches forth a new class of lawyers; we add them faster than they die off. Lawyers need cases or controversies to survive. As the number of lawyers grows, plaintiffs' lawyers reach ever deeper into the cesspool of human need to find clients. Is it any wonder that the courts are filled to overflowing with litigation that would better be treated with Prozac, Thorazine or some other radical therapy?
Lawyers should turn down such clients, Pattis says, and society should add its own discouragement:
I am a plaintiff's lawyer. I am a successful plaintiff's lawyer. But, perhaps this is too much to assert -- I am an honest plaintiff's lawyer. I favor as a matter of policy liberal rules requiring a plaintiff to pay sanctions for a claim brought without merit. A plaintiff who imposes unneeded expense on a defendant should reimburse the defendant.
And he follows that thought up with several other policy recommendations: "Liberalize the use of independent medical examinations for plaintiffs claiming emotional distress", "Expand Rule 11 type sanctions on lawyers", and "Make it easier for lawyers to withdraw when they discover that the client's claims lack merit". Even if you don't usually follow the links in our posts, do it this time and read the whole thing. Update Jan. 8: Pattis responds to colleagues' criticism.
Yesterday, on a party-line 23-to-15 vote, the Republican-led House Judiciary Committee approved legislation sponsored by its chair, Rep. James Sensenbrenner (R-Wisc.), billed as cracking down on illegal immigration. According to Jacob Sullum, reporting at Reason "Hit and Run" (Dec. 8), the bill as brought up in committee:
would impose a three-year mandatory minimum sentence on anyone who, with an expectation of financial gain, "assists, encourages, directs, or induces" two or more foreigners to illegally reside in the U.S. The penalty rises to five years if the encouragement leads to a crime punishable by more than a year in prison. Families Against Mandatory Minimums notes that "the five-year mandatory minimum will nearly always apply because the bill would also increase the maximum penalty for illegal entry to a year and a day and provides mandatory minimum penalties of one to 10 years for those who reenter the country following deportation."
It appears from the bill's text (PDF) that the prohibition on "encouraging" or "assisting" illegals to remain in this country is by no means meant to reach only persons who engage in organized long-distance smuggling of aliens; the requisite "expectation of financial gain" from the continued presence of an alien couple might consist (or so it appears) of reaping the benefit of employing one member of the couple in, say, a housekeeping, gardening or home-repair capacity (Judiciary press release, Washington Post).
Eric Koppisch of Colorado Springs writes Gregg Easterbrook to note that Milky Way brand chocolate milk declares "Warning: Contains milk."
Because we haven't done a columnist-fest in a long time:
* "I'm struck by how little attention has been given to one of the biggest problems in America's judicial system: the enormous cost and creativity-killing pace of ordinary civil cases. ... War is what a lawsuit is". (John Stossel, syndicated/TownHall, Dec. 7).
* For years and years liberal groups have been cheering the federal government's right to attach burdensome regulatory strings when colleges accept its money. Now, with the Solomon Amendment controversy, they finally get to learn about the other side of the story (Steve Chapman, "When Liberals Oppose Strong Government", syndicated/Chicago Tribune, Dec. 8).
* "No Couch Potato Left Behind": George Will on a $3 billion federal program to subsidize owners of obsolete TV sets ("The Inalienable Right To a Remote", syndicated/Washington Post, Dec. 8).
"Alberta has become the first province in Canada to enact legislation allowing children to sue their mothers for injuries suffered in the womb. But the law applies only to damage suffered in car accidents." The idea isn't really to foment legal strife between infants and their moms, but just to give the family a new way to tap its auto insurance policy, quite possibly with the support and connivance of the mother who will be the ostensibly adverse party in the case:
Jim Rivait, spokesperson for the Insurance Bureau of Canada, says the new law is going to have an impact on insurance premiums right across the country."Any time you have an increase in claim costs, it has to flow through to what policy holders pay for auto insurance premiums," said Rivait.
Not to mention the wear and tear on the principles underlying a legal system if collusive and tactical litigation comes to be winked at. ("New Alberta law will permit some lawsuits against mothers", CBC/Sympatico-MSN, Dec. 3) (via KevinMD).
Massachusetts Superior Court Judge Ernest B. Murphy, having won a libel judgment of more than $2 million against the Boston Herald, smaller of the city's two big newspapers, is now demanding that a court order the paper's assets frozen to guarantee payment of the judgment. (Jonathan Saltzman, "Court is asked to freeze Herald's assets", Boston Globe, Nov. 29). Dan Kennedy at Media Nation (Nov. 29) says that the Herald's original article criticizing Murphy was anything but a model of good journalism.
But free-press advocates ought to be concerned that a sitting judge can have some influence over the Herald's future -- and possibly its very survival -- because of reporting that amounted to criticism of how he performed his public duties. That, more than anything, is what the First Amendment was designed to protect.
(via Romenesko). For the chilling effects of libel awards won by judges in Pennsylvania, see Mar. 16, 2004, etc.
Giving credit where due, however, the Times did score with this funny Dec. 4 op-ed by Karen Karbo on the dire safety hazards to be found in the classic bedtime story Goodnight, Moon.
The New York Times finally weighs in on the impending case against Big Soda (see Dec. 5). Maybe it took them longer than expected to get the spin in favor of the suit just right. Prof. Daynard's role gets somewhat downplayed this time around, the Center for Science in the Public Interest looms larger, and the most priceless bit comes at the end:
One detail yet to be decided is whether the group will seek financial damages. Under Massachusetts's consumer protection law, successful plaintiffs are entitled to $25 per violation, which could mean $25 for every time a student has purchased a soda in a public high school in Massachusetts over the past four years.Mr. Gardner said he and the other lawyers realize that damages could run into the billions. "We haven't decided about this yet," he said. "We don't want this to come off looking like a greedy-lawyer lawsuit."
Two secretaries will share a settlement of around $450,000 from the Atlantic City, N.J. school district and its insurer after filing sexual-harassment charges. Carol Lee and Jennifer Torres sued following
a comment Assistant Superintendent Thomas J. Kirschling made to them and two others in July 2002. At some point mid-month, Kirschling said "I ride them hard and put them away wet."The two secretaries sent him a memo saying they were outraged. He later explained and apologized, according to a subsequent memo.
Kirschling was apparently using a rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating.
After the women complained, the district assigned an outside attorney to investigate, but that probe inadvertently lapsed....
The school board approved the settlement at a meeting last month, although some members considered the amount excessive. "Board member John Devlin said 'It's nuts, though, just for that comment.'" (Derek Harper, "Harassment settlement in A.C. totals $450,000", Press of Atlantic City, Dec. 2; "A.C. school board settles harassment claim for undisclosed sum", Dec. 1)(& welcome Ramesh Ponnuru, Cathy Young, Michael Fox, Dave Zincavage, Liberty Belles readers).
...and we've got some pretty stiff competition. According to the rules at WeblogAwards.org, brought to us by WizBang, readers can vote a maximum of once a day in a given category. The "vote" link seems to work better in IE than in Firefox, for what it's worth. [originally posted 12/6; bumped for purposes of continued prominence]
That was apparently all it took to get an eighth-grader thrown out of East Central Junior High in Stronghurst, Ill. Naturally, it's a zero-tolerance case: "In the post–Columbine massacre environment, [superintendent Ralph] Grimm said it is appropriate to err on the side of caution in these circumstances." The student also faces possible criminal charges of disorderly conduct. (Craig T. Neises, "Student faces discipline over 'list", Burlington (Ia.) Hawk Eye, Nov. 30)(via Taranto)(more zero tolerance).
An excerpt from the interview (pt. II) with the British philosopher at Right Reason:
My advice to President Bush would be to look at the ways in which the power of the state might be needed in order to support the autonomous associations and 'little platoons' of American civil society. There are two evils in particular which need to be addressed: the litigation explosion, which has vastly increased the risk of small businesses, and also sown discord among neighbours; and the disaster of the inner cities, which have suffered from the worst effects of American zoning laws and laissez-faire aesthetics, with the result that the middle class has fled from the city centres, causing social decay at the heart, and an unsustainable growth in transportation and suburban infrastructure all around. I believe that federal policies could be initiated that would address both these evils, without increasing the role of the state in the conduct of litigation or in the planning of city streets.
Rex Carr (Nov. 6 and links therein) was the plaintiffs' attorney. Memorial Hospital released a statement:
Memorial Hospital and its over 600 nursing professionals and 300 Medical Staff physicians are obviously disappointed with the jury's decision in this case.(William Lamb, "Jury awards $7.1 million to parents of boy who developed cerebral palsy", St. Louis Post-Dispatch, Dec. 5 (via ICJL News)).As in many local court proceedings, Memorial has identified a significant number of important legal issues in this case and will appeal the decision.
Memorial is confident that either the Appellate Court or Supreme Court will agree that a substantial number of serious errors justify a retrial or directed defense verdict.
Expert testimony in this case conclusively determined that Brandon Bauer suffered a rare genetic disorder, hyperinsulinemia. This genetic disorder, despite any form of treatment, is many times fatal and very often results in severe brain damage.
Memorial also concurs with the expert testimony presented that nursing professionals and the physician from Belleville Emergency Physicians, PC did their best to care for their patient under clinically-difficult circumstances and rendered only the high-quality care for which they are so well known.
The medical and scientific evidence and expert testimony in this case clearly do not support this verdict. Memorial has no choice but to appeal this decision because of the serious implications it has for Memorial and all other hospitals and physicians in this area.
If such verdicts are left unchallenged, several hundred healthcare jobs will ultimately be lost from the community.
In addition, it will be more difficult, if not impossible, to recruit replacements for the large number of physicians who have fled this area during the last three years because of high malpractice premiums and fear of unfair treatment in some local courts.
"The captain of the Staten Island ferry that crashed in October 2003, killing 11 people, is suing the city. Michael Gansas wants his job back, with back pay, or he wants the city to arbitrate his grievances in front of a labor panel." (AP/WJLA, Dec. 4). According to an AP story last month, Gansas's "silence following the crash infuriated survivors, victims' relatives and city officials, who accused him of handicapping the investigation" and he "was fired soon after the crash for failing to co-operate with the investigation". When he did talk, he evidently didn't deliver the gospel truth, either, it seems:
Gansas initially was accused of making false statements for telling United States coast guard investigators that he was in the pilot house when Smith passed out and had tried in vain to right the ferry. He later struck a deal with prosecutors to co-operate in their case against ferry supervisor Patrick Ryan in exchange for dropping the charge.Ryan pleaded guilty to manslaughter, admitting he chose not to implement or enforce a rule requiring that ferries be operated by two pilots.
In a WCBS-TV interview last month, however, Gansas "says he initially lied about where he was during the crash because he wanted to share the blame. 'I felt I had a responsibility as a captain to shoulder some of the blame for the actions of (assistant pilot) Richard Smith'", he said. ("Captain lied to shoulder blame", APNews24, Nov. 5). For more of Gansas's side of the story, see Hasani Gittens and Brad Hamilton, "Crash-Ferry Capt. Suing for His Job", New York Post, Dec. 4 (alleging that he "cooperated with investigators" after the crash).
Yes, it's fairly common for trial lawyers to be a candidate's major backers, but sometimes it gets ridiculous. In the race among seven candidates to succeed retiring Republican U.S. Rep. Jim Nussle in Iowa's 1st Congressional District, the contender who leads by a healthy margin in fundraising is 48-year-old Waterloo lawyer Bruce Braley, a Democrat who is a former president of the Iowa Trial Lawyers Association and currently sits on the board of ATLA. He's raised $305,629 through September:
Braley’s fundraising prowess has turned heads already. And so has the source of his money. Of the $253,000 in individual donations itemized on campaign finance reports, $227,000, or 90 percent, comes from lawyers. It’s a wide base, too. Donors from more than three dozen states have given money.Of the $23,250 in political action committee money he’s received, half came from attorney-related committees, including $10,000 from the Association of Trial Lawyers of America, or ATLA....
“People who know me think I would make a very good representative,” he says....
One law firm that has been a prime target for conservatives also is a generous donor to Braley. Fifteen lawyers associated with the Baron & Budd firm in Dallas, one of the leaders in litigating asbestos and other toxic substance claims, gave $15,000 to the campaign.
In all, 85 percent of Braley's donations have come from outside the district. (Ed Tibbetts, "In a seven-horse race, it’s all about the purse", Quad City Times, Nov. 14).
Kevin Drum has an article on the subject in the new Washington Monthly, and quotes me by way of balance ("You own you", December).
"Richard Daynard, a Massachusetts law professor who made his name working as a consultant on class actions against tobacco companies, is part of a broad effort by both private attorneys and nonprofit groups to sue Atlanta-based Coca-Cola and other soft drink companies for selling high-calorie drinks in schools." (Caroline Wilbert, Atlanta Journal-Constitution, Nov. 29; Caroline E. Mayer, "Lawyer coalition targets soft drink manufacturers", Washington Post/Detroit News, Dec. 4; Todd Zywicki and vast comment section; Colossus of Rhodey). In the Boston Globe magazine, contributor Michael Blanding writes supportively of "a national legal movement to make soft drinks the next tobacco" (Oct. 30).
For more on the search for ways to blame business for our collective struggle with the waistline, see many entries in our Eat, Drink and Be Merry section. More on caffeine "addiction" theories: Aug. 18-20, 2000, Jun. 1, 2004. More on vending machine suits: Jul. 3, 2003. And as regular readers know, we've been covering Prof. Daynard's activities for a long time; see Apr. 21-23, 2000 and many others.
"Peru is preparing a lawsuit against Yale University to retrieve artifacts taken nearly a century ago from the Inca citadel of Machu Picchu, a Peruvian cultural official said Wednesday." Explorer Hiram Bingham dug up the artifacts during three expeditions to the site in in 1911, 1912 and 1914. (AP/CNN, Nov. 30)(via Dave Zincavage). For a critique of the movement to prescribe "repatriation" of cultural treasures to the countries on whose territory they were originally found, see the article linked here Apr. 28.
...because he doesn't like the message printed on them, as Reason "Hit and Run" reports:
Boston Mayor Thomas Menino has ordered the city to seize T-shirts that say "Stop Snitchin." "'It's wrong,' Menino said. 'We are going into every retail store that sells the shirts and remove them.'"
(Boston Herald; Boston Globe; KipEsquire; Eugene Volokh; ACLU of Mass. press release, PDF). More: Gunner at No Quarters Blog has an update.
Another one from Australia:
Disillusioned by a growing list of rules imposed by recruiting agencies and shopping centres to guard against litigation, men who have brought smiles to the faces of thousands of young West Australians for decades are reluctantly deciding to call it quits.They can't hand out lollies, they can't pat children on the head because of religious beliefs, they can't put children on their laps unless they get permission from parents and they can't have photographs taken with youngsters unless their hands are in full view.
So frightened have some Santas become of being sued that they are demanding extra helpers to act as witnesses just in case a complaint is made.
(Joe Spagnolo, Daily Telegraph (Aus.), Dec. 4). For discouragement of Christmas parties Down Under, see our Friday item. More Santa-related items from around the English-speaking world: Dec. 24, 2004; Dec. 30, 2003; Oct. 9-10, 2002; Oct. 12 and Dec. 13-14, 2000.
"If this were a stage tragedy, we’d be watching the final scene, where members of the famed string quartet are forced to surrender their instruments to the violinist they once spurned.
"But if this were a play, it would have been over long ago. Instead, the ugly drama of the Audubon Quartet and its former first violinist, David Ehrlich, is the drama that never ends." Ehrlich has prevailed in the litigation and now is expected to take his former colleagues' house, as well as other personal assets. He denies that just walking away from the dispute is an option at this point: “I have no choice. I owe a fortune to my attorneys.” (Kevin Kittredge, "Last act? Violinist Ehrlich seeks ex-colleagues’ assets", Roanoke Times, Nov. 20). Earlier coverage on this site: Jun. 5, 2000 and links from there, May 10-12, 2002, and letter to the editor, Jun. 2002 (via Arts & Letters Daily). Update: the New York Times ran a substantial feature on the breakup Dec. 11.
A court in Hamburg will hear the case (see Mar. 14) in which some 190 athletes from the former East Germany are seeking compensation for the damage done to their bodies by steroids administered by authorities under the pre-1989 Communist regime. The drugs were made by Jenapharm, at that time a state-owned concern, later bought by the Schering corporation, which is the target of the compensation demands. (Luke Harding, "Forgotten victims of East German doping take their battle to court", The Guardian (U.K.), Nov. 1; "The Quest for Gold Left Lives in Ruins ", Deutsche Welle, Jun. 29).
Getting wilder by the week: "Federal agents raided the law office of Geoffrey Fieger late Wednesday looking for evidence that he laundered $35,000 in campaign contributions to the John Edwards 2004 presidential campaign through his employees." (David Ashenfelter and Joe Swickard, "Federal agents raid Fieger's office", Detroit Free Press, Dec. 1). "A former associate in trial attorney Geoffrey Fieger's firm said Friday that he and his wife each gave $2,000 to Democrat John Edwards' 2004 presidential campaign on the promise that they would be reimbursed by the firm." Joseph Bird, an attorney later fired by Fieger's firm, "said he had 'no clue' at the time that it was illegal for employers to instruct people to give to a campaign and then reimburse them." (Sarah Karush, "Lawyer says firm demanded political contributions to Edwards", AP/Winston-Salem Journal, Dec. 2; same story with more details at Detroit News site, Dec. 4). For earlier evidence suggesting the likelihood of laundering in trial lawyers' donations to Edwards, see Apr. 28-29 and May 8, 2003. For more on Fieger, see Nov. 17, Nov. 10 and links from there.
D'ya think? "Divorce lawyers tangled in messy custody disputes should refrain from smashing the other side to bits." (Tresa Baldas, National Law Journal, Nov. 30).
More zero tolerance madness: "Pima County Sheriff Clarence Dupnik is calling for a new law that would make any drinking and driving illegal -- even if the driver is not impaired." (Becky Pallack, "Dupnik wants to outlaw any drinking at all by drivers", Arizona Daily Star (Tucson), Nov. 24)(via Radley Balko). More: DUIBlog, Dec. 1.
Australian employers, too, are rethinking them given the possible liability exposures (Nick O'Malley, "Bosses pull the plug on parties", Sydney Morning Herald, Nov. 1). More: Sarah Pierce, "Avoiding Holiday Lawsuits", Entrepreneur.com, Dec. 3, 2003; "Mistletoe or Legal Woes", Lawyers.com, Dec. 3, 2004.
It's satire now, but that's what we thought when the Onion published a joke five years ago about lawyers suing Big Chocolate over obesity, and turned out to be merely prescient: "The Recording Industry Association of America announced Tuesday that it will be taking legal action against anyone discovered telling friends, acquaintances, or associates about new songs, artists, or albums." ("RIAA Bans Telling Friends About Songs", Nov. 30). More on and from the Onion: Nov. 3; May 26; Apr. 15; Nov. 6, 2003. More on the RIAA: Feb. 7.
An amorous pair of University of Pennsylvania students coupled publicly in front of (and against) a dorm window facing another high-rise dorm; several students with views took photographs, and photographs, as even blurry photographs with three-pixel-long depictions of naughty parts of indeterminate gender do, got passed around by e-mail and ended up on various websites. The University Office of Student Conduct has since charged one of the photographers with sexual harassment, which would go on his permanent record. The next question is what the university will do to the Daily Pennsylvanian, which publishes one of the photos in its article. (Jason Schwartz, "Racy photo lands student in trouble", Nov. 30 (via Fark); Regina Medina, "Sex-act pix shake Penn", Philadelphia Daily News, Dec. 1 (via Throwing Things)) .
Update: A commenter informs us that AP reports that Penn has dropped the charges.
Second Update: Dropping charges doesn't end matters, of course.
[Attorney] Jordan Koko issued a statement on [the photographed student's] behalf.Constitutional rights? Someone is unclear on the concept. (Jason Schwartz, "Photographer escapes charges", Daily Pennsylvanian, Dec. 2). The FIRE blog is similarly unimpressed with Koko's reasoning."My client is emotionally shattered from this extremely disturbing ordeal. The intense focus on this matter into my client's identity and image has imposed exceptional emotional and psychological harm," the statement read.
Koko added that his client's privacy was invaded in violation of state law and her constitutional rights. He said she "will pursue all her legal options."
Canadian "Jan Luedecke was acquitted of sexual assault after a judge ruled he was asleep during the attack -- a disorder known as 'sexsomnia.'" His alleged victim was drinking at a party, fell asleep on a couch, awoke to find Luedecke having sex with her, and immediately went to the police to charge him with sexual assault. She says she will appeal Justice Russell Otter's decision. Otter further ruled that, though Luedecke claims not to be able to control his sleep-sex, he does not have a mental disease requiring review of his condition by a mental health board.
The Toronto Sun has an entertaining interview with another man who claims to suffer from sexsomnia: "His symptoms are brought on by alcohol, he said. He rarely remembers having sex upon waking up. ... [It] came close to ending his marriage. After a party one night, the man found himself in bed with his wife's friend." And cads everywhere cheer the new excuse, as "I was really drunk" gives way to "I was asleep." (Natalie Pona, "It's ruled sleep sex", Toronto Sun, Nov. 30; Natalie Pona, "She'll fight it all the way", Toronto Sun, Nov. 30; Natalie Pona, "Sexsomnia nightmare", Toronto Sun, Dec. 1 (hat-tip to W.F.)).
"Blogs appear far more influential in the Democratic than the Republican party. With the waning influence of the labor movement -- the blogs and the trial lawyers are picking up the slack as influential institutions." -- Marshall Wittman, Bull Moose Blog, Nov. 28.
A Temple church group chartered a bus from Central Texas Trails Inc. on Valentine's Day 2003 to attend a Christian music concert in Dallas. It was raining when charter-bus driver Johnny Cummings approached an Interstate 35 traffic jam too fast, lost control of his tour bus, crossed a median, swerved into oncoming traffic, and collided with an SUV, killing five of his passengers. Cummings and the charter company declared bankruptcy, so 19 injured bus passengers and survivors sued Motor Coach Industries, the bus manufacturer, for its failure to include three-point seatbelts on its 1996-manufactured bus. The bus met federal safety standards, NHTSA has found that seatbelts on tour buses do not “enhance overall occupant protection,” and no tour buses sold in the US have seatbelts, but a McLennan County jury awarded $17.5 million anyway. Judge Jim Meyer allowed Houston attorney Thomas Brown to argue that a jury vote for the plaintiffs was a vote for the cause of safety. A second trial with a second set of plaintiffs from the bus accident remains to be scheduled. (Matt Joyce, "Jury awards bus crash victims $17.5 million", Waco Tribune-Herald, Nov. 4).
They're anything but infinitesimal, or so conferees were told recently:
"However," Monica warns, "no industry -- including the nanotechnology industry -- is beyond the reach of American trial lawyers. Concerns about possible health and safety hazards posed by nanomaterials are being raised among labor unions and environmentalists; trial lawyers cannot be far behind. Some have even begun to compare nanotechnology to asbestos, a material plagued by $70 billion in litigation over the past three decades."
Lawyer John C. Monica Jr. of Porter Wright Morris & Arthur in Cleveland, along with colleagues, wrote the paper, which was entitled "Preparing for Future Health Litigation: The Application of Product Liability Law to Nanotechnology." (Keay Davidson, "Big troubles may lurk in super-tiny tech", San Francisco Chronicle, Oct. 31)(more tech law coverage)(& welcome InstaPundit readers).
