March 2006 Archives

According to State Sen. John Whitmire (D-Houston), the new program to arrest intoxicated Texans in bars whether or not they show any inclination to drive (see Mar. 23) is justified because it nips in the bud potential future misconduct: "Even though a public drunk is not planning on driving, that could change in an instant," he said. "There is certainly potential danger." (Pete Slover, "Lawmakers to review bar busts", Dallas Morning News, Mar. 25). Glenn Reynolds reacts disrespectfully (Mar. 31).

...so a Florida jury ordered it to pay $619,650 to the family of a Fort Lauderdale customer who had a heart attack. A spokesman for L.A. Fitness says it wasn't common, let alone legally mandatory, for health clubs to stock defibrillators in 2003, when the incident occurred. (Jon Burstein, "Gym told to pay $619,650 in man's death because it didn't have a defibrillator", South Florida Sun-Sentinel, Mar. 30)(hat tip: Florida Masochist).

Regarding our Mar. 24 item on demands for accommodation of special-ed students, which has touched off a considerable discussion in comments, Warren Meyer at Coyote Blog makes the important point that special ed represents one of the few sectors in which the legal system has shown itself to be open to parental demands for school choice -- unfortunately in a way that is far more expensive than ordinary school choice programs, since the amount of money that "follows the child" is left dangerously open-ended. Call it "school choice for legally savvy parents" (Mar. 29).

Following up on earlier threats (Feb. 14, Mar. 19), Syed Soharwardy has brought a complaint against the Western Standard before the Alberta Human Rights Commission over its publication of the Mohammed cartoons. Ezra Levant, publisher of the Western Standard, explains (Mar. 29) that defendants in the "human rights" tribunal do not benefit from the protection that the loser-pays principle affords most defendants in Canada against groundless or nuisance litigation:

even if we are successful in the human rights commission, we will not be compensated for our legal fees. It's not like a real court [! -- W.O.], where an unsuccessful plaintiff would be ordered to pay a successful defendant's costs. So even if we win, we lose -- the process is the penalty. Worse than that, the radical imam who is suing us doesn't have to put up a dime -- the commission uses tax dollars to pay lawyers and other inquisitors to go at us directly. Human rights tribunals themselves are illiberal institutions.

More: A. Alan Borovoy, "Hearing complaint alters rights body's mandate", Calgary Herald, Mar. 16 (PDF).

In other cartoon-jihad news, it appears that giant book retailers Borders and Waldenbooks have been Boston-Phoenix-ized (see Feb. 10); they say they won't carry the April-May issue of the magazine Free Inquiry, which reprints Mohammed cartoons, for fear of Islamist violence against their employees and customers (Carolyn Thompson, "Borders, Waldenbooks Won't Carry Magazine", AP/San Francisco Chronicle, Mar. 29). Free Inquiry is actually worth subscribing to quite aside from this episode; you can do that here.

P.S. Eugene Volokh has a thread discussing the extent to which Borders/Walden might be subject to later tort liability if its sale of the magazine led to violence that harmed customers (Mar. 30).

Jacob Weisberg does a very nice job of deflating the supposed "GOP strategist" ("The Erring Republican Authority", Slate, Mar. 29), but I like to think I got there first.

Dr. Hazel I. Holst contends that attorney Harry J. Oxman named her as a defendant in a lawsuit brought by Roderick T. Powell arising from a nasal surgery performed in 1970 even though -- kind of a big gap in the case -- "there was absolutely no record of Dr. Holst ever treating Mr. Powell". So she sued Oxman for various counts including abuse of process, extortion and racketeering. Now U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania has dismissed her complaint, ruling that 1) Holst could not prove that the case eventuated in a verdict or dismissal in her favor -- a prerequisite for an abuse of process claim -- because the case had apparently been diverted to alternative dispute resolution and resolved there without a "verdict"; 2) she could not prove racketeering because she made no showing that the lawyer followed a pattern or practice of filing cases of this sort, and -- this is my favorite -- 3)

that Holst had also failed to allege a valid claim of abuse of process because her extortion claim was limited to an allegation that Oxman had initiated the suit in the hopes of inducing settlement discussions [he had in fact demanded $200,000, per her account].

"This tort requires a 'perversion of legal process after it has begun in order to achieve a result for which the process was not intended...." [the judge wrote]

(emphasis added). Should we infer that enabling $200,000 demands against doctors under these circumstances is the sort of purpose for which the process was intended? (Shannon P. Duffy, "RICO Suit Against Lawyer Dismissed due to Lack of 'Enterprise'", Legal Intelligencer, Mar. 23).

Nixzmary Brown was the seven-year-old girl whose grim fate made New York City headlines this winter: she was allegedly tortured, bound and eventually beaten to death by her stepfather while her mother stood by. In the latest development, Nixzmary's biological father, Abdurrahman Mian, who had lost touch with her mother around the time of the child's birth and never laid eyes on his daughter during her lifetime, has surfaced with plans to file legal papers asking to be named administrator of the girl's estate, in preference to her maternal grandmother. The mother's relatives contend that his newfound manifestation of paternal sentiment may relate to the likelihood that Nixzmary's estate could be worth millions pending the outcome of expected wrongful-death lawsuits against public agencies that failed to protect her. (Lorena Mongelli and Alex Ginsberg, "He Is the Birth Dad Nixzmary Never Knew", New York Post, Mar. 17). For another father who rediscovered the love of his child once a multimillion dollar judgment was possible, see Jul. 18, 2005.

It's blatantly a parody, coupled with social criticism of the world's largest retailer, but Wal-Mart had its lawyers fire off nastygrams to computer store owner Charles Smith and, perhaps more effectively, to CafePress. Now things have proceeded to court. Smith's website is here. (Abigail Goldman,"Wal-Mart Parodist Sues to Sell Products", L.A. Times/Chicago Tribune, Mar. 7)(via Housing Panic).

Maybe it'd be a good idea to offer patients that choice -- but as one doctor explains at Kevin Pho's, our presently constituted legal system wouldn't stand for it (Mar. 5).

Attorney John Claassen, formerly of Skadden Arps, is suing online matchmaker eHarmony.com, which declined to list him because he is not yet divorced and it has a rule against listing profiles of persons who admit to being married. He's claiming marital-status discrimination in his suit, filed in Alameda County. (Knight-Ridder; AP; SFist)(& welcome Sploid readers). More: Akhmed Al-Fayyed explains why he thinks eHarmony might lose (Mar. 29).

The Massachusetts Supreme Court rules it can be banned. The losing party: the American Lithuanian Naturalization Club of Athol, Mass. (Denise Lavoie, "SJC: Local health board can ban smoking in private clubs", Boston Globe, Mar. 22)(via Balko).

The greatest accomplishment of 41-year-old TiVo general counsel Matthew Zinn? It's that his nine-year-old company hasn't yet "been sued out of existence." (Petra Pasternak, "TiVo Against the Giants", The Recorder/Law.com, Mar. 15).

Canadian photographer Gregory Colbert is starting an outfit he calls the Animal Copyright Foundation whose intent is to collect royalty payments on behalf of animal species as compensation for the use in advertising of, for instance, the Budweiser Clydesdales, Target's spotted dog, the Hartford's stag, and other furred, finned or feathered creatures, the proceeds to be distributed to conservation causes that benefit animals. In all fairness, media accounts describe Colbert as seeking not obligatory rules requiring payment of the 1 percent royalties when a photo or video is used, but rather a "seal of approval" system in which advertisers vie for consumer favor by voluntarily pledging the set-aside. One almost hesitates to publicize the idea, however, for fear it will percolate in the law schools and emerge after a few years as an asserted new legal entitlement, as "animal standing" has done. (WSJ law blog, Mar. 16; Tim Nudd, AdFreak, Mar. 10; Lunch Over IP, Feb. 25).

Lawrence Taylor at DUIblog (Mar. 17, via Cernovich) has got the goods on a coaching memo given by the San Diego Police Department to the technical experts they put on the stand to testify as to drivers' blood-alcohol levels (emphasis in original memo):

You will always mix any tube with an anticoagulent [sic] 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don't remember this particular individual, you know that you drew the person following our standard procedure.

As Taylor observes, the witnesses are instructed to testify under oath to an account calculated to help the prosecution prevail, "not as to what they actually did and what they know to be true in a specific case".

For more on witness-coaching, see Sept. 10, 1999, Sept. 22-24, 2000, and, of course, our many entries on the famous Baron & Budd witness memo scandal.

One of our favorite clichés is repeated in a tale of a lawsuit over a tragic electrocution. Because it's BGE's fault Gary Dart's trailer caught on fire, because, after all, powerlines never go down during a snowstorm without negligence. Good thing it's not about the money, or they might have asked for a lot more than $175 million. The attorney is Dave Ellin. (Joseph M. Giordano, "BGE Is Sued Over Electrocution", Dundalk Eagle, Mar. 27). Because BGE is a regulated utility (whose maintenance budget is set in negotiations with the governmental public utility commission), the expenses of the lawsuit, including any damages, will eventually be passed on to local ratepayers. (Update: or not. See comments.)

Six of the eight most expensive Google AdSense search terms are for attorneys (the other two are for mortgage and loan refinancing), with "mesothelioma lawyers" topping the charts at $54.33. A regularly updated page can be found here. (CyberWyre blog, Mar. 23 (h/t Slim)). Earlier search-engine follies: Apr. 8, 2004; Nov. 18, 2004.

("McDonalds coffee lawsuit" [sic] goes for $0.67, which is a shame, because the top ten links all refer back to ATLA's propaganda on the subject. Perhaps if our blogging readers could link to our coverage...?)

Update: Clearly, there's a lot of competition for that "mesothelioma lawyer" keyword, given the $54.33 price; this is because there is a lot of easy profit to be made on mesiothelioma cases by lawyers: there are so many defendants, and so many cases, that attorneys and defendants find it cheaper to settle for nuisance sums, which add up quickly to an automatic profit for the attorney, even if the case is tried and lost against recalcitrant defendants who dare to expose themselves to lottery litigation (cf. also POL Jun. 10, 2005). The interesting question is what market failure has occurred such that this gigantic profit is not being competed away by, say, offering clients a smaller attorneys' fee. This is surplus that should be going to clients, not to Google. Is there collusion not to lower attorneys' fees? If consumer advocates cared about consumers, rather than attorneys, we might see some investigation into the matter.

I've refused to publish a few comments. Reasons why in the jump.

By a 4-3 vote, New York's highest court, the Court of Appeals, has voted to uphold a $1.4 million jury award against the New York City Transit Authority on behalf of Juan Soto, who after a night of drinking with friends decided to trespass on the elevated subway roadbed at Queensboro Plaza and then failed to outrun a #7 train that came up behind. (Pete Donohue, "Loses to train & wins big", New York Daily News, Mar. 25). Per a New York Daily News editorial, "To justify paying him, the court credited Soto's testimony that he could tell how fast he was running because he often ran on a treadmill, and based on that speed some hired expert said the motorman should have been able to stop before hitting him." ("A court runs off the rails", Mar. 25)(Soto v. New York City Transit Authority, PDF).

In a sensational 2002 murder trial with echoes of the film "American Beauty", Kristin Rossum was found guilty of poisoning husband Gregory de Villers and trying to make his death look like a suicide. Now a lawyer for de Villers' family has convinced a jury that Rossum's employer, San Diego County, should be held 25 percent responsible for $6 million in resulting wrongful-death damages. Rossum had access to lethal drugs through her work as a toxicologist for the county, and had not been subject to background screening; she relapsed into methamphetamine use a week before the murder. "It is not the duty of the county of San Diego to prevent a wife from murdering her husband," said Senior Deputy County Counsel Deborah A. McCarthy, who predicted that the county would succeed in overturning the verdict on appeal. "If this case stands, it will expand public liability in a way the state of California never envisioned." ("Millions of Dollars Awarded to Family of Man Killed by Toxicologist Wife", North County Times, Mar. 20)(via Childs). Update Jul. 2: judge cuts verdict.

Seven years ago the American Bar Association's disability-rights commission released a study advancing the notion that the federal courts are unreasonably hostile to claims under the Americans with Disabilities Act; the study, as I described it back then, "purportedly found employers winning 92% of ADA lawsuits and almost as high a share of Equal Employment Opportunity Commission proceedings". The study was roundly criticized, by me and others, for grossly understating the actual success rate of ADA plaintiffs, who most commonly obtain settlements rather than final court disposition of their claims.

Just to bounce the rubble on this particular point, one may note a study published in the Mental & Physical Disability Law Reporter in the May/June issue of last year, by academics who appear (in contrast to my own views) to be enthusiasts for litigation under the ADA. In "Prevalence and Outcomes of ADA Employment Discrimination Claims in the Federal Courts", Kathryn Moss (University of North Carolina) and co-authors Michael Darren Ullman, Jeffrey W. Swanson, Leah M. Ranney and Scott Burris conclude that "published case decisions create a misleading impression of ADA outcomes"; in particular, "plaintiffs received a beneficial outcome (mostly through settlement) in 62% of cases." High defendant win rates are, in fact, a very poor guide to whether money is frequently changing hands or other concessions being made by targets of the suits.

In today's WSJ, Jerry Brito and Bridget C.E. Dooling propose that Congress "create an affirmative defense -- along the lines of fair use -- for those who copy a work after trying unsuccessfully to locate the copyright owner. ...Of course, the user should have to share any future profits with the rightful owner of the work, but he should not have to face the stiff statutory penalties of copyright infringement that now prevent so many orphan works from being used. This would also give copyright owners who value their works an incentive to make themselves relatively easy to be found." ("Who's Your Daddy?", Mar. 25, sub-only). For more on the legal problems occasioned by works whose original creators are unknown or untraceable, see Apr. 14 and Jul. 26 of last year.

Seattle's best-known plaintiff's firm gets a huge black eye and is told to pay $10.8 million : "The jury unanimously found Wednesday that lawyers from Hagens Berman Sobol Shapiro LLP violated their duty of loyalty to three small water bottlers that in 2003 were close to settling a claim with Nestle Waters North America, the owner of Poland Spring Water Co." For more about the case, see Mar. 20 and links from there. "Jurors will return to federal court next week to settle the issue of punitive damages." ("Jury awards more than $10 million in water bottlers' lawsuit", AP/Boston Globe, Mar. 23; Vanesso Ho and Mike Lewis, "Seattle law firm told to pay $10.8 million", Seattle Post-Intelligencer, Mar.24; Lattman, Mar. 24).

The parents of Rachel Corrie, the protester who died at 23 when she attempted to block an Israeli bulldozer from demolishing a Palestinian home, are appealing a federal judge's decision to throw out their lawsuit against Peoria-based Caterpillar Inc., which manufactured the bulldozer (Mar. 16, 2005). (Gene Johnson, "Rachel Corrie's family appeals lawsuit against bulldozer-maker", AP/Seattle Post-Intelligencer, Mar. 23). Were courts to invite lawsuits against companies for lawful sales of this sort, they would open up many opportunities for litigants to use tort law as a surrogate sanctions mechanism against foreign governments, even though in our constitutional scheme it is Congress and the executive branch, rather than the courts, which bear the responsibility of weighing the policy considerations in favor of or against such sanctions.

...for his guestblogging here over the past week. For more of Dave's writing, check out his main site as well as the Volokh Conspiracy.

The amazing industry that has sprung up to advance parents' demands that schools accommodate their "learning-disabled" offspring is an old story around these parts (see here and here, for example). Even so, the San Francisco Chronicle's recent investigative report can provoke a gasp:

* Even though federal, state and other sources already spend more than $4 billion a year to subsidize the provision of special education in the state of California, school districts in the state still shift more than a billion dollars out of their regular school budgets to pay for accommodation demands that include "private day schools, boarding schools, summer camps, aqua therapy, horseback therapy, travel costs, personal aides" and dolphin therapy.

* Administrators at Woodside High on the Peninsula offered a 15-year-old with learning disabilities and anxiety "daily help from a special education expert" as well as "a laptop computer, extra time for tests -- and an advocate to smooth any ripples with teachers. If an anxiety attack came on, he could step out of class." Not good enough for his parents, who decided to send him to a $30,000/year private school in Maine. Their lawyer demanded that the district pay not only the tuition but also for the whole family's repeated cross-country travel costs to visit him there.

* Schools routinely buckle under to demands they regard as unreasonable, not only to avoid the expense of litigation but because the law tilts against them; a single procedural misstep in the hugely complicated process can leave them liable for damages and hefty legal fees. Since secret settlements are common, taxpayers may find it hard to grasp the extent of the monetary hemorrhaging.

* "It's a blank check," said [Paul] Goldfinger, vice president of School Services. "The system is stacked so that one segment of the population -- disabled children -- has first call on funding, and the others get whatever's left."

Infuriating reading (Nanette Asimov, San Francisco Chronicle, Feb. 19). (& see Mar. 31 post, where comments continue).

Over-riding the Governor's veto, the Kansas legislature has enacted a "Shall Issue" law for issuing licenses to carry a concealed handgun for lawful protection. Before, Kansas was one of only four states without any provision for issuing concealed handgun licenses. One of the remaining three states, Nebraska, appears poised to enact a similar law, which the Governor has said he will sign.
Kansas is now among the 39 states which have a fair procedure to allow citizens to carry handguns for protection. Along with the three states (Nebraska, Wisconsin, IIllinois) that currently do not issue permits, eight other states issue permits according to the whim of a local official (Hawaii, California, Maryland, New Jersey, New York, Massachusetts, Rhode Island, and Delaware). A Shall Issue bill is moving through the legislature in Delaware. Rhode Island already has a Shall Issue law, although the law is nullified by administrative practice.
In Wisconsin, a Shall Iissue bill has been vetoed twice, with the vetos sustained by only one or two votes. In every state where Shall Issue proponents have gotten as close as they have in Wisconsin, the state has always eventually enacted a Shall Issue law--although sometimes the process can take a while.
So of the eleven remaining states that are not Shall Issue, two of them (Nebraska and Wisconsin) are nearly certain to change at some point in the future, and there is reasonable possiblity of change in Delaware. All that Rhode Island needs to change is the election of Attorney General who will not interfere with the state law that local goverments must issue carry permits to qualified applicants.
So the number of Shall Issue states could be 43 in the not too distant future. In the seven hold-out states, Shall Issue has passed one body of the legislature at least once in the three largest states: California, New York, and Illinois.
Every year, more and more Shall Issue states create "reciprocity" with each other, so that a person with a permit from her home state can carry her firearm lawfully in a other state while visiting. Currently, a carry permit issued by one state is valid in over half of all states. (See Packing.org for details.)
As the combined total of "no issue" or "whimsical issue" states declines into the single digits, and reciprocity continues to spread, it seems hard to deny that America is concluding that Shall Issue is sensible gun control -- one that regulates firearms carrying but does not infringe the right to self-defense.
For more on the Kansas law, see this excellent article in the Wichita Eagle.

Here's a story about a public health intervention that:

1. Appears to have reduced the rate of sexually transmitted diseases.
2. Especially by encouraging people to have a check-up.
3. Appears to have been fairly inexpensive.
4. Involved no coercion.

The Bay Area Reporter offers a story about a costumed character who promotes sexual disease control (sort of like Smokey the Bear encourages people to prevent forest fires). But the particular costume would scandalize many people. Read the whole article before you make up your own mind.

The opponents of the Assad regime have announced a united front coalition. The expatriate Syrian blogger Ammar Abdulhamid analyzes the coalition, and concludes that, even though the coalition leaders are hardly white knights, the coalition offers the best chance to lead a transition to a post-Assad state that does not degenerate into warlordism.

I've had to turn off comments for entries older than seven days, because of the unending flood of comment spam. If you've got something important to say about an entry older than that -- or if you're involved in a running conversation that gets cut off when it reaches the deadline -- drop Ted or me a line and we'll consider accommodating you.

According to author Michael Crichton, writing in last Sunday's New York Times, the statement, "Elevated homocysteine is linked to B-12 deficiency, so doctors should test homocysteine levels to see whether the patient needs vitamins" is not in the public domain; "A corporation has patented that fact, and demands a royalty for its use. Anyone who makes the fact public and encourages doctors to test for the condition and treat it can be sued for royalty fees. Any doctor who reads a patient's test results and even thinks of vitamin deficiency infringes the patent. A federal circuit court held that mere thinking violates the patent." The Supreme Court will soon have a chance to determine whether this is all as crazy as it sounds, or should remain so ("This Essay Breaks the Law", Mar. 19). More: "B vitamin case reaches Supreme Court", AP/USA Today, Mar. 20; Tony Mauro, "Supreme Court Tackles Patentability of Scientific Phenomena", Legal Times, Mar. 22; Lattman, Mar. 21 and Mar. 22; Point of Law, Mar. 25. Update: Court decides not to resolve case (Tony Mauro, Legal Times, Jun. 23).

Michael Boyle pleaded guilty to a charge of unsafe driving after he plowed into the back of a truck at 60 mph without braking and with his lights off. Unfortunately for Boyle, the under-ride rear impact guard of the truck, installed by Garden State Engine and Equipment, sheared off in the high-speed collision, and his car submarined under the truck, almost decapitating him, and leaving him with brain damage and facial insensation, though he's able to work in his family business. This was, the New Jersey jury decided, 70% the fault of Ford Motor, which dared to sell an incomplete cab and chassis that complied with all federal regulations, and which could be modified in many different ways, not all of which require identical under-ride guards to comply with applicable regulations. $26.2 million in damages were assessed. Ford was not allowed to introduce Boyle's guilty plea at trial. (John Petrick, "Faulting Ford and parts maker, jury awards crash victim $26.2M", North Jersey, Mar. 22) (via Steenson, who made no mention of the contributory negligence in his summary). Unjust $26 million awards are apparently sufficiently "dog-bites-man" that the local press coverage is the only press coverage so far.

So indicated San Francisco Superior Court Judge Thomas Mellon Jr., who indicated he will not allow fees to reach the $2.53 million previously indicated. Objectors' fees will be cut as well as the original attorneys, however, which could deter future attempts to intervene in unfair settlements. (Michael Liedtke, AP/Washington Post, Mar. 22; Josh Gerstein, "Judge Seeks To Sweeten Netflix Pact By Cutting Fees to Plaintiff Lawyers", NY Sun, Mar. 23). We covered the Netflix class action extensively: Nov. 3, Jan. 11, Jan. 21, Feb. 21.

"Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said," according to Reuters. Public intoxication is illegal in Texas, and the authorities contend that their preemptive arrests will prevent people from driving drunk or committing other offenses. HT Peaktalk. More: Mar. 31.

According to Forfeiture Endangers American Rights, the U.S. Dept. of Justice is proposing revisions of the Federal Rules of Civil Procedure which would facilitate property forfeiture. The FEAR site links to the new draft rules, and to critiiques of those rules.

The Brussels Journal points out the close resemblence between the Arabic word for "Allah" and the logo of the UN Human Rights Commission, which may have been imposed by " a high-ranking Muslim UN official ." Even if "Allah" is not the official UN Human Rights Commission logo, the UN acts as if it were. Brussels Journals points to "last week's common declaration signed by EU Foreign Policy Coordinator Javier Solana, UN Secretary-General Kofi Annan and Ekmeleddin Ihsanoglu, the Secretary-General of the Organisation of the Islamic Conference (OIC). The three men pledged to rewrite the UN Human Rights Charter to 'protect the sanctity of religions and the prophets.'"

Cinnamon Stillwell observes International Women's Day by observing that:

the real radical women in the world go largely unremarked by the feminist movement. Today's true heroines are those who do battle with the gender apartheid, violence and oppression practiced against women in the Muslim world. There, women face not just phantom infringements to their civil rights and perceived slights to their sensitivities, but threats to their lives.

Today's Times of London reports an employment law claim by a teacher who chair made flatulent noises whenever she moved. The teacher, who resigned her position, is claiming constructive dismissal, and asking for one million Pounds in compensation.

Asked why she did not sort out the problem, she told the tribunal: “It’s a health and safety issue for an employer to ensure you have a comfortable chair.”

Students for Sensible Drug Policy and the American Civil Liberties Union have filed a lawsuit alleging that the federal law which denies federal financial aid to any student with a drug law conviction is unconstitutional. Personally, I think the federal law is atrocious, and would vote to repeal it. But I think the prospects for victory in court are very slim. The SSDP press release points out several good policy arguments, but raises only two legal points:

The law punishes individuals twice for the same infraction. Affected students have already been dealt with by the criminal justice system. Taking away their access to education after they’ve already paid their debt to society is unnecessary. This violates the "double jeopardy" clause of the Fifth Amendment.

Putting up roadblocks on the path to education does nothing to solve our nation’s drug and crime problems; it only makes them worse. Forcing students convicted of drug charges to drop out of school makes them more likely to fall into drug abuse or commit crimes (thus becoming costly burdens on the criminal justice system) and less likely to become productive taxpaying citizens (thus reducing the nation’s economic productivity). Congress has no rational basis to attach student aid eligibility to drug convictions, especially since murderers, rapists, burglars, and arsonists can still receive financial aid. This violates the equal protection guarantee of the Fifth Amendment's "due process" clause.

John Goodman, of the National Center for Policy Analysis, comments on a new study published in the New England Journal of Medicine: "Who is at Greatest Risk for Receiving Poor-quality Health Care?" Contrary to many previous studies, the NEJM study found that, in Goodman's words:

- Among people who seek care (actually see a doctor), there is virtually no difference in the quality of care received by the insured and uninsured.



- There is also very little difference in the care provided by different types of insurance - Medicaid, managed care, fee-for-service and so forth.

The entire Medicaid program (at a cost of $1,000 per person for every man, woman and child in the country and a huge crowd out of private insurance) is predicated on the conventional wisdom that being insured matters. Now we know that what really matters is seeing a doctor. Two deterrents are rationing by waiting and physician fees. Both hurdles could be overcome with funded health savings accounts.

Another conventional wisdom is that the uninsured need sky-is-the-limit coverage just like the United Auto Workers. But since the low-income uninsured have few assets to protect, why do people with modest means need such expensive coverage? They don't. A scaled down plan could give them ample choice of doctors and allow entry into the system for much lower premiums.

Police detected a "strong smell of alcohol" on 21-year-old Alexandra Shaw's breath when they rescued her after she took a 40-foot fall through a grate in a Princeton University bell tower that was closed for renovations. But no blood test was done, Shaw claimed to have had only one beer, and the two contractors she sued settled the suit for $350,000 rather than risk a greater liability finding from a jury.

"The young lady fell and she was rather seriously injured," [defense attorney Michael] O'Mara said. But the area where the accident occurred was not open to the public and "a person of common sense would not have entered. It looked like the bowels of the earth."

Neither his client nor the co-defendant were responsible for the condition of the grate Shaw stepped through, O'Mara said. But there was a possibility that the jury might find liability so a compromise was reached.

(Linda Stein, "$350,000 settles tower plunge suit", The Trenton Times, Mar. 22 (h/t P.E.); Bill Beaver, "Undergraduate falls climbing in chapel turret, injures leg", Daily Princetonian, Dec. 14, 2001).

I am the Editor of an iinterdisciplinary academic journal, the Journal on Firearms and Public Policy. The Journal is now accepting submissions for its next volume, our 18th year of publication. Some sample issues, in PDF, are here. (We hope eventually to put all volumes on-line.) Because we are interdiscplinary, articles may be written in a variety of academic and citation styles, including law, history, social science, philosophy, and so forth. The JFPP's circulation is vastly larger than most academic journals. If you would like to submit an article, or send a query about possible submission, please write me at the e-mail link on the lower-left column of my website.

(Earlier coverage: Jul. 10, 2003 and links therein.) Two of the three lawyers behind a fraud where plaintiffs' lawyers falsified evidence and tried to bribe police officers to hide the fact that their client fell asleep at the wheel are still practicing law. The attorneys still haven't paid the sanction against them. In a radio interview for DaimlerChrysler, Steve Hantler calls for more Texas legislature oversight over the bar. (David Shepardson, "Chrysler takes fight to lawyers", Detroit News, Mar. 21).

Twelve leading writers from the Muslim world signed the Manifesto of 12: Together Facing a New Totalitarianism:

After having overcome fascism, Nazism, and Stalinism, the world now faces a new global totalitarian threat: Islamism.

We -- writers, journalists and public intellectuals -- call for resistance to religious totalitarianism.

Instead, we call for the promotion of freedom, equal opportunity and secular values worldwide.

The necessity of these universal values has been revealed by events since the publication of the Muhammad drawings in European newspapers. This struggle will not be won by arms, but in the arena of ideas. What we are witnessing is not a clash of civilizations, nor an antagonism of West versus East, but a global struggle between democrats and theocrats.

Like all totalitarianisms, Islamism is nurtured by fears and frustrations. The preachers of hate bet on these feelings in order to form battalions destined to impose a world of inequality. But we clearly and firmly state: nothing, not even despair, justifies the choice of obscurantism, totalitarianism and hatred.

Islamism is a reactionary ideology which kills equality, freedom and secularism wherever it is present. Its success can only lead to a world of greater power imbalances: man’s domination of woman, the Islamists’ domination of all others.

To counter this, we must assure universal rights to oppressed people. For that reason, we reject “cultural relativism,” which consists of accepting that Muslim men and women should be deprived of their right to equality and freedom in the name of their cultural traditions.

We refuse to renounce our critical spirit out of fear of being accused of “Islamophobia,” an unfortunate concept that confuses criticism of Islamic practices with the stigmatization of Muslims themselves.

We plead for the universality of free expression, so that a critical spirit may be exercised on every continent, against every abuse and dogma.

We appeal to democrats and free spirits of all countries that our century should be one of enlightenment, not of obscurantism.

That''s the polling question of the day in Canada, on morning television. The story involves an elderly woman in Nova Scotia who suffers from multiple sclerosis and cannot walk. She was receiving health assistance from employees of Northwood Home Care. One morning, the Northwood sent an employee who had never been to the home before. In the home, the worker saw an unloaded hunting rifle, with the safety on, and a trigger lock.


The worker immediately fled the home in fear, because the locked, unloaded rifle was not in a gun cabinet. The elderly woman's husband is a hunter, whose gun is lawfully registered, but he had forgotten to return the locked, unloaded gun to his gun cabinet.


Northwood Home Care refuses to send employees back to the home. According to a Canadian Press Association report, "The agency said its workers fear for their safety because of the hunting rifles." ("Rifle kills home care," Halifax Chronicle Herald, March 21, 2006.)


The health care workers themselves would seem to be in need of mental health treatment. The Northwoods workers plainly suffer from a serious case of hoplophobia. (From the Greek word "hoplo", meaning "weapon.")


Just as many normal people dislike spiders, many other normal people dislike guns. A few mentally ill people have such debilitaing fear of spiders (aracnophobia) that their fear impedes their functioning in their daily lives. Similarly, hoplophobes suffer from such extreme and irrational fears of guns that their daily functioning is impaired. A health care worker who refuses to provide health care would obviously be suffering from impairment of her normal daily functioning.


I hope that the publicity surrounding the incident persuades Northwood Home Care (Halifax, N.S.) to resume providing health care to the elderly woman, and also encourages Northwood to seek mental health treatment for the hoplophobics among its employees.

Back in 1987, Florida set off a national trend by enacting a law which allows adults with a clean record, who pass a safety class, to obtain a permit to carry a concealed handgun for lawful defense. Although some states already allowed concealed carry, Florida's 1987 law led to the concept spreading nationally, so that today 38 states have handgun carry laws similar to Florida's. Now, a new Florida trend is spreading: "Stand your ground" laws.


Last year, Florida enacted a statute stating that victims of a violent felony attack do not have to retreat from the aggressor (even in a public place), and can use deadly force. Now, Indiana Governor Mitch Daniels has signed a Stand Your Ground law in his state, and the South Dakota legislature has enacted a similar law.


Because most Americans intuitively agree with the principle of self-defense, opponents of the law, such as the Brady Center, have resorted to making silly claims, such as asserting that the laws allow "a person who just feels something bad is going to happen to open fire in public." A careful look at the Florida model, which I blogged about last year, leads to the conclusion that the Brady Center's claims are unmerited.

I'll be away on family business for a while, but our newest guestblogger, research director David Kopel of the Colorado-based Independence Institute, should have no trouble filling the gap. Well known as a participant at the Volokh Conspiracy, Dave is among the nation's most prominent scholars on firearms and Second Amendment controversies, as well as a columnist at Denver's Rocky Mountain News and a commentator on many other issues related to individual liberty. Welcome!

In today's National Post, Canadian columnist Lorne Gunter reports an interview with John Hicks, the former Webmaster for the Canadian Firearms Centre (CFC). The CFC is the national gun control center, which is supposed to maintain the registry of all rifles and shotguns which was created by the former Liberal government in 1995 legislation. According to Gunter, Hicks "contends that anyone with a home computer, an Internet connection and a little patience can hack into the national firearms database and find out who owns guns, where they live and what makes and models they possess." The CFC computers are known to have been breached 306 times between 1995 and 2003. The computer registry has cost over half a billion Canadian dollars so far, and still doesn't work. Gunter reports that last December, the contractor "flew in folks from around Canada with the intention they would stay in Ottawa and do testing for six weeks." But "After one day, all were sent home because the application crashed over 90 times with over 30 Severity-1 crashes." The new Conservative Prime Minister Stephen Harper has promised to abolish the dysfunctional long gun registry, and spend the savings on the police; however, Harper leads a minority government so it is not clear if he will be able to accomplish his objective. A research paper by professor Gary Mauser for the Fraser Institute provides the full story on the long gun registry debacle.

"Mutually assured character destruction": that's what Boston Globe columnist Alex Beam says to expect from a trial that started March 7 in Portland, Me. federal court that pits some of the country's better-known members of the plaintiff's bar against each other. Among the cast of characters: Jan Schlichtmann, of "A Civil Action" fame, Steve Berman of Seattle-based Hagens Berman Sobol Shapiro LLP, and Massachusetts tobacco litigator Thomas Sobol of the same firm, and Alabama's Garve Ivey. At issue is whether lawyers breached legal ethics or sold out the interests of class members in their sharp-elbowed maneuvers to control the process of litigation and reach a lucrative settlement with Poland Spring's parent company, Nestle. Also testifying is celebrity enviro-pol Robert F. Kennedy Jr., who had signed up a water company he controls as one of the plaintiffs -- gee, who knew RFK Jr. was tied in with hotshot plaintiff's lawyers? (Alex Beam, "An uncivil action in Maine", Mar. 8; Gregory D. Kesich, "Water bottlers in court to recoup lost settlement", Portland Press Herald, Mar. 8; "Law firm's handling of Poland Spring case at issue in trial", AP/Boston Globe, Mar. 8; Gregory D. Kesich, "Water case puts lawyers' ethics on trial", Portland Press Herald, Mar. 10; "Witnesses tell of how Nestle case fell apart", Mar. 17). The trial is expected to conclude this week. For more on the Poland Spring class actions, see Sept. 10, 2003, Feb. 2, 2004 and Jun. 25, 2004.

Once upon a time, the main mission of "public health" was to prevent the spread of contagious illnesses, and handing the members of that profession a lot of coercive power may have seemed like a sound idea. But now many of the profession's members are demanding that government intervene against unhealthy individual lifestyle choices. Keep your laws off our bodies, please (Ronald Bailey, "Is Diabetes a Plague?", Reason, Mar. 17).

27 Muslim groups in Denmark have announced their intent to sue the newspaper Jyllands-Posten for defamation in a Danish court, and also plan to "report Denmark to the UN Commissioner on Human Rights for failing to prosecute the newspaper that first published controversial cartoons of the Prophet Muhammad". (Jenny Booth and news agencies, "Danish Muslims sue over Muhammad cartoons", The Times (U.K.), Mar. 17). Earlier coverage: Mar. 4, Feb. 14 (Muslims in Calgary, Alberta plan to sue), Feb. 10, etc.

"Dozens of federally insured medical providers have been blocked from helping the Gulf Coast recover from Hurricane Katrina because their medical liability protection doesn't apply outside their own states." ("Law keeps federally insured doctors on sidelines in disasters", AP/Biloxi Sun-Herald, Feb. 9). More on Katrina medical volunteers: Sept. 19, Sept. 6, Sept. 2, Aug. 31.

Having represented patent-holding company NTP Inc. in its lengthy and much-criticized suit against BlackBerry maker Research in Motion (Mar. 4, etc.), the 250-lawyer Washington, D.C. law firm of Wiley, Rein & Fielding is going to be pocketing a contingency fee of roughly a third of the $612.5 million settlement, or $200 million plus. That exceeds the entire 2004 revenue of WR&F, which has heretofore been better known for its Washington regulatory practice than for plaintiff's contingency-fee work. ("NTP lawyers laughing all the way to the bank", Mobile Magazine, Mar. 17; Ashby Jones, Wall Street Journal law blog, Mar. 17).

The incident we reported on Feb. 28 has developed into quite a news story -- see, for example, Andrew Sullivan, Mar. 16 and many other recent posts.

Sonoma County, Calif., allowed health care caseworker George Alberigi, 52, to interview Medi-Cal clients by phone from his home, by way of accommodating his psychiatric conditions, namely panic disorder and agoraphobia (fear of public places). Then in 2001 he applied was considered for a promotion. The county turned him down on the grounds that the higher-level job The county discontinued his at-home accommodation and unilaterally transferred him to a position that required meeting clients in person. Disheartened, Alberigi went on permanent medical disability. Now a jury has awarded him $1.5 million in lost wages and $5 million in other damages including pain and suffering. The county will probably seek a new trial, according to its lawyer. "Alberigi also won attorney fees, which could add another six figures to the county's cost, said his lawyer, Steve Murphy of San Francisco." ("Jury awards $6.5M to panic disorder patient in job bias suit", AP/Sacramento Bee, Mar. 16). Update May 21: judge cuts award to $2.5 million.

More: Jon Coppelman at Workers' Comp Insider (May 24) says that contrary to our first account the promotion in question was not one that Alberigi sought, but was imposed by the county, which did not wish to continue with the at-home-interviewing accommodation. More broadly, Coppelman is far more impressed with the case's merits than we are, finding it significant that 1) Alberigi's psychiatric disabilities were undisputedly genuine; 2) kind things had been said about him in earlier performance evaluations. In revamping their prerequisites for caseworker jobs in a way disadvantageous to Alberigi, he writes, management "decided to shake up his narrow world and force him out of a nurturing situation" and "need to be held accountable for their actions".

The notorious killer nurse is back in the news, and Philip K. Howard recalls the background of his crimes:

During his 16-year nursing career, Cullen was able to move from one hospital to another - to 10 medical facilities in all - because fear of litigation prevented those hospitals from giving him a bad reference. ...

Even the Pennsylvania Department of State, which oversees the state nursing board and had been warned about Cullen's penchant for diverting medications, could not comment on his reputation. "Legally, we can't speak about any information we receive that doesn't result in disciplinary action," a spokesman said....

America's lawsuit culture has bred all kinds of bizarre changes to our society - warning labels on coffee cups, and doctors squandering billions in defensive medicine, to name just two. But the inability to be honest about how you feel about other people is one of the most destructive. Making judgments about people is the currency of a social interaction in a free society. Who tries hard? Who has good judgment? Who is a pleasure to deal with? And who acts in a way that makes your skin crawl?

("When fear is deadly", New York Sun, Mar. 14, reprinted at Common Good site). Earlier on Cullen: Aug. 10, 2005, Mar. 30, 2004, etc.

Cathy Young, not surprisingly, has much to say (Mar. 13) about the lawsuit seeking a right for prospective dads to opt out of fatherhood the way pregnant women can opt out of motherhood. Mickey Kaus (Mar. 17) points out various problems with the idea.

Yesterday we got an Instalanche (thank you, Glenn!) the traffic from which unfortunately had the effect of crashing our server. The site was down for much of the day, as was email service to overlawyered.com and walterolson.com (if you sent us mail and we didn't respond, please resend). While the front page was restored within a few hours, most of the rest of the site remained down until this morning. Thanks for your patience.

P.S. Welcome readers from the second Instalanche, which we're happy to say our servers have succeeded in accommodating. Our new slogan, courtesy of Glenn: Overlawyered, the site "you should probably be visiting regularly anyway".

By reader acclaim, from California: "When a dump truck backed into Curtis Gokey's car, he decided to sue the city for damages. Only thing is, he was the one driving the dump truck. But that minor detail didn't stop Gokey, a Lodi city employee, from filing a $3,600 claim for the December accident, even after admitting the crash was his fault." When the city rejected the claim, Gokey and his wife Rhonda refiled it under her name. (AP/Lodi News/ABCNews.com, Mar. 16).

Don't cooperate with us on one issue, and we'll arrange for you to get sued on other issues:

More often, unions undertake confrontational campaigns to squeeze employers to agree to card checks [i.e., recognizing the union as sole bargaining representative of workers on the basis of majority sign-up, rather than a representation election]. To pressure Cintas, the giant uniform and laundry company, Unite Here has encouraged workers to bring lawsuits alleging pay violations and racial and sexual discrimination. Cintas has not given in, insisting that secret-ballot elections are fairer.

(Steven Greenhouse, "Employers Sharply Criticize Shift in Unionizing Method to Cards From Elections", New York Times, Mar. 11).

If you drive your SUV into someone's picture window you'll be expected to pay for the damage, and -- even in this country, at least in extreme circumstances -- the same can hold true if you drive your lawsuits into them: "A federal judge has ruled that a Rochester School District teacher -- who has been labeled a 'serial' litigant by district lawyers -- must pay $270,000 in legal fees to the district and the Rochester Teachers Association. City school teacher Donald Murphy, who has been embroiled with the district in litigation for more than a decade, filed multiple frivolous actions claiming his civil rights were violated, U.S. District Judge David Larimer ruled." (Gary Craig, "Teacher must pay $270,000", Rochester Democrat & Chronicle, Mar. 14).

Huge, though not at this point surprising, victory for the firearms industry: "A new ban on lawsuits against gun makers caused a Los Angeles judge to toss out negligence claims the family of a slain mail carrier filed against Glock and a gun distributor". An earlier decision by the Ninth Circuit to let Ileto v. Glock go forward had been considered one of the most important victories for the gun-control-through-litigation campaign, but the U.S. Congress had other ideas. (Jennifer English, "Judge tosses gun suit", City News Service/San Gabriel Valley Tribune, Mar. 11). For our earlier coverage, see Nov. 20, Nov. 26 and Dec. 2, 2003. (& welcome Instapundit readers).

Eugene Volokh on the background of a case now pending in the Ninth Circuit:

Unfortunately, for several decades, California courts did indeed take the view that accurately discussing people's crimes from a decade or more ago could lead to legal liability. Such speech, a discussion in a 1971 California Supreme Court said, serves no "public purpose" and is not "of legitimate public interest"; there is no "reason whatsoever" for it, when (in the court's view) the plaintiff has been "rehabilitated" and has "paid his debt to society."

In 2004, the state's high court recognized that as regards the media and its reporting, this stance had become inconsistent with modern views of the First Amendment. Unfortunately, the court left open the possibility that non-media defendants might still face damage suits for privacy invasion over such disclosures, and exactly that possibility has now eventuated in a case by the name of Readylink Healthcare v. Lynch. (Mar. 15)

Following up on our item of last May 12: the Eighth Circuit federal court of appeals ruled last year that the safety rating group ARGUS (Aviation Research Group) had not defamed Aviation Charter Inc. in 2001 by assigning the charter operator its lowest safety rating, "DNQ" or "Does Not Qualify". Aviation Charter Inc. operated the plane whose crash a year later, in 2002, killed Sen. Paul Wellstone of Minnesota and seven others. The Eighth Circuit affirmed a lower court's decision to dismiss the suit, saying ARGUS's comparative ratings involved subjective interpretations of data and were not "sufficiently factual to be susceptible of being proved true or false". So for now, at least, it seems that if you want to rate air carriers' safety, go ahead and rate away. ("Court decisions: Air carrier's poor safety rating isn't defamatory", National Law Journal, Aug. 1, 2005, not online).

We're here from the government, and since we haven't yet considered how to regulate your new cooking technique, we're not going to let you use it (Dana Bowen, "With City Inspectors in Kitchen, Chefs Can't Cook in a Vacuum", New York Times, Mar. 9; Virginia Postrel, Mar. 10; Dana Bowen, "Chefs Wait for Rules on Sous Vide, as Experts Question Some Uses", New York Times, Mar. 15)(& No Quarters).

Bad drafting = much uncertainty as to what the law requires. Uncertainty as to what the law requires = grounds for lots of costly litigation. Congratulations, Congress (Justin Scheck, The Recorder/Law.com, Feb. 8).

According to Judge Posner, writing for a Seventh Circuit panel, that law can be triggered by an employee's use of a secure file deletion program to erase data stored on his company-issued laptop. Declan McCullagh is uneasy ("Police blotter: Ex-employee faces suit over file deletion", CNet, Mar. 10).

When big-ticket lawsuits are settled, a trust fund is often established for the future maintenance of the person whose injury occasioned the suit. How secure are these trust funds from being raided and squandered by faithless guardians? In New Jersey, apparently not very secure:

Calling it an "extremely sad case," a judge on Friday sentenced a Fair Haven woman to seven years in prison for misappropriating much of her disabled daughter's $2.8 million trust to buy drugs and a Porsche, among other things....[Barbara] Marschall in October admitted misappropriating funds from the $2.8 million special-needs trust established through a settlement of a medical malpractice lawsuit against Monmouth Medical Center, Long Branch. She did so between 1996 and 2004. The funds were intended to be used for services and other care for her daughter, Liza, now 20, to supplement care provided by Medicaid.

According to an assistant Monmouth County prosecutor, Marschall, an admitted heroin and cocaine addict, by 2002 had "spent about $614,000 she had received as an award from the medical malpractice settlement in 1995, then turned to the trust fund for Liza, who was born with neurological problems and cerebral palsy. By December 2004, only about $100,000 of the trust fund remained."

Since it's common for large funds of money to be set aside for purposes of covering future medical and personal needs for disabled plaintiffs, at least two questions suggest themselves. First, how frequently are such moneys dissipated (whether through criminal depredation, as here, or simply through less spectacular failings of stewardship) before they were supposed to run out? Second, given that they owe their existence in most cases to legal action, shouldn't such trust funds be better protected from guardians' criminality or incompetence? Wasn't anyone required to ask questions -- or call in an auditor, or withhold their co-signature -- as this mother drained the trust fund at a rate of more than $100,000 a month over more than two years? (Karen Sudol, "7 years for raiding fund of infirm girl", Asbury Park Press, Feb. 11; Christine Varno, "F.H. woman sentenced for embezzling", Red Bank Hub, Feb. 16)(via Rovito).

Quietly slipped into the reauthorization of the Patriot Act: first-time-ever authority for the Justice Department to engage in wiretapping and bugging of private premises for purposes of going after antitrust violators. The Patriot Act reauthorization was advertised as an emergency measure needed to combat international terrorism; very little was said about any supposed emergency need to enact miscellaneous prosecutorial wish lists at the expense of civil liberties. (Pamela A. MacLean, "Bugging the boardroom", National Law Journal, Mar. 1; Skip Oliva, Voluntary Trade Council, Mar. 10 and Mar. 11; Reason "Hit and Run", Mar. 10; Open Market (new Competitive Enterprise Institute blog), Mar. 10).

"Not getting any better," in the opinion of HALT, the consumer-protection group that looks out for the interests of legal clients. The group has issued a report card rating each of the 50 state lawyer grievance systems, updating a similar effort four years ago. Worst state: Utah. Worst big state: California, ranked #46. Best state: Connecticut. Best big state: Pennsylvania (yes, really). (David Giacalone, Mar. 8).

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 Tucson-based group, founded in 1943, bills itself promisingly as "the only national organization consistently supporting the principles of the free market in medical practice". It's published material favorable to liability reform in its Journal of American Physicians and Surgeons (formerly Medical Sentinel). Before citing to AAPS publications as one might cite to JAMA or The Lancet, however, it would be wise to read this and learn more about the group's indulgence for anti-vaccine, anti-fluoridation and anti-gay crankery, as well as what one of its contributors regards as the superiority of "the creation religion of Jehovah" over the "religion of evolutionary humanism". On the vaccine issue, at least, "the Journal of American Physicians and Surgeons [has been] transformed into one of the primary media allies of litigators and plaintiffs seeking to review medical care after the fact, and find legal fault with physicians, vaccine developers and public health authorities who exercised accepted standards of care prevalent at the time they made their decisions." (Kathleen Seidel, Mar. 12).

The Miller Park stadium district sued Mitsubishi Heavy Industries over alleged defects in construction of the structure's roof, and Mitsubishi filed a counterclaim. The case was settled a year ago for a $45 million payment between the main parties; now-unsealed court documents indicate that the parties rang up at least $37 million in legal fees. An attorney employed by insurer Travelers Property Casualty Co. of America, which is contesting some of the bills, says millions were spent on consultants and engineers with no detailed descriptions of the work performed. As for the lawyers' own bills, "Some of the billing entries that have been disclosed are so outrageous they leave no doubt that the bills were never reviewed carefully, even by the firms submitting them," wrote Katherine Stadler, [another] Travelers attorney. "A charge specifically labeled 'do not charge client,' time billed to bring the lawyers lunch, a $5,000 charge for one hour of expert work, and a bill for purchases at a Japanese souvenir shop are only a few examples."

Several attorneys involved in the case, however, describe the fees and expenses as neither excessive nor disproportionate. "John Hinderaker, a Minneapolis attorney who helped defend the stadium district, said the 'district bought a completely successful defense of an $87 million claim." Unless there is another Minneapolis attorney of the same name, that would be the same attorney John Hinderaker who publishes the much visited PowerLine blog. (Don Walker, "Legal fees in Miller Park case go through the roof ", Milwaukee Journal Sentinel, Mar. 4) (via Marquette lawprof Rick Esenberg, who describes the billing in the case as "a tsunami of fees" (Mar. 5) which may however reflect the unfolding logic of expense in big lawsuits rather than anyone's having been "dishonest or cavalier about the clients' money").

Three years ago California's notorious Trevor Law Group was found to be mass-mailing demand letters to small businesses alleging violations of the state's ultra-liberal s. 17200 unfair business practices act, then settling the complaints for cash. A major furor ensued, and the state bar and Attorney General Bill Lockyer made gestures toward reforming the law to prevent law firms from running "shakedown" practices. But did it work? Mike Cernovich notices that a law firm has placed an employment ad on Craigslist seeking "additional counsel" to handle an "expanding workload". What kind of workload? Well, it's "primarily in the practice of wage and hour law inclusive of class actions ... almost all [of our] cases are settled and are rarely tried."

That business about settling rather than trying "almost all cases" got Cernovich's suspicions up, and then he "saw something that made my jaw drop:"

In assessing the nature of the work and return on time spent it is helpful to keep in mind that the burden of proof is always on the employer to establish that he has paid the correct wages. The law requires that the employer keep accurate and timely maintained records that show hours worked and amounts paid. Failure to maintain such records is almost always at the heart of the case ....

Furthermore the employer will be liable for our legal fees if he is unable to defense the case. These two elements [the inability to prove us wrong and threat of attorneys fees] provide our clients with extraordinary leverage to resolve the matter.

Cernovich reads this as amounting to: "we sue employers knowing that it's unlikely they'll be able to produce records that will prove us wrong. ... In other words, let's just sue someone, hope he can't produce any employment records to contradict us, threaten him with attorneys fees, and then settle the case post haste." Or is he being too suspicious? (Mar. 8). (Updated/corrected shortly after posting to fix a mistake on my part about who placed the Craigslist ad; also retitled next morning.)

More on Trevor Law Group here and here. More on wage and hour law: Mar. 10, Jan. 9 and links from there.

Caesar's forum-shopping dept.: Donald Trump has filed his $5 billion defamation suit against author and New York Times reporter Timothy O'Brien (see Jan. 25, Feb. 12) not in the courts of some boringly obvious place like, say, Manhattan, but in Camden, New Jersey, which happens to be "where his golf buddy, George Norcross II, the state’s behind-the-scenes political kingmaker, holds court. In 2001, Norcross, an exec at Commerce Bank, was caught on tape boasting of having engineered a judgeship for a political foe 'just to get rid of him.' Norcross’s claim to control the New Jersey courts was only bluster, his longtime lawyer, William Tambussi, said at the time. Tambussi has also been retained by Trump in his suit." (Geoffrey Gray, "Intelligencer: Trump’s Jersey Trump Card", New York, Mar. 13).

The overtime-classification wars have reached Wall Street, with the result that $400,000-a-year stockbrokers are claiming with a straight face that they're really hourly employees, contends Littler Mendelson's Allan G. King:

In a spate of class action lawsuits against Merrill Lynch, Morgan Stanley, Prudential and other brokerages, filed principally in New York, securities brokers -- who earned billions in commissions annually -- now claim they were just hourly "wage earners," who were misclassified by their employers to thwart the Fair Labor Standards Act and the California Labor Code.

Could we please, please get Congress to revisit the antediluvian FLSA and start preparing to repeal parts of it that make no sense today, or never made sense in the first place? (cross-posted from Point of Law).

With the popularity of Netflix, New York magazine notes the rise of a new type of crime: postal employees' stealing the easily identifiable red-jacketed DVDs from the mail. In addition to at least three such cases in New York City, "Inspectors have rounded up thieves in Detroit, San Diego, and Lyons, Colorado -- where a carrier stole 503 discs before capture. Because civil-service rules make it nearly impossible to fire corrupt mail carriers, U.S. attorneys often agree to dismiss charges in exchange for their quitting." (Eric Wolff, "Intelligencer: A Stranger In Your Queue", New York, Feb. 20). But do their lawyers succeed in negotiating neutral references for them?

"In one commercial, he cuts checks to clients as a soccer announcer screams 'GOAL!' In another, he spins like a human tornado, generating cash for his clients." "As long as my ads are not false or misleading, I can say what I want to say," says Glen Lerner, who's currently in a dispute with the State Bar of Nevada about the wording of one of his slogans, "The Heavy Hitter". "I'm selling a product. Me ... I'm like the Ty-D-Bol man." (Glenn Puit, "'Heavy Hitter' will sue", Las Vegas Review-Journal, Mar. 2)(via Lattman)(more on client-chasing).

If the city of Calabasas, Calif., has no intention of doing so, how come it gave itself that authority in its recently enacted ordinance? (Jacob Sullum, Reason "Hit and Run", Mar. 9). Among its other provisions, the ordinance also bans smoking in nonresidential outdoor spaces in the presence of even consenting non-smokers -- including, apparently, a smoker's spouse, parents, etc. -- and provides for enforcement through bounty-hunting lawsuits by uninjured parties. ("Clean Air Calabasas", Reason, Mar. 8).

Just a reminder: if you like what you read on Overlawyered, please think of taking a moment to install a link to it on your website, or mention it in your email newsletter, or just tell a friend about it. That's how we get new readers. Thanks!

Long before their current "medical adventure", I was a besotted fan of the writings of Virginia Postrel and Sally Satel, and also proud to count them both as friends. Now Virginia has single-handedly (single-kidneyedly?) refuted the old calumnies that tar libertarians as selfish, only out for Number One, etc. (Mar. 3, Mar. 7). Best wishes to them both for a speedy recovery.

"A couple who filed a $20 million lawsuit against a Catskills hotel after allegedly being attacked by bedbugs returned to the resort for another stay just nine days later, a lawyer for the hotel told the Daily News yesterday. Leslie Fox and Stephen Cohen checked in at the Nevele Hotel on July 15, 2005 - then returned from July 24 to July 29, attorney Joseph O'Connor said. 'The claim for a $20 million injury is not substantiated by her willingness to stay in the same section of the hotel two weeks later,' he said." Fox and her husband are being represented by Alan J. Schnurman of the law firm of Zalman & Schnurman, who says he has been contacted by another hotel patron reporting bedbug bites. (Helen Peterson, New York Daily News, Mar. 9; "Pair Suing Hotel Over Bedbugs Bites Return", AP/Washington Post, Mar. 9).

Mark Kleiman, on the alleged link between autism and thimerosal in vaccines (Mar. 6), commenting on the latest from Respectful Insolence (Mar. 6). Orac of Respectful Insolence also takes another whack (Mar. 2) at the emissions of the egregious Robert F. Kennedy, Jr. on the same controversy, as published (Mar. 1) in the Huffington Post. More: Feb. 21, etc.

P.S. And here's Kathleen Seidel, who's been covering the issue in depth at Neurodiversity Weblog (Mar. 1): "It’s time for RFK Jr. to come clean about the fact that he represents the interests of private litigants seeking compensation for supposed vaccine injury when in fact many of those litigants have no evidence that such injury occurred.. ...Widespread suspicions are fueled by an aggressive public relations campaign engineered by wealthy PR maven and pioneering 'mercury mom' Sally Bernard, early litigant Lyn Redwood, their close associates, faux-journalists David Kirby and Dan Olmsted, and a core of personal injury lawyers who have cultivated this market for years. A lot of money has gone into convincing parents of autistic children that their kids were poisoned."

That's what some bloggers (like these two) seem to think. Emergency room physician "Shadowfax" (Feb. 10) finds this point of view a "little maddening", given that it conflicts with the experience of "every day of my working life, every patient I see, every diagnostic/therapeutic decision I make". (via KevinMD).

Connecticut:

A Superior Court judge in New London Friday permanently barred a convicted rapist who had harassed his victim with a series of legal actions from filing further lawsuits without the permission of a judge. Judge Clarance J. Jones issued a permanent injunction against Allen Adgers, who is serving a 13-year sentence for kidnapping and raping his former wife at knife-point, said Attorney General Richard Blumenthal, whose office sought the order....

[The wife] moved six times, but Adgers was able to learn her new address each time by filing a legal action that resulted in her being served with a subpoena. As part of the subpoena process, Adgers would get a receipt recording the address where service was made. He sent her harassing letters, which has added four years to his original 13-year sentence. But he still was allowed to force his former wife into court. Acting as his own attorney, the rapist was able to question and taunt his victim....

Blumenthal said that Adgers, in addition to harassing his victim, also filed 16 frivolous lawsuits against government officials since 2001. That will end with the order issued Friday.

(Mark Pazniokas, "Judge Halts Rape Victim's Ordeal", Hartford Courant, Feb. 25). Jonathan B. Wilson, who spotted the case, says one lesson -- given that it took a situation this extreme to trigger an injunction -- is that the system is likely to allow a great deal of litigation abuse in less facially outrageous cases: "So long as plaintiffs have the capacity of filng suit and engaging in discovery without satisfying any minimal standard of justification, unscrupulous plaintiffs will be able to use the compulsive power of the courts to impose frustration and costs on defendants." (Feb. 26).

...if a New Jersey legislator gets his way. (Reason "Hit and Run", Mar. 7). The idea is to make sure legal remedies are available "to persons injured by false or defamatory messages posted on public forum websites". More: Michael Krauss. Update May 9: the legislator is reportedly going to withdraw the bill, following a storm of online criticism (via Reynolds).

ATLA and its surrogates would have you believe that the McDonald's coffee case reflected the unique circumstances of one chain that sold coffee hotter than anyone else. We've been telling you for a while that that's not true, and there's now another datapoint in Oklahoma. Donna Aslanis purchased two cups of coffee from a Rolla, Missouri, Burger King drive-thru in 1998, but burned herself severely when she spilled the coffee while pouring it into a plastic container in her lap, and sued in 2002, complaining that the employee failed to tell her that the coffee was hot. The case went into mediation and settled; the amount (if any) of settlement was not disclosed. Her lawyer was Steven Paulus. (Ryan Slight, "Woman settles in hot coffee lawsuit", News-Leader, Mar. 7). (More on Stella Liebeck.)

Ryan Taboada was shot eight times in the process of a carjacking in a Roanoke, Virginia, Holiday Inn Express parking lot; his assailant, Derrick Wakie Smith, has since pleaded guilty to attempted capital murder and many other felonies. But Taboada's lawsuit blames the hotel owners, claiming "that police officials warned the business... that the property's location posed certain dangers to its customers." (Christina Rogers, "Virginia Supreme Court rules shooting victim can sue motel", Roanoke Times, Mar. 7; Ryan Taboada v. Daly Seven, Inc. (Va. Mar. 3, 2006)). Previous Virginia law only imposed a duty when the danger was "imminent."

Partners in crime dept.: "A Dutch man who served time in jail and was deported for running one of the largest escort services in the Southeast has sued six former customers." Arthur Vanmoor, 46, who used aliases such as "Big Pimpin' Pappy" and whose South Florida enterprise "accounted for up to 90 percent of the escort service listings in Broward County's 2002 Yellow Pages", claims his customers got him in trouble by breaking the law and violating their contracts with him. "To pay the $245-per-hour escort fee, the men signed a credit card slip that said, 'Cardholder states that this transaction is not for illegal activity,' said Vanmoor's attorney, Montgomery Sibley." (AP/NBC6.net, Feb. 27).

Montgomery Sibley, attorney for Vanmoor, appeared on Tucker Carlson's "The Situation" Mar. 1 to explain his client's case; see this amusing account with video. A Google search reveals that a Florida attorney named Montgomery Blair Sibley, proceeding pro se, sued federal judicial officials including the nine members of the U.S. Supreme Court (including "Steven" Breyer) demanding a million dollars in damages from the Justices individually for various purported offenses which included not granting certiorari review to a domestic dispute Sibley was involved in. Sibley took his case up to the Eleventh Circuit (PDF), but did not prevail.

According to the South Florida Sun-Sentinel, "Vanmoor is known for his litigious nature. In the past decade, he has been a plaintiff or defendant in 29 lawsuits in Broward County alone. He has sued businesses that challenged him, police departments that investigated him, an assistant state attorney who prosecuted him and journalists who reported on him." (Sean Gardiner, "Man charged in Broward prostitution ring sues his clients", Feb. 27). The alleged johns have not been named in the latest round of news coverage, so far as a cursory search of coverage reveals. One wonders whether the possibility of such publicity might be one factor influencing the prospective settlement value, if any, of the new round of suits.

Ron Bailey at Reason "Hit and Run" says it's the sort of thing that gives the pharmaceutical industry a bad name (Feb. 24).

The comedian's attorneys have sent nastygrams demanding that "House of Cosby" be removed. (Lea Miller, "Cosby's Lawyers See No Flattery in an Imitation", New York Times, Mar. 6).

Yesterday I was a guest on Paul Harris's radio program (KMOX St. Louis) to discuss the latest push for government regulation and courtroom action over tempting and calorie-laden items found in the refrigerator, in particular sodas. We talked about a new Associated Press article reporting favorably on some nutritionists' plans to "make the case for higher taxes on soda, restrictions on how and where it is sold and maybe a surgeon general's warning on labels". (Marilynn Marchione, "A hard stance against soft drinks", AP/Fort Worth Star-Telegram, Mar. 5). More on our Eat, Drink and Be Merry page.

...in your public speaking or memos or e-mails, or a prosecutor or plaintiffs' attorney (not to mention a major newspaper) might try to persuade others to take you literally.

Yes, everyone else has already posted on this, but it is funny (Mike McKee, "Solo's Errant Spell-Check Causes 'Sea Sponge' Invasion", The Recorder/Law.com, Mar. 2).

The federal taxpayer, by way of the Department of Housing and Urban Development, funnels substantial sums to private "fair housing" advocacy groups for purposes of suing landlords, newspapers, and other likely suspects over alleged housing discrimination; raising consciousness among potential claimants and others; and generally promoting expansive readings of housing-bias law. For example, in this listing of $20 million worth of fiscal 2002 grants, HUD boasts of bestowing $242,339 on the Chicago Lawyers' Committee for Civil Rights Under Law, Inc. for something called its Private Enforcement Initiative (PEI), described as follows:

While addressing the needs of minorities in the metropolitan Chicago area, the Chicago Lawyers' Committee for Civil Rights will increase awareness of fair housing rights; empower victims to report incidents of discrimination; develop credible, legitimate evidence to support discrimination complaints; increase the number of complaints referred to HUD for enforcement; and provide relief to discrimination victims. Utilizing access to pro bono attorneys from Chicago's most prominent law firms, as well as their resources, the Chicago Lawyers' Committee will receive, document, and investigate individual complaints of discrimination.

If the Chicago Lawyers' Committee sounds vaguely familiar, it's probably because it's the group that last month filed a widely criticized lawsuit against Craigslist (Feb. 9, Feb. 20) seeking to force the online service to pre-censor users' postings of roommate and other housing classifieds (rather than just pull them off after complaints, as now).

Even if the Chicago Lawyers' Committee suit fails in court -- as is widely expected -- the controversy is likely to continue. In yesterday's New York Times, Adam Liptak says the activists are likely to push for federal legislation stripping website operators of their current protection against being held liable for users' postings. ("The Ads Discriminate, but Does the Web?", Mar. 5). Don't assume that "fair housing" advocates are powerless on Capitol Hill these days, either: at one set of hearings last week, all the witnesses called (including this one (PDF), quoted in the Times piece) were there to speak up for expansive enforcement of the law, with nary a dissenting word about any possible competing values at stake. More: Maggie's Farm.

Last May 10 we reported on the questions that were being asked about a sealed settlement of Kentucky fen-phen claims which had included (along with vast sums in legal fees) the quiet diversion of $20 million into a mysterious new charitable entity called the Kentucky Fund for Healthy Living. Now the mystery has turned to scandal: the judge who approved the settlement, Joseph F. ("Jay") Bamberger has resigned after allegations surfaced that he was serving as a director of the fund, receiving $5,000 a month (three of the plaintiff's lawyers were also paid directors). The state's Judicial Conduct Commission said Bamberger's actions "shock the conscience" and he faced possible removal had he not resigned. Particular attention is being focused on Bamberger's close ties to Mark Modlin, a trial consultant in the fen-phen case who has had co-investments with the judge. The alleged closeness between Bamberger and Modlin had led to protests from litigants in a number of earlier cases, including a high-profile priest-abuse case against the Catholic Diocese of Covington.

The commission's reprimand (PDF) revealed a startling fact. "The attorney fees approved were at least $86 million and perhaps as much as $104 million" -- well exceeding the $74 million that was split among the 431 claimants in settlement. A lawsuit continues on behalf of some allegedly victimized clients against four plaintiff's lawyers involved in the settlement, including big-league Cincinnati operator Stanley Chesley. (Beth Musgrave, "Fen-phen lawsuit judge resigns", Lexington Herald-Leader, Feb. 28; Jim Hannah, "Judge quits amid allegations", Cincinnati Enquirer, Feb. 28; "Investigation of Bamberger warranted" (editorial), Cincinnati Enquirer, Mar. 1; "A blistering rebuke" (editorial), Cincinnati Post, Mar. 1; Peter Bronson, "Hold this judge in contempt", Cincinnati Enquirer, Mar. 2)(cross-posted from Point of Law).

Close on the heels of the verdict in the Rhode Island paint retrial (Feb. 23; PoL Feb. 17) comes more bad news for companies that once manufactured lead paint: an appeals court has reinstated the lawsuit against them filed by various California counties and local governments. The suit seeks money for, among other things, the removal of lead paint in government buildings and low-income housing. ("Suit Against Makers of Lead Paint Is Reinstated", Reuters/Los Angeles Times, Mar 4)(opinion in PDF format)(hat tip: Jane Genova).

Now the shareholder lawyers are piling on: class-actioneers Milberg Weiss and Stull, Stull & Brody would like to represent "people who owned Take-Two shares between Oct. 25, 2004, the launch of 'Grand Theft Auto: San Andreas,' and Jan. 27, 2006, the day that Los Angeles' city attorney sued Take-Two for selling pornographic video games to children." ("More legal woes for 'Grand Theft Auto' maker", Reuters, Feb. 15). Earlier coverage: Jan. 28, Jul. 27, etc.

The retrial of the judicial bribery case against prominent attorney Paul Minor and two former state judges has now been set for Aug. 14, following delays requested by Minor's attorneys (Anita Lee, "Judicial trial set Aug. 14", Biloxi Sun-Herald, Feb. 11). And the federal tax evasion trial of Mississippi Supreme Court Justice Oliver Diaz Jr. is now scheduled for Apr. 3 ("Diaz tax trial delayed", Feb. 21). For more, see Dec. 10 and our many previous links.

It means "solidarity" in Danish, and specifically solidarity with the endangered liberties of Denmark, where some of the "Mohammed" cartoonists live in hiding after threats to their lives. (Michelle Malkin, Mar. 3, complete with "Lego My Free Speech" rally sign; Flemming Rose, "Why I Published Those Cartoons", Washington Post, Feb. 19). More here and here.

"Although the U.S. Patent Office recently invalidated most of the patents at issue in the dispute, NTP still had the right to appeal. However, RIM was put in a tough position because [Judge] Spencer didn't have to wait for a final decision on the validity of the patents before making his decision on the injunction. As a result, RIM was forced to pay up, said Ken Dulaney, a vice president and analyst with Gartner, while NTP was inclined to take what it could get." (Ryan Kim, "BlackBerry users emerge from the legal briar patch", San Francisco Chronicle, Mar. 4). Earlier coverage on this site: May 2, Oct. 11, Nov. 30, 2005, and Feb. 8, Feb. 25, 2006.

By a 4-3 margin, the Ohio Supreme Court has approved (PDF) a "wrongful birth" suit against doctors by parents who say they would have aborted their child had they not been given inaccurate genetic counseling. The court did reject the views of Justices Paul Pfeifer and Alice Resnick (as well as that of a lower court judge) who thought the damages payable should include the cost of raising the child through adulthood, plus pain and suffering. (Andrew Welsh-Huggins, "Supreme Court allows lawsuits over missed genetic disorders", AP/Akron Beacon Journal, Mar. 3). However, some Ohio legislators are proposing to enact a law precluding wrongful-birth lawsuits; a bill to that effect passed the state senate this past week, but has not yet been considered by the house (Jim Provence, "Bill would protect doctors from 'wrongful birth' suits", Toledo Blade, Mar. 1). More on wrongful-birth suits: Sept. 16, 2004 and links from there; May 1 (Australia) and Jun. 14, 2005. More: WizBang takes an extremely dim view of the parents in the case (Mar. 3).

The first edition of the AEI Liability Outlook is out today, and features my analysis of pending asbestos legislation:

The AEI Liability Project hereby inaugurates its Liability Outlook series, designed to guarantee a paper trail to exclude any of its authors from Article III appointments. This Outlook examines the congressional attempts at asbestos liability reform. The eventual cost of asbestos litigation is estimated in the hundreds of billions of dollars, the majority of which will end up in the hands of attorneys, thus affecting thousands of corporate defendants with little or no culpability and costing tens of thousands of jobs. The trust-fund approach is a congressional attempt to reach a compromise on the liability problem, so long as nationwide reform is not politically feasible. While a trust fund has the potential to save tens of billions of dollars, the current legislation suffers from dangerous flaws that could make the cost of the asbestos litigation crisis far worse.

Other Point of Law coverage of S. 852. (Cross-posted at Point of Law.)

It's been circulating for a while, but can still raise a laugh: this satirical video from DamageControlOnline.com simulates an infomercial for a self-help kit on suing people (Google Video, posted Oct. 18 -- some off-color language).

Even Madison County juries have their limits it seems.

Anita O'Connell claimed that her mesothelioma came from asbestos from washing her husband's and children's laundry. Perhaps. But none of her three sons who worked for her father whose clothing she washed would testify in support of that. Instead, a fourth son, Michael O'Connell, who didn't work for her husband's plastering business, sought to blame Bondex International and Georgia-Pacific.

The plaintiff claimed the joint compound caused Anita O'Connell's asbestos exposure because she shook her son's clothes before laundering them.

The supplier for the O'Connell plastering business testified that only plaster was sold to the O'Connell business, not joint compound. The supplier also testified that he never carried the Bondex brand.

Michael O'Connell testified he remembered seeing silver Georgia-Pacific cans of joint compound, but that company's cans were not silver during the period O'Connell claimed to have worked with drywall.

Long-time readers may nod knowingly and think of the infamous Baron & Budd witness-coaching memo, which I have posted in full on the Liability Project's "Documents in the News" page.

Many many more links after the jump.

Not according to the ACLU of Southern California, at least. That's the apparent lesson of a 1986 incident which drew little publicity at the time, but which David Bernstein recently investigated. The proprietors of the Alpine Village Inn in Torrance, Calif. were understandably outraged when a group of four customers came in wearing swastika pins and other Nazi regalia. It asked them to leave, but they refused and so it called the cops; its reward was to be sued by the ACLU under California's Unruh Act for its failure to provide public accommodation to the Hitler fans. According to Bernstein's informant, the restaurant's insurer paid a settlement. (Feb. 24)

Updating our Nov. 8, 2004 entry, plaintiffs' attorney Gary Zadik made our favorite argument when asking a jury to award $1.7 million of damages against the school district for the parents of schoolchildren who cut class and died after imbibing a half-gallon of vodka.

“This case is not about money,” plaintiffs lawyer Gary Zadik of Great Falls told the jury in his closing statements Wednesday morning.

Members of the jury apparently took him at his word, because they awarded none.

More prominent L.A. lawyers continue to be named as "persons of interest" in the investigation of wiretapping and privacy invasion, and at least half a dozen of them have retained criminal counsel on their own behalf. (WSJ law blog, Feb. 27; Greg Krikorian and Andrew Blankstein, "Feds Working New Pellicano Indictments", Los Angeles Times, Mar. 1). And here come the civil suits, with an emphasis naturally on targeting deep-pocketed bystanders: attorneys Brian Kabateck and Matthew Geragos are seeking class-action status on behalf of Pellicano wiretap victims in a suit against AT&T, formerly SBC (Justin Scheck and Kellie Schmitt, "Lawyers Rev Up for Hollywood Wiretapping Case", The Recorder/Law.com, Feb. 28). " More coverage: Feb. 18, Feb. 16, etc.

The decay of occupational exemptions to jury service means that more doctors, nurses and other persons with considerable professional expertise are making it into jury pools and even sometimes being allowed to sit as jurors, at least assuming that lawyers decline to use challenges to exclude them. One Nassau County, N.Y. judge even recalls "presid[ing] over a business dissolution case in which the lawyers allowed an accountant to sit on the jury. 'Why they left the accountant on I'll never know, but the lawyers were quite satisfied," he said. (Imagine -- relevant life experience not being screened out in the course of the jury selection process!) Oregon prosecutor Joshua Marquis, an official with the National District Attorneys Association, does harbor a prejudice against one particular kind of professional called to jury service, namely lawyers themselves. "They're terrible jurors -- I should hit myself in the face with a stick if I ever let a lawyer on a jury again." (Leonard Post, "Dealing With Jurors' Expertise", National Law Journal, Dec. 23).

1) Ever since a tabloid story broke claiming that former American Idol runner-up Clay Aiken was gay, there have been rumors that fans would file a class action lawsuit alleging consumer fraud. To date, noone has been that ridiculous (though the suit would be no more ridiculous than many successful consumer-fraud class actions), but the New York Post reports that gay-bashing fans have filed an FTC complaint alleging that they were misled as to the star's sexuality by record-company promotions. If the theory holds water, celebrity magazines could use consumer-fraud-class-action civil discovery to uncover whether maverick movie stars have been engaging in risky business in the closet, with the firm chance that a few good men could suffer collateral damage to their privacy. (Other discussion of civil discovery and privacy: Feb. 9.)

2) The Smoking Gun has published correspondence from Jessica Alba's attorneys threatening Playboy with suit over using her image on the cover. Without getting into the merits of her claim, I was entertained by the argument that Alba's presence on the cover implied falsely that she would appear nude within the magazine (in fact, the magazine merely had a publicity still of Alba inside). One wonders if, should Alba fail to win an injunction against magazine distribution, there will be a creative class action from readers alleging consumer fraud by the failure to meet the implicit promise of photos of a naked Alba. (h/t to Slim)

"You never know when a flower pot, stray cat, man in a monkey suit or cunning birthday package might reach out and grab your ankle. But, if the latter happens, suing is probably the best option. It is definitely the mailman's fault you were not watching where you were going." (Kristie Busam, University of Alabama Crimson White, Mar. 1). Howard Bashman has MSM press coverage of the Supreme Court decision that we covered Feb. 23.

The CNN legal commentator, famous for her throw-away-the-key opinions on criminal justice matters, is perhaps equally famous for her own backstory as a crime victim. But how well does her version of that story stand up to scrutiny? (Rebecca Dana, "Did Nancy Grace, TV Crimebuster, Muddy Her Myth?" New York Observer, Mar. 6). Take it away, Prof. Bainbridge...

At Point of Law's "Featured Discussion", Moin Yahya and Larry Ribstein are debating whether the government can or should do anything about the practice of lawyers' (or their clients' or confederates') selling short the stocks of companies they plan to sue, then cashing in on the resulting drop in the stock price. See May 5, 2005; PoL Feb. 6.

Recently we introduced a sidebar on the front page with a sampling of a few of the site's "Greatest Hits" -- stories and posts that made a big hit with readers, have been much linked to, or are otherwise especially memorable. (More information about the list here). If you're a longterm reader or even if you're not, feel free to use the comments section to nominate your own favorites that you think belong on the list. To look up older posts, use the search function for posts since mid-2003 or before that, or try a Google search.

Whether or not they're worth their high cost as a way of detecting rare cardiac conditions, they may at least be one means of keeping the lawyers at bay (KevinMD, first, second Feb. 17 posts).