April 2006 Archives

In the latest chapter of the long-running Mississippi judicial scandal (Dec. 10, etc.), a jury has cleared Mississippi Supreme Court Justice Oliver Diaz Jr. of federal tax evasion charges. (Jimmie E. Gates, "Jury clears Diaz", Jackson Clarion Ledger, Apr. 28; Julie Goodman, "Diaz acquittal fuels election questions", Jackson Clarion Ledger, Apr. 29). Earlier, a jury had acquitted Diaz of corruption charges while failing to resolve charges against several other figures in the long-running case, who face retrial in August.

"Assistant U.S. Attorney Don Burkhalter said loans backed by prominent attorneys Richard Scruggs and Paul Minor were not repaid by the Diazes, 'who used substantial amounts of the money for personal use. They didn't put it on their tax return.'" (Shelia Byrd, "Diaz attorney says client didn't deliberately withhold tax information", AP/Biloxi Sun-Herald, Apr. 25). "Defense attorneys described Diaz as a disorganized fellow who left details such as taxes and finances to his wife and who would not knowingly hide income from the government." ("Jury acquits Diaz in tax case", AP/Biloxi Sun-Herald, Apr. 27; Jimmie E. Gates, "Prosecutor: Diaz didn't report all funds to IRS", Jackson Clarion Ledger, Apr. 26).

Isn't it time you signed up to receive our free periodic newsletter? The latest installment went out to subscribers Friday afternoon, summarizing highlights of recent postings in terse yet wry style. To read the latest issue -- or to join or leave the list, change your address, etc. -- visit this page (requires Google registration).

...concludes with a state bar reprimand directed at Pape & Chandler over its use of the canine-related TV ads. (Carl Jones, "'Pit Bull' Lawyers Reprimanded by Fla. Bar", Daily Business Review, Apr. 10). See Jan. 15 and links from there.

Guestblogger Peter Morin earlier this month took note of a bracing decision by Judge David Sills, presiding justice for a California court of appeal, overturning a $540,000 settlement in a Proposition 65 toxic-warning case filed by what he called "bounty hunters". The National Law Journal has followed on with more details of the case, Consumer Defense Group v. Rental Housing Industry Members, in which a law firm, acting on behalf of a supposed consumer group and complainant, "sued 170 apartment building owners around California and the Rental Housing Industry trade association for failure to warn of the danger of cigarette smoking by tenants anywhere in the building and parking lots where auto exhaust might expose tenants to carcinogens. ... the ultimate global settlement included a promise to post a generic warning on buildings and a laundry list of potential sources of cancer provided on a Web site, including furniture, paint, construction materials, cleaning supplies, swimming pool chemicals, pest control and landscaping." It gets better:

"Trade group wanted to buy its peace and was willing to pay off the law firm to obtain it, in return for which the owners would also get a favorable deal with regard to any future litigation concerning Proposition 65 violations," Sills wrote. But he saved his wrath for Graham & Martin. "Consumer Defense Group and McKenzie are simply straw plaintiffs set up to enable the law firm of Graham & Martin to obtain legal fees in Proposition 65 litigation. We will therefore refer to the 'plaintiffs' by the title most substantively accurate: Graham & Martin," said Sills.

For our earlier coverage of Prop 65 bounty-hunting, see May 26, 2005 and links from there (Pamela A. MacLean, "Calif. Judge Blasts Firm in Toxic-Warnings Case", National Law Journal, Apr. 13).

Like many other blogs, Overlawyered was down for much of Friday because of a DOS (denial-of-service) attack aimed at our hosting service, Hosting Matters. Michelle Malkin has some details, here and here. More: Webloggin has some observations about the nature of the DOS attack, while Dad29 proffers an Overlawyered-centric explanation for the whole affair.

Like libertarian blogger Amber Taylor, I've been enjoying the DVD of the show "Veronica Mars." Kristen Bell plays a perky private eye who uses bugs and stolen medical records to solve cases. I just have to suspend my disbelief, and understand that Mars lives in a fictional world like that of Bruce Wayne where the laws that would have her sued into oblivion for her wiretapping and HIPAA violations don't exist.

The Pellicano scandal (Apr. 3 and links therein) shows the real-world results. It's natural that wiretapping victims are suing Pellicano and the law firms that hired him over his alleged wiretapping and bribery tactics.

But plaintiffs' lawyers aren't stopping with the egregious wrongdoers. For example, Craig Stevens pled guilty to taking bribes to run searches on Pellicano clients—a sign of Pellicano incompetence, since the data would be available from public databases on the Internet. (Want to know who's in jail?) Stevens has resigned from the Beverly Hills Police Department, but the city (along with Los Angeles, who allegedly had their own bribed cops) is being sued for failure to stop their officer from being bribed. Los Angeles attorney Kevin McDermott predicts that the telephone company will also be sued for not doing enough to stop Pellicano wiretapping and, sure enough, Lisa Bonder Kerkorian has sued AT&T. In the Vanity Fair article, don't miss the bit about how Daniel and Abner Nicherie allegedly used a blizzard of over a hundred lawsuits to protect a $40 million swindle. (Bryan Burrough and John Connolly, "Inside Hollywood's Big Wiretap Scandal", Vanity Fair, June 2006; Gabriel Snyder, "Names take aim at Pellicano article", Variety, Apr. 28 (via Defamer); Greg Krikorian and Andrew Blankstein, "Filmmaker Says He Lied in FBI Probe", Los Angeles Times, Apr. 18).

Lance Dutson of the Maine Web Report had the temerity to note that an expensive advertising agency published a phone-sex number instead of the correct line for the Maine Office of Tourism. For this, and other criticisms, Warren Kremer Paino Advertising is suing Dutson for millions. The plaintiff's lawyer is Portland attorney Alfred Frawley III, who alleges that an opinion that a state agency is "pissing away" money is legally actionable. Dutson has numerous links for this ludicrous lawsuit. Greenberg Traurig is once again stepping up to protect free speech in defense, in conjunction with the Media Bloggers Association. (via Lattman)

"-- which, of course, it has." Terry Teachout on bureaucratic euphemism (Apr. 28).

Allegations of misconduct pop up as lawyers fight over a $1.5 billion pot and how much should go to which attorneys and how much should go to class members, deposing each other in the process to gain ammunition for their arguments for freezing particular firms out. The story is complex; unfortunately, space limitations in the Daily Business Review prevent more than a cursory discussion. (Carl Jones, "Millions in Fees in ExxonMobil Case Delayed Amid Lawyer Misconduct Claims", Apr. 28).

More things not to do if you're a practicing lawyer, all from recent Law.com reports: Don't abscond with the down payments that your real estate clients have laid down on houses, as 19 New York attorneys apparently could not resist doing last year (John Caher, "Light-Fingered Lawyers Cause Spike in Client Fund Payouts", New York Law Journal, Apr. 17). Don't "[hum] 'The Twilight Zone' theme song to imply a client's ex-wife -- seated at the same table during a post-judgment divorce proceeding -- is mentally unstable," which drew a reprimand for Torrington, Ct. attorney Steven H. Levy (Douglas S. Malan, "Attorney Gets Static for 'Twilight Zone' Rendition During Divorce Proceeding", Connecticut Law Tribune, Apr. 13). And if you've gotten caught in a colorful episode of legal malpractice in which you falsely claimed (among other things) to have founded an L.L.M. program at New York University School of Law, don't engage in "elaborate and sometimes fraudulent efforts" to avoid paying the judgment to your former client, for which offense federal judge Denise Cote requested that the U.S. attorney's office prosecute New York lawyer David A. Dorfman (Tom Perrotta, "Federal Judge Requests Prosecution of Attorney for Criminal Contempt", New York Law Journal, Apr. 19). More in our "Don't" series: Aug. 3 and Sept. 13, 2005; Jan. 20 and Apr. 12, 2006.

Ronnie Joe Neal, who got to Texas's Death Row by committing a particularly heinous sex murder, says Bexar County jailers didn't act speedily enough to save him after he attempted suicide by downing 50 prescription tablets. So he wants $35 million in his civil rights lawsuit, in which he's represented by attorney James Myart. (Ken Rodriguez, "Alamo Heights teacher's killer wants $35 million worth of 'justice'", San Antonio Express-News, Apr. 21). Similar: Apr. 17.

The dozen or so restaurants in town that serve the expensive French delicacy will be subject to $250 to $500 fines if they continue to do so. California has banned the production, but not the serving, of the fattened goose liver. (Fran Spielman, "City council approves foie gras ban", Chicago Sun-Times, Apr. 26 (via Bainbridge)).

A likely winner of the Stendhal lottery -- the one in which the prize is to write a book that will still be read a hundred years after it saw day -- the urbanist is remembered by the Manhattan Institute's Howard Husock at City Journal and by Tyler Cowen, Jesse Walker, Sissy Willis, Witold Rybczynski at Slate, Alan Ehrenhalt, New Haven Independent and Ann Althouse, to list just a small sampling. I put in my own laudatory two cents in a 1998 Reason symposium. More: 2Blowhards.

A belated viewing of the now infamous deposition video (see Apr. 8) stirs memories for Prof. Bainbridge of a few highlights from the suave and distinguished career of zillionaire Houston litigator Joe "You could gag a maggot off a meat wagon" Jamail (Apr. 20). In comments, "Thief" of "Thief's Den" points out that famously civility-challenged lawprof Brian Leiter holds the "Joseph D. Jamail Centennial Chair in Law" at the University of Texas, Austin.

I can't say that Alarm One's workplace motivational technique of spanking (both male and female) employees who are late for meetings while other employees hoot is one I approve of, but Janet Orlando's claim of emotional injury and unmoored damages is more than a little out of whack. (Pablo Lopez, "Workplace spanking leads to lawsuit", Fresno Bee, Apr. 25 (hat-tip J.T.).

As regular readers of this space know (Apr. 14, etc.), I've long taken an interest in the injustices that have been visited on innocent landowners in New York, Connecticut and many other states by lawsuits seeking to revive long-defunct Indian land claims. I've got a guest column in the latest Forbes ("On My Mind", May 8, reg) briefly summing up a few of the things wrong with this litigation. A sample:

Until lately Anglo-American law sought a careful balance between the goal of restoring wrongfully taken property to its rightful owners, on the one hand, and the equally valid goal of securing everyone's property against the danger that a claimant will show up some day to assert a speculative defect in title. Hence doctrines aimed at preventing old disputes from staying alive indefinitely: statutes of limitation, adverse possession, "acquiescence" in unchallenged political boundaries.

In a series of rulings over the past 30 years, however, the U.S. Supreme Court has decided that Indians are wholly different from other land claimants. Law professors have cheered: What cause is more romantic than that of dispossessed Indians? (Somehow owners of small farms in upstate New York never seem to merit the underdog label.) The rulings also constitute a stunning victory for a scrappy cadre of Legal Services lawyers; a few of these antiestablishment types have found themselves, over the arc of a career, gradually transmuted through their tribal connections into highly paid casino promoters, in a transformation worthy of a Balzac or Stendhal novel.

(cross-posted at Point of Law)

Today's W$J has an editorial about the ill consequences of the trend in recent years for lawyers prosecuting asbestos and silicosis cases to add makers of commonly used industrial masks and respirators as defendants in their suits:

The Coalition for Breathing Safety, an industry group, reports that between 2000 and 2004 plaintiffs attorneys filed more than 326,000 claims against its five members. Some of these are asbestos-related, although the recent deluge has been all silicosis. One manufacturer (which prefers not to be named lest it become a bigger target) says that prior to 2002 it faced about 200 silicosis claims a year. In 2003-4, it got hit with 29,000....The industry coalition estimates its members have spent the equivalent of 90% of their 2004 net income fighting suits in recent years.

The suits have fared poorly -- none of the respirator makers have lost a case in court -- but the making of industrial respirators and masks is a low-margin line of business, and companies that invest heavily in the business may simply be buying themselves legal risk. And now comes the scare over avian flu:

Respirator manufacturers are still going strong overseas, but the U.S. could find itself unable to purchase these products in a crisis. Worried about a possible flu pandemic, many governments are snapping up masks; France is acquiring 685 million. In previous disease scares (say, China and SARS), countries have blocked mask exports. Local U.S. governments and hospitals are already having a hard time finding supplies.

It might be added that the plight of respirator makers is attributable in large part to the economics of what has been called the shotgun approach to defendant-naming. It is very unlikely that lawyers would have filed 300,000 claims against mask makers, or anything approaching that number, if each suit had to be filed as a freestanding matter. However, it costs very little to add 3M or another respirator defendant when a case is already been judged to be worth filing against other, more vulnerable defendants. For more on the mask litigation, see Sept. 15, 2004 and Jan. 22, 2005. More: Point of Law, May 9.

The Bush Administration recently issued regulations that tighten the definition of what must be preached in federally funded "abstinence education" school programs. At Volokh Conspiracy, Dale Carpenter relays some thoughts I had about the process by which "abstinence" has turned out to mean "Biblical sex only". Others picking up the story include Glenn Reynolds, Mark Kleiman, and Kevin Drum, while Three Years of Hell thinks the assumptions I find objectionable have been implicit in the program since it began (with the assent of Bill Clinton, of all people) in 1996. Planned Parenthood and ThinkProgress have more on the regulation changes.

P.S. Most important, of course, is Prof. Carpenter's description of me as someone "who runs a terrific website about litigation abuse".

One tribute band consisting of, er, miniature performers of KISS songs and routines has sent a cease-and-desist letter to another such tribute band. (Robert W. Welkos, "Rival bands clash over little-person KISS tribute", LA Times, Apr. 11).

...is that Congress decided not to take action to protect MTBE producers from junk-science lawsuits. So "MTBE makers are leaving the market in a rush," and now the East Coast is facing shortages. Alas, the Republicans, rather than point out this economic reality, and take steps to solve the problem, have decided to jump on the bogus "price-gouging" populist bandwagon. (Wall Street Journal op-ed, Apr. 25). We noted the problem of plaintiffs' lawyers suing oil companies for complying with a Congressional environmental mandate back in 2003.

The Council for American-Islamic Relations (CAIR) has settled its Canadian lawsuit against the Web site Anti-Cair-net.org, the Canadian terrorism expert David Harris, writer David Frum, and the National Post. The settlement is secret, but there was no retraction of the claim that CAIR is a "terrorist-supporting front organization . . .founded by Hamas supporters" that aims "to make radical Islam the dominant religion in the United States." David Frum has details in the April 25 National Post, and expresses optimism that free criticism of terrorism supporters can now take place.

Update: As Bob B points out in the comments, elsewhere in the blogsphere, Israpundit, LGF, and Powerline. Daniel Pipes also writes with extensive detail. It reasonably appears CAIR dropped the suit, to avoid submitting to discovery: an important lesson for every libel plaintiff. Three cheers for Greenberg Traurig LLP, which did pro bono work that was actually pro bono.

Martin Grace and I have written a Liability Outlook for AEI looking at the last several years of CJD/AIR studies on medical malpractice. The conclusion? "In many ways, the problem with AIR’s reports is a perfect microcosm of what doctors find most distasteful about the liability system: a trial-lawyer mentality that cherry-picks facts and twists data to reach knee-jerk conclusions under the guise of a false science." See also Jim Copland's dissection of one such study at Point of Law on Jul. 8.

We look forward to Kevin Drum giving this paper the same deference he credulously gave AIR's last bogus report.

One flaw of the paper is that we didn't include the story of "Bob," the dummy literally used to scapegoat insurance-company executives by CJD at an ATLA conference. For other CJD shenanigans, see Dec. 23, 2004 and Mar. 19, 2004. (Cross-posted at Point of Law.)

If there is anything behind that sunscreen class action seeking damages because sunscreen manufacturers comply with warning label regulations, it's because the FDA refuses to approve Mexoryl, a sunscreen ingredient widely used in Canada and Europe that protects against UV-A rays. (Mike Thomas, "Not legal -- but best thing under the sun", Orlando Sentinel, Apr. 23).

We've previously commented on how Florida courts' interpretation of "false light" doctrine permits attorneys to litigate against newspapers for truthful reporting. The Florida legislature is considering closing the court-created loophole; the Orlando Sentinel thinks it can't come soon enough.

Also commenting on the Ninth Circuit's latest foray into questionable social policy-making: Howard Bashman and Jack Dunphy.

I'm moderating a panel with this title Monday afternoon at 3 at AEI.

The U.S. Senate has announced that it will be debating new legislation to reform America’s medical malpractice law in early May. Is the Senate likely to pass useful reforms? What types of reform should they consider? What is the appropriate role of the federal government in addressing the issue and what are the potential conflicts between the federal government and the states?

At this AEI event, a distinguished group of panelists will discuss the questions surrounding federal medical malpractice reform. The panel will include Michael S. Greve, the John G. Searle Scholar at AEI and director of the institute’s Federalism Project; George L. Priest, the John M. Olin Professor of Law and Economics at Yale Law School; and Dr. Stuart Weinstein, the current chairman of Doctors for Medical Liability Reform and the Ignacio V. Ponseti Professor of Orthopaedic Surgery at the University of Iowa.

Admission is free.

That's what overwhelming evidence seems to suggest, I write in Point of Law. I ask: does anyone want to claim that the Garza case was an example of the jury system working well?

Also there: Michael Krauss and I criticize the Ninth Circuit's command to Los Angeles that the Eighth Amendment prohibits them from arresting homeless people in Skid Row for their conduct; why you can't believe everything you quoted from plaintiffs' lawyers in the press; Maryland lead paint legislation; and who really outspends whom in ballot battles.

Ben Jacobsen, a model railroad hobbyist, wrote open-source software to allow one to connect a computer to their model railroad and control trains with it. KAM Industries, which makes commercial software to do the same thing, has been having their lawyers send him scare letters, including a bill for $203,000 for a license, and filing an FOIA request with his academic sponsor. Jacobsen believes the patent is invalid, and claims to have made his software publicly available before KAM filed for the patent in 2002. (Lenford blog; Jacobsen correspondence).

Roberto Martinez was washing Lori Hamby's used 1991 Dodge Caravan while Hamby's two-year-old daughter, Mary Madison Hamby Garcia, was playing inside of the vehicle by herself. The van was parked on top of a long driveway and the emergency brakes off. The key in the ignition in the "on" position so he could play the radio; the doors were open so he could vacuum the vehicle. Martinez was retrieving Windex fifteen feet away when Hamby apparently dislodged the automatic transmission from park. With the ignition key-lock the disabled, the vehicle hurtled down the driveway, killing Hamby when it struck a tree, jarring her from the vehicle, and pinning her beneath the tire, where she died of asphyxiation compression.

This is, an Atlanta jury held, 51% Chrysler's fault. The theory on which the jury ruled in favor of the plaintiff is on the theory that Chrysler failed to adequately warn of the risk of leaving children unattended in vehicles with the key in the ignition—even though Hamby's mother, Lori Hamby, only "glanced" through the owner's manual, which did warn against it. Madison Hamby, who was dead on the scene, was awarded $2.25 million for pain and suffering on top of the $2.25 million for wrongful death. The jury ruled for Chrysler on the funeral expenses, however. Chrysler is appealing. (Greg Land, "DaimlerChrysler to Appeal $3.4M Awarded in Minivan Accident", Fulton County Daily Report, Mar. 6 (via Prince); DeeAnn Durbin, "DaimlerChrysler ordered to pay family in minivan lawsuit", AP/Detroit News, Mar. 3; Hamby v. DaimlerChrysler, No. 1:03CV:0937-CAP (N.D. Ga.)).

We've been covering the case with disbelief since 2004 (see Feb. 15 and links therein). Hooray for common sense.

David Bernstein or Eugene Volokh will no doubt have apt commentary at Volokh's blog. (Update: Advantage Bernstein!)

Lyle v. Warner Brothers Television Productions:

"Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the [California Fair Employment and Housing Act]."

I'll be away on family business for a few days, leaving the site in Ted's capable hands. See you sometime next week.

David Glenn, in the Chronicle of Higher Education, has the definitive MSM reporting on the affair. (Permanent link here after Apr. 24.) He finds a mixture of scholars who agree and disagree with Lott on the "replicate" question. And, most notably, he does the first incisive investigation into the "peer-refereed" claim in the second count of the complaint—and makes it seem that Lott might not win that dollar after all. To top it all of it, he's found a prescient quote from the now-late Otis Dudley Duncan:

"There is no excuse," he wrote, "for continuing the practice of labeling critics or defenders of Lott's work with offensive epithets and imputing motives to them. This kind of rhetoric simply obscures or distorts the plain evidence of the public record. Maybe it would help if all parties would imagine themselves in a court, serving as witnesses or attorneys. They would quickly be called down for any ad hominem remarks."

Separately, Tim Lambert recaps my previous post. See if you can spot the subtle differences.

A commenter writes: "In the context of refereed economics journals, 'replicate' has one meaning only: The use of an author's data and model to ensure that falsification of findings is not an issue." Is this so? Here are some more data points, emphasis added in each case:

And wins.

Tatyana McFadden, 16, a sophomore at Atholton High School in Columbia, will be allowed on the track at the same time as the other competitors but will be scored separately under a preliminary injunction granted yesterday in Baltimore by U.S. District Court Judge Andre M. Davis.

...if they draw any adverse inferences just because she gave testimony under a grant of immunity from prosecution. (Eugene Volokh, Apr. 19).

Among the other things wrong with it, Mike Cernovich observes, it's really expensive (Apr. 18)(more).

Delaware Chancery Court Judge Vice Chancellor Leo Strine, a prominent figure in corporate law, recently was asked to rule on a petition for fees for lawyers who represented a minority shareholder in litigation involving fallen mogul Conrad Black's Hollinger International. Per the WSJ:

"I feel queasy a lot of the times when I examine applications for attorneys' fees," the judge told lawyers in court. "But I have to get right in there, take my Maalox, ignore the vile smell."

All of which was by way of paying a left-handed compliment to the fee petition before him, which by contrast in Strine's view had the earmarks of legitimacy. (It was filed by minority shareholder Tweedy Browne Co. and its lawyers, Kirby McInerney & Squire and Bouchard, Margules & Friedlander).

The current case, he added, is different. It "isn't even close to having an aroma that makes me queasy."

(Elena Cherney, "When Investors Help Find Fraud, What's It Worth?", Wall Street Journal, Mar. 17)(sub).

But somehow, "the food industry" doesn't sound quite as evil as "the tobacco industry." Something about food -- the fact that it keeps us alive, perhaps -- makes its purveyors hard to hate. For that matter, the rationale for recent bans on smoking is the injustice of secondhand smoke, and there's no such thing as secondhand obesity. ...

These obstacles don't make the assault on junk food futile. But they do clarify how it will unfold. It will rely on three arguments: First, we should protect kids. Second, fat people are burdening the rest of us. Third, junk food isn't really food....

A fact sheet from [Iowa Sen. Tom] Harkin implies that schools should treat milk, French fries, and pizza like soda, jelly beans, and gum.

(William Saletan, "Junk-Food Jihad", Slate, Apr. 15).

Following the revelation that author James Frey presented fantasies as if they were autobiographical fact, enough outraged readers have stepped forward to demand cash damages -- or at least enough class action lawyers have simulated the stepping forward of such outraged readers -- that defendants Random House and Doubleday are now seeking the consolidation of no fewer than twelve lawsuits filed around the country. The federal Judicial Panel on Multidistrict Litigation will soon consider (PDF, scroll to p. 11) the publishers' motion to aggregate into one proceeding suits filed in the Southern District of New York, Northern District of Illinois, Western District of Washington, Eastern District of Michigan, Central District of California, and Southern District of Ohio (via Childs). For Ted's extensive coverage of the Frey scandal and suits, see Jan. 31 and links from there.

In California, nine-year old Shea O'Gorman wrote a letter to Apple CEO Steve Jobs suggesting changes that she thought might improve the iPod. The letter she got back from an Apple senior counsel, advising her of the company's policy against considering unsolicited ideas, was brusque enough to reduce her to tears. Following bad publicity, Apple apologized to Miss O'Gorman and says it is revising its policies on communicating with children. The policy against considering unsolicited ideas, of course, "is designed to protect Apple from future patent lawsuits should submitted ideas ever be used." ("Apple legal makes little girl sob", MacWorld UK, Apr. 17).

I appear to have been too generous to Lott's complaint when I first criticized it. William Ford, a Bigelow teacher at University of Chicago Law, has posted a devastating two-part analysis (via Wright) of the main count of Lott's complaint. In the first part, he shows that "replication" does not have the "clear and unambiguous" meaning ascribed to it; in the second, he finds examples of Lott himself using "replicate" in meanings other than the definition in his complaint. Lott critic-in-chief Tim Lambert finds some more examples of the use of "replicate" that appear to exonerate Levitt's phrasing—though Lambert fudges the National Academy of Science report, which says something rather different about replicating Lott's results than what Levitt said in Freakonomics.

The case won't necessarily get thrown out of court; Lott still has the second count, an errant e-mail sent by Levitt to a Texas economist accusing Lott of buying articles. But unless he can demonstrate that Levitt repeated that accusation in more than a stray e-mail, or was making other libelous allegations, potential damages look nominal for that count: the big-money claim is in the first count.

In a nationally-publicized case, an argument over a Detroit pool game resulted in one of the players pulling a gun and shooting the other in the head; Keith Bender Jr. died of his injuries a week later. Unfortunately for the shooter, Bender was a cousin of the bar's bouncer, Mario Etheridge, who pulled his own gun, and shot the shooter three times, allegedly in an attempt to protect his cousin's life. The shooter, rap star "Proof," known best for being the friend of a more famous rap star, litigation-victim Eminem, was dead on arrival at the hospital. Prosecutors have not decided whether to charge Etheridge with murder, since Michigan law allows deadly force in the defense of another. But they have charged Etheridge with a felony count of "discharging a firearm inside a building." (Josh Grossberg, "Alleged Proof Victim Dies", E!Online, Apr. 18).

This isn't the first time the Tonight Show's "Headlines" feature, in which Leno uses real-life news photos as the basis for wisecracks and ridicule, has landed the network and comedian in court. However, a defense lawyer predicts the suit will go nowhere because the audience understood the material to be comedy. (Pam Smith, "Comedian Leno Sued for 'Sperm Donor' Joke", The Recorder, Apr. 12). More "Tonight Show" litigation: Dec. 7, 1999 (flying t-shirt). (Update Jul. 9: court says it will dismiss suit).

...is to punish its victims. Warren Meyer explains at CoyoteBlog (Apr. 11).

More: Dave Zincavage (Apr. 18) takes note of a somewhat similar case: New York City now imposes liability on property owners over the vandalizing of their buildings by graffiti.

How unprincipled can one party get? (George Will, "The GOP's Betrayal on Speech", syndicated/Washington Post, Apr. 16)(via Coyote).

The West Virginia Trial Lawyers Association says it will file a Federal Communications Commission complaint unless radio stations yank ads from the U.S. Chamber of Commerce which compare injury lawyers to crocodiles and cite the widely circulated (but trial-lawyer-loathed) Tillinghast studies on the cost of the liability insurance system. (Jake Stump, "Trial lawyers want radio ads pulled", Charleston Daily Mail, Apr. 6). Carolyn Elefant, Mike Cernovich and Prof. Childs comment. More watch-what-you-say-about-lawyers stories: Jan. 13, 2005, Dec. 23, 2004, and links from there.

VH1, the cable entertainment channel known for its music videos, is running a feature news special on the problem of shakedowns and borderline-to-real extortion aimed at Hollywood celebrities. The channel interviewed me on camera to talk about some of the ways law can be used both as a remedy for shakedowns and as, itself, a weapon in the hands of the would-be shakedown practitioner. Producer Robin Edgerton tells me that several bits of the interview wound up making it into the finished program. It's scheduled to air this evening under the title "VH1 News Presents -- Hollywood Blackmail".

Illinois: "The mother of a Granville man who shot himself last year at the Spring Valley Jail has filed a wrongful death suit against the city, the police chief and a former police officer." Robert "Steve" McFadin, placed in a holding cell after being charged with violating an order of protection against his estranged wife, wrested away the gun of former Spring Valley police officer Thomas Quartucci and beat him. When Quartucci fled the cell, McFadin used the gun to shoot himself. Quartucci, who was admitted to intensive care after the beating and remained on workers' comp until retirement, is among the defendants in the suit, which "was filed on [Lori] Hafley's behalf by Miskell Law Center of Ottawa and the Berkland Law Office of Marseilles. The suit alleges Quartucci violated procedure when he did not secure his loaded weapon before entering the cell. The suit also alleges actions taken by the officers at Spring Valley led to McFadin's death." (Erinn Deshinsky, "Mother of suicide victim sues police", Peoria Journal-Star, Apr. 7). The suit seeks $15 million (John Thompson, "Mother sues Spring Valley, police", La Salle News Tribune, Apr. 5; Dan Churney, "Police officers named in suicide suit", Ottawa Times, Apr. 13).

The city of Cincinnati has reached a $6.5 million settlement with the family of Roger Owensby Jr., who died in police custody, but the money is mostly going to ... well, go ahead and guess. "If approved in federal and probate courts, the settlement would leave the family with $2.4 million and the family's attorneys with $4.1 million." Owensby's father says he doesn't mind, but not everyone regards the division of spoils in the case as benign. "Some members of City Council, which has approved the settlement, said they might not have agreed had they known lawyers would pocket more money than Owensby's family." (Dan Horn and Dan Klepal, "Owensby lawyers take $4.1 million", Cincinnati Enquirer, Apr. 13). "It was originally reported that about two-thirds of the money would go to the family." ("Most Of Roger Owensby Jr. Settlement Will Go To Attorneys", WKRC, Apr. 12).

Updating our Nov. 23, 2003 item: By an 8-1 margin, the Washington Supreme Court "has swept aside an $8.3 million civil judgment against the state for the vicious beating in 1999 of a Somali refugee by a group of teenagers living in a West Seattle foster home." The court ruled that while a state agency overseeing foster care is under a legal duty to protect children placed in care, it does not have a duty to safeguard members of the general public from the children. (Peter Lewis, "Court says state isn't liable for crimes by foster kids", Seattle Times, Feb. 17; decision/ concurrence/ dissent in Said Aba Sheikh v. Kevin S. Choe et al; video of oral argument on TVW).

In a December piece for the WSJ I wrote critically about the way earlier court decisions in Washington state have left the state's taxpayers unusually exposed to damage claims over crimes that the state should allegedly have done more to prevent. The new decision may indicate (or so we can hope, anyway) that the state's high court is increasingly aware of the downside of such wide-open liability.

By reader acclaim: "An FBI agent who pleaded guilty to drunken driving has sued the maker of his pickup because it caught fire after he passed out behind the wheel. Robert Clymer, who was involved in a high-profile investigation of the Crazy Horse Too strip club, had a blood-alcohol content of 0.306 percent, nearly four times the current legal limit, and was unconscious when Las Vegas firefighters pulled him from his burning truck on Jan. 29, 2005." The lawsuit, against General Motors and dealership Bill Heard Chevrolet, says Clymer "somehow lost consciousness" -- possibly the empty bottle of Captain Morgan Rum found on the passenger seat had something to do with that? -- and that while he lay there with the engine running the 2004 Chevy Silverado "somehow" began to give off smoke from some sort of combustion, which may or may not be code for "theory to be filled in later".

At sentencing in November -- he drew a suspended 30-day jail term and 48 hours community service -- "Clymer's lawyer said his client wanted to take responsibility for his actions." (Brian Haynes, Las Vegas Review-Journal, Apr. 14).

The phenomenally litigious populist-conservative figure (see Jul. 24, 2005 and Apr. 16-17, 2002) has parted ways with his old organization, Judicial Watch. Litigation has, of course, ensued (Jerry Seper, "Judicial Watch ex-head sues over 'power grab'", Washington Times, Apr. 14).

Overlawyered favorite Jack Thompson has followed through his threat to sue the Florida Bar for daring to investigate him for ethical violations. He also complained to the interim U.S. Attorney, who punted to the FBI, which will likely give the complaint the sound ignoring it deserves. The Daily Business Review story for some reason refers to the Alabama suit against video game "Grand Theft Auto," which we had previously reported Jack Thompson had quit. (Carl Jones, "Anti-Porn Crusader Sues Over Bar Probe", Daily Business Review, Apr. 14).

Holiday reading dept.: did you know that Overlawyered has a "General Links" page with a whole second blogroll, as well as links to some older features of the site that are no longer being built up, our Amazon Honor System page where you can donate to us, and much more? Check it out.

Two readers have written in to call attention to the terms of a settlement by Western Digital of a class action over the disparity between the announced size of its hard drives and the amount that is usable (settlement notice/FAQs). Reader Bill Evans says the settlement will "affect only aftermarket drives, class members to get $7.50 for each drive and will be able to download backup software. Lawyers get $485,000 plus $15,000 for expenses."

Reader Mickey Ferguson writes:

Some months ago I bought a Western Digital hard drive. I now see that a class action suit was brought against WD, claiming that they misrepresented their drive capacities. What was the remedy? They offered me software – EMC Dantz Retrospect Express version 7.0 for Windows users and version 6.1 for Mac users – for which I have no use or interest. I have much better backup software that I've already purchased. Plus, it has been reported in various locations on the network to be incompatible with Microsoft Windows .NET 2.0 framework, a common component in many recent software programs.

There are no other remedies. Either I take the software, which has very little commercial value and none to me personally, or I write a letter to the court, voicing my concerns above, that will immediately be trampled by both plaintiff and defense attorneys, who both want the settlement to go through because the settlement essentially costs WD very little (useless software that they OEM anyway), and the plaintiff attorneys get their percentage of the settlement. As usual, the plaintiff attorneys make huge sums of money, and the actual victims get nothing of any particular value.

P.S. Just to be clear, I don't feel like I've been harmed in any way, nor do I feel entitled to any settlement. I knew ahead of time exactly the game they play. All drive manufacturers have played the game, and this is just a way for an attorney to make a lot of money over nothing. If it were my preference, I'd rather the judge throw the entire suit out and sanction the lawyers for a frivolous lawsuit, but I know that would never happen, and frankly, there are some people out there who don't know the difference between 1 GB and 1 billion bytes, to whom there is a claim of (very slight) harm.

Update: Jul. 3.

Tribal land claims are getting to be big business (see Jan. 12, etc.), and prominent law firms including Philadelphia's Cozen O'Connor and Roseland, N.J.'s Lowenstein Sandler are among those lining up to assist Indian tribes (and their wealthy non-Indian backers) in filing lawsuits against hapless landowners as leverage for casino schemes. And here's a choice quote from Robert Odawi Porter, director of the Syracuse University Center for Indigenous Law, Governance and Citizenship:

In cases where land-claim suits are funded by outsiders, the tribe is usually a passive participant in the litigation, says Porter. Such arrangements are permitted under the Indian Gaming Regulatory Act of 1988, which gives states authority to negotiate revenue-sharing agreements with tribal casinos.

"Everything is dictated by the developer -- I call it the 'sit back and take a check approach,'" Porter says.

(Charles Toutant, New Jersey Law Journal/Law.com, Mar. 20).

Also, updates: in late 2004 a federal court granted defendants' motion to dismiss the Delaware Indians' claim to land in the Allentown, Pa. area (Northampton County) including Binney & Smith's Crayola factory (PDF, at Indianz.com)(see Feb. 9, 2004). And, alas, none other than the Bush Justice Department has weighed in with a petition for certiorari urging the Supreme Court to overturn a Second Circuit panel's landmark ruling (see Jul. 29, 2005) which threw out the Cayugas' lawsuit as not pressed in a timely enough way, a ruling which (if it stands) would cast doubt on the validity of of most of the new wave of Indian land litigation.

Lee Paige, ladies and gentlemen, your DEA agent of the year. (via C & F)

Details at Point of Law.

A Florida federal court has ruled that it's not protected speech under religious discrimination law, according to Lou Michels at Suits in the Workplace (Apr. 5; West v. Shands Hospital & Clinics, Inc., N.D. Fla.) From Michels's summary of the case:

The plaintiff, who had many difficulties with her supervisor, began telling her coworkers that the supervisor's stroke was a sign of God's "wrath" and an indication of Divine judgment. When the supervisor died, the employee noted that God's vengeance was served and "victory is mine" to her coworkers. Her activities caused a major disruption in the office, with some shocked employees unable to work as a result of the Plaintiff's celebration. The plaintiff was subsequently terminated for her conduct, and sued the hospital for race and religious discrimination under Title VII.

The Council of Fashion Designers of America is pushing legislation slated for introduction by Rep. Robert Goodlatte (R-Va.) that would allow fashion innovators to sue competitors who knock off their distinctive look (as distinct from passing off goods under a false trademark, which is already uncontroversially actionable). What next -- copyright protection for novel hairstyles? Julian Sanchez at Reason "Hit and Run" comments (Mar. 30; Eric Wilson, "O.K., Knockoffs, This Is War", New York Times, Mar. 30). See Feb. 27.

is Amber Taylor's reaction to Professor Catharine MacKinnon's boast that she obtained a civil injunction against Radovan Karadzic prohibiting him from engaging in genocide.

We're from the government, and we've come for your teeth. (Baylen Linnekin, Apr. 7; via Balko). P.S. Commenter Deoxy notes that the prosecutors erroneously thought the dental jewelry in question was removable, which means the episode is not as egregious as might appear on a quick reading -- but see Mike's follow-on comment.

If you're a judge who sentences violators to attend traffic school, don't take kickbacks from the traffic school operators. Former Roane County, Tennessee Judge Thomas Austin has now pleaded guilty to three federal charges arising from allegations of that sort. Sentencing is expected in August (WVLT, Mar. 29).

...and get in serious trouble with the 12,000-volt catenary wires atop them. Now a Pennsylvania federal judge has ruled that the resulting suit against Amtrak can go forward, including a claim for punitive damages -- the doctrine of "attractive nuisance" applies, it seems, because the kids were after all legal infants. (Shannon P. Duffy, "17-Year-Old Trespassers May Use Attractive Nuisance Argument", Legal Intelligencer, Apr. 11)(via Childs who got it from WSJ law blog).

"Two predominantly black school districts are suing over the breakup of a suburban Chicago athletic league, saying racism led more than two dozen high schools to pull out and create their own, predominantly white leagues." But an "attorney for several of the school districts leaving [the South Inter-Conference Association] said any charge that the breakup was racially motivated is 'utter nonsense.' He said the move was based on geography and school rivalries and had been discussed for several years. ... 'We are being deprived the opportunity to compete against other children and other different ethnicities,' said Thornwood High School student Constance Stanley, who said her suburban Chicago speech team won't have the same breadth of competition now." (Mike Colias, AP/Washington Post, Apr. 21).

Not the soundest means of establishing academic credibility or resolving academic disagreements. (Michael Higgins, "Best-seller leads scholar to file lawsuit", Chicago Tribune, Apr. 11) (h/t Slim). (Full disclosure: Lott was a former colleague of mine at AEI, and once gave me a ride home.)

Update, via Bill Barth, here is the registration-free Bloomberg account by Kevin Orland. The case is Lott v. Levitt, 06-CV-2007 (N.D. Ill.) (Castillo, J.).

Second update: we have a copy of the complaint. See after the jump.

Once again, attorneys upset that their profession is held up to ridicule would have much less of a problem if attorneys were more concerned about the behavior that led to the ridicule than about the ridicule itself. Evan Schaeffer reraises the issue of the ILR billboard, and posts the first photo of the campaign. Here's the full text:

Please Don't Feed
The Trial Lawyers

Lawsuit Abuse Hurts Illinois. Support Legal Reform.

www.instituteforlegalreform.org

Entertainingly enough, the billboard (previously described as insulting) doesn't call lawyers names—it is simply based on the premise that the reader will already have a negative opinion of trial lawyers, which is hardly the fault of the ILR. The text of the billboard shows that Evan is mistaken when he accuses it of being aimed at juries: it is, rather, aimed at voters, as legal reform is an important election topic in 2006 judicial and legislative and gubernatorial elections, and the trial lawyers have their own campaign designed to get supporters of the litigation lobby in office and on the bench. (Evan may be correct that the billboard is "ugly and obnoxious," though I can't recall ever seeing a billboard that wasn't.) Evan also has some snide remarks about the quality and intelligence of comments supposedly left by Overlawyered readers, so if you do visit Evan's site, please be polite, even though the plaintiffs' lawyers who comment there may be rude to you personally.

Anyone interested in the ethical, practical and philosophical case for and against the lawyers' contingency fee (or contingent fee; usage varies) should be sure to check out two new resources:

* At Point of Law, the new Featured Discussion just underway pits George Mason lawprof Alex Tabarrok, who's generally supportive of contingency fees, against Jim Copland of the Manhattan Institute, who's critical;

* David Giacalone, who has written extensively on the problems inherent in protecting clients from overreaching by their lawyers, has now posted a four-part series (one, two, three, four) laying out his views on the pluses and minuses of the contingency fee more systematically than his blog posts have done up to now.

For my own views, see Chapter Two of my 1991 book The Litigation Explosion, which Point of Law has posted in PDF format.

We normally see Starbucks in this space when they're being sued over hot coffee, much like the infamous McDonald's coffee case.

A Tulsa, Oklahoma, coffeeshop, Doubleshot Coffee, however, has received a scary-lawyer letter from Starbucks, claiming that Starbucks has an exclusive right to use the term "double shot" in relation to coffee. The proprietor writes in his blog (via Romenesko):

So today, as a legal clarification, I would like everyone to know that we are not Starbuck's Doubleshot. If we tricked you into coming in here, thinking you could get a can of Starbuck's DoubleShot here, please let me know. And if you thought that $2 Tuesday was a sale on Starbuck's Doubleshot, I vehemently apologize for the confusion and ask you to please not come in here anymore because stupid people annoy me.

According to the Washington Post, "The U.S. Treasury's Office of Foreign Assets Control maintains its 'Specially Designated Nationals and Blocked Persons List' to be easily accessible on its public Web site." It is a list of foreign persons and entities suspected of certain terrorist or criminal activities and associations. Per federal law, American businesses are forbidden to engage in transactions with those listed, on pain of "harsh penalties that include 30 years in jail and fines up to $10 million against corporations, and $5 million against individuals, and civil penalties of up to $1 million per incident".

Although the main regulatory impact of the law appears to have fallen on financial institutions and on big-ticket retailers such as auto dealers, per Maryland attorney Thomas B. Hudson of Hudson Cook LLP, the law's regulatory reach is wider than one might think, because it "prohibits anyone, not just car dealers, from doing business with" those on the list, so that selling a newspaper, or a bottle of soda pop, or a shoeshine, to one of the malefactors, is equally unlawful. Purveyors of all these goods and services are apparently expected to get their customers' names, and check them against the list, before doing business if they really want to feel secure they're not breaking the law (Don Oldenburg, "Hit-and-Miss List: If You're in This Directory, Forget Shopping", Washington Post, Apr. 9). For more on the weird implications of the concept I once dubbed "merchandise laundering", see my Reason piece of March 1999.

Frank Turner, a 5 p.m. anchor for WXYZ-TV in Detroit, has filed an Equal Employment Opportunity Commission complaint against his employer "for refusing him permission to host an evangelical radio program in his spare time," thus violating his right to religious accommodation. The station disagrees:

Station officials, while not wanting to comment on Turner's case directly, say they have exclusive contracts with their on-air talent and never allow anchors or others to work on competing broadcast outlets.

"We spend millions of dollars a year promoting our on-air talent and we want to have them working exclusively for Channel 7," said Grace Gilchrist, the station's vice president and general manager.

(Paul Egan, "TV anchor's choice: God or Ch. 7 job", Detroit News, Mar. 31)(via Romenesko).

[Joe] Escalante, a devout Catholic who says he is no fan of p0rn, knew going in that his show's name, "Barely Legal Radio," might run into some copyright issues with Flynt's Barely Legal brand of adult magazines and videos. But Flynt did not challenge the show's application for a trademark.

"I heard from some people inside that [Flynt] didn't think there was any confusion," Escalante says. "If this is true, he's the only guy I've ever heard of whose response is 'Why would I sue these people?' That sort of makes him a hero of the 'Barely Legal' show. You never hear something like that. In this town? Usually you'd at least get a letter."

Businesspeople in rural Alpine, Calif., are trying to organize for self-protection against San Diego County attorney Theodore Pinnock, who's filed at least thirty disabled-rights complaints against enterprises in the town. "Last year, he sent 67 letters to businesses in the historic town of Julian, alleging violations of ADA accessibility requirements. At that time, he demanded between $2,500 and $4,000 in attorneys fees from each of the businesses." (Jennifer Morse Roback, "Standing up to the disability police", syndicated/TownHall.com, Apr. 10). More on California ADA filing mills: Mar. 18, May 31, and Jul. 12, 2005, among many others.

My humble thanks to Walter and Ted for giving me the opportunity to contribute to Overlawyered. It was a pleasure and an honor. I shall now return to my role as regular reader and commenter under the blogonym Wavemaker.

The L.A. Times tackles a subject often treated in this space (Nov. 29, etc.): organized auto-crash fraud, which is largely premised on the chance of bringing bogus liability claims. According to the National Insurance Crime Bureau, Los Angeles is second only to Miami in the volume of such fraud. "Some organized auto fraud rings are so complex they involve hundreds of willing participants, including unscrupulous lawyers, doctors, chiropractors, auto shops, tow truck operators, ambulance drivers, police officers and insurance company employees, according to NICB investigations." (Jeanne Wright, L.A. Times, Mar. 29).

Republicans and Democrats come and go in the U.S. Department of Justice, but "disparate-impact" theory remains alive and well, as in the case of a new consent decree summarized by a correspondent of NRO's John Derbyshire (Apr. 4):

"In February, the Justice Department sent a letter to Virginia Beach, concluding that the Beach Police Department has 'engaged in a pattern or practice of discrimination' against black and Hispanics applicants.

"The only evidence cited were results of a math exam given to all police recruits. It showed a wide gap between the passing rates for white applicants and the passing rates for black and Hispanics.

"About 85 percent of white applicants passed the math test from 2002 to mid-2005, compared with 59 percent of blacks and 66 percent of Hispanics."

More details from the article in question (Duane Bourne, "Virginia Beach agrees to change the way it scores police math exams", The Virginian-Pilot, Apr. 3):

The Justice Department questioned whether math is relevant to the daily duties of a police officer. The city agreed to eliminate the 70 percent cutoff score for the math part of the test....

At least one city official, Councilwoman Reba McClanan, said she does not agree with the settlement.

“One of the things that’s insulting about it is they’re telling us we don’t have a right to insist on certain standards,” McClanan said. “My feeling was we should hang in there. We want fairness and we want as many minorities working for our departments as possible, but we also want them to meet certain standards.”
...

The city will also pay up to $160,000 to applicants who flunked the old standards.

P.S. At Workplace ProfBlog, Paul Secunda spells out something left implicit in the above summary: the Justice Department's actions are a fairly straightforward application of the current state of "disparate-impact" law; if you see nothing amiss with the present state of that branch of the law, you may see nothing amiss with the outcome (Apr. 10).

Stacy Dow, of Perth, Scotland, is suing a hospital over the birth of her healthy daughter Jayde. Dow had been given an abortion at her request but unbeknownst to both her and the doctors she had been pregnant with twins, one of whom remained unharmed after the procedure. Dow told a court she suffered physical pain, distress and anxiety from the resulting pregnancy and Caesarean delivery; she also wants money for the cost of raising the girl to adulthood. (Sarah Womack, "Mother sues for birth of 'aborted' twin", Telegraph, Mar. 21)(via KevinMD). The New York Times Magazine caused a stir last month with an article about a family that sued doctors over failure to recommend amniocentesis whose results would have led them to decide to abort their handicapped child (Elizabeth Weil, "A Wrongful Birth?", Mar. 12). Ann Althouse notes an AP story reporting that there are waiting lists of parents interested in adopting Down's Syndrome children (Mar. 10). And in the Dec. 2004 Journal of Legal Education, Gonzaga lawprof David K. DeWolf relates an extraordinary story about what happened one year when he assigned his students the wrongful-birth/wrongful-life case of Harbeson v. Parke-Davis, decided by the Washington Supreme Court in 1983 (via Childs). More on wrongful-birth suits: Mar. 4, etc.

Dignity of the profession dept.: this YouTube video of the famed Texas lawyer and UT benefactor in action is making the rounds (warning: offensive everything). It's discussed by BrainWidth, Froomkin, Childs, Hurt, Kirkendall, Caron, Metafilter, etc. One of those present The man in the chair is named Edward Carstarphen. [note: a commenter says we erred in initially reporting that Carstarphen was the witness being deposed; see also David Stone, Apr. 11]. For more on Mr. Jamail's record as a paladin of civility, see Apr. 19, 2000 ("gag a maggot off a meat wagon"). Update: link changed to working YouTube location, see Jan. 9, 2007.

On last Sunday's episode of the popular HBO show, a commercial for Boston-based James Sokolove, known for his ubiquitous sue-'em-now ad campaigns, could be heard playing on James Gandolfini's television set. Was it a deliberate product placement? (Carol Beggy & Mark Shanahan, "Fenway plans fail to materialize", Boston Globe, Apr. 4) (via Schaeffer).

I've long said that attorneys upset that their profession is held up to ridicule would have much less of a problem if attorneys were more concerned about the behavior that led to the ridicule than about the ridicule itself. A young attorney guest-anony-blogging on Evan Schaeffer's blog provides a sterling example of such misdirected outrage, in this case, at a recent Institute for Legal Reform advertising campaign. Bonus sophistry: the author defines "frivolous lawsuit" to exclude the vast majority of problematic lawsuits that reformers are complaining about, and then happily concludes that there isn't a problem with lawsuit abuse because there are already mechanisms for dealing with the narrowly circumscribed category of suits.

Bonus made-up medical-malpractice statistic unburdened by real data: "In states where the [medical] profession self-polices to a stricter degree, malpractice claims are far less frequent." There's no evidence that this is true; as Martin Grace noted a year ago, malpractice litigation is sufficiently random that previous claim history does little to predict future claim history. See also POL Jan. 6, 2005.

(Of course, if lawyers really believed that the problem with malpractice insurance rates was that the doctors weren't self-policing, there is an easy solution that would end high insurance rates, make lawyers a huge profit, and end any pressure for liability reform. The only reason we don't see the solution is because the lawyers know better than to put their money where their mouth is.)

Law prof Kris W. Kobach, former advisor to the Attorney General on immigration issues, finds some of the more hideous provisions of the current immigration bill.

Like that surprise hidden on page 302 - which would replace the country's entire bench of experienced immigration judges with pro-immigration advocates.

With a few exceptions, today's immigration judges (who serve for life) are dedicated to enforcing the law, and they do a difficult job well. This bill forces all immigration judges to step down after serving seven years - and restricts replacements to attorneys with at least five years' experience practicing immigration law.

Lawyers meeting that description, he notes, are not particularly inclined to enforce the law.

Eeek.

(Via Lucianne.com).

In the "Can't Do Anything Right" category, the New Orleans public school system was instructed to halt an internet auction of one of the infamous flooded school busses when it was discovered that the state School Board's authorization for the auction did not include the internet variety.The State board's lawyer discovered that although the board authorized an "auctioneer" to handle the sale, the system is bound by the state's definition of that term, which does not include Internet auction sites.

Bids had reached $6,700 for the soggy scrap metal, but were thrown out as re-authorization is sought.

Via Lucianne.com.( Times Picayune, Apr. 7)

The U. S. Justice Department is looking at possible new indictments in the kickback investigation of powerhouse plaintiff firm Milberg Weiss Bershad & Schulman. (Apr. 7)

Here's a telling sentence:

David Bershad, partner Steven Schulman (are) being looked at in connection with payments to Howard Vogel, a real estate broker and former lead plaintiff in several Milberg class actions.

Mr. Vogel must be prone to bad luck, eh?

The team of lawyers who recently won the largest-ever bad faith insurance verdict in Pennsylvania -- more than $7.9 million -- are asking U.S. District Judge Cynthia M. Rufe to make new law by awarding them $2.3 million in fees, the largest award of attorney fees that would ever have been granted in such a case.

The lawyers argue that the lodestar approach,under which their fee would be about $323,000, is flawed for two reasons: because the lawyers who bring such cases almost never bill for their work at an hourly rate, and their clients have most often agreed to a contingent fee in which the lawyers will be paid a set percentage of any verdict or settlement they win, usually one-third.

As a result, Tanner and Newman argue, the lodestar approach "unduly focuses the court's scrutiny on a fictional contrivance as opposed to an approach which accurately reflects the manner in which such cases are handled."

Of the $7.9m jury verdict, $6.25m is punitive damages, which, the defense argue, is a sufficient pot of money out of which the lawyers can extract their fees. (Law.com, Apr. 7)

For comprehensive coverage of this week's verdicts in lawsuits against Merck, see Point of Law. In particular, Ted corrects reporters who keep passing on ill-informed assertions that the Cona/McDarby results are going to preclude Merck from raising its earlier defenses in the thousands of Vioxx cases yet to come, and that that New Jersey cases are being heard in "Merck's home court".

Other things you've been missing if you don't check our sister site regularly:

* New regular contributors include Larry Ribstein (Ideoblog), Tom Kirkendall (Houston's Clear Thinkers), and Sam Munson (Manhattan Institute);

* Theodore Dalrymple on a new history of vaccine litigation;

* Jim Copland on Rep. Cynthia McKinney and a class action on behalf of Capitol police;

* Ted on the Supreme Court's recent Dabit decision on state-court securities suits (here and here); and on a new med-mal study;

* Michael Krauss on a tort suit in the U.S. against ExxonMobil over abuses by the Indonesian military;

* Jonathan B. Wilson on offer-of-judgment reform in Georgia (and more); and joint-and-several-liability reform in Pennsylvania, just vetoed by that state's Gov. Ed Rendell;

* Posts by me nominating an Arizona lawprof for "the worst and most tendentious analogy in the history of the liability debate"; on doctors' Good Samaritan liability; a ruling in the New York school finance case, an AG who dissents from his brethren on the tobacco deal; the Rhode Island lead paint verdict (here, here, etc.); Seventh Circuit judge Diane Sykes criticizes the Wisconsin Supreme Court; and lost-overtime suits on behalf of $400,000-a-year stockbrokers. And, of course, much much more -- bookmark the site today.

Continuing to mix my business with pleasure, I pass along this fine prose from Ballarin, Inc. v. Licensing Board of Boston, 49 Mass. App. Ct. 506 (2000):

For some diners, consuming an appetizer of duck liver pâté, rolled in pistachio, lingonberry coulis, served with garlic pita points, followed by an entrée of venison au poivre, finished with a dessert of chestnut mousse gateau, apricot glacé, is still more rapturous if preceded by a dry martini or ended with a cognac. To satisfy that want, Ballarin, Inc., which operates The Hungry I restaurant at 71 1/2 Charles Street at the foot of Beacon Hill in Boston, applied in 1995 to the licensing board for the city of Boston for a seven-day all-alcoholic beverages license....

...At what was to be a first hearing on Hungry I's application before the licensing board, proponents and opponents of the award of an all-alcoholic beverages license made known their views, by speech and writing. Among Hungry I's adherents were some abutters and many patrons, one of whom touted the salubrious tendency of a Bloody Mary to increase levels of good cholesterol. Those opposed mustered all the political artillery--the Beacon Hill Civic Association and elected public officials. The principal argument advanced against granting the application was "opening of the floodgates"; i.e., were Hungry I to receive an all-alcoholic beverages license, how could the licensing board say no to others? The neighborhood would go down the drain....

Foreigners to Massachusetts might get the impression that rhetorical flourish is a sine qua non of our judicial appointees. Would that it were the case.

The California legislature passed a law in 1998 barring the intentional transmission of HIV, and now the California Supreme Court is considering whether to create a new tort of negligent transmission of sexually transmitted diseases. The coverage of the oral argument in Bridget B. v. John B. makes it sound more like a legislative debate than a legal discussion, but only one justice is noted as commenting on that fact. (Mike McKee, "Calif. Supreme Court Sees Need for Disclosure of Sexual History", The Recorder, Apr. 6).

GruntDoc opens his mail to find one (Apr. 3).

“If you still think you would never confess to a crime you didn’t commit, listen to this.” Georgia Criminal Law Blog has a summary of the show (Mar. 31)(via Cernovich). Only seven states require that the full course of a police interrogation be taped in order to better evaluate the credibility of a confession; with the cost of such recording technology dropping ever closer to zero, it's hard to see the case against a full-taping policy.

Maybe because this time they're wrong. Actually, the Miami Herald's headline is misleading, since the bill has little or nothing to do with gun control as conventionally understood: it "would expose businesses to criminal penalties if they ban workers from having guns in their cars parked in employee lots." (Mary Ellen Klas, Miami Herald, Apr. 5).

In Australia, a professor faces punishment for politically unacceptable speech:

Academic Andrew Fraser will defy the Human Rights and Equal Opportunity Commission by not apologising to the Sudanese community for his study linking African refugees to high crime rates.
In a landmark ruling that raises fresh questions about the limits to which academics can engage in public debate, HREOC chairman John von Doussa has found Professor Fraser's comments were unlawful because they amounted to a "sweeping generalisation" that was not backed by research.

Professor Fraser was suspended last year from teaching at Sydney's Macquarie University over his comments about Sudanese refugees in Australia.

(Greg Roberts, "Academic still links Africans to crime", The Australian, Apr. 4)(via David Bernstein).

The previous post regarding California Judge Sill's memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.

Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).

It seems that Ms. Webster, a native of New England ("a fact of some consequence," noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes ("in chunks (also a fact of some consequence)," noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).

Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.

The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon's explanation that elevates the opinion to art form.

Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:

"No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code."

After noting the defendant's exhortation that "this court knows well that we are not talking of some insipid broth as is customarily served to convalescents" and quoting Daniel Webster's recipe for fish chowder in a footnote, the Court observed:

"It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds."

Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.

The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.

George Wallace at Declarations and Exclusions points us to a judge who is not afraid to call them as he sees them -- "them" in this case being the lawyers who mine California's over-reaching environmental law purely for profit. In rejecting plaintiffs' lawyer's application for $540,000 in legal fees for their effort, here is the judge's conclusion:

"Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight."

Much much more for your reading pleasure there.

Mother Jones provides an amusing roster of facts pertaining to the crazy world of intellectual property protection. Among my favorites:

AMONG THE 16,000 people thus far sued for sharing music files was a 65-year-old woman who, though she didn’t own downloading software, was accused of sharing 2,000 songs, including Trick Daddy’s “I’m a Thug.” She was sued for up to $150,000 per song.

NINETY-ONE pending trademarks bear Donald Trump’s name, including “Donald J. Trump the Fragrance” and “Trump’s Golden Lager.” He failed to trademark the phrase “You're fired.”

FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered.

And sues Blockbuster for allegedly infringing the patent, issued Tuesday, which purports to teach "a method for subscription-based online rental that allows subscribers to keep the DVDs they rent for as long as they wish without incurring any late fees, to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue of DVDs to be rented." Blockbuster Online has 1 million subscribers to Netflix's 4.2 million. (Reuters, Apr. 4). I'm suddenly a lot less sympathetic about Netflix's class-action troubles. (Full disclosure: I own stock in Blockbuster.)

Courtesy of Dean's World, a New York Appellate Court decision which all too easily brings to mind Monty Python's immortal routine, "Eric the Pet Fish:"

The defendant argues that his "stomping of young Juan's pet goldfish" is a misdemeanor pursuant to Agriculture and Markets Law §353 (unjustifiable killing of any animal, whether wild or tame), and not a felony because a fish is not a "companion animal" and his "stomping" did not constitute "aggravated cruelty" within the meaning of the statute.

The Appellate Court rejected the defendant's fanciful interpretation of New York criminal statutes, ruling:

The defendant's contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute.

But can you get a license for that fish?

Chalk another one up to the judicial ref.

A judge has made it safe again for high school coaches to lose their tempers, tossing out a lawsuit that accused a coach of inflicting "emotional distress" on a softball player by calling her "a 2-year-old." (Arcadia, CA, Apr.4)

Attorney Michael Oddenino filed the lawsuit in October, alleging that Riggio yelled at his daughter when she played on the JV team last spring. He named Riggio, varsity Coach Ed Andersen and the Arcadia Unified School District in the lawsuit. He sought $3 million for intentional and negligent infliction of emotional distress, negligence, a civil rights violation, and sex discrimination.The suit alleged that Riggio "took advantage of his position of authority to engage in an abusive pattern of excessive intimidation and humiliation of the female players, frequently calling them `idiots,' and belittling them for minor errors."

Oddenino is a family law lawyer who specializes in child custody issues. Go figure.

Class action lawyers would like to negotiate consumer refunds and disgorgement because the creams and lotions don't actually block all ultraviolet rays. ("Suit: Sunscreen labels are misleading", AP/CNN, Mar. 31; Point of Law, Mar. 31).

Irresistible profile of high court advocate and tireless self-promoter Tom Goldstein, whose firm publishes the popular SCOTUSblog (Noam Scheiber, "The Hustler", The New Republic, Apr. 10).

Now it's Pennsylvania: Donna Rovito has got the goods on the trial bar's efforts to influence the forthcoming (May 16) Republican primary for a state senate seat in the Wilkes-Barre area. They're backing Kingston mayor Jim Haggerty, who's facing off against former gubernatorial aide Lisa Baker and three other candidates (Mar. 23, scroll to item 5). Update May 21: Haggerty loses.

One of our profession's enfants terribles, Geoffrey Fieger, is back in court, this time defending his right to call Michigan appellate judges who ruled against him "jackasses" and "nazis."

Fieger faces a reprimand from the Michigan Attorney Grievance Commission for insulting three state appellate judges on a radio talk show in 1999 after the judges overturned a $15 million verdict he won in a medical malpractice case.

Fieger's lawyer, Michael Alan Schwartz, maintaining that Fieger's comments outside the courtroom are protected by the First Amendment.

Summing up Fieger's modus operandi nicely, Schwartz offers this:

"There's no law that says you've got to be dignified."

He also offers Standing Committee on Discipline v. Yagman, 55 F.3d 1430 and Craig v. Harney, 331 U. S. 367 (1947) to support his client's right to criticize the judges.

UPDATE: Sorry folks, I neglected to include a link to the story. It is the Michigan Attorney Grievance Commission seeking to reprimand him. The Commission is "the investigative and prosecutorial arm of the Michigan Supreme Court for allegations of attorney misconduct."

Manhattan trusts and estates lawyer Edward F. Campbell Jr., counsel in the New York office of Chicago's Vedder, Price, Kaufman & Kammholz, acted as "mediator, attorney and financial advisor" to his elderly parents in the 1996 sale of their home to....him.

Campbell "purchased" the 7 bedroom, 2 acre home in Lloyd Harbor, Long Island from his failing parents for no down payment and $1,000 a month, reserving to the parents a life estate, which isn't turning out to be much of a consolation to the elder couple. A Suffolk County Supreme Court judge is skeptical.

No word on how Campbell's eight siblings are taking the news.

"While top entertainment lawyer Terry Christensen is the only attorney indicted so far in connection with [indicted private investigator Anthony] Pellicano, several others face litigation that could cripple their practices -- and possibly break up their firms.

"The big problem, said Timothy Halloran, an expert in law firm liability at Murphy, Pearson, Bradley & Feeney in San Francisco, is that illegal activity such as wiretapping won't be covered by malpractice insurance." (Justin Scheck and Kellie Schmitt, "Will Law Firms Be Able to Weather Wiretap-Related Suits?", The Recorder/Law.com, Mar. 28). More: Mar. 2, Feb. 18, etc.

A senior Congressional investigator has accused his agency of covering up a scientific fraud among builders of a $26 billion system meant to shield the nation from nuclear attack. The disputed weapon is the centerpiece of the Bush administration's antimissile plan, which is expected to cost more than $250 billion over the next two decades.The dispute is unusual. Rarely in the 85-year history of the G.A.O., an investigative arm of Congress with a reputation for nonpartisan accuracy, has a dissenter emerged publicly from its ranks.(NYT Apr. 2)

The descendants of Henry Ford were jettisoned long ago from his Ford Foundation, and now the Michigan Attorney General is investigating "governance, potential conflicts of interest and a comparatively thin record of giving to charitable causes in Detroit and the state." (Detroit News, Apr. 2)

A child's toy called Magnetix has caused a number of accidental deaths, resulting in a recall by the Consumer Products Safety Commission and at least one law suit.

Product liability lawyer Sim Osborn, an attorney for three families who are filing civil suits against the makers of Magnetix, makes the expected public pronouncement: "We want to make these companies think twice the next time they are tempted to put profits before the lives of innocent children."

Magnetix is a construction activity based on a combination of steel balls and magnetic rods, similar to Connex.

The magnetix website's customer message board contains this exchange from March of 2005:

Karizma: "I am just wondering what materials are in the balls? Should I be worried about anything? It went down her throat, so the choking hazzard is not there...but I need to know if there are anything to the balls that could be hazzard as to her system? "

Karizma: "Thank you so much! I sure hope she passes it on her own! "

It appears that adequate warning was ignored.

Greetings from Boston, Overlawyered readers. Walter has invited me to guest this week as he attends to business, and suggested that I make a brief introduction. I have practiced law in the Boston area for twenty-five years now, in both private and public sectors, beginning as a fledgling zoning lawyer on Cape Cod in the 1980's. I served three terms in the legislature during the 1980's and was also General Counsel to a large independent authority for a few years in the early 1990's. I am now a "wizzened" zoning lawyer in Boston. My specialty is permitting cell towers, so you know that all of the hats I own are black. I thank Walter for this oportunity and shall do my best to make the most of it. Feel free to visit me at Wave Maker any time.

Unlawfully detained for fourteen years because of a crime you didn't commit? $14.5 million in damages.

Unlawfully detained for fourteen minutes because of a crime you didn't commit? $1.2 million in damages, plus potential punitives.

If the fairness of a justice system can be evaluated by whether it treats like cases alike, the status quo fails. ("Jury returns $14.5 million verdict against city", AP, Mar. 30; Mark Rice, "Jury awards woman $1.2M", Columbus Ledger-Enquirer, Apr. 1).

"A judge considering a proposed settlement of a class action lawsuit against a popular DVD rental service, Netflix, retreated yesterday [Thursday] from his threat to sharply cut the fees awarded to lawyers in the case." Netflix had increased its estimate of the number of customers it expects to take advantage of the settlement. (Josh Gerstein, "Netflix Judge Changes Mind On Lawyer Fees", New York Sun, Mar. 31). Earlier: Mar. 23, etc.

In case you were excited about Google Romance, "[you fell] for our April Fool’s joke, in which case ha ha, wasn't that amusing and harmless and mostly in good taste and not all psychologically damaging under various and sundry aspects of contemporary tort law, please don't sue us."

I leave to others the question of whether a publicly traded company can issue a deadpan April Fool's press release without risking securities-law liability.

Carolyn Elefant (Mar. 26) wonders how one law firm managed to rack up a bill of more than $183,000 for legal research in the Northwest bankruptcy. "Complicated bankruptcy cases commonly generate big fees for lawyers -- so it might not be surprising that, by the time the two airlines exit Chapter 11, the tab could be $276 million or more." (Harry R. Weber and Joshua Freed, "Legal Fees Pile Up in Delta, Northwest Bankruptcies", AP/Law.com, Mar. 28).