June 2006 Archives

Back in 1999, in Davis v. Monroe County Board of Education, the Supreme Court laid down a test for when sexual harassment rises to the level of “discrimination” for purposes of Title IX, the federal law banning sex discrimination in schools. Recognizing the fact that students frequently insult and tease one another in ways that would be intolerable in the workplace, the court set the bar higher for plaintiffs suing schools rather than employers. Instead of having to show just that harassment was “severe or pervasive” enough to create a “hostile or offensive environment,” as employees do, students have to show that harassment was severe and pervasive enough to interfere with access to an education.

Oddly, this protection against lawsuits has been overlooked not just by some lower court judges, but also by the very schools that benefit from it. In Jennings v. University of North Carolina, the Fourth Circuit Court of Appeals is rehearing en banc a recent panel decision which ruled 2-to-1 against a harassment claim based on inappropriate sexual discussions between a male coach and female athletes, which the plaintiff witnessed.

The panel majority argued that the conduct was not “severe or pervasive” enough to create a “hostile environment,” since the discussions were seldom aimed at the plaintiff. (Courts have typically given little weight to such “second-hand harassment”). The dissent argued that the conduct was severe or pervasive enough to create a hostile environment. The University seems not to have disputed that the “severe or pervasive” standard applied, or that the plaintiff could prevail merely by showing the existence of a “hostile environment,” even though other courts have recognized that harassment of students by school employees must be both severe and pervasive enough to interfere with access to an education.

But the standard for harassment claims against schools is more exacting, by design. In the higher education context, there are additional reasons for a more demanding standard. As Justice Kennedy observed in his dissent in the Davis case, the lower courts have repeatedly invalidated college harassment codes on First Amendment grounds. Most of the cases Justice Kennedy cited involved codes that banned speech that creates a hostile environment, much like workplace harassment law.

While a single offensive utterance doesn’t create a hostile work environment all by itself, a complainant can allege a hostile environment based on the offensive utterances of many different speakers, even if none of them individually make many offensive statements or intend to create a hostile environment. That effectively forces many employers to adopt “zero tolerance” policies banning racist or sexist speech.

By contrast, the Fourth Circuit’s own ruling in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), prevented a university from prohibiting racist and sexist student speech that allegedly created a “hostile and distracting learning environment.”

Moreover, students routinely have R-rated discussions in college dorm rooms that might give rise to a sexual harassment claim under the PG-rated standards of the workplace. As the Eleventh Circuit observed in Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987), “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.”

By relying on workplace standards, the university may well lose a case it would otherwise win. As a result, colleges in the Fourth Circuit may end up having to police private sexual conversations among students in ways that are difficult to enforce, especially if the full Fourth Circuit rejects the panel’s reasoning and treats comments overheard by a plaintiff, but not aimed at her, as harassment.

Personal and family business will be keeping me away from the computer for most of the next week. Keep watching this space for Ted's and Hans's contributions, though.

I've got an op-ed today in the New York Post about one of the less obvious issues in the high-profile race for Governor of New York: whoever wins will get to reshape the state's highest court, the Court of Appeals, with implications long into the future for the state's legal well-being. Would a Gov. Spitzer appoint anti-business crusaders to the court? (Walter Olson, "N.Y. Judge Wars: Hidden '06 Issue", New York Post, Jun. 30)(cross-posted at Point of Law) (& welcome readers of Prof. Bainbridge, who says kind things).

The New York Times editorializes on Burt Neuborne's requested fees in the Swiss bank Holocaust litigation ("Billing Holocaust Victims", Jun. 29). More: Neuborne responds (Jul. 6).

In the Manhattan Institute's City Journal, Philip K. Howard, president of Common Good and a longtime friend of this site, contributes an essay on fixing our litigation system. Among his topics: the need for a robust principle of assumption of risk; lessons from the U.K., where a "compensation culture" has spread despite a set of legal procedures that is the dream of reformers on this side of the Atlantic; the role of summary judgment and Daubert review; and the role of predictable law in maintaining the principle of the rule of law (Spring).

"Social Security numbers and other personal data on 26.5 million veterans and military troops were not copied from a Veterans Affairs computer missing for eight weeks, the FBI said Thursday." Which of course means the lawsuits will now be dropped. Right? (Hope Yen, AP/ABCNews.com, Jun. 29). Earlier: Jun. 26.

In 2002, Congress passed the Sarbanes-Oxley Act in response to the Enron scandal, greatly expanding regulation of American business. It sharply increased criminal penalties for securities law violations, and created an extremely broad new cause of action for employees seeking to sue over alleged retaliation. It also set up the Public Company Accounting Oversight Board (PCAOB) to regulate the accounting firms that audit America’s public companies. The PCAOB has generated endless red tape. Its rules micromanaging companies’ internal controls, which require auditors to examine such minute details as which employee has access to which computer password, cost the American economy billions of dollars, contributing to an overall price tag for Sarbanes-Oxley of at least $35 billion a year.

A small accounting firm, assisted by the Competitive Enterprise Institute, recently filed a lawsuit challenging the PCAOB as a violation of the Constitution’s Appointments Clause. The lawsuit points out that PCAOB’s board is neither appointed by the President with the consent of the Senate, as the Appointments Clause requires for the nation’s principal officers, nor is it picked by the head of an executive branch department, as the Clause requires for “inferior” officers. Yet the board exercises significant authority under federal law, including the power to investigate accounting firms and fine them up to $2 million for inadvertent violations of PCAOB rules. One of Sarbanes-Oxley's sponsors candidly admitted that the PCAOB would effectively wield "massive, unchecked powers." PCAOB board members are accountable only to the SEC, whose five commissioners, acting as a group, pick them to serve for a period of five years.

The PCAOB has moved to dismiss the lawsuit on procedural grounds, alleging that the constitutional arguments should have been presented first to the SEC rather than the courts, and that the accounting firm and its co-plaintiff, the Free Enterprise Fund, lack standing to challenge the manner in which the PCAOB’s board is appointed. Today, a federal district judge in Washington, D.C., will hear arguments on the PCAOB’s motion to dismiss.

It seems the Association of Trial Lawyers of America wants to change its name (John Harwood, WSJ "Washington Wire", Jun. 27; via Lattman).

Via R.J. Lehmann (Mar. 27), here are some figures indicating that the sum total of the alleged costs of other people's bad behavior may well exceed the total sum of money in existence. To be more specific: start by adding up the claimed health expenses, productivity losses and other social costs of such indulgences as alcohol ($185 billion a year, it's said with spurious precision), overeating ($115 billion), gambling ($54 billion), and so forth. Then throw in categories such as the costs of crime, time wasted by employees visiting web sites and watching sports events, and so forth. By the time you're done, Lehmann says, you can "come up with a grand total of $7.39 trillion - well in excess of the $6.70 trillion that actually exists" -- at least if you're willing to include a few dodgy entries in the catalog, such as taxes. (Thomas C. Greene, The Register (UK), Mar. 16).

It's not hard to see the relevance of this line of logic to themes often dealt with in this space. In the utopia of the litigators we would succeed in charging the social costs of our overeating to the food business, the costs of our gambling to the casinos and lotteries that led us on, the costs of 9/11 to assorted banks, airlines, building owners and Saudi nabobs, the costs of street crime to deep-pocketed entities guilty of negligent security, and so on and so forth for the costs of auto accidents, pharmaceutical side effects, failure to learn in school, domestic violence, etc. It would not be surprising if the sum total of all the different injuries, insults and indignities dealt out to the human race, if monetized at the rates prescribed by advocates, handily exceeded the sum total of wealth on hand to pay, even were the whole wealth of the world placed at the courts' disposal.

It seems Robert Ricker, active as an expert witness on the plaintiff's side in lawsuits against the firearms industry, has now reinvented himself as a "sportsmen's advocate". David Hardy, at Arms and the Law, begs to differ with the notion that Ricker is a former "chief lobbyist for the NRA" [National Rifle Association]. (Jun. 25; see Phil Bloom, "New group defies NRA, Brady outfit on gun issues", Fort Wayne Journal-Gazette, Jun. 25). At Washington Monthly, Christina Larson is promoting Ricker's activities, but has met with some skepticism from commenters (Jun. 18 and Jun. 20).

I was so characterized by one Rep. Gary Ackerman (Jun. 13) because my testimony before a congressional subcommittee today about problems in securities class actions dared to mention Milberg Weiss. Decide for yourself.

For some reason, we haven't yet covered the Washingtonienne libel suit, where Little Rock law professor Robert Steinbuch revealed he was "R.S." by filing suit against the infamous blogger, causing Judge Paul Friedman to comment, "I don’t know why this guy thought it was smart to file a lawsuit and lay out all of his private intimate details in an appendix to the complaint.”

Now Wonkette reports that Cutler's third set of attorneys in the litigation Robert Steinbuch has filed against her, and has not yet retained new attorneys. Why might you care? Because Steinbuch, who waited until May 16, 2005 to complain about a May 4, 2004 blog post, is planning on arguing that every new blog post restarts the statute of limitations for a plaintiff wishing to complain about a blog. (T.R. Goldman, "A Man Scorned", Legal Times, May 22). If Cutler defends against this argument pro se, Judge Friedman could be induced into an erroneous ruling that makes life difficult for bloggers everywhere. And there's no reason that Steinbuch's logic wouldn't equally apply to computer databases like LEXIS that "republish" mainstream media articles upon request. One hopes Friedman will see through the Steinbuch argument.

A divided Massachusetts Supreme Court has held that disabled employees can be fired for misconduct regardless of whether it results from their disability. Mammone v. Harvard College involved a bi-polar receptionist for a Harvard museum, who was disciplined for misconduct that occurred while in a manic state. He handed out flyers attacking his employer’s wages and spent time on his personal computer rather than working, ignoring pleas from his supervisor to perform his assigned duties.

The court held that state handicap discrimination statutes only protect qualified handicapped people, and that a “disabled individual cannot be a qualified handicapped person ‘if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute.’”

In dissent, Justice Greaney argued that employers should have to put up with “occasional displays of inappropriate, and sometimes bizarre, workplace behavior” resulting from an employee’s disability and give such employees a “measure of special treatment.”

The U.S. Supreme Court has yet to address this issue. The Americans with Disabilities Act distinguishes between alcoholics, whom it expressly recognizes can be disciplined for disability-related misconduct, and other disabilities, about which it is silent on the question of disability-related misconduct.

The Massachusetts courts are usually more pro-plaintiff than the federal courts. For example, they have rejected the U.S. Supreme Court’s conclusion that a correctable condition is not a protected disability.

John Stossel revisits two of the high points in EEOC history, its crusades against sex imbalances in the Hooters restaurant waitstaff and Sears hardware departments ("When sexism claims are a real hoot", syndicated/TownHall, Jun. 28).

Google, Amazon, AOL and Yahoo are all defending Craigslist in the suit demanding that it censor its housing ads so as to prevent users from requesting "gay Latino sought for roomshare" and the like (Lynne Marek, "Online Peers Stand Up for Craigslist in Lawsuit", National Law Journal, Jun. 28). Earlier coverage: Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, 2006. Craigslist's defense, by CEO Jim Buckmaster, is here.

I'm pleased to announce that I've begun a new periodic gig as a columnist on American law for the online Times (the London-based one). My first effort examines the possibility, discussed in this space recently, that fans of Barbra Streisand might file a class-action lawsuit against the singing legend because she is again doing a concert tour years after a tour that was supposed to be her farewell. (Walter Olson, "The long, long, long goodbye", The Times Online, Jun. 27).

Incidentally, British readers visiting this site for the first time will find an archive of UK-related material here.

If you're running someone for Congress and he wants to make an issue out of his support for litigation reform -- even if, or especially if, he's actually shown a willingness to support such reform as a state legislator -- it's probably best if his own law firm doesn't have a full-page "We get results!" ad in the Yellow Pages inviting victims of "slip and fall injuries, medical negligence ... dog-bite injuries, wrongful death [and] defective products" to "put our experience to work for you. ... No fee unless you collect." (Eric Zorn, "Candidate's reform talk may be adding insult to injury", Chicago Tribune, Jun. 22).

I've finally replaced my aging PC with an iMac and am in the midst of the transition now -- apologies for some email delays that have resulted. Mac's native browser, Safari, doesn't play well with Movable Type so I'm sticking with Firefox. I'm a complete newcomer to the iMac, so feel free to send useful tips about getting the most from it.

I'm testifying tomorrow morning before the Capital Markets, Insurance, and Government Sponsored Enterprises Subcommittee, the same hearing on H.R. 5491 Sam Munson covered at Point of Law.

Those interested in soundbites can see me on CNBC's "Power Lunch" tomorrow at approximately 1:20 pm Eastern. I'll link to testimony once it's publicly available.

On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.

The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.

This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.

This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning "disparate impact" may be beyond the Department's authority under the Supreme Court's Alexander v. Sandoval decision.)

(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).

The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.

A radical pro-affirmative action group, By Any Means Necessary (BAMN), joined by Detroit’s mayor, Kwame Kilpatrick, have filed a Voting Rights Act lawsuit against the sponsors of the Michigan Civil Rights Initiative (MCRI) in federal court. MCRI is a ballot initiative would ban racial and gender set-asides and preferences in state contracting, employment, and public education. It is modeled on an earlier measure passed by California voters and upheld by the federal courts. BAMN argues that black voters who signed the petition to put MCRI on the ballot did so only because they did not realize it would restrict affirmative action, because they were confused by MCRI’s title, text, or misleading statements by MCRI signature gatherers. That, it claims, amounts to fraud.

BAMN’s lawsuit is factually groundless. Its fraud claims were considered and rejected by the Michigan Court of Appeals, which ordered MCRI placed on the ballot. MCRI’s text, which was presented to all petition signers, expressly prohibits racial preferences, eliminating any confusion about its effect on affirmative action. Moreover, the Voting Rights Act generally applies to the acts of state election officials, not private parties, and cases such as Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988), hold that the Voting Rights Act does not apply to initiative petitions.

BAMN’s lawsuit appears to be part of a pattern of intimidation. One BAMN official is accused of threatening MCRI executive director Jennifer Gratz with a knife.

BAMN's suit is another example of how civil rights lawsuits are increasingly misused as political weapons or tools of censorship. For example, in Affordable Housing Development Corporation v. Fresno, 433 F.3d 1182 (9th Cir. 2006), a developer used the Fair Housing Act to sue citizens who publicly opposed a housing development, arguing that their petitioning of city officials resulted in the city not funding the project. That, the developer argued, had an unlawful “disparate impact” on minority groups destined to live in the development. The trial court initially accepted this argument, holding that the Fair Housing Act overrode the citizens’ right of free speech. Years later, the Ninth Circuit Court of Appeals rejected the lawsuit, holding that the citizens’ opposition to the project was protected by the First Amendment and the Noerr-Pennington doctrine. (The Noerr-Pennington doctrine protects citizens from antitrust and civil rights claims based on their speech and petitioning activity). It ordered the developer to pay the citizens’ crippling legal bills, which had risen to hundreds of thousands of dollars.

BAMN’s lawsuit would raise First Amendment problems even if it were true that voters misunderstood MCRI’s purpose, and even if MCRI’s sponsors knew of any erroneous statements about MCRI by signature gatherers. The courts have generally held that the First Amendment bars liability for speech in ballot initiatives and other political campaigns, even if the speech is knowingly false.

Peter Lattman and the WSJ have a roundup (Jun. 26).

One crooked Pennsylvania lawyer disbarred and, by his own account at least, 1,000 more to go:

The Pennsylvania Supreme Court has ordered the disbarment of a Philadelphia attorney who served time in prison after pleading guilty to charges he defrauded a slew of insurers on behalf of personal injury plaintiffs who in reality had not needed medical attention.

During a disciplinary hearing Michael Radbill suggested that the practice of representing clients who are "not really injured" is endemic across the state, according to the report from the Supreme Court's Disciplinary Board.

He also indicated that over the course of a 30-year career, 80 percent of his practice had been centered on the representation of uninjured personal injury clients. ...

The federal investigation also produced evidence that Radbill had employed people to recruit personal injury clients, help stage slip-and-falls for his clients and oversee his clients' treatment by medical providers willing to falsify records and insurance claims, according to the report....

According to the report, Radbill said at a disciplinary hearing that "I got into personal injury cases and ... when I was a young lawyer, [people told me], 'You're going to get accident cases of people that aren't really hurt, you say they're hurt and you send them to the doctor.'

"That's not right, OK?" Radbill continued, according to the report. "And I did it for 30 years and there's a thousand more here in this state that do it, and I told [the investigators] that, and they said, 'Yeah, but you got caught,' [for] which I served my time, I didn't make excuses, so that's true."

(Asher Hawkins, "Representation of Uninjured Clients Brings Disbarment for Pa. Lawyer", The Legal Intelligencer, Jun. 23).

Orin Kerr has some worthwhile quotes from today's 5-4 decision in Kansas v. Marsh that says a lot about how individual justices view their role in a constitutional democracy, and whether ends justify means. But we now have four justices that have announced their openness to unilaterally declaring the death penalty unconstitutional.

Tom Zeller, writing on the MySpace lawsuit, quotes observers who unanimously condemn the species of nanny-state lawsuit, and quotes blogger Ken Chan:

"I recognize that there's a certain part of the population who don't know a steady fried chicken diet is bad for them. I feel bad for these people," Mr. Chan wrote. "However, these are probably the same people who don't put on their seatbelts and who suck down endless coffee during the day and Coors at night. So let's be honest with ourselves here. You're not going to save these people. You're just screwing up the chicken for the rest of us."

Zeller probably didn't get the memo from the Times editors about the "benefits" of such lawsuits, but we'll no doubt see some plaintiffs' attorney defending the McDonald's coffee lawsuit in the letters section. (Tom Zeller Jr., "A Lesson for Parents on 'MySpace Madness'", New York Times, Jun. 26). Mildly related, and encouraging for what it says about people starting to be annoyed by the food police: Fluffernutter controversy in Massachusetts.

Can you sue over something that you claim will affect everyone in the planet in the distant future, even if that means that everyone on Earth can file a similar lawsuit now? The Supreme Court may address a similar question soon. The Supreme Court agreed today to consider whether the Bush administration must regulate carbon dioxide to combat potential global warming, in Massachusetts v. EPA.

Twelve states had sued the EPA to force it to regulate carbon dioxide emissions from automobiles. Although carbon dioxide is an integral component of the atmosphere, and does not contaminate or cause cancer, the states argued it constitutes air pollution covered by the Clean Air Act, because it may cause global warming over the long run.

A splintered three-judge panel of the D.C. Circuit Court of Appeals voted 2-to-1 to reject the lawsuit, but the judges in the majority didn’t agree on why. Judge Sentelle would have rejected the suit for not complying with the Constitution’s requirement of standing, under which a plaintiff must allege particularized injuries, not a “generalized grievance” shared by much of the public at large (much less the entire planet). Judge Randolph, by contrast, was unsure of whether the plaintiffs had standing, but concluded that even if they did, and the EPA had jurisdiction to regulate carbon dioxide, the lawsuit should still be dismissed. He pointed out that regulating carbon dioxide on a state-by-state basis, as the Clean Air Act would do, made no sense, since global warming is a planet-wide concern. Thus, the EPA’s decision not to regulate carbon dioxide was sensible. By contrast, Judge Tatel's dissent argued that the plaintiffs did have standing, since although everyone might be affected by global warming, they might be affected by it in different ways, with a coastal state being flooded while an arid state might become more arid.

In another lawsuit, attorney generals from seven states have sued out-of-state utilities under state nuisance laws, alleging that power plants, by generating carbon dioxide, are causing global warming. New York federal judge Loretta Preska dismissed their lawsuit in Connecticut v. American Electric Power Co. She, too, held that the plaintiffs lacked standing, since they complained of a generalized injury that would be better handled by the political process than by the courts.

If state attorney generals can sue power plants in distant states, that may lead to an explosion of interregional litigation, regional conflict, and judicial micromanagement of out-of-state utilities.

That's Prof. Bill Childs's theme as he begins a week guestblogging at our sister site, Point of Law.

How not to answer a jury questionnaire. (via Bashman)

Last Thursday, the Supreme Court ruled that a worker alleging retaliation for complaining about discrimination may sue even if she has not suffered a tangible loss, like a firing or denial of a promotion. In its decision in Burlington Northern v. White, the Supreme Court ruled that under Title VII of the Civil Rights Act, “retaliation” includes any act that “well might have dissuaded a reasonable worker" worker from complaining. The court upheld a $43,500 judgment in favor of an employee who was reassigned to different tasks and then suspended for a month before being reinstated with full backpay.

The court’s low bar for what constitutes retaliation turns many mistaken complaints of discrimination into future lawsuits. Under federal court rulings, even groundless complaints are often protected against retaliation. Complaints to an employer are protected as long as the complainant reasonably believes that discrimination or harassment occurred, even if it didn’t. And complaints to the EEOC are protected even if they are plainly unreasonable, intemperate, and false. So an employee who has never been discriminated against can sue over deteriorating relationships with co-workers whom the employee has falsely accused of discrimination, claiming that the bad relationships constitute a “hostile environment” in retaliation for claiming discrimination.

In an attempt to forestall some such suits, the Supreme Court added a caveat to its test. It declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a claim of discrimination do not rise to the level of retaliation, since they would not be sufficiently “materially adverse” to dissuade someone from complaining of discrimination. Whether or not that caveat is consistent with the court’s general test, it is welcome from a First Amendment perspective. As Judge Kozinski observed in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), banning all criticism or ostracism in response to a discrimination charge may well violate the First Amendment freedoms of speech and association.

But the Supreme Court’s caveat may not be enough to protect First Amendment rights. For example, in Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997), a mayor publicly denounced as unfounded a sexual harassment complaint against him. It is easy to see how such a public denial might dissuade a publicity-shy complainant from bringing an accusation. But as the Massachusetts Supreme Court observed, defining his speech as unlawful retaliation would clash with the First Amendment. Retaliation prohibitions are “subject to constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Since the Supreme Court has set the bar so low, the courts may need to exempt speech about the merits of discrimination claims to prevent censorship.

But some judges will probably refuse to do so. Judge Myron Thompson held an employer liable for retaliation for publicly criticizing a discrimination complaint, rejecting a First Amendment defense on the ground that since sexual harassment law supposedly trumps the First Amendment, so do laws against retaliation.

Brook no competition dept.: "A federal judge temporarily has barred the government from publicizing its free credit monitoring offer to veterans whose personal data was stolen and wants to see if they might get a better federal offer. Lawyers who have filed a class-action lawsuit on behalf of the 26.5 million veterans and active-duty troops affected contend that accepting the government's offer could jeopardize their chance of winning more money in the privacy suit." (Hope Yen, AP/Washington Post, Jun. 26)(hat tip: Florida Masochist).

Joining us this week as a guestblogger is Hans Bader, Counsel for Special Projects at the Competitive Enterprise Institute in Washington. Hans is a frequent visitor to our comments section; his current projects for CEI include constitutional challenges to the 1998 tobacco Master Settlement Agreement and to the Public Company Accounting Oversight Board created by Sarbanes-Oxley. Before joining CEI he was at the Center for Individual Rights where his work included constitutional and civil rights litigation, including free speech and workplace claims.

In the much-watched case we discussed last week (Jun. 21), the Supreme Court of Canada ruled that compensation could indeed be awarded a wife for her inability to work due to ongoing trauma from her ex-husband's infidelity years earlier. Per the Globe and Mail:

Some legal experts said yesterday that the vague and self-contradictory nature of the ruling may encourage litigation from other estranged spouses who want to mount similar arguments based on their emotionally fragile state.

"What has opened up is a new route for people to argue that they cannot become self-sufficient," said University of Toronto law professor Brenda Cossman.

(Kirk Makin, "Divorce ruling threatens to open floodgates", Globe & Mail, Jun. 22).

Overlawyered favorite Jack Thompson (Jun. 9, Apr. 14, ad infinitum) is perturbed that his publishing house, Tyndale House, is licensing a video game based on the Left Behind books. Thompson is especially upset that the game will offer players the option to take the role of the anti-Christ. He's certainly entitled to break off his publishing relationship (doing so shows admirable consistency) and attempt to enlist others in a boycott, but his threat to take "legal action" on grounds of unspecified "tortious conduct" seems questionable. (via Rickey)

You've seen the AP press coverage. Charles Lennon had a pre-Viagra surgery to install a prosthesis, but had trouble keeping it in a concealed position; the legal opinion reveals he also complained about the product's discomfort and noise. He won $400,000 after a jury trial. I don't know whether the jury was correct. On the one hand, the description is one of a bad product failure. On the other hand, Lennon had trouble meeting federal evidentiary standards, and dismissed with prejudice the case he filed in federal court, rather than face the results of a summary judgment motion; moreover, an Oklahoma case against the manufacturer also suggests that the manufacturer didn't do anything actionable. (Lennon also sued his doctor and his hospital; they won below.)

What nobody has mentioned is that the case turned on a lawyer's use of Latin. The reference in the notice of appeal was to "Dacomed Corp., et al." But Rule 3(c) requires parties to be named with specificity in such a notice. Thus, co-defendant National Union Fire Insurance was not allowed to appeal—and the appeal may very well have been dispositive in its favor, because Dacomed's appeal—based on res judicata because they had succeeded in a previous federal lawsuit after two First Circuit appeals—was successful. The ruling is correct: better to have a straightforward rule that can be neutrally applied than a vague multi-factor balancing test that essentially permits a judge to let sympathy into play, and the insurer was on the wrong side of the rule. But when so much turns on something so seemingly trivial, judges should not be surprised that appellate briefing costs so much. Lennon v. Dacomed Corp. (R.I. Jun. 23, 2006).

It's one thing for a blogger to suggest that there is something inherently wrong with the arguments of "people without serious legal training [who] comment on the law." That's just argumentum ad verecundiam. But it's especially ironic coming from a blogger who doesn't reveal his credentials and hides behind a pseudonym.

That same blogger writes:

I don’t think that economics is the best field to inform issues of substantive law, unless, of course, the substantive law explicitly refers to economic decisions.

Of course, all substantive law—tort, contract, property, criminal—explicitly refers to economic decisions; anyone who thinks otherwise hasn't had serious economic training or hasn't thought about the law seriously, because economics is merely the study of choice and decision-making in a world of scarce resources. But perhaps Justice Holmes is also a dilettante for suggesting that incentives matter.

Others will be fascinated to learn from the blog post that "going to faculty committee meetings" is a prerequisite for economic analysis, and that Richard Posner, Dan Fischel, and Nobel Prize winner Ronald Coase are not economists because they lack Ph.D.s.

The June 26 Sports Illustrated has a comprehensive look at the appalling Duke lacrosse rape prosecution. The June 29 Newsweek package isn't too friendly either (via Newmark). Earlier: Jun. 13, May 22, May 17, May 4.

Peter Lattman reports:

The Federal Election Commission has fined an Arkansas law firm for making illegal contributions to John Edwards’ 2004 presidential campaign. Tab Turner solicited four $2,000 contributions from his co-workers at Little Rock law firm Turner & Associates in January 2003 and illegally reimbursed them for their contributions using a company credit card, according to the FEC. He also used a company credit card to make an illegal campaign contribution in his own name and to pay for various campaign expenses. Federal law prohibits donors from making contributions in others’ names and prohibits direct corporate contributions to a federal candidate. Edwards for President also agreed to pay a $9,500 fine, and called the commission’s announcement “old news,” reported the AP.

Teacher Heather Faria defrauded her co-workers of $37,000 by falsely claiming to have cancer. Defense attorney Francis O'Boy is pleased with her sentence, stating "This isn't a crime of violence. This was a situation where she couldn't stand the pressure of opportunity." Ah, it was the pressure of opportunity's fault. (AP/Boston Globe, Jun. 15). Jay Nordlinger is suitably aghast. Previously: Jan. 11, 2005.

Two decisions came down yesterday, but it's not clear if the Illinois Supreme Court recognized that it was engaging in self-parody.

In the Tri-G legal malpractice case, Tri-G's case against its bank was dismissed with prejudice when its law firm failed to be ready to try the case. Tri-G accused its law firm of losing a lawsuit, and sought to recover the damages, including punitive damages, it would have won had the lawsuit been appropriately prosecuted. The Supreme Court held the law firm immune from paying those lost punitive damages, because "holding the [law] firm liable for the intentional or willful and wanton misconduct of a third party" would be inappropriate. (I commented on the different standards for legal and other malpractice at Point of Law.) Effectively, Illinois plaintiffs' lawyers are now immune from malpractice claims for any failure to achieve punitive damages.

Meanwhile, the same day, in the case of Marshall v. Burger King, which we covered Aug. 3, the Illinois Supreme Court held that Burger King could be held liable for a case where the decedent plaintiff "was killed when a car driven by Fritz crashed through the wall of the Burger King restaurant where the decedent was eating and fatally injured him." Justice McMorrow's dissent notes:

According to the majority, a duty to protect a business invitee from the negligent driving of a third person exists where: the landowner's property is not inherently dangerous or defective and the landowner's own conduct has not created any risk of harm to the invitee through negligent design or construction; the landowner has complied with all applicable building codes and safety regulations; the landowner has experienced no previous incidents of any sort involving automobile-related accidents, whether similar or not; the parking lot is unremarkable, a sidewalk is present, and the invitee is inside a building behind a half-brick wall; and the only means of protecting the invitee from the negligent driving is to construct an impregnable barrier around the building that, even if possible to construct, may have a negative effect on the safety of business invitees in other circumstances. If there is an affirmative duty to protect a business invitee from out-of-control vehicles on these facts, then such a duty exists for every business which owns a building that abuts a road or parking lot.

The majority's holding is exceptionally broad and has the potential to alter substantially the function and appearance of every city in the state. With its far-reaching implications, I do not believe that the adoption of the duty of protect, as described by the majority, is an appropriate undertaking for this court.

Via Childs, Pete Solis, the 19-year-old who allegedly sexually assaulted a 13-year-old Austin, Texas, girl whose family is suing the MySpace website where the two met, is, Time Magazine reports, contemplating his own litigation against MySpace on the grounds that it made him think he was meeting a 15-year-old.

"MySpace wasn't there when they went to Whataburger. MySpace wasn't there when they went to the movie and MySpace wasn't there when they climbed in the backseat," [Solis attorney Adam] Reposa said. "Meeting on MySpace — if that alone is enough, then we can make the same claim for damages."

"Hard data are difficult to come by, but Pool and Spa News estimates that, out of the millions of jumps and dives off high boards each year, there are, on average, fewer than 20 spinal injuries. Most head injuries actually occur from people diving off the pool's ledge into the shallow end. Diving boards actually reduce these types of injuries because they visually tip off swimmers about which end of the pool is deep." (Steve Moore, "Off the deep end", Wall Street Journal/OpinionJournal.com, Jun. 23). More: Sept. 6, 2004 and links from there.

Lawsuits accusing Heineken and other tipple-makers of targeting youth in their promotions were unveiled with great fanfare (see Dec. 1, 2003), but haven't been doing well: courts have thrown out four of seven already. Moreover, the law firm of celebrated litigator David Boies, which was associated with the suits' filing, has since withdrawn, leaving the action to the much less well-known firm of Boies and Straus, led by Boies's son, David Boies III. (Carlyn Kolker, "David Boies III's Message in a Bottle", American Lawyer, Jun. 9).

The Missouri Supreme Court has ruled that if plaintiffs claim to have repressed their memory of the bad things that happened to them, they may succeed in suspending for years and even decades the statute of limitations on the resulting tort actions. The court reinstated a suit by a man who said he had been sexually abused at Chaminade College Preparatory School 30 years ago, but had repressed the memory of the episode for 25-odd years. (Robert Patrick, "Repressed memory abuse suits supported", St. Louis Post-Dispatch, Jun. 13). Reader Patrick R., who sent the item along, says: "This is an invitation to fleece churches and insurance companies through fraudulent claims and an invitation for claimants to sleep on their legal rights."

Councilman Joel Rivera, who heads the New York City Council health committee, likes that idea on grounds of protecting city residents from their own choices (as opposed to on grounds of protecting neighbors against traffic, litter, etc.) ("Councilman: Limit fast food places to fight fat", AM New York, Jun. 21; Carl Campanile and Mathew Charles, "Make That Fast Food 'To Go': Council Big", New York Post, Jun. 22; KipEsquire, Jun. 22; The Rant Shack, Jun. 22). Similarly, from Ireland: Feb. 17, 2004.

For those who never expected to see the words "glamourpuss" and "Medicare" in the same sentence: "The onetime legal assistant, whose environmental crusade against a utility company inspired a hit movie starring Julia Roberts, has lent her name as plaintiff in lawsuits against several California hospitals and convalescent homes." Two law firms, including Wilkes & McHugh, have engaged Brockovich as the public face of bounty-hunting "whistleblower" suits pursuing the adventuresome theory that hospitals defraud the government by accepting Medicare reimbursement for further medical care occasioned by their own earlier errors, even when no legal process has yet determined the earlier medical decisions to have been erroneous. The "lawsuits do not involve specific allegations of wrongdoing ". Ms. Brockovich is managed by the William Morris talent agency. (Daniel Yi, Los Angeles Times, Jun. 7). For much more on her activities, follow links from Nov. 3, 2005. Update Nov. 18: federal judge in San Diego tosses two suits.

An example: one would not wish to be sued for defamation by the chief justice of one's own state, as is happening at the moment to the Kane County Chronicle, which is facing a lawsuit from Illinois Supreme Court Justice Bob Thomas over a series of critical columns in the suburban paper. Noway, nohow would one wish one's name to turn up as the defendant in such an action (Christi Parsons, "Chief justice doesn't just get mad, he sues", Chicago Tribune, Jun. 18).

Writes Prof. Childs (Jun. 15) of the lawsuit over the death of a four-year-old hours after taking part in the Mission:Space ride:

Setting aside the allegation of a failure to respond properly (about which I know nothing), the lawsuit presents a fairly fundamental question in amusement litigation: when a ride does exactly what it is supposed to do, and when that action is well-disclosed to riders and is safe for the vast majority of people, who, if anyone, is responsible when that action causes foreseeable injuries to people with unknown preexisting conditions?...

As for a warnings claim, I don't think I've ever seen a ride with such thorough signage.

We covered the case—where a hockey player complained that a comic-book character had the same name—on July 13, 2004. Todd MacFarlane still has the chance for discretionary review by the Missouri and U.S. Supreme Courts, though the former has already ruled against him once. Eugene Volokh will be sure to have insightful commentary on the First Amendment implications; here's his earlier take, predicting a "good chance" of Supreme Court review and reversal. Beyond the First Amendment implications, the damages are ludicrous.

The McDonald's coffee case came up in a comment-board discussion of the MySpace suit on the WSJ Law Blog, and, as is common thanks to a tremendously successful propaganda campaign by the plaintiffs' bar, a law student popped up to "debunk" the story. He justified the ludicrous award by arguing that the coffee was so hot to "melt the plaintiff's pantyhose to her skin." Well, that is rather hot coffee, if true, since the melting point of nylon is hundreds of degrees higher than the boiling point for coffee, so I would have no problem holding McDonald's liable if they were selling coffee at a temperature where it ceases to be liquid or solid.

Of course, it's not true that the coffee was so hot to melt pantyhose (and Stella Liebeck was wearing cotton sweatpants), but one looks forward to Jonathan Turley decrying this urban legend that's distorting the debate over legal reform.

On MySpace, a 19-year-old Texas youth approached a 14-year-old girl; his profile claimed that he was a high school senior on the football team. She says that following a series of emails and phone calls, she went out with him and their evening on the town culminated in his sexually assaulting her, for which Rupert Murdoch should pay $30 million as owner of the social networking site. Still to come: suits against shopping malls, ice cream shops and music venues for providing environments in which older teens can approach younger ones and sweet-talk them into eventual dangerous situations. (Claire Osborn, "Teen, mom sue MySpace.com for $30 million", Austin American-Statesman, Jun. 20). Prof. Childs has more, here and here, as do Joanne Jacobs, KipEsquire and Shakespeare's Sister.

So devastated, in fact, that even years after her husband Gary walked out on her for another woman, Sherry Leskun was too transfixed by the injustice to tackle the job market: a British Columbia court ruled that she was "bitter to the point of obsession with his misconduct and in consequence has been unable to make a new life." Reason enough to maintain support payments at a level set to compensate for her lack of earnings? The Supreme Court of Canada is expected to decide soon. (Bruce Cheadle, "Supreme Court set to rule on whether a cheating spouse is debilitating", CP/Maclean's, Jun. 20).

Trial lawyers in Michigan continue to agitate for repeal of the law, which, uniquely among the 50 states, affords manufacturers a defense in product liability actions for pharmaceuticals marketed in compliance with FDA regulation. At the Manhattan Institute (with which I'm associated), a new report from the Trial Lawyers Inc. project defends the law ("The Move to Reverse Michigan's Model Reforms", June). Also see Point of Law, Apr. 11.

Madison County plaintiffs' lawyer Evan Schaeffer writes, partially tongue in cheek:

Meanwhile, I'm working on a propaganda campaign of my own. I'm going to take ATRA's term and turn it on its head. Rather than "judicial hellholes," I'll be focusing on those jurisdictions in which the playing field is tilted in favor of big business. I'm calling them "consumer hellholes." What do you think?

What bothers the ATLA-ites is that consumers have shown that they prefer tort reform, and the benefits tort reform brings: judicial hellholes are consumer hellholes, because we all bear the costs of runaway litigation and its effect on the economy.

AP reports that the Illinois Supreme Court has released $2.15 billion of the gigantic, and almost bankrupting, appeal bond (Oct. 11, 2004; Apr. 2003) Philip Morris posted for the right to successfully appeal an absurd $10.1 billion Madison County judgment. (Dec. 15, 2005 and links therein.) Another $6 billion note awaits the U.S. Supreme Court's decision on the certiorari appeal.

We covered the Seventh Circuit's refusal to countenance in Mirfasihi v. Fleet Mortgage a collusive class-action settlement that benefited the attorneys but not the class members in January 2004; after remand, the parties went through the motions of jumping through hoops and returned with an economically identical settlement. The Seventh Circuit was not amused.

Interesting, and all too typical, statistic: out of the $2 million settlement pot, there were only $276,000 in claims filed by 190,000 class members, who apparently didn't feel especially injured by Fleet Mortgage's alleged wrongful practices of selling them products through telemarketing. (I wouldn't oppose the death penalty for telemarketing, but that's just me.)

In March 2004, the Kansas City law firm of Walters Bender Strohbehn & Vaughan filed a class action against 63 defendants for supposedly overcharging for mortgage fees. The firm, however, confused Wall Street banking behemoth Salomon Brothers with developer Berton Solomon's "Solomon Brothers" St. Louis commercial real-estate company and sued the latter. (This was a double mistake since Salomon Brothers hasn't existed since 1997, and is now part of Citibank after at least two name changes and two mergers.) Unfortunately, the plaintiffs refused to immediately drop Solomon from the suit, and he ran up (a remarkably cheap) $4000+ in legal expenses in the seventeen months of legal proceedings before he was finally dropped, $4000 that Walters Bender is refusing to pay. They're not very happy about being sued in small claims court, and are fighting that suit, even though it will cost them more to do so than to pay Solomon's bills. (Bill McClellan, St. Louis Post-Dispatch, Jun. 18).

Without a settlement, Solomon is unlikely to recoup his costs in the absence of showing malice, a required element in Missouri law; lawyers are immune from the consequences of mere negligence, because, they'll be happy to explain, such liability might deter productive activity like scattershot lawsuits. If only the same protections applied to, say, practicing medicine or providing jobs or producing goods.

Sears says it fired 50-year-old Gunnar Steward because of poor performance. Steward claims it was age discrimination, and sued. Sears noted that Steward's job tasks were split amongst a 60-year-old, 45-year-old, 35-year-old, and 33-year-old. Notwithstanding a jury verdict of $241,000, Judge Rueter threw out the case because the 43.25 year age average was less than seven years younger than Steward, insufficiently younger to constitute discrimination based on age. (Rueter also noted the lack of evidence that Sears's reason for firing Steward was pretextual.) Plaintiff's attorney Carmen R. Matos suggests there will be an appeal; the Third Circuit has previously held nine-year and eight-year age differences to constitute possible discrimination. (Shannon P. Duffy, Legal Intelligencer, Jun. 20). Such hair-splitting demonstrates a general problem with the age discrimination laws.

Shortly after 7 am on July 11, 1992, Y.M.'s doorbell rang in her Lefrak City project apartment. Y.M. opened the door without asking who was there or checking her peephole. Unfortunately for her, at the door was one Lawrence Toole, who (allegedly?) raped and beat her at knifepoint. This was, according to Y.M.'s suit, the fault of her landlord and its security service for allowing Toole into the building. The Court of Appeals of New York (the high court of that state) held that Y.M. stated a cause of action. "More discovery is warranted to discern how foreseeable a risk [Toole] was and what measures defendants had in place to deal with him." Mason v. U.E.S.S. Leasing Corp. was decided in 2001: anyone know how this case was resolved on remand?

Steve Chapman finds that the "science" of the misnamed Center for Science in the Public Interest in its KFC suit isn't actually the sort that should be relied on too heavily, and observes:

...the health dangers of an occasional Extra Crispy drumstick are anywhere from negligible to nonexistent. But letting CSPI decide what's best for all of us? Now, that's risky.

("Extra crispy chicken and deep-fried panic", syndicated/Tracy (Calif.) Press, Jun. 19).

Meanwhile, carried along on a tide of credulous press coverage, CSPI says it's thinking of suing Starbucks over its overly calorie-laden wares ("Starbucks May Be Next Target of Fatty-Fighting Group", Reuters/FoxNews.com, Jun. 19). Amy Alkon is not impressed (Jun. 19), while Radley Balko (Jun. 17) picks up on perhaps the ripest absurdity in the report:

The union contends that Starbucks staff gain weight when they work at the chain. They are offered unlimited beverages and leftover pastries for free during their shifts.

"This is why organized labor is so important," he adds. "Otherwise, who's going expose Starbucks' exploitive practice of giving its employees free stuff?"

The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved "domestic-violence" programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It's not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer's protestation that "he would not like that", as a reason to turn down a new hairstyle, might be a sign of "controlling behavior" that needs watching. ("Salons join effort to stop violence", Bangor Daily News, Jun. 15) (via van Bakel).

It could be dangerous to publish them in the state of Washington, which has passed a new statute barring the use of the Internet to transmit "gambling information". ""My suggestion to you is to remove from your paper any advice about online gambling and any links to illegal sites," state gambling commission director Rick Day told a Seattle Times columnist. (Danny Westneat, "This column may be illegal", Seattle Times, Jun. 15)(via Balko). Related: Apr. 21 and Aug. 9, 2004; Nov. 18, 2005.

The Supreme Court's decisions earlier this month on the Racketeer Influenced and Corrupt Organizations Act are generally good news for business defendants that have been seeking to narrow the statute's application, reports Marcia Coyle at the NLJ. The Court stuck to its previous position that plaintiffs must prove that a defendant's RICO violation was the proximate cause of their injury, and it sent the Mohawk case (see here, here and here), alleging that a manufacturer's use of illegal immigrant workers amounted to racketeering, back to the 11th Circuit with instructions to apply that test, vacating the existing judgment against the company (cross-posted from Point of Law).

Justin Scheck at The Recorder reports that prosecutors are putting a renewed squeeze on John Torkelsen, former star witness for Milberg Weiss, in another sign that the probe of the firm may have considerably farther to run. ("Federal Prosecutors Put Pressure on Milberg Weiss' Star Expert", Jun. 9). For our previous coverage of the colorful Torkelsen, who is preparing to serve a five-year federal prison sentence on unrelated charges, see Oct. 10, Nov. 5, and Nov. 18, 2005.

On May 2, Bill Childs' blog covered the litigation over Wolfgang Puck self-heating latte cans, a bad business idea gone worse when the cans never quite worked right. A June 17 commenter, however, perhaps demonstrates why some people need lessons in natural selection rather than attorneys (all misspellings in original, emphasis added):

When will there be a class action suit against WP Gourmet Lattes? In this microwave society and Campbell Soup's TV ads on microwavable soup in a can, WP's self-heating can was negligent in it's small, hidden warning against heating in a microwave (which causes a severe explosion in a matter of seconds). Our microwave was destroyed, our kitchen covered in dried latte and most important, my wife required 7 stiches above her eye.

Some skepticism is warranted; on the Internet, noone knows if you're a dog, or an especially subtle prankster. I almost hate to publicize this: there's some chance it's fake, and if it's real, it's likely that this post will help Mr. Edwards find a lawyer who thinks Wolfgang Puck should be held liable when people put a self-heating can in the microwave because its warnings against it weren't sufficiently idiot-proof.

Following up on our May 2 account: the Arlington County, Va., Human Rights Commission has reversed itself and dismissed a complaint against the conservative Christian owner of a video store who declined to duplicate a customer's gay-rights videos ("This week in Arlington", Arlington Connection, Jun. 14; Elizabeth A. Perry, "Fight over Arlington gay video not over yet", Washington Blade, Jun. 16).

In June 2004, a jury found Edward James Egan guilty of raping a 15-year old girl. Egan had asked the victim to mop out a storage shed and raped her in an apartment; she also had a sexual encounter with him in an empty storage unit. This was, according to the follow-up lawsuit filed a month later, the fault of 1st Security Self-Storage, which employed Egan. Egan passed a background check, including references from previous employers, but the defendant paid a $150,000 settlement. The article quotes me, as I note the hidden costs of penalizing employers for their employees' crimes committed outside the scope of their employment. (Mike Allen, "Self-storage company agrees to pay $150,000 settlement", Roanoke Times, Jun. 7).

Our least favorite member of the George Washington University faculty is seeking to lay out the legal backing for a proposal being floated by Arkansas Gov. Huckabee to ban smoking by women who are pregnant. Huckabee recently signed a bill to ban smoking in cars when children are present. (Sullum, Reason "Hit and Run", Jun. 15). More on tobacco and tyranny here.

First in a series.

In 1998, two boys, Mitchell Johnson and Andrew Golden, stole guns from a locked cabinet and engaged in a school shooting at Westside Middle School in Jonesboro, Arkansas, that killed five people. The boys were eventually convicted of capital murder. 2006 Democratic nominee for Attorney General Dustin McDaniel, representing the families of the victims, sued the gun manufacturers. (Kenneth Heard, "Public defenders agency to pay for Jonesboro shooters civil case", Arkansas Democrat-Gazette, July 27, 1999). A judge threw out the suit, but the defendants had to spend money to defend themselves, part of a trial attorney campaign against gun manufacturers. (Kenneth Heard, "Gun maker, grandfather dropped from school shooting suit", Arkansas Democrat-Gazette, May 10, 2000). The suit was further controversial because a judge ordered taxpayers to pick up the cost of defending the civil lawsuit against the two shooters.

(Know of other trial lawyers, Republican or Democrat, with appalling suits running for office this November? E-mail me.)

According to the New York Daily News' columnists Rush & Molloy (Jun. 13): "Barbra Streisand's emergence from 'retirement' has set off a buzz among longtime Streisand fans, who say they paid exorbitant amounts of money for her last 'retirement' tour and may file a class-action suit against the legend for tricking them into thinking they were seeing her for the final time."

For those who find this idea utterly far-fetched, it should be noted that quite a number of years ago an unsuccessful class-action suit was pursued against General Motors following its reintroduction of convertible Cadillac models; a few years earlier, some enthusiasts had purchased some other convertible Caddies following press buzz about how they were going to be the last convertibles built in America.

Lawyers successfully urge a Virginia jury to send a message:

Justin Simmons was killed in April 2004 in Daleville, north of Roanoke, when a mower operated at his daycare center rolled backward while going up a slope and over the child....

The jury held MTD responsible for not designing a mower that automatically stops its blades whenever it rolls backward. No such mower exists or has ever been tested, [company attorney John] Fitzpatrick said.

The company also argued that the operator of the mower, whose wife was the daycare provider, had ignored safety warnings. ("Jurors award $2 million in child's mower death-- company to appeal", AP/Richmond Times-Dispatch, Jun. 15).

More: Considerable further detail is to be found in Mike Allen's coverage for the Roanoke Times: "Lawyers for lawn mower maker, operator lay blame in boy's death", Jun. 8, and "Lawn mower company liable in boy's death", Jun. 15.

More: Aug. 18.

The grandson of James Joyce, Stephen James Joyce, has used his control of the copyrights to Joyce's work to impede scholarly research by threatening to withhold consent to any academic who would veer into investigation of the family history. He spent a hundred thousand dollars of the estate's money to halt publication of a new edition of "Ulysses"; has "blocked or discouraged" a number of readings; and threatened to sue the National Library of Ireland when it sought to display its copies of Joyce's manuscripts. In revenge for Michael Groden's favorable blurb of a scholar Stephen Joyce disliked, Joyce quoted a price of a million and a half dollars for Groden's right to quote "Ulysses" in the multimedia work he spent seven years preparing. D.T. Max in the June 19 New Yorker explores the younger Joyce's battles, and also mentions other litigious literary estates.

Cathy Young has been going back and forth with her critics on the topic (Jun. 13).

That's how much Purdue Pharma has reportedly spent in legal fees in its generally successful defense of its painkiller Oxycontin against product liability assault (Lattman, Jun. 14). See our earlier post of Sept. 28, 2004, at which point the meter had reached $250 million.

I've got an op-ed in today's New York Post about the rising tide of liability lawsuits against New York City and its taxpayers (cross-posted from Point of Law). For more on how Assembly Speaker Sheldon Silver's office disposes of reform legislation in Albany, see Henry Stern's NYCivic, Jun. 14.

"A nanny who was arrested after police viewed hidden camera video recordings that appeared to show her shaking a 5-month-old baby is suing the recording system's manufacturer." Prosecutors dropped charges against Claudia Muro when experts noted that the "nanny-cam" in question captured only 5.5 frames per second, as opposed to the 30 frames of video cameras, with the result that the nanny's movements with her infant charge might have appeared abnormally jerky and violent. "Muro's attorneys said the Tyco Fire & Security recording system needed a warning on it that the cameras did not capture real-time movement and could distort the speed of motion." (WTVJ/MSNBC, Jun. 14; Jon Burstein, "Nanny who spent time in jail files lawsuit against hidden-camera company", South Florida Sun-Sentinel, Jun. 14)(& Cutting Edge of Ecstasy).

"Robert Musil" marvels at the apparent untouchability of a key witness in the Anthony Pellicano wiretap case (Jun. 13) . At Volokh Conspiracy, Jonathan Adler skeptically examines a tendentious piece in Scientific American which claims that the Supreme Court's pending decisions on two wetlands cases, Rapanos and Carabell, imperil the survival of the Florida Everglades (Jun. 13). The trial of journalist Oriana Fallaci, on charges of "insulting Islam" (see Jun. 11, 2005), has begun in an Italian courtroom; among the many giving it coverage are Dave Zincavage, Michelle Malkin and Howard M. Friedman. And Tyler Cowen expounds his opinions on the "net neutrality" issue here.

Our experiment with BlogAds is enough of a success that at the moment we've actually got more ad submissions than we have space to fill them. Of course we don't necessarily endorse the ideas, positions, products and services of our advertisers, but by checking out their sites you can compliment them on their good taste in choosing to advertise on Overlawyered.

Peter Lattman throws open the question (Jun. 13) whether indicted Milberg Weiss should be kept on in lead counsel in class actions. The fun arrives with comments #4 through #15, entered in quick succession under twelve different names between 11:12 a.m. and 11:19, more than one per minute, each of which defends Milberg and deplores the indictment in tones that are, well, you might say, curiously consistent with one another. An employee comment-swarm? A prankster? Pure coincidence? If it was an instance of Astroturf commenting, it certainly could have been done more skillfully.

Ilya Somin notes an aspect of the Daryl Hannah squatting that the media has ignored. By protesting and suing over the revocation of an "urban garden" by a landowner that let the community use the land gratis for fifteen years, Hannah and her compatriots ensure that future landowners won't dare allow urban gardens in the first place to avoid future litigation expenses if they try to close them down. (LA Times columnist Steve Lopez has some acid comments about the hypocrisy of the limousine liberals involved.) I noted a similar paradox about heritage commissions last year on Point of Law.

"KFC may be finger-lickin' good, but a consumer group is suing the chain over the kind of fat used to fry the food. Dr. Arthur Hoyte, a retired physician from Rockville, Md., and the Center for Science in the Public Interest, want a judge to order Kentucky Fried Chicken to use other types of cooking oils or make sure customers know about trans fat content immediately before they make a purchase." ("Colonel Sanders Under Attack for Trans Fat Content", AP/WTOP, Jun. 13). For more on food suits, see our Eat, Drink and Be Merry page; for more on the nanny-maniac CSPI and its coercive designs on our menu choices, see Jan. 20 and Feb. 7, 2006; Feb. 25, 2005; and Sept. 19, 2003.

More: Peter Lattman notes (Jun. 14) that "According to the story on the suit in today’s New York Times, fast-food chains began using trans fats in the 1980s after nutrition groups demanded that the chains stop frying in beef tallow and palm oils. Nowadays, trans fats are considered more harmful than saturated fat." Plus Jonathan Adler and commenters, Jacob Sullum.

...they do things very differently than we do in the U.S. when it comes to civil litigation. (But then every other country does things very differently than we do.) Ilkka Kokkarinen (Sixteen Volts) says kind things about The Excuse Factory -- thanks (Jun. 9).

On TuckerMax.com, anonymous participants used harsh language in deriding a holiday party thrown by a Philadelphia-based publicity firm. Its operator sued for defamation, and U.S. District Judge Stewart Dalzell ruled that under federal law a blogger cannot be held legally liable as the "publisher" of anonymous comments. And no, this does not mean that participants in our comments section should from now on assume that anything goes. (Shannon P. Duffy, "Judge: Bloggers Entitled to Immunity Under Communications Act", Legal Intelligencer, Jun. 2).

Previous entry.

Steven Levitt and his publisher Harper Collins filed straightforward motions to dismiss Count 1 and Count 2 of Lott's complaint, pdf files of which are available on Overlawyered. (Please don't deep-link.) Elsewhere, Jon Weiner and John Lott battle in the LA Times op-ed pages.

Update: Jim Lindgren analyzes the case.

"The embattled securities class-action law firm Milberg Weiss Bershad & Schulman received some political backing last week with the release of a statement signed by four Democrats from the House of Representatives condemning last month's indictment in Los Angeles of the firm on criminal charges. ... The statement was signed by three representatives from New York -- Charles Rangel, Carolyn McCarthy and Gary Ackerman -- and Robert Wexler from Florida. One of the founders of the law firm, Melvyn Weiss, is a high-profile fund-raiser for the Democratic Party." (Julie Creswell, New York Times/Wilmington (N.C.) Star-News, Jun. 12).

TheLawyer.com, based in the United Kingdom, fumbles the story badly by reporting that Milberg "has picked up a powerful ally in the shape of the US Congress". (Joanne Harris, "US Congress slams Milberg Weiss indictment", Jun. 13, note the equally erroneous headline). In fact, the four representatives who signed the letter are hardly typical members even of the Democratic caucus in the House, let alone of the Congress as a whole (which, someone should tell TheLawyer.com, is controlled by Republicans). See, for example, Jeremy Pelofsky, "Democrats returning money to two Milberg lawyers", Reuters, Jun. 9 (Democratic National Committee, perhaps wiser than Reps. Rangel, McCarthy et al., seek to distance themselves from firm by returning some of its donations, a step already taken by New York's Eliot Spitzer). More: Prof. Bainbridge, Jun. 12.

Maybe the best policy, in staying medically well-informed, is just to tune out the news reports that emanate from the litigation sector. (Victoria Clayton, MSNBC, Jun. 5)(via KevinMD). See Apr. 4.

"A man who was beaten by employees of a store he was trying to rob is now suing." Dana Buckman "pleaded guilty to first-degree robbery and was sentenced to 18 years in prison as a repeat violent felon" after police say he pulled a semi-automatic pistol and demanded cash from workers at an AutoZone in Rochester last July. Instead, "employees Eli Crespo and Jerry Vega beat him with a pipe and held Buckman at bay with his own gun. ...Now Buckman is suing the auto parts store and the two employees who beat him, claiming they committed assault and battery and intentionally inflicted emotional distress." ("Man who tried to rob store sues for 'emotional distress'", AP/WAVY, Jun. 12; Michael Zeigler, "Foiled robber claims he's the victim", Rochester Democrat & Chronicle, Jun. 10).

Selective enforcement is one of the many problems with a law that can reach out to ensnare David Ahenakew, an elderly aboriginal leader in Saskatchewan, but seems to pass right over preachers of violent jihad. "But hate laws aren't really about hate. They're about abusing and stretching the criminal code to criminalize political dissidents." (Ezra Levant, "Abolish foolish law", Calgary Sun/Canoe, Jun. 12).

Prosecutor Michael Nifong's case is in shambles, or so it would seem from Duff Wilson and Jonathan D. Glater's coverage in the New York Times ("Prosecutor's Silence on Duke Rape Case Leaves Public With Plenty of Questions", Jun. 12). See May 4, May 17, May 22, etc.

"An English-only ordering policy at one of Philadelphia's most famous cheesesteak joints has prompted a city agency to pursue a discrimination complaint. The city's Commission on Human Relations plans to file the complaint Monday, alleging the policy at Geno's Steaks discourages customers of certain backgrounds from eating there, said Rachel Lawton, acting executive director." Owner Joseph Vento, who posted the now-famous signs telling customers, "This is America: When Ordering 'Please Speak English'", says "he has no plans to budge. 'I would say they would have to handcuff me and take me out because I'm not taking it down.'" (Patrick Walters, "City agency: Cheesesteak shop's English-only policy discriminates", AP/PennLive, Jun. 12; BizzyBlog; Bainbridge, Jun. 10). P.S. At XRLQ, commenter "Doc Rampage" writes, "If this suit goes forward, I’m going to sue Starbucks for making me say 'Venti' instead of 'large.'" Update Feb. 18, 2007: city commission finds probable cause for discrimination complaint.

"There's big money in blaming others for your own bad luck. Too bad it costs all of us." Roundup of numerous baffling/colorful cases most of which will be familiar to readers of this site; yes, I helped, and yes, reporter Michael Crowley generously quotes me and cites this website ("That's Outrageous: Lawsuit Lunacy", Jul.).

More: in a sidebar, the Digest's Dan O'Connor lists us among three sites it recommends that "can help you learn more and speak up".

On Jun. 19, 2005, police say, at the Keg of Evanston pub in suburban Chicago, Antoine Hill, then 19, shot to death Robert Gresham, 22, in a dispute over drugs. Now Gresham's estate is suing the bar, for allegedly letting Hill inside and serving him alcohol; and a bank, as well as Hill himself. "Charles Jacques, the attorney representing Gresham's estate, said he suspects the bank might own the building the bar is in." Hill has pleaded not guilty to charges of first-degree murder. ("Suit filed in Evanston shooting", Chicago Tribune, Jun. 9).

John Caher in the New York Law Journal discusses the views of Benjamin Cardozo on assumption of risk:

Assumption of risk in cases arising from athletic or recreational activities is a principle that has been part of New York law at least since 1929, when in Murphy v. Steeplechase Amusement Co., 250 NY 479, Chief Judge Benjamin N. Cardozo said that one who "takes part in ... sport accepts the dangers that inhere in it so far as they are obvious and necessary." That case involved a plaintiff who fell from an amusement park ride called "The Flopper" and suffered a leg injury.

"Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall," Cardozo wrote in reversing the Appellate Division, 1st Department. "Many a skater or a horseman can rehearse a tale of equal woe... . One might as well say that a skating rink should be abandoned because skaters sometimes fall." He added: "The timorous may stay at home."

("Panel Rules Hurt Olympic Skater Assumed 'Inherent Risk' of Sport", May 1). Declarations and Exclusions (Apr. 7) and Rick Karcher (May 22) have more on some recent assumption-of-risk cases in California, including a 6-1 decision by the state's high court ruling that a college baseball player could not sue over a "bean ball". See Mike McKee, "Calif. Supreme Court: Ballplayer Can't Sue for Bean Ball", The Recorder, Apr. 10.

"Palm trees along the seafront at Torbay have been emblematic of the English Riviera for decades. Now they have become emblematic of the modern obsession with health and safety. Council officials have written to the chamber of trade saying the trees are a potential hazard because their sharp leaves could cause injuries to eyes or faces." (Richard Savill, "Palm tree ahead danger", The Telegraph, Jun. 10; Steven Morris, "Keep dangerous palms off the street, Torbay told", The Guardian, Jun. 10)(& Sense Is Not Common).

"The New York Times, the Washington Post, the Los Angeles Times, ABC News, and the Associated Press pooled $750,000 last Friday to buy their way out of a civil suit in which they weren't even defendants....the money isn't the issue. A greater danger is that the Wen Ho Lee settlement may signal to plaintiffs' attorneys that newsrooms are becoming soft touches when it comes to subpoena defenses." (Jack Shafer, "Wen Ho Ho Ho Lee Gets Last Laugh", Slate, Jun. 7). Another view: Michael Kinsley, "Two Bad Cases for Anonymity", Washington Post, Jun. 11.

Lloyd Constantine of Constantine Cannon and his co-counsel asked a judge for more than $600 million in fees and expenses for their work representing plaintiffs in the Visa/MasterCard antitrust litigation (see "$550 million? We're worth it", Aug. 22, 2003). He hired two big-name lawprofs, Columbia's Jack Coffee and Harvard's Arthur Miller, to draw up expert reports blessing the fees. However, the judge described the request as "absurd" and "fundamentally unreasonable", instead allowing $220 million. Cue the violins! (Paul Braverman, "A $220 Million Payday", The American Lawyer, Jan. 20). Incidentally, "before he started the firm, [Constantine] spent eight years at Legal Services Corp. and 11 at the New York state attorney general's office, where he was in charge of antitrust enforcement".

"Attorneys warn that virtual medicine -- which has popped up in hospitals and clinics in more than a dozen states in the last two years -- could open the floodgates to malpractice claims, privacy disputes and licensure problems." (Tresa Baldas, National Law Journal, Jun. 9). Reader James Ingram writes:

This is infuriating. One of the understood failings of the U.S. health care system is the poor monitoring of patients with chronic conditions such as asthma, hypertension, diabetes and the resulting poor compliance with proven treatment regimes. Virtual medicine is a very promising solution to this problem, enabling patient and doctor to consult briefly and frequently without the inconvenience (to the patient) of making an office visit. In a five or ten minute web conference patient and doctor can discuss topics such as blood pressure or blood sugar readings, compliance with medication regimes, diet and exercise, symptoms and side effects experienced etc. without either having to leave home or office. Do we think we will get better results with the present system -- where the patient must take time off from work, drive to the doctor's office, wait and wait some more -- and therefore doesn't bother?

And that's not even to mention the opportunities to reach patients who have difficulty making it to their doctor's office because of age or disability or the opportunities for patients in small towns and rural areas to consult specialists in distant cities.

Ask Paramount, whose lawyers zealously police unauthorized discussion of the Star Trek franchise (NitCentral, May 15, 1998, scroll to Phil Farrand, "I'm afraid I have some bad news"; Aug. 7, 1998, scroll to "Bullies on the Playground"). More on fan literature: Feb. 14, 2005.

Diners who order shellfish, such as mussels, assume the risk of encountering broken pieces of shell, ruled a New York judge who threw out a Long Island woman's lawsuit against the Blue Moon restaurant in Rockville Centre attempting to recover for injuries arising from her encounter with the allegedly defective plate of mussels marinara. ("Judge Shucks Shellfish Suit", WCBS, undated, about Jun. 7). More: Lattman, Jun. 12.

Perennial anti-videogame action-filer (and Overlawyered favorite) Jack Thompson is at it again, this time in Louisiana:

Acting on a Florida lawyer’s suggestion that violent video games may have figured in Tuesday’s slaying of a West Feliciana Parish man, sheriff’s deputies searched the home of one teenage suspect again on Thursday.

West Feliciana Parish Sheriff’s Capt. Spence Dilworth said deputies seized several video games rated “M” for “Mature” from the residence of Kurt Edward Neher, 16, but the detective said he is not drawing any conclusions from his findings.

Thompson says "published reports of Gore’s injuries 'raised a red flag' in his, Thompson’s, mind." For instance? Well, reports that the youths killed their victim because he would not lend them his car reminded Thompson of scenarios in "Grand Theft Auto", and that "the apparent repeated 'pummeling' of the victim is consistent with scenes in violent video games." Douglas Lowenstein, president of the Entertainment Software Association, responded in a rather restrained fashion, pointing out that “Violent crime involving kids predates video games”. (James Minton, "Video games seized from teen’s home", Baton Rouge Advocate, Jun. 3).

Chicago's recently enacted ban on the delicacy (Apr. 27, May 4) has got Alderman Edward M. Burke thinking: now that we've started, why can't the city ban less healthy frying oils and that sort of thing too? (Fran Spielman, "Alderman wants to limit fatty, fried fast food", Chicago Sun-Times, Jun. 8).

More: In April, the Washington Post ran an op-ed by a cardiologist who averred:

Food calories are so pervasively and inexpensively available in our environment that they should be regarded as a pollutant. Just as an asthmatic can't help but inhale pollutants in the air all around him, we Americans cannot help but ingest the calories present in the environment all around us.

(John G. Sotos, "A Modest -- and Slimming! -- Proposal", Apr. 7). The Consumerist (Apr. 13) and Rogier van Bakel (Apr. 18) react with appropriate scorn. And a new report commissioned by the federal government proposes that the feds jawbone restaurants into reducing portion sizes ("FDA Report Urges Restaurants to Help Downsize America", AP/Washington Post, Jun. 3). See also Radley Balko, Apr. 21.

L.A. Times runs with the first part of a three-part series investigating the court system in Las Vegas, Nevada, where the quality of justice obtained seems to have a lot to do with whether lawyers have forked over campaign donations to the judge who hears their cases, where judges can do all sorts of things with their campaign funds that they'd be barred from doing in other states, and where undisclosed conflicts are rife. Names lots of names, too (Michael J. Goodman and William C. Rempel, , "In Las Vegas, They're Playing With a Stacked Judicial Deck", Jun. 8). More: Part II is here and Part III is here.

...and responds thusly and thusly (Jun. 3, 4). More: Carolyn Elefant, Jun. 5.

Gloucester, England:

A suspected car thief who bombarded police with bricks and tiles during a rooftop siege was given a Kentucky Fried Chicken takeaway meal by officers to ensure his "well-being and human rights"....

A spokesman for Gloucester police said: "He has been demanding various things and one was a KFC bargain bucket. Although he's a nuisance, we still have to look after his well-being and human rights. He's also been given cigarettes."

(Richard Savill, "KFC meal 'ensures siege man's rights'", Daily Telegraph, Jun. 7).

Another one has been filed, but in this case voluntarily dismissed, says Eric Goldman (Jun. 5).

A federal judge has ordered lawyers to use a round of the game to resolve a squabble over the location of a deposition (Roger Parloff, "Judge orders lawyers to play game", Fortune, Jun. 7; Carton, Jun. 7). As Eugene Volokh points out (Jun. 7), there are many legal disputes and issues which can be resolved through a random mechanism without shocking the conscience. For one that went too far, however, see our May 1, 2000 post on a Louisville, Ky. jury that reportedly flipped a coin to convict a man of murder.

Peter Lattman (Jun. 6) notes a judge's approval of $10.5 million in legal fees for 4 1/2 months' work in the Delta Air Lines bankruptcy (see Apr. 1). "According to the AP, the overall fees and expenses for all advisors (lawyers, bankers, consultants) working on the case could reach $205.9 million if the bills continue at the same rate until Delta exits bankruptcy, which it expects to do by next summer."

Also, back on Mar. 28, Tom Kirkendall noted the trimming of a fee request in the Enron bankruptcy (see Jul. 23, 2004).

More: Carolyn Elefant writes, "It's cases like these, where the client is captive and using other people's money, i.e., its creditors', that drive rates up and perpetuate the billable hour....Why is a firm charging $420 an hour for kids just out of law school?" (Jun. 7).

This ad campaign from the Donato's Pizza chain spoofs lowbrow law-firm TV advertising.

Vermont: "The driver in a [one-car] fatal accident in Westmore two years ago has sued the families of the two [passenger] victims of the crash. Charles Meyer and his mother Julie Jensen, who had a summer home in the area, said they have been the subject of critical public sentiment and claim that the two other teenagers were partly responsible for their deaths." The legal action appears to be in the nature of a counterclaim before the fact against the families, who are expected to sue Meyer over his role as driver and Jensen for having entrusted the car to the youths. "Meyer, 14, was driving without a license." (AP/Boston Globe, May 28; Sam Hemingway, "Westmore double-fatal takes another odd turn", Burlington Free Press, May 28).

The death in March of John Fiocco, Jr., at the College of New Jersey remains shrouded in mystery. He was last seen drunk in a dormitory at 3 a.m.; a month later his remains were found in a landfill among trash brought from dumpsters at the college. According to the Philadelphia Inquirer, police "have said they do not know whether alcohol played a role in Fiocco's death, or whether there was foul play." Nonetheless, Fiocco's family, represented by attorney Glenn A. Zeitz of Haddonfield, N.J., is planning to sue the college for more than $5 million, arguing that it should have hired more security, done more to enforce underage drinking laws, and kept students away from the trash system. (Jan Hefler, "Family to sue college over son's death", Jun. 6).

The reformist website Sick Of Lawsuits points out an unpleasant side-effect of the typical lawyers' ad campaign seeking to drum up lawsuits over side effects of prescription drugs, namely that it may cause patients to go off medications that are a good bet for them:

"* Twenty-five percent of patients said they would immediately stop taking a prescribed drug if they saw an ad for a lawsuit involving that drug. (Pharmaceutical Liability Survey, Harris Interactive, July 15, 2003)

"* Nine mental health patients in South Mississippi stopped taking their prescribed medications after seeing personal injury lawyer advertising regarding Zyprexa and Risperdal - drugs used to treat patients with schizophrenia and bipolar mania. 'People see these ads and they think that they're bad for them, so they quit taking them,' said Teri Breister, executive director of the National Alliance for the Mentally Ill in Mississippi. 'But these patients' lives have come apart again. Every time they stop taking their medications, the episodes become worse.' ('Tort Advertisements Worry Some Health Advocates,' Biloxi Sun Herald, March 21, 2004)"

More: Prof. Childs.

The Pittsburgh Post-Gazette takes a look at the system of plea bargaining and the pressure it can place on defendants to forgo their right to a jury trial of the charges against them. (Paula Reed Ward, Mar. 27)(via Balko).

Prof. Childs has an update (May 31) on Aramark's appeal of the $105 million verdict (see Jan. 21 and Feb. 2, 2005) awarded by a jury because its Giants Stadium concession allegedly negligently sold beer to a football patron who later drove drunk into a catastrophic accident.

Headline of this Traverse City, Mich. tale says it all: "Man Who Put Dead Mouse in Burrito at Taco Bell Given Prison Time" (AP/FoxNews.com, Jun. 2). One word of advice: if you're going to pull this kind of stunt, don't use the kind of frozen mice that pet stores sell as food for snakes, at least not if anyone can testify to your having bought them.

The proprietor of Ethical Esq. is going into hibernation for a while on his blogging efforts, which are invariably among our first stops on the legal-ethics beat. His archives can be found here and a collection of his ethics resources here. Here's to a speedy return!

The tale of Dr. Lenard Rutkowski: plaintiff John Murphy was caught on the stand faking his injuries, but the jury was offended by the violation of privacy from the defense's secret videotaping of the plaintiff lifting heavy file cabinets, and awarded $5.6 million in damages for a medical error, even though a second surgery didn't fix the problem for which he blamed the first doctor. Murphy eventually settled for $3 million, and he and his lawyer suffer no consequence for his exaggerations. Illinois, however, lost a neurosurgeon; Rutkowski's practice was disrupted for years, and he eventually found it was cheaper to practice in a state where insurance rates were nearly 80% lower. (Berkeley Rice, Medical Economics, Jun. 2) (via Kevin MD).

The fact that Rutkowski sued his insurance company for the difference between his policy limits and the verdict shows why the ability of plaintiffs to get jackpot-sized damages on noneconomic claims has an effect on insurers and insurance prices even beyond insurance policy limits.

Not a terribly useful meme, thinks Tyler Cowen (Jun. 5).

Some years back, observing that such old-line health non-profits like the American Lung Association, American Heart Association and American Cancer Society had vocally backed tobacco product-liability litigation along with other bad causes, I suggested the National Kidney Foundation as a major health charity to which one could donate in good conscience without fearing that one might be undermining the cause of liberty and personal responsibility (Reason, Aug./Sept. 1997). Whoops! Virginia Postrel makes me realize I may have been off base with that one (Jun. 2, Jun. 4). Oh well, there's still the admirable anti-cleft-palate Smile Train.

I'm scheduled to be a guest on Bill O'Reilly's radio program today, shortly after noon Eastern time, to talk about the role of judges.

Sometimes they're doctors: "Since 2001, [Dr. Elizabeth] Rohr has filed at least 900 pages of lawsuits, court records show. There are 14 lawsuits bearing Rohr's name in the Denton County database." (Ben Tinsley, "Litigious doctor busily adds to court dockets", Fort Worth Star-Telegram, May 2)(via KevinMD).

So does she have a valid claim for wrongful death of the baby? And does it matter that the abortion was not medically obligatory, but was something she elected after weighing medical advice on a variety of possible risks and complications? (Dave Newbart, Chicago Sun-Times, Apr. 6; SPRT, Apr. 9).

Federal Express drivers Edgar Rizkallah and Kamil Issa, both of Lebanese descent, say the nasty epithets from their manager went on for two years, which means the award works out to $15 million per epithet-year, $290,000 per slur-week, or $40,000 per imprecation-day. It was divided between $11 million in compensatory damages to the two men and $50 million in punitives. The jury assessed $1 million in damages personally against the supervisor, Stacy Shoun, terminal manager for the FedEx Ground facility in Oakland. He'll certainly think twice about behaving that way again, won't he? (Jordan Robertson, "Jury awards $61 million to two FedEx drivers in harassment suit", AP/San Francisco Chronicle, Jun. 3). Update Oct. 2: judge reduces award to $12.4 million.

...for joining us the past week as a guestblogger. You can follow Don's writing regularly at CafeHayek.com, "where orders emerge". P.S. And thanks for the thanks.

The New York Times "Small Business" section looks at how Garden Grove, Calif. liquor store owner Vinod Kapoor fought back when targeted by attorney Harpreet Brar, famed for his lawsuits demanding legal fees from small businesses over alleged regulatory infractions (see Aug. 20, 2002, Jul. 22, 2003, Nov. 1, 2004). Included are some updates:

In February, Judge Polos [Peter J. Polos of Orange County Superior Court] sent Mr. Brar to jail for two weeks for violating his order [not to name multiple businesses in one suit], calling him "an extortionist."

Mr. Brar said his experience in jail was a "nightmare," which he said included watching several inmates be beaten by guards. Mr. Brar said he planned to represent several of them.

On April 16, Mr. Brar was suspended from practicing law for 30 days and placed on probation for two years for filing a frivolous motion and appeal against the attorney general and for using the courts as a delaying tactic, according to Kristin Ritsema, one of several supervising trial counsels at the state bar.

"I think he is a huge threat to the public," Ms. Ritsema said.

Another local liquor store owner, Herve Domange, who is from Paris, said: "You couldn't do this in France. In France, these lawsuits would not be possible. But I don't want to say too much. I'm afraid I might get sued." (Regan Morris, "Picking the Wrong Mom and Pop to Sue", New York Times, Jun. 1).

Electronic Arts has agreed to pay $15 million to settle a lawsuit brought on behalf of software engineers alleging that they should have been classified as hourly workers for purposes of paying overtime, but the "victory" is of a double-edged nature since the beneficiaries will lose access to stock options as well as bonuses. Earlier, EA agreed to pay $16 million to settle overtime claims on behalf of graphic artists. (Nicole C. Wong, A&E Interactive (Mercury News), Apr. 25). See Mar. 29, 2000; also various Point of Law posts.

"Lawyers who have been representing survivors of Canada's residential school system are expected to get the biggest payment ever recorded for a Canadian class action case." The federal government will pay about C$80 million in fees, of which half will go to the Regina-based Merchant Law Group and half to a consortium of other lawyers. ("Lawyers set to be paid $80M in school abuse deal", CTV, May 8; "School abuse deal includes $80M for lawyers", CBC, May 8). The fees are part of a $2 billion deal intended to resolve portions of the litigation over the federally-sponsored, church-run Indian schools, which were originally accused of permitting the infliction of physical and sexual abuse on some of their students; later the litigation expanded to include charges of "cultural deprivation" and alienation on behalf of thousands of Native Americans who attended the schools, which were geared toward assimilation into Canadian culture (FAQ from CBC on settlement). More: Aug. 23-24, 2000.

As a means of conserving oil, Sen. Hillary Clinton wants Uncle Sam again to mandate a maximum speed limit of 55 MPH. Presumably she's aware that lowering the speed limit will cause us to spend more time on the roads and less time at our destinations.

But on her website, Sen. Clinton expresses concern that Americans are strapped for time: "Today's families are often stretched thin - working to make ends meet while also trying to carve out time to care for their young children and aging relatives."

Assuming consistency across her various policy positions, we can conclude that Sen. Clinton is confident that the value of the time that a 55 MPH speed limit will force us to waste on the roads is worth less to us than oil we'll save by driving more slowly.

Let's explore. Assume that the typical car on the road today gets 25 miles per gallon on the highway and that a gallon of gasoline costs $3.00. Further assume (rather generously) that driving more slowly will increase the typical car's fuel efficiency from 25 mpg to 35 mpg.

On highways where the speed limit currently is 75 MPH, reducing the speed limit to 55 MPH will cause a driver to cover 20 fewer miles in one hour of driving. To travel these 20 miles at 55 MPH will take 21.82 minutes. That is, the distance a driver covers in one hour driving at 75 MPH requires 81.82 minutes to cover while driving at 55 MPH.

At today's average hourly wage rate for non-supervisory workers of just over $16 -- but let's call it an even $16 -- this 21.82 minutes is worth $5.82. (That is, working at a wage rate of $16 per hour, a worker will earn $5.82 in 21.82 minutes of work.)

But how much does the driver save, fuel-cost-wise, by driving more slowly?

Driving at 75 MPH (and getting 25 mpg) costs the driver $9 of gasoline per 75-miles driven. (Remember that gasoline is priced at $3 per gallon.) Driving at 55 MPH (and getting 35 mpg) costs the driver $6.42 of gasoline per 75-miles driven.

In short, for every 75-miles covered on a highway, reducing the speed limit from 75 MPH to 55 MPH will save a driver $2.58 in fuel cost -- and this assuming that the increase in fuel efficiency of the average car caused by the lower speed limit is a whopping 10 mpg. But the resulting greater time on the road will cost a driver earning the average non-supervisory wage $5.82 worth of his or her time per 75-miles driven.

The net cost to the average worker driving the average car will, under the above reasonable assumptions, be about $3.24 per 75-miles driven. Not a good deal, Sen. Clinton.
......

Here's a challenge for a clever student: assume (as is reasonable) that an enforced speed limit of 55 MPH will cause the price of gasoline at the pump to fall. By how much would it have to fall (under the above assumptions) in order to make the $$$ saved on gasoline exceed the $$$ value of the extra time spent driving?

Did Nurse Bloomberg's undercover extraterritorial agents break the law themselves? And did they jeopardize real investigations along the way? (No Silence Here, May 24)(via Reynolds)(see May 17). Similarly: Wally Nelson, "Amateur Hour", New York Sun, Jun. 5 (sub-only).

Reader Matt Manor sums up this Newsday article about a controversy in Hewlett Harbor, Long Island: "Golf club loses suit on errant balls, faces injunction to end them, erects large net to comply, and is promptly sued by homeowners who think the net is ugly. You can't win." (William Murphy, "Golf course can't seem to hit straight", May 24). More on errant golf balls: May 24, Oct. 6, 2004 (Australia).

We've posted many times (Jul. 21, 2004, Mar. 24, 2006, etc.) on the subject of students who angle for extra time on exams through the use of debatable or borderline disability diagnoses, but Mike Cernovich has an anecdote from personal experience (Mar. 15) that should raise the level of alarm. P.S. Here's more from Boston, where 12 percent of students in the affluent suburb of Wayland are getting accommodations (Ron DePasquale, "More time for SATs a concern", Boston Globe, Jun. 1).

Among its other defects (see links gathered here), this misbegotten proposal would impose a single federalized outcome on states and localities which currently take widely differing views of same-sex marriage. Some FMA advocates have sought to depict the federalist objections to the amendment as mere makeweight and window dressing -- tactical objections by opponents who dislike the proposal for its substance and are merely casting about for arguments against it. One hopes these advocates were suitably chastened in March when James Q. Wilson, doyen of conservative policy analysis, announced his opposition to the amendment citing exactly these federalist grounds:

The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it....

The rising demand that every personal preference become a constitutional right is a worrisome disease. People, of course, do have rights; the Constitution and the first ten amendments spell most of them out. That document defines the essential requirements of life and liberty. Adding new invented rights by either a ratified amendment or judicial overreaching is a mistake.

(WSJ, Mar. 18, reprinted at AEI site). More: Jonathan Rauch, Dale Carpenter's new paper for Cato, Julian Sanchez (& welcome Volokh, Sullivan, Independent Gay Forum readers).

I realize that what I'm about to ask is the intellectual equivalent of taking your date to a monster-truck rally, but where oh where in the U.S. Constitution is the national government empowered to govern the treatment of pets?

The New York Times has some details.

Do Senators Stevens and Lautenberg -- who introduced the Pets Evacuation and Transportation Standards Act into the U.S. Senate -- and the 349 U.S. House members who've already voted for this bill, understand what they did when they pledged to uphold the Constitution? Did they read the document? Are they illiterate? Dead-dog stupid? Or are they simply, well, politicians?

On the expectation that leisured multi-millionaires would be lining up to spend time with her, 60-year-old Erie, Pa. grandmother and social worker Anne Majerik paid big bucks to Beverly Hills, Calif. matchmaker Orly Hadida. The dates were duds, but her consolation prize was an L.A. jury's $2 million award. Both sides had been in court before fighting matchmaking-disgruntlement actions against other parties. The jury forewoman said her colleagues wished they could punish Hadida without rewarding Majerik, but an award to charity wasn't an option. (Jessica Garrison, "Woman Gets $2 Million in Matchmaker Lawsuit", Los Angeles Times, May 31; Lattman, May 31).

Upstate New York: "The Honeoye Central School District failed to keep a teenage student off the Internet as her parents requested, and she ran away with an 18-year-old Syracuse man she met online, the girl's mother claims in legal papers." The 15-year-old used school computers to meet Michael Macbeth, three years her elder, on MySpace; the Ontario County sheriff's office later arrested Macbeth "on charges of endangering the welfare of a child after he picked up the girl at Honeoye Central High School." Now her mother, Luann Waden of Bloomfield, has filed a notice of intent to sue, saying she had asked the school not to let her daughter use the Internet. (Gary Craig, "Mom plans to sue school over Web", Rochester Democrat & Chronicle, May 29).

On May 18 Massachusetts's Supreme Judicial Court "rejected one of the tobacco industry's most successful defenses in wrongful death lawsuits, ruling the companies cannot shield themselves from liability simply by claiming that smokers should know cigarettes are dangerous." (Denise Lavoie, "Mass. High Court Rejects Tobacco Defense", AP/Forbes, May 18). In particular, the court declared it to be "obvious... that cigarettes cannot be used safely and therefore that cigarette use is unreasonable" and ruled that accordingly "public policy demands" that liability be placed on cigarette manufacturers. (Childs, May 18). Jacob Sullum comments at Reason "Hit and Run" (May 22).

In other news, Sullum (May 17) also brings word (via tobacco control movement whistleblower Dr. Michael Siegel) of how "at least 68 anti-smoking groups" -- the American Cancer Society most prominent among them -- "are falsely claiming that a half-hour's exposure to secondhand smoke can cause atherosclerosis and heart attacks."