August 2006 Archives

In a case entitled Gulino v. New York State Education Department, the federal appeals court earlier this month "reinstated a race discrimination suit against the New York State Education Department based on the theory that a test of 'basic college-level content' that asks applicants to get just two-thirds of the questions right is racially discriminatory because it has a 'disparate impact' on African-American and Latino teachers." Dan McLaughlin at Baseball Crank acknowledges that the court relied on existing Supreme Court precedent, but is still rubbed the wrong way by its assumptions (Aug. 31).

While the comments action has been lively elsewhere on this site, I noticed a comment that Jim Collins made on Ted's post "Damned if you do, damned if you don't files: Putnam Hospital" which I thought deserved its own freestanding entry:

The medical profession isn't the only place where this happens. I used to be an aircraft mechanic for one of the major airlines, several years ago. Twice a month, after finishing our shift, we would go to a breakfast meeting. This meeting was attended by all of the mechanics from all of the airlines at that airport who worked the same shift. Several people from the airport and the FAA also attended. The purpose of this meeting was to share information on maintenance and airport safety issues. The FAA rep always took notes, compiled them from all of the shifts and a couple days later a copy was in your mailbox. I know of several problems and possible accidents that were prevented because of the information shared at these meetings. These meetings were suddenly stopped after company management found out that trial lawyers could obtain the minutes of them, from the FAA, through the Freedom of Information Act and use them against the airline in court.

My new column at the Times (U.K.) Online is on last week's Mississippi Katrina insurance verdict. (Walter Olson, "Insurers can breathe easier over Katrina lawsuits", Aug. 30). Concluding paragraph:

Major coverage issues remain to be resolved (and appealed), but at least we can take note at this point that America is not Zimbabwe or Bolivia. As Dickie Scruggs said before the Leonard ruling, "If you win it, it's a huge win. If you lose it, you spin it the best way you can."

Also, I was a guest last evening (6:30 p.m. Eastern) on Marc Bernier's high-rated radio show, "The Talk of Florida" to discuss the article.

David Lat, a.k.a. "Article III Groupie" of the great Underneath Their Robes blog, and former co-head of the DC gossip blog Wonkette, has a new site, Above the Law, that looks promising. Plus, he sent me the same e-mail he sent Eugene Volokh, and anyone who flatters me to tell me I'm as influential as Eugene Volokh gets a free plug.

News clips reporting on large verdicts and settlements cross my desk regularly, and most do not seem on their surface to be worth blogging about. Most are terse summaries of a case's outcome, and others do not present any indication (again, on the surface at least) that a case might have problematic aspects. The other day, however, I ran across a story in the Charleston (W.V.) Gazette describing a case in which a plaintiff had been terribly injured after a retailer sold what the reporter bluntly stated was a "defective mower." This particular newspaper story was so one-sided that I thought there almost had to be more to it than was being reported -- and I had no idea how right I was in that suspicion. This is a long post, but I hope worth readers' while. It certainly makes me wonder how much I'm missing when I don't go into the dockets to fact-check other seemingly run-of-the-mill cases.

Stuart Taylor Jr. arraigns the New York Times for the many weaknesses of the recent article by Duff Wilson and Jonathan Glater which sought to rehabilitate the prosecution's crumbling case. "The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent." (Slate, "Witness for the Prosecution?", Aug. 29). Earlier: Aug. 25, Jun. 24, etc.

The new symposium on legal education at Bill Childs' website is well worth a look-through, even aside from Ted's contribution.

The topics of ATLA's ad campaign in five GOP districts -- drug prices and oil prices -- don't exactly seem central to the organized plaintiff's bar's own mission in life, but perhaps the wider message is just that the national Republican party Must Be Punished for supporting liability reform, and any issues that come to hand will do. (Jim Kuhnhenn, AP/Washington Post, Aug. 29)

Think twice about trying to grow your own from nursery stock: If the patent held by biotech firm Syngenta doesn't get you, the indigenous-flora royalty supposedly owed to the government of Tanzania just might (Antony Barnett, "The new piracy: how West 'steals' Africa's plants", The Observer (UK), Aug. 27).

Attorney celebrations in the news:

"Joseph P. Awad, the incoming president of the New York State Trial Lawyers Association and a partner in Garden City, N.Y.'s Silberstein, Awad & Miklos, was one of the lawyers who participated in TLC. He said the group was holding a dinner on the fifth anniversary of the [September 11] terrorist attacks to celebrate 'the largest pro bono project in history.'"

(Anthony Lin, "Attorney's $2 Million 9/11 Fee Called 'Shocking, Unconscionable'", New York Law Journal, Aug. 28).

Osteopath John King (who now calls himself "Christopher Wallace Martin" in his Alabama practice after surrendering his West Virginia and Texas medical licenses) had a poor record in numerous previous jobs in numerous states, but West Virginia's Putnam County Hospital, the only acute-care center in the county, wasn't able to find that out because the former employers were afraid of being sued. King lasted a few months at Putnam before he was dismissed for incompetence after an investigation, and King responded by suing Putnam and the independent expert who testified against him at a private peer review (as well as the newspaper that reported on his problems). Meanwhile, trial lawyers engaged in a feeding frenzy, filing dozens of lawsuits for tens of millions of dollars against the deep pocket (and some against each other), creating enough adverse publicity that Putnam lost nearly half of its business, and was on the verge of shutting down tomorrow before a last-minute deal to save the hospital was negotiated. Martha Montelongo has an overview in the August 17 Human Events Online. (Lawrence Messina, AP/Charleston Daily Mail, Aug. 28; Chris Dickerson, "Druckman sues former clients over work on King cases", West Virginia Record, Aug. 8; Lawrence Messina, "W. Va. Hospital Says Lawsuits Drive Conversion to Urgent Care Center", AP/insurance Journal, Aug. 7; Chris Dickerson, "Putnam General blames impending closure on trial lawyers", West Virginia Record, Aug. 1).

Now, the record will reflect that I was an early skeptic of the "solving" of the JonBenet case, but the AP's quote of Karr's public defender, Seth Temin, is a bit over the top: "We're deeply distressed by the fact that they took this man and dragged him here from Bangkok, Thailand, with no forensic evidence confirming the allegations against him and no independent factors leading to a presumption he did anything wrong." Er, wasn't Karr a fugitive from justice from California? And there was that whole confession thing...

A Little Rock friend of mine had an emergency gap in his law review, and solicited me to write about the fast-food litigation. I'm not a big fan of the eight-footnotes-a-page-style that law reviews like, but I think the piece is a good overview of what has happened to date. The article, 28 UALR L. Rev. 427 (2006), can be downloaded at SSRN (help me catch up with Bainbridge!) or at the AEI Liability Project website. (cross-posted at Point of Law)

I worry that events have outstripped me; one sentence in the article, "Why is selling soda [to 17-year-olds] an attractive nuisance, but selling ... Internet connectivity is not?" predates the MySpace litigation.

The editors of the Los Angeles Times are not impressed by the decision of the Association of Trial Lawyers of America to change its name to the American Association for Justice (AAJ), and quote Orwell: "The great enemy of clear language is insincerity," he wrote. "When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink." ("A Trial Lawyer by Any Other Name" (editorial), Aug. 11) (via Wallace). See Jul. 28 ("kitten fish"), etc.

Taking advantage of the liberal (and lucrative) provisions of disabled-rights law in the Golden State, wheelchair user Jerry Doran has filed "more than 200 lawsuits in state and federal court against restaurants and other public establishments throughout California, alleging insufficient disability access. He has filed so many suits, in fact, that he has begun to lose track," notes George Wallace at Declarations and Exclusions. Last month U.S. District Court Judge Cormac J. Carney returned judgment in favor of a Del Taco restaurant in Mission Viejo -- 500 miles from where Doran lives -- against Doran's claim of having suffered improper lack of accommodation. Wallace (Jul. 18) takes up the tale:

Although there was no question that Mr. Doran is disabled, Judge Carney was ultimately unable to persuade himself that there was evidence sufficient to prove that Doran had actually sustained any harm at, or had ever actually been to, the Mission Viejo Del Taco.

After describing and praising the purposes of the ADA, Judge Carney's Memorandum Decision [PDF] notes that it is a tool prone to misuse:

Despite the important mission of the ADA, there are those individuals who would abuse its private cause of action provision by filing lawsuits solely with the intent to profit financially. This potential for abuse of the ADA has been well documented in the Central District of California . . . . Courts have referred to this proliferation of ADA lawsuits as a 'cottage industry' and have labeled plaintiffs who file these lawsuits 'professional plaintiffs,' 'serial plaintiffs,' and 'professional pawns.'

* * *

The consequences of this abuse of the ADA are severe: businesses and insurers are harmed, the integrity of the bar is called into question, and the public's confidence in the courts is impaired. . . . Simply put, this litigation abuse of the ADA results in the exact harmful consequences that Congress sought to eradicate by passing the ADA. As more than one court has observed, the result of this abusive litigation is that 'the means for enforcing the ADA (attorney's fees) have become more important and more desirable than the end (accessibility for disabled individuals).'

Most of the remainder of the opinion focuses on the discrepancies in Doran's responses to interrogatories, his responses to questions in deposition three weeks later, and his testimony at trial, in which key details -- such as how often and when he had actually visited the Mission Viejo Del Taco -- slipped and slid uncontrollably. Highlights:

* Doran first went to Del Taco #415 in Spring of 2002 or in Spring of 2003, unless his first visit was in 1988.

* Prior to filing suit, he went to the location twice, or perhaps three times, or possibly just once, although he may have gone there on as many as five or six occasions.

* "Mr. Doran's complaint refers to objects -- display racks and vending machines -- which do not even exist at Del Taco restaurant #415."

* "When Mr. Doran stated that he ordered an enchilada to eat during his alleged visit, he must have been testifying about a trip to a Taco Bell restaurant since Taco Bell -- and not Del Taco -- serves enchiladas."

* "When describing the barriers he encountered at Del Taco restaurant #415, Mr. Doran stated that the hand dryers in the restroom were located too high. . . . Because Del Taco restaurant #415 does not have hand dryers in its restrooms, it is clear that Mr. Doran was testifying about a visit to another restaurant, or place of public accommodation, when asked to identify the barriers he encountered."

* "When asked if there were any fast food chains that Mr. Doran frequented that he had not sued, he replied that he had not sued Kentucky Fried Chicken. In fact, Mr. Doran has sued Kentucky Fried Chicken. When asked to try again, Mr. Doran replied that he had not sued Jack in the Box. Although apparently unbeknownst to him, Mr. Doran has sued Jack in the Box also."

Giving property rights a bad name? "A Broadmoor man who said he rescued more than 200 residents after commandeering a boat during the flood after Hurricane Katrina is being sued by the boat's owner for taking it 'without receiving permission.'" Mark Morice cut the unattended boat loose and managed to hot-wire it, then used it to rescue an elderly dialysis patient and many others; he then left the vessel for other rescuers' use. "The lawsuit contends that boat owner John M. Lyons Jr. suffered his own distress, in the form of 'grief, mental anguish, embarrassment and suffering ... due to the removal of the boat,' as well as its replacement costs." One of those who benefited from Morice's rescue efforts, Molly Gordon, says she has trouble understanding the mental-anguish angle: "This man should be so grateful he had a boat that saved lives," she said. (Steve Ritea, New Orleans Times-Picayune, Aug. 26)(& No Quarter/Michael Silence, KnoxNews).

The Islamic Society of Boston, which is engaged in numerous lawsuits against media organizations and critics of its activities (see Jan. 5, May 19), has now subpoenaed local radio talk station WTTK-FM "after one of its prominent hosts, Michael Graham, discussed the [ISB's mosque-building] project on the air.... after reviewing the subpoena, attorney Harvey Silverglate, a Cambridge civil liberties specialist, described it as 'extraordinary.'", noting that it requests, among other things, "materials used by Graham to support his remarks about the ISB... and communications between Graham and other defendants or attorneys involved in the ISB defamation suit." (Laura Crimaldi, "Islamic Society subpoenas WTTK in defamation suit", Boston Herald, Aug. 27).

Mike Cernovich makes the case against "loss of companionship" damages (Aug. 23). Earlier coverage: Dec. 29, 2005, etc.; see also May 25, 2006.

The Vermont Supreme Court has rejected (opinion, Miller-Jenkins v. Miller-Jenkins, Aug. 4) a Virginia court's attempt to invalidate a pre-existing Vermont order giving Janet Miller-Jenkins rights to visit the child that she and former partner Lisa Miller-Jenkins raised before their breakup. Eugene Volokh (Aug. 4, see also second post of that date) explains why the Virginia court is on shaky ground:

First, despite how Lisa's lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren't married. The relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to "enforce according to its terms" out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) ... (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), "A court of a State [here, Virginia] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination").

Volokh rejects the position -- advanced by some readers in the comments thread -- that the federal Defense of Marriage Act should be construed as overriding the PKPA in this case. It is rather remarkable how many social-conservative commentators fail even to mention the PKPA in discussing the dispute. Earlier coverage of the case: Aug. 15 and Dec. 16, 2004.

Rutgers management professor Gayle Porter shows she's much better at self-publicity than law by generating loads of press coverage for her unfounded claim that employees might hold employers liable for the cost to their personal lives from addiction to personal e-mail devices. (E.g., this uncritical Reuters report (hat-tip F.R.)) Then again, modern-day plaintiffs' lawyers have shown themselves perfectly capable of enough shamelessness to turn parody to reality.

Details in today's New York Times. Overlawyered coverage: June 24, Jun. 13, May 22, May 17, May 4.

That's the title of my guest column for the Business and Media Institute on media coverage of Katrina litigation, on which Point of Law has continuing coverage.

Melbourne Mills, Shirley Cunningham Jr. and William Gallion were "temporarily suspended" from the practice of law by the Kentucky Supreme Court this week. The three had taken well over half of a $200 million settlement Wyeth had given them on behalf of 440 fen-phen users they had represented. (Brandon Ortiz, "3 Fen-phen case lawyers are suspended", Lexington Herald-Leader, Aug. 25; Andrew Wolfson, "Fen-phen case fees poured into racehorses", Louisville Courier-Journal, May 30; Andrew Wolfson, "Judge: Fen-phen lawyers breached duty", Louisville Courier-Journal, Mar. 10; Beth Musgrave and Jim Warren, "Fen-phen settlement is back in the courtroom", Lexington Herald-Leader, Jan. 29, 2005 (reprint)). More: May 10, 2005 (civil lawsuit); Mar. 6 (judge who profited from approval of settlement resigns).

Mills was recently in the news because he won a suit against a secretary who claimed (with the help of a recording) that he promised her an "Erin-Brockovich"-style payment for her help in the settlement. (Brandon Ortiz, "Ruling benefits Melbourne Mills Jr.", Lexington Herald-Leader, Apr. 4). (cross-posted at Point of Law)

To a chorus of dismay from many of those affected, health and safety inspectors have issued strict new guidelines intended to protect soldiers who play the Scottish bagpipes from suffering hearing loss. "As well as wearing ear protectors, the guidelines insist that pipers should only play for a maximum of 24 minutes a day outside, and only 15 in practice rooms....The tests were run because the military feared the possibility of having to pay compensation to soldiers who might argue that their hearing had been damaged by too much pipe-playing. The Ministry of Defence already makes special payments to personnel whose hearing has been affected by working on rifle ranges or in other loud environments." Aficionados of the beloved Scottish instrument called the rules "silly" and "just ridiculous"; an aspiring piper who wants to excel should be spending more than 15 minutes a day on practice, said one. "The pipes should be played loudly, that's how they inspire soldiers and scare the enemy," said Bill Lark, 85, "a veteran Black Watch piper who led his comrades into action against the Japanese in 1944". (Murdo MacLeod, "Army pipers can't believe their ears", Scotland on Sunday/The Scotsman, Jul. 23)(via Dave Zincavage). Earlier coverage: Dec. 22-25, 2000; Mar. 8-10, 2002; Jan. 12, 2004; Nov. 19, 2005.

Iola Scruse, 66, of Louisville, who is on Social Security and paying bills for dialysis, "must pay $6,000 for the 872 songs her grandchildren downloaded, in addition to court fees." Scruse "said she has no idea how she will pay the fine or what her next action will be." Self-employed engraver Michael Brown paid $5,000 "because his teenage daughter had shared nearly 900 music files with others". And: "No lawsuits anywhere have gone to trial, said Jenni Engebretsen, a spokeswoman for the Recording Industry Association of America, a trade group that files the suits on behalf of the companies. ... 'We hope that what is coming out of these lawsuits is that parents are having conversations with their kids,' she said." (Amy H. Trang, "Illegal downloads create unlikely defendants", Louisville Courier-Journal, Jul. 31). The recording industry had sued a Ypsilanti, Mich. man for unlawful downloads; after he died, "the RIAA made a motion to stay the case for 60 days in order to allow the family time to 'grieve', after which time they want to start taking depositions of the late Mr. Scantlebury's children". (new blog Recording Industry vs. the People, Aug. 13; see David Berlind, ZDNet, Aug. 14).

Relatedly, Brad Templeton (Interesting People message list, Aug. 19; via Boing Boing) has coined the term "Spamigation" for litigation or threats of litigation mass-generated by automated processes:

The RIAA strategy is an example of a new legal phenomenon that I have dubbed "spamigation" -- bulk litigation that's only become practical due to the economies of scale of the computer era. We see spamigation when a firm uses automation to send out thousands of cease and desist letters threatening legal action. We saw it when DirecTV took the customer database for a vendor of smartcard programmers and bulk-litigated almost everybody in it...

The RIAA uses systems to gather lists of alleged infringers, and bulk-sues them. It has set a price that seems to be profitable for it, while being low enough that it is not profitable for the accused to mount a defence, as they do not get the economies of scale involved.

Hanno Kaiser at Law and Society Blog (Jul. 18): "Suppose you spent the last eight weeks leveling up in a massive multiplayer online game to obtain a particular armor, only to find out that two days later the online game company took away some of the protective effects of that armor. Do you have a legal remedy for the devaluation of your virtual property?" See also Dec. 30, 2003.

Yes, they helped protect the copyright, but was it worth all the bad publicity? (Amy Kolz, "Baker & McKenzie Goes After Potential Infringers the World Over", The American Lawyer, Aug. 7). Original coverage: Jun. 8.

That's the stern warning for wayward California compensation docs who might be inclined to favor Schwarzenegger in his re-election bid (EconBrowser, Jul. 21; RiskProf, Jul. 25).

In a 2004 case entitled Grosso v. Miramax Film Corp., the Ninth Circuit ruled that federal copyright laws do not pre-empt state-law contract claims over allegedly swiped ideas for entertainment ventures, shows and products. Other federal judges have rejected that position, but a West Coast boom has ensued in idea-submission lawsuits against Hollywood and TV producers, and large plaintiff's firms like L.A.'s Engstrom, Lipscomb and Lack are getting into the field. (Amanda Bronstad, National Law Journal, Jul. 31).

...is at QuizLaw this week, and links to Ted's post on the $6 million smoke detector verdict. Next week the traveling carnival of law-related blog posts moves to Ernie the Attorney.

An Australian QC has appeared in court to argue that vilifying a religion should be considered per se unlawful under the state of Victoria's paradoxically named Racial and Religious Tolerance Act. "[Brind] Woinarski was appearing for the Islamic Council of Victoria in the appeal by Christian group Catch the Fire Ministries and pastors Danny Nalliah and Daniel Scot against a finding under Victoria's religious hatred law that they vilified Muslims in 2002. The Racial and Religious Tolerance Act defines vilification as inciting hatred, serious contempt, revulsion or severe ridicule against a person or class of persons." (Barney Zwartz, "Religion in the dock in Muslim vilification appeal", Melbourne Age, Aug. 22; "Questions over ruling on Muslims", Aug. 23). See Dec. 19 and Dec. 3, 2004, etc.

"A man who sued the city for entering his apartment without a search warrant after he was mauled by his 450-pound pet Siberian tiger demonstrated a lot of nerve in taking the city to court, a judge said as he threw the lawsuit out." After Antoine Yates was seriously bitten by the 10-foot-long pet tiger he was keeping in his East Harlem apartment in Manhattan, police removed it along with an alligator named Al and Yates served 3 1/2 months on a reckless endangerment plea. U.S. District Judge Sidney Stein dismissed his lawsuit, saying it demonstrated "chutzpah". (Larry Neumeister, "Judge Bites Off Tiger Owner's Lawsuit", AP/New York Sun, Aug. 8; Volokh, Aug. 9). The headline in the title above is from the UK's Guardian.

A Nebraska state trooper stopped Emiliano Gomez Gonzolez for speeding on Interstate 80 in 2003 in his rental car, then proceeded to seize $124,000 from a cooler in the back seat. According to the Eighth Circuit U.S. Court of Appeals (opinion, PDF), Nebraska was within its rights to seize the $124,000 as presumed drug money (it then became the subject of a federal forfeiture action) even though 1) Gonzolez had no substantial or drug-related criminal record; 2) witnesses backed up his claim that the money had been pooled by several immigrants for purposes of buying a refrigerated truck for his produce business. Gonzolez had initially denied carrying money, and a drug-sniffing dog had detected drug residues in the rental car, though the same would probably prove true of many other rental cars. ("Court rules 2003 money seizure correct despite no drugs found", AP/Sioux City Journal, Aug. 19; TheNewspaper.com, Aug. 19; libertarian blogs galore including KipEsquire, Radley Balko, Unrepentant Individual). Mike Cernovich (Aug. 21) analyzes what he finds the dubious maneuvers of the Eighth Circuit panel majority in dodging the requirement of deference to the trial court judge's findings.

More unintended consequences of the Endangered Species Act, this time to the detriment of the red-cockaded woodpecker in North Carolina: "Coastal residents clear-cut to avert protected birds' nesting" (Wade Rawlins, News & Observer, Aug. 8)(via Jonathan Adler).

Wendy McElroy on the Michael Flatley countersuit (see Sept. 14, 2004; Jul. 30, 2006) (Independent Institute, Aug. 1). More: Mike McKee, "Calif. High Court Slaps Misuse of Anti-SLAPP Laws", The Recorder, Jul. 31.

"While finding a place to relieve himself, plaintiff walked off the unguarded and unprotected cliff falling approximately 20 to 30 feet to the creek bed below," reads the complaint. And so Jerry Mersereau is suing the United States of America, which maintains the Mt. Hood National Forest in Oregon where the mishap occurred. (Noelle Crombie, The Oregonian, Aug. 4).

Since our initial coverage, William Ford and Tim Lambert have been following this case so closely that I've been focusing on other issues where I have more of a comparative advantage rather than doing posts that would end up being similar to theirs. It's unlikely that I'm going to have anything new to say about the case that you haven't seen in earlier posts, so, barring major developments, from hereon out I defer to their coverage; John Lott's blog also has occasional coverage of the case, as does Levitt's. One last roundup of links:

• Michael Shermer writes in Scientific American, channeling Ronald Reagan, "Mr. Lott, tear down this legal wall and let us return to doing science without lawyers."
• Ford has given the case its own category on his blog, and has posts linking to Lott's reply brief and a Chicago magazine profile of the case. In the latter article, GMU Law dean Daniel Polsby has a very perceptive comment on Lott that corresponds to my personal experience: "[Lott is] a man of almost unparalleled personal intensity... He is one of the most energetic, gifted econometricians of his generation, if not in history. But he seems incapable of distinguishing between large disagreements and small disagreements."

I was a guest this morning on Shane Warner's radio show on New Orleans' WIST, discussing Judge Senter's latest ruling in Katrina insurance coverage litigation. For more on that subject, see my posts at Point of Law here and here, Ted's and Martin's posts there, and my WSJ piece here.

The Denver Post and National Law Journal have more on that lawsuit by Lakewood, Colorado lawyer Charles Humphrey and New Jersey's Gardy & Notis (Aug. 2) claiming that CBS, ESPN and other media outlets are abetting unlawful gambling by sponsoring fantasy sports games, and seeking diversion of millions in resulting revenues into the plaintiff's own fisc. Mississippi College School of Law sports law prof Michael McCann says Humphrey's suit lacks "moral weight". (Joel Grostephan, "Lawyer cites 1710 law in suit", Denver Post, Aug. 15 (via Suz at Large); Tresa Baldas, "Fantasy Sports League or Real-Life Gambling?", National Law Journal, Aug. 21)

Skokie, Illinois: "A woman who says she was attacked by a squirrel after walking out of the Tiffany and Co. jewelry store at the Old Orchard Shopping Center in 2004 filed suit against the shopping center Monday, saying its employees 'encouraged' the squirrel's presence by feeding it." In her suit, Marcy Meckler says the Westfield Corp., which manages the shopping center, "was negligent in, among other things, failing 'to warn the plaintiff of the squirrel's presence'". (Sun-Times/CBS2Chicago.com, Aug. 14).

Some headlines just seem meant to keep tabloids in business, but in this case the report appears in the undeniably respectable Sydney Morning Herald. Among the key claims of transsexual Maddison Hall, who at the time of a 1989 murder conviction was known as Noel Crompton Hall, was that "a guard kept calling her 'him'". (Tim Dick, Sydney Morning Herald, Aug. 15).

Okay, it's time for me to stomp my feet, grab my ball and storm off this playground in a huff...

Thanks to Walter for the invitation. Thanks to Ted for keeping it interesting. And thanks to all those who left feedback to my posts.

Once again, my blog is A Stitch in Haste. The RSS feed is here. You can email me here.

Thanks again.

"It turns out the trans fat secrets Colonel Sanders is keeping from his customers—information so arcane even a medical specialist cannot reasonably be expected to know it—is contained in a 'Nutrition Guide' on KFC’s Web site and on big, conspicuous posters in KFC outlets." (Jacob Sullum, "The Fried Logic of Food Police", Reason.com, Aug. 18). See Jun. 14, Jun. 20.

Here is a summary of the posts from my own blog, A Stitch in Haste, that I did not cross-post here at Overlawyered...

Peace Corps Quotes of the Day
--Serving in the Peace Corps is an entirely selfish endeavor.

George Allen's "My-Ca-Ca" Apology
--Allen is under the false impression that he is running for President in 2008.

"Afghan" -- It's Not Just Rugs and Dogs Anymore
--Hey U.S. Government, how that's War on Drugs going?

NYC-TV = W-T-F-?
--Why does the City of New York own a commercial television station?

Shall We See a "Defense of Solar System Act"?
--Damn activist astronomers legislating from the telescope!

The Road to Bigotry is Paved With...
--Thomas Sowell gets pulled over for speeding down the Highway to Hell.

Terrorists, Wal-Mart, Whatever...
--Biden is under the false impression that he is running for President in 2008.

Town "Drug" Into Football "Deer Decoy" Scandal
--No wonder these kids think theft and reckless endangerment are no big deal.

Feel free to stop on by!

Most smoke detectors are ionization detectors; they effectively detect fast-moving high-temperature fires. But if a fire is a smoldering fire from, say, dropping a cigarette on a couch, cheaper smoke detectors do not do as good a job detecting it; for this, one needs a more expensive dual-detection device that also detects photoelectronic signals from such fires. The Hackert family of Schenectady owned two of the cheaper smoke detectors (and disabled one of them), were not woken by a smoldering fire on May 31, 2001, and two members of the family died. Their lawyers, of course, blamed the smoke detector manufacturers, though the smoke detector design was approved by Underwriters Laboratory and did not suffer from a manufacturing defect. A jury agreed, holding the manufacturers 65% responsible (the Hackerts were held 35% responsible for disabling one of their two smoke detectors) for not making a better detector.

A judge reduced the jury's $6 million pain-and-suffering damages by half, finding that six minutes of pain and suffering wasn't worth that much, but only highlighting the inherent arbitrariness of non-economic damages. (John Caher, "Judge Finds Three Minutes of Suffering in Fatal Fire Does Not Equal $3M in Damages", New York Law Journal, Aug. 18).

The Times Online (U.K.) publishes a steady stream of in-depth coverage about the law in Great Britain and worldwide, aside from my own periodic commentaries on the wild world of American law. Did you know that you can subscribe to the paper's weekly law update for free here? (cross-posted from Point of Law).

Regarding Walter's post below, I'd just like to point out that the judge probably had no choice in declining to dismiss the lawsuit. Indeed, the plaintiffs may very well win.

What is often overlooked (but not by Walter) is that California has a monstrous law called the "Unruh Act" that specifically authorizes such a cause of action for what most people consider harmless, de minimis gender-based discrimination.

I've heard that there are California law firms that specialize in Unruh claims. I can remember back in high school watching Judge Wapner of "The People's Court" arbitrate an Unruh claim over a "Ladies' Night" at a California bar -- the male plaintiff won.

So, we are dealing here not with a frivolous lawsuit, but with a frivolous law. Passed by frivolous politicians.

To whom, for some reason, judges are supposed to show great deference. Go figure.

An Orange County, Calif. judge has refused to dismiss attorney Alfred Rava's lawsuit (May 11, May 23) claiming that the baseball Angels and a game sponsor "discriminated against men by giving tote bags to only women during a Mother's Day baseball game". ("Judge refuses to dismiss discrimination suit against Angels", AP/San Francisco Chronicle, Aug. 17). P.S. More from the Boston Globe, Aug. 22.

In Part One, I proposed the following heuristic regarding paternalism:

To summarize, although it is not a proper function of government to proscribe "bad" decision making, perhaps a few isolated, objectively defensible carve-outs can be allowed in which the government makes it just a little bit harder to make a bad decision. Perhaps. Stated differently, a paternalist exception that actually proves the libertarian rule should probably be embraced and not shunned.

In a payday loan transaction, the lender makes a small advance (typically $100-$500) to its customer, agreeing to hold a personal check for the loan amount plus a fee until the customer's next payday. ... The borrower receives cash immediately. Fees charged can range from $15 to $30 on each $100 advanced, although the typical fee is at the lower end of that range.

The fee may seem modest when presented as a dollar amount, but when calculated as an annual percentage rate (APR), the cost is relatively high. A charge of $15 to borrow $100 for 14 days amounts to an APR of 391%. A survey by consumer advocates found APRs on 14-day payday loans ranging from 390% to 871%.

Orin Kerr and others in the Volokh Conspiracy, Jack Balkin, and Bryan Cunningham have a variety of perspectives on Judge Taylor's NSA opinion. Orin Kerr's December 19 post on the subject is essential.

President Bush has signed H.R. 4, the Pension Protection Act of 2006, into law.

The bill is mostly sound and fury, signifying nothing. The Pension Benefit Guaranty Corporation will be "saved," even though we were repeatedly assured until now that there was in fact nothing to "save" it from. Private employers will be required, over time, to go from 90% funding to 100% funding of their pension plans -- which is nothing more than hollow accounting gimmickry. And the real volcanoes under the city -- public employee pensions -- are not addressed at all. Neither of course is the Social Security crisis.

But one afterthought of the bill is worth looking at:

Employers can encourage their workers to save by automatically enrolling them 401(k) retirement accounts.

Looking for commentary on recent developments in tobacco, Vioxx, or Katrina cases? Check our sister site, Point of Law, for extensive detailed discussion on all three, as well as Will Wilson on the perils of fifty state attorneys general negotiating Medicare fraud claims, information missing from the Wall Street Journal's punitive damages debate, Michigan's ban on asbestos bundled settlements, ABC's John Stossel on the plaintiffs' bar, and much, much more.

Jonathan Rauch has a must-read dispatch from devastated St. Bernard Parish, Louisiana:

Cleanup and repair cost the school system tens of millions of dollars, but federal payment has been slow. Reimbursement for small projects goes through five to 10 weeks of federal and state review, according to David Fernandez, the school system's financial manager. Any expenditure over $1 million is subject to another four to 12 weeks of review in Washington, he said.

This is the so-called "million-dollar queue." "Anything over a million dollars has to be reported to Congress," says Brown, the former FEMA director. "Why do you think that is? Congress wants to make an announcement." In other words, members of Congress want to be the first to boast of a federal project in their district.

"This is all political," Brown says. "It has nothing to do with good public policy." ...

On private property, even debris -- including, for example, 1,600 tree stumps -- had to be reviewed for archaeological value before FEMA would pay for removal.

("Struggling to Survive", National Journal, Aug. 11; "Stretchier Red Tape", Aug. 11).

As Ted notes at Point of Law, Judge Gladys Kessler has ruled in partial favor of the federal government in its longstanding racketeering case against the tobacco industry (Jun. 21, 2005 and links from there), begun under the Clinton Administration (after much backstage string-pulling and blandishment by private plaintiff's lawyers) and continued by the Bush Administration. In particular, Judge Kessler is ordering the tobacco companies to make admissions of fraud and racketeering that may prove damaging to them in future private litigation (you can see why those private lawyers were smart to lobby). She did, however, at various stages throw out or disallow large portions of the government's case, including most of its sweeping demands for money.

A few preliminary comments, based on a reading of the shorter remedial section but not the 1,653-page ruling (PDF) itself:

1) It is now familiar, if still a scandal, that business decisions which would have been near-universally regarded as perfectly lawful at the time can retroactively be defined not only as giving rise to liability, but even as "racketeering". By this point, with the "racketeering" label having been flung around (and sometimes with success) in so many garden-variety commercial disputes, it may be on the verge of losing its sting.

2) This case, however, was not of the garden variety. From the start, it sought to stigmatize as racketeering tobacco companies' public advocacy efforts -- their efforts to defend their product in public debate and marshal every good and bad argument on its behalf the same way a lawyer might, their P.R. efforts to plant favorable articles in the press, their support of groups like the Tobacco Institute, and so forth. The Justice Department's complaint charges them, revealingly, with responsibility for taking "false and misleading positions on issues" (emphasis added) (see Sept. 23, 1999). It should be obvious (but apparently still isn't) that lots and lots of other defendants, who are not for the moment as politically unpopular as tobacco companies, might also someday be in peril of legal charges for advancing false and misleading "positions on issues".

3) Although Judge Kessler may have thrown out substantial portions of the feds' case, the remedies she approved nonetheless impinge on values of free advocacy. Tobacco companies are to be ordered to admit in communications to consumers various supposed facts which they do not believe to be true, and which in fact may not be true (for example, that no particular formula for a cigarette's ingredients is safer or more natural than any other) but which fit the desired anti-tobacco message. They are to be forbidden to utter a great many other statements which they believe to be true on the grounds that -- well, basically on the grounds that the government disapproves of those statements and doesn't want them aired as part of public debate.

4) It goes without saying that the advancement of erroneous or misleading arguments, the promotion of dubious science, etc. as part of an effort to sell one's product line is not going to be deemed "racketeering" when certain other groups of professionals do it -- say, politicians and lawyers.

I'm quoted in yesterday's Roanoke Times article. (Mike Allen, Aug. 17). We noted the case, where the lawn mower manufacturer was blamed when a day-care center operator ran over a small boy after overriding safety features, June 16.

Chicago's silly anti-foie gras law is taking effect next week (see Jun. 8 and links therein), but a planned commerce-clause lawsuit against the ban (via Wallace, whose post has a lot of good links on similar bad laws and proposals) is even more silly. In 1995, the Seventh Circuit Court of Appeals upheld an even sillier nanny-state ordinance against spray paint sales that was also challenged on commerce clause grounds: "Just as the Constitution does not enact Mr. Herbert Spencer's Social Statics, so it does not enact prescriptions from the pages of The Journal of Law & Economics—where, we may assume, an article will appear in due course adding this ordinance to the long list of laws whose costs exceed their benefits." (Full disclosure: I was a clerk for the author of that opinion at that time.)

I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.

While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.

Take-Two Interactive/Rockstar, a controversy magnet for its Grand Theft Auto game, has unveiled a new game called Bully, set at a boarding school. Despite the predictions of some anti-game activists that the new production would glorify bullying, a reviewer for the New York Times says it does nothing of the sort: "the entire point of the game is that bullies (noticeable at a distance by their distinctive white shirts) are everyone’s enemies". (Seth Schiesel, "With Bully, Rockstar Looks to Beat the Grand Theft Auto Rap", New York Times, Aug. 10). None of which stopped Overlawyered favorite Jack Thompson (Jul. 24, Jun. 25 and many others) from firing off a letter to Take Two and Wal-Mart vowing to file suit to stop the game's Oct. 1 release unless they provide him with an advance copy to criticize. Bit-Tech has the gory details (Brett Thomas, "Jack is back to beat up on Bully", Aug. 15). And now it's reported that Thompson having gotten no satisfactory answer to his demand letter, he's proceeded to sue under Florida nuisance law to demand such an advance copy (Eric Bangeman, "Jack Thompson sues over upcoming "Bully" title", Ars Technica, Aug. 16). Update Oct. 14: judge demands to inspect the game.

More: Steve Chapman, as usual, has a relevant observation: "Like adults, who can enjoy murder mysteries without ever feeling the need to commit murder, adolescents apparently can separate the fantasies of mass entertainment from the realities of how they want to live their own lives." ("Teens' lives don't always imitate art", syndicated/Chicago Tribune, Aug. 10).

A few quick thoughts about the massive Dell battery recall:

The relatively new Restatement (Third) of Torts: Product Liability proposes some modifications of the common law duty to warn after a sale (as opposed to a duty to warn -- i.e., on the packaging -- before a sale).

Of course, a manufacturer remains strictly liable for any damages proximately caused by a manufacturing defect before a post-sale warning or recall is announced. Under the Restatement (Third), Section 11, there is still never a "duty to recall," unless imposed by the government.

Previously, the determination of whether there was a "duty to warn after the sale" was no different than any other test for duty: Did the benefits of a post-sale warning outweigh the costs?

(Bumping from August 16, 2:30 pm upon update.)

I've been invoked. Some observations about the New York case of Alice Griffin v. Starbucks:

1) Hey, it's Starbucks that caused second-degree burns. Haven't ATLAAAJ and Professor Turley been telling us that only McDonald's sold coffee that could cause burns, and that's why it was alright to impose punitive damages on the fast-food restaurant? Are we now to believe that other restaurants sell hot coffee capable of causing burns, and McDonald's conduct wasn't so unreasonable? (Overlawyered readers aren't surprised.)

2) Certainly the New York Daily News bought the hype, with the reporters repeating the plaintiffs' bar claim that coffee isn't supposed to be hot enough to cause burns, though that claim has no basis in fact. I don't think we'll see Turley complaining about this plaintiffs'-bar-created legal urban legend, however.

3) But this case is not the Stella Liebeck case. They both involve coffee, but that's the only similarity. Alice Griffin is not suing Starbucks because their coffee was "too hot." She's suing Starbucks because an employee allegedly dropped a cup of coffee on her foot, causing damage. Assuming no one's lying about how the accident happened, I don't have a problem with that theory of the case: that's just basic principles of negligence and respondeat superior. My objection to the McDonald's coffee case is that McDonald's didn't cause Stella Liebeck to injure herself any more than the manufacturer of Liebeck's sweatpants did, but the plaintiffs sought to hold McDonald's liable anyway. If a McDonald's employee had been the one who spilled Liebeck's coffee, McDonald's should be liable for Liebeck's injuries. But the temperature of the coffee is irrelevant to that inquiry.

4) Note in that regard that Griffin's injuries were exacerbated because her sneaker, sock, and stocking held the coffee close to her foot. If Griffin had spilled the coffee on herself, I think no liability on Starbucks should follow, and that blaming Starbucks would be like blaming Griffin's stocking manufacturer.

5) I don't blame the judge for failing to impose remittitur. $301,000 for second-degree burns on a foot strikes me as high, but it's within the realm of the law in New York. The solution, in my mind, is to change the law on non-economic damages, but that's the role of the legislature, not an individual judge. Christopher "KipEsquire" Tozzo and I apparently disagree on the appropriate role of the judiciary in a constitutional democracy, and this is a topic worth further discussion in another post at a future date. (Update: New York state law was changed some years back to give the judge the power to issue remittitur rulings without deference to the jury's decision if the award deviates materially from reasonable compensation. CPLR 5501(c). Therefore, criticism of the judge's approval of the award, when she acknowledged it was "too high," is appropriate. But Tozzo and I do have other disagreements about the judicial role that are worth highlighting in future posts.)

Aug. 17 Update: Turns out Tozzo's criticism of the judge is premature after all. While the Daily News story was less than clear, it did not quite say that the judge refused to reduce the jury award. Reuters is reporting that the judge is reducing the jury award, with the precise amount to be determined at a later hearing, while the the New York Post is reporting that the remittitur motion has not been decided yet. Note that the Reuters story views it irrelevant as to who spilled the coffee, thus encouraging unjust comparisons to the Stella Liebeck case. The New York Post is explicit in comparing the case to the Liebeck case, though it botches the description of Liebeck's accident (Liebeck wasn't driving).

"If an untested and novel legal theory succeeds, the wife and brother of a binge drinker with a string of drunken driving arrests could be held civilly liable for the death of a bicyclist because they supplied the car, insurance and alcohol to the driver. ...The suit seeks damages from the wife and bar owner/brother of Joseph Lynchard, 74, of Santa Rosa, Calif." According to plaintiff's lawyer Patrick Emery, "Lynchard's wife transferred all his assets to her name after an earlier accident and got him auto insurance. His brother, owner of Eddie's Bar, bought Lynchard a pickup truck and supplied him with drinks the day of the accident. All this, Emery argues, shows a conspiracy to commit an illegal act, allowing Lynchard to drive while drunk." A judge has allowed the suit to proceed to discovery. (Pamela A. MacLean, National Law Journal, Aug. 15).

Which of the following was recently uttered by a Member of Congress?

"Cutting-edge research by top scientists from the United States and Israel could..."

a) discover a cure for cancer.
b) locate Noah's Ark.
c) reduce our reliance on foreign oil.
d) prove the existence of an Intelligent Designer.
e) find a way to end world hunger.

Oh, and if you need a reason to care, is $20 million of taxpayer money annually reason enough?

My previous post on the folly of trying to "legislate discovery" here.

Via Coyote Blog.

There but for "the grace..." --

A man with an incurable brain condition has lost his final legal appeal to insist that doctors give him food and drink in the final stages of his life.

Leslie Burke, from Lancaster, feels he will be denied sustenance when his illness makes him unable to speak.

The European Court of Human Rights said it did not believe there was a real threat that his food would be stopped. The European judges refused to reverse a UK ruling that allows doctors to decide a patient's treatment.

Mr Burke, 46, has Friedreich's ataxia. It causes a lack of co-ordination, but does not affect mental faculties.

I'll simply note that I consider it axiomatic that food and water are, um, food and water and not "medical care" in the strict sense. And that knowingly permitting a patient under your care for Friedreich's ataxia to die against his wishes -- not of Friedreich's ataxia, but of dehydration -- is homicide.

Discuss.

(Via Medpundit.)

---

Perhaps the European courts are correct and Mr. Burke's litigation was simply not ripe, as we say in the U.S. And perhaps a properly drafted "living will" would preempt any issues or concerns.

On the other hand, a legally recognized spouse would certainly also address those concerns. Generally speaking, when there is any uncertainty, a spouse has the final say about medical decisions when the patient cannot communicate. No living will necessary. Advisable, but not strictly necessary.

Just one of the more than 1,000 ways in which gays suffer in the name of "defending traditional marriage."

It's absolutely barbaric.

Donald Mathews, a Stockton State College senior living on campus, woke up in the middle of an October 11, 1999, nap and fell out of bed, injuring himself. For this, he blamed the manufacturer of his loft bed for failing to warn that people might hurt themselves by falling out of bed. A jury agreed, and awarded $179,001.

(Because Mathews claimed that he fell out of bed because he was startled, it's not clear how a warning would have helped, unless he was seeking an audible recording regularly repeating, much like airport moving walkways, "Caution! The bed is above the ground!" Of course, this might interfere with sleep, but wakefulness is watchfulness.)

A unanimous appellate state court reversed on the obvious grounds that the danger was open and obvious and didn't require a warning (the same grounds on which the McDonald's coffee case should have been thrown out), but plaintiffs' lawyer Gary Piserchia threatens an appeal to the New Jersey Supreme Court. (Robert Schwaneberg, "Suit over loft bed falls short", Newark Star-Ledger, Aug. 16, via Lattman).

Where's Ted Frank when you need him?

A bad experience at Starbucks turned into big bucks -- 301,000 of them -- for a Manhattan lawyer who got a painful hotfoot when a steaming cup of coffee toppled onto her at the java palace.

"I jumped back and looked down," Alice Griffin, 42, testified. "My foot was steaming, and the puddle was steaming."

The jury's April verdict was upheld yesterday by [New York] Supreme Court Justice Emily Jane Goodman -- even though the jurist said she was "inclined to agree" the $301,000 that Griffin won at trial "was excessive."

In any event, I'm far too humble to blog about hot coffee lawsuits at this site.

Maybe Ted will make a cameo today... [Editor's note: And he did.]

Walter beat me to the punch regarding the announcement that New York City Mayor Michael Bloomberg plans to donate contribute up to $125 million to anti-smoking efforts.

Why the strikethrough?

His effort will include cash for programs that help smokers quit and educate children to prevent them from starting; funds to push for smoking bans and higher tobacco taxes in other cities, states and countries; and money for a system to track global tobacco use and the effectiveness of anti-smoking efforts.

And I would hope that this portion of Bloomberg's "benevolence" is therefore appropriately regulated, registered, disclosed, limited, taxed, McCain-Feingolded and generally treated the same way as anyone else's attempt to buy a law under our current schizophrenic political funding system.

My previous thoughts on campaign finance reform here. A related thread on the abuse of tax exemption by politically active religious leaders and institutions here.

Off-topic, I add to the punditocracy's surfeit of blather on the Connecticut Senate election at National Review Online.

One thing I didn't mention in the article that is on topic for this site is that Lieberman is one of the few prominent federal Democrats still in office that is generally willing to stand up to the trial bar. If Lamont does supplant Lieberman, the trial-lawyer takeover of the Democratic party (commented on a year ago by Walter) will be all but complete.

Update: Walter reminds me of his 2000 Wall Street Journal op-ed on Lieberman's record on liability reform.

Gotham's nurse-mayor has donated $125 million from his personal fortune "to track smoking across the globe and to push for the same kind of smoking bans and cigarette tax hikes that the mayor has implemented in New York since taking office in 2002". New York Sun reporter Jill Gardiner quotes me in reaction ("Bloomberg Gives $125 Million Gift To Fight Smoking", Aug. 16).

As consumers, we increasingly have ever more access to information about the enterprises that we may wish to do business with. In the beginning there was the Better Business Bureau, then Zagat Surveys, then BizRate, then online reviews from Amazon, Expedia, iTunes, etc.

In the medical field, patients had indicia such as board certifications and hospital privileges when choosing physicians. There are also services that collect data on malpractice lawsuits -- you probably don't want to retain a doctor (or a lawyer, for that matter) who has lost too many malpractice cases.

Fair enough. But what happens when the professionals turn the tables?

In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.

The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.

"If your attorney proceeded with a lawsuit without warning you of the risks involved, you may be the victim of Legal Malpractice and may be entitled to compensation," the site states.

The new Web site is likely to trigger a fresh round of acrimony between doctors and plaintiffs lawyers in their long-running war over medical malpractice litigation. Plaintiffs lawyers and medical ethics experts say the LitiPages.com site is unethical.

Let's clearly delineate the two separate concerns here. I will leave to others (Walter?) the task of explaining why a lost lawsuit is not automatically, or even presumptively, a malpractice claim against your attorney.

"In a case that family law experts fear could set a dangerous precedent, a Michigan teenager is suing his mother to learn the identity of his father. Family law attorneys say the issue of compelling a mother to reveal the identity of the biological father is a new area of law. And depending on how the Michigan judge rules in the case, they say, courts nationally could see a new flood of lawsuits of children suing their parents." (Tresa Baldas, National Law Journal, Aug. 11).

No sooner had I put the finishing touches on my subway search post, in which I analogized the Second Circuit's abdication of responsibility in that case to the recent gay marriage defeats in New York and Washington States, than I came across this excellent CQWeekly editorial:

[T]he New York and Washington courts both said that legislators could have believed that children fare better in families with both a mother and a father as role models. Neither court had research to prove the point: There is none. Instead, as the New York court said in the main opinion, the supposed advantage was a "common sense premise" supported by "intuition and experience."

Whatever quibbles one might raise about each of the points, both courts were guilty of an overriding lapse of logic. The issue in both cases was not whether marriage for opposite-sex couples is a good thing, but whether legislators had some reason — other than ignorance or prejudice — to deny those benefits to same-sex couples.

One of the points that I often emphasize at my own blog is that there simply is no First Amendment in Europe.

Just ask Madonna:

Prosecutors plan to keep an eye on Madonna's weekend concert in Duesseldorf to see if the pop diva repeats the mock crucifixion scene that has drawn fire from religious leaders.

Johannes Mocken, a spokesman for prosecutors in Duesseldorf, said Tuesday that a repeat of that scene during Sunday's concert could be construed as insulting religious beliefs.
...
Mocken said authorities would rely on media reports rather than sending observers to the concert and that the show might be covered by laws protecting artistic freedoms.

As I mentioned in my introductory post, I have a soft spot for the Fourth Amendment. Unfortunately, it seems that judges, up to and including the Supreme Court, have made it a hobby to poke ever more holes into the Amendment's proscription against warrantless, suspicionless searches, purportedly in the name of "reasonableness."

Most of the evisceration of the Fourth Amendment has been proximately caused by the War on Drugs, particularly regarding the ever-increasing "automobile exception" to the warrant requirement. But we also have a whole panoply of other exceptions: border searches, administrative searches, consent searches, health & safety inspections, exigent circumstances...

...oh, and the War on Terror:

A federal appeals court Friday upheld the constitutionality of the city's random police inspections of subway riders' bags.

The 2nd U.S. Circuit Court of Appeals rejected a challenge by the New York Civil Liberties Union, which argued that searches were ineffective and an unprecedented intrusion into privacy.

The appeals court ruled that a lower court judge properly concluded the program put in place in July 2005 after the deadly London subway bombings was a reasonably effective deterrent and that the intrusion on riders' privacy was minimal.

The only thing worse than a frivolous lawsuit is a frivolous repeat of a frivolous lawsuit:

A group of Native Americans filed a new legal challenge yesterday to trademarks for the name and logo of the Washington Redskins, saying the team's name is a racial slur that should be changed.

A petition filed at the U.S. Patent and Trademark Office by six Native Americans represents a second chance for Indians to challenge the football franchise's name. The team prevailed in an earlier fight when a U.S. District Court judge ruled that the plaintiffs waited too long under trademark law to object. This time, the complaint was filed with a new set of plaintiffs.
...
"The term 'redskin' was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person," the complaint says.

Okay, it's not exactly on-topic here, but Heather Mac Donald's piece is the one people are talking about. (American Conservative, Aug. 28).

Our thanks to Peter Morin, who's been pitching in as guestblogger over the last week to supplement Ted's efforts. Peter's writing can be found at his blog Wave Maker. And welcome to Chris Tozzo of KipEsquire, who joins today in the same role. I'll be posting occasionally, but probably less often than usual.

Also, over at Point of Law, check out the contributions of guestbloggers Gail Heriot (San Diego lawprof associated with The Right Coast) and Al Adomite (Illinois Civil Justice League). In particular, Gail's post on the contrasting liability treatment accorded to "doers" and "talkers" deserves a wide audience.

Sometimes the problem isn't that we are "overlawyered" but rather that we are "overregulated" --

Cromwell [Connecticut] can be a hostile environment for those looking to break into night crawler vending -- particularly if they advertise with a yard sign.

A worm business that Joe [Cadieux] has operated since he was 10 was shut down two weeks ago when Cromwell's planning and zoning commission issued a cease-and-desist order because the teenager's sign violated local zoning regulations.

"It's ridiculous," said the middle school student, who made $5 to $10 a month selling worms collected from his front yard, where they are plentiful after spring rainstorms.

Lovely.

Would the quality of life of Cromwell plunge precipitously if a "de minimis" exception were crafted for small signs by minors on their own property? Are the local politicians of Cromwell so busy with the rest of their packed agenda that they can't revise the guidelines of their planning and zoning commission so that its members stop being worms petty jerks?

And can someone explain to me why judges are supposed to "defer" to politicians and bureaucrats like these?

Let's start my guest-blogging with a softball, lobbed right here in my own backyard of New York City:

A woman has filed a lawsuit against a pet cremation service and a photo agency, claiming they used a photo of her posing with her dogs, Chickie and Tiny, without her permission.
...
The photo ... was taken in 1992 by an amateur photographer in [Gina] Cecala's Manhattan apartment.
...
Cecala said in the complaint that she was "outraged, embarrassed and traumatized" after she learned the photo was used in an ad that began appearing in 2004 in a funeral industry newspaper and a philanthropy magazine.
...
Cecala, whose lawsuit seeks $3 million, said she never gave permission to have the photo used for "something of such a morbid nature[.]"

Hello everyone. Apparently Walter is leaving it to me to introduce myself as I commence my guest blogging here.

My name is Christopher Tozzo, and I am part of that ever-growing caste, the non-practicing attorney. I work in the investment bank of a very large global financial services firm, as a Supervisory Analyst -- which is odd, considering that I'm neither a supervisor nor an analyst (it's a regulatory title -- go figure).

My blog is called A Stitch in Haste (long story), where I write under the blogonym "KipEsquire" (long story). I don't just blog about law, but also a whole coterie of libertarian topics. So feel free to visit and see what you're missing.

I am a 2003 graduate of Brooklyn Law School. I like to think that I "majored" in torts, having taken several classes in that field. On the other hand, the recent explosion of gay rights litigation has increasingly steered me away from torts and toward Fourteenth Amendment jurisprudence; I've also always had a soft spot for the Fourth Amendment, so we'll have some search & seizure posts. But don't worry -- I promise not to get too "constitutional" on you.

For the résumé voyeurs, I have a B.S. in Business & Economics from Lehigh University and an M.A. in Economics from Cornell University. I consider the economic analysis of liability and damages to be a far too neglected topic in the law. I do not, however, consider myself a "Law & Economics" type. I'm also a Chartered Financial Analyst. But don't worry -- there will be no financial statement analysis here (well, maybe just a little...).

I am licensed to practice law in New York State, though I have never set foot inside a courtroom, except for jury duty (and I have never actually been seated on a jury).

I have a bio page here for those interested. You can reach me at kipesquire@yahoo.com.

I'd like to thank Walter for his kind invitation. Overlawyered is far and away one of my favorite blawgs -- except when he beats me to the punch and blogs about something before I do (which is all too common). I hope I can live up to his standards.

The mayor of Valparaiso is looking into suing in the US over a National Geographic documentary that shows what the effects of an earthquake would be on the Chilean town. (Matt Malinowski. "Valparaiso considers lawsuit against National Geographic", Santiago Times, Aug. 8). Hat-tip to reader F.R., who reports "The following article in Spanish adds some information. The city is consulting with Chilean politician and lawyer Jorge Schaulsohn (who per other sources studied at Benjamin Cardozo Law School and is admitted to practice in New York). Schaulsohn states that it makes sense to bring this lawsuit only in the U.S., and that the damages that can be recovered there are 'of a different nature and amount' (presumably compared to those recoverable in Chile)."

Commentary on soda-tax proposals that's equally applicable to the obesity litigation wars:

...soda, by itself, isn't making us fat. According to numbers from the U.S. Department of Agriculture, regular soda consumption has been falling every year since 1998, but at the same time obesity has skyrocketed. In 2004, we actually drank less soda per person than in 1995, long before obesity was making headlines.

Elevating the quality of prisoner-initiated Constitutional claims, Boxer X claims that he was subjected to cruel and unusual punishment when he was "forced" by a female guard to masturbate in front of her.

The 11th Circuit denied rehearing en banc a review of the lower court's decision that this did not constitute cruel and unusual punishment.

Discuss.

The First Circuit Court of Appeals recently vacated a "substantial" jury verdict in a defamation case against The Boston Phoenix, finding that the lower court was too quick to earlier rule on summary judgment that the plaintiff, a Maryland state prosecutor, was not a "public figure" for purposes of libel law.

Judge Selya chose an interesting metaphor to open the Court's opinion:

"The oenologist's creed teaches that we should drink no wine before its time. Much the same
principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record."

Orson Wells introduced us to that motto on behalf of that tower of oenological perfection, Paul Masson. But like the wine of Paul Masson, I find Judge Selya's stretching of the metaphor a little dry on the palate.

Katoria Lee refused a carjacker's command to surrender her car-keys in 2001, so he shot her in the back. This, a Georgia state court jury decided, was the fault of Wal-Mart, who owned the parking lot where the shooting occurred. Eric Deown Riggins, 22, was caught within minutes, and is serving a 15-year sentence in state prison for the crime.

Lee's attorney, Lance Cooper, mentioned the 398 visits by police to the Riverdale Wal-Mart in the twenty months before the accident as evidence that there should have been "more" security that made Wal-Mart at fault for a third-party's malicious crime, but that figure is highly misleading, because, until very recently, Wal-Mart had a zero-tolerance shoplifting policy to press charges for even the most minor of shoplifting crimes. (Kathy Jefcoats, "Woman shot in Wal-Mart lot awarded $4.2 million by jury", Atlanta Journal-Constitution Aug. 10).

Philip Greenspun (via Newmark):

With so many of America’s best and brightest making the personal choice to go into fields that, at best, transfer money from one pocket to another, I thought “Thank God we have immigrants, since if we had to rely on these folks for economic growth, we’d be toast.”

The Legal Reader points us to Court T.V.'s video of Attorney Joseph Caramango's stunning display in the courtroom as he tries to explain why he was an hour late for a jury trial in which his client was facing life imprisonment. It wasn't the five shots of tequila he had at 4 am the night before. It wasn't the beer he admitted having at lunch the day before during jury selection.

Video is long and painful -- a classic Schadenfreud.

Judge Pendleton Gaines of he Superior Court of Maricopa County, Arizona must be a popular jurist indeed. Here, he grants plaintiff counsel's Motion to Compel Acceptance of Lunch Date, ruling:

"The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well
as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s
motion. Finding none, the Court concludes that motions of this type are so clearly within the
inherent powers of the Court and have been so routinely granted that they are non-controversial
and require no precedential support.

The writers support the concept. Conversation has been called “the socializing
instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest
pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to
“Sweet discourse, the banquet of the mind” (The Flower and the Leaf)...."

More light-heartedness follows. (The Legal Reader, Aug. 8)

When two sisters engage in a battle over control of their mother's estate, it can only get uglier when one trustee sisterattempts to have her husband's law firm appointed as successor trustee. But it helps with the Court if said firm isn't brazenly overbilling the estate in the process:

"Greenberg Traurig billed the estate almost $130,000, which is now at issue in a pending contempt motion. Sankel claims the amount should be repaid to the trust since Greenberg Traurig's services were retained for the personal benefit of Linda Spector and Jacobs, whom she eventually married.

In the contempt motion, Sankel also noted the disparity between the fees paid to Greenberg Traurig and his own firm in the course of the dispute. He noted that his firm had billed the trust $22,000 in the same time period. He is requesting invoices from Greenberg Traurig to back up charges, some of which he claims were "wholly frivolous."

(Law.com, August 8)

It's all in a day for notorious white supremacist and convicted felon Matthew Hale, who, once convicted of attempting to arrange for the murder of a federal judge, then did what any ordinary American convict would do -- sued his lawyer for malpractice.

These guys are nothing like Joe Jamail, but honestly, does this scene make you want to be a jurist?

"[Joe] Francis spends a lot of money on lawyers" as both a defendant and plaintiff, and generates a lot of Overlawyered posts in the process (Sept. 28-30, 2001; Mar. 6-7, 2002; May 1, 2006; July 4) as well as extensive comment threads. Sunday's LA Times article, which will no doubt presage other litigation, is grounds to reopen the topic.

Peter Lattman reports about the band Fall Out Boy:

“Our Lawyer Made Us Change The Name Of This Song So We Wouldn’t Get Sued” was originally called, “My Name is David Ruffin and These Are the Temptations,” Wentz says. After Ruffin broke with the famed Motown group, he kept attending shows and would steal the microphones away from his former bandmembers, unable to wean himself from the limelight. Wentz says his original song title, “was a play on Ruffin’s egomania and general narcissism.” Here are the song’s lyrics.

Wentz’s father advised his son against using the song title, for fear that the group would be sued. Did the younger Wentz listen? “No, because he was my dad. He advised me against a lot of things that I do,” he said with a playful hint of mischief in his voice. According to Wentz the Younger, the band’s lawyers also told them they’d be slapped with a hefty lawsuit, and offered up a few options — they could sign a waiver; include a reference to Ruffin in the song (which somehow would shield against a lawsuit); or change the name of the song.

Lattman wonders why including Ruffin's name in the song would shield against a lawsuit, and the answer comes from the Sixth Circuit's deplorable decision in the Rosa Parks case, which we covered Apr. 15, 2005:

The Sixth Circuit held that the rappers did not have a first amendment right to name their song "Rosa Parks" because they could have called it "Back of the Bus" rather than use an allusive title. One looks forward to more federal court diktats over song titles. (Parks v. LaFace Records (6th Cir. 2003)).

Lattman reports that Wentz says the band is hit with a lawsuit a day and has to retain an attorney half-time.

Scanning through million-dollar verdicts looking for Overlawyered stories, I found this $1.1 million verdict against a California law firm for failure to accommodate an attorney who asked to be able to bill 140 hours a month while undergoing treatment for liver disease.

Not especially notable, but I was highly entertained that the law firm's defense was that it really fired Warren Snider because he took time off to go to his father-in-law's memorial service. (Tina Bay, "Jury Awards Lawyer $1.1 Million in Wrongful Termination Suit", Metropolitan News-Enterprise, Aug. 7).

Update: Crime & Federalism has more.

"If American criminal law applies to servers in Costa Rica, might authorities in other countries not try to impose their law on servers based in Texas? You might almost bet that will happen, were it legal to bet." Walter has a good piece in the London Times on the David Carruthers arrest (Jul. 27, Jul. 20).

I have an op-ed in today's New York Sun on shenanigans in recent Vioxx litigation, and what it means to the calls for a "global settlement." For more on the Vioxx litigation, see our ongoing coverage at Point of Law.

Update: David Bernstein comments.

Five Mississippi plaintiff families wanted to claim their children's learning disabilities were the fault of a lead paint manufacturer. Unfortunately for them, the parents also had learning disabilities (and some were even considered retarded by social workers), and the defense (led by Kirkland & Ellis's Michael Jones) was able to successfully argue that genetics was at least a likely cause as environment. (Sheila Byrd, AP, Aug. 4; Townhall.com, Jul. 13). Undeterred, the plaintiffs' attorney, Michael Casano, plans to bring further lawsuits on behalf of other residents of the decades-old apartment buildings.

It's been nearly two decades since NHTSA refuted the concept of sudden acceleration, yet state courts are still permitting junk science experts to put forward irreproducable theories of electromagnetic interference taking over cruise control. Seventeen-year-old Sonya Thomas claims EMI caused her automobile to take off, causing her to lose control and kill a passenger and paralyze herself. Of course, rather than turn the cruise control off or hit the brakes, Thomas unbuckled her seatbelt and reached under the seat to unstick a gas pedal, which is more consistent with her jamming the gas pedal under an upside-down floormat than anything else. Never mind: though belted passengers were uninjured in the 70-80 mph crash, the South Carolina state jury awarded $18 million to the plaintiffs, and the American automobile industry died a little bit more. (Paul Alongi and Jess Davis, "Cruise control led to crash, jury says", Greenville News, Aug. 7; Julie Howle, "Jury begins deliberations in crash trial", Greenville News, Aug. 6; Julie Howle, "Witness disputes seat-belt usage in crash", Greenville News, Aug. 5; Julie Howle, "Jurors in lawsuit see hard evidence in 1999 rollover", Greenville News, Jul. 25; "Jury Hears Claims Of Ford Explorer Problems", WYFF4, Jul. 20).

Christopher Berrier claimed, along with his for-hire medical experts, that his back injuries were solely the result of falling on a treadmill at a fitness club. The appeals court reversed because the trial court did not allow the defendant to question experts over Berrier's previous "back injuries from playing football, a car accident and a fall down seven stairs at work." (Reliable Development Corp. d/b/a The Fitness Barn v. Christopher Berrier, Jul. 31; AP, Aug. 2). Dr. Linda Stewart had testified that Berrier had absolutely no problem with his back before the date of the accident, so one can see the prejudice in not permititng cross-examination on this point.

Here's a case where loser-pays would have helped the plaintiff. Municipal liability is capped in Florida at $100,000. The city lawyer for Hollywood, Florida, refused to settle an auto accident case for $85,000, though he acknowledges the defense case is weak, because he (correctly) saw little downside. Hollywood is also appealing the jury verdict for the plaintiff. "Why not?" (John Holland, "Rejected crash settlement could cost Hollywood more than $1 million", South Florida Sun-Sentinel, Aug. 4).

The New Jersey court's opinion yesterday in Verni v. Harry M. Stevens ordered a new trial because of the unfairly prejudicial evidence introduced at trial. (Laura Mansnerus, "Court Overturns Jury Award Against Stadium Concessionaire", NY Times, Aug. 4; Kibret Markos, "Paralyzed Cliffside girl may have to go through new trial", NorthJersey.com, Aug. 4).

Plaintiffs sought to blame a drunk-driving accident several hours after a Giants game on stadium beer vendors, a feat eased when the drunk driver, Daniel Lanzano, settled with plaintiffs and changed his testimony to be consistent with their theory of the case. Lanzano drank at two go-go bars after the game. The court also noted the failure of the jury to be instructed to consider the relative liability of other settling parties that the plaintiffs had sued in a shotgun complaint, including the NFL, the Giants, Toyota, and Michael Holder, who committed the sin of drinking with Lanzano that day. We had provided extensive coverage from the beginnings of the suit: Oct. 10, 2003; Jan. 21, 2005; a must-read Feb. 2, 2005 post; Jun. 6.

Update: another aspect of the appellate court opinion is that it recognized corporate boundaries. The trial court sought to hold Aramark liable for alleged negligence of its subsidiaries.

I expect to be away for the next ten days or so. Aside from Ted's contributions, one of our most popular past guestbloggers will be dropping by starting Monday to keep things interesting. Later in August, look for a second guestblogger, well known in the blogosphere but new to this site, to join us as well.

From Psychology Today, by Hara Estroff Marano: "Parents are going to ludicrous lengths to take the bumps out of life for their children. However, parental hyperconcern has the net effect of making kids more fragile; that may be why they're breaking down in record numbers."

Recommended reading: a year ago Common Good, National Constitution Center and the AEI-Brookings Joint Center on Regulatory Studies co-sponsored a conference in Philadelphia on "Lawsuits and Liberty" which I was fortunate to attend. Many of the papers were eventually published at the Common Good site and I can vouch for their being an interesting bunch. Read them by following the links here.

It seems someone has patented one. Per its description:

This game unabashedly introduces kids to the realities of being a legal eagle, including:

* crippling law school debt;
* outrageous hourly fees;
* filling your office with expensive and intimidating leather bound books;
* product-liability cash cows;
* and the hazy definition of "emotional distress."

(Patently Silly, Oct. 19, 2004)

A recent, much-talked-about New York Times article about middle-aged men who have been out of work for long periods and are not looking very hard for jobs (Louis Uchitelle and David Leonhardt, "Men Not Working, and Not Wanting Just Any Job", Jul. 31) elicited the following, priceless letter to the editor (Aug. 2):

To the Editor:

The surest way to help these men (and women) is to pass anti-age job discrimination legislation.

There is nothing more repugnant than reading the phrase “but the publisher did not seem to want someone my age.”

This type of discrimination is widely accepted.

If a worker is capable of doing the job well, his age should not count against him.

If we do not address this problem soon, with increasing longevity among our citizens, we will become a nation of the underemployed, something our society can ill afford.

Bonnie Schultz
Princeton, N.J.

To which our correspondent appends the comment:

Wow. Pass some legislation outlawing discrimination against older workers? Now that's brilliant! Why didn't anyone do that yet? Oh, wait.

Why do they publish such a letter? Is someone at the NYT angry with Ms. Schultz and happy to put her in the worst light?

Stephen Colbert jokingly called Wikipedia's strange notions of reality "wikiality"; his suggestions for edits to the Wikipedia articles about elephants caused the Wikipedia servers to crash and the article to be "protected."

But Wikipedia in general suffers from a severe bias; articles about controversial topics reward persistence over accuracy. Wikiality is especially a problem in articles criticizing the plaintiffs' bar. Articles on Fred Baron, ATLA, and John Edwards's legal career have been sanitized into hagiographies; articles on medical malpractice and tort reform have been rewritten to emphasize the anti-reform position, deleting pro-reform statistics, arguments, and evidence.

Wall Street Journal reporter Andrew Lavallee takes a thorough look at those buzz-creating "join the class action against Alltel" ads that have been running here (see right column) and on about 400 other weblogs (see Jul. 6). He quotes me and mentions this site at both the beginning and end of the article, and the graphic that runs with the article is none other than a screen capture of Overlawyered's front page with a blowup of the ad. It's in a section ordinarily available to WSJ subscribers only ("Alltel Spoofs Itself in Online Ads, But Not Everyone Gets the Joke", Aug. 3) but seems to be temporarily available to non-subscribers here. (& WSJ law blog)

Updating our Jul. 8 item:

The Northeast Portland man who sought more than $800 million from Michael Jordan and Nike founder Phil Knight because he said he was tired of being mistaken for the famous basketball player is giving up his defamation lawsuit....

Vada Manager, Nike spokesman, said no payment was made to [Allen Ray] Heckard to get him to drop the lawsuit.

"It's fairly simple," Manager said Monday. "He finally realized he would end up paying our court costs if the lawsuit went to trial."

(Holly Danks, "Man throws in towel on Jordan lawsuit", The Oregonian, Aug. 1). For more on the principle that costs should follow the event -- and not just in cases as wacky as this one -- see our loser-pays page.

The Coca-Cola Co. can rest easy: diet-book author Julia Havey has withdrawn her lawsuit (see Jul. 17) charging that one of the company's product loyalty campaigns encourages kids to consume so many soft drinks that they could die. Havey declared herself satisfied that a Coke spokesman told the press that purchasers seeking to accumulate product credits could share the soft drinks with friends instead of being obliged to consume them all personally. Coke has said Havey's lawsuit is a publicity ploy intended to call attention to her release of a new diet book. And this:

Havey said she wouldn't be surprised if Coca-Cola sued her.

"The world of litigation is a crazy place," she said.

("Lawsuit Over 'Lethal Doses' Of Coca-Cola Dropped", KPRC Houston, Aug. 2).

Our commenters' ongoing discussion of the federal junk-fax law and its effects has attracted the notice of Christopher Taylor at his Word Around the Net, which highlights some of the most illuminating comments threads from around the Web.

By a 4-3 margin, the Supreme Court of Michigan has ruled that the First Amendment does not protect "the interests of an officer of the court in uttering vulgar epithets toward the court in a pending case" (decision in PDF format, p. 19) and has therefore sent back a case involving the disciplining of Geoffrey Fieger with instructions to reinstate the reprimand. After seeing a $15 million medical malpractice verdict overturned, Michigan's most prominent plaintiff's lawyer had described the appellate judges who ruled against him as variously "jackasses", "Hitler", "Goebbels" and "Eva Braun", said that he was declaring war on them, said that they could kiss a portion of his anatomy not generally revealed in public, and repeatedly proposed that various objects be employed to assault a similar location on their persons.

In dissent, Justice Michael Cavanagh wrote that it matters not whether Fieger violated "a disciplinary rule he swore to obey when admitted to the practice of law". The point is instead that "the judiciary, upon which is conferred unique powers, significant influence and considerable insulation, must not be so shielded that the public is denied its right to temper this institution". Which raises at least one question: in what sense should Fieger be counted as a member of the "public" for these purposes? As a lawyer deputized with power to initiate compulsory process to drag unwilling parties into the Michigan courts, wouldn't it be fair to say that "unique powers, significant influence and considerable insulation" have been conferred on him, too, in exchange for which he might reasonably be asked to submit to professional rules not applicable to the general public to guard against the abuse of these unique powers? (Dawson Bell, "Fieger reprimanded for attacks on judges", Detroit Free Press, Jul. 31; Charlie Cain, "High court reinstates Fieger reprimand for comments", Detroit News, Aug. 1).

We covered the controversy at hand (and its underlying lawsuit) Sept. 14, 1999, May 3, 2001, and Apr. 3, 2006. Other coverage of Fieger's antics can be found here.

A class-action law firm, Gardy & Notis, is suing ESPN, Viacom, Disney, CBS, Hearst, and The Sporting News, among others, alleging that their participation in the thriving field of fantasy sports leagues violates the anti-gambling laws of New Jersey. DeadSpin notes (Jul. 31) that named plaintiff Charles Humphrey "is a resident of Colorado, not New Jersey, and he points out in the suit that he, in fact, has never played any of these fantasy games, unlike you, you heathens." Humphrey's press release is here and the complaint (PDF) is here (via Bill Childs and Kevin Heller). The complaint asserts a right to recovery under qui tam (bounty-hunting) laws of Illinois, Georgia and the District of Columbia which allow random outsiders to file lawsuits to recover moneys reaped by way of unlawful gambling.

Threats against federal judges are on a record-setting pace this year, nearly 18 months after the family of a federal judge was killed in Chicago....

The rise in civil lawsuits, especially those filed by people who do not have lawyers, and a change in criminal cases in federal courts help explain the increase, the marshals say.

Donald Donovan, chief deputy marshal in Baltimore, said people who file and lose multiple lawsuits account for the largest percentage of threats.

Federal courts now handle many more violent crime prosecutions, cases that were once the province of state and local courts....

Madison County, Illinois, inimitable as ever: "For two-and-a-half years the Lakin Law Firm has carried on a Madison County class action lawsuit with a dead plaintiff," reports the Madison Record, which says Lakin lawyer Jeffrey Millar did not inform Circuit Judge Daniel Stack about his client's having assumed room temperature. The defendant, American Family Insurance, eventually twigged to it, and now the Lakin firm plans to switch to a live plaintiff from Ohio so as to keep the suit going. "Millar has confirmed the death of [client Manuel Hernandez of Granite City], but he has not answered questions that American Family Insurance submitted about his knowledge of it. Millar objected to the questions, arguing to Stack that American Family Insurance should submit them not to Hernandez's attorney but to Hernandez himself." (Steve Korris, "Dead plaintiff should answer questions, class counsel argues", Jul. 20)(via Insurance Coverage Blog).

Way back in 2000, a Texas trial judge dismissed a $2 billion products liability suit against DaimlerChrysler and imposed sanctions of $865,000 on San Antonio attorney Robert Kugle and two associates at his firm, Andrew Toscano and Robert "Trey" Wilson III, also referring the matter to the State Bar of Texas for possible disciplinary action. As we summarized the episode in our post of Jul. 20, 2003, the judge found "that the steering decoupler of the sued-over Dodge Neon had been altered to simulate mechanical failure and that Mexican policemen had been asked to change their accounts of the accident giving rise to the suit. An appeals court called the firm's conduct 'an egregious example of the worst kind of abuse of the judicial system.'" Now, six years later, the leisurely process of state bar discipline still hasn't run its course in Toscano's case, Wilson drew a two-year probated suspension, and both men are practicing law in San Antonio. The American Tort Reform Association doesn't think that's a suitable outcome. (Mary Alice Robbins, "'Texas Justice Massacre' Billboard Targets Attorney's Alleged Misconduct", Texas Lawyer, Jul. 5; David Shepardson, "Chrysler takes fight to lawyers", Detroit News, Mar. 21).

Under the terms of a bill proposed in the New Mexico legislature, if a "drinker is caught with a blood alcohol content (BAC) exceeding 0.14, the bar owner will be deemed legally responsible and may lose his license" if the bar had served the drinker within the previous two hours. According to Nobody's Business, this implies that bar owners in New Mexico who don't want to break the law may be well advised to develop "paranormal gifts. ...they must know if a customer who leaves their establishment intends to drink more over the next two hours -- perhaps at a friend's home." (Jul. 10; "Proposed liquor law changes draw comments", AP/Los Alamos Monitor, Jul. 6).

Britney Spears has resorted to the courts of justice in Belfast, Northern Ireland, to slap down the National Enquirer, while singers Paula Abdul and Whitney Houston are reported to be contemplating similar trips in search of the plaintiff-friendly libel laws of the United Kingdom. Aren't they just a little bit ashamed of themselves? The "speedy results and whopping damages" of defamation suits in the U.K. "might be nice for the celebrity claimants. But it's bad for those of us who live in Britain permanently. These libel tourists are helping to prop up our illiberal, antidemocratic, and 'repugnant' libel laws, which are an offense to free speech and open debate." (Brendan O'Neill, "Throwing our judicial junk in Britain's backyard (or courts)", Christian Science Monitor, Jul. 24). But actually, reports Mark Stephens in The Times (London) Online, it is global business magnates rather than entertainment figures who are nowadays the busiest libel tourists in the British courts. They come from America, Russia and the Middle East to squelch the naughty insinuations of the financial press that not everything about their business dealings is on the up and up ("New celebrities of the libel courts", Jul. 18).

Glenn Reynolds (Instapundit), Jul. 30:

It's possible, of course, that they're the kind of people who weren't really happy before they became lawyers -- not surprisingly, the field has an attraction to people who like to complain. But it's also true that older lawyers seem to enjoy it more -- and to have enjoyed it more when they were new at it -- than today's lawyers. I think the practice of law is substantially less enjoyable than it used to be, even if it's sometimes more lucrative.