September 2006 Archives

On Apr. 10 of last year Ted introduced readers to the far-flung class actions and other lawsuits filed by mother-daughter team Armettia Peach and Ashley Peach of Madison County, Ill., as represented by the Lakin Law Firm of that celebrated county. Now Steve Korris reports in the Madison County Record that the various Peach family lawsuits have not been faring well of late -- the details get so intricate that we won't even try to summarize them, so just go check out the piece ("Dynamic suing duo fizzling in court", Aug. 24).

Oh, honestly, now. We never claimed to.

I'm guest-blogging for the entertaining David Lat at his Above the Law site today. Here's a sample post:

The Spring Valley, N.Y. chapter of the NAACP "has filed a complaint accusing the Ben Gilman Medical and Dental Clinic of religious discrimination for closing on Saturdays. The complaint, filed Sept. 6 with the state's Division of Human Rights, alleges that the clinic's practice of remaining closed Saturdays in observance of operators' Jewish Sabbath, unlawfully imposes their religious beliefs on others." (Suzan Clarke, "NAACP sues Spring Valley clinic", White Plains, N.Y. Journal-News, Sept. 15). Eugene Volokh has a thorough discussion (Sept. 25).

Notwithstanding various impediments which ordinarily restrain civil defendants from filing countersuits -- and particularly from naming their adversaries' lawyers in those countersuits -- a "Superior Court judge rejected a motion [last] Friday to throw out comedian Dom DeLuise's lawsuit claiming his former daughter-in-law caused him emotional and financial distress when she sued him for $2 million." Among defendants named in the lawsuit was attorney Steven Zelig and his law firm, which had represented Brigitte deLuise in her allegedly wrongful suit. Zelig argued that the state's "SLAPP suit" statute should bar the comedian's counteraction, but "Judge Judith C. Chirlin disagreed. 'I find that there were sufficient grounds for the lawsuit to have been filed,' she said. "There is a likelihood of it prevailing on the merits.'" The AP coverage doesn't specify what the alleged problems were with the original suit, however (merely unfounded in law and fact? scandalous as well?) so it's hard to know what implications there might be for the rights of defendants in other cases. ("L.A. Judge Lets DeLuise Lawsuit Proceed", AP/CBSNews.com, Sept. 23). More: George Wallace, Decs and Excs, Sept. 29.

Florida divorce lawyer Steve Miller wants your business if "you and your spouse hate each other like poison". Just a few easy steps, and "you're on the way to getting rid of that vermin you call a spouse." His YouTube video is discussed by Carolyn Elefant (Aug. 30), Greedy Trial Lawyer (Sept. 2), and Jacobson Attorneys in South Africa (Aug. 31) which contributes a Flickr photo documenting a marketing effort by divorce attorneys in that country ("Cheating Bastard!"). Miller's site is here.

"The big question here, of course, is whether Apple's attempt to own the word 'pod' means that we should pick another name for 'podcasting' before it's too late." (Wired "Listening Post", Sept. 28). More: Slashdot, The Inquirer, Russell Shaw on ZDNet, and lots more.

...and it's a law firm that returns your call, according to a rival trial lawyer, J. Steele Olmstead of Tampa. Olmstead has asked the Florida Bar to look into whether any money has changed hands in the relationship between Orlando law firm Morgan & Morgan and chiropractor Gary Kompothecras, which might constitute unlawful "patient brokering". Morgan & Morgan, which denies wrongdoing, has been in the news lately as the home base of Republican lieutenant governor candidate and state Rep. Jeff Kottkamp, who is not named in the Bar complaint. (Mary Ellen Klas and Beth Reinhard, "Fundraiser host being investigated", Miami Herald, Sept. 22)(via Lattman).

George Blake, a fugitive from British justice and MI6 double agent who escaped from Wormwood Scrubs prison 40 years ago and fled to Russia, has been awarded £3,350 in damages by the European Court of Human Rights because British authorities delayed too long in resolving a dispute over whether he could collect royalties for his autobiography. Blake, who is now 84 and still on the lam, is believed to have betrayed more than 40 MI6 agents, many of whom were killed, during his career as a double agent. The British government objected to his obtaining royalties on the grounds that he had violated confidentiality by publishing the memoir, but the ECHR accepted the arguments of Blake's lawyers that it was a violation of his rights for the dispute to have dragged on for nine years in British courts. (Richard Norton Taylor, "MI6 double agent Blake wins damages from government", The Guardian (UK), Sept. 27; Joshua Rozenberg, "Britain must pay traitor Blake for breaching his human rights", Daily Telegraph, Sept. 27; Dave Zincavage, Sept. 27).

The entertainer's "Straight Outta Lynwood" album includes a song by that title, the first two stanzas of which are:

I sued Taco Bell...'cause I ate half a million chalupas,
and I got fat!
I sued Panasonic...they never said I shouldn't use their microwave
to dry off my cat!

Fuller lyrics are here, and a sound sample can be found here.

I was a guest this afternoon on Michelle Martin's live National Public Radio talk show, "Talk of the Nation", discussing New York City's proposed ban on most uses of trans fats in restaurants. ABC News "World News Tonight" also had me comment for a news segment on the issue planned for tonight's broadcast.

On NPR, NYC Health Commissioner Thomas Frieden claimed that it is always possible to duplicate the taste and other gustatory qualities of a trans fat recipe using other fats. For an example of a business that stumbled by buying into this particular premise, see Jun. 30 (West Virginia potato chip maker Mister Bee).

P.S. On the NPR audio clip, check out the section just before I come on where host Martin, interviewing Frieden, does a blind taste testing of two wafer cookies, one made with trans fats and one without. And here's a mention by Bonnie Erbe at USNews.com (Sept. 27)(attributing to me "typical eloquently opinionated New York style").

Few Gotham restaurants paid much heed when city health commissioner Thomas Frieden announced supposedly voluntary curbs on the use of partially hydrogenated fats, so now the city is planning on making the restrictions mandatory. Among many, many foods that will apparently need to be either reformulated or bootlegged: Krispy Kreme "Hot Original Glaze" doughnuts. In the New York Sun, reporter Russell Berman quotes my reaction: "When is Nurse Bloomberg planning to let us fill up our own plates?". ("City Wants to Ban Some Fatty Foods in Restaurants", Sept. 27; "Freedom Fries" (editorial), Sept. 27).

Note for future reference: never, never get a vanity license plate reading "NV" (as Californian Nick Vautier did, innocently picking his own initials). Or plates reading XXX, MISSING or NOPLATE. "NV was meter maid code for 'not visible.' ... Los Angeles, for example, accused him of illegally parking a blue Ford, a silver Hyundai, a blue Chrysler and a blue Chevy truck, all with the same license plate." ("California: Innocent Man Stuck With 100 Parking Tickets", TheNewspaper.com, Sept. 17 (via Nobody's Business); Steve Harvey, "Vanity Plates Backfire on Mr. 'Not Visible'", Los Angeles Times, Sept. 17).

In case you imagined that the Equal Employment Opportunity Commission these days was all sweetness and reason with employers in enforcing anti-discrimination law, check out Baseball Crank's analysis (Sept. 12) of a new Sixth Circuit case, EEOC v. Watkins Motor Lines (PDF). Watkins Motor Lines hired Stephen Grindle, who then weighed 340 pounds, as a driver/dock worker:

Approximately 65% of his time was spent performing dock work including loading, unloading, and arranging freight. The job description for this position notes that the job involves climbing, kneeling, bending, stooping, balancing, reaching, and repeated heavy lifting.

Grindle continued to gain weight, hitting a high of 450 pounds.

In November 1995, Grindle sustained an on-the-job injury. He was climbing a ladder at the loading dock and a rung broke. He started to fall and caught himself but, in doing so, he injured his knee. ...

[In 1996 an industrial clinic doctor, Dr. Walter Lawrence,] found that Grindle had a limited range of motion and that he could duck and squat but he was short of breath after a few steps. Dr. Lawrence also noted that "[o]n physical examination, the most notable item is that the patient weighs 405 lbs." Dr. Lawrence concluded that, even though Grindle met Department of Transportation standards for truck drivers, he could not safely perform the requirements of his job.

So the company let him go, he sued, and the Sixth Circuit has now upheld the dismissal of his suit on summary judgment, not on the grounds you might think (that the grounds for his dismissal were obviously rational) but rather on the grounds that morbid obesity, when not caused by a physiological disorder at least, is not an "impairment" under the Americans with Disabilities Act. Michael Fox at Jottings of an Employer's Lawyer also comments (Sept. 12) as does lawprof Sam Bagenstos (Sept. 12).

Bumrungrad International Hospital in Bangkok, Thailand, treated 58,000 American patients in 2005, and looks to treat 20 percent more this year. Why?

At Bumrungrad Hospital, [spokesman Ruben] Toral said, the lower cost of living is a major factor in the savings, but so are differences in how the medical system operates.

Doctors in Thailand pay about $5,000 a year for malpractice insurance, compared with more than $100,000 for some specialties in the United States.

Thai courts will adjudicate malpractice claims, but the largest award ever issued was about $100,000 and the law there doesn't permit damages for pain and suffering.

(Mark Roth, "Surgery abroad an option for those with minimal health coverage," Pittsburgh Post-Gazette, Sep. 10). Apparently the Thais haven't heard the propaganda from the American trial bar that caps on non-economic damages don't lower malpractice insurance premiums or medical expenses. And apparently, thousands of Americans prefer cheaper healthcare to the opportunity to recover pain-and-suffering damages: unfortunately, plaintiffs' organizations fight very hard to ensure that American consumers don't actually get that choice. (Via, of all places, Bizarro-Overlawyered, where one can almost see the smoke coming out of the ears of the posting blogger because of the "Does-Not-Compute" cognitive dissonance.)

More on the Marcus Fiesel/Donna Trevino case, as noted here Sept. 11: "The birth mother who sued Butler County for $5 million over her son's death in foster care had no intention of reuniting with the boy, according to court records The Enquirer obtained Monday. In addition, the attorney who stands to gain millions in the civil case if the case is successful knew that." (Sheila McLaughlin, "Birth mom didn't want Marcus", Cincinnati Enquirer, Sept. 26)(hat tip: reader D.B.).

I was a guest this morning on the nationally syndicated radio show, discussing rumored BlackBerry lawsuits, wage and hour law, and class actions.

The TV host says a phone call should have sufficed to ask a retired teacher to make changes in his Oprah-for-president campaign (Sept. 25), which she calls "a flattering thing". ("Oprah Says Her Lawyers Overreacted", AP/Washington Post, Sept. 25).

Yes, it's regular Overlawyered mentionee Jack Thompson (Aug. 17, Jul. 24, Jun. 25, etc.) at it again -- how did you guess? This time he wants $600 million from Take-Two Interactive, Sony and other defendants over the rampage by 14-year-old Cody Posey on newsman Sam Donaldson's New Mexico ranch, which left three members of the youth's family dead in July 2004. It seems Posey had "obsessively" played the game Grand Theft Auto: Vice City. (AP/Washington Post, Sept. 25)(via KipEsquire). More: Lattman, Sept. 27.

The rum maker contends that the three women's injuries "were caused after a bartender poured rubbing alcohol on the bar of the 'Secrets' adult club and ignited it as part of a promotion for flaming drinks in 2002." The complainants, it suggests, have already recovered damages from other and more culpable entities in the accident. The plaintiff's lawyer says the 151-proof liquor has been the cause of other accidents when it caught fire, but Bacardi counters that the label warns against use in flaming drinks and that the bottle includes a "flame arrester". ("Bacardi Denies Its 151 Rum Caused Bar Burn Injuries", AP/FoxNews.com, Sept. 25). For our earlier coverage, see Jul. 27.

I was a guest this afternoon on Paul Harris's radio show on KMOX, St. Louis. We discussed Judge Weinstein's ruling certifying a national class action over "light" tobacco claims (see PoL Sept. 25), the court decision last week keeping alive the Pelman obesity case against McDonald's (Sept. 22), and a deaf group's lawsuit demanding captioning at Washington Redskins football games (Sept. 21). You can listen here -- it's practically a podcast.

Bizarro-Overlawyered is upset about the fact that a legislator, over twenty years ago, mentioned a lawsuit involving "a burglar [that] fell through a skylight and injured himself only to recover thousands of dollars from the owner of the skylight," and points to this MS Word account of the case of Bodine v. Enterprise High School to debunk the tale. Those dastardly reformers, misrepresenting the facts once again! (Of course, there are several thousand posts on Overlawyered over the last seven years, and not a one before today mentions this case, so it's hardly central to the reform movement. It doesn't appear on the ATRA website, either. But why split hairs when there's a chance to demonize reformers?)

Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars' safety, it doesn't matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.

In other words, a burglar fell through a skylight, and blamed the skylight's owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine's only hope of recovery is the law's rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn't mention that Bodine was 19, but so what? He didn't mention that Bodine was 6'1" and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was "failure to warn," but that's hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.

Were the skylights safe? Perhaps not; there had been other accidents (all involving trespassers) at other schools, though not long enough before Bodine's accident for a school bureaucracy to have time to react. But, for most people's sense of justice, that is hardly relevant: Bodine had no business being on the roof in the first place. In the words of anti-reformer Justinian Lane, "If you can't do the time, don't do the crime."

If this is the best the anti-reformers can do to point out "distortions" in the reform movement, I'd say we're doing a pretty good job. (Earlier in the series: Sep. 17; Sep. 18). And once again, the only people misrepresenting anything are the supporters of the litigation lobby, who once again fail to honestly engage with the reform position in their efforts to rebut it.

Update: David Nieporent notes in the comments:

Ted, you missed the best part of the skylight anecdote. In another post on Tortdeform, Cyrus Dugger approvingly cites a long passage from a book review of an anti-tort reform book. That passage also attempts to debunk the skylight story. But here's how it describes it:

The actual case involved a teenager who was on the roof of a school and, by the best accounts we can find, was trying to redirect a light because they were trying to play basketball. And while he was on the roof he stepped through the skylight, which had been painted over black. So this may have been a trespasser, but it wasn't a burglar. (Emphasis added.)

That's right: in this account which is trying to debunk myths about the case, cited approvingly by Tortdeform, it turns a thief into a guy "trying to redirect a light."

Britain: "Headteachers yesterday warned that litigious parents could soon sue schools for failing to prevent their children from drinking, smoking or taking drugs. ... Families are already taking legal action over schools' alleged failure to tackle bullying and heads say they could soon be held responsible for obesity, pregnancies, sexually transmitted diseases, drug taking and drinking." (James Meikle, "Heads predict lawsuits over obesity targets", The Guardian, Sept. 12).

Attorneys for the talk show host have fired off a cease and desist letter to retired Kansas City teacher Patrick Crowe, 69, over his efforts to draft her as a presidential candidate. In addition to demanding that he surrender his website oprah08.net (which lands visitors on this site) and give up his toll-free number 1-866-OPRAH08, the letter (courtesy Smoking Gun) insists (p. 2) that Crowe "refrain from using any and all references in any vehicle (including, without restriction, websites), for any reason, to Ms. Winfrey" or her properties. (Matt Campbell, "Quest to elect Oprah becomes publicity opera", McClatchy/ Seattle Times, Sept. 23; Andrew Buncombe, "Oprah blocks bid to make her President", The Independent (U.K.)/Belfast Telegraph, Sept. 22). Ann Althouse comments: "would Oprah be a good President? I think she's too litigious." (Sept. 24).

McDonald's week continues on Overlawyered (Sep. 22; Sep. 20). McDonald's is being sued over a trend of strip search hoaxes we discussed two years ago.

Here, a caller from a payphone in Florida tricked a Hinesville, Georgia, McDonald's male manager and 55-year-old male employee into strip searching and molesting a 19-year-old female employee, who put up with the telephone-instructed molestation for thirty minutes before putting an end to matters. The franchise immediately fired the two men three days after the February 2003 incident, and offered the female victim counseling and a new job, but she instead quit and sued the franchise and McDonald's. McDonald's did warn the franchise (and other franchises) about the hoax in 1999 and 2001, (and the McDonald's training manual now explicitly rules out strip searches of employees rather than relying on common sense) but such warnings are, of course, evidence that they should have warned more, according to the plaintiffs. The district court threw out the suit against McDonald's, and many of the claims against the franchisee.

The defendants' attorneys apparently have little faith that the law will have the common sense the employees lacked and blame the appropriately responsible parties rather than the deep pockets: to avoid liability they are buying into the plaintiff's theories and seeking to blame each other in September 15 arguments before the Eleventh Circuit on interlocutory appeal. Some more aggressive defense might have had an effect: "The whole thing is really stupid," said Senior Judge Peter Fay. (Alyson M. Palmer, "Bizarre 'Strip-Search Hoax' Case Before 11th Circuit", Fulton County Daily Report, Sep. 25).

It can wind up breaking the hearts of actual parents, as in this gambling-SWAT-raid tale recounted by Radley Balko (Sept. 18).

The Minnesota appeals court took exception to a provision of the law providing that a car owner would be responsible for traffic infractions caught on camera unless he or should could prove someone else was driving. (Joy Powell, "Court upholds ruling against traffic cameras", Minneapolis Star-Tribune, Sept. 23). For more on the evils of traffic-cams and contingency-fee law enforcement, see Sept. 6, 2001, Apr. 8-9 and Apr. 19-21, 2002, Mar. 10, 2004, and Mar. 31, 2005.

In a first-of-its-kind suit, California Attorney General Bill Lockyer is demanding damages from automakers for the impact of global warming. "Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy," notes Ted at Point of Law. Even accepting Lockyer's contentions at face value, autos sold in California contribute less than 1 percent of global greenhouse-gas emissions (David Shepherdson, "Calif. sues over auto emissions", Detroit News, Sept. 21).

Is Lockyer making it up as he goes along with the new suit, legal-theory-wise? It would seem so. His theory that autos constitute a nuisance have never been enacted as law even by the California legislature, yet he's asserting it retroactively to punish past behavior by Detroit and Japan worldwide. His views clash strongly with those held by elected officials in many other states, which is one reason our system gives the U.S. Congress, rather than the California attorney general, the right to set national environmental policy. His notion that internal combustion engines might not be unlawful in themselves, but constitute nuisance in this case because manufacturers could be doing more to minimize their impact, makes as much sense (which is to say, no sense whatever) as if he sued California's own drivers on the grounds that they contribute to the problem by taking unnecessary trips.

Prof. Bainbridge has quite a bit more to say about the abuse of power involved in using this type of litigation as an end run around the political branches of government which are the proper locus of authority on policy matters of this sort (Sept. 21).

Reader Earl Wertheimer writes: "I would rather see the automakers simply agree to stop selling cars in California. Let them walk & bicycle for a while. This would promote better fitness and also reduce future obesity lawsuits."

Reader Loren Siebert writes: "I wonder if the discovery process will include how many motor vehicles the state of CA has purchased and operates." And Nick Fenton at DTT Buzz has suggestions for more litigation (Sept. 20).

More: Lockyer "is unlikely to win" the suit, according to legal experts interviewed, especially since "a similar case brought by California and other states against utilities companies in 2004 failed in the courts". "Even with a small chance of success, environmental advocates say the new legal action is useful and necessary", one reason being "to pressure carmakers". “I hope that automakers realise this will be the first of a series of lawsuits,” says Jim Marston of Environmental Defense. (Roxanne Khamsi, "California faces uphill battle on car emissions", New Scientist, Sept. 22). EconBrowser (Sept. 24):

...the key question in my mind is not the extent to which reducing greenhouse emissions from vehicles may be a good idea, but rather whether, under previously existing U.S. law, it has been lawful to manufacture cars that emit carbon dioxide. I submit that it has, and if a judge somewhere now creatively determines that a company can be punished for such perfectly lawful behavior, then I fear that America is no longer a nation ruled by law, but rather ruled at the whim of whatever those currently wielding power happen to think might be a good idea.

Yet more: Brian Doherty, Reason "Hit and Run", Sept. 21.

George Will profiles the brave Muslim feminist, which would be worthy of mention even if it didn't lead off with this anecdote:

"While her security contingent waits outside the Georgetown restaurant, Ayaan Hirsi Ali orders what the menu calls "raw steak tartare.'' Amused by the redundancy, she speculates that it is intended to immunize the restaurant against lawyers, should a customer be discommoded by that entree. She has been in America only two weeks. She is a quick study."

See also Nov. 11, 2004; AEI, Aug. 28.

Speaking of class actions without cognizable causation: Wal-Mart refuses to sell albums that contain foul language, but a Tool CD that didn't have the Tipper-Gore "Parental Advisory" label slipped through the cracks (as did another album with a song that had the phrase "menage-a-trois" in the lyrics). This is supposedly grounds for a class action lawsuit, but it's really just a legalized extortion attempt, since if the court certifies the class, it will cost Wal-Mart about as much to defend the case as it would to just pay the plaintiffs' attorneys a nuisance settlement. (I presume they've sued The plaintiffs will be disappointed because they failed to sue beneath the Class Action Fairness Act $5 million jurisdictional requirement to keep the case in judicial hellhole Cook County; the case is thus almost certain to be removed to federal court, and the federal appellate courts for Chicago scrutinize class action settlements too closely for the hit-and-run plaintiffs' bar's comfort.)

Even plaintiffs' attorney David Fish is appalled at the blatant misuse of consumer fraud laws. Professor Childs isn't impressed, either, and Peter Lattman comments.

The infamous class action litigation seeking to blame McDonald's for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, "N.Y. Judge Rebuffs McDonald's Motion to Dismiss Deceptive Ad Claims", New York Law Journal, Sep. 22). Judge Sweet's opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald's can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald's if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.

Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as "pure hype" because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It's a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Point of Law.

Every so often someone suggests that poorly conceived pro se (self-represented without a lawyer) lawsuits can't count as a symptom of an overlawyered society, since lawyers aren't involved in them, right? I left a comment at Evan Schaeffer's site the other day about this question and reproduce it here:

I agree that it's fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant.

I don't agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.

The New York Times has more on that dispute in which an L.A. boutique is claiming that Us Weekly is wrongfully failing to give it publicity (see Sept. 12). (Mireya Navarro, "The End of a Beautiful Friendship?", Sept. 21). More: Ellis Henican, "Only in America: Suing to Be a Celeb", Newsday, Sept. 20.

Bruce Carton of Securities Litigation Watch writes, regarding the demise of our Trackback function (Sept. 20): I sent you a Trackback when I linked to your great Nelson Rocks post (my post at Securities Litigation Watch is here, where I tried to create a humorous securities disclosure/MD&A version of the Nelson Rocks disclaimer) -- I was wondering why it never showed up."

In Australia, at least, it seems this whole land claims and reparations business is getting rather serious. "The judgment will not affect homes or businesses, as the Australian courts have ruled that native title does not apply to land owned on a freehold or long-lease basis." However, if the judgment is upheld against an expected appeal by the state of Western Australia, descendents of natives may win the right to convert public lands in the city (such as urban parks) into permanent encampments, and boaters worry that control over the right to use waterways may also be affected. (Kathy Marks, The Independent (U.K.), Sept. 21; "Native title could lock up parks: Ruddock", AAP/The Australian, Sept. 22; Chris Merritt and Patricia Karvelas, "Title win boosts capital city claims", The Australian, Sept. 21). Perth is a city of 1.5 million. A native claim over land in Melbourne and its environs is expected next. (Ben Packham, "Native title claim looms", Herald-Sun, Sept. 21).

In Salisbury, England, a "firm of solicitors is offering hairdressers cash to refer customers who reveal that they have marital problems. But one hairdresser has criticised the idea as unethical and refuses to help." The law firm of Trethowans says there is nothing in violation of Law Society rules in its offer of £75 to salon stylists who steer distraught spouses its way, the fee "payable when the courts grant a decree nisi or upon the agreement of a separation deed." The law firm's director describes the payments as "just a different sort of advertising" and says he has heard of firms in other geographic areas doing the same thing. (The Times (U.K.), Sept. 1). Alex Wade comments ("'Short back and sides? How's your marriage, by the way?'", The Times (U.K.), Sept. 15).

Truly bad ideas from legal academia, part 2038 of a series: GWU lawprof Jonathan Turley wants to get rid of the common-law rule that you can't sue someone for injuring the reputation of a dead person. ("Give the Dead Their Due", Washington Post, Sept. 17). At Volokh Conspiracy, commenter elChato writes,

I for one look forward to the descendants of the original Hatfields and McCoys settling in court who was responsible for starting and perpetuating their long-ago feud. The OK Corral battle can live again. Any descendants of Boss Tweed should be able to sue bookwriters who claim he stole $200 million (where's the proof?), Huey Long's descendants should be able to sue anyone who said he engaged in bribery and corruption (he was never convicted- where's the proof?), and on and on and on.

Yes indeed, a great use for the time and energies of the court system which is otherwise sitting idle because there simply are not enough disputes among the living to keep judges busy.

"The National Association of the Deaf has filed a lawsuit against the Washington Redskins to get team officials to offer closed-captioning for the deaf and hearing-impaired at FedEx Field." The lawsuit cites the Americans with Disabilities Act. (Hamil R. Harris, "Hearing-Impaired Fans Sue for Access to Closed-Captioning", Washington Post, Sept. 20). Related: Feb. 19 and Aug. 1, 2000 (movie theaters); Mar. 9-11, 2001 (comedy club, sign interpreters)

If you can stand one more post about the McDonald's coffee case, this 2002 opinion in the High Court of Justice, Queens Bench Division, is extraordinarily sensible. Most notably, coffee served at 65 C (a mere 150 degrees Fahrenheit), will cause a full-thickness burn in 2 seconds, so the court rejected the claim that McDonald's could have avoided injury by serving not-so-hot coffee, refuting the claims regularly made by the plaintiffs' bar that a few degrees' difference could have avoided injury. (Bogle v. McDonald's Restaurants Ltd., Neutral Citation [2002] EWHC 490 (QB), Case No: HQ0005713.)

Following a long period in which we battled trackback spam, the entire trackback function just seemed to stop functioning a while back. Since it has been some months now since any legitimate trackback has registered, I've turned the whole function off rather than potentially mislead newcomers about its availability. Technorati remains the most convenient way of seeing whether we've been linked lately on other sites.

For those who care about such things, there's now a slightly updated version of my biographical page up, with (finally) a current photo of the new clean-shaven me (as I've been since last December).

In Waukegan, Ill., 49-year-old Beatrice Vance died of a heart attack after waiting two hours in a hospital waiting room. A coroner's jury has declared her death a homicide. (Lake County News-Sun, AP, Chicago Tribune). Medical blogs are discussing: GruntDoc, MedPundit, KevinMD. Plus a discussion at Prof. Bainbridge's. (cross-posted from Point of Law).

As in earlier rounds (May 31 and Nov. 2, 2004, etc.), some proponents are advancing the view that despite its sweeping and ambiguous language, the amendment wouldn't really endanger any existing legal rights of unmarried persons in Virginia. The Roanoke Times editorially rejects that view: "The legal views conflict sharply. This can mean just one thing: years of litigation under every facet of law that touches upon human interactions. In the antagonistic court arena, the relationships of families and friends will be ripped apart. ... Voters should reject this unfair amendment, which has the potential for so many unintended consequences." ("The anti-family amendment" (editorial), Roanoke Times, Sept. 19). See also Mar. 20, 2005 (sequence of events in Michigan).