October 2006 Archives

My opening shot is up at the Point of Law featured discussion on Election '06 and legal reform. More: I've also posted there reader Thomas Zak's comments, made in response to mine.

• A WSJ Law Blog commenter thinks I'm too restrained in criticizing the plaintiffs' bar. [WSJ Law Blog]
• The Bush administration just might accomplish something else reform-related in its last two years. [Point of Law; Ideoblog]
• 12-year-old California boy tries to jump over five-foot-long Halloween decoration that has chicken wire sticking out, hurts himself, 2-1 court decision says he can sue school district for failing to supervise him. [Los Angeles Daily News]
• Jaycees may be forced to disband over haunted house lawsuit; they've stopped running the haunted house already. [Quad City Times]
• Judge Easterbrook: "Gobs of judicial (and law-firm) time have been squandered by the combination of sloppy drafting, repeated violations of Rule 65(d), and inattention to all sources of subject-matter jurisdiction. If these lawyers were physicians, their patients would be dead." [Blue Cross and Blue Shield Assoc. v. American Express Co. via Bashman]
• Britons vandalize speed cameras. [NY Times]
• Roger Pilon on California Prop 90. [LA Times via Bashman]
• How to use a condom optimally, and save $13.5 million a year to boot. [Marginal Revolution]
• You like me! You really, really like me! Or, if not "like," a small fraction of you tolerate me enough to download my writings off of SSRN. [Torts Prof Blog]

Under California law, if you're digging on your property and you find prehistoric remains, you must contact the state's Native American Heritage Commission.

The commission then assigns a person known as the "most-likely descendant" to consult with the landowner. But there's sometimes tenuous or no ancestral ties between the "descendant" and the uncovered bodies, scientists and American Indians said. ... Praetzellis and other researchers said it is more important for American Indians to be involved in the moving of ancient remains than to force them to prove a genetic link after being left out entirely for decades.

"They just have to say, 'Yeah, I feel culturally connected to those remains,'" said Jeff Fentress, a San Francisco State anthropologist. "It is really up to that person to determine how to handle that burial."

Landowners often pay consulting fees to persons on the designated "descendant" lists, and some persons of American Indian descent say they would like to be on the lists but were left off because of politics. Some Indian activists are also upset that the state law does not give the "descendant" the right to block development. (Matt Krupnick, "Ancient remains causing problems", Contra Costa Times, Oct. 18). Earlier: Jul. 16, 2005, etc.

Ted mentioned this one in his roundup yesterday, but it merits a post of its own, duly assigned to our "personal responsibility" archive: Jeffrey Klein and Brett Birdwell were 17 "when they trespassed onto railroad property and climbed atop a rail car" because they wanted to see the view from there. They were shocked by a 12,500-volt wire and severely injured. The incident took place in Lancaster, Pa. but through the miracle of forum selection the lawsuit against Amtrak and Norfolk Southern landed before a jury in Philadelphia, a locality notably more favorable for plaintiffs than Lancaster. An attorney said the railroads should have posted signs for the benefit of trespassers warning of the overhead hazard and also should have had the electricity turned off at the time. As Ted pointed out, Birdwell, who was awarded $6.8 million, had injuries transient enough that he's now serving with the Army in Afghanistan. ("$24.2 million for men burned atop rail car", AP/MSNBC, Oct. 27; Brett Lovelace, "Verdict: $24.2M", Lancaster Intelligencer Journal, Oct. 27; Janet Kelley, "A $24.2M question", Lancaster New Era, Oct. 27)(& Coyote Blog). Update: railroads appeal (AP, Nov. 15).

Just announced at my other website, Point of Law:

Tomorrow we kick off our next featured discussion, a four-day round-robin on the election and its implications for legal reform. It won't be a debate format, more like a free-for-all of commentary and reporting that will tackle such topics as:

1) Races around the country where law and litigation have been an issue, or a motivating force;

2) Activist state attorney generals on the ballot, or running for higher office;

3) Ballot propositions to watch on election night;

4) Implications for lawsuit reform and other legal issues if one or both Houses of Congress turn Democratic.

Ted Frank, Jim Copland and I will all be participating, and we also expect surprise guests to stop by for one or more days. In fact, if you've got something interesting to say about the legal politics of Election '06, we invite you to send any of us an email (my address is editor - [at] - this-domain-name - .com) to ask about contributing.

• My Oct. 28 WSJ op-ed is now on-line for free. [AEI]
• Your tax dollars at work: $24.2 million for two 17-year-old trespassers burned by high-voltage electrical wires six feet above the top of an Amtrak train that they had climbed. The one who received "only" $6.8 million had injuries minor enough that he's serving in the Army now. [Lancaster Online via Northridge Buzz Blog]
• Refuting trial lawyers' claims of repealing McCarran-Ferguson as a panacea for insurance rates. [Point of Law]
• "At what point are these accommodations exacerbating learning disabilities, and creating life disabiltities?" [Ivey; Wall Street Journal]
• $1.5 million verdict: plaintiff blamed her bipolar disorder on a nurse's error that caused a lung to collapse. [Columbus Ledger-Enquirer; see also Kevin MD commenters]
• Trial lawyers insult West Virginia businessmen for daring to challenge their hegemony. [Institute for Legal Reform]
• Bank of America overcredits account, takes money back, gets hit with California state class action verdict that could cost billions. [Point of Law]
• Latest Duke lacrosse case outrage: prosecutor's office says it hasn't even interviewed alleged victim. [Volokh; Outside the Beltway; Corner]
• In anticipation of Philip Morris v. Williams, hear the great Sheila Birnbaum argue State Farm v. Campbell. [Oyez MP3 via Mass Torts Prof]
• Kristol: the U.S. Senate still matters because of judicial nominations. [Weekly Standard]
• Election challenge to Washington state incumbent Supreme Court justice who is supported by trial lawyers. [Seattle Post-Intelligencer via Bashman]
• Don't tell AG Lockyer, or he'll want to sue the fat for global warming. [NY Times via Kevin MD]

Jack Thompson, the Florida lawyer with a seldom-rivaled knack for keeping this site supplied with material (Oct. 20, etc., etc.), has fired off a cease-and-desist letter to the publisher of Mortal Kombat: Armageddon demanding that it stop publication of the game because participants can use it to create characters based on him. A Slashdot posting explains that Thompson's "image is not actually a selectable character in the game," but John Scalzo at the Gaming Target website (scroll down) has published instructions on how to use the game's build-a-fighter mode to create a character based on Thompson, widely loathed among hobbyists because of his courtroom assaults on popular games (among the character's features: "puffed out self-important look... Banshee Scream. ...no victory pose because, let's face it, he's never won"). More: XBoxic, GameShout, CNet/GameSpot (& welcome Ron Coleman readers).

So Native American activists are trying -- again -- to get it invalidated as a trademark. (Jeremy T. Elman, "Can Trademark Law Help Minority Groups Eliminate Negative Stereotypes?", Law.com, Oct. 12).

"A Danish court has dismissed a lawsuit filed by Muslim groups against the newspaper that first published cartoons of the Prophet Muhammad that triggered protests across the world this year." (AlJazeera.net, Oct. 27; Volokh, Oct. 26). Syrian legislator Mohammed Habash, who heads the Islamic Studies Center in Damascus and is apparently deaf to ironic overtones, charged the Danish court with "[wanting] to impose their way of thinking on all other nations.” ("Arab dismay at cartoons verdict", Irish Examiner, Oct. 26). Earlier: Mar. 19, Mar. 31, etc.

That's the title of my "Rule of Law" column in today's Wall Street Journal.

The trial lawyers have now enlisted themselves in the war against terror. One can imagine a parody -- a team of wing-tipped attorneys parachuting into the wilds of Afghanistan, armed with subpoenas forcing Osama bin Laden to produce all relevant documents and secure his attendance at a 20-day videotaped deposition (damn the Geneva Conventions against torture). The legal and photocopying bills alone crush al Qaeda.

The reality is more prosaic, and less amusing. For just as Willie Sutton legendarily said he robbed banks "because that's where the money is," plaintiffs' attorneys are weaving creative legal theories to hold legitimate third parties liable for the intentional acts of terrorists. This friendly fire could end up doing almost as much financial damage as the terrorists themselves, with the lawyers getting rich in the process.

Remember that the reason anti-reformers justify Stella Liebeck's infamous hot coffee lawsuit against McDonald's is because McDonald's was allegedly the only one selling coffee hot enough to burn? The family of a Dallas Cowboys coach has hired an attorney to sue McDonald's over allegedly tainted food. Here's how Jeff Carlton of the AP describes him:

Cecil W. Casterline, the Haley's lawyer, has previously sued Whataburger and Wendy's on behalf of clients allegedly scalded by coffee.

Eugene Volokh has a good laugh at the expense of an upstate New York publication called the North Country Gazette (Oct. 23 and 25). More: I should have made clear that it was David Giacalone who noticed the Gazette's unusual policy and called it to the attention of the blogosphere; he has subsequently found himself drawn into a dispute with Gazette proprietor June Maxam. More: Carolyn Elefant, Typical Joe, and PhDiva (here, here and here).

Forty-five percent of Americans would support it, according to a new Zogby poll. Ethan Nadelmann of the Drug Policy Alliance warns against repeating our great-grandparents' mistakes: "a new Prohibition is not the answer -- not if we want to stay safe, sane and free." (Huffington Post, Oct. 26; more).

• Bill Moyers calls his lawyers. [Adler @ Volokh]
• Jim Copland: 9/11 suits against New York City over emergency recovery work "simply wrong." [New York Post]
• Did the PSLRA help shareholders? [Point of Law]
• 32-year-old Oregon grocery store employee sues, claiming that Green Day stole his never-recorded high-school writings. [Above the Law]
• Does one assume the risk of a broken nose if one agrees to a sparring match at a karate school? [TortsProf]
• "At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances." [New York Times via Point of Law]
• More on global warming lawsuits. [Point of Law]
• Dahlia Lithwick, wrong again when bashing conservatives? Quelle surprise! [Ponnuru @ Bench Memos; see also Kaus] Earlier: POL Oct. 6 and links therein. Best commentary on New Jersey gay marriage decision is at Volokh.
• Michael Dimino asks for examples of frivolous lawsuits. What's the over-under until it turns into a debate over the McDonald's coffee case? [Prawfsblawg]
• Unintended consequences of campaign finance reform. [Zywicki @ Volokh; Washington Times]
• Who's your least favorite Supreme Court justice? [Above the Law]
• More on Borat and the law. [Slate] Earlier on OL: Dec. 9 and links therein.
• "Thrilled Juror Feels Like Murder Trial Being Put On Just For Her." [Onion]
• A revealing post by the Milberg Weiss Fellow at DMI: companies make "too much" profit. I respond: "Again, if you really think the problem is that insurance companies charge 'too much' and make 'too much' money, then the profitable solution is to take advantage of this opportunity and open a competing insurance company that charges less instead of whining about it. (Or, you could use a fraction of the profits to hire a dozen bloggers and thus solve the problem at the same time keeping the whining constant.)" [Dugger]

Let's be clear: one can take the position that there needs to be more judicial accountability and that too many judges overstep their bounds, and still think that Amendment E—the likely-unconstitutional South Dakota ballot proposal to end civil immunity for judges and jurors and establish an unanswerable "special grand jury" to oversee these things—is positively insane cuckoo bonkers. Opponents of the measure have set up a good website discussing the issues.

For aficionados of one-sided litigation coverage, here's a lulu from the Associated Press. It's an article on the lawsuit (National Federation of the Blind v. Target) seeking to establish that companies violate the Americans with Disabilities Act when they do not design their websites so as to make them "accessible" to users who are blind, deaf, lacking in motor skills needed for mouse use, etc. The article fails to mention the courts' rejection of the disabled rights groups' position in the Southwest Airlines case, though it's the major existing precedent on the point. And aside from a ritual and uninformative denial by the retailer defendant Target that it is liable, the article presents as uncontroversial the demand that non-accessible websites be declared unlawful, with not a hint of why anyone might consider it a thoroughly disastrous idea. Oh, wait: the article does incorporate a bit of controversy, by recording worries that a victory for the plaintiffs in the Target case might not go far enough and come out being "read too narrowly. Not every business or Web site is subject to the Americans with Disabilities Act, said [Washington, D.C. lawyer] John D. Kemp". (Seth Sutel, "Blind Web surfers sue for accessibility", AP/San Jose Mercury-News, Oct. 24).

Who says we shrink from giving lawyers favorable publicity? From a report earlier this month in the Rocky Mountain News:

The California law firm Lerach Coughlin sought $96 million in legal fees when it engineered a $400 million shareholder class-action settlement with Qwest Communications over alleged securities fraud.

So how much did Denver attorney Curtis Kennedy seek when he prevailed in getting those legal fees slashed to $60 million - thus providing $36 million more for the shareholders?

Only $40,500. That's the 90 hours Kennedy spent on the case times his hourly rate of $300 times 1.5, according to a federal court filing this week. ...

Other attorneys might have tried to get a percentage of the $36 million.

"I just think that would be hypocritical after asking the judge to apply moderation" to the $96 million request by Lerach Coughlin, Kennedy said.

Kennedy was representing the Association of U S West Retirees in the case. (Jeff Smith, "Lawyer asks for $40,500 in legal fees", Rocky Mountain News, Oct. 12)(via Securities Litigation Watch).

I have written a piece on the Philip Morris v. Williams case for the Business and Media Institute. For other views, see Anthony Sebok (Brooklyn Law), Alan Morrison (Public Citizen), and Adam Cohen (New York Times). Morrison argues that the federal courts have no role in reviewing state-court decisions, which makes one wonder what his position is on habeas corpus. Cohen's op-ed misstates what happened in Andrade, which was a case of collateral (and thus limited) review, rather than a direct appeal, like Williams, where a civil defendant does not even have the option of collateral review.

Earlier on Point of Law (from which this was cross-posted): Oct. 12; May 30; Feb. 2.

Update: The American Constitution Society press briefing on Philip Morris v. Williams (in which I participated with Peter Rubin, Neil Vidmar, and Bill Schultz) is now online.

Kimberly Ososio, canned from her job as an editor at The Source magazine, portrayed the magazine's offices as a "raunched-out workplace where executives watched porn, smoked pot and called female employees "b------." An attorney for the magazine admitted that coarse and profane language was common there but said it was aimed at all parties, "not a gender-specific conduct". A jury agreed with Osorio's claim that she was sacked for complaining about sexualized goings-on; she also complained of defamation, but lost on sexual discrimination and harassment counts. (Jose Martinez, "Hip-hop mag bagged", New York Daily News, Oct. 24; The magazine already faces bankruptcy proceedings due to other business problems. (Leonard Greene, "Editor's New 'Source' of Woe", New York Post, Oct. 25; Peter Carlson, "Hip-Hop Editor Wins Suit Over Her Firing", Washington Post, Oct. 25; Joshua Rhett Miller, "Ex-Source editor hopes ruling redefines rap", Metro New York, Oct. 25).

Once again, second thoughts prove unavailing after modesty is cast to the winds: "A magazine that published a photograph of a woman baring her breasts at a pig roast for motorcycle enthusiasts did not intrude on her privacy, a federal judge has ruled. Tonya Barnhart sued Paisano Publications LLC, publisher of Easyriders magazine, after it ran the picture of her in its March 2005 issue, claiming unreasonable intrusion, false light invasion of privacy and appropriation of her likeness." But U.S. District Judge J. Frederick Motz of Maryland ruled against Barnhart on summary judgment. Her behavior "cannot reasonably be said to have constituted a private act," Motz wrote. "She exposed herself at an outdoor fundraising event open to any members of the public who purchased a ticket." ("Judge: Photo of woman baring her breasts didn't violate privacy", Examiner.com, Oct. 23; "Woman Can't Sue Magazine After Flashing Breasts", AP/WBAL, Oct. 23; link to Memorandum and Order). Similar: Jul. 4, 2006, etc.

"To avoid charges of 'racism,' we disciplined black and white students differently." (Edmund Janko, City Journal/OpinionJournal.com, Oct. 25). According to the byline, "Mr. Janko taught in the English department of Bayside High School in New York City from 1957 to 1990.".

One would think that Mississippi Attorney General Jim Hood's steering of $14 million in taxpayer money to a friend instead of using government attorneys at a fraction of the cost would be a major scandal, but The Sun Herald allows the story to be derailed into a trial-lawyer attack on lawsuit reform— and this is the "one hand/other hand" focus the reporter took:

"Some say the GOP pushes it because trial lawyers are the Democrats' last major source of campaign funding. Others say Republicans push such changes to protect their major source of funding, big business."

That reform demonstrated itself to be good public policy (especially in Mississippi, where its legal system was a notorious and shameful "judicial hellhole") doesn't seem to enter the equation. (Geoff Pender, "Battle over lawyer fees", Oct. 25).

Notes Cato's Tim Lynch: "The National Association of Criminal Defense Lawyers (NACDL) recently bestowed its 'Champion of Justice' award to former Attorney General Janet Reno." (Oct. 10). Radley Balko, like Lynch, wonders what NACDL could have been thinking (Oct. 13).

Following urgings by prominent attorney and frequent Overlawyered mentionee Willie Gary, a jury in Pensacola, Fla. had awarded the sum to a road builder who said he was defamed by an investigative-journalism piece in the newspaper chain's Pensacola News-Journal (Mar. 30-31, 2001; Dec. 23, 2003; Jan. 7, 2004). The Florida appeals court "ruled that Joe Anderson's case should have been dismissed because he mischaracterized his lawsuit as a 'false-light claim' to get around a two-year statute of limitations that applies in libel cases. The court said that since its decision was based on the statute-of-limitations issue, it did not rule on several other arguments for reversal raised by the newspaper." (Ginny Graybiel, "News Journal suit reversed", Oct. 21).

• I'm speaking at the National Press Club today on the Philip Morris v. Williams case. [Point of Law; Medill summary; Bashman analysis]
• How much skin color discrimination is there? [Somin @ Volokh]
• Latest in the Ninth Circuit follies. [Above the Law]
• Difficulty of making causal link between lung disease and 9/11 dust. [NY Times; TortsProf]
• Kirkendall on the Skilling sentence. [Kirkendall]
• Quelle surprise: ATLA dishonestly attacks me. [Point of Law]
• Ford seems to have settled, instead of fighting, the ludicrous Texas Garcia decision where they got blamed for a drunk-driving accident with unbelted passengers. [Point of Law; CFIF]
• Scalia: “The more your courts become policy-makers, the less sense it makes to have them entirely independent.” [AP]
• Richard Epstein on legislators v. Wal-Mart [EconTalk Podcast]
• Environmentalists v. private property rights. [CEI blog]
• Litigious Pennsylvania judge Joan Orie Melvin sues for a pay-cut. [Bashman]
• Why law firm associates work so hard. [Marginal Revolution]

News.com.au is starting to backtrack from its original claim, noting that the foodstuff is still sold in American stores. Moreover, the US Embassy tells an Overlawyered commenter there is no ban. Here's our contribution to the discussion: the FDA regulation on folate, which at no point limits the addition of folate to breads and grains. We vote: "urban legend" leading from overenthusiastic border official, though the story is so widespread now, it may always stay an urban legend until Snopes gets around to refuting it.

Remember the legislation proposed in California by Gov. Arnold Schwarzenegger (Jun. 2, 2004), and passed amid much hoopla, asserting a claim by the state to 75 percent of punitive damage awards? It's raised "not even a penny" for the state's Public Benefit Trust Fund, reports John Howard for Capital Weekly ("Behind-the-scenes shell game marked punitive-damages plan", Sept. 7). This is pretty much what I predicted in my WSJ op-ed at the time; it's just too easy for lawyers to escape the law's reach by settling cases before final judgment (if necessary, characterizing the sums that change hands as compensatory only). Decs and Excs Sept. 20 also points out peculiarities in the law's specified time span of coverage that would have encouraged evasive action. Schwarzenegger has now vetoed a renewal of the law, but on grounds that the renewal had been saddled with amendments added without adequate discussion; he left the door open to reconsider the issue next year.

The Equal Employment Opportunity Commission sued ExxonMobil last month over its policy of requiring pilots of its planes to retire at age 60. The federal agency prefers individualized assessments of age-related inability to handle the duties of the job -- which in this case might mean that an employer would start the removal process for an elderly pilot only after a legally bulletproof file had been assembled documenting the pilot's decline in capabilities.

Exxon Mobil spokesman Russ Roberts said the company's policy addressed the issue of safety and was modeled after Federal Aviation Administration guidelines. He said the policy is long-standing and consistent, not arbitrary and discriminatory.

"Our pilots face the same challenges commercial pilots do flying large, complex, high-speed jets," he said. "We told the EEOC that we would not change our safety practices in response to complaints filed by pilots."

(Steve Quinn, "Suit Accuses Exxon of Age Discrimination", AP/CBSNews.com, Sept. 23). At the Denver Post, columnist Al Lewis discusses this and other recent age-bias lawsuits ("Gray hair + pink slip = lawsuit", Sept. 27). More on the subject: Oct. 19, etc.

A threat of litigation forced the Castro Valley High to fire two assistant coaches, have an "ombudsman" attend practice, and allow a six-person committee including parents choose a starting line-up for the girls' basketball team.

Attorney Andrew Sweet, who is speaking for the parents, said the program was out of control last year. "These kids were coming home from practices and leaving games crying," Sweet says.

Sweet admitted that Nibarger wasn't screaming at the players, playing favorites or subjecting them to physical abuse. It was more a matter of "communication" and "utter vindictiveness.'' That sounded pretty vague, so Sweet went back to the parents and came up with some specific allegations.

Sweet says Nibarger once threw the girls out of the gym when a practice was not going well. (The parents' group says it was 45 minutes early; Nibarger says it was "10 to 15.'') She didn't attend picture day. (Neither do other Castro Valley coaches.) She cut the playing time of anyone who complained about her coaching decisions. (She's proud of her record of playing 9 to 10 players a game.) Once, Sweet says, Nibarger was in a restaurant, saw the players and left without saying anything. (She says she wanted to respect the privacy of what appeared to be a players-only meeting.)

The company almost seems to base its business plan on stepping into legal trouble (Katie Hafner, New York Times, Oct. 19).

With echoes of the debate over campus "sexual consent" policies, here's a funny short film that has been around for a while, but which I didn't hear about until lately. It's directed by Jason Reitman, who went on to do Thank You For Smoking. Adult content (original from Atom Films/YouTube version)(h/t: reader M.C.).

...and gets sued for malpractice by a second law firm contending that even more would have been extracted had the winning lawyers thrown in a claim under California's wide-open unfair competition law. Result: San Francisco's Rudy, Exelrod & Zieff has agreed to pay $1.5 million to resolve the claims (whether "for nuisance value" or "in contemplation of losing" will have to be left for others to decide), malpractice insurance rates for plaintiff's lawyers may experience upward pressure, and class action lawyers have been sent a lesson, namely that they'd better throw in every colorable charge to play it safe in future. The underlying lawsuit was an overtime action against the Farmers Insurance group. (Matthew Hirsch, "Rudy Exelrod Settles Malpractice Suit", The Recorder/Law.com, Oct. 11; Internet and Class Action Law Blog, Oct. 11).

Australians are particularly unhappy. (Kelvin Healey, "US bans Vegemite", The Courier Mail, Oct. 22; News.com.au, Oct. 21; Tim Blair via Dylan). If you're an American fan, act fast before Ebay shuts down the auction.

Update: The Australian press and bloggers appear to have fallen for a new urban legend.

Notes New York Times columnist Floyd Norris: "Now you may face a patent infringement suit if you use a tax strategy someone else thought of first. ...a federal appeals court ruled in 1998 that business methods can be patented, and since then the Patent Office has issued 49 tax-strategy patents, with many more pending." Paul Caron has more (Oct. 20; Floyd Norris, "Patent law is getting tax crazy", NYT/IHT, Oct. 19; Slashdot).

P.S. At Slashdot, commenter msobkow writes: "Patience. It's a matter of time before the remains of SCO patent the use of patent lawsuits as a business model. The hope would be to get into a lawsuit over that patent, creating a potential infinite recursion and thereby an infinite revenue stream out of thin air."

"Police dogs are being muzzled to prevent them from biting criminals. Instead of clamping their jaws around the legs of suspects, the dogs are trained to leap at their targets and disable them with a flying butt. ... The policy follows a rise in compensation claims against forces from members of the public, and even serving officers, who have been bitten by police dogs. One force, in Greater Manchester, has paid out £59,000 in five years to 36 bite victims." (Ben Leapman, Daily Telegraph, Oct. 15).

When anti-videogame crusader and perennial Overlawyered favorite Jack Thompson (Sept. 26, Oct. 15, etc.) lost his case over "Bully", he dashed off the following letter to the judge who ruled against him:

Dear Judge Friedman:

Now that you have consigned innumerable children to skull fractures, eye injuries from slingshots, and beatings with baseball bats, without a hearing as to the danger, let me tell you a few things, with all respect for your office and with no respect for the arbitrary way in which you handled this matter. I can handle an adverse ruling by a judge. I’ve had plenty of those in my lifetime, and that’s fine. But the way you conducted yourself today helps explain why a great Dade County Judge, the late Rhea Pincus Grossman, could not abide you. She was not the only one . . . .

Next time you promise a “hearing,” I’ll bring a parent with me whose kid is in the ground because of a kid who trained to kill him or her on a violent video game. Try mocking that person, I dare you.

Full text of the letter here courtesy GamePolitics; via Lat who got it from ACSBlog. And a commenter at ACSBlog writes:

Jack Thompson did his part to inspire me to go to law school. I knew that if people of his mental capacity could succeed in the profession, I certainly could.

More: GamePolitics.com reports that lawyers for the game company are seeking to have Thompson held in contempt of court (further update here; h/t RebeccaFrog).

In Omaha, which recently enacted a restaurant smoking ban, authorities are urging vigilant citizens who notice illicit smoking to call 911 to summon a police response. The local emergency coordinator has objected, saying 911 calls over smoking could overwhelm the system and distract dispatchers from more dire emergencies, but the police department says it is sticking by its advisory. ("Dial 911 To Report Smokers", KETV, Sept. 28; "911 Director: Smoking Reports Could Overwhelm System", Sept. 28).

Unsolicited email arrived a few hours ago from a return address of EmploymentRights@media-uplink.com with the message: "Do You Know Your Rights As An Employee? Are Your Work Rights Being Neglected? Are You being paid for: Overtime? Putting your uniform on or off? Time spent preparing for your shift? Attending safety meetings? Travel time and expenses?" The link, when clicked, led to this page at a domain entitled legalleadshost.com. Overtime and employee-classification suits have emerged as a highly lucrative field of practice for the plaintiff's bar in recent years. "In December, a California jury awarded $172.3 million to Wal-Mart workers for missed meal breaks." (Sophia Pearson and Margaret Cronin Fisk, "Wal-Mart Loses Pennsylvania Suit Over Missed Breaks", Bloomberg, Oct. 12).

Charles Murray and David Post add their voices ("The G.O.P.'s Bad Bet", New York Times, Oct. 19; Volokh Conspiracy, Oct. 19). Earlier: Oct. 10, Oct. 12, etc. More: George Will, "Prohibition II: Good Grief", Newsweek, Oct. 23.

So claims Nikki Finke. Ten lawyers from his firm have apparently testified before a grand jury. (David M. Halbfinger and Allison Hope Weiner, "Lawyers Called to Grand Jury in Pellicano Wiretap Case", New York Times, Oct. 18). Our previous thirteen posts on the Pellicano case.

"After walking past her husband's silent gaze in a courthouse hallway, the woman testified that she knew of plans by her daughter and her husband to frame [teacher] Danny Cuesta, 30, for rape. She said it was part of a scam to sue the North Babylon School District." NB, however, that the witness is going through a divorce with her husband, and the prosecutors are alleging that the mother participated in the teacher's cover-up. (Alfonso A. Castillo, Newsday, Oct. 18; AP/WSYR, Oct. 4).

A new European Commission proposal would require Web sites and mobile phone services that feature video images to conform to standards set by that body, the Times of London reports. ...

Shaun Woodward, the U.K. broadcasting minister, described the draft proposal as catastrophic, saying it could end up forcing someone to get a license to post videos of an amateur rugby team.

(CNet Blogma, Oct. 18). And here's the Times Online:

Personal websites would have to be licensed as a “television-like service”.

Viviane Reding, the Media Commissioner, argues that the purpose is simply to set minimum standards on areas such as advertising, hate speech and the protection of children.

(Adam Sherwin, "Amateur 'video bloggers' under threat from EU broadcast rules", Times Online, Oct. 17). However, there are some indications that the EU bureaucracy itself intends a less sweeping definition of the law's application than that: Nate Anderson, ArsTechnica, Oct. 18.

The ludicrous $366 million award on a conspiracy theory (Aug. 30, 2004; Sep. 2, 2004) was, as we predicted reduced by remittitur to a still ludicrous $22.5 million. (Plaintiff's attorney's press release, Sep. 21). Kevin M.D.'s commenters note that the trial bar simultaneously complains that doctors don't do enough to police themselves and then hold doctors liable for policing other doctors.

Note that the doctors whom the verdict was issued against weren't even the ones on the peer review committee that suspended Dr. Poliner's privileges for a few months; they were just the ones who started the peer-review process.

At Point of Law (Oct. 18), Jim Copland announces a new report from the Manhattan Institute's Trial Lawyers Inc. project:

This afternoon, the Manhattan Institute released Trial Lawyers, Inc.: Illinois, A Report on the Lawsuit Industry in Illinois 2006. The first comprehensive look at litigation in the Prairie State, the report synthesizes work done by the Illinois Civil Justice League, American Tort Reform Association, and U.S. Chamber Institute for Legal Reform, among others. The report also includes new information, such as the percentage of 2004 contributions to the Illinois State Democratic Party that came from plaintiffs' lawyers and their firms (78 percent) and Illinois' quantitative rank in terms of its medical-malpractice liability as a percentage of gross state product (49th of the 50 states) and its corporations' self-insured liability as a percentage of GSP (48th).

The Madison County Record has already reported on the new study here.

More coverage: Adam Jadhav, "Metro East courts have improved somewhat, think tank concludes", St. Louis Post-Dispatch, Oct. 19.

My new column in the Times Online is up. First paragraph:

So now Britain has its own law banning employers from considering workers’ age in most job situations. If your experience follows ours in America, the results will include a range of unintended consequences, some of which will worsen the plight of the workers the law was meant to help.

(Walter Olson, "If the US experience is anything to go by, be sceptical of Britain's new age-bias laws", Times Online (U.K.), Oct. 18). I treated this subject at length in my 1997 book The Excuse Factory and did a USA Today opinion piece back then exploring some of the ways the law backfires against older workers. The new British law has been getting some attention in the States, in part because of the news item about the company that has banned office birthday cards as potentially ageist (Oct. 13) and the one about the recruiting agency (Oct. 17) that is barring use of any of a list of words including vibrant, dynamic, gravitas, ambitious, and hungry to describe potential employees.

The game, that is: "Officials at the Willett Elementary School in Attleboro [southwest of Boston] have banned playground tag, touch football and any other unsupervised chasing games over concerns about the risk of injury and liability for the school." ("Attleboro elementary school bans tag", AP/Boston Globe, Oct. 18)(more on lawsuit-fearing fun-busters).

Here's the top elected official in Brooklyn promoting one of his borough's few truly prosperous industries:

“If you like white-shoe law firms, stay in Manhattan,” said Brooklyn’s borough president Marty Markowitz, who attended the bank’s grand opening. “But if you’re looking for the biggest settlement, come to Brooklyn.”

[claims] to be the first bank in the country to specialize in serving trial lawyers. It’s located on Court Street in Brooklyn’s judicial epicenter. To some folks in these parts, a “Court Street lawyer” has the pejorative connotation of an ambulance-chasing, personal injury attorney.

Australia: "A settlement between a leading Melbourne private school and a parent who said her child had not been taught to read properly could result in increased litigation between parents and schools, a principals group has warned." Yvonne Meyer faulted Brighton Grammar School for not placing enough emphasis on phonics-based instruction for her child. (David Rood and Chee Chee Leung, "Litigation warning as private school settles complaint over child's literacy", Melbourne Age, Aug. 16; Ewin Hannan and Justine Ferrari, "Private schools to curtail promises", The Australian, Aug. 16). And in France: "A French schoolboy [Jérome Charasse] has successfully sued the government after blaming his failure in a philosophy exam on his teacher's frequent absences during strikes. Parents' groups and teaching unions believe the decision by a court in Clermont-Ferrand will lead to many similar cases." (Colin Randall, " Boy wins court case over striking teacher", Daily Telegraph, Jun. 22)(h/t D.N.).

"Local taxpayers have been forced to foot a £380,000 bill for a council to adapt its properties after a trespasser fell through a skylight while retrieving a football." (Stewart Payne, "£380,000 to protect trespassers", Telegraph, Sep. 30) (h/t D.N.). Earlier: Sep. 25.

CEI's Greg Conko on the growing use of Ambien as an excuse, the questionable resulting class action, complete with low-brow tv-talk-show trolling for "victims."

Two teachers have sued an elite Seattle private school charging race bias in the terms of employment: "Among the plaintiffs' complaints was Lakeside's invitation to conservative commentator Dinesh D'Souza to speak as part of a distinguished lecture series." (John Iwasaki, "Teachers accuse Lakeside School of bias", Seattle Post-Intelligencer, Oct. 13)(via Taranto). More: Paul Secunda agrees something is amiss here (Oct. 19).

Correspondent and frequent commenter Louis A. Nick III writes us:

• Interview with ICJL's Ed Murnane on Madison County judiciary elections. [Madison County Record; see also Illinois Justice Blog]
• London pension fund: oops, we just sued BP [Point of Law]
• New York court throws out mold suit with systematic rebuttal of the junk science involved. [Point of Law]
• Next mass tort: anti-psychotic drugs. [Mass Tort Litigation Blog]
• "Vibrant, dynamic, gravitas, ambitious, hungry and 17 other words or phrases have been banned by one of Britain's top recruitment agencies for fear of falling foul of new anti-ageism laws." [Telegraph (h/t F.R.)]
• Israel Supreme Court: compensatory damages don't include cost of prostitute visits. This actually reversed a lower-court decision to the contrary. [Avi Bell/PrawfsBlawg via Above the Law]

Pennsylvania: "The widow of an upper Bucks County man [John Heckenswiler] who killed himself after a 15-hour standoff has filed a federal lawsuit against authorities, claiming they threatened and harassed her unstable husband so severely that he chose suicide over surrender. Deborah Heckenswiler retained an attorney with a record of success in suing police -- John P. Karoly Jr. of South Whitehall, who has won multimillion-dollar settlements in brutality and misconduct suits against the Bethlehem and Easton police departments in recent years. ... Police violated Heckenswiler's 'federally guaranteed right to be free from discrimination on the basis of disability' because of policies and practices that encouraged negligence and excessive force in dealing with the mentally ill, the suit claims." (Daniel Patrick Sheehan, "Widow sues police; Karoly takes case", Allentown Morning Call, Oct. 14). More: complaint here in PDF format courtesy SuicideMalpractice.Net, a website critical of lawsuits seeking to blame third parties for acts of suicide.

Paternalism in Chicago, working about as well as paternalism usually does:

The South Side neighborhoods affected by a controversial mortgage law designed to protect would-be homeowners from being gouged have seen a 45 percent drop in home sales in the law's first month. ...

Under the law, if a borrower's credit score is 620 or less, or if there are other triggers, a borrower must get financial counseling from a U.S. Housing and Urban Development-approved counselor to make sure the borrower knows what he's getting into, though a counselor can't stop the loan.

The mortgage broker must pay $300 for counseling....

Some lenders have pulled out of the ZIP codes because they don't want to deal with the accompanying paperwork. Real estate professionals have also complained that the four-year pilot law is discriminatory, because it is limited to just 10 ZIP codes.

Additionally, borrowers working through state or federally chartered banks are exempt from the law.

Veteran legal journalist Roger Parloff, currently egal correspondent for Fortune, has started blogging; highly recommended, like all his writing (cross-posted from Point of Law).

When Lucille Greene went to the Magnolia, Del. post office to mail holiday fruitcakes for her relatives and friends, a postal worker said "What kind of explosives do you have in here?" and shook the box. Others laughed. The humiliation and emotional anguish, she said, reduced her to tears and caused her to trip in the parking lot with consequent injury. A federal judge has dismissed her $250,000 suit, however, "because Greene had a prior eye condition, and contradictory testimony". ("Grandmother Mails Fruitcakes, Sues USPS", AP/ABCNews.com, Oct. 12).

I was a guest this morning on host Marty Moss-Coane's radio program, debating Yale professor Kelly Brownell on proposed trans fat bans. For more information on that and other food issues, see this site's Eat Drink & Be Merry page.

P.S.: Prof. Brownell claimed the proposed New York City regulation banning most uses of trans fats wouldn't be burdensome to restaurant owners, and quoted the owner of the Carnegie Deli, which has managed to dispense with most (though not all) use of those fats. Through the miracle of Google I was able to track down the New York Times's coverage as we spoke and so was able to read the audience the entire quote from Carnegie Deli owner Sanford Levine, which included a portion Prof. Brownell was not so eager to quote: “They shouldn’t tell a businessman how to run a business,” Levine said. “They can make suggestions, but I don’t think it should be the law.” Prof. Brownell also claimed that there had been no great outcry in New York over the rules. The Times's headline told a different story: "Big Brother in the Kitchen? New Yorkers Balk".

That's attorney Gloria Allred's complaint on behalf of the survivors of Ashley Barnett, who appears to have ingested Vicodin, methadone or some combination of the two while onboard the ship. Carnival says the late Ms. Barnett "was deceased well before medical assistance was summoned". (Lisa Richardson, "Death on Ship Prompts Lawsuit", Los Angeles Times, Oct. 13). Commenters at KevinMD do not appear impressed with the suit (Oct. 13).

Among those to experience the legal hazards of doing so: photographer Michael Gabor and others, facing a suit for $5 million after they posted online comments blasting the developers of a project in the historic section of Newburgh, N.Y. (Oliver Mackson, "Trouble brews in cyberspace over Newburgh blog", Times Herald-Record, Oct. 15).

Updating our Oct. 14 and Aug. 17 posts, Florida Judge Ronald Friedman, after viewing the game, chose not to censor it—this time. Whether that free-speech decision should be made by judges at all and whether Jack Thompson should be permitted to misuse public nuisance law in this way are, of course, the real issues. Needless to say, Thompson is dissatisfied with the ruling, protesting that the game was played by a Take Two executive in the one- or two-hour closed-door session with the judge, and that a longer session with a different player might have had a different result. (Bridget Carey, "Judge doesn't object to video game 'Bully'", Miami Herald, Oct. 14) (via Bashman).

• "'I’ve never felt so ill,' says one reporter about the NY Times's coverage of the Duke lacrosse-team case." [New York Magazine]
• Double-standards for judicial seminars. [Point of Law; Volokh]
• 14-year-old British student arrested for not wanting to do class project with non-English speakers? [Volokh]
• Our October 13 entry on the pros and cons of complusory licensing in copyright provoked one of our longest comment threads ever.
• Will regulators shut down an aversive-stimuli special-education school? Should they? [Village Voice via Cowen]
• Cheap crime deterrent: wearing pink. [Prettier than Napoleon] Meanwhile, professors debate shaming in general. [Markel on PrawfsBlawg and SSRN; Berman; Markel reply; Kerr on Volokh; Markel reply]
• Trent Lott about to implement bad public policy out of spite. [RiskProf]
• Greg Beck has good analysis of the Emerson v. NBC garbage disposal suit. Always glad to see Public Citizen support liability reform. [CL&P]
• Is "erroneous removal" a problem? [Point of Law; TortsProf Blog]

Sue Bell Cobb in Alabama is the trial lawyers' choice in the upcoming election for Supreme Court Justice. Jere Beasley (a regular on Overlawyered) has used 22 different PACs to ship nearly half a million dollars her way. (See also Apr. 28, 2005 for similar machinations.) Skip Tucker of Alabama Voters Against Lawsuit Abuse has more details in today's Anniston Star. ("Voters should consider history in court race", Oct. 15). Trial lawyers previously supported Tom Parker in his unsuccessful campaign for the Republican nomination against current Chief Justice Drayton Nabers (POL Jun. 7), leaving Nabers with half as much to spend on television advertising as Cobb—but, of course, the only complaints about money in this election come from groups opposed to the money the Chamber of Commerce is spending in the hopes of having honest candidates on the bench. (E.g., this press release).

Bloggers and blog-commenters might want to think very carefully before employing those epithets. Sue Scheff of Weston, Fla. obtained an $11 million default verdict in her defamation lawsuit against Carey Bock of Mandeville, La., who'd used the expressions in denouncing Scheff. (Laura Parker, "Jury awards $11.3M over defamatory Internet posts", USA Today, Oct. 11). David Lat writes, "Eleven million dollars? You can call us whatever you like for that kind of money. ... Most wrongful-death awards that are smaller than that." (Oct. 11).

From House of Caduceus, a disturbing story if true:

The court case lasted a couple years, he was humiliated in court b/c that is what a good lawyer will do, spent thousands of his own money, and eventually won the case. You would think that this win would boost his confidence, but instead, he felt betrayed by the patient and the patient's family, abused by the court system, and worried about a another possible future lawsuit. This doctor then quit the practice of medicine and refused to keep his job, despite the begging of his employer.

My congrats to those patients and lawyers out there destroying American medicine. You're doing a fine job of wasting our time and talent.

Following up on our Aug. 17 post: "Game publisher Take-Two Interactive Software Inc. was ordered to demonstrate an upcoming video game titled "Bully" for a judge to determine whether it violates Florida's public nuisance laws. Miami-Dade Circuit Court Judge Ronald Friedman issued the order yesterday. The move is a major coup for conservative Miami attorney Jack Thompson, known for his crusades against pornography and obscene rap music, and now the video game industry." (Mike Musgrove, "Florida Judge Wants To See 'Bully' in Court", Washington Post, Oct. 12; Jeremy Reimer, ArsTechnica, Oct. 13).

The reason, Mark Evanier notes on his blog, we don't see DVDs of shows like "SCTV" and "WKRP in Cincinnati" is the difficulty and expense of rights clearances for music used during the show, even if it's just a character humming. More on the difficulty and problem of rights clearances: Oct. 17, 2005 and links therein.

Warner Home Video better hope that a class action attorney with time on his hands doesn't read the post's last sentence about a DVD advertised as uncensored that isn't uncensored; maybe it can be averaged out with the suit over Wal-Mart's CDs.

Update: A commenter raises an important point:

Perhaps not, but a UK insurance firm isn't taking any chances. With new laws in place prohibiting age discrimination and age harassment, Alan & Thomas insurance brokers has barred the circulation of birthday cards signed by the entire staff, who occasionally write jokey statements about the perils of aging.

Julian Boughton, the firm's managing director, said: "The new rules outlawing age discrimination are a potential minefield for both employers and employees. Every business should be taking action. Often employees don't realise the implications of what they are writing."

A member of staff said: "I think it's stupid really. People like to joke about other people getting older, and it's only a bit of fun."

The Employment Equality (Age) regulations 2006 came into force on Oct 1, prohibiting direct or indirect harassment or victimisation on the grounds of age.

Neil Gouldson, an employment law specialist at the Manchester-based firm Rowe Cohen, said: "Gags in birthday cards about people being 'over the hill' will need to be curbed."

"A federal judge in Arkansas has thrown out a class action lawsuit against Acxiom, which exposed massive amounts of Americans' personal information in a high-profile Internet security snafu three years ago. ... Because the class action attorneys could not prove that anyone's information had actually been misused, [U.S. District Judge William] Wilson dismissed the case and the request for damages on the grounds that any harm would be entirely speculative." (Declan McCullagh, "Class action suit over ID theft tossed out", CNet, Oct. 12).

Possibly the Texas Republican Party has some legitimate arguments to offer against electing personal injury lawyer E. Ben Franks, a Democrat, to a state appeals judgeship in Texarkana. But if so, this sure isn't one of them. (Mary Alice Robbins, "GOP Raises Religion in Court Race, Calling Democrat an Atheist", Texas Lawyer, Oct. 9; Eugene Volokh, Oct. 10).

CBS writes to say that "60 Minutes" will air a major segment on the Duke lacrosse case this coming Sunday. According to the show description, "The other dancer in the Duke lacrosse rape case refutes a key part of the accuser's story in an interview with 60 Minutes correspondent Ed Bradley. He also spoke with the three players accused in the rape." More here. Our earlier coverage: Oct. 11, Aug. 30, etc. Further: Durham Wonderland, which has exhaustively chronicled developments in the case, has a must-read summary (Oct. 16).

Andrew Stuttaford, Glenn Reynolds and Radley Balko discuss (Instapundit, Oct. 11). Earlier: Sept. 7, Oct. 10, etc.

Last night I was honored to be the guest of the Yale Political Union (in which I was active during my own undergraduate days) to keynote the evening's debate on "Resolved: Government should restrict the right to sue". I got the whole guest treatment, including dinner at Mory's beforehand with the leadership of the YPU, culminating in an impromptu a cappella performance by the fabulous Spizzwinks. After the debate, many of us retired to Yorkside Pizza to discuss politics and philosophy well into the night, including members of (inter alia) the Independent and Tory parties, the Party of the Right, and the newly forming Party of the Left. Among those present: the organizers of the Largest Facebook Group Ever.

And the debate itself? After my remarks, there were four spirited student speeches, two in the affirmative and two in the negative, following which I made a few further comments. The resolution "Resolved: Government should restrict the right to sue" then passed by a vote of 27 in favor, 10 opposed, and 7 abstentions.

Incidentally, the Yale Political Union, which bills itself as "the largest undergraduate organization at Yale, and the only group of its kind in the country", is reaching out to alumni and other well-wishers as it plans to commemorate its approaching 75th anniversary. To support the Union, help with the planning of a contemplated anniversary reunion event or events, or get more involved generally, contact Andrew Olson (no relation) at this link.

Sure, go ahead and bring a concealed tape recorder on your next doctor visit. That'll be great for the therapeutic relationship, won't it? (KevinMD, Sept. 23).

The package delivery company believes that the safer policy is to hire only hearing drivers to operate its trucks, but the 9th Circuit finds that a violation of the Americans with Disabilities Act:

The ruling puts employers in a "damned if they do and damned if they don't" situation, said Joe Beachboard, a Los Angeles lawyer who represents employers.

If UPS doesn't employ deaf workers as drivers, it can be sued under the disability act, he said. But if a deaf UPS driver has a serious accident, the company also could be sued.

(Lisa Girion, "UPS Ban on Deaf Drivers Is Rejected", Los Angeles Times, Oct. 11). More: WSJ editorial, subscriber-only ("Common Sense-Impaired", Oct. 19).

Jennifer Wilbanks made worldwide headlines by disappearing, then concocting a bogus abduction story to get out of her engagement to Georgia fiance John Mason; now she wants punitive damages from him for not sharing the proceeds from selling the story, among other offenses. ("'Runaway Bride' Sues Ex For $500,000", AP/CBS, Oct. 10; Lat, Oct. 11)(via Althouse).

One of the few places where the UK is more litigious than the United States is in its infamously broad libel laws, which put the burden of the proof on the defendant to prove the truth of a statement, resulting in multiple instances of "libel tourism," which we've noted previously: e.g., Aug. 1, Jan. 6, 2004, and, most notably, by Saudi businessmen hoping to preclude investigations into their relationship with terrorists, Oct. 26, 2003. (In contrast, in the United States, the Supreme Court has ruled that, to avoid "chilling effects" on First Amendment speech rights, a public-figure plaintiff must prove an intentional or reckless falsehood.) Britain's top court sided with the Wall Street Journal Europe and created a legal defense whereby a speaker who "behave[s] fairly and responsibly" in reporting on a matter of public importance will not be liable for defamatory statements. (Aaron O. Patrick, "U.K. Court Backs WSJE in Libel Ruling", Wall Street Journal, Oct. 11; Lattman). This moves the UK much closer to the US in its libel law.

I am not the first to note that, while academics and courts of all stripes recognize the potential chilling effects of litigation on First Amendment rights, courts have been reluctant to acknowledge the chilling effects of litigation on other rights and economically productive activity.

Texas:

Houston trial lawyer John O'Quinn saved Democrat Chris Bell's struggling gubernatorial campaign from financial oblivion this week by making a record $1 million donation. ...

"There's something about a million-dollar check that really warms the heart," said Bell.

O'Quinn has promised to raise another $4 million for Bell's campaign, and that could make the Democrat more competitive with all his opponents [incumbent Republican Rick Perry, independent Carole Keeton Strayhorn (herself heavily backed by trial lawyers), and independent Kinky Friedman]. ...

Bell said O'Quinn is not looking for special favors from state government.

"There's nothing that state government can do for John, nor is he asking for anything but good government," Bell said. ...

O'Quinn, Williams and Umphrey were part of a legal team that shared in a $3.3 billion legal fee for settling the state's lawsuit against the tobacco industry.

(R. G. Ratcliffe and Janet Elliott, Houston Chronicle, Oct. 11).

"A German lawyer hopes to drum up more business by pursuing state compensation claims for people who believe they were abducted by aliens. 'There's quite obviously demand for legal advice here,' Jens Lorek told Reuters by telephone on Thursday. 'The trouble is, people are afraid of making fools of themselves in court.'" What's this guy doing practicing in Germany rather than here? (Reuters, Oct. 6).

Ingesting a gigantic litigation risk? (Lattman, Oct. 9; Althouse, Oct. 10; discussion at WSJ). More: Jul. 20, Oct. 2.

More: "Dick Parsons, the chairman and chief executive of Time Warner, fired a shot across the bows of Google, saying his group would pursue its copyright complaints against the video sharing site YouTube.com." (Jane Martinson, "Google faces copyright fight over YouTube", The Guardian (U.K.), Oct. 13).

Now it's Kurt Andersen calling out the Gray Lady on its dreadful reporting ("Rape, Justice, and the ‘Times’", New York, Oct. 16). See Aug. 30, etc.

Not only does the bill effectively destroy useful information markets (Robert W. Hahn and Paul C. Tetlock in the New York Times), but it also creates incentives for new undetectable forms of money laundering (Robert X. Cringley (h/t D.H.)).

• David Lat has much more detail on the $46 meal-skipping criminal case; and the St. Petersburg Times reports Ralph Paul was acquitted because his defense attorney misrepresented to the jury the legal standard, and the prosecutor didn't correct it. [Above the Law; St. Petersburg Times]
• Amber Taylor isn't impressed with Dahlia Lithwick's proposal of new rules for Supreme Court clerkships. [Law. com; Prettier Than Napoleon]
• Legalized extortion of banks over Enron scandal. [Point of Law]
• Round-up of links of Sherwin-Williams's suit against Ohio municipalities that are using contingent-fee plaintiffs' lawyers against it. [Point of Law]
• Possible settlement in the Million Little Pieces class action. [TortsProf]
• California kennel works can't sue dog owners for bites. [Bashman]
• Defense prevails in first federal welding trial. See also POL Nov. 21 and Dec. 9. [Products Liability Prof]
• David Bernstein on phony associations in epidemiological research. [Volokh]
• Aleksey Vayner doesn't just have an impressive video resume, he can send a bogus cease-and-desist letter with the best of them. [IvyGateBlog]

Peter Huber in Forbes on the lack of a mass-distributed anthrax vaccine, and a related discussion on Volokh. (Cross-posted at Point of Law.)

Longtime readers of this site will remember our affiliated Amazon bookstore, which we maintained for a few years but gradually stopped updating as other duties seemed more pressing (you can still find it near the bottom of our ever-handy "General Links" page). Recently I was approached by the founder of a clever new service, ShopThisBlog.com, which comes up with customized bookstores keyed to popular blogs (based on books the bloggers have mentioned or reviewed, or which are closely related, etc.) ShopThisBlog.com then divides the resulting Amazon affiliate revenue with cooperating bloggers. It did not take long for me to realize that the bookstore ShopThisBlog had devised for Overlawyered was far better designed and more useful than the one I'd done on my own, and had thoughtfully been updated with newer books I've mentioned favorably in my writing.

So you'll notice a box in the right-hand column of the front page which showcases ShopThisBlog recommendations. (I expect to tinker further with its presentation as we go along.) By all means check it out, check out the parallel shops keyed to other sites, and if you're a blogger with reasonable traffic consider checking out the possibility of getting a ShopThisBlog bookstore of your own.

If the charges of rape turn out to be bogus -- worse yet, if they have led to the locking up of an innocent defendant later exonerated -- should the accuser still enjoy the privilege of press anonymity? The case of Warren Blackwell, jailed for three years for a crime he never committed, vs. "Miss A". (Carol Sarler, "Do fake rape victims have a right to anonymity?", Daily Mail (U.K.), Sept. 13; Michael Horsnell, "Man jailed over sex attack clears his name", The Times (U.K.), Sept. 13). More: accuser's name is disclosed, prompting further controversy (Strange Justice, Oct. 23).

As if trial lawyers didn't already have enough good friends in the U.S. Senate, Democratic challenger and former state attorney general Sheldon Whitehouse is making a strong bid to unseat incumbent Lincoln Chafee for a Senate seat from Rhode Island. (Jim Baron, "Poll: Senate race even; Gov. surges", Pawtucket (R.I.) Times, Oct. 3; "Democrats bet on former attorney general to take back Senate seat", AP/WPRI, Sept. 14). Of the fifty state attorneys general, Whitehouse was the only one willing to sign up for the Motley Rice law firm's crusade to attach retroactive liability to former makers of lead paint and pigment; see Jun. 7, 2001, Oct. 30-31, 2002, Mar. 5-7, 2003, Feb. 23, 2006, etc. For more on Whitehouse's enthusiasm for such creative litigation, see Oct. 26, 1999 (latex gloves).

Some time after 1PM Eastern, I'll be on "The Buzz" on WBAL-1090-AM (Baltimore), discussing the $217M stroke verdict (covered Oct. 5 and Oct. 7).

Update: Well, I was told we were going to be talking about the stroke verdict, but the host wanted to argue about the McDonald's coffee case instead. Chip Franklin could not be dissuaded from the idea that coffee "should not" cause third-degree burns, and that McDonald's must have done something wrong, but courts note that even coffee served below the optimum temperature are capable of such burns.

Florida has staggered towards reform in the last few years under Governor Jeb Bush, bush GOP candidate Charlie Crist's running mate, Jeff Kottkamp, is a trial lawyer, reform opponent, and plaintiff in a ludicrous suit blaming a hospital construction contractor for medical complications he had following heart surgery. (John Kennedy, "GOP candidate breaks rank on tort reform", Sun-Sentinel, Oct. 5) (via Childs). Earlier coverage: Sep. 18 and links therein.

Elsewhere in Florida, the Florida Supreme Court has essentially undone a 2004 reform voters passed in a referendum (Nov. 3, Mar. 1: it will allow attorneys to avoid the effect of a constitutional amendment capping medical malpractice attorneys' fees, so long as their clients sign a waiver saying they're willing to pay more. (Aaron Deslatte, "Court lets lawyers bypass lawsuit cap", Tallahassee Democrat, Sep. 29). I actually applaud this step to the free market, but just wish doctors had the same rights to get their patients to sign waivers. Apparently courts and consumer advocates are willing to trust only lawyers with the freedom of contract or speech.

"A group of illegal immigrants who worked for Wendy's International Inc. is suing the restaurant chain because the company fired them after discovering it had missed a deadline for joining a federal program that would have helped them attain legal status." (Rasha Madkour, AP/Houston Chronicle, Oct. 6).

More: the restaurant company blames a series of "mistakes made by others" that began before it bought the Cafe Express chain. In particular, Houston-based business law firm Boyar & Miller failed to take steps needed to enroll workers in the program. Commenter David Schwartz points out:

It might be worth noting that the employees *paid* to partipicate in the program. Surely if I pay my employer for legal services and I don't get them, either my employer or their law firm is at fault, no?

Isn't missing a filing deadline a classic example of attorney malpractice?

U.S. District Judge Charles P. Sifton in Brooklyn has denied motions to dismiss lawsuits which seek to blame Credit Lyonnais of France and National Westminster Bank of the United Kingdom for terrorist bombings in Israel linked to Hamas; the banks handled funds for charities which channeled funds to Hamas. Credit Lyonnais "[vainly] cited investigations in France that cleared the group of any wrongdoing." ("U.S. judge refuses to dismiss terror finance suit vs French bank", AP/International Herald Tribune, Oct. 5). Ted covered the lawsuits on Jan. 6 and Feb. 24 of this year.

Kevin MD reviews the medicine behind the Navarro stroke case (which we covered Oct 5/6), and finds a lot of 20/20 hindsight second-guessing. One commenter adds:

The scary thing to me and many ER physicans about cases like this is that outside of the diploplia I probably see 3-4 patients like this a week and usually send them home with or without a Head CT. When we read cases like this we thing "Thank God it wasn't me" and realize these cases are bound to eventually happen to us too. I see 3-4 patients an hour I CANNOT decrease that to 0.5-1.0 patient an hour and get a specialty consult on every single patient.

(Update, August 2007: case settles.)

Ted Fields was injured in an auto accident with Jimmy Woodley; Woodley's insurer went bankrupt, so Fields, on January 30, 1997, asked Allstate to pay $25,000 in medical bills and lost wages. Allstate sent Fields forms to fill out, and he did so three weeks later; when Allstate didn't pay instantaneously, he sued them in March 1997 for bad faith. Fields turned the discovery process into a far-reaching investigation of all of Allstate's claim procedures; the judge refused to constrain irrelevant deposition questioning, at which point in 1999 Allstate offered Fields the full amount of his $50,000 policy limit rather than waste hundreds of thousands in trial. Fields refused; his attorneys filed several separate motions of default rather than litigate the underlying issues after the trial court denied a summary judgment motion. An appellate court found that Allstate was entitled to summary judgment because of the lack of any evidence of bad-faith in responding to Fields's claims; the Indiana Supreme Court overturned that ruling on a procedural technicality that the appeal was premature.

The trial court ruled that Allstate was not allowed to present evidence that it was not liable for actual or punitive damages or that it acted “with anything other than dishonest purpose, moral obliquity, furtive design, and/or ill will.” A jury, hearing this one-sided sham of a trial, awarded $20 million in damages, though one would hope the Court of Appeals, hearing a timely appeal, makes the same decision it made before. Press coverage fails to mention that Allstate wasn't allowed to defend itself at trial; the plaintiff told the jury that the dispute caused high blood pressure, heart problems, and a stroke, though then the question becomes why he isn't suing his attorney. (Ken Kosky, "Valpo man wins $20 million verdict v. Allstate", Northwest Indiana Times, Oct. 6).

Following up on our Sept. 22 post: Australia's Attorney General Philip Ruddock says his office will appeal against a judge's award of extensive public land holdings in and around the city of Perth to aboriginal tribes. (Amanda Banks and Rhianna King, "Ruddock confirms native title appeal as State payout tipped", The West Australian, Oct. 6; Stephanie Peatling, "Ruddock to challenge native title ruling over Perth", Sydney Morning Herald, Oct. 6; Ben Martin and Amanda Banks, "Hills parks open to native title: judge", Oct. 4).

Public Citizen Litigation Group's Greg Beck blogs a refutation though, alas, he doesn't single out the attorney who makes the absurd claim. Beck notes the problem:

Even if a claim like Aquage's is without legal merit, however, many small online sellers who receive a threat like this would rather cut their losses and back down than risk a lawsuit. It's usually not worth hiring a lawyer when you are only hoping to make a few bucks off the sale in the first place.

[Bumping October 5 9AM post to reflect new details.]

$100.1 million in punitive damages, and the "compensatory" award is almost certainly mostly non-economic damages, though the press coverage does not distinguish. (Thomas W. Krause, "Jury Puts Punitive Award At $100 Million", Tampa Tribune, Oct. 3). TortsProf blog, Peter Lattman, Kevin MD, and Greedy Trial Lawyer comment. So no one accuses us of unfairness, we'll repeat the GTL summary of the case:

ProAssurance's subsidiary, ProNational Insurance Co., was the malpractice insurer for a doctor's group running a Tampa area hospital emergency room where patient Allan Navarro's stroke was misdiagnosed by an unlicensed physician's assistant as a headache and sinus infection.

[Plaintiffs' attorney Steve] Yerrid told the Tampa newspaper he tried to get the insurance company to settle for the maximum allowed under the policy - $1 million for the doctor and $1 million for the physicians' group. Instead, he said, the insurance company wanted to settle for $300, offering $100 for Navarro, $100 for his wife and $100 for his 10-year-old son.

On Aug. 9, 2000, Navarro, who was a professional basketball player in his native Philippines, entered University Community Hospital-Carrollwood with a headache, nausea, dizziness, confusion and double vision. He described a personal medical history of hypertension, diabetes and elevated cholesterol plus a family history of strokes to the triage nurse. A different nurse than the triage nurse also noted he was unsteady on his feet.

When Navarro spoke with Herranz in the examination room, he mentioned the sudden onset of a headache earlier that day and that he had felt a "pop" in his head.

According to the 2005 second amended complaint, Herranz did not complete an adequate medical history of Narvarro, nor did he do a complete or adequate neurological exam.

Navarro spent about 5 1/2 hours at UCH-Carrollwood, during which time he had two CT scans of his brain and was diagnosed with "sinusitis/headache" by Austin, prescribed Vicodin for the pain and an antibiotic by the doctor and sent home. He was not told to watch for any stroke symptoms.

The suit alleged that Navarro presented classic stroke symptoms that Austin should have noticed. It further said that CT scans are not adequate diagnostic tools for ruling out the type of stroke Navarro had.

Early the next morning, Navarro woke with a severe headache, slurred speech, nausea, confusion and trouble walking. He was readmitted to the UCH-Carrollwood Emergency Room at 6:05 a.m. Upon his return, he was labeled "urgent," but doctors still had not diagnosed a stroke. It wasn't until he was transferred to Carrollwood's sister hospital, UCH-Fletcher, that afternoon that surgery was finally performed. By then, the stroke had already left him paralyzed with mental disabilities. During surgery, he slipped into a four-month coma. He is now confined to a wheelchair.

Multiple issues here:

USA Today editorial opposing creating enforceable rights of grandparent visitation. A supporter writes a counter-editorial. (Both via Bashman.) We explored the problems Aug. 30, 2004 and Oct. 21, 2002.

It's "kooky" and "trivializes a serious problem", editorializes the Los Angeles Times: "California shouldn't be in the business of filing meritless suits to gain leverage in other cases". "It's not his job to make law through frivolous lawsuits," opines the San Jose Mercury News (via Wilson). It's "reprehensible... little more than a political stunt," adds the Orange County Register. Veteran political columnist Dan Walters of the Sacramento Bee terms the suit "Lockyer's bid to become the champion of cheesiness". One who does like the suit, curiously enough: an environmental adviser to Gov. Schwarzenegger named Terry Tamminen. And the San Francisco Chronicle investigates: what do state lawmakers drive? More here, here and here (cross-posted from Point of Law).

On antitrust grounds:

In her lawsuit, [Penny Stafford of Belvi Coffee & Tea Exchange] says that Starbucks employees would make frequent runs past the deli with free samples. She said that Starbucks also had non-competitive leases that blocked her from the most desirable locations in Bellevue and Seattle.

The suit claims that Starbucks, fueled by "insatiable and unchecked ambition," wanted to squash all competition.

John Stott, who owns Johnika's Deli, said that he advised Stafford not to open a business so near a Starbucks.

Representing Stafford in the suit is Overlawyered favorite Hagens Berman Sobol & Shapiro. ("Coffee shop owner sues Starbucks", UPI/MonstersAndCritics, Sept. 27; Melissa Allison, "Starbucks sued over 'unchecked ambition'", Seattle Times, Sept. 26; Keith Sharfman, Truth on the Market, Sept. 25; Lattman, Sept. 27).

New York magazine reports on the wrangle over the $4.7 million fee request submitted by NYU lawprof and eminence grise Burt Neuborne in Holocaust-assets litigation (Joel Siegel, "Getting his due", Oct. 9) (via Lattman)(see Feb. 27, Jun. 30, Jul. 6).

Some quick links:

• Michael Krauss reviews a Mississippi Court of Appeals decision on a bogus fender-bender claim. [Point of Law; Gilbert v. Ireland]
  
• Yet another example of overbroad laws on sex offenders (see also Jul. 3, 2005). [Above the Law]
• "As far as the law is concerned, those individuals whose pacemakers fail are the lucky ones." [TortsProf Blog]
• Emerson Electric sues NBC in St. Louis over a scene in an hourly drama where a cheerleader mangles her hand in a branded garbage disposal. [Hollywood Reporter, Esq.; Lattman; Defamer and Defamer update; St. Louis Post Dispatch]
• A case that's really not about the money: Man stiffs restaurant over $46 check, defends himself against misdemeanor charge with $500/lawyer. [St. Petersburg Times; Obscure Store]
• Bill Childs catches yet another Justinian Lane misrepresentation. See also Sep. 26 and Sep. 17 (cf. related posts on Lane's co-blogger Oct. 3 and Sep. 25), and we might just have to retire the category, since we can only hope to scratch the surface. Point of Law has the Gary Schwartz law review article discussed by Childs. [TortsProf Blog and ] Lane's post also deliberately confuses non-economic damages caps with total damages caps: nothing stops someone with more than $250,000 in economic damages from recovering more than $250,000, even in a world with non-economic damages caps.
  
• Update: Bill Childs in the comments-section to Lane:

  "Of course, all of this gets pretty far afield from what I originally wrote and that you've conceded, which is that you (unintentionally but sloppily) misrepresented the facts of the Pinto memo, failed to research its background beyond what was apparently represented to you, and still haven't (last time I checked, at 9:10 p.m.) updated your site to reflect your error. Nor have you approved the trackback I sent to the site. You've posted comments to that very entry and another entry has gone up on the site, but readers still see the plainly inaccurate statement that the memo excerpt you show was Ford evaluating tort liability for rearendings, when in fact it was Ford evaluating a regulatory proposal for rollovers using numbers from NHTSA.

We reported on the absurd case Sep. 24. The opinion was a two-paragraph unpublished per curiam affirmance. (Alyson M. Palmer, Fulton County Daily Report, Oct. 5).

The US Supreme Court denied certiorari on United HealthCare's attempt to enforce an arbitration agreement in its contracts with doctors who filed an Ohio class action over reimbursements. The underlying class action is essentially identical to one that a federal court threw out as meritless in July, though this isn't mentioned in the television coverage, much less that from Bizarro-Overlawyered. The Class Action Fairness Act effectively ends this sort of Russian-roulette game where plaintiffs get multiple chances to win a gigantic class action by filing in multiple jurisdictions, but does not apply to class actions (like this one) filed before 2004.

The AMA has supported these lawsuits, which is disappointing, to be sure; as I noted on Point of Law in July, "Next time the AMA complains about the costs of excessive meritless litigation, they can perhaps look in the mirror."

The plaintiffs' attorney is Overlawyered favorite Stanley Chesley: see Jul. 4, Mar. 6, Aug. 24, 2005, et cetera.

"Fanatiques sans frontières are on the march. ...In the first decade of the 21st century, the spaces of free expression, even in old-established liberal democracies, have been eroded, are being eroded and -- if we don't summon ourselves to the fight -- will continue to be eroded." (Timothy Garton Ash, The Guardian, Oct. 5).

Worsening Detroit's agonies: special laws at both state and federal levels expose automakers to lawsuits from dealerships that they try to cut loose as superfluous. Does GM want to reduce the number of Chevy dealerships in, say, Buffalo, to reflect its declining market share there or falling population? Then it'll have to come up with millions to induce dealers to accept buyouts. The laws don't inflict a comparable burden on automakers whose fortunes are on the upswing, such as Toyota and Honda. (Joann Muller, "Dealer Surplus", Forbes, Oct. 16).

"A former Russian undercover agent who lived under a false name in Toronto and spied for the Russian government is suing Canada's immigration department for refusing to allow her to return here as a landed immigrant." Elena Miller, nee Yelena Olshanskaya, thinks Ottawa should let bygones be bygones about her spy past: "I have dealt with the Canadian government in a co-operative, respectful and low-key manner, despite inquiries from the Canadian media and offers for a book/film," she said. (Marina Jimenez, "Russian spy sues Ottawa for being left out in cold", Globe and Mail (Toronto), Oct. 4).

John Stossel maps out the New York City process ("How To Fire an Incompetent Teacher", Reason, October, leads to a PDF).

Over at Point of Law, Boston attorney Peter Morin and I have collaborated on a new column about a simple way to discourage bad-apple lawyers from exploiting vulnerable clients.

...The simple fix is a rule that goes by the name "payee notification". It would require insurance companies to notify a claimant when they forward a settlement check to claimant's counsel. At a single stroke, the client is made aware of the timing and size of the settlement, taking away most of the leeway a dishonest lawyer has to withhold the client's funds.

Several other states, including California, New York, and Connecticut, have already instituted payee-notification rules, and they have worked well. ... So who would oppose it? Interesting that you should ask. ...

In San Francisco, federal judge Marilyn Hall Patel has allowed a lawsuit by the National Federation of the Blind to go forward against the Target Corp., charging that the retailer's website, Target.com, is insufficiently "accessible" to blind users. Websites are considered accessible to blind users when they (e.g.) include summaries or transcripts for audio/video elements and alt-text for images, while avoiding designs that require users to rely on graphic elements for navigation. Disabled-rights groups had suffered a serious setback a few years ago in their legal campaign to enforce web accessibility, when a court ruled that Southwest Airlines was not liable for the inaccessibility of its online ticket reservation system to some handicapped users. However, Judge Patel (regarded as relatively liberal by the standards of the federal bench) distinguished that case on the grounds that the Target website had more of a "nexus" to physical Target stores than did the airline's ticketing site. ("Target can be sued if Web site inaccessible to blind, judge says", AP/Houston Chronicle, Sept. 7; Bob Egelko, "Ruling on Web site access for blind", San Francisco Chronicle, Sept. 8; Sheri Qualters, "Discrimination Case Opens Door to Internet ADA Claims", National Law Journal/Law.com, Sept. 28; Slashdot thread). The ruling, in PDF format, is here (courtesy Howard Bashman, who also rounds up other links).

Longtime readers will recall that I've been much involved in the web-accessibility controversy over the years. Some links: my May 2000 column for Reason on the subject; various posts on this site, 1999-2002; my House testimony of Feb. 2000; Jan. 8, 2004. And this site's earlier coverage of the Target case provoked one of the biggest comments discussions ever (Feb. 28, 2006).

USA Today has a survey of cases filed against bloggers and commenters. A religious broadcaster and publisher has sued over a description of its president as “a shark” who comes from a “family of nincompoops.” And an ad agency that produced a tourism campaign for the state of Maine filed, but soon dropped, a suit against a critic who ridiculed the ads as a waste of money. (Laura Parker, "Courts are asked to crack down on bloggers, websites", Oct. 3). More: Sacha Pfeiffer, "In court, blogs can come back to dog the writers", Boston Globe, Sept. 28.

Hollywood Paws offers basic behavior training, and advanced training to respond to cameras. The trainers warn that training is not a sure route to television stardom, but they're still facing a Los Angeles Superior Court lawsuit from a dozen pet-owners complaining of broken dreams. What sort of stardom plaintiffs think they were legally entitled to is uncertain; for example, one of the plaintiffs' dogs, Goliath the Rottweiler, had a scene on the Tyra Banks Show that was cut, and is now making $100/day on a low-budget movie. (Jessica Garrison, "No Bows, No Wows for Pooches Pursuing Fame", Los Angeles Times, Oct. 3 (h/t F.R.).)

Via Volokh (where commenters have a lot to say, and are about to start arguing about coffee), humorist and California judge William Bedsworth comments on the New Jersey college-student-falls-out-of-bed-loft case we covered August 16:

Tragically, “There were no warning labels on the bed, and it had never ‘cross[ed his] mind’ or ‘occurred to’ plaintiff that he could fall or that the bed was dangerous in any way. He testified that had he seen a warning, he would have been ‘aware of the hazard that was present’ and slept closer to the wall, as he had done after the accident.” Honest. Says so right in the opinion.

And he had an expert, George Widas, who testified that industry standards in the bed-making industry require that the manufacturer affix a warning “that says make sure that you protect yourself from this fall hazard.” According to Widas, the warning label should have had “black letters on an orange background” and included a warning that both identified the hazard and explained how to avoid it.

So the label should have said -- in Day-Glo green letters on a phosphorescent-pink background -— “THIS IS A BED. USE ONLY WHILE AWAKE.” Or perhaps “IF YOUR IQ IS NOT THIS TALL, YOU CANNOT RIDE ON THIS BED.” Or how about an arrow pointing downward, with the legend “FALLING IN THIS DIRECTION COULD BE HAZARDOUS TO YOUR HEALTH. FALL ONLY UPWARD OR TO THE SIDE.” ...

Australia: "Leading plaintiff lawyer Peter Gordon from the firm Slater & Gordon was paid a $1 million bonus he was not entitled to from the profits of a massive class action over faulty breast implants. A disgruntled former partner has alleged the $1 million bonus was paid directly to Mr Gordon despite having been earmarked by the firm as 'post-settlement expenses'." The allegations filed in court by the former partner, Paul Mulvany, offer "a rare insight into the inner workings of Australia's best known no-win, no-fee law firm". However, the insight-window appears to have snapped shut with great rapidity: "one day after Slater & Gordon was informed The Australian had obtained the court documents, the matter was settled with neither side commenting on the sudden resolution of their dispute." (Katherine Towers and Dan Box, The Australian, Sept. 15). P.S. Not all will agree with the opinion of the contestants in the brawl that the silicone implants at issue were "faulty".

Businesses "More Likely to Sue Frivolously" trumpets Bizarro-Overlawyered and Greedy Trial Lawyer, quoting a Public Citizen report. Except not even the Public Citizen report supports this claim, and no mathematically-literate person reading the report could think so.

At the new "Trial Lawyer Resource Center" blog (which claims that it will have Tom Kline (e.g., Nov. 24, 2004) blogging), there's a revealing post about the use of focus groups to manipulate jury selection and settlement discussions.

Notwithstanding our repeated debunking efforts (Aug. 25, Sept. 18) the U.K.'s Independent can still approach this story as if born yesterday. (Sophie Goodchild and Martin Hodgson, "CrackBerry addicts: Why the workers who can't switch off are suing their employers", Oct. 1).

Updating our Jun. 5 post: noting that the conduct sued over "was mostly just offensive name-calling," a judge in Alameda County, Calif. last month reduced the damages in two Lebanese-American men's harassment-on-the-job lawsuit against Federal Express from an eye-popping $61 million to a mere $12.4 million. The latter number is presumably not as unreasonable even if it, too, might give off an air of having been pulled from a hat (Matthew Hirsch, "Calif. Judge Slashes $61 Million FedEx Verdict", The Recorder, Sept. 14).

Video phenomenon YouTube will be "sued into oblivion", predicts dotcom billionaire Mark Cuban, for the way it enables users to post copyrighted material. ("Mark Cuban: Only a 'moron' would buy YouTube", Reuters/ZDNet, Sept. 28). More: Jul. 20, etc.

"By demanding that the speech of two talk-radio hosts be monetized and strictly limited, reformers reveal the next stage in their stealthy repeal of the First Amendment." ("Sleepless in Seattle", Newsweek, Oct. 9). Earlier coverage: Jul. 11 and Jul. 19, 2005.

For decades, plaintiffs' attorneys and labor unions have worked together to elect judges favorable to their interests, and for decades, these elected judges have systematically moved American law in a direction unrecognizable and ridiculed in the rest of the world to create a tort system that takes up a share of the economy more than twice as large as any other Western nation. In response, the business community started supporting judges who had track records of actually following the law; the electorate tended to support these judicial candidates over the plaintiffs' bar's candidates. Because these judges aren't in the pockets of the plaintiffs' bar, they don't reflexively vote for the meritless positions taken by the litigation lobby—and now the New York Times and the press suddenly finds it interesting that judges face elections where they fund-raise, and that campaign funds are more likely to be donated to candidates who are sympathetic to the funder's view of the law. (Adam Liptak and Janet Roberts, "Campaign Cash Mirrors a High Court’s Rulings", New York Times, Oct. 1).