January 2007 Archives

A site parodying the popular MMORPG Second Life, "Get A First Life" ("First Life is a 3D Analog World Where Server Lag Does Not Exist") gets what appears to be a proceed and permit response from the original (via Volokh, though I really was going to blog about this a few days ago when Slim pointed it out to me).

Notice how in the last few years all the advertising has started referring to the mysterious "Big Game"? That's because the NFL has sicced lawyers on marketers who refer to the "Super Bowl" without paying merchandising fees to the NFL, including suing Las Vegas casinos that offered Super Bowl parties or special weekend rates for the Super Bowl or contest promoters that offered Super Bowl tickets. (Eriq Gardner, "Super Bowl, Super Trademarks: Protecting the NFL's IP", Hollywood Reporter Esq., Jan. 29 via Lattman).

(Update: Frequent commenter Deoxy points us to this similarly-themed Indianapolis Star story.)

Those new referee uniforms the NFL implemented this year have a similar intellectual property provenance. The NFL apparently was concerned at the spate of advertising that used referees in the generic referee stripes, and decided to create a unique look that it could slap a trademark on and potentially market later.

The lawsuit by an author who says her publisher, Penguin, steered her work against her wishes into "black interest" marketing channels is now online courtesy OnPointNews (complaint/answer, both PDF). The comments section on our original post (Jan. 24) has been busy indeed, and we're continuing the discussion here.

The Boundary Waters Canoe Area Wilderness in Minnesota, described as the nation's most heavily visited wilderness area, is a part of the Superior National Forest. These days the forest's managers

face the financial repercussions of legal decisions they say are stripping scarce resources from their wilderness budget, undermining maintenance work, and leaving many wilderness restoration projects on hold....

While many environmentalists fervently believe that such suits help protect the wilderness, Forest Service officials say many of the agency’s legal expenses come straight from the Superior’s wilderness budget— money that would otherwise pay for the kind of on-the-ground maintenance and restoration work that everyone seems to agree is badly needed in the nation’s most heavily-visited wilderness area.

“When you start figuring out what that means in terms of hiring wilderness rangers or buying fire grates or latrines, it has a huge impact,” said Barb Soderberg, public affairs officer for the Superior National Forest. ...

The local forest officials receive a modest $1.5 million a year to manage the 1.1 million-acre wilderness area. According to its supervisor, the forest has been in court continuously since 1949. Under the "one-way" fee structure of federal environmental law, the forest like other defendants can be ordered to pay a plaintiff's full attorneys' fees even if the plaintiff wins on only some issues in a case, but cannot collect itself even if it manages to prevail on all issues. Last year a court ordered the forest to fork over $90,000 to prevailing environmentalist lawyers from the elite Twin Cities law firm of Faegre & Benson. Not by coincidence, the forest has found itself obliged to slash its budget for temporary wilderness rangers, from $240,000 to $135,000, "in large part due to ongoing litigation costs".

The environmental representatives contacted for this story all acknowledged they don’t weigh the costs to the Forest Service when deciding whether or not to file suit against an agency decision....Brad Sagen, the new board chairman of Northeastern Minnesotans for Wilderness, said it isn’t his organization’s job to consider costs of lawsuits— indeed, he called the question “absurd.”

Meanwhile, environmentalists are piling on with more new lawsuits, over a new forest management plan and a snowmobile trail, while continuing to pursue an old one about motor quotas. Much, much more here for those with an interest in this area. (Marshall Helmberger, "Environmental lawsuits sap U.S.F.S. wilderness maintenance budgets", Ely, Minn. Timberjay, Jan. 26)(profile of author at Minnesota Public Radio).

Plaintiffs' attorneys led by Milberg Weiss received only $710/hour for their work transferring $1 billion from current Nortel shareholders to past Nortel shareholders (and, of course, their attorneys) in a securities lawsuit, for a total of $34 million (plus $3.7 million in expenses). They had been seeking nearly three times that amount. While Judge Berman found that the fee request of 5.8 times regular hourly billing rates was excessive, he did not inquire into whether the law firms' claim of 47,846 hours billed was reasonable. Indicted Milberg Weiss attorney Steven Bershad had been lead counsel until he was voluntarily substituted by another Milberg Weiss attorney shortly after his indictment. (In re: Nortel Networks Corp. Securities Litig., No. 01-cv-1855 (Jan. 29, 2006); David Glovin, Bloomberg, Jan. 29). Update: WSJ Law Blog has the ruling on line.

Belatedly noted: Reader's Digest gives us another generous mention (latest in a long series of such) as part of a wider project cataloguing ideas and proposals that could make the country better (Sacha Zimmerman, Reader's Digest, posted Sept. 14). For another generous mention from the Digest, see Jun. 12, linking to an article by reporter Michael Crowley. And we've also been slow to link another good piece from Digest reporter Crowley, on the problems introduced by jury consultants "paid to stack the deck" (Michael Crowley, "Jury Riggers", Apr. 2006). Sample:

A recent guide published by the Association of Trial Lawyers of America warned lawyers about jurors who may show "personal responsibility bias." These jurors, the guide said, feel that "people must be accountable for their conduct." Now there's a chilling outlook! The guide advises: "The only solution is to exclude them from the jury." That is, get rid of anyone who might actually care about seeing justice done.

According to a WSJ news report, Greenlight Capital, a $4 billion New York hedge fund, has filed a federal False Claims Act lawsuit against Allied Capital Corp., alleging that a subsidiary of Allied known as Business Loan Express LLC, or BLX, "submitted fraudulent loan documents to the Small Business Administration, bilking the U.S. of millions of dollars. Greenlight and James Brickman, an individual working with the fund to bring the suit, are entitled to 25% to 30% of the proceeds if their complaint results in an award." Aside from the novelty of a hedge fund's getting into qui tam litigation (perhaps no real surprise, given the proven money-making scope afforded by that bounty-hunter's statute) the even more noteworthy twist is that Greenlight has also taken a short position in Allied's stock, so that it will profit if the stock falls independently of whether the litigation results in a successful recovery. (Carol S. Remond, "Greenlight Heads to a Courtroom", Wall Street Journal, Jan. 29)(sub-only).

We've reported at some length previously (here and at Point of Law) about the evidence that plaintiffs and their lawyers sometimes short target companies' stocks before filing lawsuits, and about the fairly grave implications of that both as a matter of legal/litigation ethics and for the "market integrity" rationale of securities regulation. See, for example, May 5, 2005 and Sept. 14, 2006, as well as (relatedly) Nov. 14, 2006, and at Point of Law, Feb. 6 and Mar. 3, 2006, and this Featured Discussion.

My Manhattan Institute colleague Peter Huber does the best job I've seen of raising doubts about the proposal ("The Inegalitarian Web", Forbes, Feb. 12).

• Update to Maine Board of Tourism intimidate-a-blogger-by-litigation lawsuit: case dismissed, government official fired. [Maine Web Report; AP/Boston Globe]
• Senter blocks State Farm Katrina class settlement. [Point of Law; Rossmiller; Woullard v. State Farm]
• Senator Schumer (D-NY) calls for liability reform to save New York economy; Governor Spitzer shows up at press conference. [Point of Law]
• Canadian $10M settlement for Syrian torture: that's what we get for trusting Syria. [Frum]
• Remember that case in Snohomish where the celebratory cannon blew up at the football game? And the plaintiffs' lawyer complained that the injured student was getting threatened by the townspeople over his lawsuit? Turns out the student (allegedly) told a youth minister that he deliberately overloaded the cannon for "a bigger bang," and now is (allegedly) harassing the minister. And the original threats had nothing to do with football spirit. Everett Herald]

• Regulations drive restaurateurs from New York to friendlier (if armpittier) climes. [New York via Taylor]
• Suit: suicide fault of auto dealership sponsoring "Hands on a Hardbody" contest. [AP/ Austin American-Statesman]
• Nanny statism meets failure to contemplate ex ante vs. ex post thinking in UK: new Manchester police policy is to refuse to chase helmetless bicycle thieves. [Telegraph (h/t F.R.)](earlier)

• Private eyes and lawyers among the transactions costs of rent regulation in New York. [NYT]
• The war on science doesn't just come from the right. [Adler @ Volokh; Sandefur @ Positive Liberty]

• Mrs. Alito is very cool [WaPo via Bashman]

In the U.K., childhood obesity has now developed into a grounds for social service agencies to take kids away from their parents. (Sarah-Kate Templeton, "‘Fat police’ put children on abuse list", Times Online, Jan. 28).

Our very first embedded YouTube video. It originally appeared on Comedy Central's "The Hollow Men" (via Nicole Black):

A possibly more accurate headline on this National Law Journal article from last month would have been, "Class-Action Lawyers Are Reaching Out to Sue Employers on Behalf of Telecommuters". And for many of the putative beneficiaries,the consequences are apt to be unpleasant: some employers will curtail their use of telecommuters, while others will insist on legally defensive paperwork and work rules which add dreariness to the job, such as those suggested by a lawyer with one leading employment-defense firm:

Companies can minimize the risk of legal disputes with work-at-home employees by inking formal agreements about the work and hours, said Mark Batten, a Boston lawyer for New York-based Proskauer Rose.

Batten, a defense attorney, also recommends timesheets, a written policy banning overtime without prior approval and rules requiring employees to monitor and record work-related activities such [as] logging on or off a computer. ...

"Just allowing employees to work at home without an understanding about how much time is actually needed for work will get the employer in trouble," Batten said.

(cross-posted from Point of Law).

Our post of Wednesday on an author's complaint that Penguin Group steered her work into "African-American interest" marketing channels, although she would have preferred for it to be marketed as a general interest book, has spurred a somewhat heated discussion in the reader comments section. It also drew an informative comment in email from Charles Petit, author of the publishing-law blog Scrivener's Error, which we've appended to the original post.

If you ever want to see a trial lawyer manipulate the press, and the press unskeptically eat it up, you could do worse than to watch the recent performance of Steve Yerrid (Oct. 5-6) in a recent Tampa trial.

The facts convey an undeniably terrible accident. Fifty-year-old high-school-dropout Denzil Blake was cleaning an Isuzu Rodeo at Town 'N Country Car Wash when he accidentally hit the gearshift, sending the car (which should not have been running) out of neutral. Blake didn't know how to drive (Florida law allows a person without a driver's license to operate a vehicle on private property, so there was nothing illegal about allowing unlicensed drivers to move cars in a carwash), panicked, and accidentally hit the accelerator instead of the brake, sending the car speeding into 43-year-old Brenda Lee Brown, striking her just after she pushed her young son's stroller to safety; she died of her injuries two days later. Blake was not criminally charged.

According to Adrian Zachariasewycz, a/k/a Adrian Zack, of Woodlyn, Pa., some exams given at the University of Michigan Law School reward fast typists with a chance at higher scores. So he'll see school administrators in court, in a pro se lawsuit that also names as a defendant the Wilmington, Del. law firm of Morris, Nichols, Arsht & Tunnell, where his associate's gig didn't work out. He's suing two of the law school's career counselors individually for alleged bad advice, too. (WSJ law blog, Jan. 26; complaint in PDF format). More: Feb. 5.

Energizer Bunny on list of contemplated victims, say cops who cracked schoolyard slay-ring plot (Bill Poovey, "6 Teen Girls Charged With Homicide Plot", AP/SFGate, Jan. 25)(via Taranto).

“It was never about the money for me, this litigation,” said Dickie Scruggs, who stands to collect between $26 million and $46 million from a settlement accomplished by the use of the state attorney general, Jim Hood, to extort State Farm with the threat of criminal proceedings for daring to enforce their flood exclusion clauses in their contracts. [Lattman] Many many posts on the subject at Point of Law.

"I recently ran a television advertisement offering to represent car accident victims in exchange for a 15 percent contingency fee, which is more than 50 percent less than the traditional 33 percent contingent fee. ...One of the goals of my advertising campaign is to reform the tort system in the marketplace, without the need for legislation. ... Making a lower contingency fee the centerpiece of an ad campaign, albeit just for car accident victims, educates consumers about the standard fee and how a lower contingency fee can benefit them, by putting more of the net recovery in their pocket." New Haven, Ct. attorney Joshua A. Winnick sure isn't angling for popularity among his peers ("Putting a Price on Plaintiffs Work", Connecticut Law Tribune, Dec. 28). More: David Giacalone.

• DOJ subpoenas of online-gambling firms spark UK outrage (Times Online)


• "Don'ts" for lawyers: don't supplement your criminal-defense practice by running escort service on the side [NY Law Journal]


• Maternity-clothing retailer tripped up on pregnancy discrimination claim [Lenard]


• Filling out a Quicken-software will for an elderly client deemed "unauthorized practice of law" in South Carolina [McCullagh, Giacalone]


• Champerty 'n' maintenance update: New York courts allow suspended lawyer Ross Cellino [Jul. 15, 2005] to resume practice [Business First of Buffalo]


• Worried about long-dormant restitution or repatriation claims that might arise to put a cloud on your art holdings? Buy art-title insurance [Forbes pay archive]


• Snatching whole milk from schoolkids not such a great idea, maybe [Musil]


• Yes, let's stop slamming lawyers for representing unpopular clients -- and let's start being consistent about it [Ted "no relation" Olson, Katyal via Adler]


• Pfizer sued on theory its frisky Viagra ads encourage spread of sexually transmitted diseases [AP/WaPo](complaint courtesy Slate)


• After his experiment in splitting up his blogs, Steve Bainbridge has reunited them again [ProfessorBainbridge.com]


• Remove Child Before Folding author Bob Dorigo Jones interviewed about wacky warnings (see Jan. 6, Jan. 12, etc.) [Illinois Review].


• Note: one item originally posted here [on air-show crash] removed as duplicative of one of Ted's earlier.

You often hear about the plaintiffs' bar and their solicitous concern for the privacy of citizens, and how they'll be happy to bring class actions to protect that privacy. Of course, as we have repeatedly noted (e.g., Jun. 20, 2005 and Feb. 9), that concern for privacy extends only as far as it doesn't interfere with trial lawyers' desire for a payday. The California Supreme Court has ruled that consumers who contact a vendor are subject to having their names given to plaintiffs' attorneys (in this case, the super-ethical firm of Milberg Weiss) in California-state-court discovery unless such consumers explicitly take the trouble to opt out to each and every opportunity for such notification, reversing an appellate court's ruling that names should only be given out if consumers opt in to such notification. Bruce Nye has more details about Pioneer Electronics v. Superior Court. The opinion doesn't appear to create any limits on the ability of plaintiffs' attorneys to use that information. We look forward to the usual suspects commenting on the need for protective legislation to prevent such privacy breaches. Right?

Richmond, Va.: "A high school art teacher has hired the ACLU to challenge his firing after a video of him moonlighting as a 'butt-printing artist' was widely circulated among his high school students." Stephen Murmer was fired from his job at Monacan High School. (Matt Reed, "Backside artist to challenge firing", AP/ABCNews.com, Jan. 24).

Policy wonkery meets health nannyhood in a truly daft proposal from the David-Cameron-led Tories in the UK, a commission of which has deemed cakes and ale (at least in excess) to be "social pollutants". One searches in vain for the "April Fool's" giveaway tag. (Patrick Hosking, "Tories plan strict quotas for makers of fatty foods", Times Online, Jan. 19) (via NRO "The Corner").

Paul McNamara, at NetworkWorld, takes exception, calling the Houston lawyer's pronouncement a "steaming pile of flapdoodle" (Jan. 19; Joe Garofoli, "Families of sexually abused girls sue MySpace, alleging negligence", San Francisco Chronicle, Jan. 19)(earlier).

Ted proves himself to be a superior purveyor of Supreme Court gossip (Jan. 23).

Sensational new disclosures in the scandal (Mar. 6, Aug. 25, etc.) over self-dealing by lawyers in divvying up the results of fen-phen litigation in Kentucky:

The three lawyers accused of plundering Kentucky's $200 million fen-phen settlement "tore up or burned" notes showing how much they paid themselves and their clients, according to one of the lawyers.

Depositions obtained by The Courier-Journal include Lexington attorney Melbourne Mills Jr.'s description of a secret meeting that he said he and lawyers William Gallion and Shirley Cunningham Jr., also of Lexington, held at Gallion's house in 2001 to divvy up an extra $10 million beyond what they'd already paid themselves from the settlement. ...

[Attorney Angela] Ford alleges that Mills' description is a "dramatic indication of a cover-up."

She has asked that those lawyers and another attorney, Stan Chesley of Cincinnati, who helped negotiate the settlement, be forced to surrender $62.6 million in funds they allegedly misappropriated -- as well as $59.5 million they paid themselves in fees....

Kentucky courts have never required a lawyer to "disgorge" or return a fee for misconduct, but courts in other states have done so, according to Ford's motion....

Chesley, who was hired by the Lexington lawyers to negotiate the settlement, said he had no reason to question why he was paid $20.5 million -- $7 million more than his contract outlined -- in part because he could not "believe that these good folks would have sent me more money than I was entitled to."

In her motion to force the lawyers to give up their fees, Ford said the defendant lawyers, including Chesley, breached their duties in a "spectacular and unparalleled way" by giving only about one-third of the settlement to the clients.

"The facts of this case truly are as egregious as it gets," she said in court papers. ..

Since the settlement, Gallion and Cunningham have both become permanent residents of Florida, a state that Ford notes allows debtors to keep their homes when they take bankruptcy.

Stanley Chesley was, and remains, one of the most famous plaintiff's lawyers in the United States and a major powerbroker in national Democratic politics. The article also sheds further light on the close ties between now-disgraced Judge Joseph F. ("Jay") Bamberger, who approved the Kentucky fen-phen settlement and has since resigned, and the plaintiff's team in the litigation. (Andrew Wolfson, "Lawyer: Fen-phen notes destroyed", Louisville Courier-Journal, Jan. 21).

More: a companion piece in the same paper profiles the Cincinnati-based Chesley (Andrew Wolfson, "A breach of duty; wealth mounts for 'prince of torts'", Louisville Courier-Journal, Jan. 21)(via Lattman).

Many large bookstores carry sections devoted to works of African-American interest, and a number of book clubs and other specialized selling channels do a thriving business by specializing in black themes and authors. In October, however, Florida-based author Nadine Aldred, who writes under the pen name "Millennia Black", filed a pro se lawsuit in federal court in Manhattan against her publisher, Penguin Group, on the grounds that Penguin (she alleges) insisted on steering her work into black-interest channels although she would rather have been marketed as a general-interest author. On the Wrong Side of the Alligator has reprinted excerpts from the complaint (Jan. 6).

The estimation of whether a particular author's work will sell better if marketed to a niche or to a more general audience is inescapably going to depend on case-by-case judgment (assuming that marketing dollars and available cues of cover design, etc. are limited and cannot be dispatched in both directions at once). It is not immediately apparent why Penguin would not have an interest in taking a path that maximized its author's sales. Aldred's suit asks $250 million. See also Jeffrey A. Trachtenberg, "Why book industry sees the world split still by race", Wall Street Journal/Pittsburgh Post-Gazette, Dec. 6.

P.S. Disclosure, for whatever it's worth: Penguin was my publisher on my first book (The Litigation Explosion).

More: Charles E. Petit of Scrivener's Error writes to say:

The real problem in this instance is not with Penguin. The real problem is an antitrust nightmare: the book distribution system, which is probably the paradigmatic example of "one man's antitrust is another man's economy of scale"--at least until you look into the financing and terms of doing business, which makes me ask "What economies of scale?" The _distributors_ are the ones who demand "pigeonholing" of books, and Penguin's best defense will be to point out that books that are released _without_ a category tend to stay in distributors' warehouses unshipped. In other words, "We had to put _some_ category on it as a business necessity, and this is the one that in our commercial judgment was the best fit."

• "[P]rotect good doctors from junk lawsuits by passing medical liability reform." This sounds much like what we heard four years ago in Overlawyered. [Bush SOTU]
• Update: Autopsies in Comair crash (Sep. 19) have lawyers salivating over noneconomic damages possibilities. Refreshing honesty: "It's all about money." [AP/Insurance Journal]
• Driver falls asleep at wheel, blames Ford for resulting accident; Indiana jury disagrees. [Bloomberg/NorthJersey.com] Florida juries have been more generous (Nov. 17, 2005; Nov. 21, 2005).
• Being a minor defendant in a mass tort [Mass Tort Lit Blog]

• Gary Condit's lawyer asks to withdraw from his "frivolous" libel suit (and roundup of Condit's legal actions). [Levine @ Patterico]
• More on Abigail Alliance v. FDA [Marginal Revolution]

• More on the new prohibition (Oct. 19 and links therein). [Kirkendall]
• A review of the OJ Simpson book. [Wolcott @ Vanity Fair]
• "This is Ronald Reagan's party. Why is it proposing Jimmy Carter's energy policy?" [Frum]
• Congressional Black Caucus: no whites allowed, even for a representative of a majority-minority district. [The Politico]
• Three years ago in Overlawyered: John Edwards's bundle of secrets
• Seven years ago in Overlawyered: Mormon student actress sues over profanity in theater productions, settles in 2004 for over $250,000.

• I'm speaking at WLF tomorrow morning with Victor Schwartz and Sherman Joyce. [Point of Law]

Class action attorney allowed to tell Iowa jury that the named plaintiffs are "just regular people who bought software" who volunteered to step forward to sue Microsoft; Microsoft is not allowed to question plaintiffs (who stand to recover a few dollars) about whether they were actually recruited by their attorney friends who stand to make millions if the case succeeds. (David Pitt, AP/Houston Chronicle, Jan. 22). How the class even got certified under these circumstances is also questionable.

He's got plenty of time, alone there in his prison cell, to work on making sure his legal rights get asserted far and wide. (Serge F. Kovaleski, "Unabomber Wages Legal Battle to Halt the Sale of Papers", New York Times, Jan. 22).

Annals of public employee tenure, this time from Norwalk, Ct.: "The city will not appeal a state Labor Department ruling to reinstate police Officer Liam Callahan, a nine-year veteran fired last fall for taking a skull fragment from the scene of a May 2005 accident. 'The laws in the state are such that it's extremely difficult to overturn a ruling,' Deputy Corporation Counsel Jeffry Spahr said yesterday after discussing the matter in executive session with the Norwalk Police Commission." According to numerous press reports, co-workers of Callahan's said he planned to use the skull fragment as an ashtray. An investigation concluded that Callahan's statement after being confronted that he had intended to return the fragment was not credible. (Created Things (Jeff Hall), Jan. 16; Brian Lockhart, "City officer in skull-fragment case reinstated", Stamford Advocate, Oct. 24). And on the sued-if-you-do, sued-if-you-don't front, note well: "Callahan and the city still face a civil lawsuit from [victim Alfred] Caviola's family." Unless Callahan personally turns out to provide a deep pocket, it appears the longsuffering taxpayers of Norwalk may find themselves on the hook for who knows what sort of payout -- juries in other cases have expressed outrage at mishandling of decedents' remains -- even as the city is unable to sever the actual perpetrator of the act from its payroll.

• Trial lawyers look for Democrats to punish. [Point of Law; Investors' Business Daily]
• Point of Law Vioxx trial updates: California, New Jersey, and Pennsylvania.
• Men seeking laws freeing them from child support when DNA proves they're not the father. Earlier: May 10 and Feb. 3, 2004. [Time]
• Latest creative defense to a murder charge: Asperger's syndrome. [Boston Globe]
• A complicated medmal case is trumped by the sympathy factor [Cortlandt Forum via Kevin MD]

• Cost of EMTALA (Sep. 2, 2005) in LA County alone: $1.6 billion. LA Times doesn't mention the law by name or consider the obvious conclusion. [LA Times]
• Why the painfully obvious explanations on painfully obvious objects? [comments at Obscure Store; New York Sun; new Mike Judge movie Idiocracy]
• Lessig: stop me before I regulate again! [Hit & Run]
• Right-wingers take on Dinesh D'Souza [roundup of links at Postrel]
• The meaningless and counterproductive Democratic House bill on student loans. [Novak @ WaPo]
• Do big law firms really care about attrition? One theory. [Ivey Files]
• My girlfriend thinks I spend too much time arguing with idiots. Relatedly, Eugene Volokh responds to Anisa Abd el Fattah about the First Amendment and Jews. [Volokh]

Now endangered in Scotland. (Murdo MacLeod and Scott McCulloch, "Banned: ice slides in the school playground", The Scotsman, Jan. 21).

Apparently the long-running show was sued very little, if at all, by victims of its hidden-camera stunts. Was that because, as host Allen Funt maintained, the show's spirit was genial rather than sadistic, in contrast to more recent shows? Or because its liability releases (presumably proffered to the victims after the embarrassing stunt had been sprung) were more likely to be upheld? Or just because people then weren't as primed to sue? (Ann Althouse, Jan. 20).

• "Don't Google the lawyers." Do judges need to be that explicit in admonishing jurors? [New Jersey Law Journal]


• Ky. lawyers bail out of hospital-infection suits [Courier-Journal, Dr. Wes, KevinMD]


• Man accused of extorting Oprah Winfrey earlier inserted himself into dispute arising from Prudential workplace-bias suit, lawyer says [Sun-Times]


• Nevada smoking ban scuppers taverns' business, no real surprise there unless your name's Bloomberg [Las Vegas Review-Journal]


• Panic! Another thermometer spill! (earlier, here and here) [Szwarc, and sequel]


• Write your legislator urging vote on pot decriminalization, get reported to police [Sullum]


• Heavy-handed: Calif. lawmaker proposes ban on spanking kids <4 years old [Saunders, Fisher]


• Think twice before driving your neighbor to the hospital: the Border Patrol just might seize your car [Tucson Citizen via Reason "Hit and Run"]


• Golf club ejectee sued for discrimination, but club says it was because of his many financial scams [Las Vegas Sun]


• Populist Dems vs. free trade: we're all the losers [Chapman, syndicated]


• Student sues over excessive summer homework [Two years ago on Overlawyered]

• Update: $8M Greyhound verdict (Aug. 18, 2005) affirmed. [Serles v. Greyhound (6th Cir. 2007)] (Update to update: also Nordberg.)
• Hugo Chavez-wannabe Mississippi AG Jim Hood: $2.5M State Farm verdict is "drop in the bucket." See also POL Jan. 16 and links therein. [Biloxi Sun-Herald]
• I've been saying this for a while: Enron litigation a search for deep pocketed-bystanders, rather than actual wrongdoers. [Houston Chronicle]
• Lawless LA: Deputies barred from foot chases now, so criminals know to run away. Lawsuit victim:
  "I'm less proactive because I'm worried the next time I do something — who's going to second-guess that?" [LA Times]
• Lawyer tries to sabotage clients' immigration proceedings over $7000 fee dispute, gets slap on wrist. [St. Louis Post-Dispatch]
• Forbidden words [Bader @ CEI Open Market]
• How bad US ethanol law hurts poor Mexicans [Cafe Hayek]
• Case for abolishing FCC [Slate (!)]

The "secret world of the ADA": professors grading exams aren't supposed to know whether a given test-taker got extra time as an accommodation, but there are often ways you can tell, says San Diego lawprof Gail Heriot, especially when the essay comes in twice as long as other students'. Still, when she tries to find out what percentage of her class is getting extra time -- not asking for names, just a rough figure on what share -- she's told it's "none of your business". (The Right Coast, Jan. 10). More: Jun. 2 and Dec. 8, 2006, among many others.

• Med mal: does sorry work? [Point of Law]
• Med mal: Nelu Radonescu v. Naum Ciomu. I think the damages were too low, since the act was intentional. But it's in Romania. [Metro UK]
• New San Francisco sick leave law helps workers at big chains (if only in the short term) and lawyers, hurts everyone else. [Point of Law]
• Vioxx medical monitoring class action to proceed. [Point of Law; Drug and Device Law Blog]
• And the next Vioxx trial in New Jersey, starting Monday. [Point of Law]
• Adware displays porn on teacher's computer, she faces 40 years. [roundup of links at Boing Boing]
• Fraud in Ohio asbestos case plus slap on wrist for lawyer; no consequences for plaintiff. [Point of Law; Adler @ Volokh]
• Always open mail from California. [Cal Biz Lit]

• $100 million legal bill defending oneself against Spitzerism. [WSJ Law Blog]
• "It would probably be better for the nation if more of the gifted went into the sciences and fewer into the law." [Murray @ OpinionJournal]
• Borat accepting Golden Globe: "And thank you to every American who has not sued me so far." [Above the Law; Throwing Things]
• OJ's book contract. [Slate]

• Contra Doonesbury, Bush administration not hiding age of Grand Canyon [The Daily Gut via Captain Spaulding; Adler @ Volokh]
• Stephen Colbert "eviscerates" Dinesh D'Souza. [Comedy Central via Evanier]

Good news for poo-flingers: a Colorado lawyer is arguing (on behalf of a client facing misdemeanor charges) that there's a First Amendment right to deliver dog droppings to someone's office as a means of political self-expression, at least if the lucky recipient is a member of Congress. (AP/Boston Globe, Jan. 18).

"Four families have sued News Corp. and its MySpace social-networking site after their underage daughters were sexually abused by adults they met on the site, lawyers for the families said Thursday." (Jessica Mintz, AP/LA Times, Jan. 19). Earlier: Jul. 19 and links therein.

Update: Link fixed.

• New legislation aimed at regulating "grassroots lobbying": will it hit political bloggers? (Answer: apparently not.) [McCullagh, Hardy, Sullum, Bainbridge, Reynolds]


• Upper East Side merchant sues vagrants whose cardboard-box loitering ruins his location [NYSun, NYTimes]


• "People probably aren't thinking about potential legal liability when they're having casual sex," says lawprof about new Calif. trend of spousal VD suits [KEYE-TV via KevinMD]


• "Devious, dissembling, dodgy. And that's just the police". Theodore Dalrymple on UK criminal justice [Times Online]


• Daniel Boulud of restaurant fame, targeted by lawsuit campaign, says he won't pay to make worker advocates go away [NYTimes]


• Erin Brockovich on the warpath against recycling facility in Apple Valley, Calif. [Fumento/TCS]


• As a lawyer, Pres. John Adams represented Redcoats after Boston Massacre; what would he say about Guantanamo flap? [NYSun editorial]


• Nearly all radiologists frustrated with practice, liability is top reason [LocumTenens.com]


• Duke profs who egged on lynch mob in bogus rape case stand on melting ice floe of credibility [Reynolds, Althouse, Podhoretz, Bainbridge here and here, Allen]


• Ringling Bros. trainee says clown college was harder to get into than law school [Five years ago on Overlawyered]

Jerome Almon, who owns the Detroit rap music label Murdercap, has sued Canadian officials demanding $900,000,000 over alleged hassles in his attempts to cross the border. Almon, whose musical oeuvre includes works entitled On Ya Neez Bitch and How Stella Got My Backhand, says that although his police record contains arrests only and not convictions, Canadian border control personnel have delayed his entry to the country on dozens of occasions, sometimes for hours. He is representing himself in the suit. ("Detroit rapper sues over alleged Canadian border hassles", CBC, Jan. 17; Paul Egan, "Detroit record label head alleges harassment against border officials", Detroit News, Jan. 18; P2Pnet).

For readers who haven't figured this out on their own:

* When we post on Overlawyered about a real or potential lawsuit, it doesn't necessarily mean we think the case is without merit. We regularly discuss meritorious cases.

* Not infrequently lawsuits we discuss are well founded on existing law, but that existing law is ill-conceived and deserves to be reconsidered. Or both law and lawsuit may make perfect sense, but the level of damages demanded may be excessive or implausible. Or the combatants on one side or both may pursue dubious tactics and theories. Or the media coverage of the case may have been credulous or one-sided. You get the idea.

* Sometimes it's not clear what if anything either side did wrong in pursuing a dispute, but the case still stands as a monument to the high cost of resolving things through legal process. A recurring example: the family feud over a legacy that ends by consuming the estate in litigation costs.

* We also discuss a certain number of cases that are just plain interesting: they raise novel or non-obvious legal issues, or they shed light on human nature as it manifests itself in legal disputes. And, yes, it does happen on occasion that I take note of a case without being sure what I myself think of it.

* Finally, Ted and I are two different people and don't always agree with each other.

Sorry if this introduces complexity where people were expecting to find simplicity.

Lt. David Lenotti says the fire department of Stamford, Connecticut improperly denied him extra time on its test for promotion to captain even though he had a diagnosis of learning disability. A state human rights investigator has backed Lenotti's complaint, which is scheduled for a Jan. 23 hearing, but the Stamford authorities beg to differ:

The city has never granted anyone extra time on the lieutenant's or captain's exams, said Felicia Wirzbicki, human resources generalist. ... The reasoning is that lieutenants and captains are in charge at emergency scenes and have to make split-second decisions, Wirzbicki and other city officials said. Those decisions often are based on floor plans, hazardous material reports and similar documents, they said. Speed is an "essential function of the job," the city argued. ... "You don't get extra time at a fire scene," Wirzbicki said.

None of which seems to cut much ice with disabled-rights advocates:

"You're supposed to give accommodations, period," said Suzanne Kitchen, a clinical instructor and consultant for the Job Accommodation Network, a federally funded non-profit that provides employers with advice on disability rights. "No is never the right answer."

That last sound bite is actually quite false as a legal matter; in fact Ms. Kitchen herself is described elsewhere in the article as correctly noting that accommodations may sometimes be refused under the law. But it does have quite a ring to it, though, doesn't it? (Zach Lowe, "State official: Disability rights apply on fire captain test", Norwalk Advocate, Jan. 15). Jeff Hall at Created Things comments (Jan. 16).

All of which is very much business as usual in today's employment discrimination law. Long before the disabled-rights suits came along, fire departments had came under intense attack by feminist litigators seeking to invalidate testing of applicants' physical strength, agility and so forth, particularly when timed tests were involved. I wrote about this history at some length in The Excuse Factory, a few of the highlights figuring in this 1997 magazine piece. An excerpt:

[In Brunet v. Columbus] Judge Kinneary also disallowed the city's practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs' lawyers, testimony had been given that "sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand." In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, "anecdotal." Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they've heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say "speed is critical" in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. "Opponents argue that it is not."

In its traditional presentation, the celebrated Mardi-Gras-season New Orleans King Cake contains a small concealed figurine of a baby which someone gets as part of their slice; the lucky recipient then has to throw the next party or buy the next cake. Back in Feb. 2002 we ran an item, quoting columnist James Lileks, on how purveyors of some store-bought King Cakes no longer were willing to conceal such a figurine, tradition or no. For a discussion of King Cakes, including a picture of what one looks like, check Blawg Review #90, just published the other week at Minor Wisdom.

Now the New York Times introduces us to what is apparently the original French version of the cake, a flat round galette, also served during Carnival and also concealing a good-luck figurine. Don't expect to encounter this delicacy in American stores, however, for reasons readers of this site will easily anticipate:

Alexandre Colas recalled that he once met a baker from Syracuse, N.Y., at a trade show in Paris, who at first showed interest in buying porcelain favors for his baked goods but later backed off. “He said there were too many legal issues,” he said.

(John Taglibue, "3 Lands of Orient Compete With French Holiday Favors", New York Times, Jan. 17).

Completing our series of the Best of 2006 in a busy month:

• Frequent filer v. Kraft: pay my attorney millions because I didn't read the label on your guacamole dip.
• ADA Week: drive-by suits and filing mills, $2.5 billion sidewalks, the separatist fringe, paper money redesign for the blind appeal, and an epileptic's right to operate heavy equipment.
• Jesse Branham v. Ford: $31M verdict against Ford when driver drove off the road while turned around, and followup and more followup. See also multimillion dollar seatback verdicts, again blaming Ford for driver error. Ford did win an Arkansas "sudden acceleration" case, and the losing lawyer wrote in.
• Imams: we want to "hit [US Airways] where it hurts, the pocketbook."
• Killer's mom sues high school for not stopping him.
• Warren Buffett's new insurance company on medmal caps.
• Class action for uninjured Nintendo Wii purchasers.
• GAO on litigation risk and drug development.
• Lawsuit: I should be allowed to anoint cubicles with olive oil
• What do wacky pro se cases teach about legal reform?
• UK patient: doc hurt my feelings by telling me to quit smoking
• California Prop 65: protecting us from cooked chicken.
• 19 year old dies moshing, sues home owner
• Bad facts make bad law—and that's true even when the defendant wins because of that bad law.

John Cerqueira was sitting next to two Israelis boisterously talking in English and Hebrew on a 2003 Boston-Fort Lauderdale American Airlines flight, when the flight crew decided that all three raised a concern. "Police determined that none of the men was a threat after questioning them, evacuating the plane, and rescreening all baggage." Cerqueira complained that AA wouldn't give him another flight, and sued for discrimination. A jury awarded $130k in compensatory damages and another $270k in punitives.

This is the first case of its kind to come before a jury since 9/11 (other plaintiffs with similar cases have settled out of court). The verdict has some flight crews fearful it will set a precedent and discourage concerned crews from taking action in the future.

Spokesman for the Allied Pilots Association (APA) Captain Denny Breslin told the Boston Herald, "[Ehlers] did what any one of us would have done, especially back in ’03. We’re human beings, not mind-readers. What would [the plaintiff] have us do? Ignore our concerns?"

Air Line Pilots Association spokesman Pete Janhunen said the verdict could impinge on a pilot's authority granted by the FAA. "The pilot in command is responsible for everything that happens involving that flight. We need to ensure that the authority of the captain is protected so that they’re never intimidated or afraid to make the right call."

Update: It's unclear from press coverage whether the lawsuit was over the initial questioning (which inconvenienced everyone) or the refusal to allow Cerqueira to board a second flight, which does seem less defensible. His lawyer's comment implies both, however.

Second update: Matt Heller of Courthouse News has links to the American Airlines motion for judgment and joint pretrial statement. AA's version of the story:

[Cerqueira] acted hostilely toward a flight attendant before boarding the flight, ... boarded the flight out of turn, that plaintiff spent an inordinate amount of time in the lavatory facilities on board the flight before it departed, ... appeared to be feigning sleep during the hectic boarding process, and ... reacted inappropriately to flight crew instructions during an exit row safety briefing. AA further expects the evidence to show that the two passengers seated next to the plaintiff in the exit row approached the captain of the flight before boarding and made strange comments to him, that those passengers made odd comments to passengers aboard the flight, and that those passengers acted inappropriately during an exit row safety briefing.

...State Police and TSA believed it necessary to rescreen all of the passengers and to have bomb-sniffing dogs come aboard the aircraft after another passenger reported that one of the removed passengers had a box-cutter taken away from him at the security check point.

Update, January 2008: reversed by First Circuit. Further update Mar. 2, 2008: Cerqueira responds.

In 2001, six people were in a 1995 Ford Aerostar driving from LA to Las Vegas when a twice-patched tire blew out. The van lost control, and flipped, killing one passenger, and paralyzing plaintiff Fidelia Pillado. This was, she said, Ford's fault, but a jury didn't buy her theory that her seatbelt failed without any physical evidence of damage to the seatbelt, or that the suspension was broken before the tire blew out. A roof defect claim also went nowhere. She had sought $18 million in compensatory and punitive damages. (Chuck Mueller, "Jury clears Ford in crash", San Bernandino Sun, Jan. 13).

The new Cal Biz Lit blog of San Francisco's Adams Nye law firm's managing partner Bruce Nye has an entertaining hypothetical scenario that nicely demonstrates the absurdity of the way California's products liability law (Jan. 4, etc.) hangs together.

Addendum: a commenter asks whether, even though a jury is likely to rule against the plaintiffs in Nye's example, the defendant wouldn't feel intense pressure to settle. Answer: probably not more than a nuisance sum, if that. (Then again, an irrational plaintiff determined to bring this case to trial can impose large costs on the defendant, who, as Nye points out, would be unlikely to win the case before a jury trial because of the alleged factual disputes, increasing the settlement value.) A critical difference is that the damages do not include personal injury. As such, the home insurance probably pays and then decides whether to sue the manufacturer. (Insurers aren't immune to bringing stupid products liability suits against manufacturers: we documented one such case Dec. 20, 2004 involving an unattended toaster.) If a small child had been horribly disfigured or killed by the accident, the scenario changes, and the outside risk of weirdly exorbitant damages unbalances the settlement calculus, as juries are more likely to demand unreasonable measures when hindsight and sophistic trial lawyers suggest the failure to post an armed guard 24/7 next to every washing machine warning people not to wash gasoline-soaked rags was actually evidence of the corporate indifference of the defendant for putting profits before people. (You might scoff, but a regular theme of the Bizarro-Overlawyered site is how corporations are terribly callous for ever deciding that any safety measure might be too expensive. See also Jan. 12 (Edwards on warnings).)

• Life in prison for adulterers, under Michigan law? [Freep]


• An Albany personal injury lawyer favors abolishing pain and suffering damages in negligence cases [Warren Redlich]


• Lott v. Levitt (Jan. 12, etc.) further discussed [Concurring Opinions]


• Call us kitten fish, cont'd: some trial lawyers re-brand as "civil justice attorneys" [Fulton County Daily Report]


• Smokers' freedom defended, by Nobelist James Watson and Canadian columnist Jose Rodriguez [Reason, Calgary Sun]


• Dinesh D'Souza's new book doesn't sound like it's going to do any favors for his reputation. [Slate, Eric Scheie]


• Also from Tim Noah: now that O.J.'s confessed, can the law really not lay a glove on him?[Slate]

Stephanie Mencimer, in a trolling post I really should just ignore, suggests that reformers are just "overprivileged white guys" who have "never flipped a burger" or driven an American car and whose "private schooling and Ivy League bona fides" mean we just want to stick it to the little guy.

Once again Title IX spoils the fun for kids of both sexes, this time in the realm of cheerleading, where school officials, reports the New York Times, are "redefining the role of cheerleaders in response to parental and legal pressures" -- in particular, they're requiring that cheerleaders be forced to devote half their time to cheering girls' sports, “regardless of whether the girls’ basketball teams wanted and/or asked for” them, to quote the New York rule. It would be too much to expect actual criticism of the sacrosanct sex-equality-in-sports law, but the report does make clear that most of the kids involved, including a large share of the girls as well as the boys, don't find the new way of doing things an improvement. "Rosie Pudish, the parent who filed the original complaint, said she did so even though her own daughter, Keri, a varsity basketball player at Johnson City High School, did not particularly want cheerleaders at her games." (Winnie Hu, "Equal Cheers for Boys and Girls Draw Some Boos", Jan. 14) [broken link fixed now]. More: Nov. 2, 2006, May 7, 2005, etc., as well as here and here.

Tomorrow's headlines today on Overlawyered: scarcely had Ted speculated in this space (Jan. 12) about the possibility of warning on water bottles that excessive drinking of water can be fatal, than a sensational news story comes down the wires that a California radio station, apparently ignorant or heedless of the very real risks involved, staged a water-drinking contest which proceeded to kill one of its participants ("Woman drinks so much water she dies", AP/CNN, Jan. 13; Respectful Insolence, Jan. 14). Profs. Childs and Berman discuss the legal implications. More: In an update, Respectful Insolence provides further evidence of the recklessness of radio station personnel; the station's ownership has fired ten of them.

On Jan. 5 we linked a story about an Alabama lawyer who faces serious disciplinary action because he collected a $1.2 million fee for writing a will for a dying man without in fact meeting the man; after the controversy had arisen, voters elevated him to the bench. Now, in North Carolina, authorities are wondering what to do about Judge James Ethridge, "stripped [by the state bar] of his law license in October after deciding he had swindled an ailing, older woman of her home and life savings while he was a lawyer in 2001. ...Without a law license, Ethridge is barred from holding court and signing orders. But he is not barred from keeping the job," in which he has presided over criminal and family cases arising in Johnston, Harnett and Lee counties. "The predicament is getting expensive. ...The state may be forced to pay Ethridge's annual salary of $101,376 until his term as judge ends in December 2008" and in the mean time taxpayers are shelling out for substitute judges to hear the cases. (Mandy Locke, "Disbarred judge can't hold court but holds onto pay", Raleigh News & Observer, Jan. 9).

Update: Per Dr. Mary Johnson in comments, Ethridge has resigned.

These roundups aren't so hard to do once you get the hang of them:

• Boutrous on suit against "recovered-memory" doubter Loftus [W$J]. Earlier: here, here.


• Yet another expose of the "scrumptiousness epidemic" [Beato/Reason]


• OK to challenge jurors based on occupation, Calif. appeals court rules [Egelko/SF Chronicle]


• UK: "Murderer and his fraudster wife are given £20,000 legal aid to fight for an IVF baby" [Daily Mail]


• Truce, seemingly, between class-actioneers Bernstein Litowitz and Milberg Weiss [Koppel/WSJ Law Blog]


• Behind one of the biggest med-mal awards in Canadian history, a question of whether risk of bearing twins was warned of [KevinMD]


• Judge Patel grants class-action status to Costco gender-bias suit [Lattman/WSJ law blog]

About to fly away for the Martin Luther King Day weekend; Walter will approve comments, but there may be delays. I leave you with:

• Judge Senter channels Hugo Chavez: $2.5M in punitive damages in Mississippi for noting that an uncovered storm surge was responsible for the destruction of a $225k house. [Point of Law; Insurance Coverage Blog; Chicago Trib]

• Public Citizen calls medical malpractice crisis a "hoax." Are they right? [Point of Law]
• Mass torts and multiple misjoinders. [Point of Law; Drug and Device Law Blog]
• Sasha Baron Cohen isn't exactly sympathetic to the Borat litigation plaintiffs. [LA Times]
• "High-profile trial looms large for controversial class-action leader" [DC Examiner]

• Still more on warning labels. [Mass Tort Litigation Blog]

• New Jersey Dem wants voting rights for idiots. No, really. [CNN/Reuters]

• I found this tale of a Supreme Court argument poignant [WSJ Law Blog]

• Harris County courthouse "rocket docket": delay people with lengthy metal-detector lines, then throw them in jail when they're late for court. [Kirkendall]

• Different kind of rocket PSA: Don't explode fireworks in your hand. [GruntDoc; Unbounded Medicine (gory)]

There's been a lot of discussion over wacky warnings in the last couple of weeks (e.g., Jan. 8). Professor Jonathan Turley has criticized the wacky-warnings lists as examples of "bad lawyering," rather than bad law; it's essentially an allegation that highlighting these warnings is attack on strawmen. Relatedly, Eugene Volokh expressed skepticism yesterday about the liability rationale for refusing to give aspirin.

Well, what do plaintiffs' lawyers have to say about warnings when these things go to trial? Here's an example from the trial lawyer presidential candidate's mouth:

"[Edwards & Kirby partner David Kirby] had asked [the defendant's chief engineer] a fairly straightforward question: 'Would you agree that the manufacturer of a product has an obligation to inform all of the users of its products of all the dangers that are known that are associated with the use of their product?'

"'I don't believe that.' The reply was chilling."

(John Edwards, Four Trials 197-98 (emphasis added).) Well, I don't believe that, either, and neither do the vast majority of people: that's why there isn't a warning on my bottle of Poland Spring that excessive water drinking can be fatal. But Edwards went on to use that deposition excerpt at trial to argue that the defendant exhibited "corporate indifference."

The warning in question would have been merely redundant and irrelevant, rather than wacky, but Edwards's position can be one of only two things: either (1) omitting the tiniest detail from a list of warnings is "chilling" indifference to safety; or (2) it's perfectly alright for trial lawyers to lie about the meaning of deposition excerpts and misrepresent a reasonable answer as damning evidence.

Separately noted about the District of Columbia Public Library, without comment:

• Number of copies of Four Trials by John Edwards, districtwide: 18.


• Number of copies of Capitalism and Freedom by Milton Friedman, districtwide: 1.

The major claim of libel from the use of "replicates" in Freakonomics was thrown out because it could reasonably be constructed to have an innocent meaning; a smaller claim regarding Levitt's accusations in an e-mail to a single person in response to a solicited query remain. John Lott's link to the decision suggests a world where he isn't going to give up even on the first claim, but that decision is soundly based on the recent precedent in Knafel v. Chicago Sun-Times, 413 F.3d 637 (7th Cir. 2005), a case of relevance to Overlawyered. In Knafel, columnist Richard Roeper criticized a woman suing Michael Jordan over an affair that they had:

In other words, you had sex with a famous, wealthy man, and you claim he promised to pay you $5 million to keep quiet about it, and now you want your money.

Knafel was once an aspiring singer. She’s now reportedly a hair designer. But, based on the money she’s been paid already and the additional funds she’s seeking in exchange for her affair with Jordan, she’s making herself sound like someone who once worked in a profession that’s a lot older than singing or hair designing.

Knafel sued over the column; the court noted that "Roeper almost certainly refers to prostitution when he talks about an 'older' profession," but held that the possibility of an innocent construction permitted a motion to dismiss. (See also Media Law Prof blog from 2005.) And that passage was significantly less ambiguous than that in Lott's case.

(Via Deltoid via Cowen.) Earlier coverage: Aug. 21 and links therein.

Nowadays the response can stop just short of a SWAT team and helicopter rescue, as seems to have happened in this tale from a private home in Carmel, Putnam County, New York ("Broken Thermometer Causes 100 to Respond to Mercury Spill", AP/WSYR, Jan. 2; Q and O, Jan. 3)(via Coyote).

Not according to the view of many in Britain:

The London Solicitors Litigation Association has attacked Government proposals to allow some judges to return to private practice, warning that public perception of judicial impartiality could be compromised. The body, which represents around 800 City litigators, called the proposals "a retrograde step".

("The Water Cooler", Times Online, scroll to Dec. 13). For the benefit of international readers, it should be noted that retired judges in the U.S. can and often do return to private practice. Most elect to practice relatively sedate forms of law, but an exception familiar to Minnesotans is former federal judge Miles Lord, whose personal injury practice, established after he departed his controversial tenure on the bench, has taken out full-page Yellow Pages ads touting his background.

Maybe its time to join FoxNews.com in putting quote marks around rape in the headline ("Duke Lacrosse 'Rape' Accuser Changes Story Again, Says Seligmann Didn't Touch Her", AP/FoxNews.com, Jan. 11; Joseph Neff, "Accuser changes story in lacrosse case", Raleigh News & Observer, Jan. 11). Dorothy Rabinowitz of the Wall Street Journal is one who isn't laughing ("The Michael Nifong Scandal", OpinionJournal.com, Jan. 11).

AEI lets me spend up to a day a week working on outside matters. I hadn't done any litigating in a while, so when a pro bono opportunity for a good cause presented itself, I took it. Many other bloggers have already spoken on the issues presented by Abigail Alliance v. von Eschenbach, regarding the circumstances under which the FDA has the constitutional power to bar terminally-ill patients from being able to take potentially life-saving doctor-recommended drugs that have achieved Phase 1 approval, but have yet to receive Phase 2 approval from the FDA. (E.g., Jonathan Adler, Derek Lowe, Hans Bader, Orin Kerr, Eugene Volokh, Randy Barnett, Alex Tabarrok.) A 2-1 panel of the D.C. Circuit put limits on the FDA's powers, but the full D.C. Circuit vacated for en banc review. With the able assistance of attorneys at O'Melveny & Myers LLP, Jack Calfee and I put together a group of all-star economists—Calfee, Dan Klein, Marginal Revolution blogger Alex Tabarrok, Ben Zycher, and one of my heroes, Sam Peltzman—and submitted an amicus brief on their behalf to the D.C. Circuit. While the case presents interesting issues of the due process clause and constitutional standing, the brief focuses on the economic issues underlying FDA drug regulation and the effect of the original panel's decision on drug and medical safety.

Amicus brief (pdf).

Eugene Volokh reasonably asks why he can't get an aspirin when he has a headache in a restaurant. The fact that we're posting this can give you a clue to the answer, but dozens of people educate him in the comments to his post.

The Anthony Pellicano wiretap scandal grinds on: Per a new report in the New York Times, attorney Terry Christiansen was happy to feed investor Kirk Kerkorian information obtained by Pellicano's wiretaps on Kerkorian's ex-wife, though no one has charged the investor with knowing about the taps. A lawyer for Christiansen terms the report "totally unfounded" and "a pack of lies". (David M. Halbfinger and Allison Hope Weiner, "Lawyer Gave Information to Kerkorian", Jan. 10).

Not entirely unrelatedly, a front-page report in the Wall Street Journal last month takes note that "Hewlett-Packard Co.'s much-criticized campaign this year to trace boardroom leaks has made 'pretexting' a dirty word in corporate circles. But the H-P project was far from the first to rely on pretexting, which generally involves impersonating people to get their phone or financial records, a review of recent business history shows. The practice for years has been almost a commonplace tool, resorted to in efforts ranging from commercial litigation to divorce fights to the search for deadbeat borrowers." (John R. Emshwiller, "Hewlett-Packard Was Far From First To Try 'Pretexting'", Dec. 16). Hmmm... which profession is it that regularly gets involved in commercial litigation, divorce fights, and the search for deadbeat borrowers? Former HP general counsel Ann Baskins resigned after her role in failing to prevent the pretexting scandal came to light. How much company would Baskins have if the legal profession suddenly got serious about 'fessing up to the practice? (Paul McNamara, "A deep look at the role HP's top lawyer played in spy scandal", Network World, Dec. 21; Sue Reisinger, "Did Ann Baskins See No Evil at HP?", Corporate Counsel, Dec. 18).

• What assumption of the risk? $10.5 million jury verdict against airport in death of pilot for failure to rescue him in time after he crashed experimental plane. [Daily Herald]
• Dontdatehimgirl lawsuit (Jul. 6) update. [Bashman]
• The effectiveness of public defenders. [NYT; Expresso; Talk Left]
• And see also the new blog of an HLS-educated public defender in the Kafkaesque New Orleans criminal justice system. [Do Not Pass Geaux]
• Epstein on pharma, again. [Mass Tort Litigation Blog]
• "Your transactional lawyer just increased your lifespan. Aren't corporate lawyers great?" [ATL]
• Perhaps the best MSM look at the effects of a minimum wage increase I've seen. [WaPo]
• Speaking of public policy, a nice view of Canada's single-payer healthcare. [Frum]
• Did the New Deal prolong the Great Depression? [Marginal Revolution]

Lawyers representing the recording industry have long been accustomed to demand $750 per downloaded song from alleged infringers, which cumulates into terrifying aggregate liability for many an individual defendant. In a case called UMG v. Lindor, attorney Ray Beckerman is advancing the argument that awards should instead be limited to the industry's actual losses. (Capping awards at the level of actual damages -- imagine that!) He's also asking for discovery into the industry's wholesale pricing arrangements by way of ascertaining what those actual damages might be. The industry really, really doesn't want to disclose that information, so this should be interesting. (Eric Bangeman, "RIAA fights to keep wholesale pricing secret", Jan. 3; Nick Farrell, "RIAA's price secrets probed", The Inquirer, Jan. 5).

Now, this is ridiculous: at the URL http://www.overlawyered.blogspot.com/ (no, I'm not going to give it a live link) someone or other has erected a pseudo-blog under the heading, "Overlawyered", followed by a verbatim swipe of the paragraph ("Overlawyered explores an American legal system...") which for years stood atop this site's sidebar and currently stands atop our "about us" page. The imitation-Overlawyered blog has relatively little content, but one of its entries (dated May 05, 2006) consists of excerpts swiped verbatim from a post of Ted's of Feb. 16, 2006 on this site about a South Texas legal case.

Other content on the pseudo-Overlawyered site suggests that the author(s) take an interest in the South Texas legal scene, and have established a large group of blogspot entities which blogroll each other under the banner of "Team Kenedeno" (more at http://teamkenedeno.blogspot.com/). These interlocking sites often sport not very accurate names such as corpuschristicallertimes.blogspot.com, microsoftdotcom.blogspot.com, and exxonmobile.blogspot.com, and at least one of them (at http://wattslawfirm.blogspot.com/) also contains a more extensive verbatim swipe from Ted's Feb. 16, 2006 post, mentioned above.

I looked around for a while, but failed to find any appropriate "report abuse" procedure on the Blogspot/Blogger site. The nearest thing was a "Flag Objectionable Content" button which apparently triggers a review for hate speech, obscenity, etc., but does not offer any way of reporting the rather different problem arising here. Reader suggestions are welcome.

Update from Ted: "We've contacted the appropriate people. Thanks for everyone's help."

So the AP reports. Earlier press reports indicated that the two were close to a deal, but one suspects that the failure to close it before the sensation created by the announcement at MacWorld led Cisco to raise its price. Overlawyered readers anticipated the story Dec. 18. (Update: Ashby Jones has more detail.)

Further update: Cisco responds in the comments. NB that "raise its price" above doesn't necessarily mean "money," but can include other valuable consideration—such as access to Apple's proprietary technology.

Justinian Lane responds to my recent Liability Outlook about the Buell-Wilson case (Jan. 4 and links therein). The PDF version has pretty typesetting and graphics in lieu of substance, though I question the choice of Futura (a sans serif typeface designed for display) as the font for the main text, as well as the use of oversized bullets.

I was especially impressed that Lane responded to my criticism of the inaccuracy of the court’s description of the case by quoting the court’s description of the case, and my criticism of California evidentiary rules by citing California evidentiary rules. Lane doesn't explore the implications of his explicit contention that juries get it right only seven percent of the time, an even better argument for reform if it were true than the one I made. Ironically for a piece that purports to "set the record straight," Lane has more misrepresentations of my argument and factual errors than I have time to spend counting.

To take a non-obvious one, Lane's description of the Grimshaw case is incorrect (or at least poorly worded, depending on what he means by "backfired"): comparative evidence in that case showing that the Pinto was safer than other subcompacts and no more likely to explode was excluded over Ford's objection. (In the famous case against Ford brought by state prosecutors over the Pinto, Ford was allowed to introduce that evidence, and an Indiana jury acquitted Ford.) I leave it to the error- and non-sequitur-seeking reader to peruse Lane's other arguments, including the claim that the amount of the award against Ford is justified because Lee Raymond contracted with Exxon to receive stock options that, after the share price went up, turned out after the fact to be worth a lot of money.

But let's give credit to Bizarro-Overlawyered for their new tack of acknowledging the existence of other arguments, even if they still can't bring themselves to address them head-on or link to what they purport to be commenting on. Judge for yourself.

If ever you wonder while trial lawyers have a bad reputation, there's no need to invent sinister conspiracies between moderate Supreme Court justices and the Chamber of Commerce. Just take a look at the affidavit of one of the leading lights of the plaintiffs' class-action bar, Bill Lerach, as he tries to argue to a court that his client cannot fire him. Roger Parloff did, and the results are entertaining; and other journalists could certainly learn a lesson from Parloff's skepticism and willingness to read between the lines. Earlier: POL Dec. 15 and Dec. 28.

Just sending out batches of letters claiming infringement and demanding money may no longer be a workable business plan:

Based in the British Virgin Islands, Eon-Net is run by an evangelical minister-cum-inventor, who holds several patents (including one on a device for collecting "canine waste"). In March 2005 the company filed a patent suit in New Jersey against Flagstar, a $16 billion savings bank based in Michigan. The bank was one of 32 companies sued separately by Eon-Net for infringing a patent that, the company claims, covers technology that allows online shoppers to enter information into Web sites and have it transferred to the Web retailer's computer. Eon-Net, which also has pending litigation against JetBlue Airways and Liz Claiborne Inc., had successfully extracted settlement money from ING Bank and Sony Corp. over the same patent.

Eon-Net's enforcement method involved filing a complaint followed by a letter offering a settlement ranging from $25,000 to $75,000.

Flagstar decided to fight the suit, and its attorney, Melissa Baily of Quinn Emanuel, noticed that Eon-Net's lawyers "had used nearly identical complaints and demand letters in all 32 suits," suggesting a lack of careful advance investigation. Although Rule 11 sanctions are especially hard to obtain in the Ninth Circuit, Western District of Washington Judge Marsha Pechman agreed that the suit was both baseless and made without reasonable inquiry and, after ruling in favor of Flagstar on summary judgment in the case itself, ordered Eon-Net and its attorney, Jean-Marc Zimmerman, to pay the bank's defense costs, estimated at more than $100,000. (Xenia P. Kobylarz, "Patent Trolls Put on Notice Over Generic Infringement Letters", IP Law & Business, Dec. 14).

A reader from Australia writes, apropos of no post in particular:

Guys, I broadly agree with your website -- personal injury litigation is out of control.

As a lawyer though, I think you're missing the other side of the coin: that the system for necessary cases, ie suing someone who owes you money, is too long, and too complex. In my view the inefficiency of the legal system is a far bigger problem. Perhaps you could highlight this in some stories?

After all, having a quick efficient legal system to enforce the law is crucial in a modern economy.

Roger Parloff thinks history will look back on it as a turning point in the history of the GWB presidency, if not the Court (Jan. 8).

Accounting firm Accenture sends its outside counsel a seven-page questionnaire asking them to compile "the number of ethnic minorities, gays and lesbians, and women at the entire firm, on management committees, among student and lateral recruits, and among those attorneys working on Accenture matters." Firms that refuse to fill out the questionnaire or fail to reduce the percentage of white straight male attorneys working for them from year to year are fired, even if their work is satisfactory. Again, the press coverage is entirely laudatory, without questioning whether it should be at all appropriate to judge attorneys by skin color and quotas. It's also poorly edited: a "Stern" is quoted several times without identification. (Aruna Viswanatha, "On Diversity, It's Shape Up, or Ship Out", Corporate Counsel, Jan. 9). Earlier: Dec. 27.

The Council of Fashion Designers of America will issue guidelines discouraging anorexia-suggestive degrees of emaciation but won't attempt to enforce any binding rules. "Those people could sue, in America they could sue everywhere for prejudice or discrimination," said council president Stan Herman when the issue came up in the fall. "I wouldn't touch it with a 10-foot pole." ("New York fashion group to issue guidelines on skinny models", AFP/Breitbart, Jan. 8; "Skinny model ban 'discrimination'", AFP/News.com.au, Sept. 16).

"Gail McDoe admits her 16-year-old son never should have been driving that car in 2005. He was the one who set off the chase with police, ending in a fiery crash that killed him." Nonetheless, her $5 million lawsuit against the city of Newburgh, N.Y. alleges that cops should not have been so aggressive in chasing Dionte Jones and should have acted more quickly to attempt a rescue after he flipped his car into a gas field full of fuels and hazardous chemicals. The city's in-house lawyer says an investigation indicates Jones died instantly and would not have been helped by a rescue attempt. (John Doherty, "Mother wants Newburgh police to share burden of son's death", Middletown Times Herald-Record, Jan. 6).

It's back on YouTube (via Prof. Childs and Nicole Black).

• Get in car with drunk driver, sue manufacturer and win $18.6M when you get hurt; lawyers fight over lottery-victory fees. [Andrews; Journal Star]
• LA Times decides that maybe preventing prison race riots isn't so bad after all. [Patterico]
• Why LA jail cells are revolving doors. [LA Times]
• Popular coffee stand shut down because of government-mandated preferences for blind. [NYT]
• The special interests behind the call for additional hedge fund regulation. [Cafe Hayek]
• The ethical practice of legal scholarship. [Prawfsblawg]
• The Wag-Time/Stephanie Mencimer arrest scandal keeps getting weirder and weirder. [Murray Waas @ HuffPo; Circumlocutor]

David Rossmiller blogs:

My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: "I can see someone doing that!" Personally I've seen folks do much more ridiculous things many times.

Such overwarnings have real social costs: as numerous studies have documented, if one's personal watercraft manual says "Never use a lit match or open flame to check fuel level," one's going to be less likely to slog through the whole thing and find the warnings that aren't so obvious. In many cases, the "failure-to-warn" is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus "hiding" its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level—and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.

The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a "Do not iron" warning on a lottery ticket is infinitesmal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credible or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases—such as the McDonald's coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn't "big enough" to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds—aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.

Chad M. Doherty wasn't married to Christy M. Wizner when their daughter was born in April 2004, but he nonetheless wanted the child to bear the surname Doherty and objected to the mother's bestowing on her instead the surname Wizner. Both sides lawyered up and have been duking it out in court ever since. A trial judge ruled in the father's favor, finding it of significance that Wizner was the name of the mother's former spouse but not the mother's birth surname. The Oregon Court of Appeals, invoking an 11-factor balancing test, reversed the ruling and allowed the mother's choice to prevail. The mother says she wants the girl to bear the same surname as her older siblings. (Ashbel S. Green, "For a baby name with appeal, try appeals court", The Oregonian, Jan. 1).

P.S. I see J. Craig Williams got this first (Jan. 3)(via Blawg Review #90 at Minor Wisdom).

Tennessee: "A Murfreesboro man charged with animal cruelty after more than 100 frozen bodies of cats were found in freezers in his home is suing authorities for $1.5 million. The lawsuit was filed exactly three years after authorities confiscated 114 frozen bodies of cats and kittens from William Terry Davis' home in an upscale golf course community in Murfreesboro." Davis is represented by attorney Harold H. Parker. (Clay Carey, "$1.5M suit filed over frozen cats", Gannett/Murfreesboro Daily News Journal, Jan. 6; The Smoking Gun; "Man Sues Police For Seizing Frozen Cat Bodies From His Freezer", AP/WTVF, Jan. 6; Nashville Scene, Jan. 5).

• New York Times hoisted by its own petard. [Point of Law]
• Insult to injury: spammer sues spam victim. Earlier: Nov. 8; Jan. 28, 2005; Dec. 8, 2003. [Time; Concurring Opinions]
• Securities class actions down: what does it mean? [Point of Law]
• When should Daubert motions be resolved? [Hutchinson; Nordberg]
• Nardelli's $210 million severance. [Point of Law; Contrarian's Edge; Ideoblog; Sloan @ WaPo]
• "We don't think you should get [school] credit for just being alive." [New York Sun]
• Gerald Ford and impeachment. [SCOTUSBlog; NRO; Point of Law]
• Therapy animals redux. [New Haven Register (dog); NBS (chicken) (via ATL)]

Philip Howard himself has an op-ed on the subject in today's Wall Street Journal.

In today's WaPo, Spencer Kim, the father of James Kim, the father of two who died of hypothermia after his family became lost in an Oregon park, notes the effect that privacy laws and liability concerns had on the search:

Congress should change the law so that most recent credit card and phone-use records can be immediately released to the next of kin in the event of an emergency. Privacy laws are important to safeguard personal information, but there needs to be provision for exceptional access to information by relatives when it is critical to a family member's survival.

Four days passed before we even knew James and his family were missing. But because my family was unable to confirm credit card and phone-use information until days after their absence was discovered, the start of the search was needlessly delayed. Precious time and a precious life were lost. Privacy concerns kept both the hotel where James and his family last stayed and the restaurant where they last dined from sharing credit card records, thus denying us for days important clues that would have helped narrow the initial search area.

November's results obviously make it more of an uphill slog for legal reformers to win legislative victories; a roundup in Inside Counsel provides some details, quoting me along the way. (Mary Swanton, January). I venture a prediction that Democrats will use their new Congressional power to push legislation that would expand private causes of action in the employment field, a step that would gratify the plaintiffs’ bar and many union advocates alike. Contrary to an implication that the article may leave, private causes of action are at present very much alive and thriving in the wage and hour field, but they're not (yet) authorized in the case of many other sorts of labor-law violations.

The wire service reports on this year's M-LAW competition (see Jan. 4) (David N. Goodman, "Keep People Out of Wash, Label Warns", AP/MyWay.com, Jan. 5). Aside from the ones mentioned by Ted the other day, a notable entry was the second-prize winner, found on a personal watercraft, "Never use a lit match or open flame to check fuel level". Burma-Shave got there decades earlier:

He lit a match/
To check gas tank/
That's why/
They call him/
Skinless Frank

Bob Dorigo Jones' new book Remove Child Before Folding is here.

"Why do people bring lawsuits for such trivialities?" Judge Richard Posner, a notoriously tough jurist, asked Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. "Have they been harmed, these 'Gifties'?"

Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:

I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.

Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.

But one need not go even this far. The real flaw of Lane's thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders' conception of trial by jury. See generally Professor James Oldham's book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.

"The state bar ordered that Stuart DuBose's law license be suspended because of his role in an estate in which he collected a $1.2 million fee for writing a client's will without ever meeting the dying man." And DuBose faces a possibility of even sterner disciplinary action, such as a longer suspension or even disbarment, because the "Alabama Supreme Court ruled that the 45-day suspension wasn't sufficient punishment for his actions." However -- and this is the part that really makes the story so perfect -- DuBose is not exactly hurting professionally at the moment because voters in November elected him to be the circuit judge for Choctaw, Clarke and Washington counties despite publicity over the allegations. Although his official term does not begin until Jan. 15, he has already been sworn in. According to one newspaper account, disciplinary action could affect his ability to serve as judge. ("Jackson attorney still under ethics cloud takes oath early", AP/AL.com, Dec. 23; Jim Cox, "Area lawyers once against, now for DuBose judgeship", Clarke County Democrat, Dec. 14; Evan Carden, "DuBose takes oath to be circuit judge", Clarke County Democrat, Dec. 28).

Bill Dyer (Dec. 30), following up on Stephen Bainbridge (Dec. 28), has some thoughts about "whether Edwards' career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President." Along the way, he has some kind things to say about the authors of this site, which are much appreciated.

The question of what sort of pro bono work Sen. Edwards did during his legal career has also been getting attention recently (as in this guest post at Andrew Sullivan's). For our take on that, see Jul. 27, 2004.

My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:

It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.

I have a related letter to the editor in the Jan. 1 Legal Times. See also POL Dec. 13, OL Dec. 12, OL Jun. 3, 2004.

"The larger threat posed by American medicine is that more and more of us are being drawn into the system not because of an epidemic of disease, but because of an epidemic of diagnoses. ... Medico-legal concerns also drive the epidemic. While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally — even when we wonder if doing so really helps our patients." (H. Gilbert Welch, Lisa Schwartz and Steven Woloshin, "What’s Making Us Sick Is an Epidemic of Diagnoses", New York Times, Jan. 2).

Bob Dorigo Jones sends us the following note:

Happy New Year!

This is a quick note to let you know that on January 4, Warner Books officially releases Remove Child Before Folding, the 101 Stupidest, Silliest and Wackiest Warning Labels Ever, a new book based on M-LAW’s annual Wacky Warning Label Contest. Kicking off the media coverage will be NBC’s Today Show which is scheduled to air a segment Thursday morning at 7:50am Eastern Time. Sorry for the short notice.

According to the Today Show schedule, which is always subject to change, Matt Lauer and the rest of the cast will discuss the book and try to guess which warning labels go with the various products. Not coincidentally, M-LAW also announces the winners of our 10th annual Wacky Warning Label Contest tomorrow.

Of course, this is fun stuff, but we do this for a serious reason, too -- to get America talking about how excessive litigation is changing our culture in ways that aren’t so good for our families and communities. Since its inception, M-LAW’s wacky label project has been quoted on the floor of Congress, in speeches by CEO’s of Fortune 100 companies, and by authors of numerous books as proof that common sense legal reform is greatly needed. Remove Child Before Folding is available at all major bookstores and all royalties go to fund efforts to restore fairness and reliability to the courts.

Best wishes for a great 2007!

Bob
P.S. Tomorrow morning, click on the following link to see which label was voted the wackiest of 2007 -- http://wackywarnings.com

Update: The 2007 winner was “Do not put any person in this washer.” I much preferred runners up “Please do not use this [Yellow Pages] directory while operationg a moving vehicle" and “Don’t try to dry your phone in a microwave oven."

Usually it's Ted who posts these, but I don't see why he should have all the fun:

• Latest ADA test-accommodation suit: law school hopeful with attention deficit disorder demands extra time on LSAT [Legal Intelligencer]


• John Stossel on Fairfax County (Va.) regulations against donating home-cooked food to the homeless, and on the controversy over Arizona's Heart Attack Grill


• More odd consequences of HIPAA, the federal medical privacy law [Marin Independent Journal via Kevin MD; more here, here]


• UK paternalism watch: new ad rules officially label cheese as junk food; breast milk would be, too, if it were covered [Telegraph; Birmingham Post]; schoolgirl arrested on racial charges after asking to study with English speakers [Daily Mail via Boortz]; brothers charged with animal cruelty for letting their dog get too fat [Nobody's Business]


• Stanford's Securities Class Action Clearinghouse reports impressive 38 percent drop in investor lawsuit filings between 2005 and 2006, with backdating options suits not a tidal wave after all [The Recorder/Lattman]


• Ohio televangelist/faith healer sued by family after allegedly advising her cancer-stricken brother to rely on prayer [FoxNews]


• Legislators in Alberta, Canada, pass law enabling disabled girl to sue her mom for prenatal injuries; it's to tap an insurance policy, so it must be okay [The Star]


• California toughens its law requiring managers to undergo anti-harassment training, trial lawyers could benefit [NLJ]


• Family land dispute in Sardinia drags on for 46 years in Italian courts; "nothing exceptional" about that, says one lawyer [Telegraph]


• "For me, conservatism was about realism and reason." [Heather Mac Donald interviewed about being a secularist]

Deep in a comment thread on a blog that I shouldn't be wasting time reading, trial lawyer Lee Tilson writes as an argument against reform "Our imperative should be to reduce medical errors."

But there's a very easy way to reduce medical errors: abolish the practice of medicine, and doctors won't commit medical errors any more.

That clearly isn't an improvement over the status quo, and this illustrates the flaw in Tilson's argument: he's asking the legal system to solve the wrong problem. Better for a legal system with rules that effectively tolerate some more Type I errors if by doing so eliminates even more of the Type II errors from doctors deterred from practicing at all. Society should be happy with a tradeoff of more doctors for somewhat more medical errors if the net result is better medical care for all. At what level of malpractice liability will medical care be optimized? The data indicates the needle has moved too far in favor of liability: reducing liability (say, through caps) improves health-care outcomes such as infant mortality. The deterrent effect of outsized liability on practice more than outweighs the deterrent effect of liability on malpractice. (As I've noted at Point of Law, even serious academics make this mistake.)

There are ways to achieve reform without Type I/Type II tradeoffs. Improving the accuracy of the justice system would hypothetically reduce both Type I and Type II errors; this is the principle behind the Common Good health courts proposal. That the trial bar fights so hard against even so much as establishing such courts on an pilot basis shows how much they really care about "medical errors" as opposed to their own pockets.

• Judge rules paper money illegal under Rehabilitation Act, criticized by National Federation of the Blind
• Taxpayer bill for dog food meal: $2.7 million until the mayor vetoed the settlement
• More on the great 1998 tobacco robbery
• Place kicker cum Illinois Supreme Court justice wins $7 million libel judgment against newspaper daring to criticize him.
• Woman hits truck, sues truck-trailer manufacturer, wins millions
• Thomas Frankovich suspended for vexatious ADA filings
• Obnoxious Chi Psi frat boys sue Borat
• Welsh dragon sausages. Warning: does not contain dragon
• "Wrongful birth" suits reach Germany
• Activists sue, demanding foie gras ban
• Lighter manufacturers ask for more CPSC regulation

The humor website Chickenhead publishes a parody of the famous Daily News headline "Ford to City: Drop Dead" and promptly receives a threatening letter from lawyers for the Gotham tabloid (Dec. 29; mild tastelessness).

Christopher Taylor, at Word Around the Net, has nominated his choices for top ten outrageous lawsuits of 2006, giving us an appreciated acknowledgment along the way (Jan. 2). And I have a few critical things to say at Point of Law (Jan. 3) about the curiously narrow selection process by which some legal analysts nominate Top Threats To Civil Liberties.

Atlanta: "The term 'litigious' is frequently tossed about in legal circles, but on Wednesday its apparent embodiment stood in shackles before a Fulton County, Ga., judge who patiently heard him out before sending him back to the jail where he had spent the night." 88-year-old attorney Moreton Rolleston, Jr., "who in October was feted for 50 years as a member of the Georgia Bar" and who once represented himself as the owner of the Heart of Atlanta motel in a landmark Supreme Court discrimination case, has been battling for 11 years "to avoid paying a $5.2 million judgment from a 1995 malpractice case brought by the estate of a former client". "Rolleston has sued the [late client's estate and lawyer], he sued the sheriffs of Fulton and Glynn counties, he sued the purchasers of properties sold to pay the judgment -- he even sued the original trial judge, Isaac Jenrette." "No one has been given more opportunity to have his day in court; and day, and day, and day, at great expense to all," said the opposing attorney, Shelby A. Outlaw. (Greg Land, "In Shackles, 88-Year-Old Lawyer Argues His Case -- and Loses Again", Fulton County Daily Report, Dec. 11).

From the United Kingdom: "A devout Christian who said an accident at work boosted his libido and wrecked his marriage as he turned to prostitutes and pornography was awarded more than 3 million pounds in damages [last month]. Stephen Tame, 29, from Suffolk, suffered severe head injuries in a fall, transforming him from a loyal newlywed into a 'disinhibited' character who had two affairs." (Reuters, Dec. 19; Rajeev Syal, "Man whose head injury inflamed his sex drive wins £3.2m payout", Times Online, Dec. 20; Kathryn Lister, "£3m compo for sex mad hubby", The Sun, Dec. 20).

Overlawyered has been accorded that honor in the Blawg Review 2006 Awards. Thanks! The latest (#89) edition of Blawg Review, incidentally, is here.

My sincerest thanks to all three of the guestbloggers who (along with Ted) have kept things lively over the past two weeks: George M. Wallace, whose work you can follow at Declarations and Exclusions and A Fool in the Forest; Kevin Underhill of Lowering the Bar; and Skip Oliva of the Voluntary Trade Blog. Well done! I also notice that the comments section has been humming along busily. I should go away more often.

I’d like to thank Walter and Ted for letting my play in their sandbox this past week. Before I go, I’d like to highlight a few more antitrust cases and stories to watch in 2007:

In the next few weeks, the FTC is expected to issue a final order in its five-year case against Rambus Inc., a California-based developer of memory technology. Rambus has proven to be the longest and possibly costliest litigation in FTC history. The FTC’s trial costs alone approached $3 million, with over $1 million going to “expert” witnesses and consultants.

The Rambus case started as a patent infringement dispute between the company and several memory manufacturers. Rambus doesn’t produce any memory itself; it develops and patents technologies and licenses them to manufacturers. During the mid-1990s, Rambus participated in a memory standard-setting group, JEDEC, and this is where the trouble began. The manufacturers claim Rambus misled JEDEC into incorporating Rambus patents into certain memory standards. Rambus said it was denied permission to present its technologies for standardization and that JEDEC members simply infringed Rambus’s patents.