February 2007 Archives

• Reader James Huff passes along this (Bloomington) Pantagraph story from last October of a lawsuit in Illinois over a police shooting of a driver after a car chase. The driver was drunk and had multiple drug convictions for which he was on probation at the time of the incident. The officer said he shot the driver when the driver tried to run him down. Of course, it's Not About The Money:

  Dorris said Ruch’s parents, Jack and Margery Ruch, are more interested in details of the incident becoming public than collecting a financial settlement.

  “The thing the Ruch family wants the most is to search for the truth,” Dorris said. “If we have to try this case to get that, then it’ll be tried.”

  That didn't stop them from requesting that the details of the settlement remain private, though. They later changed their mind after the local paper sued; they settled for $750,000.

• Via Howard Bashman: on Monday, the Sixth Circuit reversed a lower court opinion finding the police liable when a drunk driver killed another driver. The court agreed that (treating the victim's allegations as true) the police were incompetent, but incompetence does not create a violation of constitutional rights. (Whatever happened to "Don't make a federal case out of it?") The opinion is here (PDF).

Michael Kinsley famously defined a "gaffe" as when a politician accidentally tells the truth. If so, plaintiff's lawyer Anthony Buzbee committed an awfully big gaffe last year (caught on tape!), as Peter Lattman explains in the Wall Street Journal's Law Blog (See also W$J). It's an open secret that trial lawyers venue shop for the best possible jurisdiction to file a lawsuit, but they rarely describe it openly, particularly in stark racial terms:

"That venue probably adds about seventy-five percent to the value of the case," he said. "You've got an injured Hispanic client, you've got a completely Hispanic jury, and you've got an Hispanic judge. All right. That's how it is."

In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing "here's what the company did wrong, all right? But when you’re in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that's the hurdle: Just prove that he wasn't hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases."

Buzbee's a trial lawyer, not a politician, so his reaction is entirely predictable: as per the Galveston County Daily News (and press release from Buzbee's lawyers), Buzbee is suing the people who ran the seminar and those who allegedly taped him, claiming that he agreed to give his talk on the condition that it not be recorded, and further claiming that circulating the tape was done to "damage his career." It seems to me that "The truth will damage my career" is perhaps not the smartest p.r. strategy, but I guess we'll see how his suit goes.

Despite its calamitous and demagogic handling of Katrina flood insurance claims, it's worth recalling that Mississippi has taken great strides toward cleaning up its formerly sorry reputation in other legal areas, personal injury litigation in particular. One business that seems to have noticed, per Pat Cleary at NAM (Feb. 28) is Toyota, the same company that passed over the Magnolia State in a plant-siting decision three years ago (see Apr. 30, 2004). The new Highlander assembly plant, be it noted, is to be located near Tupelo in the northeastern part of the state, far away from the storm-surge-peril zone. ("Toyota To Build Highlanders in Mississippi", Car and Driver Daily Auto Insider, Feb. 28).

No, literally: you can't be too careful, or you may get in trouble.

In 2003, the Staten Island Ferry crashed into a pier at full speed, killing 11 people and injuring hundreds, because the pilot passed out; the pilot ultimately pled guilty to manslaughter. Victims and their families promptly sued New York City, which owns and operates the ferry. On paper, NYC had very tough safety rules, requiring two pilots to be in the pilothouse at all times, just in case; however, it turns out that this rule was not always followed.

On Monday, this abundance of caution came back to bite the city; a federal judge hearing the case held that the existence of these rules could actually be a factor in its liability (NYT):

The city had also argued that because its two-pilot rule was stricter than required by general negligence principles, the violation of the rule did not constitute negligence. In any case, the city said, individual crew members, not the city, were at fault.

But the judge, Edward R. Korman of United States District Court in Brooklyn, rejected those arguments. He wrote that by adopting the two-pilot rule, the city acknowledged a serious risk of accident if the pilot were incapacitated, and that knowledge of that risk required the city to remedy it.

(The judge naively pooh-poohed this risk, arguing that a "rational company" would be "far more concerned with actually preventing accidents than with gaming future negligence actions by carefully crafting its safety manual," as if a company knew beforehand which accidents were "actually" going to happen.)

N.B.: I should clarify that the city may actually have been negligent in this particular instance; I'm critiquing the principle the judge espouses, rather than its application here.

Walter stole my thunder on the dismissal of the blog comment lawsuit against Lycos, but I thought it raised an important point. One of the common refrains of the Trial Lawyer crowd is that tort reform is not needed, because there are already mechanisms for the courts to deal with frivolous litigation, and because contingency fees mean that plaintiff's lawyers have no incentive to take on meritless cases. The theory of tort reformers, on the other hand, is that the lottery nature of litigation means that plaintiff's attorneys can take on long shot cases, because they only need to win a handful of "deep pockets" suits to come out ahead.

Which theory best explains lawsuits like this one? It's difficult for Section 230 of the Communications Decency Act to be much clearer. It grants (as the First Circuit noted) "broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet." This isn't controversial; the First Circuit described its decision as "joining the other courts that have uniformly given effect to Section 230 in similar circumstances." (Emphasis added.) So why would the plaintiffs not only sue on such a meritless theory, but actually appeal after losing in the District Court?

(I should note that I don't have any specific evidence that this was a contingency case; nonetheless, the larger issue -- namely, how can we successfully disincentivize plaintiffs and plaintiffs' lawyers from bringing meritless suits -- remains. Immunity from liability is great -- but it isn't the same as immunity from litigation. Lycos won this suit -- twice -- but how much did these victories cost?)

UPDATE: I had forgotten that the plaintiffs in this case, UCS and its CEO, Michael Zwebner, and their lawyer, John Faro, are no strangers to Overlawyered; they're the same folks who sued Wolf Blitzer because of posts on Lycos's message board from an anonymous poster who used the screen name Wolfblitzzer0. (See also updates on March 12, 2005; October 15, 2005).

We reported Jul. 25 and Aug. 4, 2003 on the case of Stella (or Estella; accounts vary) Romanski, who was banished from the Motor City Casino in Detroit after taking and playing a nickel from an unattended slot machine. The casino said it was enforcing a policy against "slot walking", the practice of roaming unused machines in search of overlooked coins, but a jury awarded Romanski $875,000 in punitive damages. Reader F.L. now calls our attention to the record (PDF) of U.S. Supreme Court actions taken Oct. 2, 2006, which shows that the high court denied the writ of certiorari sought by the casino.

But if anyone was wondering, that still doesn't mean we're going to let anything and everything pass in the comments section here. (American Constitution Society Blog, Feb. 26 (via GruntDoc); Reynolds, Feb. 26) (Universal Communication Systems v. Lycos).

Attorney Donald Caster writes from Cincinnati:

OK, I'll admit it: I'm a "trial lawyer," and I usually disagree with Overlawyered's point of view. (In fact, usually when I read the blog, I'm thinking about what a great job a particular lawyer did to get the result that you're now protesting.) But I get nearly as agitated as you folks do over the abusiveness of coupon settlements in class action cases, and I just got notice of such a settlement myself.

Below I've cut and pasted the exact text of the email message I received notifying me of the settlement. The class action has its own website at www.browningsettlement.com. As you can see, the defendant is Experian, and the plaintiffs claim that they made some sort of representations on a website that violated the "Credit Repair Organizations Act."

Class counsel is set to take over $2.5 million in fees. The "benefit" to the class? A settlement in which class members get either (a) a free credit score, or (b) free credit monitoring for two months. And oh, by the way, if you take the latter option, you have to remember to cancel the monitoring, or you'll automatically start getting billed $9.95/month for credit monitoring after sixty days. That reeks of a lack of arms-length negotiation between class counsel and the defendant (what a great deal for the defendant--they get new customers in exchange for settling a class action lawsuit!).

Pop quiz: the police try to pull over a car, and the driver, instead of slowing down, flees at high speed. The police should (A) Let him go; (B) Keep chasing him, and pray that he doesn't kill anybody; or (C) Try to physically stop him by bumping his car with theirs.

Okay, here's the real pop quiz: which of those will not result in taxpayers getting the shaft and trial lawyers making out like bandits? We know from experience that the answer is not (B). The Supreme Court heard oral arguments (PDF) on Monday in a case entitled Scott v. Harris to decide whether (C) is a viable option.

Harris was a 19-year old driver in Georgia who was doing 73 in a 55 MPH zone; when police tried to pull him over, he sped up and tried to escape, reaching at least 90 miles per hour on a two-lane road. Police officer Scott joined the chase, and after Harris drove recklessly for about 10 minutes, running red lights and weaving through traffic on the wrong side of the road, Scott bumped his car to stop him. Unfortunately, Harris lost control, crashed, and was rendered a quadriplegic. A sad ending for Harris, to be sure -- but in a sane world, his fault. In our world, of course, he immediately sued Scott for violating his fourth amendment right not to be "unreasonably" seized.

Over at the Volokh Conspiracy, Orin Kerr, who co-represented Scott on appeal, has been blogging about the case. (Technically, the Supreme Court is addressing the narrower question of whether Scott is entitled to qualified immunity -- but as any Overlawyered reader knows, lawsuits are crapshoots; if immunity is denied and Scott is forced to go to trial, the case will probably settle so that Harris can't win the lottery from a befuddled jury.)

If the Supreme Court rules for the driver -- though oral arguments didn't seem to be in his favor -- then trial lawyers will have successfully created a no-win scenario for police; criminals will be free to flee without fear of police pursuit. Maybe it's just me, but that would seem to be a strange incentive: criminals who surrender peacefully go to jail, and those who refuse to submit are rewarded with cash or freedom.

• Related to this story, a reader (okay, Ted Frank) passes along another police chase lawsuit story which is (predictably) "Not about the money": parents collect quarter-million-plus for kids' deaths fleeing high-speed police chase [Robesonian Online]

For those of us who couldn't make it to Chicago to attend, Simon at Stubborn Facts blogged it from the scene (Feb. 25).

• Arguments Merck won't be allowed to make in Madison County Vioxx trial. [Point of Law]
• First Chicago foie gras fines. [Bainbridge]
• Sometimes med-mal plaintiffs deserve to win. [Times-Herald via Kevin MD]
• Curious about the Leonard Peltier pardon-seeking underlying the Geffen-Clinton-Obama split? (And where does Obama stand on pardoning Peltier?) [NPPA; TPM Cafe]
• The polite rejection letter [Parloff]
• Judge Jack to speak at Cardozo March 27. [Point of Law]

Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.

It's a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:

• Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a "public nuisance," even though any harms here are identifiably private.
  
• Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn't want to hold people responsible for maintaining their own homes.
  
• Going after the deep pockets rather than wrongdoers: Homeowners can't sue themselves, and landlords don't have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn't and couldn't prove that any of the outstanding problem was caused by any of the defendants.
  
• Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn't even figured out how much this cleanup will cost, but he's nonetheless sure that it's reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
  
• Dubious benefit to actual victims: people who have children affected by lead paint aren't the ones who receive money as a result of this case.
  
• Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.
  

Jack McConnell, a lawyer representing the state, called the judge's decision a "huge, huge victory for lead-poisoned children, homeowners and taxpayers."

And how it's a victory "for lead-poisoned children" is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers "representing the state," will rake in a few hundred million dollars in contingency fees, though.

Walter Olson also comments at Point of Law.

Ted's Monday roundup links to a story below about a bar applicant who was disqualified because he faked a disability to get accommodations on the bar exam; he also cheated. The punch line is, none of it helped; he failed the exams on which he cheated and got unjustified accommodations. And not just those exams:

According to the Committee’s findings, between July 1988 and July 1998, Bedi failed the D.C. bar examination twelve times and failed the Virginia bar examination six times.

A lawyer comes to the emergency room complaining that he can't see out of his left eye. The one who examines him is the physician who blogs at Fingers and Tubes in Every Orifice:

"What do you do for a living?" I asked, already knowing the answer.

"I'm an attorney," he proudly responded. "You've probably seen my ads on the highways."

"Yes, yes. A fair settlement is no accident." (That billboard slogan is plastered all over Crack City)

"Yeah, I'm a personal injury lawyer. I have no problems telling doctors that. I get better care that way, actually. Makes you guys more careful around me."

"Yes, I know you very well, Mr. Cochran. You were the plaintiff attorney accusing me of being a baby killer, remember?!"

Pausing briefly to let him absorb the full irony of the situation, I continued, "As to being more careful around you, all that means is that you'll have a bigger medical bill because of all the unnecessary tests and consultations, but I personally treat everyone the same regardless of the circumstances."

You'll want to see what happens in the rest of the story (Fingers and Tubes In Every Orifice, Jan. 2).

That's Romenesko's summary of this news item about a lawsuit by Chops Restaurant against food critic Craig LaBan over a review published in the city's best-known newspaper, which the item rudely refers to as the InqWaster (Dan Gross, "Chops sues LaBan", Philadelphia Daily News, Feb. 21). More on lawsuits over restaurant reviews: Jan. 3, 2006 (Dallas); Feb. 10, 2007 (Belfast).

Jim Copland, at Point of Law, does a little digging (Feb. 26) to see whether something called the Colorado Home Alliance emerged as the spontaneous outgrowth of local residents' dissatisfaction with the state of construction-defect law.

• High-school basketball player gets TRO over enforcement of technical foul after pushing referee. [Huntington News; Chad @ WaPo]
• Madison County court rejects Vioxx litigation tourism. [Point of Law]
• Faking disability for accommodation disqualifies bar applicant [Frisch]
• DOJ antitrust enforcement doesn't seem to be consistent with U.S. trade policy position. [Cafe Hayek]
• Professor falsely accused of sexual harassment wins defamation lawsuit against former plaintiff, but too late to save his job. [Kirkendall]
• Watch what you say dept.: Disbarred attorney and ex-felon sues newspaper, letter-to-editor writer, Illinois Civil Justice League. (His brother won the judicial election anyway.) [Madison County Record; Belleville News Democrat; US v. Amiel Cueto]

I want to thank Walter Olson and Ted Frank for honoring me by giving me an opportunity to guest blog here while Ted is away this week.

First, I guess I should introduce myself, for those of you wondering who the heck I am. I'm an attorney licensed in New Jersey, with a practice which focuses on commercial litigation. Aside from myself, I have several relatives who are attorneys, so it should be clear that I have nothing against lawyers. (In fact, despite all the evidence to the contrary here on Overlawyered, I happen to think we perform a useful function.)

My axe to grind is with those (such as the folks over at the website Ted affectionately calls "Bizarro-Overlawyered") who want to use the courts, not to enforce agreements or to compensate the victims of wrongdoing, but merely as a way to transfer wealth from corporations to trial lawyers, ostensibly on behalf of consumers.

One of my first close encounters with overlawyering was in the early 1990s, when a classmate of mine got drunk, climbed up on a train, and electrocuted himself; coincidentally, this old incident was mentioned on Overlawyered just a few weeks ago. At the time, I was perhaps naively shocked to find out that someone who was so obviously in the wrong could successfully point a finger elsewhere (or in this case, a lot of fingers) and cash in. The case had everything: a grossly irresponsible plaintiff, innocent defendants whose only fault was having deep pockets, and even the failure of immunity laws to prevent abuse of the tort system. Since then, I've become less naive, but I'm no less shocked at these types of stories.

Oh, and I used to blog about politics more generally at Jumping to Conclusions, although I haven't updated that in quite a long while. In any case, I'm happy to be here.

Retrial is getting under way in the high-profile case against prominent Gulf Coast plaintiff's lawyer Paul Minor and two former judges. Earlier proceedings resulted in the acquittal of Mississippi Supreme Court Justice Oliver Diaz, Jr. of all charges and a mixture of not guilty findings and inability to reach a verdict in the case of other defendants. Our extensive coverage is here.

This supposed lawyer ad, on behalf of "Gene Butterfield" of "Glinder & Glinder", is surely a spoof. It was posted by something called the Kaspar Hauser comedy podcast. Going before a camera can be frightening (tastelessness warning).

If an ice storm leaves you immobile and furious, the law surely must provide you with a remedy, at least if you're at New York's JFK airport, as opposed to being stuck on Interstate 78 in Pennsylvania. Right? (Steve Chapman, "The right protection for airline passengers", Chicago Tribune/syndicated, Feb. 22; "The Politics of JetBlue" (editorial), Wall Street Journal/OpinionJournal.com, Feb. 24).

"A federal jury in San Diego [Thursday] ordered Microsoft to pay $1.52 billion to Alcatel-Lucent for violating two patents for a technology used by hundreds of companies that allows users to play digital music on computers, cellphones and other portable devices." (Alan Sipress, "Microsoft Loses Big In MP3 Patent Suit", Washington Post, Feb. 23). Washington Post tech blogger Rob Pegoraro (Feb. 23):

Alcatel-Lucent's patent payday has all the things that patent-abuse critics hate:

* "Submarine" patents, invoked years after a contested invention has hit the market? Check
* Claiming ownership of a media format most people use all the time? Check
* A plaintiff that's failed to commercialize its own alleged invention? Check
* Extortionate royalty demands? Check

(via Kevin Drum, Feb. 23).

Or other bread product as appropriate: California Assemblywoman Sally Lieber concedes the votes "simply [are] not there" for her widely derided proposal to ban the spanking of small children (Jan. 22, Feb. 14), but she'll still try to get the state's regulatory nose into the nursery by pushing a law banning various parental disciplinary techniques, including spanking that employs an "instrument". (Mike Zapler, "No-spanking bid softened", San Jose Mercury News, Feb. 23).

We ask because we saw a couple of blogs speculating about our traffic, and making a mathematically incorrect calculation underestimating it by mistakingly assuming that our 2006 readership had not grown from 2001.

So how much do traffic do we have? The answer: we don't know for sure. If one were to count raw page views, we served 1,176,741 pages in January 2007.

A naive, boastful or deceitful newcomer to the web might try to claim that number as readership. However, a significant share, for us as for any site, consists of spiders from search engines and other mechanical "visitors", 404 pages not found, reloads and various other categories that inflate a proper readership, including periodic "storms" of a hundred thousand or even a million page requests that are unrelated to reader interests and appear to be either DoS attacks or some other form of static interference. (January did not include any major attacks of this sort; November had a big one, which brought its figure to 2.8 million.)

We do know that our PageRank is 7, the same as major blogs like Instapundit and Gawker or sites like Law.com. By comparison, the top law blog, Volokh, has a PageRank of 8; and my own personal unpublicized little-read rarely-posted-or-linked-to vanity blog with under 100 readers/day has a PageRank of 6.

Of course, we don't suggest that people read our blog just because others are doing so or because it's trendy or even because of all the awards and praise we've won (and those pages need about five years of updates); we hope you do so because you appreciate the unique analysis we provide here.

In 1999, Maria Storm had a mole on her right shoulder that was rubbing against her bra strap; Dr. Patrick Zimmerman removed it at her request. The mole did not have an irregular shape or color. Four years later, she was diagnosed with a fatal melanoma on a different part of her body ("Louis Dehner, M.D., a pathologist at Barnes-Jewish Hospital in St. Louis, testified that the mole Zimmermann removed was not the primary spot of the melanoma"), and her family sought to blame her death on Zimmerman, seeking $10.9 million. (Zimmerman biopsies 30% of the moles he sees, and less than 1% of the ones he orders for testing are malignant, suggesting he's already practicing heavily defensively.) A Madison County jury rejected attorney Rex Carr's pleas; Carr (Feb. 6; Dec. 6, 2005; Nov. 6, 2005; Dec. 23, 2004; May 4, 2004; POL Dec. 28, 2004) says he'll appeal. (Steve Horrell, "No award in med-mal case", Edwardsville Intelligencer, Jan. 31; Leah Thorsen, "Doctor sued over cancer death defends his prognosis of mole", St. Louis Post-Dispatch, Jan. 30; Steve Gonzalez, "Collinsville physician cleared in Madison County med mal trial", Madison County Record, Jan. 31).

While on the subject of consumer information websites that funnel readers to lawyers, reader R.F. nominated 4mychild.com, a website about cerebral palsy whose site is bannered "Organizations for Special Needs Children". Scroll down to the bottom of the opening page to find the attorney-advertising disclaimer.

"Voters last November approved Amendment 41, which limited gifts to most government employees and their families to $50. The constitutional amendment was put on the ballot by wealthy entrepreneur Jared Polis and the public-interest group Common Cause." It soon emerged that the measure might prohibit the award of university scholarships to children of government employees or the award of the Nobel Prize to a government-employed scientist. Highly placed Coloradans have been scurrying about for weeks now trying to figure out what to do. (Lynn Bartels and Alan Gathright, "Pressure to fix ethics law", Rocky Mountain News, Feb. 6; Lynn Bartels, "GOP's May says Polis 'threatening' in Amendment 41 talk", Rocky Mountain News, Feb. 9; Chris Frates and Jeri Clausing, "Fix it yourself, backers of 41 told", Denver Post, Jan. 31; Mark Hillman (former Colo. state treasurer), "Ethics amendment creates an ethical dilemma", Independence Institute, Jan. 25; text of Amendment 41 (PDF); Peter Blake (columnist), Rocky Mountain News, Nov. 15, Dec. 20, Jan. 3, and Jan. 20).

Michael Melnitzky, whose wife filed for divorce in 1994, "has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost." “I used to be an art restorer,“ says Melnitzky, a pro se litigant. “Now I’m a litigator. If you’re going to attack me or assault me on a legal front, and I don’t hit back, I would feel dishonorable with myself.” (Ray Rivera, "The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting", New York Times, Feb. 19; Above the Law, Feb. 20).

G. Paul Howes, who's handled Lerach's high-profile litigation over losses arising from the Enron collapse, faces serious ethics charges over actions he took during his earlier career as a federal prosecutor. "On Feb. 1, the D.C. Bar Counsel filed eight charges against Howes after a four-year investigation, accusing him of violating bar ethics rules by committing criminal acts, making false statements in court, offering prohibited payments to witnesses, and interfering with the administration of justice." Ethics proceedings against federal prosecutors are rare; disbarment is among the possible sanctions that could be asked. It doesn't appear Howes is going to win any popularity contests among his former law enforcement colleagues:

Amy Jeffress, deputy chief of the office's Organized Crime and Narcotics Trafficking Section[,] referred to Howes -- though not by name -- during a Jan. 31 debate on the power of prosecutors at American University, Washington College of Law.

"He actually left the office and moved all the way across the country to San Diego to escape his shame and his bad reputation," Jeffress said, according to a recording of the debate. "He basically became a pariah in our office. His name is a synonym around our office for no-no. You don't want to do what he did."

(Brendan Smith, "Former Prosecutor Charged With Misconduct in Gang Cases", Legal Times, Feb. 15).

Norm Pattis suspects the influence of cameras in the courtroom may help explain the histrionics of presiding judge Larry Seidlin (Crime and Federalism, Feb. 22; Above the Law, Feb. 22, first and second posts; Althouse, Feb. 22).

Billing itself as a "non-partisan, independent information provider", it invites you to submit your complaint about an unsatisfactory consumer transaction on its automated complaint form. The complaint form notes that reports "become the property of ConsumerAffairs.Com Inc." and you must include your contact information. If you keep reading down, you may notice that "We work with attorneys with specific expertise in many areas of consumer law. It is sometimes necessary for them to contact you in order to determine whether there is a legal remedy for your complaint. There is no charge for any such consultation." (Fred Lucas, "'Consumer Watchdog' Website Faces Complaints, Lawsuits", CNSNews.com, Feb. 12; Childs, Feb. 16).

Charlie Weis, Notre Dame football head and former New England Patriots assistant coach, has been the plaintiff in a Massachusetts medical malpractice case where he seeks a windfall because his gastric bypass surgery, like many gastric surgery bypasses, had complications that he has recovered from. Unfortunately, a juror collapsed during proceedings, and the defendant doctors rushed over to help her before the other jurors could be removed from the courtroom, and this concern for the health of another human being means that the doctors, whose schedules have already been disrupted by the lengthy trial, will have to go through it all over again, as Weis successfully moved for a mistrial. [AP/SI-CNN via Quizlaw]

• Update to Jan. 5 post: "Gifties" lose t-shirt battle. Amber Taylor is not impressed by Posner's opinion, though. [Above the Law; Taylor]
• Update to our earlier odometer class action; turns out SAE gives odometers a 4% leeway, so Honda is paying millions for following industry standard. Nissan is still fighting the suit, and other manufacturers will likely be hit. [Gannett/Asbury Park Press]
• $12M for suicide despite hospital workers putting themselves in danger in unsuccessful attempt to prevent death [Birmingham News]

• Electric slide inventor sues YouTubers who perform dance wrong. [CNet (h/t LN)]
• Now the NFL wants to trademark "The Big Game." [Schwimmer; earlier on Overlawyered]
• NAM blog on punitive damages, likes what I have to say. [NAM blog]
• "Kiss life sciences goodbye if lawsuit bills are passed." [Detroit News via NAM blog; Manhattan Institute]
• "When Flirting at Work Is Flirting With Trouble" [New York Times]
• AG Lockyer's office hid millions of dollars of giveaways to trial lawyer donors. [Point of Law roundup of links]
• Maybe it's time to stop calling myself a fifth-string talking head and recognize that I'm a fourth-string talking head. [Financial Times; Forbes.com; Madison County Record]

Tampa-based Wilkes & McHugh, which has enjoyed much success filing suits against nursing homes in many states, "is now on the defense end of a suit that contends the firm knowingly violated Tennessee law regarding contingency fees." Former client Debbie Howard, who hired the firm to sue a Memphis nursing home, says it "engaged in an unlawful scheme to collect 40 percent or 45 percent in contingency fees of settlement amounts, although Tennessee law caps fees to 33 and 1/3 percent in medical malpractice cases. The complaint says the law firm charged the higher and unlawful contingency fee to hundreds of clients in Tennessee." In its response, the law firm says the complaint is "scurrilous" and based on falsehoods, and says Howard never appealed a Tennessee court order approving the fees. (Liz Freeman, "Tampa law firm faces contingency fees lawsuit", Naples (Fla.) News, Jan. 14; Scott Barancik, "Firm gets a taste of dish it serves", St. Petersburg Times, Feb. 17). For more on the law firm, see Mar. 13-14, 2001, Jul. 6, 2005, and Jun. 22, 2006, as well as Scott Barancik, "Law firm's success against nursing homes has a price", St. Petersburg Times, Jul. 24, 2004.

Wendy Seltzer tries a little experiment, posting a video on YouTube of the NFL's copyright notice displayed at the Super Bowl, not the football play itself. It takes five days for the takedown notice to arrive. (Feb. 13, Dec. 15)(via Volokh).

The tobacco giant's alliance of convenience with Rep. Henry Waxman (D-Calif.) is a bootleggers-'n'-Baptists kind of thing. (Jacob Sullum, "All for Philip Morris", syndicated/Reason, Feb. 21).

Kentucky trial lawyers just won't let up in their po-faced indignation about that innocuous cartoon in the state bar magazine (see Feb. 15 roundup). "'The cartoon exhibits an indifference to the rights of all Kentuckians to access the justice system -- the very system the KBA is charged with preserving on behalf of its members and their clients,' Bowling Green lawyer Steve Downey, the immediate past president of the trial lawyer group, said in a letter to the bar association." (Andrew Wolfson, "Trial lawyers find nothing funny in cartoon", Louisville Courier-Journal, Feb. 19). David Lat covers the story (Feb. 20). What would have taken guts, I think, is for the Kentucky bar magazine to have run a cartoon making reference to the state's deeply embarrassing fen-phen fee scandal. But let's not hold our breath waiting for that.

Yesterday I joined Vicki McKenna on Madison, Wisconsin's WIBA to discuss Katrina insurance litigation as well as the Supreme Court's punitive damages rulings. And on Jan. 23 I was a guest on Jim Blasingame's national "Small Business Advocate".

Allstate used applicants' credit ratings as one piece of information in rate-setting, a baldly rational policy if you accept that credit ratings do on average help predict future consumer behavior. Lawyers sued claiming that the credit ratings were really an improper proxy for race, and a federal judge has now approved a class action settlement in which Allstate will revamp its policies and pay six named plaintiffs $5,000 each, minority policyholders will be free to seek refunds of $50 to $150 if they get around to it and can prove they qualify, and plaintiff's lawyers will get $11.7 million. ("Judge Approves Settlement in Allstate Class-Action Suit", AP/WOAI, Feb. 17).

In 2001, when a CVS pharmacy opened on North Middletown Road in Pearl River, N.Y., Rockland County administrators approved a curb cut on the nearby sidewalk to facilitate wheelchair access from the road to the sidewalk. Three years later Stacey Gersten, 48, who had a "mild developmental disability", tried to cross the road on foot at that point and was struck and killed by a hit-run driver, Duane Boos. In December a jury agreed to assign 65 percent of the blame for Gersten's death to the county; it assigned 35 percent of the blame to Boos and none to Gersten. James Lynch, a Paramus, N.J. lawyer who represented the Gersten family, "said the jury agreed that the curb cut at the sidewalk outside the CVS was an 'invitation' for pedestrians to cross at a 'dangerous spot'," one with no crosswalk and no curb cut at the opposite side.

In short, it would seem that the county is liable because in its effort to help wheelchair users, it provided an inordinate temptation to jaywalkers. And as disabled advocates regularly point out, wheelchair users are not the only group that benefits from curb cuts. Bicyclists and scooter users, parents with strollers, the elderly with walkers, people using a dolly or cart to manage a load of goods -- all may legitimately desire midblock access to a road without intending to cross to its other side.

Without visiting the actual site of the accident it's hard to draw definitive conclusions. It would be a shame, however, if liability-averse road authorities drew the lesson that from now on it is going to be legally risky for them to install curb cuts anywhere other than at crosswalks. (Khurram Saeed, "Rockland hit-and-run victim's family wins $1 million lawsuit", White Plains (N.Y.) Journal-News, Dec. 22).

Some initial thoughts on Philip Morris v. Williams from Jim Copland at Point of Law. By a 5-4 vote, in an opinion by Justice Breyer, the Court held that a punitive damage award cannot be based in part or whole on a jury's desire to punish harms committed against non-parties to the litigation, although (a fine distinction, if indeed a tenable one) such harms may be taken into account in determining the defendant's degree of reprehensibility.

More: Ted comments and rounds up links, also at PoL. Roger Parloff (Feb. 20) calls the majority's distinction "narrow" and "confusing". And Eric Turkewitz offers one view from the plaintiff's side ("hair-splitting"; majority's "Clintonian parsing...was too much for four of the justices").

An ad for Hampton Roads, Va., Lowell ("The Hammer") Stanley. It's very reminiscent of the classic ads for Rochester's similarly nicknamed Jim ("The Hammer")(Feb. 6, etc.), including the grainy footage of disasters in the background (via Nicole Black).

• Trucker-friendly Arizona legislature declines to ban naked lady mudflaps [NBC4.com; Houstonist]


• Crumb of approbation dept.: I'm "[not] as unreasonable as most of the tort-reform crowd" [Petit]


• Sponsors of large banquets in D.C. must pay to have a paramedic on hand even when the banquet crowd consists of doctors [ShopFloor]


• Homeowner's insurance doesn't cover homewrecking: umbrella policy doesn't create duty to defend lawsuit claiming the insured broke up someone's marriage (Pins v. State Farm (PDF), S. Dak., Mayerson via Elefant)


• New York mag on RFK Jr.: Is there some law saying all press profiles of America's Most Irresponsible Public Figure (r) must be weirdly softball in nature and glide over his embarrassing book and rants, his Osama-pig farm lunacy, his anti-vaccine humbug, his trial-lawyer entanglements and even the wind farm flap?


• Australia court rules Muslim prison inmate suffered discrimination and deserves money for being served canned halal meat rather than fresh [The Australian]


• High medical costs and their causes: am I listening? [Coyote]


• Economists may puzzle their heads over the ultimate incidence of business taxes, but in Wisconsin it's whatever Gov. Jim Doyle says it is [Krumm via Taranto]


• Feds may punish Red Sox pitcher Matsuzaka for doing a beer ad in Japan, where it's perfectly legal for athletes to appear in such [To The People]


• Guns in company parking lots: still one of the rare issues where the ABA manages to be righter than the NRA [AP/CBSNews.com; see Apr. 6, 2006]


• Thanks, NYC taxpayers: Brooklyn jury awards $16 million against city in case where drugged-up motorist jumped sidewalk and ran over pedestrians, later blaming the accident on a city sanitation truck [seven years ago on Overlawyered]

K.C. Johnson has assembled the details (Feb. 19) on the CNN/Court TV commentator's scurrilous handling of the lacrosse rape allegations. For more on Grace, see Mar. 1, 2006, as well as Legal Blog Watch, May 4, 2005, and Suz at Large, Mar. 2, 2006 (quoting Prof. Bainbridge's pungent assessment).

The legal professoriate does not escape unscathed from Johnson's attention, either. He is a particular critic (e.g., Jan. 21) of the televised pronouncements on the case of New England School of Law professor Wendy Murphy. And recent assertions by South Texas College of Law professor Kathleen A. Bergin on the Feminist Law Professors blog (Jan. 29, declaring the players "far from 'innocent'" whether or not a rape is proven in court) fail to stand up to critical scrutiny, Johnson says (Feb. 18). (More: Cernovich).

P.S. And here's the Saturday Night Live parody. Plus: Ambrogi, Bainbridge.

On Friday I attended New York Law School's conference "Writing About the Law: From Bluebook to Blogs and Beyond". Aside from the considerable merits of the program itself (PDF), organized by NYLS's Cameron Stracher, I met a lot of blawgers, lawprofs and others whose work I've been reading for years. At lunch, when Northwestern lawprof Jim Lindgren (Volokh Conspiracy) kindly suggested I join his table, I found myself seated between David Lat (Above the Law) and Ann Althouse; the rest of the table consisted of NYLS professors Jethro Lieberman (The Litigious Society) and Arthur Leonard, and publisher/editor Bernard Hibbitts of Jurist. Earlier in the day, I met Paul Caron (TaxProf), Jack Balkin (Balkinization), and Larry Solum (Legal Theory Blog), as well as catching up with old friend Randy Barnett (Volokh). For more on the program, see Larry Solum's posts here, here and here, David Lat's here, here and here and Ann Althouse's here and (Times Select) here.

On Jan. 28, I attended the pre-launch party in Manhattan for BlawgWorld 2007, a volume produced by the TechnoLawyer people which pulls together a sampling of 2006 posts from 76 law-related blogs, rather like a blog festival in print. Among those I finally met in person was George Lenard of George's Employment Blawg; I also got to say hello to a number of other blawgers I'd run into previously, including Bruce MacEwen of Adam Smith, Esq. and Arnie Herz of Legal Sanity. I can be spotted in a few of the pictures from the event, such as this one, this one and (seeming to pound my hand against the wall, though I was not in fact frustrated) this one. Clearly I should get out more often.

If, after reading this February 13 article, you are looking for information on Der Fall des heissen Kaffees, you can find a summary and roundup of other posts in our 2005 roundup post on Stella Liebeck and the McDonald's coffee case.

Dr. Anna Maria Vatura saved the life of a 400-pound man thrown from a motorcycle in a high-speed accident, but his obesity made it impossible to stabilize him with appropriate cervical spinal precautions; as a result, he ended up quadriplegic, for which he sued the doctor. In a lengthy piece for the Feb. 16 Medical Economics, she details the medical care and resulting lawsuit:

It was profoundly enlightening to realize that my career was in the hands of 12 strangers who were expected to understand and interpret in three weeks what had taken me 10 long years to learn; and even longer to practice and internalize. Maybe it was akin to a 400-pound man coming to me as a stranger, asking that I save his life and keep it as it was before he was thrown off that motorcycle going 40 miles an hour.

I testified in court for four grueling hours. I was well prepared but nevertheless terrified I would say something wrong. I felt the need to repeat what took place over and over again just to make sure the jurors understood the sequence of events. The plaintiff's attorney—attractive, articulate, and dressed in an expensive suit—tried every trick in the book to get me to slip up, to say something she could twist into a lie. Anything she could to make me look inept, inexperienced, evil. Yes, evil. During closing arguments she played a scene of the Lord of the Rings: The Return of the King and equated the doctors in the case to the monsters. I sat there astounded that someone would actually say that I was an evil person wreaking havoc on innocent people behind the guise of a medical license.

Updating our Jun. 12, 2006 entry: "The Philadelphia Commission on Human Relations notified Geno's owner Joey Vento this week that it had found probable cause that his sign urging patrons to order in English is discriminatory. The next step is to schedule a hearing to settle the dispute or to escalate the charges against the owner of the South Philadelphia sandwich stand." Vento, who has enlisted on his behalf the Southeastern Legal Foundation, the conservative public-interest law outfit, says he has never actually declined anyone's order because it was not made in English, but the commission contends the sign could nonetheless make non-English-speakers feel unwelcome or discriminated against. (Andrew Maykuth, "Stakes get higher for Geno's", Philadelphia Inquirer, Feb. 9).

James Pacenza's $5 million lawsuit against his employer for firing him for seeking cybersex at work is still pending today after being filed in 2004. It first got coverage in Business Week and Overlawyered in December, was picked up in News of the Weird a few weeks ago, and then covered by the AP today (h/t W.F.). Pacenza blames his sex- and Internet-addiction on his Vietnam War service and triggers from the Gulf War; as evidence that he should be rehired, he cites to his obscene phone calls to strangers and visits of prostitutes. We have the major filings:

• Complaint


• IBM motion for summary judgment (part 1)


• IBM motion for summary judgment (part 2)


• Pacenza opposition to summary judgment

(Updated to note earlier Overlawyered post.)

The Electronic Frontier Foundation in 2004 derided Acacia Technologies Group's claims of ownership over streaming-media technology as "laughably broad" (see Aug. 17, 2004), but the firm has prospered since then through licensing deals with big companies. It hasn't had to face its toughest courtroom challenges yet, though. (Xenia P. Kobylarz, "Extreme Makeover: From Patent Troll to the Belle of the Ball", IP Law & Business, Feb. 15).

As we noted back on Mar. 20, 2005, some Religious Right campaigners appear to have talked out of both sides of their mouths on the question of whether their proposed anti-gay-marriage amendments in states like Michigan would put an end to the availability of existing health insurance benefits for the domestic partners of employees at public entities such as cities and universities. When urging voters to approve Proposal 2, these campaigners suggested that the measure would leave existing benefits undisturbed; once it was on the books, they supported efforts to invoke it to nullify the benefits. Now a Michigan appeals court has agreed that Proposal 2 does ban public-employee DP benefits. Ed Brayton of Dispatches from the Culture Wars has details (Jul. 5, 2006; Feb. 4 and Feb. 5, 2007; see also Nov. 22, 2006) on the, um, fancy footwork engaged in by two Religious Right litigation groups, the Thomas More Law Center and the Alliance Defense Fund. For more, see John Corvino, "A tragic lie in Michigan", Between the Lines/Independent Gay Forum, Feb. 8; Jonathan Cohn, "Spouse Abuse", The New Republic, Feb. 15; Andrew Sullivan, Feb. 15.

Updating our Apr. 26, 2005 entry, from Canada: "A Windsor, Ont., man lost out on a $341,775 court judgment yesterday, when the Ontario Court of Appeal ruled that a bottling company should not have been held liable for triggering a phobia of flies that altered his personality and killed his sex life." No one in the Mustapha family consumed the fly, or any of the water that had come into contact with it, but Waddah (Martin) Mustapha said the unsettling sight had precipitated a disabling psychological aversion. The Ontario court -- applying Canada's costs-follow-the-event principle -- assessed $30,000 in costs against Mustapha. (Kirk Makin, "Appeal court rules against man haunted by fly in water bottle", Globe and Mail, Dec. 16; opinion in Mustapha and Culligan of Canada (PDF)).

In the comments section of our Thursday post, attorney Daniel Callahan provides his side of the story.

Others have mentioned or anticipated State Farm's withdrawal from the Mississippi homeowners' and commercial insurance markets in the wake of the Jim Hood/Dickie Scruggs campaign against them (Krauss; Olson; Wallace; Adams; Rossmiller). But how many tie in Hurricane Katrina, Dickie Scruggs, Jim Hood, Trent Lott, and William Wordsworth? I provide a historical perspective in today's American.

Dickie Scruggs and Jim Hood have a proposed solution to the State Farm withdrawal: tell them they can't write auto insurance, either. That will make Mississippians better off!

Abraham Lincoln, as we're sometimes reminded around this time of year, made a living as a practicing lawyer, much of it in trial practice. For some reason this website has never gotten around to citing Lincoln's Notes for a Law Lecture, possibly his best-known pronouncement on the ethics and practicalities of law practice. Some highlights:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”

“There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

Among those calling attention to Lincoln's comments on lawyering this week are David Giacalone (Feb. 12; see also here and here) and Daniel E. Cummins in Pennsylvania Law Weekly ("Lincoln Logs of Wisdom", Feb. 12), both of whom offer additional quotations of interest.

If the Reason columnist looks at this one personally, she can be excused, having herself been the target of venomous misrepresentations at the hands of Amanda Marcotte, Left Blogistan's booby-trapped gift to the John Edwards campaign (Feb. 15)(via Reynolds). Earlier: Feb. 12, etc.

Trial lawyers are advertising for cases against the anti-clotting drug Plavix, which worries DB at MedRants (Jan. 31):

Plavix is an important drug for the proper indications. Having stents placed is a proper indication. Like many drugs, Plavix has side effects. Because it inhibits platelet aggregation patients taking Plavix are more susceptible to bleeding. We know that side effect, and must balance the side effect against the benefits that accrue to preventing stent clotting.

We all see the despicable ads from trial lawyers. Whenever a drug has a side effect they see a pot of gold. Obviously these ads scare patients. The externality here comes from these ads. These ads are meant to attract lawsuits, but they additionally scare patients from taking beneficial drugs. We see this phenomenon often.

The eggshell-skull rule, as applied to a self-inflicted injury: Whately, MA selectman Charles Olanyk weighed 460 pounds in 2001 at the age of 51. That sort of obesity leads to health problems, and Olanyk had several: high-blood pressure, obesity, and diabetes. Olanyk stubbed his toe, treated himself with a heating pad, managed to give himself third-degree burns because he didn't have full sensation in his outer limbs, and went to Doctor John Bookwalter, who had been treating him for leg ulcers; Bookwalter gave him a topical cream and antibiotics. Nevertheless, the burn became gangrenous because of diabetic and lymphedema complications, and Olanyk ended up losing his left leg below the knee. A jury awarded $1.16 million against Bookwalter on grounds that he should have immediately referred Olanyk to a burn doctor. "In the end, everybody's health care costs go up because this guy couldn't take care of himself," said Bookwalter. (Patrick J. Crowley, "Local doctor loses $1.1M malpractice lawsuit", Brattleboro Reformer, Feb. 14; "After scary bout, months of recovery", Daily Hampshire Gazette, Mar. 19, 2002).

(Update: eagle-eyed reader F.R. points us to this Telegraph story discussing the UK's single-payer health service consideration of banning surgery on smokers and the obese to save costs.)

• MySpace wins sexual abuse suit (Jan. 19 and links therein) in federal court; no matter to the trial lawyer, who said he'd just forum-shop refile in state court with new plaintiffs. [Forbes.com; Bashman link roundup]
• Dunder Mifflin, defendant (via Lattman). Earlier: Bruce Wayne, defendant.
• More links on the teacher facing jail over class computer porn case. [Bashman]
• Court: Insurance firm doesn’t have to pay for arsonist’s damage to his own home [Times and Democrat]
• Fla. appeals court upholds asbestos medical criteria law [Insurance Journal]
• Louisiana Supreme Court reverses appellate court's bogus dismantling of med-mal cap, but only on a technicality [Legal Newsline; The Advocate; earlier at POL]

• Trial lawyers prove they're humorless. [Cowgill via Schaeffer]
• "I've finally admitted to myself that I am afraid of my own lawyer." Hollywood's legal evils. [Peter Bart @ Variety]

• The Class Action Fairness Act two years later [Federalist Society MP3]

Nice tactic, if you can get away with it: after filing suit, get a House committee to conduct a hostile investigation of your opponent with your clients appearing as friendly witnesses. That's what appears to have happened in the House Oversight and Government Reform Committee's hearings last week on alleged shortcomings in the work of Iraq contractor Blackwater USA. The friendly witnesses in this case, called by committee chairman Rep. Henry Waxman (D-Calif.), were family members of several Blackwater consultants killed in Iraq, who are suing the company for damages. According to Rep. Darrell Issa (R-Calif.), the hearing followed upon the sending of a letter to House Speaker Nancy Pelosi by Orange County, Calif., plaintiffs’ lawyer Daniel Callahan of Callahan & Blaine, who's representing the families. The letter urged a "fruitful and meaningful" investigation of "these extremely Republican companies, such as Blackwater, who have been uncooperative to date". (S. A. Miller, "Iraq contractor focus of hearing", Washington Times, Feb. 8; Lattman, WSJ law blog, Feb. 9; Larry Margasak, "Blackwater E-Mail Outlines Gear Shortage", AP/Washington Post, Feb. 7; Chaos in Motion, Feb. 8).

More: in the comments section, attorney Daniel J. Callahan responds.

A beloved San Francisco tourist attraction, the birds roost in two ancient cypress trees whose owner says he can no longer afford the liability risk should they topple or shed branches on spectators. The city is stepping in to spare the axe by taking responsibility for the chance of injury. (Charlie Goodyear, "Preserving perches for wild parrots", San Francisco Chronicle, Feb. 14; "Buzz saws threaten home of Telegraph Hill parrots", CBC, Nov. 3, 2005). A 2004 film about the parrots is available here on DVD.

"We spend a fair amount of time talking about detainee treatment and Guantanamo. But there is no greater, or more common, human rights abuses in America than those occurring in our overcrowded, constantly expanding, jails." – Ezra Klein on the new Human Rights Watch report on prison rape. Also: Glenn Reynolds; Tom Kirkendall; Stop Prison Rape; 2002 Senate Judiciary Committee Hearing.

A March 2007 Reason article is a must-read for its historical description of how so many mass torts arise from the plaintiffs' bar blaming deep-pocketed private industry for health catastrophes caused by government policy:

The wider conventional view [treats] hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies' actions.

Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.

(P.S. by W.O.: Thanks, Ted -- the piece is being linked and discussed at quite a few places around the blogosphere, including Glenn Reynolds, Reason "Hit and Run", The Economist's Free Exchange, Bill Childs, Byron Steir at Mass Tort Litigation Blog, David Hardy's Arms and the Law, and Prof. Bainbridge).

Plus: And yet more, from business historian (and friend) John Steele Gordon at the American Heritage blog.

Turns out there was a law professor behind the idea (Jan. 22):

As for what sparked [Assemblywoman Sally] Lieber's decision to introduce a bill about spanking, it wasn't a rash of emergency room visits from 3-year-olds with sore bottoms. The San Jose Mercury News, which first reported the no-spanking story, wrote that Lieber "conceived the idea while chatting with a family friend and legal expert in children's issues worldwide." That friend was University of San Francisco Law School professor Thomas Nazario, who fiercely opposes corporal punishment. "It was my idea and I was primarily responsible for coming up with the final draft," he explains. (Which makes Lieber sound more like Nazario's pawn than a legislative leader, but I digress.)

(Eilene Zimmerman, "Spanking mad", Salon, Feb. 5). WryMouth (Jan. 29) has an account of Prof. Nazario's appearance on the popular Los Angeles radio show "John & Ken" to discuss the idea. Orange County Register columnist Steven Greenhut writes: "I don't advocate spanking as a rule, but it seems rather harsh to rip a child out of a happy home and put him in some nightmare foster-care scenario and put a parent in jail for doing something that has been widely practiced through the history of parenting." ("Lawmaker deserves a spanking", Jan. 28).

It just keeps getting juicier:

The attorneys accused of misappropriating more than $64 million from Kentucky's fen-phen settlement initially withheld another $27.7 million, which they turned over to their clients only after the Kentucky Bar Association began investigating the case, newly filed court records show.

The additional payments also came after one of the lawyers -- Melbourne Mills Jr. -- discovered in January 2002 that the settlement was for $50 million more than the other two lawyers, William Gallion and Shirley Cunningham Jr., had told him, according to the records.

Mills was so angry that when Gallion showed up at his birthday party on Feb. 6, 2002, Mills called him "a thief" and insisted that more money be given to the clients, according to a deposition from Mills' administrative assistant, Rebecca Phipps.

(Andrew Wolfson, "Lawyers held 2nd cache of diet drug settlement", Louisville Courier-Journal, Feb. 11; Beth Musgrave, "Fen-phen ruling could come soon", Lexington Herald-Leader, Feb. 13). Earlier coverage: Mar. 6 and Aug. 25, 2006, Jan. 24, 2007, etc.

Stuart Taylor, Jr., on draconian sentencing at both ends of the criminal justice system, from white-collar prosecutions to drug offenses ("Irrational Sentencing, Top To Bottom", The Atlantic, Feb. 12 temporary link).

New York City police officer Cesar Borja died tragically young of lung disease last month. Advocacy groups (including a website that regularly accuses tort reformers of using oversimplified "pop" anecdotes) and Senator Clinton pushed his story to the media to promote a multi-billion-dollar taxpayer giveaway program (that, not incidentally, would provide contingent fees for attorneys) by claiming that Borja was sickened as a hero working "fourteen-hour days in the smoldering pit", and was killed by alleged government lies about the safety of the air (though the government did call for respirators that they admitted Borja didn't wear) and the media bought it in front-page tabloid stories. (That same website has been promising since it started to link "Ground Zero workers’ challenges to a larger critique of the tort reform movement", but has yet to formally justify that non sequitur.)

Except more facts are coming to light about Borja, and as the New York Times reports, "very few of the most dramatic aspects of Officer Borja’s powerful story appear to be fully accurate":

• On September 11, Borja reported for duty... at the tow pound in Queens where he spent most of his career.
• Borja did not work near the site until December 24, 2001, "after substantial parts of the site had been cleared and the fire in the remaining pile had been declared out."
• Borja thus never worked in the smoldering pit.
• Borja never worked a 14-hour shift; rather, he worked a few shifts for a total of 17 days directing traffic to add to his overtime pay, most of which were in March and April 2002, and all blocks away from Ground Zero.
• Borja smoked a pack a day until the mid-1990s.

Update: David Nieporent has an amusing comment about Bizarro-Overlawyered's shameless reaction to the revelation.

The post David responds to makes the mistake of making clear its political motivations for exaggerating health hazards from Ground Zero cleanup: a partisan smear of possible Republican presidential nominee Rudy Giuliani.

Virginia Postrel (Jan. 12) sheds more illumination on the lightbulb ban notion we discussed Feb. 1.

Truancy laws for grown-ups in Texas? "A Houston-area legislator wants to subject parents to criminal charges for skipping a scheduled meeting with their child’s teacher. Rep. Wayne Smith, R-Baytown, said it is time for the state to crack down on Texans who are shirking their parental responsibilities by failing to meet with the teacher when their child is having academic or disciplinary problems." (Terrence Stutz, Dallas Morning News, Jan. 30)(via Bullwinkle Blog).

As we've had occasion to mention before (Sept. 24, 1999; Reason, Dec. 1999; Jan. 17, 2001), the supposedly progressive position in employment law has for many years been that employers should not be at liberty to take into account job applicants' criminal records; the only conceded exception comes when a past conviction is closely related to a high risk of serious re-offense, as when an embezzler released from prison seeks a job handling money at a bank. Very much in the spirit of that progressive stance, Boston Mayor Thomas M. Menino "authorized a new policy two years ago eliminating questions about criminal convictions on all city job applications and dispensing with criminal background checks for applicants for jobs that don't involve working with children or the elderly or accessing residents' homes."

How well did this new policy work out, you ask? Well, when Joseph M. MacDonald, a 26-year-old resident of South Boston, applied for a job with the Boston public works department, city officials never checked his criminal record because of the new "second-chance" policy. So they never found out about his long rap sheet (three drug convictions, seven drivers' license suspensions) until Feb. 3, when police say MacDonald, riding his city snowplow, ran down a 64-year-old woman as she crossed a street, then fled the scene. (Donovan Slack, "Hit-run suspect had long record", Boston Globe, Feb. 7; "Records show history of offenses", Feb. 7).

So a hard lesson has now been learned, right? You must be kidding. Although the city has admitted that it slipped up in not checking MacDonald's driving status, Mayor Menino and one of his human resources deputies continue to defend the broader policy on ignoring criminal records ("The mayor believes firmly in giving people a second chance," said a spokeswoman after the incident.) And both Menino and newly elected Gov. Deval Patrick intend to press ahead with a previously announced plan to limit private employers' access to job applicants' criminal records, the better to enforce those obligatory second chances. (Andrea Estes, "Patrick seeks to limit background checks", Boston Globe, Feb. 12)(via No Looking Backwards). More: Coyote Blog.

She's departing as his blogger-in-chief (Memeorandum; Malkin). Earlier coverage here: Feb. 2, Feb. 4, Feb. 7, Feb. 8.

P.S. And check out Amanda Marcotte: The Rock Opera.

"[A] wide range of parental speech has been prohibited by family courts, all in the name of the child's best interests. ... Even more courts have based custody decisions partly on parent-child speech and religious upbringing. In Michigan, for example, courts routinely favor the parent who takes the children to church more often. Other courts have denied parents custody based partly on the parents' teaching their children the propriety of racism, polygamy or homosexuality....

"[F]ew courts have grappled with the question whether judges are allowed under the First Amendment to make such decisions. ... Many people would trade all their free-speech rights for the right to teach their own children. And government power to constrain how parents teach their own children is dangerous. Restricting the spread of ideas from parent to child can help today's majority, or today's elite, entrench its views. Also, the power to suppress parents' speech might spread beyond divorces to intact families, too." (Eugene Volokh (UCLA Law), L.A. Times/Newsday, Feb. 12)(discussion at Volokh Conspiracy).

• Divorcing Brooklyn couple has put up sheetrock wall dividing house into his and hers [L.A. Times, AP/Newsday]


• Boston Herald appeals $2 million libel award to Judge Ernest Murphy, whom the paper had portrayed as soft on criminals (earlier: Dec. 8 and Dec. 23, 2005) [Globe via Romenesko]


• Updating Jul. 8 story: Georgia man admits he put poison in his kids' soup in hopes of getting money from Campbell Soup Co. [AP/AccessNorthGeorgia]


• Witness talks back to lawyer at deposition [YouTube via Bainbridge, %&*#)!* language]


• Prominent UK business figure says overprotective schools producing generation of "cotton wool kids" [Telegraph]


• State agents swoop down on Montana antique store and seize roulette wheel from 1880s among other "unlicensed gambling equipment" [AP/The Missoulian]


• "You, gentlemen, are no barristers. You are just two litigators. On Long Island." [Lat and commenter]


• Some Dutch municipalities exclude dads from town-sponsored kids' playgroups, so as not to offend devout Muslim moms [Crooked Timber]


• As mayor, Rudy Giuliani didn't hesitate to stand up to the greens when he thought they were wrong [Berlau @ CEI]


• Australia: funeral homes, fearing back injury claims, now discouraging the tradition of family members and friends being pallbearers [Sydney Morning Herald]


• Asserting 200-year-old defect in title, Philly's Cozen & O'Connor represents Indian tribe in failed lawsuit laying claim to land under Binney & Smith Crayola factory [three years ago on Overlawyered]

This priceless segment ran on Comedy Central's Daily Show with Jon Stewart the other day (Feb. 9). John Oliver interviews a Colorado man who's filed bias complaint over "Ladies' Night" bar promotions, and who insists -- like so many other unintentionally silly litigants -- that his cause deserves to share the moral high ground of the civil rights movement ("Sexual Stealing").

For more on complaints targeting "Ladies' Nights", see Aug. 4, 2003, May 11 and Aug. 19, 2006 (Calif.), Jun. 10, 2004 (N.J.), Feb. 9 (N.H. -- complainant charged with extortion).

Readers who follow the phenomenon of ADA filing mills (Dec. 7, etc.) may recall the case of West Coast attorney Theodore Omholt, who has filed hundreds of legal complaints against businesses for violations (trivial or otherwise) of disabled-access laws, which he then settles for cash. In Honolulu, according to one news report, Omholt pushed his elderly mother around in a wheelchair to one business after another to establish the basis for filing 574 lawsuits. (Carolyn Said, "Controversial disability rights lawyer", San Francisco Chronicle, Apr. 21, 2002.) Omholt then refocused his practice on California where he sent out the following letter, quoted in my article three years ago in City Journal:

I am the attorney (age 48) who for the past three years has had the privilege to represent a small action group of six wonderful individuals who use wheelchairs age 37 to 66. . . . Their shopping at inaccessible stores in San Francisco and then filing lawsuits as clients of mine against those inaccessible stores nets them each an income which makes them financially independent. For each of them, the lack of funds which used to limit them to life’s bare necessities and which plagues so many disabled individuals today has become only an unpleasant memory from the past. As a reward for implementing the law and making stores more accessible for other disabled shoppers, group members now use their stream of income to eat out at good restaurants when they want to, buy new clothes and computers and televisions and gifts for family members, travel and take vacations wherever and whenever they want to go, and live a lifestyle they could only imagine prior to joining the group. . . . The group has room for a small number of additional members. Once that small number of additional members has been selected, the group will again close to new members.

Alas, even the most thoughtfully devised business plans sometimes meet with a hitch. Reader W.R. alerts us to this copy of Supreme Court minutes (PDF) from San Francisco, dated May 10 of last year, which at page 51 reports the following:

S143253 OMHOLT ON RESIGNATION -- The voluntary resignation of TED OMHOLT, State Bar No. 92979, as a member of the State Bar of California is accepted without prejudice to further proceedings in any disciplinary proceeding pending against respondent should he hereafter seek reinstatement. It is ordered that he comply with rule 955 of the California Rules of Court and that he perform the acts specified in subdivisions (a) and (c) of that rule within 30 and 40 days, respectively, after the date this order is filed.* Costs are awarded to the State Bar. *(See Bus. and Prof. Code, §6126, subd. (c).)

It's too bad the minutes aren't more informative about the circumstances surrounding Mr. Omholt's voluntary resignation from the California bar. Readers familiar with the details are welcome to illuminate matters.

Glenn Reynolds posts on problems with Wikipedia. The problem is worse than he imagines, because lazy mainstream media are now relying on the site. I won't embarrass the reporter by name, but he did a story on the ATLA name change; in the course of the story, he quoted fictional statistics invented by the Center for Justice & Democracy as "evidence" of the failure of medical malpractice reform. I dropped him an email pointing out the error, and the response included the following:

"I have found that non-obscure entries in Wikipedia are usually policed carefully to prevent unfounded, unanswered spin."

"The Irish News must pay £25,000 plus court costs to a west Belfast Italian restaurant owner after a jury found a food critic's review to be defamatory." ("£25K for food critic's poison pen", BBC, Feb. 8). Journalist Caroline Workman, in a review of Ciaran Convery's restaurant Goodfellas, had "described his staff as unhelpful, his cola as flat, and his chicken marsala 'so sweet as to be inedible'". Guardian restaurant critic Matthew Norman described the jury verdict as "very worrying news": "You really cannot overstate the imbecility of a libel jury: what we really need now is a sustained campaign against our ludicrous libel laws." (Maev Kennedy, "Critics bite back after restaurant reviewer sued for calling chicken too sweet", Guardian, Feb. 10).

In the last presidential election, John Edwards had the powerful support and deep pockets of the nation's trial lawyers behind him. But when the lawyers gather for their winter conference today in Miami Beach, it will be Sen. Joseph R. Biden Jr. (D-Del.) delivering the meeting's keynote speech.

Four years ago, [Fred] Baron shuttled Edwards around the country on his private jet to introduce him to other lawyers. Now, Baron is working to reinforce Edwards's standing with some of his backers from the last campaign.

Multi-billion dollar (and down) extortion edition:

• Merrill Lynch and CSFB appeal extortionate Enron class-action certification. [Point of Law; AEI (Feb. 9); WLF brief]
• More on the extortionate and lawless $500 billion Wal-Mart class certification. [Point of Law]
• Mississippi Supreme Court rejects extortionate medical monitoring class actions. [Behrens @ WLF]
• Lawyer Daniel Hynes tries to extort $2000 from New Hampshire bar holding Ladies' Night. [Foster's Daily Democrat (h/t B.C.)]
• Colorado Civil Justice League stops legislative attempt at giveaway to local trial lawyers. [Point of Law]
• Wisconsin court: family can be sued for babysitter's car accident when returning home from dropping off child. [AP/Insurance Journal]

• Fox seeks to dismiss Borat suit on anti-SLAPP grounds. [Hollywood Reporter Esq. via WSJ Law Blog]

• Passaic County jury: $28M for "wrongful birth." [NorthJersey.com]
• Former AG (and Dem) Griffin Bell: "Judicial Leadership Emerging In Asbestos And Silica Mass Torts" [WLF]

• Utah legislature considering med-mal reform for ERs. "Neurosurgeons in this town have to pay over $90,000 a year just for the privilege of getting out of bed on a Friday night to drain the blood from the brain of a victim of a drunk driver crash. And they say, I'm not gonna do it. Because the patients are sicker. The procedures are sometimes more invasive and more risky with more complications. Why take that risk if they don't have to?" [KCPW via Kevin MD; Provo Herald]

• A little-read blog promoting a soon-to-be-pulped fictional account of tort reform is really begging for a link from us, what with three out of the last five posts making amateurish (and often false) personal attacks on this site's authors or soliciting others to also fling poo. No dice.

One day in November 2005 after classes had ended for the day at King High School in Tampa, Otis Lorenzo Neal got out of a van and fired into a group of fellow teenagers in the parking lot at a nearby McDonald's, killing one and wounding three others. Now a lawyer for Alexander McKinnie, one of the wounded students, is suing the restaurant, saying it should have foreseen and prevented the shooting "'because of regular fighting amongst teenagers, gang activity, thefts, robberies, assaults and other crimes' that took place at the restaurant and in the vicinity". (Rebecca Catalanello, "Man sues McDonald's for negligence in a 2005 shooting near King High", St. Petersburg Times, Feb. 6; Justin George, "Plea deal in student killing", St. Petersburg Times, Jan. 31).

Canada: " Accusations of age discrimination are being lobbed at the University of Ottawa by 10-year-old twins who were registered in a course before being expelled in the fall. Sebastien and Douglas Foster filed complaints with the Ontario Human Rights Commission on the basis of age discrimination after the school deregistered them from the Science in Society course they had been attending." The university said it had mistakenly allowed the youngsters to enroll in contravention of a policy requiring students to possess a high school degree or equivalent, and that it had offered to refund their tuition. The students had enrolled in an already controversial course informally known as the "Activism Course", with the approval of its instructor, Prof. Denis Rancourt; asked by a reporter why he sought to study at the university, young Sebastien said he's learned about 'the Afghanistan war that's going on and about how many animals are being killed for food and a lot of things.'" (Laura Czejak and Dave Pizer, "Twins, 10, cry foul over U of O expulsion", Ottawa Sun, Jan. 30).

"The lawyer for a former crematory operator said he believes mercury exposure led his client to leave 334 bodies to rot in piles across his property. A prosecutor disputed the theory, saying the lawyer was trying to win parole for Ray Brent Marsh, who admitted dumping the bodies and passing off cement dust as their ashes." ("Georgia crematory crimes blamed on mercury", AP/CNN, Feb. 7) (via Lat)(more blue-ribbon excuses).

That's how it goes: no regrets as of Feb. 4, "I am sorry" as of Feb. 8. Associated Press has more. Edwards' statement is here. Earlier, in what a Shakespeare's Sister commenter dubs a "Dewey Defeats Truman moment", Salon had erroneously reported that the two had been ousted. (P.S.: Salon stands by its story, saying the two were in fact sacked but that the decision was then reversed.) Earlier coverage on this site here, here and here.

More: Ted, in comments:

"I am sorry that you were offended" is a rather non-apologetic apology by Marcotte, so she isn't being quite inconsistent with her earlier "Je ne regrette rien" position, other than that her statement doesn't refer to "tone-deaf wingnuts."

What's amusing is that even this tepid politic gesture by Edwards is causing the Angry Blog Left to howl for his head. It's an entertaining deal with the devil Edwards has made by courting this crowd, and shows his general unfitness for governing.

And from reader Hans Bader:

Apparently, Edwards is ethically clueless after all.

The only remarks that offended him were Marcotte's religious insults, not Marcotte's defamatory, malicious, and ignorant remarks about the Duke student defendants....

And: "Asked whether the campaign had sufficiently screened the two women before they were hired, [Edwards spokeswoman Jennifer] Palmieri said it was difficult to find and read every word a prolific blogger had written over a period of years." (John M. Broder, "Edwards Learns Blogs Can Cut 2 Ways", New York Times, Feb. 9). That's an exceptionally lame excuse as regards Marcotte, whose abusiveness of tone seems to have been a standing, definitional aspect of her online presence: it's hard to sample any random week's worth of her posts at Pandagon without being hit over the head by it. As mentioned earlier, her post on the Duke case appeared while she was actually under consideration for the Edwards team, which would hardly have required anyone to dig through "years" of her work.

• New Jersey Supreme Court won't touch appellate court reversal of $105M dram-shop verdict against Aramark Corp. Not noted in our earlier coverage: Aramark was held liable as a deep pocket through illegitimate piercing of the corporate veil, adding yet another problem to an appalling series of problems with the trial. [New Jersey Law Journal; earlier on Overlawyered; Point of Law]
• Half-trillion-dollar class certified against Wal-Mart in lawless Ninth Circuit decision. [Point of Law]
• Court papers show direct link to Lerach in Milberg probe. Most entertaining: a letter by Lerach saying "Dr. Cooperman's reputation and character are impeccable." Cooperman has since pled guilty to taking kickbacks, and Milberg Weiss now says he has no credibility. [National Law Journal; WSJ Law Blog]
• Slip and fall worth $5.7M [Atlantic City Press]
• Cardiologists doing Brazilians: "Graduating med students aren't blind; they see established physicians with busy practices dropping out. Looking ahead they see more headaches--more controls and regulations, more scrutiny, more liability, less money." [TIME via Kevin MD]
• Florida law may allow men to get out of paying fraudulent paternity when DNA shows they're not the father. [Miami Herald; see also Parker v. Parker; earlier on Overlawyered]
• Editorial: Alabama Supreme Court ruling on illegal multi-billion-dollar punitive damages award in Exxon contract dispute can prove state is no longer tort hell. [Press-Register]
• Update to earlier Overlawyered post: Danny Cuesta pleads guilty, sentenced to fifteen months; Melissa Cuesta, whose claim we covered, arrested for perjury, pleads not guilty. [EmpireStateNews.net via Teacher trash blog]
• Incomes and inequality: what the numbers don't tell us. [Marginal Revolution]
• India and the drug patent wars. [AEI]
• I (along with John Beisner, Michael Hausfeld, and John Stoia) am speaking on a panel on the Class Action Fairness Act at the National Press Club February 14. [Federalist Society]

"A state senator from Brooklyn said on Tuesday he plans to introduce legislation that would ban people from using an MP3 player, cell phone, Blackberry or any other electronic device while crossing the street in New York City and Buffalo." ("Ban Proposed On Cell Phones, iPods In Crosswalk", WNBC, Feb. 7). Comment: TechDirt, Global Nerdy, Bainbridge, Wired blog. A Blog for All rounds up links. Commenter Mike Knowland at Dvorak.org writes, "It won’t be enforced, but when someone gets hit by a car while breaking this law, the driver won’t be 100% at fault anymore."

"Genarlow Wilson, honor student and football star, had consensual sex with a fellow teenager. What happened to him next was a crime." Once the target of recruiting efforts by Ivy League coaches, the Douglasville, Ga. native is now twenty years old and Inmate No. 1187055 at Burruss Correctional Training Center, an hour and a half south of Atlanta. His crime? Sex with a 15-year-old girl, when he was 17. "Everyone, including the girl and the prosecution, agreed she initiated the act." The operation of Georgia law was what you might call Draconian: "Just two years into a 10-year sentence without possibility of parole, he peers through the thick glass and bars, trying to catch a glimpse of freedom. Outside, guard towers and rolls of coiled barbed wire remind him of who he is." (Wright Thompson, "Outrageous Injustice", ESPN E-Ticket magazine, no date posted; Wilson appeal website; Chandra R. Thomas, "Why Is Genarlow Wilson in Prison?", Atlanta magazine, no date posted; Sherry F. Colb, "The Harsh Wages of Sin: Why Genarlow Wilson is Languishing in Prison", FindLaw, Jan. 10; Doug Berman, Jan. 24).

More: Georgia lawmaker has introduced bill that would allow for more lenient resentencing in Wilson case ((Alyson M. Palmer, "Ga. Bill Takes Aim at Sentencing That Resulted in 10-Year Term for Teen Sex", Fulton County Daily Report, Jan. 29).

Perhaps not unrelated to the French Mohammed-cartoons trial mentioned yesterday, this is from Brussels Journal (Feb. 2):

If Turkey joins the EU then we will have the comedy situation that denial of the Armenian Holocaust is a criminal offence in France, whilst mentioning it is a criminal offence in Turkey. The happy result of this could be that the entire population of France could be lifted and placed, Midnight Express like in Turkish prisons. Of course the entire population of Turkey could then find itself extradited to France and imprisoned there.

Before anyone objects, yes, it's of course true that the laws in question do not actually compel citizens to speak affirmatively on behalf of the official view, so it's still possible (through silence) to avoid breaking anyone's law. The concept remains funny, though.

I wouldn't even go so far as to say there's things I "regret". There are comments I've made that tone-deaf wingnuts don't understand, sure.

-- John Edwards official campaign blogger Amanda Marcotte, or someone posing as her, in the comments at J Train. Marcotte (or the person posing as her) apparently thought better of the Edith Piaf stance, and a minute later returned with a second amending comment. For examples of the "comments I've made that tone-deaf wingnuts don't understand" regarding the Duke lacrosse case, see our post of Friday, further updated on Sunday.

Marcotte has a "tremendous fan" and doughty supporter in Ann Bartow of Feminist Law Professors (Feb. 6), whose precision in classifying adversaries as "conservative" is disputed by South of Heaven (Feb. 7: "People who know me are rolling all over the floor.") On the other hand, inveterate publicity hound and professional taker-of-offense Bill Donohue of the Catholic League has now gone on the warpath against Marcotte (and another Edwards hire, Melissa McEwan of Shakespeare's Sister). Marcotte's writings on religious topics do seem to present a rather broadly inviting target for offense-takers, to judge from the snippets now making their way into press coverage (Nedra Pickler, "Catholics Slam Bloggers Hired by Edwards", AP/ABCNews.com, Feb. 6; Kathryn Jean Lopez, "Unholy Hire", National Review, Feb. 6). The New York Times's coverage, unlike the AP's, makes reference to the Duke lacrosse rants that originally drew our and many other people's attention to Marcotte. (John M. Broder, "Edwards’s Bloggers Cross the Line, Critic Says", New York Times, Feb. 7). The Times adds that "Mr. Edwards’s spokeswoman, Jennifer Palmieri, said Tuesday night that the campaign was weighing the fate of the two bloggers."

More commentary: Patterico ("godbag"); Ed Morrissey ("In the case of Marcotte, her anti-Catholic screeds would make Jack Chick blush with embarrassment"); Althouse; John Cole (scroll to "Browns/Cowboys Superbowl", as well as comment); Kos comments (do Catholics tithe, anyway?); "Expo" on Kos; Matt Stoller at MyDD.

From a report in London's Evening Standard Dec. 12 on the controversy over NASDAQ's interest in buying the London Stock Exchange:

Critics such as Mayor Ken Livingstone warn that the takeover could have very serious implications for London's position as the world's pre-eminent international finance centre.

In a letter to the Office of Fair Trading, Mr Livingstone says the proposed takeover risks the traditionally free-wheeling City being throttled by US-style regulation [emphasis added] and warns that investment in the Stock Exchange could be curtailed.

Note to the New Yorker, Fortune, and other press organs who claim Mayor Bloomberg and Sen. Schumer are being excessively alarmist about capital market flight: when even the Castro-fêting "Red Ken" says we're overregulating in this country, maybe we're really overregulating (cross-posted from Point of Law).

"Two French Muslim organisations are suing the magazine Charlie Hebdo for printing cartoons satirising the Prophet Muhammad. ... Supporters of the magazine, including some French Muslims, say the trial is a test case for free speech." No, really, you don't say? (BBC, Feb. 7).

Aw, that's not fair. What would we do for material? "Thompson's ire [at the alleged evils of videogaming] spread to several law professionals involved in the lawsuits he filed. The disbarment proceedings resulted from separate grievances filed by people claiming that Thompson made false statements and attempted to humiliate, embarrass, harass or intimidate them, according to documents in the [Florida bar disciplinary] case." (K.C. Jones, " Grand Theft Auto Critic Faces Misconduct Charges", InformationWeek, Feb. 6; "Jack Thompson Faces Florida Supreme Court Disciplinary Hearing", GamePolitics.com, Feb. 3; Billy Berghammer, "Jack Thompson Faces Florida Disciplinary Hearing", Game Informer, Feb. 5). More: Oct. 30, Oct. 20, and many others.

But can Sylvia Browne divine beforehand whether her attorneys at the Hodgson Law Group will be successful in muzzling the website critical of her? Orac (Respectful Insolence) has coverage (Feb. 6).

We first covered the case of Ted H. and Mary Schorlemer Roberts Jun. 13, 2004 and Sep. 3, 2005:

According to a story in the San Antonio Express-News, husband-and-wife legal partners Ted H. and Mary Schorlemer Roberts received money in a curious sequence of events. Mary, claiming to seek "no strings" discreet encounters, would seduce men over an Internet dating service. Ted would then write the men (in legal documents sometimes typed by Mary) and notify them that he planned to seek intrusive and public civil discovery to investigate whether the affair brought forward potential causes of action that were flimsy at best; the men would pay tens of thousands of dollars for a release and confidentiality agreement.

Two San Antonio, Texas, lawyers, married to each other, face a trial on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for his emotional distress.

You'll never guess how the Roberts' lawyer defends them:

[Michael] McCrum contends the state is trying to prosecute his clients for something that civil lawyers do all the time -- send demand letters and present petitions they plan to file under Rule 202.

"By stretching statutory words to an unprecedented interpretation, the state seeks to criminalize as "theft the presentment and subsequent settlement of potential claims authorized under the Texas Rules of Civil Procedure," Mary and Ted Roberts alleged in one of several motions to quash their indictments that Harle dismissed in October 2006. ...

[Baker Botts attorney Rod] Phelan says there is "a kernel of truth" in the point that McCrum is making. "The line between extortion or blackmail and making a demand to settle a colorable claim is gray," he says.

Such an appealing candidacy in most other ways -- but then one remembers his stance on gun litigation as mayor and, in particular, the insults to federalism he was willing to endorse at the time. A simple "I was wrong" would work wonders (NRO "The Corner", Feb. 2).

"I cannot rip out the hearts of those who hurt you. I cannot hand you their severed heads". But Rochester, N.Y. injury-law advertiser Jim ("The Hammer") Shapiro could promise to "squeeze them for every dime I can":

For more, see Apr. 15, 2005. Shapiro's ethically-challenged and now-defunct legal practice did a notably poor job of living up to its promises; see Jun. 17-18, 2002, May 24, 2004, etc.

Such a grand idea from an anti-smoking campaigner up North: "Children should be able to sue their parents for exposing them to harmful second-hand cigarette smoke, an Alberta doctor says." Dr. Larry Bryan, who worked on a provincial commission that planned out anti-tobacco measures, "says banning puffing in cars or homes would be very difficult to enforce. But he believes the message would come across loud and clear if smokers were held legally responsible for their actions through exposure-related lawsuits. "(Michelle Mark, "Let kids sue parents", Edmonton Sun, Feb. 4).

Meanwhile, regulation creeps forward on other fronts: "Texas will join a handful of states that prohibit foster parents from smoking in front of children in their homes and cars when a new state rule takes effect January first. Under rules passed this year, foster parents can't smoke in their homes if they have foster children living there. They also can't smoke while driving if children are in the car. Other states with similar smoking laws include Vermont, Washington and Maine." Roy Block, president of the Texas Foster Family Association, says rules of this sort discourage Texas families from stepping forward to offer themselves as foster parents; most states do not exactly enjoy a surfeit of applicants well-qualified on other grounds ("Texas To Prohibit Foster Parent Smoking", AP/WOAI, Dec. 4).

My new column is up at the Times Online on the problem -- long familiar to readers of this site and Americans in general, somewhat less so in the U.K. -- of overzealous warning labels. My jumping-off point is the new book Remove Child Before Folding, earlier mentioned here and for sale here. (Walter Olson, "Keep your children away from open flames", Times Online, Jan. 28).

Today is also the day the Times unveiled its redesign: check out the front page, the law page, and this interview with the designers.

• First Democratic earmark for trial lawyers. [Point of Law; Grace]
• Philip Howard on the lack of trust in the American justice system. [Common Good/NY Sun]
• Cooperman pleads guilty to Milberg Weiss kickbacks. Anonymous commenter at WSJ Law Blog: "Mr. Taylor of Zuckerman Spaeder contends that Mr. Cooperman’s statements “have never been credible.” Then why on God’s green earth did Milberg Weiss repeatedly use Mr. Cooperman as a plaintiff in the first instance for so many years if he was not credible? Is Mr. Vogel, another plaintiff whom Milberg Weiss repeatedly used for decades who also has pled guilty similarly not credible? Milberg Weiss certainly has a penchant for finding “not credible” plaintiffs for representing class interests." [Point of Law; WSJ Law Blog]
• Bone-screw litigation and informed consent claims. [Drug and Device Law Blog]
• Dan Markel has a more theoretical look at the car-wash "forgiveness" case. [Prawfsblawg]
• Getting rich on backdating (but not the way you think) [Ribstein]
• Jury selection in San Francisco [Cal Biz Lit; see also NLJ]
• Hawaii losing doctors; gov calls for reform; 86% of Hawaii med-mal claims without merit [The Honolulu Advertiser]
• The miracle of joint and several liability: Police chase injuries put city on hook $4.5 million, because city held a 10% responsible for felon's car accident. [The Olympian]
• Judge Harry Hanna becomes star for his slap on the wrist to Chris Andreas, but, more jaw-dropping: Ninth Circuit Judge Bea defends the double-dipping lawyer. [Point of Law; Legal Pad; WSJ Law Blog photo of Andreas t-shirt]
• The Guardian v. AEI. [Adler @ Volokh; Frum; Point of Law]

The Ann Arbor News covers Adrian Zachariasewycz's complaint against the University of Michigan Law School (see Jan. 27), and quotes me along the way:

In addition to seeking unspecified monetary damages, Zachariasewycz wants the law school to study his scores and provide a letter or make a verbal statement to prospective employers saying that his typing was a factor in his exams.

"I paid a lot of money to go to law school,'' Zachariasewycz said. "I interrupted my career. I worked very hard. And I got a big zero out of it.''

Walter Olson, a senior fellow at the Manhattan Institute, a conservative think tank in New York City, is founder of overlawyered.com, which posted a comment about the case and other lawsuits Olson believes have "eyebrow-raising potential.''

"It's hard to figure out what's been done to him that's unlawful,'' Olson said.

Olson said he thought it first had something to do with rights of the disabled.

"But it looks like he's just an ordinary bad typist like a lot of the rest of us.''

(Jo Collins Mathis, "U-M law school sued over grad's poor typing skills", Ann Arbor News, Feb. 2).

Discussed by Aidan Ellis and Tim Kevan at BarristerBlog (Feb. 1, Feb. 2).

John Edwards' selection as his blogger-in-chief of Pandagon's Amanda Marcotte has mushroomed into what National Journal "Beltway Blogroll" terms "the first blog scandal of campaign 2008," made more piquant by Marcotte's quick move (documented in our Friday post) to delete her bizarrely abusive rantings about the Duke case once they began to attract attention. I should note that in our very active comments thread, Ted takes a different view than I do of the affair, and I explain in turn (in a comment kindly quoted by K.C. Johnson) why I think the episode does reflect poorly on Edwards' campaign:

John Edwards's life in the law and experience with the justice system is his major resume item dating back beyond the past few years, as well as the major reason this site has given his career extensive coverage. Moreover, the Duke case, which looks ever more like the Scottsboro Boys case of our era, has been convulsing his own state of North Carolina for month after month. Edwards' dodging of the case -- his apparently successful stifling of any urge to speak out at the plight of the falsely accused -- might on its own stand as merely cowardly. Marcotte's hiring, on the other hand, throws an even less attractive light on it, rather as if, in Scottsboro Boys days, an on-the-sidelines Southern senator took on as a major spokesperson someone who'd been yelling the Boys' guilt from the rooftops in the most crudely prejudicial language.

On Marcotte's quick removal of her Duke comments, Dale Franks at Q and O makes the legitimate point that there's nothing intrinsically improper in bloggers' going back to amend or delete past posts that they now realize are mistaken or which no longer reflect their evolving views. And Ted cautions, also quite fairly, against evaluating a blogger's fitness for a real-world post by pointing to the most inflammatory of his or her thousands of past posts.

Part of what lends the Marcotte episode such a comic aspect, however, is the timing and nature of her post and later revision. Her vitriolic rant asserting the lacrosse players' guilt was posted a mere two weeks ago, almost certainly at a point after (as the Atlanta airport reference indicates) she had already entered talks with the Edwards campaign and thus had reason to know that she might soon come under the heightened scrutiny accorded to an official spokesperson. These were not the impulsive utterances of a Net Newbie. Moreover, the temperate-sounding new "official stance" with which she replaced the scrubbed post is ludicrously different in both tone and content from the rant it replaced; at a quick reading, one might even take it for a defense of the lacrosse players. A closer examination of its dodgy language, however, reveals that she does not actually take anything back; there is no indication that she has reconsidered her view of Jan. 21 or sees it as being in need of actual correction.

As for whether Marcotte was just having a bad day and slipped into an abusiveness that is unrepresentative of her usual tone, even a cursory glance through her output at Pandagon makes clear that there is much more embarrassment for the Edwards campaign to come: a few examples are collected at LieStoppers (scroll to "Earlier Comments"), Michelle Malkin, and Creative Destruction.

Some further commentary: Common Sense Political Thought, Protein Wisdom, Mark Steyn @ NRO ("There are two Americas: one in which John Edwards gives bland speeches of soporific niceness, the other in which his campaign blogger unleashes foaming rants of stereotypically obsessive derangement."), Patterico (& welcome Michelle Malkin readers).

One of my favorite pop-culture bloggers, fellow Chicago Law graduate Adam Bonin, spots a line in today's New York Times Vows column—

As their dating progressed, Ms. Wu researched Mr. Nobay online and learned that in 1998 he sued Princeton, unsuccessfully, for defamation after the university notified medical schools he had applied to that his applications contained misrepresentations and altered his academic record. (In court, he admitted misstatements but says he still believes some of what Princeton presented was inaccurate.)

The graduate, Rommel Nobay, had admitted he told numerous lies and half-truths in applying to Princeton and later to medical school. He claimed that he was part black and a National Merit Scholar and that a family of lepers had donated half their beggings to support his dream. ... Nobay, 30, a computer science teacher from New Haven, admitted that he was not, in fact, a Merit Scholar and that a family of lepers had not helped send him to school. He also acknowledged that he doesn't know whether he has any black blood.

As I've noted other times on Overlawyered, United States infant mortality statistics are artificially high relative to other nations, because of the way they are tabulated. In the US, heroic efforts are taken to save the lives of premature infants; when those efforts fail, the infant mortality statistic goes up; other nations with rationed single-payer health care consider the same child "stillborn" and do not register the death in the infant mortality statistics.

Amber Taylor points out that I may have missed part of the story, and a part that I should be especially sensitive to: the effect of legal rules creating financial incentives to count stillborns as infant deaths. (& Apr. 8: response to the latter point from Linda Gorman of the Independence Institute).

More newspapers are covering the story raised by our January 31 post about the NFL forbidding Super Bowl parties and promotions. Notwithstanding the NFL threats, my heavily-blogger-attended annual Super Bowl party is still going forward, complete with the title "Super Bowl" on the Evite. (Stephanie Simon, "No sanctuary for Super Bowl flock", LA Times, Feb. 3 (churches); Liz Benston, "Casinos not best seat in house for big game", Las Vegas Sun, Feb. 2 (casinos)). (OT personal note: the latter story quotes my friend "Steve Fezzik", who I knew when he was just an actuary with a real name, and who almost convinced me to leave the law in 2001 to team up with him as a professional gambler.)

With EPS of negative $3.14, Overstock.com CEO Patrick Byrne is regularly named as one of the worst CEO's; as MarketWatch's Herb Greenberg writes, "Byrne has done an atrocious job, proving himself inept at running a public company. And while his idea for Overstock is intriguing, his execution has been a failure, especially relative to what he led shareholders to expect. Worse, he has spent shareholder time and money using innuendo and lies to create a conspiracy theory that includes journalists (including yours truly), regulators, politicians and others as his company's performance plummeted." Overstock, apparently unable to make money through its business plan, has a new business plan: sue investment banks for $3.5 billion in California state court, blaming them for the 77% decline in stock price. The suit alleges shenanigans on controversial practices of naked short selling, but the economic theory of price manipulation and damages is simply bogus: if the perpetually-money-losing Overstock were really worth billions more, investors would have every incentive to squeeze the short-sellers, who don't have the market power to manipulate the price. Forbes writes a sympathetic and unskeptical account of the lawsuit.

Disclosure: I lost an embarrassing amount of money investing in Overstock in 2006 by failing to sell it immediately when Byrne started blaming the company's problems on short-sellers.

Well after the revelation of the undisclosed DNA results, the ATM, taxi and dorm alibis, the umpteen times the stripper has changed her story, Amanda Marcotte still is willing to blast the Duke Lacrosse Three as guilty, guilty, guilty; and what do you know, the John-Edwards-for-President campaign has just saluted Marcotte's acuity by naming her its blogger-in-chief (Pandagon, Jan. 21, foul language galore; Edwards blog, Jan. 30; Blogger News Network, Jan. 30, via Taranto; LieStoppers, Feb. 1). It's enough to distract attention from all the comic joshing over the Friend of the Downtrodden's gigantic new residence, or "Suing-'em Palace" as Mark Steyn calls it (NRO "The Corner", Jan. 30; Dean Barnett, Jan. 30).

Update: Marcotte has now (1 p.m. Friday) yanked down her original post of Jan. 21, and appears also to have deleted several comments, but GoogleCache still has it for the moment. Here is its text, in the spirit of Fair-Use-ery:

Naturally, my flight out of Atlanta has been delayed. Let’s hope it takes off when they say it will so I don’t miss my connecting flight home.

In the meantime, I’ve been sort of casually listening to CNN blaring throughout the waiting area and good f**king god is that channel pure evil. For awhile, I had to listen to how the poor dear lacrosse players at Duke are being persecuted just because they held someone down and f**ked her against her will—not rape, of course, because the charges have been thrown out. Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it? So unfair.

111 Responses to “Stuck at the airport again…..”

Further update (1:20 p.m. Friday): Here are two comments that Marcotte appears to have deleted from the original thread. The "In her part of the country" comment had already drawn criticism from readers on the LieStoppers site:

Amanda Marcotte Jan 21st, 2007 at 12:54 pm

Yes, how dare a rape victim act confused and bewildered like she was raped or something.

# Amanda Marcotte Jan 21st, 2007 at 2:03 pm

Natalia, do you know the details of the case? If so, why do you think a women enthusiastically jumped into a sexual situation with men making slavery jokes at her? Furthermore, what is your theory on why she supposedly looooooved having sex with guys holding her facedown on the bathroom floor? There’s no “if” they behaved in a disrespectful manner. We have conclusive evidence that happened.

This is about race and class and gender in every way, and there’s basically no way this woman was going to see justice. In her part of the country, both women and black people are seen as subhuman objects to be used and abused by white men.

Plus: I see that K.C. Johnson ("Durham in Wonderland") is on the case in typically thorough and powerful fashion. Marcotte also provides this further comment reacting to her critics ("if I see the words 'Duke' or 'lacrosse' in an email that has the whiff of accusatory tone, I’m deleting it and simply not going to reply to it").

And again (11:30 p.m. Friday): In a further post, K.C. Johnson cites chapter and verse about how Marcotte's hiring won much praise for the Edwards folks as a shrewd way of reaching out to progressive netroots forces. More discussion: TalkLeft forums, Betsy Newmark, Jeff Taylor at Reason "Hit and Run" (R-rated), Outside the Beltway, Patrick Ruffini, South of Heaven, Little Miss Attila, Brainster; & welcome Glenn Reynolds, Kevin O'Keefe and Michelle Malkin readers.

Further updates: see Feb. 4, Feb. 7, Feb. 8, Feb. 12 (Marcotte quits Edwards post), Feb. 16.

A breastfeeding activist promotes, inter alia, t-shirts with the slogan "The other white milk." This has the National Pork Board, with its slogan "The other white meat," up in arms, and a Faegre & Benson attorney issued a ceast-and-desist letter. The shirt wasn't a big seller (and CafePress quickly acceded to the threat), so it's really not about the money, but Jennifer Laycock isn't happy about the bullying (h/t W.C.).

"We cannot permit federal lawsuits to be transformed into amorphous vehicles for the rectification of all alleged wrongs" -- a three-judge panel of the 11th Circuit (Chief Judge James Edmondson and Judges James Hill and Phyllis Kravitch), refusing to declare Alabama's property tax system an unconstitutional cause of racial segregation in its institutions of higher education. (Tom Gordon, "Appeals court says tax system doesn't segregate", Birmingham News, Feb. 1; "Ruling backs state in higher-ed case", AP/Montgomery Advertiser, Feb. 2).

Cory Doctorow talks back to the online Terms of Service proffered by a bed outfit by the name of Sleeping Earthed (Boing Boing, Feb. 1)(more on EULAs/End User License Agreements).

"A judge tossed out a sex and age discrimination lawsuit Thursday against Angels baseball that claimed thousands of men and juveniles were wronged during a promotional giveaway at a Mother's Day game. The gift – a red nylon tote bag – was offered free only to women age 18 and older." (Erik Ortiz, Orange County Register, Feb. 2; Lex Icon, Feb. 1). For more on the action by attorney Alfred Rava and his client Michael Cohn, see May 11, May 23, and Aug. 19, 2006.

How restrictions on free association can backfire, example #32,785: Hotel owners in Britain who cater to gay travelers say they could be forced out of business by regulations which would make it unlawful to indicate a preference for some guests based on sexual orientation. “At the end of the day, this is our home and as a landlord we have the right to refuse entry to anyone without giving a reason," says the owner of the Guyz hotel in Blackpool. On the other hand, the civil-rights campaign Stonewall offers no sympathy: "What gay people gain through having an equality law is much more than whether we can just run gay hotels." (Simon de Bruxelles, "Gay tourist hotels fear equality law", Times Online, Feb. 1).

Firing your lawyers? Be careful what you say about them in doing so. William and Elizabeth Margrabe had grown increasingly dissatisfied with the legal work done on their behalf by the firm of Sexter and Warmflash in a Westchester County, N.Y. lawsuit over the sale of a stake in a family business. In a letter firing the firm, Mr. Margrabe charged that its work was "fraught with missteps, poor legal judgments, failure to protect your client's rights on repeated occasions, and poor, adversarial, or misleading communications with your clients." He further accused the attorneys of pursuing their own interests over those of clients in seeking a hasty resolution of some issues, and also of charging a usurious interest rate on its fee. He copied the letter to the new lawyers he had hired to take over the matter.

How did Sexter & Warmflash respond? It sued the Margrabes for $1 million for defamation. Trial court judge Shirley Werner Kornreich ruled that its suit could proceed, and ruled outright in Sexter's favor on the Margrabes' liability for the "usurious fee" allegation, but an appeals court reversed, ruling that the Margrabes were protected by a privilege extended to statements made as part of a legal proceeding. (Anthony Lin, "Law Firm's Defamation Suit Against Former Client Dismissed", New York Law Journal, Jan. 10).

But then the Hell's Angels have been repeat customers of attorneys' services for long enough to build up an expertise (Thomas J. Lueck, "After Police Search, Hells Angels Brace for Fight", New York Times, Feb. 1)(quoting attorney Ronald L. Kuby). More: Feb. 10, 1996 (California county agrees to pay nearly $1 million after police shot and killed three guard dogs belonging to Hell's Angels club).

• In "State of the Economy" speech, Bush says litigation and regulation harm U.S. financial competitiveness, praises enactment of Class Action Fairness Act [Reuters; his remarks]


• How many California legislators does it take to ban the conventional lightbulb in favor of those odd-looking compact fluorescents? [Reuters, Postrel, McArdle first and second posts]


• Levi's, no longer a juggernaut in the jeans world, keeps lawyers busy suing competitors whose pocket design is allegedly too similar [NYTimes]


• Clinics in some parts of Sweden won't let women request a female gynecologist, saying it discriminates against male GYNs [UPI, Salon]


• Is the new Congress open to litigation reform? Choose from among dueling headlines [Childs]


• Anti-SLAPP motion filed against Santa Barbara newspaper owner McCaw [SB Ind't via Romenesko]


• Uncritical look at Holocaust-reparations suits against French national railway [Phila. Inquirer]


• Deep pockets dept.: court rules mfr. had duty to warn about asbestos in other companies' products, though its own product contained none [Ted at Point of Law]


• Lawyering up for expected business-bashing oversight hearings on Capitol Hill [Plumer, The New Republic]


• "King of vexatious litigants" in Ontario restrained after 73 filings in 10 years, though he says he did quite well at winning the actions [Globe and Mail, Giacalone's self-help law blog]


• Sen. Schumer can't seem to catch a break from WSJ editorialists [me at PoL]


• South Carolina gynecological nurse misses case of Rocky Mountain spotted fever -- that'll be $2.45 million, please [Greenville News via KevinMD]


• Five years ago on Overlawyered: we passed the milestone of one million pages served. By now, though our primitive stats make it hard to know for sure, the cumulative figure probably exceeds ten million. Thanks for your support!