January 2008 Archives

Thus argues a lawsuit filed by James Bogden against four restaurants in Alexandria, Va., which "seeks to require the restaurants to become smoke-free, arguing that they must accommodate Bogden's disability, coronary artery disease, and eliminate secondhand smoke so he can eat at them. Each of the restaurants allows smoking in designated areas." (Jerry Markon, "Man With Heart Condition Wants Smoke-Free Eateries", Washington Post, Jan. 31).

An extraordinary number of consumers asked to be excluded from the class action settlement over Sears kitchen stoves that are allegedly too prone to tip when an opened oven door is leaned on. With humor quaint, the Chamber-backed Madison County Record reports on the reaction of class action lawyer Stephen Tillery:

At a Jan. 15 settlement hearing, Tillery interpreted the widespread rejection as a sign that he drafted a successful class notice.

"People read their mail," he told Circuit Judge Barbara Crowder. "There was no problem with notice."

(Steve Korris, "Consumer groups 'ecstatic' over Sears settlement, despite opt out of 4,896 stove owners", Madison County Record, Jan. 24).

Plaintiff's attorneys are slated to pocket $17 million in fees, which Tillery describes as modest compared to "the fund of monies made available to the class" by the troubled retailer, which he estimates at $500 million. "Made available" is of course a term of art, and it is anyone's guess as to how many class members will actually take the time and trouble to file for refunds of up to $100 on old stoves. Inevitably, however, last year's Sears wheel alignment class settlement comes to mind (see May 17 and Jul. 31, 2007). In that settlement the lawyers projected that consumers would redeem millions of dollars in coupons (and used that as the basis for their fee calculations), but the actual sum redeemed turned out to be $2,402.

Whatever the failings of the Army Corps of Engineers, the Flood Control Act of 1928 makes clear that federal taxpayers cannot be forced to pay through litigation for the catastrophic collapse of the levees, so there goes the multi-trillion-dollar class action. (Cain Burdeau and Michael Kunzelman, AP/Forbes, Jan. 30).

• Vioxx settlement is good for Merck and the trial lawyers suing it, the price being paid in legal ethics [Gryphon/City Journal]
• Australia: will-contest lawyers "will have their fees capped after a string of cases where the bill has exceeded the final inheritance." [Sydney Morning Herald]
• ADA obliges golf courses, at least Marriott's, to furnish accessible carts to disabled golfers, federal judge rules [Egelko, SF Chronicle]
• Henry Fonda/Sidney Lumet jury-deliberation classic Twelve Angry Men normally spoken of in tones of reverence. But what's this? [Leo McKinstry, U.K. Spectator; Gracchi, Westminster Wisdom]
• Columnist and talk show host Michael Smerconish, himself former trial lawyer, is among latest to be sued by inmate/fantasist J*nath*n L** R*ch*s [Philadelphia Inquirer; earlier]
• Biggest-ever EEOC settlement for individual racial discrimination will bring Lockheed Martin electrician $2.5 million [Reuters/NYT]
• U.K.: Coast guard wins award for saving teen from cliff, then loses job because he didn't follow prescribed health and safety precautions [Times Online, Sun]
• Lawsuit by baseball pros who missed out on big careers because they never abused steroids? [RedBirdsFan]
• Until Sarkozy, French heads of state liked to cancel outstanding parking tickets on taking office; contrast with American practice of pardons as departing Presidential gesture [Rittelmeyer/Cigarette Smoking Blog]
• New at Point of Law: Ted on med-mal statistics; Prof. Richard Nagareda on recognizing that mass torts are lawyer-driven; voter intimidation and union card check; state AGs and letters of marque and reprisal; Prof. Michael Krauss on thread-count class action; IRBs vs. hospital safety; Ted's continuing coverage of the Vioxx settlement; and much more.
• OSHA backs down from its plan to regulate hazards like trippable power cords and rickety chairs in telecommuters' home offices [eight years ago on Overlawyered]

NYU student Avram Wisnia was "horsing around a kiddie pool filled with gelatin" at a dorm party in 2004 when he was pushed and broke his hip. A judge has now ruled he cannot sue the university for allowing the event and having the school food service furnish the gelatin, the risks of such a recreation being obvious enough to put him on notice. ("No Go In Jell-o Wrestling Lawsuit Against NYU", AP/WNBC, Jan. 29).

Suits by businesses over their competitors' advertising are a staple for us, but this one has a somewhat new wrinkle:

Quiznos, the toasted-sandwich chain, [invited] the public to submit homemade commercials in a contest intended to attack a top rival, Subway. The contest rules made it clear that the videos should depict Quiznos sandwiches as “superior” to Subway’s.

Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way. Subway is also objecting to ads that Quiznos itself created, showing people on the street choosing Quiznos over Subway.

The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest? ...

If Subway wins, advertisers and media companies may find themselves liable for false advertising claims made by consumers who participate in their contests.

(Louise Story, "Can a Sandwich Be Slandered?", New York Times, Jan. 29).

Professor Burt Neuborne finally received the $3.1 million he requested for achieving a $1.25 billion tax-free settlement of claims brought by Holocaust survivors against Swiss banks. The controversy isn't over, however; Neuborne has made a standard request for interest (another $300,000), and there is much wailing and gnashing of teeth. [Law Blog; NY Sun; earlier on Overlawyered]

Professor Neuborne's fee request is based on the hours actually spent on seven years of complex international litigation (29 formal proceedings and 16 successful Second Circuit appeals), and amounts to less than 1% of the amount recovered. There is no evidence that Professor Neuborne inflated his hours. If all contingent-fee requests were as reasonable as Professor Neuborne's, reformers would have a lot less to complain about.

Elderly (80) and ailing, retired entertainment lawyer Seymour Lazar drew an unusually light sentence of six months home detention after having "pled guilty to taking secret payments from Milberg Weiss for helping to bring dozens of securities lawsuits by serving as a plaintiff or arranging for his relatives to do so. Three former Milberg partners, William Lerach, David Bershad, and Steven Schulman, have also pled guilty in the scheme," while the law firm itself and founder Mel Weiss continue to fight the charges and are expected to face trial later this year. "According to a statement from the prosecution, [federal judge John] Walter said he would have sentenced Lazar to a substantial prison term if he were younger and healthier." (Josh Gerstein, New York Sun, Jan. 29).

That's the most favorable thing I've heard about Hillary Clinton in quite a while; naturally, it's provoking heartburn in some quarters where Dellinger is viewed as neither leftist enough nor pro-litigation enough. (Stephanie Mencimer, Mother Jones blog, Jan. 28).

* "The FBI is expanding its probe into Mississippi's judicial bribery scandal to examine other cases involving Hinds County Circuit Judge Bobby DeLaughter and his former boss, longtime District Attorney Ed Peters." The pair surfaced in the Scruggs annals not long ago when Joey Langston pleaded guilty to involvement in a 2006 scheme to get DeLaughter to rule in Scruggs's favor in a fee lawsuit, which allegedly included the funneling of $1 million of Scruggs's money to Peters, who was viewed as close to the judge. (Jerry Mitchell, Jackson Clarion Ledger, Jan. 28). Rumors have been rife that Peters, DeLaughter or both may be cooperating with authorities, which might strengthen prosecutors' hand in securing further evidence of the scheme.

* Perhaps relatedly, to quote Folo's contributor NMC, "In the case against Dickie Scruggs over allegations of bribing Judge Lackey, the prosecution has filed a Notice of Intent to Introduce 'similar acts evidence pursuant to Rule 404(b), Fed. R. Evid., at the trial'”. See Patsy R. Brumfield, "Prosecutors ready to say bribery attempts aren’t anything new", Northeast Mississippi Daily Journal, Jan. 28.

* With what might seem like startlingly bad timing, Scruggs chum/novelist (and campaign donation co-bundler, if that's the right term) John Grisham is just out with a new fiction entitled The Appeal, whose thesis, to judge by Janet Maslin's oddly favorable review in the Times, is that the real problem with the Mississippi judicial system is that salt-of-the-earth plaintiff's lawyers are hopelessly outgunned in the task of trying to get friendly figures elected to judgeships to sustain the large jury verdicts they win. One wonders whether any of Maslin's editors warned her about recent news events -- she doesn't seem aware of them -- that suggest that the direst immediate problems of the Mississippi judiciary might not relate to populist plaintiff's lawyers' being unfairly shut out of influence. Of course it's possible she's not accurately conveying the moral of Grisham's book, and if so I'm not likely to be the first to find out about it, since I've never succeeded in reading more than a few pages of that popular author's work. By the way, if you're wondering which character in the novel Grisham presents as the "hothead with a massive ego who hated to lose,” yep, it's the out-of-state defendant.

Aides to candidates Clinton and Obama feverishly work an AAJ/ATLA trial lawyers' conclave down Puerto Rico way, sensing that the money behind the flagging John Edwards candidacy may be "looking for a new candidate to get behind". It's "a testament to the crucial role played by the legal profession in Democratic fundraising. Trial lawyers have proved to be the financial mainstay for Edwards's two presidential bids, as well as for the Democratic Party in general." Quotes longtime Overlawyered favorites Fred Baron, Thomas Girardi and Robert Montgomery (Matthew Mosk, "Top Candidates' Teams Look to the Lawyers", Washington Post, Jan. 28).

Initial reports had it that the car company's lawyers were objecting to fans' putting out a calendar adorned with pictures they'd taken themselves of their beloved Mustangs. Later, the company said it was fine with the fans' publishing the photos and calendars so long as they didn't use the Ford logo. (AdRants, Jan. 14; Culture Garage, Jan. 11).

We and many others criticized a law firm in October for taking the position that its cease and desist letters, also known as nastygrams, were copyrighted and thus could not be posted intact on the web by its targets. However, if a press release from that law firm is correct, a federal court in Idaho has just indeed taken the position that cease and desist letters may be covered by copyright law. Such a ruling, if upheld, would make it more difficult for the targets of bullying tactics by lawyers to rally online support for their cause. (TechDirt, Jan. 25; Slashdot, Jan. 26; Dozier Internet Law press release, PRWeb, Jan. 24).

More: "if a press release from the law firm is correct" turns out to be a big if: according to Ron Coleman at Likelihood of Confusion, as well as our own commenters, the Idaho federal court ruling falls far short of establishing any such proposition about these letters' being copyrightable. See also: Victoria Pynchon, IP ADR blog, TechDirt later post, Paul Alan Levy @ CL&P. And yet more: Marc Randazza, Eugene Volokh.

Tyler Cowen wonders, and his readers chime in with many of the obvious theories, as well as some not so obvious (Marginal Revolution and Volokh).

Spain: "A speeding motorist who killed a teenage cyclist is suing the boy's parents over damage to his luxury car, the government says." (AP/WINS, Jan. 25).

...her colorful defamation suit (or was it an employment suit?) against News Corp. (Motoko Rich, "Ex-HarperCollins Publisher Settles Defamation Suit", New York Times, Jan. 26). Earlier: Dec. 19, 2006, Nov. 20 and Dec. 3, 2007.

So suggests Robert Novak, which, if true, puts to question any claims Obama has for being a different kind of Democrat. One wonders how long the prosecutions of Mel Weiss, Dickie Scruggs, or the Kentucky fen-phen lawyers would last. Of course, one recalls, the Clinton administration wasn't any better when it buried a prosecution of Fred Baron in the Baron & Budd script memo scandal. Baron, who was the head of the ATLA trial-lawyer lobbying organization, is now Edwards's finance chair, though the media has yet to note this hypocrisy by the supposedly anti-lobbyist Edwards.

Richard Treanor and Carolynn Bissett face criminal charges for not cutting redwoods that have grown to block a neighbor's panels. (Paul Rogers, "Sunnyvale homeowners told to cut redwoods that block solar panels", San Jose Mercury News, Jan. 24)(h/t: Karen Myers).

More: Kevin at Truck and Barter thinks the local statute, which includes elements of first-in-time first-in-right, does a relatively good job at drawing bright-line rules to protect the competing legitimate interests of the property owners. For arguably relevant history, check out the old English doctrine of "ancient lights".

But they told us the malpractice crisis was just a myth dept. (Associated Press):

Oregon Health & Science University plans to cut at least 200 jobs and raise tuition by at least 10 percent to free the money needed for higher insurance costs following an Oregon Supreme Court ruling.

The December ruling cleared the way for the family of a brain-damaged child to pursue malpractice damages from the university. It effectively eliminated a liability cap of $200,000 designed to protect state agencies from major damage awards.

The cutbacks, expected to be announced Friday, were first reported by The Oregonian newspaper. Besides trimming jobs and hiking tuition, OHSU expects to restructure or close clinical, research and education programs, and scale back construction on Portland's South Waterfront.

OHSU said the court ruling will add $30 million a year in insurance and administrative expenses. Though that's only 2 percent of OHSU's annual operating budget of about $1.5 billion, it amounts to more than 60 percent of its annual support from the state's general fund. ...

OHSU is Portland's largest private employer with about 12,000 staff.

More: Victoria Taft (cross-posted from Point of Law).

The fastest-growing area of employment litigation in recent years has been wage-and-hour class actions, perhaps the biggest subset of which are lawsuits charging that white-collar employees have been misclassified as exempt from hourly wage and overtime calculations. Like many big employers, IBM has been hit with such suits from lawyers seeking to represent thousands of its employees. Information Week:

The good news for those workers is that IBM now plans to grant them so-called "non-exempt" status so they can collect overtime pay. The bad news: IBM will cut their base salaries by 15% to make up the difference, InformationWeek has learned.

The plan has been greeted with howls of protest from affected workers.

The payroll restructuring goes into effect Feb. 16 and applies to about 8,000 IBM employees classified as technical services and IT specialists, according to internal IBM documents reviewed by InformationWeek and sources at the computer maker.

The plan calls for a "15% base salary adjustment down across all units with eligibility for overtime," the documents state. The move is a direct response to the employee lawsuits -- at least one of which has apparently been settled.

"To avoid protracted litigation in an area of law widely seen as ambiguous, IBM chose to settle the case -- and to conduct a detailed review of the jobs in question," the documents state.

The giant tech company also intends to lobby for modernization of New Deal era wage-and-hour laws which might allow it to restore the previous compensation methods. Good luck with that -- even if it can show that most of the workers involved would themselves favor salaried rather than hourly status, the political clout of unions and trial lawyers has stymied efforts at legislative reform in the past. (Paul McDougall, Information Week/EETimes.com, Jan. 23).

There are more than 1,000 documented nationwide, including 113 in Vermont alone. The "1970s were hard times for operators of ski areas. There was an energy crisis, which not only cut down leisure driving by potential customers but saddled areas with higher energy prices. At the same time, liability insurance costs spiked. The histories of dozens of small ski areas end with the conclusion that it could not reopen one winter because the owners could not afford their insurance premiums." (Bill Pennington, "Vermont’s Forgotten Trails and Frozen Lifts of Winters Past", New York Times, Jan. 25).

It seems Chicago attorney Raymond Niro has doubled the bounty to $10,000 for anyone who will bring him the identity of the blogger who's often been critical of his courtroom activities. (Ameet Sachdev, "Patent licencers raising some ire", Chicago Tribune, Jan. 22). Earlier: Dec. 10.

An Alexandria tapas bar was cited for serving sangria—which violates a 1934 Virginia law against mixing wine with spirits, with penalties of up to a year in jail. Virginia Spanish restaurants, so warned, now only serve a bowdlerized version of the drink, to the dismay of customers who can get the real thing a few miles away in DC or Maryland. The legislature is contemplating a change, though a pending bill would fail to exempt the similarly illegal kir royals or boilermakers. (Anita Kumar, "Virginia's Sangria Ban At Issue in 2 Hearings", Washington Post, Jan. 24). (According to Instruction 33 on this bulletin, Virginia also appears to ban the pitcher of margaritas the local Mexican restaurant serves.) Left unspoken: when is someone going to bring a consumer class action against the Spanish restaurants serving faux sangrias without warning customers?

(ObJingoism: At least Virginia still has better Thai, Indian, and Vietnamese food than DC or Maryland.)

For more on the more modern food police, see Overlawyered's Eat, Drink, and Be Merry section or my article, A Taxonomy of Obesity Litigation.

A reader writes regarding our post on the perverse incentives given social workers:

Frankly, I'm surprised this story is news. The belief of every case worker I know (I've only been at this since July) is that if a kid on your caseload dies, the odds are that you'll be fired no matter what you did right or wrong. Besides the perverse incentives you mentioned, that cause over-removal of children at lower levels, there are perverse incentives for the people at the top of the chain--if they make the requirements so unattainable they can never be done perfectly, and keep caseloads high enough that no one can complete all his tasks, there will always be something they can find that caseworkers didn't do, and the caseworkers (and sometimes their immediate supervisors) can be fired.

One of the greatest needs I've seen for a loser-pays system has been this year in my work with county dependency courts. The Child Protective Investigators, who remove children and work with the state AG's office to get them adjudicated dependent on the state, prosecute the most absurd cases because it hardly costs them anything if they lose.

Right now I'm working with a CPI who is trying to take custody of a 17-year-old girl from her mother--even though by the time the trial comes around and the girl is adjudicated (probably won't be, because the CPI has a crappy case against her) she'll be one month away from aging out of the system. Since the CPIs don't pay if they lose, and don't even usually show up at trial to get chewed out by the judge, they have no reason not to waste my time, the judges' time, the attorneys' time, and (worst of all, since these poor folks aren't paid to be there) a phenomenal amount of innocent parents' time and money.

The single biggest problem with the dependency system, at least here in Florida, is that we don't have loser-pays.

Sorry for the rant. That post hit close to home!

On a similar point: see Illinois Alliance for Parents & Children, whose website isn't quite finished.

David Lat reports (Jan. 22) that the criminal defense attorney covered in this space a few months back has a new ad in the Baton Rouge phone book that omits his former slogan, "The Thugs' Lawyer". It does, however, offer a new "Expungement Special Only $500 * Plus Filing Fees".

Plaintiff Trish Wiener "believes Dannon misled her, and she wants to milk it for all it's worth", reports the Los Angeles Times. The paper's reporter seems almost disrespectful of this very serious legal action, which claims the bacterial cultures in Activia and DanActive yogurt aren't really as salubrious as the ad puffery would have you believe. Most dramatic-irony-freighted quote, from a lawyer with the California firm of Coughlin Stoia, which is representing Wiener: "Companies are getting more and more aggressive in their advertising claims. They end up playing off people's general fears and concerns." Just to clarify, that's a quote by a lawyer from Coughlin Stoia, and not a quote about that law firm, which is best known for until recently (in its Lerach Coughlin incarnation) being the home base of disgraced felon William Lerach. (Alana Semuels, "Yogurt maker sued for claims", Jan. 24).

Meanwhile, Michael Krauss at Point of Law (Jan. 24) discusses the recent settlement of a class action against Bed Bath and Beyond over disputed bedding thread counts.

• Longtime Overlawyered favorite Judy Cates, of columnist-suing fame, is using large sums of her own money to outspend incumbent James Wexstten in hard-fought race for Illinois state judgeship; Democratic primary is Feb. 5 [Belleville News-Democrat, Southern Illinoisan]
• City council told: we'll cancel your liability coverage if you throw all meetings and city records open to public [Seattle Times]
• Attorney member of Canadian Senate in spot of bother after revelation that she billed client for 30 hours in one day [Vancouver Province, edit]
• A public wiki just for Scruggsiana? After Keker's minions swoop in to do their edits, the Mississippi attorney may wind up portrayed as the next Mother Teresa, and not the Hitchens version either [WikiScruggs]
• Same general category of point, my Wikipedia entry now suddenly describes me as "controversial", when but a month ago I wasn't;
• $28 to $52 million in 18 months for serving as a DoJ "corporate monitor" sounds like nice work if you can get it, and former AG Ashcroft got it without competitive bidding [Lattman, St. Pete Times edit, PolitickerNJ, NJLJ]
• The Amiable Nancy (1818), admiralty case that could prove crucial precedent in Exxon Valdez punitive appeal, has nothing to do with The Charming Betsey (1804), key precedent on international law [Anchorage Daily News; Tom Goldstein/Legal Times]
• "First do no harm... to your attorney's case" [Cole/Dallas Morning News via KevinMD]
• Probers haven't come up with evidence of more than middling tiger-taunting, and attorney Geragos says he'll sue zoo's p.r. firm for defaming his clients [KCBS; SF Chronicle; AP/USA Today]
• UK's latest "metric martyr" is Janet Devens, facing charges for selling vegetables in pounds and ounces at London's Ridley Road market [WSJ; earlier]
• Lawyer can maintain defamation suit over being called "ambulance chaser" interested only in "slam dunk" cases, rules Second Circuit panel [eight years ago on Overlawyered]

The New York Times arts page (Edward Wyatt, "ABC Drama Takes on Science and Parents", Jan. 23) gives the producers of the forthcoming ABC television series "Eli Stone" a surprisingly sound thwacking for lending credibility to theories that seek to blame autism on the vaccine preservative thimerosal. The script of the show, notes the Times, "takes several liberties that could leave viewers believing that the debate over thimerosal — which in the program's script is given the fictional name mercuritol — is far from scientifically settled." But, the review notes, "reams of scientific studies by the leading American health authorities have failed to establish a causal link between the preservative and autism. Since the preservative was largely removed from childhood vaccines in 2001, autism rates have not declined."

Greg Berlanti, a creator of the series, tells the Times that the show presents both sides. If so, there is little doubt which side is presented as the "right" one. The title character of the TV show is supposed to have been a "bad" lawyer (he represented big businesses, you see) who after being struck by a spiritual crisis crossed over to redeem himself by representing the "little guy" in lawsuits. (Per the Times, "In each episode Eli Stone takes on a different cause; in other episodes sent to television reviewers for preview, he wages court battles against a pesticide maker and a priest.") The ABC preview site, and trailer running in theaters, end with a logo in which the "o" in the character's surname is presented as a halo. Nothing heavy-handed about that!

Maybe next season Stone can sue on behalf of a client claiming that overhead power line emissions triggered recovered memories of autoimmune damage from her breast implants.

P.S. Orac at Respectful Insolence, no surprise, is on the warpath: "It's times like these that I wish the Hollywood writers' strike had really and truly shut down production of new dramas completely." Other reactions: Autism Vox, Richard's Asperger's Blog, and various others rounded up by Liz Ditz.

My op-ed on the Supreme Court's denial of cert in the Enron class action is in today's New York Sun.

Dubner and Levitt's three examples of unintended consequences (Jan. 20) include two that will be familiar to longtime readers of this site: the way the Americans with Disabilities Act can harm disabled persons by convincing service providers and employers that it could prove legally onerous to take them on as customers or employees; and the way environmental law can backfire to encourage landowners to take a chainsaw to habitats suitable for endangered species. More: Bruce MacEwen.

Sue your real estate agent (David Streitfeld, "Feeling Misled on Home Price, Buyers Are Suing Their Agent", New York Times, Jan. 22; Gryphon @ PoL). Related: Vikas Bajaj, "If Everyone’s Finger-Pointing, Who’s to Blame?", Jan. 22 (mortgage and housing-finance litigation).

The blogosphere is abuzz with the new employee handbook for the Tribune Company (parent of the LA Times and Chicago Tribune), written by a layperson in plain English with verve and humor. [LA Times, Jan. 17; Lattman] "I'm amazed and amused at what lawyers get businesspeople to do," the author, Randy Michaels, the CEO for interactive and broadcasting, said about his efforts. Not to worry: the lawyers are ready to punish Tribune for that transgression. Bruce Nye also worries from the defense side.

No one suggests: Gee, if the litigation environment makes it impossible to have a short, plain, jocular, common-sense employee handbook, maybe there is something wrong with the litigation environment rather than the handbook? Or: why can't employees choose to work in an environment governed by a less stodgy handbook that is intended to promote a better workplace rather than by the cookie-cutter rules imposed by federal and state bureaucracies that require $500/hour employment attorneys to navigate safely?

(Update: Daniel Schwartz comments.)

• "Woman who 'lost count after drinking 14 vodkas' awarded £7,000 over New Year fall from bridge" [The Scotsman]
• Bar committee recommends disbarment for Beverly Hills lawyer who "played the courts like a bully in a child’s game of dodgeball" [Blogonaut (with response by attorney) via ABA Journal]
• Shot and paralyzed in parking lot of South Florida strip club, cared for back home in Tunisia, Sami Barrak is now $26 million richer by way of his negligent-security suit [Sun-Sentinel] Earlier Florida negligent-security here, here, and here.
• Canadian government orders airlines to stop charging the severely obese the price of a second seat [Winnipeg Free Press; earlier]
• Study of head-injury victims in Spain finds "nearly half of the people who go to court feign psycho-cognitive disorders with the objective of profiting from this in some way." [Science Daily]
• Federal judge vacates $1.75 million verdict, questions reliability of expert testimony in Nebraska recovered-memory sex abuse case [Lincoln Journal-Star, AP/Sioux City Journal]
• Confess your thoughts, citizen: Ezra Levant on his interrogation by official panel in Canada for publishing Mohammed cartoons [Globe & Mail; earlier]
• Class-action lawyers continue to hop on glitches with Xbox Live, Halo 3 and related Microsoft gaming systems [Ars Technica, News.com; earlier here and here]
• Bay Area proposal to ban much burning of wood in fireplaces and stoves (Nov. 30, etc.) draws strong reactions both ways [SF Chronicle]
• Harder to get into Ringling Bros.'s Clown College than law school, says man who attended both [six years ago on Overlawyered]

P.S. Whoops, that's what I get for posting while drowsy: earlier roundups by Ted already had the Scottish-tippler and obese-flyer items.

...now purchase privately provided insurance from an outfit called Wright & Co. against being sued individually over their actions on the job. The number stood at 17,000 as of 9/11, but has nearly doubled since then as legally sensitive federal law enforcement initiatives -- and lawsuits filed in response to those initiatives -- have expanded. The coverage is at best partial, and does not necessarily protect against ruinous legal expenses in more serious or protracted cases. (Scott Shane, "In Legal Cases, C.I.A. Officers Turn to Insurer", New York Times, Jan. 20).

If you're looking for the most strained use of Martin Luther King, Jr., as a metaphor, look no further than a non sequitur at Bizarro-Overlawyered, where Kia Franklin calls on King's memory as an argument against preemption. The historically minded will note the irony of invoking King's name in a defense of states' rights to subvert federal principles of uniform treatment. For more on preemption, see Greve and Epstein, POL March 2006, and POL on last week's cert grants in preemption cases.

We'll talk about King, too, but relate it to something he actually said: "I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character." See posts Jan. 2007 and Dec. 2006, Heriot @ POL, Jan. 2006, and POL on the Akaka bill. As Chief Justice Roberts noted (and was criticized for noting) in the last term, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

(And update: don't forget October 2006 on school discipline. Or October 2005 on why the great documentary "Eyes on the Prize" still isn't available on DVD to the general public.)

Yesterday's extensive New York Times piece by Nelson D. Schwartz, the lead story in the paper's Sunday business section, once again (see Dec. 9) provides strong overall perspective on the scandal, along with tidbits that will be new to all but the most obsessed (or most locally knowledgeable) followers of the affair. It focuses in particular on ever-more-central scandal figure P.L. Blake, sometimes known as the $50 million man, of whom we learn:

In interviews, other Mississippi political figures suggest that Mr. Blake has played a key role for Mr. Scruggs over the years. “P. L. essentially has done all the back-room negotiating for Dickie, but you’ll never see his tracks,” says Pete Johnson, a former state auditor who is now co-chairman of the Delta Regional Authority, a federal agency with headquarters in Clarksdale, Miss. ...“He was the nexus of his political network.”

Incidentally, and presumably unrelatedly, former Times insurance-beat reporter Joseph Treaster, whose profiles of Scruggs in years past I've had occasion to blast as epically credulous, is departing the paper to teach journalism at the University of Miami, per Romenesko.

Anita Lee of the Biloxi Sun-Herald is also out with another good background piece, including the results of inquiries into a topic of widespread interest, namely the circumstances under which Judge Bobby DeLaughter's name was not put forward for a federal judgeship even though (according to prosecutors) such a prospect had been dangled by conspirators hoping to improperly influence his rulings on a key Scruggs fee case:

Sen. Thad Cochran's office told the Sun Herald that DeLaughter's name was one of those mentioned for the appointment, but would not say which candidates Lott and Cochran privately discussed to recommend to President Bush. The office said Cochran wants to respect the privacy of candidates for the position. ... Government evidence indicates DeLaughter e-mailed at least one order to Peters so he could pass it along for pre-approval from Scruggs' attorneys.

Investigators are presumably taking an interest in confirming the account of Sen. Lott, who is Scruggs's brother-in-law, that he raised DeLaughter's name only as a brief and passing "courtesy" as opposed to making a serious effort on the candidate's behalf (more). And a commenter at Folo points to a passage deep in the now-fabled Luckey transcript which is highly suggestive as to the possible ways in which a large share of P.L. Blake's millions in tobacco fees might not have remained for long in Mr. Blake's possession (more).

Earlier coverage can be found on our scandals page.

In order to enhance diversity, it was necessary to suppress it dept.: "She feels as if she's been treated as if she has no rights," said the attorney for m-to-f transgender San Francisco resident Charlene Hastings, who's suing Daughters of Charity/Seton in Daly City alleging harassment and discrimination because it's not among the many Bay Area hospitals that would be happy to assist in Hastings's breast augmentation procedure. (Melissa Underwood, "Transgender Woman Sues Catholic Hospital for Refusing Breast Augmentation Surgery", FoxNews.com, Jan. 18; Barbara Feder Ostrov, "Transgender woman sues Seton hospital", San Mateo County Times/InsideBayArea.com, Jan. 6). [Title edited after commenter pointed out inaccuracy]

"There is a necessary and healthy line between what the initial author owns and what follow-on, or 'secondary,' authors get to do, and [author J.K.] Rowling is running over that line like the Hogwarts Express." With mention of Judge Posner's 2002 Beanie Baby decision (Tim Wu, "J.K. Rowling's Dark Mark", Slate, Jan. 10).

Yes, Jay Grodner willfully damaged the serviceman's car (Jan. 4, Jan. 13). He's getting off lightly, with some community service and a donation to a Marine charity. (John Kass, "Man who keyed car gets day in court; so do Marines", Chicago Tribune, Jan. 20; Michelle Malkin, Jan. 18).

In Great Britain, the Health and Safety Executive (HSE) has required the Carnon Downs drama group in Cornwall to undertake to keep plastic and wooden swords and cutlasses locked up when not in use on stage in a traditional pantomime. The group was also obliged to register an imitation gun which ejects a flag with the word BANG. (BBC, Jan. 18). Earlier on holiday pantomime regulation: Dec. 13, 2007 (no throwing candy to audience), Sept. 14, 2004 (cultural sensitivity in portrayals of characters).

Crystal Timpanaro was sitting in a golf cart near the 16th tee at Owl's Creek Golf Course in Virginia Beach watching her boyfriend play when a golfer at the 17th hole shanked a drive that hit her, per her lawsuit, which claims inadequate warning and misdesign of the course. (Deirdre Fernandes, "Woman struck by golf ball files suit, alleging design flaw in Beach course", Virginian-Pilot, Jan. 5).

LA Times:

In a deposition, [Dov Charney, founder and chief executive of casual fashion giant American Apparel] said that during the time of Nelson's employment he "frequently had been in my underpants . . . because I was designing an underwear line."

"I'm very proud of the underwear," he added.

In an interview, he also defended appearing in front of Nelson with just his genitals covered. "The demonstration of the" garment, Charney said, "was a product we were considering -- and I was in fit condition for it." He ultimately decided against putting it in the American Apparel line. "It wasn't classy," he said.

(A local designer "burst into laughter" when hearing Charney's explanation from a reporter; per the New York Post, the garment that the LA Times is too prim to mention is a "sock on his privates"; per Dateline NBC, it appears to have a rhyming name.) Mary Nelson's suit against Charney is docketed in Los Angeles Superior Court; he denies creating a hostile work environment or propositioning Nelson and claims Nelson was fired for poor performance (which Nelson, in turn, denies). This is the fourth sexual harassment suit against Charney, who won one and settled two. (Carla Hall, "Lawsuit has fashion mogul in spotlight", Los Angeles Times, Jan. 17; Dateline NBC (via ABA Journal)).

• Protection of ugly garage views? Garrison Keillor vs. neighbors in St. Paul, Minn. [NYTimes]
• If you're a lawyer who practices before the south Florida bench, it's not a recommended career move to use a blog to call one of its judges an "evil, unfair witch" [WSJ Law Blog]
• Nonprofit sleep-off center that takes in drunks sued after rescuing man who then succeeds in laying his hands on more liquor and drinking himself to death [Anchorage Daily News]
• New Starbucks offering of "skinny" drinks "could easily be considered a form of size discrimination" and lead to litigation, complains ticked-off barista [StarbucksGossip]
• Appearance of impartiality? West Virginia high court judge cavorted on Riviera with coal exec whose big case was pending before his court [Liptak/NYT] Update: Now recused, per WV Record.
• Retired drug enforcement officers sue Universal Studios, saying they were defamed as a group by "American Gangster" [MSNBC]
• Not much likelihood of confusion: shirtmaker Lacoste can't keep two dentists in Cheltenham, England from using toothy crocodile as logo for their practice [Reuters]
• People seized randomly off street for compulsory jury duty in St. Johnsbury, Vt. and Greeley, Colo. [AP/Findlaw via KipEsquire, Greeley Tribune]
• Federal judge orders attorney Robert Arledge of Vicksburg, Miss. to pay $5.8 million in restitution after conviction for organizing bogus fen-phen claims [Clarion-Ledger; earlier]
• Canada: abuser of crystal meth successfully sues her drug dealer [BBC]
• Animal rights group tries to shut down "happy cows" ad campaign [three years ago on Overlawyered]

Earlier:

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest.

A commenter asked why Bush had the authority to do this. President Bush's order is on-line. The claimed authority is based on 16 U.S.C. § 1456(c)(1)(B), which reads in relevant part:

After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with [the Coastal Zone Management Act], and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States.

The claim by the NRDC that the president's action is "an attack on the rule of law" and "flouting the will of Congress" is thus invalid: Congress explicitly reserved to the president the power to override a court decision finding a federal agency in violation of the Coastal Zone Management Act by exempting the agency from its requirements. The case has been remanded to district court, but whether it is sound policy to value military convenience over whales is now a political question that will now be resolved by Congress and the President, with nothing more for the court to decide, as the court does not have the authority to second-guess the president's decision whether something is in the "paramount interest of the United States."

(Separately, the Navy complied with the National Environmental Protection Act when the Council for Environmental Quality issued a letter (151-page PDF, but pages 3-4 are the relevant ones for the lay curious) under 40 C.F.R. § 1506.11; this will likely get litigated by NRDC, as who better to determine the military needs of the United States than a private litigant and a federal judge?)

I was on Marcus Lush's Radio Live talk show out of Auckland this morning, discussing American employment law. You can read more about workplace litigation here and disabled-rights litigation here, and my book The Excuse Factory: How Employment Law Is Paralyzing the American Workplace is available on Amazon.

(Re-posted from Point of Law.)

A report from California Citizens Against Lawsuit Abuse tells us: "In fiscal year 2005, three of California’s five largest school districts (listed above) paid $32.8 million in litigation costs - $8.0 million in verdicts and settlements and $24.8 million to outside counsel."

I wish the report could have been more persuasive on the costs of litigation: when the unwritten math is done, Los Angeles Unified School District spent less than $40/student on legal costs in FY 2005, which is just under 1% of their budget. (Between 2002 and 2005, the average was $70/student/year, and a little less than 2% of the budget.) Is that too much? Relatively little? I'm hard-pressed to say (school officials do do actionable things that get themselves legitimately sued), and the report does not give us a baseline. Did something change to cause costs to go down by over 60% between 2002 and 2005, or was 2002 (or 2005) an outlier? The report does not indicate. Why does Elk Grove's number include insurance costs and LAUSD's doesn't? (Is the report understating liability expense?)

Other data in the report are more interesting and troubling: "A 2004 study by Harris Interactive revealed that more than half of educators are concerned about the risks of legal challenges in their jobs and most educators feel the current legal climate has resulted in 'defensive teaching,'” and a sizable majority feel that their own ability to do the job has been adversely affected by liability fears. And there is an extensive report of a lawsuit against a Napa school district dress code that led the school district to change the policy rather than spend a small fortune defending it in court—though that is a consequence more of federal courts' meddling in school administration on purportedly constitutional grounds (Nov. 2003) than of anything state legislative action can do, if a reminder that presidential judicial appointments really matter.

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest. (Pauline Jelinek, AP/Google, Jan. 16). Earlier coverage here. More: NYTimes.

It will evidently involve trying to get wiretap recordings excluded and seizing on a few of the (many, wandering and seemingly inconsistent) things that informant Tim Balducci said in conversation with Judge Lackey, some of which can be read as portraying Scruggs as out of the bribery loop -- though such remarks can be read as simply reflecting the wish of a then conspirator to protect Mr. Scruggs' plausible deniability, and although other remarks of Balducci's point in the opposite direction. Coverage: Michael Kunzelman, AP/Biloxi Sun-Herald, Jan. 16; Anita Lee, "Attorney says Scruggs had no knowledge of Balducci's attempted bribe; trial delayed", Biloxi Sun-Herald, Jan. 16; Rossmiller, Jan. 16; Folo multiple guest posts). Update: David Rossmiller now has a more substantial post up analyzing the defense (Jan. 17).

The prosecution, for its part, on Tuesday unsealed some explosive new contentions in the case, alleging that mystery figure P.L. Blake, whose role in the disposition of tobacco settlement money has already been the subject of much discussion, was also a behind-the-scenes player in the attempted Lackey bribe. "In a Sept. 28 telephone call secretly tape-recorded by the government, [Steven] Patterson told Balducci his wife had just gotten off the phone with Blake, who had met with Scruggs, [Assistant U.S. Attorney Bob] Norman said." (Jerry Mitchell, Jackson Clarion-Ledger, Jan. 16).

The lead plaintiff had claimed losses of $25 million, but settled for zero plus some corporate-governance changes that, as a Rutgers professor notes, probably would have happened anyway. But a settlement approved by a New Jersey federal judge in a shareholder suit against Schering-Plough awarded $9.5 million in attorneys' fees, even applying a multiplier to lodestar hourly rates. [New Jersey Law Journal/law.com; In re Schering-Plough Corp. Securities Litigation, Case No. 2:01cv829 (D.N.J.)] Paying for those fees: shareholders, who also paid for what were likely multi-million dollar defense costs of litigation. Judge Katharine Sweeney Hayden, when certifying a single class in 2003, rejected arguments that there was an inherent conflict between class members that had already sold their stock and class members who continued to hold stock; she was appointed by Clinton in 1997.

Who says we never praise Democrats? Via Scheuerman, New Jersey's Democratic governor Jon Corzine has vetoed a law that would have created unlimited noneconomic damages in wrongful death cases:

"[U]nlimited damages … could have a significant impact on state and local budgets, since government entities are not infrequently named as defendants in wrongful death suits, and there are similar concerns as the State undertakes efforts to attract and grow businesses here."

"Unfortunately, I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages."

He urged the Legislature to consider alternatives "granting more flexibility for courts to reduce excessive non-pecuniary damage awards and defining non-pecuniary damages less expansively."

[NJ Law Journal/law.com; earlier: Jan. 9]

As a number of commentators have noted (e.g. Brett Kittredge @ Majority in Mississippi, Alan Lange @ YallPolitics), Booneville attorney Joey Langston, who just entered a guilty plea on charges of judicial corruption, is someone accustomed to throwing the weight of his pocketbook around in Mississippi politics. In particular, he has been among the biggest donors to incumbent Mississippi attorney general Jim Hood, even as Hood employed Langston and partner Tim Balducci on contract to handle the controversial MCI tax bill negotiations, with their resulting $14 million legal fees payable to Langston et al, and the potentially very lucrative Zyprexa litigation.

Equally interesting in some ways, however, are Langston's activities on the national political scene. To take just one example: this CampaignMoney.com listing tabulates the top "527" contributions to a group called the Democratic Attorneys General Association, whose political and electoral mission is implied by its name. In the listing, two donors are tied for first place, with contributions of $100,000 apiece. One is the large Cincinnati law firm of Waite Schneider Bayless Chesley, associated with one of the country's best-known plaintiff's lawyers, Stanley Chesley. The other $100,000 contribution is from Joey Langston.

In presidential politics, Langston has recently been a repeat donor to the quixotic (and, since Iowa, defunct) campaign of Sen. Joseph Biden (D-Del.), a lawmaker whose high degree of seniority on the Senate Judiciary Committee makes him important to ambitious lawyers whether or not he ever attains the White House. When the Scruggs scandal was still in its early stages, the WSJ law blog (Dec. 10) noted that two key figures in the affair, Tim Balducci and Steve Patterson, were strong backers of the Biden campaign: "Their bet on Biden was that he wouldn’t win the presidency but would become Secretary of State under a Hillary Clinton administration, according to two people familiar with their thinking." The Journal reprinted (PDF) an invitation to an Aug. 10, 2007 fundraising reception for Biden at the Oxford (Miss.) University Club, sent out above the names of six hosts, three of whom (Scruggs, Balducci and Patterson) were soon indicted. Scruggs, of course, is better known for his support of Mrs. Clinton, a fundraiser for whom he had to cancel after the scandal broke.

Campaign-contributions databases such as OpenSecrets.org and NewsMeat indicate that Langston has been a prolific and generous donor to incumbent and aspiring Senators across the country, mostly Democrats (Murray, Cantwell, Daschle, Nelson, etc.) but also including a number of Republicans who might be perceived as swing votes or reachable, such as Sen. Lindsey Graham (S.C.), Susan Collins (Me.), and Arlen Specter (Penn.)

Incidentally, some critics have intimated that Langston's generous support to DAGA, the Democratic Attorneys General Association, should actually be interpreted as a roundabout gift to Hood, who was the beneficiary of interestingly timed largesse from DAGA. It does not appear, however, that any of the parties involved -- Langston, Hood or DAGA -- have acknowledged any connection between the timing of the donations (& welcome Michelle Malkin, David Rossmiller, YallPolitics readers).

[Second of a two-part post. The first part is here.]

Yesterday's guilty plea by Booneville, Miss. attorney Joseph ("Joey") Langston in the attempted improper influencing of a Mississippi state judge would be major news even if it had nothing to do with the state's most famous attorney, Richard ("Dickie") Scruggs. That's because Langston and his Langston Law Firm have themselves for years been important players on the national mass tort scene. The firm's own website, along with search engines, can furnish some details:

• Per the firm's website, it has represented thousands of persons claiming injury from pharmaceuticals, including fen-phen (Pondimin/Redux), Baycol, Rezulin, Lotronex, Propulsid and Vioxx. It was heavily involved in the actions against Bausch & Lomb over ReNu contact lens solution (and its former #2 Timothy Balducci, the first to plead in the widening round of corruption scandals, won appointment to the steering committee of that litigation.)
• The Langston firm has represented thousands of asbestos claimants and says it has "significant" experience in the emerging field of manganese welding-rod litigation, also a specialty of the Scruggs law firm. The website AsbestosCrisis.com includes the Langston law firm in its listing of about thirty law firms deemed notable players on the plaintiff's side of asbestos litigation ("Tiny firm founded by Joe Ray Langston powerhouse in Mississippi with 50-year roots in state political circles.")
• Langston appeared to play a sensitive insider role for Scruggs in the largest and most lucrative legal settlement in history, the tobacco-Medicaid deal between state attorneys general and cigarette companies, the ethical squalor of which was a central topic of my 2003 book The Rule of Lawyers; as mentioned previously, when Dickie Scruggs routed mysterious and extremely large tobacco payments to P.L. Blake, he used attorney Langston as intermediary.
• Langston has repeatedly taken a high profile in the same fields of litigation as has Scruggs, including not only suits over asbestos, tobacco and welding rods but also two of Scruggs's "signature" campaigns, those against HMOs/managed care companies and not-for-profit hospitals.
• Though the firm is better known for its plaintiff's-side work, the Langston firm's "national practice" page asserts: "The Langston Law Firm virtually defined the role of 'Resolution Counsel' in the modern era of jurisprudence. Prominent domestic and foreign companies facing massive litigation have turned to The Langston Law Firm to create winning strategies to save their companies."

Many commenters (as at David Rossmiller's) have noted that Langston appears to have drawn an unusually favorable plea deal from federal investigators, who are granting him remarkably broad impunity as to uncharged offenses, and not even stipulating that he give up all ill-gotten funds. Presumably this signals that they expect Langston's cooperation to be unusually extensive and valuable. One hopes that this cooperation will include the full and frank disclosure of any earlier corruption and misconduct there may have been in all the past litigation in which Langston has been involved. In particular, tobacco, asbestos, and pharmaceutical litigation have all raised suspicions in the past because of instances in which forum-shopping lawyers took lawsuits of national significance to relatively obscure local courts -- quite often in Mississippi -- and proceeded to get unusually favorable results which paved the way for the changing hands of very large sums in settlement nationally. Were all these results achieved honestly?

Incidentally, and because it may confuse those researching the matter on the web, it should be noted that there is a second prominent Mississippi plaintiff's lawyer who bears the same surname but has not been involved in the recent Scruggs scandals, that being Joey's brother Shane Langston, formerly of Jackson-based Langston, Sweet & Freese. Shane Langston, whose name turned up often in connection with the "hot spots" of pharmaceutical litigation of Southwest Mississippi, has more recently been in the news over client complaints regarding alleged mishandling of expenses related to the Kentucky fen-phen litigation scandals. [Family relationship between the two confirmed 1/16 on the strength of emails from several readers.] (& welcome WSJ Law Blog readers)

[First of a two-part post. The second part is here.]

Jeb Corliss is a professional stuntman and BASE jumper who has parachuted from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Kuala Lumpur, Malaysia, but apparently none of his stunts compared to the trauma of being forbidden from jumping off the Empire State Building in 2006: he's sued for $30 million, complaining that the stress of being handcuffed to the railing (after security officers pulled him down as he was climbing over the safety railing) has caused "emotional distress" and "adrenal fatigue." The suit is a counterclaim to a suit the building filed against Corliss (for an only slightly less implausible $12 million) meant to deter other jumpers from endangering third parties; a judge had dismissed reckless endangerment criminal charges on grounds that Corliss wouldn't actually endanger anyone by jumping, a ruling the city is appealing. [NY Times City Room Blog]

Patricia Hynes, who spent 24 years at now-disgraced Milberg Weiss Bershad Hynes & Lerach and more than ten on its executive committee, is now slated to become the next president of the New York City bar association. The favorable assumption is that Hynes, a former prosecutor who became a name partner in the firm, was systematically duped by her former colleagues, as Roger Parloff at Fortune notes:

While being a dupe is not unethical, and certainly not illegal, it’s no badge of honor, either. For idealistic young law students making their career choices, it must have been reassuring if not inspirational to see former Manhattan executive assistant U.S. attorney Pat Hynes’s name so prominently displayed on Milberg’s letterhead. It vouched for the integrity of the whole operation. Whether she knew it or not, part of what she was being paid to do there for 24 years was to lend the firm an aura of integrity that, judging from three top partners’ guilty pleas, it didn’t deserve.

Before assuming the high professional honor of a bar presidency, Parloff wonders, shouldn't Hynes be more willing to answer questions about her time at Milberg? (cross-posted from Point of Law).

On Point News reports that Janet Orlando's $1.7 million victory (May 2006) has been tossed by an appellate court that noted that it wasn't sex discrimination when the employer was spanking everyone (along with other questionable motivational techniques as diaper-wearing and pies in the face) and the jury instructions failed to make clear that conduct not aimed on grounds of sex was not sexually discriminatory. The opinion is "unpublished" so it will not be precedential.

• Client's suit against Houston tort lawyer George Fleming alleges that cost of echocardiograms done on other prospective clients was deducted as expenses from her fen-phen settlement [Texas Lawyer]
• Preparing to administer bar exam, New York Board of Law Examiners isn't taking any chances, will require hopefuls to sign liability waivers [ABA Journal]
• Thanks to Steven Erickson for guestblogging last week, check out his blogging elsewhere [Crime & Consequences, e.g.]
• "Freedom of speech" regarded as Yankee concept at Canadian tribunal? [Steyn @ NRO Corner; reactions]
• Court rules Dan Rather suit against CBS can go to discovery [NYMag; earlier here, here]
• Served seventeen years in prison on conviction for murdering his parents, till doubts on his guilt grew too loud to ignore [Martin Tankleff case]
• Orin Kerr and commenters discuss Gomez v. Pueblo County, the recent case where inmate sued jail for (among other things) making it too easy for him to escape [Volokh]
• New at Point of Law: Cleveland's suit against subprime lending is even worse than Baltimore's; Massachusetts takes our advice and adopts payee notification; law firm websites often promote medical misinformation; lawyer for skier suing 8-year-old boy wants court to stop family from talking to the press; Ted rounds up developments in Vioxx litigation once and then again; guess where you'll find a handsome statue of Adam Smith; and much more;
• Good news for "resourceful cuckolds" as courts let stand $750,000 alienation of affection award to wronged Mississippi husband [The Line Is Here; ABCNews.com]
• Kimball County, Nebraska cops don't know whether that $69,040 in cash they seized from a car is going to be traceable to drug traffickers, but plan to keep it in any case [Omaha World-Herald via The Line Is Here]
• Hunter falls out of tree, and Geoffrey Fieger finds someone for him to sue [seven years ago on Overlawyered]

Banita Jacks, a high-school dropout with four children by at least three different men (not including a fourth man she incorrectly accused in a paternity suit), was found living with the corpses of those four children (whom she is accused of murdering) in Southeast Washington DC. The city has responded by announcing that it will fire several workers who, it is said with 20/20 hindsight, failed to adequately respond to warnings that the children were in danger. [WaPo]

And, several months from now, if there is an incident where parents are having their children unjustly taken from them at the drop of a hat, it is because city officials now know that their jobs are more at risk for possibly under-reacting than they ever would be if they over-react.

Update, January 16: A surprising number of commenters are taking the side of the scapegoaters, where one seizes a single particular warning, and says "You should have known"—a frequent tactic of the trial lawyer seeking deep-pocket blame. Richard Wexler has a good summary:

But when a police officer arrives, he finds four children "well and healthy." Mom claims she's home-schooling the children. The officer sees the books mom says she is using.

What do you do?

The police officer saw no evidence of abuse or neglect. Yes, mom wouldn't let him in without a warrant, but in America, that is her right. The school social worker suspects mental illness -- but she's also the one who said the daughter was being held hostage, something apparently contradicted by the police.

If you happen to be psychic, know that the mother is Banita Jacks and know what will be discovered more than eight months later, presumably you drop everything and find a way to get into that home.

But if you are simply a typical D.C. caseworker -- juggling many other cases -- then you move on to all those situations that, on the surface, look far worse than a home-schooler with "well and healthy" children. ...

Because there's nothing like yelling "Off with their heads!" to fuel a foster-care panic.

Every CFSA worker is now terrified of having the next Banita Jacks on his or her caseload. So agency personnel will rush to tear large numbers of children from their parents. Those children will suffer the trauma of needless separation from everyone loving and familiar, and they'll be placed at risk of abuse in foster care itself -- several studies suggest that one in three children are abused while in foster care. Worst of all, a deeply troubled child-welfare system will be further overwhelmed, making it even more likely that some child in real danger will be overlooked.

Folo has posted (PDF) the information on which Joseph (Joey) Langston entered a guilty plea. A sample:

5. Between on or about July of 2006 and July of 2007, JOSEPH C. LANGSTON, Steven A. Patterson and the close personal friend of Robert "Bobby" DeLaughter split $3,000,000, representing the savings to Scruggs as a result of rulings in favor of Scruggs by Judge DeLaughter resulting in a settlement of the case.

A couple of points:

* The identity of the unnamed "close personal friend" of Judge DeLaughter was not revealed in the information, but it is widely assumed that that friend is a reasonably prominent former prosecutor in the state and that that figure may be cooperating with the feds. Since Patterson is also reported to be cooperating with the feds, and presumably will be asked to tell what he knows about this episode as well as the original Judge Lackey bribery attempt, that would make three principals in the DeLaughter/Wilson affair prepared to cooperate with prosecutors. The splitting of $3 million from Scruggs would also presumably leave the sort of paper trail that could not easily be disguised as lunch expense reimbursements and the like.

* The alleged quid pro quo that was to be offered to Judge DeLaughter -- who has at all times firmly denied improper influence -- is not money, but consideration for promotion to the federal bench. Judge DeLaughter was in fact considered for a recommendation to such appointment by the office of Scruggs's brother-in-law, Sen. Trent Lott, but was not in the event appointed. It can be anticipated that the circumstances of that non-appointment -- his brush with appointment, as it were -- will come under close scrutiny.

Earlier here.

P.S. YallPolitics has a PDF link of the Patterson plea and David Rossmiller has a lengthy array of documents from PACER.

The Venkatesh-Levitt paper on the economics of prostitution in Chicago shows that prostitutes are arrested about one out of every 450 tricks—but are forced to give "freebies" to police for about 3% of their tricks to avoid arrest.

On the one hand, I'm appalled at the utter corruption exhibited by law enforcement here, and wonder to what extent this illegal "perk" acts as a public-choice rationale for law enforcement to oppose legalization and regulation of brothels.

On the other hand, that 3% of labor extorted by the police is a heck of a better rate than the 30% or so tax rate various governments make me pay...

See also: Howley @ Reason; Balko @ Reason.

• Professors debate fourth-amendment implications of Supreme Court's use of videotape evidence. Orin seems to have the better of it by my eyes, but perhaps that's just my confirmation bias. [Kerr @ Volokh; Kahan/Hoffman/Braman; Youtube; Concurring Opinions] (And update: rejoinder by Braman @ Concurring Opinions)
• Repeat after me: medical errors or complications are not always medical malpractice. [Dr. Wes; Medical Progress Today]
• NC court speaks out for judicial restraint before creating new cause of action. [Beck/Herrmann]
• California proposes allowing government to remotely set your thermostat [Walter Williams; Cafe Hayek]
• Old problems not getting any better: "a New York Times article in 1897 (!), which reported that The Committee for Remedial Legislation in Regard to Expert Testimony called for all physician witnesses to be paid by the county." [PlasticSurgery101]
• Remember Lionel Tate, the 12-year-old who murdered a 6-year-old, and then provoked outrage when he was sentenced to life at the age of 14? His sentence was reversed, he was given probation, and promptly violated it by committing armed robbery, it seems. Now he wants to blame his lawyer for the resulting 30-year-sentence. [ABA Journal]

Now we may have a better idea why prominent Booneville, Miss. lawyer Joseph Langston recently withdrew as counsel for Dickie Scruggs in the widening corruption scandal: per a report by Jerry Mitchell in Sunday's Jackson Clarion-Ledger, Langston was himself nabbed on corruption charges, has pleaded guilty and is cooperating with federal authorities. According to the article, Langston's guilty plea arose from his involvement in one of Scruggs's many fee disputes with fellow lawyers, this one being the Luckey-Wilson asbestos fee matter (in which Scruggs' adversaries were Alwyn Luckey and William Roberts Wilson Jr.) Langston will apparently testify that he worked with both Dickie Scruggs and son Zach in an attempt to improperly influence Circuit Judge Bobby DeLaughter, who issued rulings favorable to Scruggs in the case. In one memorable detail, the C-L reports that federal authorities have obtained a May 29, 2006, e-mail in which "Zach Scruggs told his father's attorney in the case, John Jones of Jackson, that 'you could file briefs on a napkin right now and get it granted.'" Judge DeLaughter has denied any impropriety. (Jerry Mitchell, "Another lawyer pleads guilty", Jan. 13). Separately, Patsy Brumfield of the Northeast Mississippi Daily Journal, who was first with an unconfirmed report of Langston's guilty plea, also reports from unnamed sources that federal prosecutors have flipped another of the five indictees in the original scandal, Steven Patterson (partner of informant Tim Balducci), and that documents to be unsealed Monday will clarify other aspects of the status of the case. ("First public clue Patterson has pleaded in Scruggs case", Jan. 11; "Scruggs updates", Jan. 12). Discussion: Lotus/folo, Jan. 12, Jan. 13.

The implications are enormous. Among them:

* It looks as if informant Balducci, who formerly practiced law in the Langston law firm, wasn't kidding when he said he knew where there were "bodies buried". Information from Balducci likely helped lead the feds to raid the Langston office and seize records documenting the alleged Wilson-Luckey conspiracy.

* Langston is no incidental Scruggs sidekick or henchman; he's quite a big deal in his own right, with a national reputation in mass tort litigation. He's been deeply involved in pharmaceutical liability litigation, in tobacco litigation, in litigation against HMOs, and in litigation against non-profit hospitals over alleged violations of their charitable charters, among other areas. Mississippi attorney general Jim Hood, the law enforcement officer who has comically been playing potted plant as one after another of his closest political allies have been getting indicted in recent weeks, has employed Langston as lead counsel for the state in both the controversial Eli Lilly Zyprexa litigation and the even more controversial MCI back-tax-bill litigation. Langston also served Scruggs as go-between in the much-discussed funneling of $50 million in tobacco funds to ex-football player P.L. Blake (to whom now-reportedly-flipped Patterson was also close). If the reports that Langston is now cooperating with the feds are accurate, he will presumably be expected to tell what he knows about other episodes. (Langston has also endeavored to provide intellectual leadership for the plaintiff's bar, as in this Federalist Society panel discussion presentation (PDF) in which he strongly criticizes the work on federalism and state attorneys general of Ted's AEI colleague Michael Greve).

* Part of Scruggs's modus operandi, as we know from tobacco and Katrina (among other) episodes, is to arrange to bring down prosecutions and other public enforcement actions on the heads of his litigation opponents. A particularly brutal instance of this crops up in today's Clarion-Ledger piece, which reports that Scruggs in 2001 took documents obtained in discovery from Wilson, his fee-dispute opponent, and brought them to Hinds County (Jackson) district attorney Ed Peters hoping to instigate a state tax prosecution of Wilson:

Later, one of Wilson's lawyers met with Peters, and [Wilson attorney Vicki] Slater said Peters told that lawyer that a "high-ranking public official" asked him to prosecute Wilson.

Peters could not be reached for comment.

Wilson did nothing to warrant criminal prosecution, Slater said. "All of this was to help Scruggs in his lawsuit."

This is the same Dickie Scruggs of whom the New York Times was less than a year ago running moistly admiring profiles quoting common-man admirers of the Oxford, Miss.: lawyer: "good people. ... If he tells you something, it’s gospel."

P.S. It would certainly be interesting to know who that "high-ranking public official" who helped Scruggs in the tax-prosecution matter was, if there was one.

P.P.S. Corrected Monday a.m.: "Langston’s guilty plea was to an information; he waived indictment" (Folo). This post originally described Langston as pleading to an indictment.

Updates:

• The Canadian Transportation Agency (as part of its regulation of airline ticket prices) has ruled that obese passengers are entitled to have two airline seats for the price of one, which will no doubt encourage further suits against the American practice. (h/t Rohan) One looks forward to the Canadian lawsuits complaining that an obese passenger wasn't adjudged obese enough to get a free second seat. [Australian; Toronto Star; Gunter @ National Post; earlier on Overlawyered]
• Also in Canada, Ezra Levant defends his free speech rights against a misnamed Alberta "Human Rights Commission" over his republication of the Danish Muhammed cartoons. [Frum; National Post; Steyn @ Corner; Wise Law Blog; Youtube; related on Overlawyered]
• Alleged car-keying attorney "Grodner is now under investigation by the state's Attorney Registration and Disciplinary Commission, sources said. Commission officials declined to comment Thursday." [Chicago Tribune; Jan. 4]
• "Life is short—get a divorce" attorney Corri Fetman parlays her tasteless billboard (May 10; May 8) into tasteless Playboy topless-modeling and advice-column gig. In the words of Alfred E. Neuman, "Blech." On multiple and independent grounds. Surprisingly, Above the Law avoids the snark of noting that the lead paragraph of Fetman's law firm web site bio includes a prestigious 23-year-old quote from a college professor's recommendation for law school. [Above the Law; Chicago Sun-Times; Elefant]
• Wesley Snipes (Jun. 11; Nov. 2006) appears to be going for a Cheek defense in his tax-evasion trial—which is hard to do when you're a multimillionaire whose well-paid accountants explicitly tell you you're violating the law. (Remember what I said about magical incantations and taxes?) [Tampa Tribune; Quatloos]
• Accountant Mark Maughan loses his search-engines-make-me-look-bad lawsuit (Mar. 2004) against Google, which even got Rule 11 sanctions. (That happened in 2006. Sorry for the delay.) More on Google and privacy: Jan. 16. [Searchenginewatch]
• Bribed Mississippi judges in Paul Minor case (Sep. 8 and much more coverage) report to prison. [AP]

The retailer quickly modified its managemyhome.com web site after it was pointed out that unauthorized users might get it to cough up records of homeowners' past purchases. The law firm of KamberEdelson LLC quickly hopped on the case with a class action demanding millions, saying bad guys might use the information on past lawn mower purchases and the like to trick homeowners into divulging more serious financial data, though its complaint cited no instances where anything of the sort had actually happened. ("Sears Accused Of Violating Consumer Fraud Law", Reuters/New York Times, Jan. 7; BenEdelman.org). Chicago lawyer/blogger David Fish isn't impressed with the turn to legal action, asking, "Are you legally damaged because your nosy neighbor found out how much your washing machine cost?" (Jan. 10).

Cross-posted from Point of Law.

Says the NAACP complaint: "In 2004, African-American homeowners who received subprime mortgage loans from Defendants were over 30% more likely to be issued a higher-rate loan than Caucasian borrowers with the same qualifications." (¶ 1.) Thus, it concludes, the disparity "result[s] from a systematic and predatory targeting of African-Americans." (¶ 6.)

Similarly, Baltimore's suit argues that Wells Fargo is more likely to foreclose in African-American neighborhoods—and that suit does not even attempt to adjust for similar qualifications or finances, just alleging racial disparity.

Of course, there is a difference between being targeted for a subprime mortgage loan and accepting a subprime mortgage loan. And I don't believe that African-American homeowners were targeted for subprime mortgage loans because they were African-American. They were targeted because they were homeowners.

Between 2001 and 2005, I was a law-firm associate, high-income, making multiples of what I make today at a thinktank. And, like I am today, I was also white. And the minute my adjustable-rate mortgage was registered in the title books in 2001, I got several solicitations a week in the mail from fly-by-night mortgage brokers offering to refinance my mortgage with ludicrous financial products. (And when I made the mistake of investigating on-line options for switching to a fixed-rate mortgage in 2004, I also got several e-mails a day and phone-calls a month on the same basis to the point that I switched e-mail providers.)

Somehow, I resisted refinancing with a mortgage that was not favorable to me in the long run—I took a 5.25% fixed-rate instead. But I sure was targeted with subprime opportunities, especially as the real-estate prices in my neighborhood skyrocketed about 10% a year. And if, with my skin-color, income, education-level, and impeccable credit-score, I was targeted, so was every homeowner and their grandmother.

To the extent a statistical study says minorities were, ceteris paribus, more likely to receive unfavorable mortgages than whites, the study reflects a specification error, perhaps in failing to account for different levels of consumer education. Another possibility: there is a lot of state-by-state regulation of the mortgage industry. Are subprime mortgages more likely in states with high minority populations, for example? Are subprime mortgage brokers more likely to be aggressive in urban areas in states on the coasts where real estate prices were increasing faster than average, and those states correspond to states with high minority populations?

Note that the CRL study that has been driving the debate and highlighted in the NAACP suit finds that for many types of loans, whites were "disadvantaged" relative to Hispanics, which would seem to count against a racial explanation (unless one believes that bankers hold a racial animus against whites and towards Hispanics) and more towards a geographic explanation.

Note also the irony that these same defendants were accused of failing to offer loans to African-Americans just a few years ago. (See also Apr. 1.)

Finally, note that the NAACP complaint is legally frivolous in at least one respect because of the lack of standing in a federal court. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) (no § 1981 standing for third parties). (Baltimore brings no § 1981 claim.) Fair Housing Act standing is questionable, too, given the lack of allegation of injury to NAACP in particular, though that could be fairly easily rectified by an amended complaint, especially in the Ninth Circuit. Cf. Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) ("[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit") (R. Bader Ginsburg, J.); Fair Housing of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). N.B. that there is an amended version of the NAACP complaint that may already fix these issues. NAACP v. Ameriquest Mortgage Co., No. 8:07-cv-00794-AG-AN (C.D. Cal.). For some reason, this is not available on PACER, so I haven't seen it.

Related: Jan. 8 (Krauss on Baltimore suit); Apr. 25 (me on third-party liability for subprime lending).

(Disclosure: I own less than $15,000 in stock in Citigroup, one of the defendants in the case.)

Thanks to Glenn Reynolds for pointing out this story at the Boston Globe. Apparently there's talk of banning the new clinics housed inside various Walmarts and CVS stores in Boston. As Glenn ponders, why would the lawmakers there want to eliminate affordable health care operated by the private sector? Also, Glenn links to this post which highlights how these clinics are doing things right.

That's the title of a post by Ed Silverman over at Pharalot. The issue is the use if atypical antipsychotics in children:

Florida Medicaid records show the number of children - some just months old - who were prescribed the drugs went from 9,364 seven years ago to 18,137 in 2006. No records for privately insured patients are available.

As I mentioned earlier this week, putting the blame on the pharmaceutical industry is an oversimplistic reaction to how psychiatry, psychology,and our culture have transformed childhood into a diagnostic checklist. As mentioned in Ed's post, the litigation in Florida appears to be the recommendation by agencies receiving Medicaid funds to use these drugs in children with ADHD who also had tics. While none of the atypical antipsychotics, to my knowledge, are FDA approved for this condition, it is common knowledge among mental health professionals that the most effective treatment for tics are dopaminergic antagonists such as atypical antipsychotics. True, the recent National Institute of Health's CATIE study demonstrated that most of the atypicals were no better than the older ones. But that doesn't mean that the newer atypicals aren't effective or an appropriate treatment. Perhaps, our current social construction of adolescence is partly to blame for the boom in mental health diagnosis in our children.

Ronald Bailey at Reason's blog Hit & Run discusses a recent article by Stephanie Desmon in the Baltimore Sun on the topic. Ron rightly mentions the end result of all the fuss over thimerosal in vaccines: worried parents, unvaccinated kids and more expensive vaccines. As I mentioned earlier this week, a recent study in the Archives of General Psychiatry also cast doubt on the supposed link.

"Robert Loblaw" at the blog Decision of the Day, has this post on the case of Cerqueira v. American Airlines. In sum, after being booted off the plane for some suspicious behavior, plaintiff John Cerqueiia, thought he would sue. After winning an award $130,000 in compensatory damages and $270,000 in punitive damages the case was appealed. The First Circuit reversed:

On appeal, the First Circuit vacates the award and grants judgment for the defendants. In an opinion that is heavy on the factual details of the incident - and particularly the facts as they appeared at the time to the key decision makers - the First concludes that the jury instructions were incorrect. Among other things, the district court refused to provide instructions about the security provisions of Federal Aviation Act that governed the captain’s actions. In light of the flawed instructions, the Court concludes that the verdict cannot stand.

Moreover, the Court concludes that there is no evidence to sustain the jury’s conclusion that the plaintiff was discriminated against because he appeared to be middle eastern. In particular, neither of the two key decision makers - the captain and a manager in American’s Dallas headquarters - even saw the plaintiff until trial, and there is no other evidence to suggest that their decision was based on assumptions about the plaintiff’s race. Accordingly, the defendants are entitled to judgment notwithstanding the verdict.

Irrespective of the appellate decision, the initial jury verdict of $400,000 says a lot about how justice seems proportionality unfair and unmeasured given the facts of this case.

(Earlier at Overlawyered: Jan. 17.) Update Mar. 2: Cerqueira responds.

To the surprise of no one sensible, it turns out that John Edwards's and Daily Kos's claims about Nataline Sarkisyan, the 17-year-old California woman who recently died awaiting a liver transplant, are false:

• Independent reviewing doctors unanimously recommended against the liver transplant as too risky, which is why CIGNA refused to grant approval.
• CIGNA changed its mind in response to political pressure and publicity, but their delay in approval probably would not have affected Sarkisyan, as several reports indicate her treating medical institution, UCLA, would not have waited for insurance approval if a donor organ became available. (For example, Forbes.)
• And, of course, US patients are far more likely to get organ transplants (and survive organ transplants) than patients in single-payer health care systems—so Edwards has absolutely no solution for the problem of people getting sick and dying in a world of scarcity.

Scott Gottlieb has details in the Wall Street Journal. Attorney Mark Geragos has been retained to sue CIGNA, though CIGNA was only administering Sarkisyan's health insurance plan, and would have suffered no financial repercussions from approving the transplant.

(Disclosure: I own between $15,000 and $50,000 in stock in CIGNA.)

America's Future Foundation is holding a January 16 panel on this topic:

In less than a decade, Google has grown from a Ph.D. research project to be the indispensable tool of the information economy. With the objective of making all information instantly and universally accessible, Google now controls the principal index to the internet and the email traffic of millions, while adding new features such as maps replete with street-level photos cataloging the non-virtual world. As governments around the world seek to harness this information for good or evil, please join us on January 16th to discuss what we stand to gain and lose from this relentless indexing of information.

Joining us in the discussion will be Marc Rotenberg, Executive Director of the Electronic Privacy Information Center (EPIC), Cord Blomquist of the Competitive Enterprise Institute, and Amber Taylor of O'Melveny & Myers LLP. Moderating this discussion will be Chris Pope of the American Enterprise Institute.

Free for AFF members, $5 for non-members.

"On Monday, U.S. Magistrate Judge Barbara Major sanctioned five attorneys from Day Casebeer Madrid & Batchelder and one from Heller Ehrman for their roles in 'monumental' discovery violations in a patent infringement case between Qualcomm Inc. and Broadcom Corp. She also sanctioned Qualcomm for intentionally withholding 'tens of thousands of e-mails' that it should've turned over during the litigation. ... Major wrote that the attorneys may have violated California Rules of Professional Conduct that prohibit lawyers from suppressing evidence (5-220) and misleading a judge or a jury by false statements (5-200)." (Zusha Elinson, "Will Harsh Ruling Over Qualcomm Discovery Increase Chances of Bar Discipline?", The Recorder, Jan. 9; "Six Lawyers in Qualcomm Case Sanctioned for 'Monumental' Discovery Violations", Jan. 8; WSJ law blog)

I've been speaking up against Ron Paul privately amongst my libertarian friends in DC, and now I'm mad at myself that I wasn't doing so more publicly before the "revelations" of the open secret.

Kim Severson of the New York Times has this article on the growing interest among parents of food allergies:

Record numbers of parents are heading to doctors concerned that their children are allergic to a long list of foods. States are passing laws requiring schools to have policies protecting children with food allergies. But no one knows why the number of allergies seems to be on the rise, or even if they are rising as fast as some believe.

Ms. O’Brien and leading allergy researchers agree that few reliable studies on food allergies exist. The best estimates suggest that 4 to 8 percent of young children suffer from them, though the reactions tend to grow less serious and less frequent as children grow older.

Even though the science is weak, new laws and policies are enacted under the banner of child safety. Yet as David Bernstein points out, we've been down this road before.

There's been a lot of news lately involving child psychiatry. As noted by others, the Supreme Court may grant cert in the case of Pittman v. South Carolina which has the interesting twist that the defendant, age 12 at the time of the crime, was taking antidepressants when he killed his grandparents. Yet, as I mentioned the link between antidepressants and violence is tenuous at best.

On the heels of the Pittman case, comes this weeks Frontline program which explored the explosive growth of children being diagnosed with bipolar disorder. Unlike ADHD, bipolar disorder is generally treated with antipsychotic medications which can have profound and lasting side-effects. Yet, the desire to place the blame at the foot of the pharmaceutical industry is misplaced; the psychiatric community has a long tradition of capturing behaviors within their diagnostic net and transforming them into pathologies. All of the pharmaceuticals in the world do nothing to our children without a mental health culture which favors medicine as the first line of treatment for troubled children. And that mental health culture is not just a product of myopic physicians or Big Pharma, but very much one of our own creation.

Jeremy Meyer has this article in the The Denver Post about a proposed plan to offer pregnant teenage mothers 4 weeks of maternity leave as official school policy. It surely is commendable when schools allow new mothers time to be with their newborns and adjust to parenthood; yet to make such accommodations official policy essentially means that it becomes a right -- and all rights are ripe for litigation.

I've joked about plaintiffs asking for a "squillion gazillion" dollars instead of other effectively fictional numbers, but one plaintiff has actually done it. One Baker, Louisiana, Katrina plaintiff (earlier on Overlawyered and Point of Law) suing the Army Corps of Engineers is asking for 3 quadrillion dollars—though he would presumably settle for one third that amount, which, at $3,000,000,000,000,000.00 would be over 200 times the annual $13 trillion gross domestic product of the United States. 246 other plaintiffs (including the City of New Orleans, which asked for "only" $77 billion, notwithstanding a taxpayer-funded bailout of tens of billions for a city built beneath sea level) are asking for over a billion each. [AP; TortsProf]

...say some divorce lawyers. (Dareh Gregorian, "Splitting Time", New York Post, Jan. 9)(via Jones/WSJ law blog).

Three cases of catastrophic injury to children, three defendants asked to pay:

• Freak accident in school parking lot "foreseeable". According to a Los Angeles jury, it was reasonably foreseeable that an ailing parent driving a disability-converted van with hand-controlled accelerator and brakes would lose control of her vehicle and jump the curb at full speed, killing first-grader Jordan Sandels in the company of her father at Encino's Lanai Road Elementary School in 2005. Aside from the many and baffling supposed lessons of the resulting $10 million verdict for school grounds planners (always build lots big enough that parents won't have to park off-site?), a highlight was the jury's finding that the parent behind the wheel was only 20 percent to blame and shouldn't have to pay anything [LA Times via Handel on the Law]
• Destroy evidence, then win $41 million from second defendant. Joseph Provenza, 13, was catastrophically burned in 2001 when he "jumped a 15-year-old Yamaha motorcycle resulting in a crash and post-crash fire" [Bowman & Brooke summary] The plaintiff's father, himself a plaintiff in the suit, later admitted that he willfully removed and discarded a bypass wire from the motorcycle before Yamaha's investigators could see it because he thought the evidence of modification might interfere with his son's lawsuit, and either he or members of the legal team removed or modified other relevant equipment on the vehicle. A judge dismissed the claims against Yamaha, citing willful and pervasive spoliation of evidence as well as lack of candor in discovery responses on the issue. The family then proceeded to trial against a Wisconsin clothing manufacturer which it argued should have made its garments flame-retardant because they were promoted for use with motorcycles, although federal law did not and does not require flame retardance in such garments. The jury awarded $41 million; a defense lawyer says the jurors were never allowed to learn about the hot-wire modification, though it was the cause of the accident, or the subsequent spoliation. [Las Vegas Review-Journal, Janesville (Wis.) Gazette; Carcione law firm (also of Romo v. Ford Motor fame)]. More: BrooklynWolf.
• Schools sometimes responsible for injuries after school hours.The South Main Street Elementary School in Pleasantville, N.J. had long preannounced a 1:30 p.m. early dismissal on a certain day in 2001. Third-grader Joseph Jerkins was allowed to leave, in accord with school policy for youngsters whose families had not requested that they be released only into adult custody. Two hours and twenty minutes later, while playing with a friend, Joseph ran into the street and was struck by a car and horribly injured. The family said it had not been adequately informed of the early dismissal. A trial court dismissed the suit, but the New Jersey Supreme Court, announcing a new duty of care for school districts, ruled that the family could sue on the grounds that the school's policies should have restrained the boy from leaving. The district settled for $6 million. [AP/Philly.com; NJ Principals and Supervisors Association]

Our first installment of stories from 2007 that merited coverage but slipped away is here.

New Jersey's wrongful death law had capped non-economic damages at zero, by not permitting any non-pecuniary recovery. This has been rectified by The New Jersey legislature has passed a new law (per Scheuerman) that ends this problem, but non-pecuniary damages in wrongful death cases would have absolutely no statutory limits. Governor Corzine has until January 15 to decide whether to sign or veto the bill.

(Updated to reflect fact bill has not been signed yet.)

The Department of Justice regards online tutoring services as "public accommodations" subject to the Americans with Disabilities Act, and in September entered into a consent decree with Sylvan Learning Centers, which agreed to provide aids such as written materials and "videotext displays" (as well as free sign-language interpreters) for the assistance of deaf persons who might wish to use its services. As TechLaw Journal notes (Sept. 26-30), and as we have often noted before in our ongoing coverage, there is reason to expect the legal pressure for web accessibility to extend to online businesses more generally.

Ed Silverman reports that pharmaceutical reps will now have to be licensed in D.C. From the story in the Washington Business Journal:

The measure makes D.C. the first in the country to license pharmaceutical company sales representatives, able to revoke that license if a salesperson's activities were deemed fraudulent... The bill, dubbed SafeRx, also mandates that drug reps have a bachelor's degree, adhere to a code of ethics and refrain from giving doctors gifts."

As the Journal alludes to later in the story, the lawsuits have begun.

As one of our reader/informants sums up this litigation against a Kentucky surgeon filed by (and backfiring against) a Tennessee attorney: "Plaintiff lawyer (who is a JD/MD) gets sued by both his plaintiff client and the defendant doctor and he loses to both." (Andrew Wolfson, "Attorney is loser in malpractice lawsuit", Louisville Courier-Journal, Nov. 28; Childs, Dec. 27). More on countersuits by doctors: Point of Law, Dec. 20.

That's the title of this commentary in the latest issue of Archives of General Psychiatry. The author, Dr. Eric Fombonne of Montreal Children's Hospital, provides his two cents regarding a new study in the same issue: Continuing Increases in Autism Reported to California's Developmental Services System: Mercury in Retrograde. In sum, as Dr. Frombonne concludes:

The study by Schechter and Grether in this issue of the Archives provides additional evidence of the lack of association between thimerosal exposure and the risk of autism in the US population. Using an ecologic design and data from the California Department of Developmental Services, the authors showed that the prevalence rate of autism increased continuously during the study period even after the discontinuation of the use of thimerosal in US vaccines in 2001. Had there been any risk association between thimerosal-containing vaccines and autism, the rate of autism should have decreased in young children between 2004 and 2007. Instead, the rate increase did not attenuate, indicating that thimerosal exposure bears no relationship to the risk of autism.

Whatever the science says, there's at least three reasons why people continue to believe in a vaccine-autism link. Yet like the Vioxx litigation, science only gets you so far once litigation is introduced to the mix.

• Marie Gryphon rounds up what's known about the Republican candidates and their views on litigation reform [Point of Law]
• Obama's signature achievement as an Illinois legislator was a law requiring that police videotape interrogations and confessions, the better to protect both suspects from beatings and cops from false charges of abuse; some "death penalty abolitionists ... worried that Obama's bill, by preventing the execution of innocents, would deprive them of their best argument" (!). [Peters/WaPo]
• Giuliani-bashers had a fine old time hammering the former mayor on supposed scandal over girlfriend's driver. So was there anything there? [NYTimes, Newsday "Spin Cycle", Frum; standard disclaimer]
• Edwards has resolved to run as a plaintiff's lawyer in full jury-stirring mode; we know a fair bit about his trial-winning style, less about how he settles cases [Beldar]
• Quite a few adherents of the scary Christian Reconstructionist movement seem to like Gov. Huckabee a lot, one hopes he doesn't like them back [Lindsey, Cato-at-Liberty; Box Turtle Bulletin]

Scheduled for broadcast today at the strange hour of 11:07 AM to 1:11 PM Eastern. A webcast is also available. See also our January 5 post.

A podcast and webcast are also available on the AEI website.

Thank you, Patent Troll Tracker (Jan. 4).

Colorado: "An inmate who twice escaped from the Pueblo County jail filed a federal lawsuit Thursday, alleging that guards abused him and didn't do enough to stop him from breaking out." Scott Anthony Gomez, Jr.'s lawsuit "claims authorities 'did next to nothing to ensure that the jail was secure and that the Plaintiff could not escape.'" (TheDenverChannel.com, Jan. 4).

On the WSJ Law Blog—and the plaintiffs attorneys commenting have such nice things to say!

I'd like to thank Walter Olson for inviting me to contribute to one of my favorite blogs, Overlawyered. As an attorney and psychologist, I've worked in a number of different hospitals across the country. Health care institutions are unique places to work for in many respects because the decisions made there can directly lead to serious or even fatal outcomes. Of course this is obvious, as should be the fact that despite the best intentions of everyone involved in a patient's care, bad outcomes occur.

Alison Cowan has this article in last Friday's New York Times highlighting a recent case involving the suicide of Ruth Farrell. By all accounts Farrell had been quite depressed for a very long time. As is the case with some people who struggle with chronic depression, Ms. Ferrell was admitted to the hospital for care and observation related to her depression and suicidal ideation. Sadly, Ms. Farell hanged herself with her own pants between the standard 15 minute "checks" performed by staff on psychiatric wards. In turn, her estate sued her doctors and the hospital claiming improper care.

The Dhaliwal brothers prefer to have attorney Mark Geragos do the talking, greatly frustrating investigators trying to reconstruct what happened in the zoo mauling. (Jaxon Van Derbeken, "In ambulance, survivors of S.F. tiger attack made pact of silence", San Francisco Chronicle, Jan. 5; "San Francisco Authorities Seek to Inspect Tiger Attack Victims' Cell Phones", AP/FoxNews.com, Jan. 5; Patricia Yollin, Tanya Schevitz, Kevin Fagan, "S.F. Zoo visitor saw 2 victims of tiger attack teasing lions", San Francisco Chronicle, Jan. 3; Jacob Sullum, "The Buck Keeps Moving", syndicated/Reason, Jan. 2). Earlier: Jan. 3.

Robert Loblaw's Decision of the Day blog, on appellate decisions, has this update (and somewhat longer write-up) on a case briefly noted by guestblogger Jason Barney in this space in October:

Ratliff v. Stewart, 06-61018 (5th Cir., Dec. 6, 2007)

The facts in this Fifth Circuit decision reflect rather poorly on the practice of law in the Southern District of Mississippi. The underlying case arises from injuries that plaintiff Sarah Ratliff allegedly suffered from the drug Stadol. Although Ratliff eventually settled her claims, her litigation took some strange turns, resulting in this appeal.

To start, Ratliff’s attorney named the wrong doctor as a defendant. The attorney knew that Ratliff had been prescribed Stadol by a Dr. Stewart with an office in McComb, Mississippi. Without investigating further, the lawyer found a defendant who fit the bill: Dr. Lawrence Stewart. But Lawrence Stewart had never prescribed Stadol to Sarah Ratliff. Although he did have a patient named Sarah Ratliff, she insisted that she had not filed a lawsuit against him.

As it turns out, the plaintiff had been treated by Lawrence Stewart’s father, Edsel Ford Stewart, who by this point had passed away. But Lawrence’s protests fell on deaf ears, as did his motion to dismiss, complete with an affidavit stating that he had never treated the plaintiff. After filing their opposition to this motion, the plaintiff’s attorneys finally bothered to check with their client and, lo and behold, she told them that they had sued the wrong guy. Just for fun, the attorneys waited another month before confessing error and letting Lawrence off the hook.

Did they learn from their mistake? Not really, as they then filed a suit against the estate of “the elder Lawrence Stewart.”

Could it get any worse? Maybe a little. Five months after being dismissed from the case and nine days after the rest of Ratliff’s case was reassigned to a different judge, Lawrence Stewart’s attorney sent a letter to follow up on an earlier request for attorney fees. But he sent it to the old judge. And, in an even bigger blunder, the old judge decided to award attorney fees for a case that was no longer on his docket.

The mess eventually got cleaned up: the old judge vacated his order and the new judge adopted it. Ratliff appealed, but the Fifth Circuit rejects his arguments and largely affirms the fee award.

In the English countryside stiles and so-called kissing gates "have been a familiar feature of the landscape for centuries, but local authorities now believe that installing them along footpaths and rights of way is a breach of the Disability Discrimination Act 1995." ("Farms kiss goodbye to stiles and gates to allow wheelchair access", Times Online, Nov. 30). According to Wikipedia, some kissing gates are designed on a large enough scale that wheelchairs can pass through.

Libertarian medical school blogger "Frommedskool" has been critical of the Vioxx litigation (regularly citing to our coverage at Point of Law). An April 2006 post about the Cona/McDarby case, however, appears to have generated a December 2007 comment from someone calling himself Mark Lanier, the plaintiffs' attorney in the case:

Third, there was a huge amount of info Merck had that it never gave the FDA, there were smoking gun memos and emails, and there was huge harassment of the medical community done by Merck. For example, Merck did a full meta-analysis of placebo trial that showed a statistically significant increase in heart attacks, but Merck excised that from the report given the FDA. Even Merck’s head admtted they should have given the analysis to the FDA.

(Point of Law discussed the so-called withholding of the meta-analysis back in 2006. It wasn't all that.) Fascinatingly, this comment immediately provokes comments from another lurker (just two hours later?!) claiming to be a plaintiff, reasonably asking why, if the evidence was so good, Lanier was agreeing to settle 47,000 plaintiffs' cases for under $5 billion, essentially a nuisance settlement given that victorious plaintiffs were being awarded in the millions and tens of millions.

Democratic front-runner (if it's okay to call him that now) Barack Obama tells a Newton, Iowa audience about his early decisions to pursue civil rights, community organizing and public office rather than more lucrative legal specialties, and is blasted in parts of the lefty blogosphere for the implied dig at John Edwards. (Shailagh Murray, Washington Post "The Trail", Dec. 30; Kos, TPM, Kia Franklin, etc.) Per the Washington Post's Chris Cillizza, "Obama is starting to use the term 'trial lawyer' more often on the stump to describe Edwards, perhaps hoping to capitalize on the negative associations many voters have with that particular profession." ("The Trail", Dec. 31).

P.S. Some highlights of our earlier Obama coverage: Aug. 5, 2004 ("Anyone who denies there's a crisis with medical malpractice insurance is probably a trial lawyer"); Apr. 10, 2007 (making inroads nonetheless on Edwards' trial-lawyer donor base; per Legal Times, "Despite Obama's silence on the issues trial lawyers care about, those who support him say they are confident he will back trial lawyers when the time comes"); Jul. 31 and Aug. 5 (auditions at AAJ/ATLA convention). P.P.S. Plus Ted at Point of Law a year back ("far from convinced" that Obama will cross the trial bar, despite his vote for the Class Action Fairness Act).

After Joshua Hoge stabbed his mother and brother to death with a butcher knife, he was found not guilty by reason of insanity and committed to Washington's Western State Hospital. His mother's estate then sued King County and won $800,000 "when it was determined that a public-health clinic had failed to give Hoge his medication and was partially responsible for the slayings." Now Hoge is suing to obtain part of his mother's estate, which would allow him to capture some of the lawsuit winnings. A Washington statute restricts killers from profiting by their crimes, but by its terms applies to "willful" killings. Besides, says Jean O'Laughlin, Hoge's attorney, her client isn't covered because he was found not guilty. A Seattle University associate professor of Law, John Strait, agrees: "For all intents and purposes, there is no crime. We don't punish people for being really sick. We don't impose criminal culpability on people who are mentally ill," he said. "It's nutty logic." (Natalie Singer, Seattle Times, Jan. 3). I wrote a couple of years ago about Washington state's unusually broad assignment of liability to public agencies for crime and other private misconduct.

It started as a joke, but Bozeman, Mont. attorney Christopher Gillette is going through with the ambitious aquarium installation, whose saltwater inhabitants will include venomous fish as well as sharks. [Bozeman Daily Chronicle; AP/El Paso Times] In the 1980s the now well-known law firm of Bickel & Brewer adopted the snake exhibit at the Dallas Zoo. (Mark Donald, "Rambo Justice", Dallas Observer, Mar. 19, 1998).

• Housekeeping service in Florida proclaims, "We Speak English". So will they get sued? [Smerconish/Phila. Daily News]
• Update: Dad who long ago walked out on his family won't get chunk of estranged son's $2.9 million 9/11 fund benefit [NY Post (link fixed now); earlier]
• Did Illinois state's attorneys advise Marine sergeant complaining of car vandalism that there wasn't much point trying to recover from the suspected offender since he was a lawyer? [Blackfive via Zincavage and many readers; Kass/Tribune] And what kind of trouble might the lawyer be in if he suggested slipping the repair costs along to an insurer? [Patterico commenters, Goldberg/NRO Corner correspondent] More: Bainbridge.
• Not long after American Lawyer pronounces the demise of securities class actions, we learn they may be back on a cyclical upswing [August TAL; new Stanford Clearinghouse]
• If rising tide of outrage leads to abolition of peremptory challenges, many lawyers won't have anyone to blame but themselves [Reed]
• Brooklyn judge's presenting of box of candy to plaintiff among grounds for reversal of $14 million brain-damaged infant verdict [NYLJ]
• Yet more health privacy madness: "HIPAA is adversely affecting our ability to conduct biomedical research" [Reuters on JAMA study via Kevin MD; relatedly, Karvounis/HealthBeat]
• People kept tearing down no-swimming signs at much-used park in Bellingham, Wash., and you know what's going to happen next without our having to tell you [AP/Seattle Times]
• Two Illinois judges in drunk-driving accident that broke other driver's leg draw mere reprimand with "no consequences other than public embarrassment" [Post-Dispatch]
• Suit against Avvo lawyer-rating suit dismissed on First Amendment grounds [Seattle Times, Post-Intelligencer; earlier]
• Saves her friend's life, then sues her [seven years ago on Overlawyered]

Certainly some corporate defendants deserve to take it in the shorts. Judge Easterbrook, in affirming a well-deserved $16 million FTC fine against a late-night infomercial purveyor of fraud, opines:

For the Q-Ray Ionized Bracelet, by contrast, all statements about how the product works—Q-Rays, ionization, enhancing the flow of bio-energy, and the like—are blather. Defendants might as well have said: “Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.”

FTC v. QT, Inc. (via Lattman).

In 2006, former West Virginia judge and justice Richard Neely wrote an article called "Arbitration and the Godless Bloodsuckers" (reprinted at the anti-consumer Consumerist) making a sensational claim: he had served as an arbitrator for the National Arbitration Forum, but because of his rulings denying attorneys' fees, had been blacklisted from further arbitration proceedings because the "godless bloodsucker" banks (no, really, those are his words) had decided he was an "unacceptable" arbitrator. As part of the litigation lobby's war on consumer choice in seeking legislation to force consumers to litigate even if they wish the opportunity for lower prices through agreeing to mandatory binding arbitration (see the Overlawyered section on arbitration), the claims have been repeated on multiple occasions, in Congressional testimony, in newspaper and magazine articles, in blogs, and even in the Overlawyered comments. Turns out, according to a response made by the National Arbitration Forum, that Judge Neely has made some claims that weren't true:

• Contrary to Neely's claims, he was never "struck" from any case by any party.
• At least under NAF rules, a party cannot unilaterally select an arbitrator: the two sides must agree, or, in the alternative, each select an arbitrator who will in turn mutually agree upon a third arbitrator. (Code of Procedure Rule 21.) Parties can strike an arbitrator for bias—for example, perhaps one of the arbitrators has announced that a class of parties are "godless bloodsuckers." But this right applies equally to consumers and merchants.
• Neely claimed incorrectly that a party defaulting could be liable for more than they would under the civil justice system. But arbitration participants have more procedural protections in the case of default than those operating in the civil justice system--there is no "default" in arbitration. Rather, the arbitrator has to decide the case on the merits, even without the participation of the customer. Given the fact that the vast majority of debt collections in court are resolved by default, the typical consumer comes out far ahead in arbitration.
• Neely proposed a reform that arbitrators be required to disclose conflicts of interest. But arbitrators are already required to disclose such conflicts.

Read the whole thing. Neely (who ruled on the merits 100% of the time for banks against their customers in the two debt collection cases he decided) was apparently so upset by his experience that he signed a new agreement with NAF after the events he claims to describe transpired. One wonders: has the plaintiffs' bar retained Neely as a consultant on the issue, and he decided he could make more money bad-mouthing arbitration than as an arbitrator? One will never know—unless Neely discloses his conflicts of interest.

Richard Neely's previous claim to fame was stating, while Chief Justice of the West Virginia Supreme Court, "As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so." He's had somewhat less success doing so as a plaintiffs' attorney (June 2002).

A 37-year-old Jane Doe (who claims to be the host of a national cable tv program) agreed to be videoed rolling around in a bed "looking excited" for $200 in November, and was disturbed to see the results on a YouTube advertising campaign with obviously dubbed orgasmic moans. The punchline in the ad (probably NSFW if your volume is on): "Jewelry works every time." Or, as my feminist girlfriend grouses every time she sees a tv jewelry ad with far subtler implications, "Your wife is a whore who will only put out for shiny objects." Cf. also this YouTube copyright violation from Family Guy (NSFW), soon to be taken down by Fox.

Through her attorney, Kevin Mulhearn, she's sued Szul Jewelers for $5 million. Mulhearn claims there's no release, which while implausible, may be true. If so, she has a point, though the ad damnum claim is ludicrous: and far more people are going to watch the supposedly image-damaging video now that Mulhearn has gone to the press. And, of course, she didn't have to roll around on the bed in the first place. (One hopes that I'm not aiding and abetting a publicity stunt for the jeweler.) [Daily News; AP/New York Times]

Prompted by our post of yesterday about Virginia lawyer-legislators, commenter Hans Bader at his own blog nominates New York, Massachusetts and New Jersey as examples of how bad matrimonial law can get: "the more lawyers are in a state legislature, the more unfair a state’s divorce laws tend to be". (OpenMarket.org., Jan. 2). Plus: our family law archives are here.

Please register for this event online at http://www.aei.org/event1626.

The AEI Legal Center for the Public Interest and the Federalist Society present:

The Vioxx Settlement

Monday, January 7, 2008, 12:00 p.m.–2:00 p.m.
Wohlstetter Conference Center, Twelfth Floor, AEI
1150 Seventeenth Street, N.W., Washington, D.C. 20036

In 2004, Merck withdrew its pain reliever Vioxx from the market because of new studies showing increased cardiovascular risk. Merck announced that it would not settle any of the tens of thousands of Vioxx lawsuits filed, and set aside over a billion dollars to litigate cases without reserving a penny for damages. After a $254 million verdict in the first Vioxx trial in 2005, some observers predicted over $25 billion in liability for the company. Fifteen trials later, Merck and the plaintiffs’ attorneys announced a settlement of the outstanding personal injury litigation—for under $5 billion. Merck stock rose after the announcement, and is now higher than before it withdrew Vioxx from the market. But some law professors are arguing that a new and unusual provision in the settlement raises ethical concerns.

Why did Merck settle? And why was the settlement for so much less than originally anticipated? Is the Merck settlement different from the Wyeth fen-phen settlement, which was originally announced as a $3.75 billion settlement, but has so far cost more than $20 billion? Will the settlement stand up under legal challenge, and what will remain of the Vioxx litigation if it does?

At this event cosponsored by AEI and the Federalist Society, a panel of experts will explore these and other questions. Speakers include Vanderbilt law professor Richard Nagareda, author of Mass Torts in a World of Settlement; Virginia legal ethics professor George Cohen; author and leading pharmaceutical mass torts defense attorney Mark Herrmann; Andy Birchfield, a member of the Vioxx Plaintiffs’ Steering Committee; and Ted Frank, director of the AEI Legal Center for the Public Interest. AEI resident scholar John E. Calfee will moderate.

11:45 a.m.
Registration and Lunch

12:00 p.m.
Panelists:
Andy Birchfield, Beasley Allen
George Cohen, University of Virginia School of Law
Ted Frank, AEI
Mark Herrmann, Jones Day
Richard Nagareda, Vanderbilt University Law School

Moderator:
John E. Calfee, AEI

2:00 p.m.
Adjournment

• Surely not something 007 would do: judge reproaches Sean Connery and opponent neighbor over "slash-and-burn" litigation tactics in long-running townhouse dispute [NYLJ, NYTimes]
• Famed attorney Mark Geragos, suing San Francisco Zoo on behalf of tiger maulees, will wield the law like David's mighty slingshot, or maybe that allusion is better avoided [AP/KPIX, Mercury-News, SFist]
• Clients, lawyers who formerly worked for it have many complaints ethical and otherwise about heavy-advertising San Diego law firm Pacific Law Center [Union-Tribune via San Diego Injury Board]
• Who knew the demanding workload of law students and federal-judge clerks left any time for (allegedly) tying up, robbing and torturing boyfriends? [Reynolds; Lat]
• The Scruggs et al prosecution continues to evolve and develop, but at present we haven't much to add to the energetic threesome of sites that have been leading the news hunt [Rossmiller, Lotus/Folo, YallPolitics]
• UK man wrongly accused of rape will get public compensation, but minus a fee for bed and board at the prison [Daily Mail]
• Under Louisville's new smoking ban, business owners are required to call cops if customers refuse to stop smoking inside [Catallaxy]
• Garry Wise takes issue with our comments on free speech in Canada, but we may be talking past each other since we never got to the question whether the proper fix is a motion by columnist Steyn to quash the dangerous inquiry [Wise law blog]
• Injury suits filed against little kids? "It does happen." More on the Scott Swimm ski-collision case [L.A. Times/Chicago Tribune; earlier]
• Hope he'll reconsider: David Giacalone says he's weary of the legal-ethics beat he's covered so well, and intends to leave it behind [f/k/a]

Although we fell just short of the votes we needed in the ABA Journal contest, we truly appreciate the time and trouble taken by our supporters as well as the kind things said about us by other sites (catalogued in the post just below this one). Congratulations to QuizLaw, which has won a big and loyal readership by staying on top of offbeat news stories about the law in a consistently lively style.

The ABA Journal's contest for best general legal weblog ends momentarily (Wed., Jan. 2) and as of this writing we're still lagging a mere 50 or so votes behind the front-runner, not an impossible margin you'd think to overtake in a last-minute surge. Unfortunately, we've more or less run out of winning tactics that wouldn't mire us in an embarrassing degree of groveling, nagging, cheating, conniving, etc.

Quite a few folks associated with the American Bar Association have been open-minded and even friendly toward Overlawyered over the years, but we have reason to believe that some others high up in that organization regard us as the web equivalent of hot buttered death. Who can deny that it would be amusing to tick off that second group by having Overlawyered win the ABA's own contest? Perhaps readers in comments can suggest vote-winning techniques we haven't thought of. (Beg Michelle Malkin and Glenn Reynolds to send their readers to cast ballots for us?). Okay, here's one: recommend that your readers vote for us, and we'll give you a grateful shout-out (within reason) in this column.

P.S. Thanks to Caleb Brown, who does the Cato Institute's podcast series, for filling in over the holidays. Check out his site Catallaxy.net. And stay tuned for another guestblogger we expect to be joining us in the not too distant future.

[Bumped Wednesday morning for continued prominence. First we pulled to within a dozen votes of QuizLaw, it seems, and now (around midnight EST) they're back ahead by 40.]

And: a most grateful thanks for the boost to:

• Larry Ribstein (Ideoblog);
• Sam Munson (Commentary mag's Contentions);
• Carter Wood (NAM Shop Floor);
• Ron Coleman guesting at Dean Esmay's and also at his own site, Likelihood of Confusion;
• Hans Bader (Competitive Enterprise Institute's Open Market);
• Eugene Volokh (Volokh Conspiracy);
• Alan Lange (Mississippi's Y'All Politics);
• David Rossmiller (Insurance Coverage Blog);
• Dave Zincavage (Never Yet Melted);
• Tom Kirkendall (Houston's Clear Thinkers);
• Not endorsements, exactly, but we won't quibble: Angela Gunn (USA Today "TechSpace"), Robert Ambrogi (LawSites), and David Lat (Above the Law);
• Sean Higgins (JeremyLott.net);
• Point of Law (wait a minute, that's me).

P.P.S. Melancholy sequel (just 19 votes short!) here.

Glenn Lewis, president of the Virginia Bar Association, thinks it's a bad thing that there are only 29 lawyers in the commonwealth's 100-member House of Delegates (and 16 in its 40-member Senate). In the "President's Page" column of the association's magazine, the VBA News Journal, he recently argued that the Old Dominion suffers from "a dearth of lawyer-legislators" to which he attributes such ills as "wrong-minded analyses" as well as shortcomings in drafting. He believes lawyers should hold at least half the seats in the legislature. Despite a marked decline in its percentage of lawyer/legislators, Virginia still well exceeds the national average of 17 percent. (Laurence Hammack, "Fewer lawyers make Virginia's laws", Roanoke Times, Dec. 30).

Of course, one possibility is that lawyers do on average bring with them a superior skill set on issues of legislation and governance, but that the voting public no longer trusts the independence of their judgment and their allegiance to the general good as it once did, fearing that they will instead advance the interest of organized factions, perhaps including the self-interest of the legal profession itself.

The Consumerist blog is supposed to be a pro-consumer blog, but it's amazing how often their political agenda is really a trial-lawyer agenda that hurts consumers. Many of the 2007 bills Carey Greenberg highlights as consumer-friendly are quite the opposite:

• H.R. 3010: Arbitration Fairness Act of 2007
  What It Does: Raises costs to and reduces choices for consumers and lowers employee wages by forcing consumers and employees to pass up the benefits of mandatory arbitration, whether they wish to or not. More at Overlawyered, and on SSRN.
  Status: Hearings held in both the House and Senate. Likely to be vetoed if passed.