|ARCHIVE -- AUGUST 2000 (II)
August 18-20 --
Why the bad guys can't stand John Stossel. The ABC
News correspondent is the one TV reporter who again and again has exposed
and ridiculed in devastating style the abuses of litigation and misconduct
of lawyers, the excesses of scare-environmentalism, and countless instances
of over- and mis-government (his hourlong special "The Trouble With Lawyers"
a couple of years back is just one of many highlights; Stossel's
website at ABC). You can bet he's made a long list of enemies
in the course of doing this, and now, after a flub by his staff in a report
on organic foods (for which he apologized last Friday on camera) there's
a well-organized campaign under way to take his journalistic scalp.
That would reduce from one to zero the number of prominent contrarian TV
voices on many of these issues, leaving in place, of course, the large
amount of vigorous advocacy journalism from the point of view opposite
to his. A recent New York Times roundup on the controversy
quotes our editor (Jim Rutenberg and Felicity Barringer, "Apology Highlights
ABC Reporter's Contrarian Image", Aug.
14); if you wonder what sorts of grossly misleading stories the network
newsmagazines have run over the years without anyone's feeling obliged
to apologize for them, check out our article "It
Didn't Start With NBC Dateline".
Now the Competitive Enterprise Institute
has launched a website project devoted to documenting and exposing the
campaign to get John fired, and to collecting letters, petition signatures,
and other signs of support so that ABC will know how big a fan base he
has rooting for him. (SaveJohnStossel.org,
temporarily hosted at counterprotest.net/stossel).
August 18-20 --
"Caffeine added to sodas aims to addict -- study".
Because most consumers in a small study could not tell by taste whether
a soda had caffeine in it or not, some researchers at Johns Hopkins arrived
at the conclusion that the substance appears in sodas for the sole purpose
of "addicting" consumers. (Most of the biggest mass-market sodas
offer a choice of caffeinated and non-caffeinated versions; typically the
latter is considerably less popular with consumers, who are presumably
helpless to choose between the products, enslaved as they are by their
addiction.) "The study appeared in Archives of Family Medicine,
which is published by the American Medical Association". ("Pop made
to hook drinkers", Reuters/Detroit News, Aug.
15; "Cola makers rip study on caffeine addiction", AP/Spokane Spokesman-Review,
Aug. 15). Advocates who have participated in the demonization of
the tobacco industry and other businesses
have frequently denied that the food industry is next on the list.
It's certainly on some folks' list, however. Last year Yale University
researcher Kelly Brownell said: "I have called the food environment in
the United States toxic ... The food companies and their advertisers are,
in fact, luring our children into deadly behavioral patterns ... Sooner
or later, the food companies will be considered in the same way we regard
the tobacco industry." ("Regulation by Litigation: The New Wave of Government-Sponsored
Litigation", sponsored by Manhattan Institute, Chamber of Commerce of the
U.S., and Federalist Society, June 22, 1999, conference
August 18-20 --
Weekend reading: Macaulay's bicentenary. Your editor
being a longtime admirer of the great classical liberal Thomas Babington
Macaulay, his latest Reason column is devoted to appreciating the
Whig historian's written legacy on the 200th anniversary of his birth (Walter
Olson, "Confessions of a Macaulay Fan", Reason, August/September).
An outfit called Electric Book is generous enough to webpost downloadable
versions of many of his
essays, free for individual use (zip files of PDF documents).
August 18-20 --
Snakes' rights not always paramount. Notwithstanding
endangered species law, New
York environmental authorities have decided not to press charges against
72-year-old Phillip Wheaton for killing a protected rattlesnake that had
bitten him. Wheaton had just stepped from his car on a rural road
in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton
proceeded to hit the snake with his cane, injuring it; it was taken to
a veterinary hospital where it later died. "I had a fight with that
snake and I won," Wheaton said later. "I didn't cause no fight with
that rattlesnake but he caused it with me." ("Slain serpent", AP/Fox
News, Aug. 16). Last year (Oct. 12)
we reported on a court's ruling, also in New York, that a private landowner
was obliged to host rattlers on its property; it ordered the tearing down
of a "snake-proof" fence that had prevented the venomous creatures from
approaching an area where humans were at work.
August 16-17 --Fortune
on Lerach. Don't miss this long but grippingly reported
account of the rise, prosperity and current woes of the world's most widely
feared plaintiff's securities lawyer,
Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable
material new to us (Peter Elkind, "The King of Pain Is Hurting", Fortune,
Earlier this summer the same magazine published a colorfully detailed account
of infighting among the troop of plaintiff's lawyers angling to bring down
the HMO industry (John Helyar, "They're
Ba-a-ack!", Fortune, June
August 16-17 --
Okay to make lemonade. In Eustis, Fla., the city
government has backed down from an inspector's attempt to close down the
lemonade stand that nine-year-old Rachel Caine runs across the street from
her home. (Stephanie Erickson, "Eustis officials back down from order to
make girl, 9, close lemonade stand", Orlando Sentinel/Ft. Lauderdale
9). And in Longmont, Colo., 11-year-old "Soda Girl" Caitlin Rezac
is back in business with her fizzy-refreshment stand after a run-in with
the Boulder County health department, which had busted her for operating
without a hand sink and $110 license; a local business donated the sink
(search Denver Post
archives on "Caitlin Rezac" (excerpts free, fee for full story); letter
to the editor from county official Ann Walters, Boulder Daily Camera,
12 (scroll) (via Liberzine)).
August 16-17 --
Olympics website's accessibility complaint. The
United States isn't the only place where controversy is simmering over
websites that "exclude" blind
and other disabled users (by not adopting
design and syntax that cater to them). At a recent hearing of the
Human Rights and Equal Opportunity Commission in Australia, organizers
of the Sydney Olympics defended themselves against charges that they hadn't
made their website usable by the vision-impaired. (Rachel Lebihan,
"Olympics web site riddled with blind spots", ZDNet, Aug.
9). America Online has reached a provisional settlement of the
complaint filed against it by the National Federation of the Blind (see
Nov. 5); the online service pledges to
alter its software to bring it into fuller compatibility with screen reader
technology and says it will train its employees to be sensitive to disabled
users' needs, in exchange for which NFB agrees to postpone suing for a
year (Oscar S. Cisneros, "AOL Settles Accessibility Suit", Wired News,
28). Also: a clip we missed earlier on Congress's February
hearing on this topic: "Do Web Sites Violate the Americans with Disabilities
Act?", TechLawJournal, Feb.
August 16-17 --
"City gun suit shot down on appeal". An appeals
court has unanimously upheld a lower court's dismissal of the city of Cincinnati's
lawsuit against the gun industry, likening
that suit "to the 'absurdity' of suing the makers of matches because of
losses from arson." Prominent tort attorney Stanley Chesley (see
June 1, March
30), representing the city, says he will appeal to the Ohio Supreme
Court, which, ominously for the gunmakers, is currently controlled by a
majority of justices well disposed to trial-lawyer arguments (see May
8, 2000; Aug. 17 and Aug.
18, 1999). (Dan Horn, Cincinnati Enquirer, Aug.
12; "Cincinnati can't sue gunmakers for damages, court rules",
of decision (Cincinnati v. Beretta; retrievable Word
document, not website).
August 16-17 --
Web-copyright update: "Dialectizer" back up, "MS-Monopoly" down.
The "Dialectizer", a website
that will translate another page of your choice into a variety of stagey
dialects including Redneck,
Fudd and Pig
Latin, is back up and running; we reported May
18 that the site had closed itself down for fear of being sued by businesses
that might view such automated translation of their websites' contents
to be an infringement on their copyright. However, the "MS-Monopoly"
parody site, which adapted elements from the popular board game Monopoly
to comment on the Microsoft
case (see Dec. 3) has been pulled down
at the behest of lawyers for toymaker Hasbro, which puts out the real game:
"MS-Monopoly.com 'Cease and Desist'ed
by Hasbro Lawyers". In Forbes, Virginia Postrel says big
companies are being shortsighted when they sic lawyers on fan sites that
happen to use copyrighted material; News Corp.'s Fox properties, for example,
have issued rumbling letters to online enthusiasts of cult shows such as
The X-Files and Buffy the Vampire Slayer. ("The Shortsighted Site Busters",
Forbes/Reason Online, July
August 15 -- Plastic
surgeons must weigh patients' state of mind, court says.
By a 3-2 margin, a New York court has allowed a claim to proceed against
a cosmetic surgeon for conducting
liposuction and abdominoplasty procedures on a patient while "fail[ing]
to take into account that she suffered from Body Dysmorphic Disorder, or
a preoccupation with a minor or imaginary physical flaw," which meant that
her consent to the procedures might not really count as informed.
The patient made at least fifty visits to the doctor's office. (Michael
A. Riccardi, "Doctor Must Weigh Patient's Mental State", New York Law
29; Renee Kaplan, "What Should Plastic Surgeons Do When Crazy Patients
Demand Work?", New York Observer, July
31). (Update June 11, 2001:
she loses in New York's highest court). The American Life League,
an anti-abortion group, plans to take a leaf from its counterparts on the
left and launch a systematic litigation campaign based on malpractice,
consumer protection and other theories to shut down abortion clinics, while
a conservative writer suggests approaching sympathetic state attorneys
general and getting them to file a tobacco-style megasuit against abortion
providers (Julia Duin, "Pro-life advocates aim to hit clinics in the pocketbook",
Washington Times, Aug.
10; Chuck Morse, "Big Tobacco and the Abortion Industry", EtherZone,
June 12). In Erie,
Pennsylvania, a judge has declared a mistrial in a medical malpractice
trial after a juror fainted during the trial and the defendant physicians
revived him; the judge thought it necessary, lest this act of kindness
be thought to have improperly prejudiced the proceedings, to restart the
whole ordeal from scratch ("Doctors accused of malpractice aid juror who
fainted", AP/CNN, Aug.
11). And Overlawyered.com's page on law and medicine has
as a resource by the MedExplorer medical search site.
August 15 -- The
Veep that got away. It's been widely reported that
the other finalist in the process by which Al Gore picked his running
mate was youthful Sen. John Edwards of North Carolina, who'd have been
an equally noteworthy pick from litigation reformers' perspective but for
opposite reasons: after briefly representing record companies Edwards "moved
to Raleigh, N.C., in 1981 and became a plaintiffs' lawyer. That made
him a millionaire. His fortune has been estimated at $20 million to $50
million." Edwards proceeded to sink an estimated $10 million from
his own pocket into his first and only political campaign, knocking off
incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw
Edwards as telegenic, a skillful speaker and from an important state, but
worried that his past could backfire among voters unhappy with trial lawyers
for "doing things like suing doctors and winning big verdicts, which then
drive up health care costs -- and Edwards has been an incredibly successful
one of that breed.'" (Michael Kramer, "Aides: Al Leaning Toward Edwards",
New York Daily News, Aug.
August 15 -- "Teams
liable for fans' safety". A Colorado court of appeals
has ruled that "sports teams must protect fans from known dangers -- such
as flying hockey pucks -- unless lawmakers specifically exempt the teams
from such liability." Diane Smith, a lawyer for the now-defunct Denver
DareDevils roller hockey team, said fans sit in the more hazardous area
near the goal because they want the best view and "if you are going to
sit where the action is, there are risks that go along with that"; appeal
to the state's high court is planned (Howard Pankratz, Denver Post,
August 14 -- Bush-Lieberman
vs. Gore-Nader? Our editor contributes a guest column
today (pinch-hitting for the vacationing Holman Jenkins) for Opinion
Journal, the Wall Street Journal editorial page's new online venture.
The column discusses the strong record Sen. Joe Lieberman has compiled
on litigation reform, the dilemma this poses for Vice President Gore, the
wrath it calls down on his head from fellow Connecticut resident Ralph
Nader, and the reasons why America is unusual in treating the pro-litigation
position as "progressive" when it isn't deemed to be such in much of the
rest of the world ("Not All Liberals Love Lawsuits", Aug.
August 14 -- "Disney
must pay $240 million in sports park lawsuit". A
jury in Orlando "ruled Friday that the Walt Disney Co. stole the idea for
a sports theme park from a former baseball umpire and his architect partner
and must pay $240 million in damages," a sum that the judge has discretion
to increase because the jury found Disney acted with malice. "The
notion that we had to steal the idea from the plaintiffs, an idea as old
as ancient Greece, is preposterous," said Disney general counsel Lou Meisinger,
who said "the plaintiffs lawyers had tried to frame the case as 'little
people against big business' and attempted to 'inflame their prejudice.'
Plaintiffs' lawyer Willie Gary", well known for his work on the Loewen
and Coke cases, "called Disney's reaction
'sour grapes.' 'We beat 'em and quite frankly we'll beat 'em again if we
need to,' Gary said. 'They're crying like little babies.'" Another
member of the team of plaintiff's attorneys was Johnnie Cochran of O.J.
Simpson case fame (CNN, Aug.
11; Beth Piskora, "Ump and architect sue Disney for $1.5 B", New York
10; "The Mouse Stole Idea", Aug.
August 14 -- "Airbag
chemical on trial". Because of the airbag in her $30,000
Mercedes, Edith Krauss and her husband
walked away from a 1997 crash that otherwise might have killed them.
But Krauss is suing the luxury automaker anyway: she "contends that she
has been plagued by throat ailments since the crash and they stem from
her inhaling sodium azide, the chemical that allows for the forceful deployment
of airbags." The company says the concentration of the chemical
in an airbag is too low to cause harm. Trial began last week in Elizabeth,
N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug.
August 14 -- Embarrassing
Lawsuit Hall of Fame. Among recent lawsuits with details
so embarrassing it's a wonder anyone would file them: a Barberton, Ohio
woman is suing an acquaintance in small claims court, saying he reneged
on a promise to let her pay in sexual favors for part of the sale price
for a truck (Stephanie Warsmith, "An unusual 'contract' is in court", Akron
Beacon Journal, Aug.
10); the Massachusetts Commission Against Discrimination has recommended
dismissal of a complaint by an employee of the town of Plymouth, who had
charged that a town official inflicted a hostile
working environment on her by (among other things) subjecting her to
flatulence, the commission reasoning that the passing of gas is not sexual
in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene
Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed
a very intimate injury committed to his person after he got on stage at
a club and allowed an exotic dancer to sit on his chest (Glen McGregor,
"Man sues hospital over testicle removal", Ottawa Citizen/National
Post, Aug. 8; more exotic dancer litigation: July
26, May 23 (also from Canada),
August 11-13 --
Litigation reform: the Texas experience. Citizens for
a Sound Economy releases a report evaluating the results of the 1995 package
of litigation reforms enacted in Texas under Gov. George W. Bush (more
about package, from Governor's
office). Prepared by the Perryman Group of Waco, Tex.,
the report estimates that the reforms contributed significantly to reducing
prices, raising personal incomes and stimulating economic development in
the Lone Star State, with resulting benefits to the average Texas household
of $1,078 a year. ("The Impact of Judicial Reforms on Economic Activity
in Texas", Aug. 9; executive
summary links to PDF
Earlier, Texas insurance commissioner Jose Montemayor estimated that
insurance buyers in the state would save a cumulative $2.9 billion by 2000
through mandated rate reductions linked to the lawsuit reforms: “Tort reform
has been a tremendous success.” ("Commissioner says tort reform saves
Texans $2.9 billion", AP/Abilene Reporter-News, Oct. 2, 1999).
Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, "Tort
Reform Savings on Insurance Overstated", Dallas Morning News, Dec.
21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable
lengths to publicize their case since then (see Richard A. Oppel Jr.
and Jim Yardley, "Bush Calls Himself Reformer; the Record Shows the Label
May Be a Stretch", New York Times, March 26, 2000, excerpted at
Democratic National Committee site; now 404 Not Found, but GoogleCache
has preserved a version). For a riposte from the reform side,
see Tom Beaty, "Legal reform has brought benefits to business", Houston
Business Journal, Feb.
And see: Constance Parten, "Texas Holds Its Own in Insurance Rates",
Insurance Journal, June
26, 2000 (reform package wasn't expected to bring major savings in
auto insurance, as opposed to commercial and medical lines, but did so
anyway); Lone Star Report, Aug.
27, 1999 (scroll halfway down for item); and Texans
for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston,
has posted a variety of materials on the controversy at its website, including
a summary of reforms;
Jon Opelt, "$3 Billion
Hardly Chump Change"; and Cora Sue Mach, "Governor
Bushwhacked over Lawsuit Savings". (DURABLE
August 11-13 --
"Ohio cracks down on keggers". Under a new Ohio law, people
who want to give parties for which they'll buy five or more kegs of beer
must register the location of the party in advance, wait five days to take
possession of the kegs, and "allow liquor agents and police to enter the
property to enforce state liquor laws, a requirement that bothers the American
Civil Liberties Union and others." Several states have or are considering
similar laws. "Maryland has required keg registration since 1994 to allow
the containers to be traced to the buyer and the seller, both of whom are
held accountable if minors are caught drinking the alcohol." (Liz
Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).
August 11-13 --
Stay away, I've got a court order. Last year Maryland
passed a new law allowing residents to apply for a civil restraining
order to keep away people who they say have frightened or harassed
them, a type of protection long available in matrimonial cases. Now
the law is being used more than proponents expected, and not just by unmarried
paramours and other intimates but as a way to settle -- or escalate --
spats among schoolmates, neighbors, co-workers and virtual strangers.
(Donna St. George, "Residents Seeking 'Peace' Invade Md. Courts", Washington
August 11-13 --
"Not even thinking about" fees. With appeals and other
legal maneuvering expected to last quite a while after a Miami jury's $145
billion punitive damage award
against tobacco companies, Knight-Ridder asked plaintiff's attorney Stanley
Rosenblatt about fees he might reap from the action. "It's so far
down the road that we're not even thinking about it," he claimed.
(Uh-huh.) "Generally lawyers' fees in class-action suits are about
25 to 30 percent of the award or settlement," the news service reports,
though it speculates that trial judge Robert Kaye might approve a smaller
fee award than that, perhaps a mere $1 billion. Rounded off in the
overall context, that would count as almost nothing, right? ("Smokers'
lawyers could get $1B -- or zilch", Knight Ridder/Norwalk (Ct.) Hour,
July 26, not online). Plus: commentary by the Cato Institute's
Robert Levy ("Litigation Lunacy in Florida", Cato Daily, July