January 15-16 --
"Blatant end-runs around the democratic process". "If
I had my way, there'd be laws restricting cigarettes
and handguns," writes former Secretary
of Labor Robert Reich, a prominent liberal, in this widely noted piece
in the new American Prospect. But "[f]ed up with trying to
move legislation, the White House is launching lawsuits to succeed where
legislation failed. The strategy may work, but at the cost of making our
frail democracy even weaker."
The legal grounds for both the tobacco and gun suits "are stretches,
to say the least. If any agreement to mislead any segment of the public
is a 'conspiracy' under RICO, then America's entire advertising industry
is in deep trouble, not to mention HMOs, the legal profession, automobile
dealers, and the Pentagon." The federal gun case prefigures liability
for the makers of such products as "alcohol and beer, fatty foods, and
sharp cooking utensils."
"These novel legal theories give the administration extraordinary discretion
to decide who's misleading the public and whose products are defective.
You might approve the outcomes in these two cases, but they establish a
precedent for other cases you might find wildly unjust....But the biggest
problem is that these lawsuits are blatant end-runs around the democratic
process.... In short, the answer is to make democracy work better, not
give up on it". (Robert Reich, "Smoking, guns", The American Prospect,
January 15-16 --
"Public paranoia, and other losses". George Williams of
Cut Off, Louisiana is suing the Fair Grounds Corp. and assorted other defendants
over two winning trifecta bets he placed at an off-track betting parlor
which paid $80.80 and $36.60 when the television monitor suggested that
the actual payout should be $121.20 and $41.80 respectively. The
suit charges the race track and various other defendants with wire fraud,
mail fraud, theft and breach of contract, and claims damages for "mental
anguish and emotional distress, loss of enjoyment of life, embarrassment,
humiliation, loss of sleep, public paranoia, and other losses." Williams'
attorney, Corey Orgeron of Cut Off, "said he simply wants to get to the
bottom of the discrepancies between what Williams thought he won and what
he was actually paid. 'It very easily could be nothing more than simple
negligence,' Orgeron said. 'I don't think there was any criminal intent.'"
Then why'd he throw in the charges of fraud, theft, and so on? (Joe
Gyan Jr., "Man accuses OTB parlor of fraud", Baton Rouge Advocate,
Jan. 8) (& letter to the editor, Jan.
January 15-16 --
Poetry corner: Benjamin Franklin. Thanks to Tama Starr
for suggesting this one:
The Benefit of Going to LAW
Two Beggars travelling along,
One blind, the other lame,
Pick'd up an Oyster on the Way
To which they both laid claim:
The matter rose so high, that they
Resolv'd to go to Law,
As often richer Fools have done,
Who quarrel for a Straw.
A Lawyer took it strait in hand,
Who know his Business was,
To mind nor one nor t'other side,
But make the best o' th' Cause;
As always in the Law's the Case:
So he his Judgment gave,
And Lawyer-like he thus resolv'd
What each of them should have;
Blind Plaintiff, lame Defendant,
The Friendly Laws' impartial
A Shell for him, a Shell
The Middle is the LAWYER'S
-- Benjamin Franklin, Poor
Richard's Almanack, 1733 (& see Jan.
January 15-16 --
Welcome HealthScout visitors. In an article on the "Internet
addiction" defense (see Jan. 13-14) and other creative legal theories,
the online health news service concludes: "If you wonder whether America's
legal system is getting out of control, check out Overlawyered.com (yes,
that's its real name) to read more about the Columbine case and other questionable
legal tactics." (Serena Gordon, "'The Web Made Me Do It!'", HealthScout,
Jan. 13). Check out our subpage on law
January 13-14 --
Latest excuse syndromes.
A Florida teenager accused of making a threat of violence in an email to
Columbine High School was suffering from "Internet intoxication", his lawyer
plans to argue. Michael Ian Campbell was "role-playing" when he sent
a message threatening to "finish" what Eric Harris and Dylan Klebold began
in their massacre last April, according to Miami attorney Ellis Rubin.
In earlier cases, Rubin offered "television intoxication" as a defense
for a teenager eventually convicted of murdering an elderly neighbor, and
defended a woman who eventually pleaded guilty to prostitution by saying
that the antidepressant Prozac had turned her into a nymphomaniac.
Meanwhile, a black Pennsylvania man accused of bank robbery is offering
an insanity defense, saying that he had been driven to mental derangement
by the racism of the white culture around him. "Police said [Brian]
Gamble dressed as a woman when he went into the bank on July 3 and robbed
tellers at gunpoint." (Steve Gutterman, "Internet Defense in Columbine
Case", Washington Post, Jan. 12; "Robbery suspect claims racism
made him insane", AP/CNN, Dec. 23).
January 13-14 --
"Litigation Bug Bites Into Democracy". "Fueled by the success
of the class-action war on Big Tobacco, class-action 'lawfare,' if you
will, is also now being waged against -- among others -- gun
manufacturers, makers of lead paint, Microsoft,
the health maintenance organization industry,
makers of genetically altered seed, the vitamin industry and the airlines."
Chicago Tribune editorial also points out, regarding charges that
American businesses poured too much money into averting even minor Y2K
glitches, that of course they were terrified out of any reasonable cost-benefit
calculation: "it wasn't just fear of the millennium bug. It was fear of
lawyers waiting to pounce. Didn't spend enough money to fix your computers,
eh? Created a public safety problem, did you? Surely you knew
your negligence would disrupt us. We'll see you in court." (editorial,
January 13-14 --
Huge jump in biggest jury verdicts. Survey by Lawyers'
Weekly USA finds the ten biggest jury awards to individual plaintiffs
approached an aggregate $9 billion in 1999, nearly tripling from the amount
in 1998. "Something totally unparalleled in history is going on in our
legal system," says the weekly's publisher, not without a touch of magniloquence.
Besides the Anderson (Chevy Malibu) verdict against GM, set by the
jury at $4.9 billion and reduced by a judge to $1.1 billion (see Dec.
16, Aug. 27, July
10 commentaries), the other billion-dollar case was an award of
$1.2 billion to the family of 32-year-old Jennifer Cowart, who died of
burn injuries after a go-cart accident at a Pensacola, Fla. amusement park.
(AP/FindLaw, Jan. 11).
January 13-14 --
Watch your speech in Laguna Beach. The use of slurs, catcalls
and other "hate speech" on the street is not in itself unlawful, but police
in Laguna Beach, Calif. have begun documenting episodes of such verbal
nastiness anyway on the theory that perpetrators often "graduate" to physical
violence later on -- a sort of gateway theory, as they call it in the drug
war. Police Chief James Spreine said the database of hate-speech
incidents will help his department identify suspects in serious crimes
-- raising the danger that constitutionally protected speech,
although not to be punished itself, will bring with it something akin to
official suspect status when unknown parties commit bias crimes later on
(Mayrav Saar and Barbara Diamond, "Laguna Beach police will document hateful
speech", Orange County Register, Jan. 12).
January 13-14 --
"Americans Turn To Lawyers To Cure Nation's Social Ills".
Uh, speak for yourself, would you mind, please? Last week's flattering
news-side Wall Street Journal profile of class-action impresario
Michael Hausfeld (anti-guns, anti-HMOs,
anti-biotech) got the most basic premise wrong about the class action biz
when it said that "more and more frequently, they [referring to "people"
or "society"] turn to courts when the traditional avenues of politics or
activism seem obstructed." But the "people" don't hire class action
lawyers; more typically those lawyers hire themselves, and if necessary
go out and find a representative plaintiff to sue for. Of course
these lawyers would love to establish that their activities simply coincide
with what the public wants them to do, but why is the Journal's
news side lending them a hand by assuming what is to be proven? (Paul
Barrett, "Americans Turn To Lawyers To Cure Nation's Social Ills", Wall
Street Journal, Jan. 4)
January 13-14 --
Your fortune awaits in Internet law. Five years ago this
Ohioan was toiling away as a computer operator for a sleep clinic, but
now he's moved on to a career in the fast-growing world of Internet
law -- representing a client who cybersquatted on such domain names
as "dolphins.com" and "jets.com" and now wants major bucks from the football
folks on the grounds that they interfered with his sale of the names.
"Mr. DeGidio sees such issues as fertile ground for dispute." (George J.
Tanber, "Web challenges kindle this attorney's interest", Toledo Blade,
January 13-14 --Overlawyered.com
announcement list now hosted at ListBot. It was getting
too big to be managed any other way -- besides, this way you can volunteer
fun demographic information about yourself. To join the list, look
for the red Listbot button in the column at left and enter your email address.
January 13-14 --Correction:
surname of Pennsylvania AG. Our January
10 report mistook the surname of Attorney General Mike Fisher of Pennsylvania.
We've fixed it now. Our apologies.
January 12 -- Finally!
Reform may be in the wind for New York City's patronage-ridden courts,
following a burgeoning scandal in Brooklyn. Two top officials resigned
last month from the law committee of the Brooklyn Democratic Party, complaining
that despite their "unquestioned loyalty" to the party they'd been cut
out of lucrative court assignments. The letter painted a damning
picture of the operations of the city's notoriously buddy-buddy system
of fiduciary appointments, by which judges appoint clubhouse lawyers to
fee-intensive positions managing the estates
of decedents, orphans, failed businesses, foreclosed properties and other
entities that can't tend to their own affairs. Mayor Rudy Giuliani
promptly called for reform to purge the system of its continuing machine
taint, and now the state's chief judge, Judith Kaye, has announced that
she's appointing an investigator with subpoena power to uncover improprieties
and make the fiduciary appointment process worthy of public confidence.
If that works, our friend Augeas has some stables that need cleaning out.
Update Dec. 20, 2001: investigation
results in report exposing abuses.
SOURCES: Alan Feuer, "2 Brooklyn Lawyers, Ex-Insiders,
Outline a Court Patronage System", New York Times, Jan. 5; Thomas
J. Lueck, "Giuliani Urges Chief Judge to End Patronage in Courts", New
York Times, Jan. 6; Winnie Hu, "Political Favoritism by Judges Faces
an Investigation", New York Times, Jan. 11 (all Times links
now dead); John Caher, "NYS Courts to Probe Judicial Appointments of Lawyers",
York Law Journal, Jan. 11; Tracey Tully, "Judge To Probe Patronage",
New York Daily News, Jan. 11; Frederic U. Dicker and Maggie Haberman,
"Top Judge Orders Probe of B'klyn Patronage Scandal", New York Post,
January 12 -- Disabled
accommodation in testing. Sunday's L.A. Times notices
the trend: "The number of students
who get extra time to complete the SAT because of a claimed learning disability
has soared by more than 50% in recent years, with the bulk of the growth
coming from exclusive private schools and public schools in mostly wealthy,
white suburbs." (Kenneth R. Weiss, "New Test-Taking Skill: Working the
System", Los Angeles Times, Jan. 9; see our editor's "Standard
Accommodations", Reason, February 1999.) The U.S. Department
of Justice has sued the Law Schools Admissions Council for allegedly following
overly rigid rules in responding to physically disabled applicants' requests
for extra time on the Law School Admissions Test. "We are extremely
disappointed that the Department of Justice has decided to litigate this
matter and even more disappointed that they issued a press release about
the lawsuit before serving us with the complaint," says the Council's president.
(Shannon P. Duffy, "Disabled Students Denied Accommodation to Take LSAT,
Suit Says", The Legal Intelligencer (Philadelphia), Dec. 9).
Columnist Robyn Blumner isn't the only one reminded of the Kurt Vonnegut
story, "Harrison Bergeron". ("The high cost of equality: our freedom",
St. Petersburg Times, Dec.
January 12 -- Ontario
judge okays hockey-fan lawsuit. Justice Michel Charbonneau
ruled that a lawsuit by season-ticket holders against player Alexei Yashin
(see Oct. 20 commentary) can proceed
even though the law in the area is "relatively undeveloped". "This
is groundbreaking because this is the first time we can examine an athlete's
state of mind regarding fans," said attorney Arthur Cogan. "Does he ever
think about fans' interests?" Next up: lawsuits by inconvenienced
customers against workers who go out on unauthorized strikes? (Kevin Allen,
"Yashin to face fans' discontent", USA Today, Jan.
6; "Judge: Fans' lawsuit against Yashin can proceed", CBS SportsLine,
January 12 -- Warn
and be sued. "When Gwinnett County police officer Gordon
Garner III told clinical psychologist Anthony V. Stone during a fitness-for-duty
interview that he had had a vision of killing his captain, and thoughts
about killing eight to 10 others including the chief and a county commissioner,
Stone took it seriously." He "consulted a lawyer for the Georgia
Psychological Association, Susan Garrett, who advised him he had a duty
to warn the individuals Garner had named", according to court papers.
Two weeks after the initial interview, he did warn them -- walking right
into a lawsuit from Garner for breach of confidentiality which culminated
last month in a jury award of $280,000. Sued if you do, sued if you don't?
"In previous reported cases in Georgia, mental
health professionals have been sued for failing to warn third parties
that they might be in danger; Stone was sued for issuing that precise warning."
(Trisha Renaud, "Ex-Cop Wins Rare Confidentiality Case", Fulton County
Daily Record, Jan. 5).
January 11 -- Health
plans rebuffed in bid to sue cigarette makers.
Now we find out! Helping close the door on the premise of the state
Medicaid suits (after that $246 billion horse has already escaped from
the barn), the Supreme Court yesterday let stand lower-court rulings denying
union health plans the right to sue tobacco
companies to recoup smoking-related health outlays. ("Union health
plans lose round with cigarette makers", AP/FindLaw, Jan. 10; Joan Biskupic,
"Court Rejects Union Tobacco Suits", Washington
11). For a brief run-down of why these third-party payor claims
have no law on their side, we recommend Judge Frank Easterbrook's enjoyably
Circuit opinion, issued in November, dismissing suits filed by union
funds and Blue Cross/Blue Shield plans in Illinois.
January 11 -- Microsoft
temps can sue for stock options. "In another
victory for temporary workers at Microsoft,
the Supreme Court today let stand a ruling that greatly expanded the number
of employees who could sue the software
giant to purchase stock options and get other benefits." If you're
an employer who was counting on the old notion of freedom of contract to
hold temps and independent-contractor employees to the benefits they bargained
for, be afraid. (James V. Grimaldi, "High court rules 15,000 Microsoft
temps can sue", Seattle Times, Jan. 10; Dan Richman, "Microsoft
'Permatemps" Win", Seattle Post-Intelligencer,
11) (see also Aug. 19 commentary).
January 11 -- "Update
from the Year 2050". The protagonist of this 1984-like
tale wakes up to tepid home-brewed coffee: "Today, no house could be programmed
to prepare scalding fluids. No ice cubes either: People choked on them
and died. As Plaintiff in Chief Rodham Bush liked to say, 'Extremes are
unhealthy.'". It was in the 00's decade that the lawyers really took
over: "By piling lawsuit atop lawsuit, the attorneys could bankrupt any
company that tried to fight them....Politicians had discovered that by
joining in the lawsuits, the government could take a cut of the settlements."
Now there was just one big company left, McNikeSoft, which efficiently
settled hundreds of thousands of suits a day on the Litigation Exchange,
and which the lawyers refrained from bankrupting because that would end
the game. "Profits flowed efficiently from the real economy directly to
the attorneys. Everybody was happy." Hurry up and read this new satire
by Jonathan Rauch before the folks he skewers find some way to sue him
for writing it (National Journal, Jan. 7 -- see Reason
January 11 -- Can
they get a patent on that? "Two top executives
and two high-level officers at a consulting firm that serves lawyers and
insurance companies were indicted by a federal grand jury [in November]
on charges of designing a computer program that automatically inflated
the bills it sent to clients." The indictment charges that a computer
programmer at the firm, S.T. Hudson International Inc. of Wayne, Pa.,
"developed a program he called the 'gooser'... which automatically multiplied
every hour worked by a consultant by 1.15 and then added an extra half
hour to the total hours," with resulting overpayments by clients and affiliated
companies totaling more than $320,000. (Shannon P. Duffy, "Consulting
Firm Indicted for Inflating Bills Sent to Lawyers", Legal Intelligencer
(Philadelphia), Nov. 30).
January 11 --
"Dear Abby: Please help..." "...I fell in love
with a married man. He claimed he loved me. My husband caught
us and now has filed for divorce.
My lover called it quits and ran back to his wife.
"Can I sue my lover for breach of promise because he promised
to get a divorce and marry me?" -- Destroyed in the U.S.A.
"Dear Destroyed: I recommend against initiating such a
-- An entry, reprinted in its entirety, from "Dear
Abby", January 2.
January 11 -- Welcome,
Yahoo and About.com visitors. Our page on
schools has recently won listings at Yahoo "Full
Coverage: Education Curriculum and Policy" and J. D. Tuccille's popular
Liberties section at About.com.
January 10 -- Pokémon
litigation roundup. The Burger King Corporation
last month recalled about 25 million pull-apart plastic balls containing
the cartoon characters, which had been distributed as premiums with childrens'
meals, after a young child apparently suffocated on half of one of them.
The company offered a small order of french fries in exchange for each
returned ball, which did not save it from class
action lawyers in Dallas who dashed at once to court, their named client
a local mother whose son was entirely unharmed by the balls but who (or
so the premise of the suit went) considered the french fries inadequate
compensation for the toys' return. ("Burger King Hit With Pokémon
Lawsuit", Reuters/FindLaw, Dec. 30; Jenny Burg, "Dallas Mom Sues Burger
King Over Poke Balls", Texas Lawyer, Jan. 5).
In other Pokémon litigation news, showman Uri
Geller, whose act is best known for his purported ability to bend spoons
by the power of remote mind control, is threatening to sue the makers of
the cards over the inclusion of the character Kadabra, which is shown wielding
a spoon and which boasts "special mental powers: It plagues bystanders
with a mysterious pain in the brain'", to quote the New York Post.
Japanese children are said to have nicknamed the character "Uri Geller";
"There's no way that they're allowed to do this," Geller says his lawyer
told him. (Lisa Brownlee, "Pokémon card trick makes magic
man mad", New York Post, Dec. 30). And the American Lawyer
has now given a write-up to the recent imbroglio (see
Oct. 13 commentary) in which class-actioneers Milberg Weiss Bershad
Hynes & Lerach filed a lawsuit charging that the trading cards are
a form of unlawful gambling, without realizing that a company it represented
owned the licensing rights to the characters -- with the result that it
sued its own client for treble damages for alleged racketeering.
(Sherrie Nachman, "Cartoon Conflicts",
American Lawyer, Dec. 20)
(earlier Pokémon coverage: Dec.
16, Oct. 13, Oct.
January 10 -- Pennsylvania
tobacco fees: such a bargain! "One lawyer
spent 12 minutes reading the Wall Street Journal and billed $62.
Another charged $290 for the hour he took identifying and ordering books."
Lawyers' bills like that might stand in need of a little revising, you
might think -- but in the case of the Pennsylvania tobacco
fees the revision was upward, from $7.1 million to a negotiated
deal of $50 million. On a per-capita basis that still ranks among
the lowest tobacco fees in the country, but eyebrows have been raised by
the fact that the prominent and generally business-oriented law firms that
handled the work for the state, Buchanan Ingersoll of Pittsburgh and Duane,
Morris & Heckscher of Philadelphia, were selected in what critics say
was not an open or competitive process, and happened to be major campaign
contributors of Attorney General Mike Fisher, the one doing the selecting
(Fisher also made the key decisions in the eventual negotiated fee settlement).
"Obviously," says one critic, Philadelphia attorney Lawrence Hoyle, Jr.,
"it was a political kind of deal."
"The $50 million that Duane, Morris and Buchanan Ingersoll
will share over the next five years dwarfs the combined total of the Ridge
administration's bills for outside legal counsel last year: about $35 million
to 241 law firms, with none getting more than $2.3 million." And
by the time Pennsylvania sued, other states had developed the legal theories
on which the case rested. Tobacco-fee zillionaire Joseph Rice, who
represented many states in the affair, agrees that the late-filing Keystone
State did not face as much legal risk as states that filed earlier, but
says: "I don't think we should quibble about it." But then, he would
say that, wouldn't he? (Glen Justice, "In tobacco suit, grumblings
over legal fees", Philadelphia Inquirer, Oct. 4)(& see Oct.
January 10 --
Back pay obtained for illegal aliens. Scoring an early
win for its new policy of backing lawsuits by undocumented workers over
the loss of jobs it was unlawful for them to hold in the first place, the
federal government has extracted a $72,000 settlement from a Holiday Inn
Express Hotel and Suites in Minnesota on behalf of nine illegal Mexican
immigrants. The National Labor Relations Board and Equal Employment
Opportunity Commission had charged the hotel with firing the workers because
they were leading a union organizing drive, along with other employment
and labor law infractions. The workers are still in the country
and are resisting a deportation order. ("Hotel Settles Illegal Aliens
Case", AP/FindLaw, Jan. 7) (see Oct. 29,
January 8-9 --
OSHA at-home worker directive. No wonder the AFL-CIO spoke
favorably of this abortive (see Jan. 6, Jan.
5) proposal; as recently as the 1980s it was calling for an outright
ban on telecommuting. Communications Workers of America president
Mort Bahr, for example, warned that allowing stay-home employment
was dangerous "particularly if that worker wants to work at home".
(Quoted in James Bovard, "How Fair Are Fair Labor Standards?", Cato
Inst./Regulation mag.) "Traditionally, unions have opposed
telecommuting/work-at-home programs because they fear that such programs
represent a return to cottage industry piecework. A distributed workforce
makes it more difficult for unions to organize, represent members, and
police collective bargaining agreements". ("Telecommuting and Unions",
America California Style).
Curiously, the only newspaper we could find that commented favorably
on the new OSHA intervention was Silicon Valley's own San Jose Mercury
News (link now dead) (cynics might point out that since at-home tech
workers in Bakersfield, Boise and Bangalore directly compete with the face-to-face
Valley culture, they're not exactly the Merc's constituency).
At other papers it was a more or less uniform hail of dead cats: the Washington
Today, Wall Street Journal, Hartford Courant ("Bureaucrats Gone
Berserk"), Los Angeles Times, Dallas Morning News, Boston
Washington Times, Arizona Republic, Birmingham
as well as Sen. Kit Bond, the American
Electronics Association (EE Times) and commentators Steve
Chapman (quotes our editor), Dick
Feagler, Marjie Lundstrom, Bruce Harmon (Bridge News), and Ken
Smith (many of these links via Junk
Science)(many links now dead).
When the OSHA letter hit the nation's front pages, reports the Washington
"A number of companies immediately put on hold plans to expand telecommuting
privileges to employees". But the letter was hardly a frolic or detour
on the part of some low-level Munchkin: the agency spent two years on it,
and it was "considered a declaration of existing policy by OSHA officials".
Among the possible real-world effects of the letter, the Post quotes
a Labor Department official as saying, is to have been "used by courts
to make it easier to hold employers accountable for injuries that occur
in home offices" -- i.e., in litigation. And "since Labor Department
officials had originally regarded the letter [as] a statement of existing
policy, it is unclear whether withdrawing the letter had much practical
effect." (Frank Swoboda, "Labor Chief Retreats on Home Offices",
Washington Post, Jan.
January 8-9 --
Right to win unlimited carnival prizes. Florida's Busch Gardens
has put a limit of ten a year on the number of prizes -- stuffed animals,
football jackets and the like -- that its patrons can win at its carnival
games. One of the park's frequent patrons, Herman James, is so adept
at the games that he says he makes a side business of reselling the many
prizes he wins. Now Mr. James is suing the park, saying the ten-prize-a-year
limit is unfair to him. The park denies that its limit is directed
specifically at Mr. James. ("Man sues Florida's Busch Gardens
for the right to win unlimited prizes", AP/Court TV, Jan.
January 8-9 --
Shenanigans on the bayou. Someone -- who was it?
-- posed as a staff person with the clerk of court's office and placed
calls to potential jurors' residences, inquiring about their plans, while
a multimillion-dollar asbestos case was going through its jury-selection
stage this fall in Plaquemine, La. Soon ugly charges were flying
back and forth between Exxon Corp. and prominent Dallas plaintiff's firm
Baron & Budd. The case has been referred to the Office of Disciplinary
Counsel, which regulates the state's lawyers, but it's expected to be at
least a year before the ODC completes its investigation. A year?
They sure take their time down there (Angela Ward, "Baron & Budd’s
Bayou Blues", Texas Lawyer, Nov. 11).
January 8-9 --
No warning given to cousin-spouses. 22-year-old Leslie
Zambrana and her husband Alfredo are seeking millions of dollars in a lawsuit
against the University of Miami School of Medicine, Jackson Memorial Hospital
and a health clinic for failing to
warn them that their daughter might be born with Down's Syndrome, the genetic
disorder whose effects include mental retardation. The suit contends
that even though Leslie told the clinic's physician that she and her husband,
the baby's father, are first cousins to each other, she was not administered
a recommended "triple screen" blood test for high-risk mothers that might
have detected the syndrome and caused her to seek an abortion. The
couple's grandparents are also first cousins to each other. (Jay
Weaver, "Married cousins sue over baby's disability", Miami Herald,
January 7 --
Hire that felon, or else. Our editor's December Reason
column, now online, looks at what happened after the state of Wisconsin
passed a first-of-its-kind law forbidding employers in most circumstances
from discriminating against job applicants on the grounds of those applicants'
criminal records. Among the consequences: the cash settlement won
by the notorious "Halloween killer" from a company that declined to hire
him on his release from prison, and a case where the Milwaukee school system
learned it was not free to deny a job to a man convicted of felony child
endangerment. (Walter Olson, "Reasonable Doubts: Felon Protection",
1999) (see also our Sept. 24 commentary).
January 7 --
Protests just aren't what they used to be. We reported
in our November 3 installment on how
flag-burning protesters in at least one sizable American city (Las Vegas)
are now legally required to take out advance environmental permits -- smoke
emissions into the atmosphere, and all that. Now John Leo, in a U.S.
News column on the way many campus newspapers have faced intimidation
and thefts of their stock after printing material that offends identity
groups, tells what happened after "the Ohio State Lantern [ran]
a comic strip poking fun at the women's studies department....A noisy crowd
took their protest to the front porch of cartoonist Bob Hewitt and attempted
to burn a bra, but thanks to consumer protection regulations, the flame-retarding
brassiere failed to ignite." (John Leo, "The 1999 Sheldon", U.S. News,
January 7 -- GQ
on Gov. Bush, Karl Rove and litigation reform. The new January
issue of GQ profiles Karl Rove, key strategist in the George W.
Bush campaign and "easily the team's most pivotal player after W. himself."
Aside from the intrinsic interest of the following passage, it allows our
editor to get away with more shameless self-promotion about how his book
Litigation Explosion (buy
it now!) gets read in high places:
"Of the four issues he ran on in '94 [education, welfare, juvenile justice,
tort reform], I can honestly say I played a role in only one of them,"
Rove told interviewer Robert Draper. "I'm a huge tort-reform advocate,
and I said, 'See what you've talked about here -- a thread of responsibility
runs through all of these. We have a society where people are being
held responsible for their actions not to the degree of their responsibility
but to the degree of their monetary worth, and someone's life's work can
disappear overnight because he happens to have deep pockets and gets hit
by junk and frivolous lawsuits.' And I gave him Wally Olson's book
[The Litigation Explosion] and a couple of others. He had
feelings about the topic, but he hadn't thought about it. And look
-- that's the way the best candidates are. They need people around
them to execute the mechanics of the campaign, the tactical considerations
. And the strategy is born out of their heart, soul and gut."
(Robert Draper, "W's Brain", GQ,
Jan. 2000 -- not online)
January 6 --
"Accord tossed: Class members 'got nothing'". A panel of the
Seventh Circuit U.S. Court of Appeals has thrown out a settlement in a
suit over the mailing by Equifax Check Services Inc. of allegedly unlawful
debt collection letters. Judge Frank Easterbrook, joined by Judges Richard
Posner and Ilana Diamond Rovner, said the settlement provided no tangible
benefit for the 214,000 class members while funneling fees, later determined
to be $78,000, to the lawyer for the class. Equifax agreed to stop
using a form letter and to donate $5,500 to a law school consumer clinic;
"Crawford and his attorney were paid handsomely to go away; the other class
members received nothing (not even any value from the $5,500 'donation')
and lost the right to pursue class relief," Judge Easterbrook wrote.
Cases Nos. 99-1973 & 99-2122, decided January 3; Patricia Manson, "Accord
tossed: Class members 'got nothing'", Chicago Daily Law Bulletin,
January 6 --
Haunted house too scary. "A woman suing Universal Studios
contends the theme park operator's annual Halloween Horror Nights haunted
house attraction was too scary and caused her emotional distress."
Cleanthi Brooks, 57, says that when she and her granddaughter were visiting
the Florida park in 1998, an employee wielding a (chainless) chainsaw chased
them toward an exit, with the result that they slipped on a wet spot and
suffered unspecified physical injuries. (Tim Barker, "Universal fall
leads to lawsuit", Orlando Sentinel, Jan. 5; "Woman sues haunted
house over injuries, emotional distress", AP/FindLaw, Jan. 5)
January 6 --
OSHA backs off on home office regulation. Moving quickly
to nip mounting public outrage, Secretary of Labor Alexis Herman now explains
that the Occupational Safety and Health Administration never intended to
bring home working conditions under full-fledged
federal regulation -- why, the idea never even crossed their minds!
The advisory letter to that effect has been withdrawn, but Republicans
on the Hill are promising hearings. ("Labor Department does about-face
on home office letter", AP/CNN, Jan. 5; see yesterday's commentary)
January 6 --
Backyard trash burning. Researchers from the Environmental
Protection Agency and the New York State Department of Health report that
the burning of ordinary trash by households, still a common practice in
many rural areas, is an unexpectedly important likely source of release
into the atmosphere of polychlorinated compounds such as dioxin, long
a subject of regulatory scrutiny because of their potential toxicity.
A family of four burning trash in a barrel on their property "can potentially
put as much dioxin and furan into the air as a well-controlled municipal
waste incinerator serving tens of thousands of households". ("Backyard
Burning Identified As Potential Major Source Of Dioxins", American Chemical
Society/Science Daily, Jan.
January 5 --
Beyond parody: "OSHA Covers At-Home Workers". "Companies that
allow employees to work at home are responsible
for federal health and safety violations that occur at the home work site,
according to a Labor Department advisory," reports the Washington Post.
The policy covers not only telecommuters
but even the parent who briefly takes work home to be with a sick child.
"Although the advisory does not provide specifics, in effect it means that
employers are responsible for making sure an employee has ergonomically
correct furniture, such as chairs and computer tables, as well as proper
lighting, heating, cooling and ventilation systems in the home office."
Employers may also be responsible for identifying and repairing such hazards
as, for example, rickety stairs that lead down to a basement home office.
They "must also provide any needed training to comply with OSHA standards,
and may have to ensure that the home work space has emergency medical plans
and a first-aid kit."
The new directive "makes sense", says AFL-CIO health and safety director
Peg Seminario: "Employers have to provide employees a workplace free from
hazards." Pat Cleary, vice president for human resources policy at
the National Association of Manufacturers, takes a different view: "This
is nuts". And at Slate "Breakfast Table", Matt Cooper is almost equally
succinct: "This is one of those regulatory rulings that sets liberalism
back a generation." Washington lawyer Eugene Scalia calls the development
"part of a string of recent initiatives intended to court union leaders
as the presidential primaries approach."
Sources: Frank Swoboda and Kirstin Downey Grimsley, "OSHA
Covers At-Home Workers", Washington Post, Jan.
4; Slate "Breakfast Table", Jan.
4 (third item); "Workplace Rules Protect Home Office", AP/FindLaw,
4; "Workplace Safety Rules Cover Telecommuters -- OSHA", Reuters/Excite,
4; Eugene Scalia, "Gore, Unions Invite OSHA to Your Home" (op-ed),
Street Journal, Jan.
5 (online subscription required).
Sequel: faced with mounting public outrage, the Department of
Labor announced within 24 hours that it was withdrawing the new directive
and rethinking its policy (see January 6 commentary)
January 5 --
Calif. state funds used to compile tobacco "enemies list".
The Daily News of Los Angeles reported last month that the Americans
for Nonsmokers Rights Foundation, a Berkeley advocacy group, has received
$1.2 million from the state of California over the past four years to track
and counter critics of "tobacco control".
Among its activities: "[m]onitoring people who attended and spoke on tobacco
issues at city council meetings in cities throughout the state", "[i]nvestigating
a federal judge in North Carolina who issued a ruling in a case involving
second-hand smoke," and "[i]ncorrectly accusing John Nelson, a spokesman
for former Assembly Speaker Curt Pringle, of being on the payroll of the
tobacco industry. After Nelson complained, the foundation apologized."
A state official acknowledges that the private foundation has been asked
to monitor groups that have "interfered in tobacco control activities"
-- such "interference" taking the form, for example, of opposing municipal
smoking-ban ordinances. Steve Thompson, vice president for government
affairs of the California Medical Association, called the program "a political
surveillance operation on people that this group perceived as unsympathetic
to the anti-smoking movement." Among those who learned that his name was
on the resulting lists was Los Angeles attorney Bradley Hertz, who led
the opposition to an anti-smoking ordinance in Long Beach but says he was
erroneously listed in the advocacy group's reports as a participant in
pro-tobacco efforts on a statewide level; Hertz says that in his view public
funds should not be used to "spy on citizens". Jon Coupal,
president of the Howard Jarvis Taxpayers Association, went further, charging
that the dossier-compiling "smack[ed] of Gestapo tactics.... Taxpayers
are actually financing an abuse of government power." However,
some on the other side dismissed the criticism and said they found nothing
improper about the program. "To protect the public interest, there must
be independent monitoring of these front groups -- the job cannot be left
to newspapers or public officials," said Sen. Tom Hayden (D-Los Angeles).
In North Carolina, many attorneys "leapt to the defense" of U.S. District
Judge William Osteen, who the Nonsmokers Rights group targeted with an
exposé after he handed down a 1998 ruling overturning a federal
report on secondhand smoke. "To me it's just one more example of a focused
interest group trying to intimidate judges," said the recently retired
chief justice of the N.C. Supreme Court, Burley Mitchell. "It's part of
the meanness that's crept into public life at all levels."
Sources: Terri Hardy, "Smokers' Spy Tax; Using Tax Funds
for 'Enemies List' Not What Public Intended, Critics Say", Daily News
(Los Angeles), Dec. 6; and "Group Assailed for Sloppy Work; Man Says Organization
Hurt His Reputation When it Got Facts Wrong", sidebar to above, same date
archive, search Daily News file on "Nonsmokers Rights Foundation");
same, reprinted as "Tax-funded group had 'enemies list'", Orange County
Register, Dec. 6 (fee-based
archive, see above); David Rice, "Lawyers back N.C. judge on anti-smoking
group's 'hit' list", Winston-Salem (N.C.) Journal, Dec. 9, link
now dead. See also "Tobacco industry influence and income on decline
in California", press release, Oct.
12, for an account of "research" at the Univ. of California, S.F.,
into constitutionally protected advocacy and campaign contributions from
tobacco sources; the work was funded by the tax-supported National Cancer
Institute as well as the American Cancer Society.
January 5 --
New page on Overlawyered.com: cyberlaw.
The legal woes of such class-action defendants as Microsoft and Toshiba,
liability for improper linking and non-handicap-compliant web design, domain-name
squabbles, state-of-the-art ways for your litigators to sift through your
enemies' and competitors' internal emails, and other news of the growing
inroads being made against America's most successful business, high-tech,
by its second most successful business, litigation.
January 4 --
Gun-buying rush. "More than a million Americans asked
for background checks so they could buy guns in December, a surge insiders
say has something to do with Millennium mania, but more to do with pending
litigation," Reuters reports. "Current and pending litigation...is making
many consumers rush to buy arms before any anti-gun
verdicts or new laws further restrict their purchase," in the view
of a spokesman for gunmaker Sturm, Ruger & Co. Better exercise
those Second Amendment rights before mayors, trial lawyers and Clinton
cabinet secretaries take 'em away for good! Yet such a result is
far from the outcome of any democratic decision process; indeed, senior
analyst H. Sterling Burnett of the National Center for Policy Analysis)
cites the results of a poll conducted by the Tarrance Group finding firearms
manufacturer liability a singularly unpopular idea -- "only 5 percent [of
respondents] feel that manufacturers or retailers should be held responsible
for firearm misuse".
A second Reuters report, from London, suggests the havoc litigation
can wreak on its targets' businesses through its sheer uncertainty, independent
of outcome. British-based conglomerate Tomkins PLC would like to
sell its U.S. handgun maker Smith & Wesson, according to the Financial
Mail on Sunday. But the newspaper "said the prospect of class
action lawsuits against gun makers in the United States could block any
sale of Smith & Wesson. 'Tomkins will (sell Smith & Wesson)
if it can, but until the lawsuits are settled, it may be difficult to sell,'
[a] source close to Tomkins was quoted as saying."
Sources: "Century End, Lawsuit Threats Spark Gun Sales
Spike", Reuters/FindLaw, Dec. 28; H. Sterling Burnett, "Latest Gun Lawsuits
Leading Us Down a Slippery Slope," Houston Chronicle, Dec. 11, 1999;
Burnett, NCPA op-ed, Dec.
12; "U.S. gun maker sale mulled", Reuters/CNNfn, Jan. 2.
January 4 --
Lawsuits over failing grades. In Bath Township, Ohio,
15-year-old Elizabeth Smith and her mother Betsy Smith have sued the Revere
School District and 11 teachers over the girl's failing grades. The
suit, which seeks $6 million, says the school's
grading practices punished the girl for her frequent lateness and absences
even though "Elizabeth has chronic tonsillitis that caused her to miss
school, and she has had to stay home in the mornings to put her twin siblings
on their elementary school bus because her mom, a single parent, had to
be at work," said her lawyer, James Childs. And Kerry Grandahl has
sued the Massachusetts College of Pharmacy and Allied Health Sciences after
her dismissal for poor exam scores, charging that under the Americans with
Disabilities Act the school should have accommodated her "exam phobia,"
which she says was triggered by depression. Because the exam room
was noisy and thronged with other students, Kerry "could hardly concentrate,
much less remember what she knew," according to the suit filed by attorney
Nicholas Kelley, which faults the school for not allowing her to take exams
in smaller rooms with her own monitors. (Donna J. Robb, "Student
fails over failing grades", Cleveland Plain Dealer, Dec.
8; Shelley Murphy, "Ex-student sues college for ignoring 'test phobia'",
Boston Globe, Dec. 21).
January 4 -- Expert
witnesses and their ghostwriters. Critics have long voiced
alarm about the way American lawyers can orchestrate the testimony of expert
witnesses they hire. In a recent case in Michigan a federal magistrate
judge threw out the testimony of an expert hired by plaintiffs in a "vanishing-premium"
case against Jackson National Life Insurance Co. The magistrate found
that the report filed by actuary Philip Bieluch avowing his opinion as
to the facts of the Jackson case had improperly reused verbiage from a
report he had filed for the same lawyers in a separate case in Iowa, and
was "substantially similar" to the language of a report filed by an entirely
different expert in a Louisiana case. U.S. Magistrate Judge Joseph Scoville
concluded that the lawyers themselves had furnished Bieluch with the wordings:
"This is one of the most egregious cases of providing witness-for-hire
testimony that I've ever seen, and at some point the courts have to say
that enough is enough," he said. The plaintiff's executive committee
in the Jackson National litigation included representatives of four firms,
including well-known class-action powerhouse
Milberg Weiss Bershad Hynes & Lerach. (Emily Heller, "An Insurance
Expert Is Bounced", National Law Journal, Oct. 28).
January 3 --
Lawyers for famine and wilderness-busting? "Pitched on
its environmental merits, the class-action
lawsuit filed [last month] against Monsanto would be thrown out in short
order," argues Peter Huber of the Manhattan Institute. "So the lawyers
dressed it up as an antitrust case instead." Class-action
high rollers such as Washington's Michael Hausfeld have lent their assistance
to longtime ludfly Jeremy
Rifkin in organizing the suit. "They aren't trying to save free markets
from a monopoly, and the last thing they want is more competition in this
field. What Mr. Rifkin is after is something even less competitive than
a monopoly. He wants nobody in the genetic technology business at all."
If that happens, lawyers will have managed to stop today's best hope --
given the new methods' success in boosting crop yields -- for enabling
the Third World to feed itself without pushing its agriculture into yet
"Perhaps the most ridiculous aspect of this whole farce," writes "Moneybox"
columnist James Surowiecki at Slate, "is Rifkin's use of the word
'populist' to describe the suit" -- which, after all, seeks to shift power
away from elected officials and farming populations and into the hands
of elite lawyers and activists who effectively appointed themselves.
Surowiecki calls the action and its arguments "spurious", a "publicity
stunt" and "a haphazard and scattershot collection of charges that might
have been designed to demonstrate the excesses to which the U.S. legal
system can be driven."
Meanwhile, the world's most prominent environmental group, the million-donor,
supposedly respectable Greenpeace,
has been openly conducting property-destroying sabotage against biotech
installations in the United Kingdom; the "direct action" bug has now crossed
the Atlantic, and last year vandals struck more than a dozen crop sites
in the United States.
Sources: Philip Brasher, "Antitrust lawsuit to fight biotech
farming", AP/Spokane Spokesman-Review, Sept. 14; "Rifkin sues Frankenfood
giant", Reuters/Wired News, Dec. 14, link now dead; Peter Huber,
"Ecological Eugenics", Wall Street Journal,
20, now reprinted at Manhattan Institute site; James Surowiecki, "Jeremy
Rifkin's Spurious Suit Against Monsanto", Slate, Dec.
20; Michael Fumento, "Crop busters", Reason, January;
anti-biotech site Genetech.
January 3 -- Overlawyered.com
forums on hold for now. Over the holiday weekend we attempted
to install an upgrade for this site's bulletin board software. Bad
move: we managed instead to knock out the forums entirely, and haven't
even succeeded in figuring out yet what went wrong. We'd like to
keep the forums idea going, but are mulling over a number of options at
this point, including the possibility of forums hosted off-site, which
might lessen the demand on our already overstretched techie skills.
Advice from experienced forum-managers is welcome.
January 3 -- This
side of parodies. Calls for a ban on lawyer jokes as hate
speech? A Million Lawyer March on Washington to protest anti-attorney
stereotyping? Well, maybe not yet, but it can be hard to pick out
which elements of this whimsical column are based on fact and which parts
are invention. (Richard Dooling, "When you prick us...", National Law
Journal, Oct. 11).