ARCHIVE -- NOVEMBER 2001
November 9-11 --
"Politically Incorrect Profiling: A Matter of Life or Death".
Stuart Taylor, Jr. returns to the subject of air passenger profiling in
a must-read sequel to his September column: "Political pressure from Arab-American
and liberal groups spurred the Clinton and Bush Administrations to bar
use of national origin as a profiling component before September 11. ...
[This] achieved its goal of minimizing complaints, which plunged from 78
in 1997 to 11 in 1998, 13 in 1999, and 10 last year, according to Transportation
Department data. It did not work so well at preventing mass murder.
On September 11, the CAPS [Computer-Assisted Passenger Screening] system
flagged only six of the 19 Middle Eastern hijackers for extra scrutiny,
which was apparently confined to the bags of the two who checked luggage.
None of the 19 men or their carry-ons appear to have been individually
searched. And the FAA's 1999 decision to seal CAPS off from all law
enforcement databases -- after complaints from liberal groups that criminal
records were error-prone -- may help explain why the FBI had not told the
FAA that two of the 19 were on its watch list of suspected terrorists."
Incredibly, the Bush Administration has signaled that it's sticking to
the current ban on letting airlines
do national-origin passenger profiling. (National Journal/The
6) See Oct. 3-4; also Richard Cohen, "Profiles in Evasiveness", Washington
MORE: This makes a good time to catch up on Taylor's columns
since the attacks, all recommended: index;
"The Bill to Combat Terrorism Doesn't Go Far Enough", Oct.
31; "The Media, the Military, and Striking the Right Balance", Oct.
23; "The Rage of Genocidal Masses Must Not Restrain Us", Oct.
16; "Wiretaps Are An Overblown Threat To Privacy", Oct.
10; "How To Minimize the Risks of Overreacting to Terrorism", Oct.
2; "Thinking the Unthinkable: Next Time Could Be Much Worse", Sept.
November 9-11 --
Must be the Ninth Circuit, right? Yep, it is: in
a September ruling, the much-reversed West Coast federal appeals court
"discovered that male inmates in prisons have a 'fundamental' right to
procreate by artificial insemination," and thus to become daddies via FedEx
delivery (George Will, "Inmates and Proud Parents", Washington Post,
November 9-11 --
Infectious disease conquered, CDC now chases sprawl. The
for Disease Control were established to combat outbreaks of infectious
disease, but have been steadily expanded and politicized to the point where
the agency has recently crusaded against "epidemics" of gun ownership,
tobacco use and domestic violence. The newest initiative of agency
officials? A joint effort with the Sierra
Club to put over the notion that housing
sprawl is a public health risk, in part because suburbanites don't
get exercise walking to shops or work the way many city dwellers do --
though you'd think their bigger yards and easier access to outlying recreational
areas might give them more chance to exercise in other ways. Vincent
Carroll pokes several holes in this theory, noting for example that Colorado,
an archetypal suburban-sprawl state, has the country's lowest rate of obesity
("Once more into the big, bad suburbs", Rocky Mountain News, Nov.
3; Richard J. Jackson, M.D. (director of CDC's National Center for
Environmental Health), and Chris Kochtitzky (associate director for policy
and planning at NCEH's Division of Emergency and Environmental Health Services),
"Creating A Healthy Environment: The Impact of the Built Environment on
Public Health", SprawlWatch Clearinghouse Monograph Series, report
in PDF format; Washington Times, "Sprawl alert" (editorial), Nov.
8). Then there's the CDC's own recent finding, which goes unmentioned
on the Sierra Club's page, that suburban areas boast better public health
indicators than either cities or rural areas ("HHS Issues Report On Community
Health in Rural, Urban Areas", CDC press release, Sept.
10). Given the agency's performance in the anthrax affair, where
it has been left playing desperate catchup to close the gaps in its knowledge
base and capabilities, we hope budgeters realize that it can ill afford
to squander its resources and credibility on this kind of thing.
(See InstaPundit, Oct.
24). (DURABLE LINK)
November 9-11 --
Welcome JerryPournelle.com readers. On his
"Computing at Chaos Manor" website, the famous science fiction writer and
polymath recommends: "If you have any extra time, take a look at Overlawyered.com
to see just what our legal system is capable of..." (Thursday's
entry -- after this week an archive search will be required, look for Nov.
8). Not only is Pournelle a Macaulay
fan, but he's completely sound on the proposition that wars
should be declared (our takes on the former,
We've also recently been linked by Robert Longley in his About.com sites
on U.S. Government Info -- specifically, in the environment
and gun control
subsections. Longley cites our
environment page as offering "some fascinating reading" and gives a
"Best of the Net" designation to our gun
page: "an excellent resource to important gun-related cases", he calls
November 7-8 --
Vaccine industry perennially in court. Why are drug companies
so chary about participating in the vaccine
business? As a medical intervention administered to otherwise healthy
persons, vaccination is easy to blame when recipients are later struck
by otherwise inexplicable medical problems, and it's not easy to distinguish
genuine (often rare) side effects from unexplained maladies that would
have struck just as frequently in the absence of vaccination. Although
an Oct. 1 report from the National Academy of Sciences' Institute of Medicine
found no evidence that children have suffered autism or other brain damage
from vaccines employing trace amounts of mercury-containing thimerosal
as a preservative (as well as no disproof of that scary proposition), a
consortium of plaintiff's law firms was undeterred from piling on a day
or two later with mass lawsuits against Merck, Lilly, Abbott, Glaxo SmithKline,
and numerous other firms (IOM press
Medical Association; William McCall, "Drug Companies Sued Over Vaccines
Containing Traces of Mercury", AP/law.com, Oct.
3; "Immune to Reason" (editorial), Wall Street Journal, Oct.
23 (online subscribers only)). For the history of lawsuits charging
that the diphtheria- tetanus- pertussis (DTP) and measles, mumps, and rubella
(MMR) childhood vaccines cause autism and brain damage, see Aug.
Medical Association; Howard Fienberg, "This Vaccine Won't Hurt at All",
22; Howard Fienberg, "There's No Vaccine Against Irrational Fears",
San Francisco Chronicle,
5, 2000 (both reprinted at STATS site with long list of links appended).
The troubled recent production history of the anthrax vaccine administered
to members of the U.S. military has been matched by an equally troubled
legal history (Vanessa Blum, "At War Over Anthrax",
23; Matt Fleischer-Black and Bob Van Voris, "Anthrax Vaccine's Liability
National Law Journal, Oct.
23). On a personal level all this has tended to hit home
for us with the word that our friend Mark Cunningham of the New York Post
page has been diagnosed as victim #18 in the anthrax attacks, and the
third employee at the paper to contract the illness; it's just a skin case
and he's doing fine ("really no big deal," he says).
"Fight Terror; Buy the Post" is his new slogan.
November 7-8 --
Sued if you do dept.: co-worker's claim of rape.
For years now, HR compliance manuals have been warning that employers face
liability if they fail to launch prompt and vigorous investigations when
female employees charge male colleagues with sexual
harassment, and the more serious the alleged harassment, the more trouble
the company is in if it fails to investigate. But now a Philadelphia
jury has awarded $150,000 to a male employee against his employer, chemical
company Rohm & Haas, which he said invaded his privacy by subjecting
him to an embarrassing police-style interrogation after a female co-worker
wrongly accused him of rape. The employee's attorney, Richard Silverberg,
"said he believes the company had no business investigating the incident
at all. 'Rape is a police matter. An employer shouldn't be
undertaking to investigate whether a rape occurred,' Silverberg said."
The jury also found the woman had defamed the man by making false accusations,
but declined to order her to pay him any money. (Shannon P. Duffy,
"Employee Awarded $150,000 After Co-Worker Falsely Accuses Him of Rape",
November 7-8 --
Byways of intellectual property law. They
include this 1993 patent, called to our attention by one of our readers,
for a laser-assisted cat-exerciser (US5443036: Method of exercising a cat
-- issued Aug.
22, 1995, filed Nov. 2, 1993) (Delphion.com).
November 7-8 --
"They're Making a Federal Case Out of It . . . In State Court".
Everything you wanted to know about why big class
actions of nationwide scope belong in federal, not state court, from
John H. Beisner and Jessica Davidson Miller of O'Melveny & Myers, in
a paper for a forthcoming
Harvard Journal of Law and Public Policy
and the Manhattan Institute's Center for Legal Policy (with which this
site's editor is affiliated). (No. 3, Sept. 2001: html,
formats). For frequent updates on new publications from the Manhattan
Institute, whose areas of special focus include not only legal policy
but education, urban policy (including New York's recovery), taxation,
crime and many other subjects, many of them covered in the acclaimed publication
Journal, we recommend signing up for the Institute's free
November 6 -- NBC
mulls Brockovich talk show. "NBC said this week it will
feature Erin Brockovich in
a pilot for a one-hour syndicated talk show that could begin airing as
soon as early next year." Writing for TechCentralStation.com, Sallie
Baliunas and Nick Schulz are not impressed, calling Brockovich "the poster
figure for trial lawyer excess and the assault on sound science".
("Trial Lawyer TV: NBC Announces New Erin Brockovich Program", Oct.
24; our take, "All
November 6 -- In
the mean time, let them breathe spores. "The U.S.
Postal Service has bought millions of protective masks to guard its 700,000
who handle mail against inhaling anthrax spores, but postal workers are
not allowed to use the masks until they are trained under Occupational
Safety and Health Administration (OSHA) rules. On the advice of health
officials at the federal Centers for Disease Control and Prevention (CDC)
in Atlanta, the Postal Service bought 4.8 million of the spore-proof masks
for its workers who handle mail and began offering workers the masks last
week. But according to OSHA officials and regulations, the workers
must undergo hours of training and pass a 'fit test' before they can be
allowed to use the protective masks, which are like those worn by construction
workers who install drywall and can be purchased at hardware stores."
(Daniel F. Drummond, "OSHA halts mask use in Postal Service", Washington
November 6 -- Gun
controllers on the defensive. "Though gun-control
groups have tried to capitalize on the Sept. 11 attacks, those attempts
have misfired." Indeed, the recent events have pointed up the questionable
nature of several of the gun control movement's underlying tenets: "that
violence – even against a criminal – is always bad, that ordinary people
are not to be trusted, and that it is best to let the authorities look
out for you. ... Americans have learned that being harmless does not guarantee
that they will not be harmed". (Glenn Harlan Reynolds, "Terrorists Attacked
Gun Control Movement", FoxNews.com, Nov.
4; George Will, "Armed Against Terrorism", Washington Post,
4). Another major setback to the gun-confiscation cause came
last month with the Fifth Circuit's important decision in U.S. v.
making clear that the Second Amendment protects an individual right to
ownership (David Kopel and Glenn Reynolds, "A Right of the People", National
25; Michael Barone, "A decision of historic importance", U.S. News,
19; Jacob Sullum, "Second Sight", Reason Online, Oct.
23). For the Taliban's version of gun control, see Reynolds's
24). Go into the kitchen, said Winston Churchill, and
get a carving knife: Michael Barone, "Time to stand and fight", U.S.
November 5 -- Talk
of torture. "It's the sort of question that, way
back in spring semester, would have made for a good late-night bull session
in a college dorm room: If an atomic bomb were about to be detonated in
Manhattan, would police be justified in torturing the terrorist who planted
it to learn its location and save the city? But today, the debates are
starting up in the higher reaches of the federal government. And
this time, the answers really matter." (Steve Chapman, "Should we
use torture to stop terrorism?", Chicago Tribune, Nov.
1; Dahlia Lithwick, "Tortured Justice", Slate, Oct.
November 5 -- Judge
may revive "Millionaire" ADA case. Citing the U.S.
Supreme Court's ruling in favor of golfer Casey Martin, a federal judge
has indicated that he may revive a dismissed suit, now on appeal, in which
disabled plaintiffs charged that the qualifying rounds of ABC's "Who Wants
To Be a Millionaire" unlawfully fail to provide accommodations
that would allow deaf or paralyzed applicants to answer questions over
the telephone. (Susan R. Miller, "Federal Judge Seeks Rerun of 'Millionaire'
ADA Case", Miami Daily Business Review, Nov.
1). And in what promises to be a much-watched case, the U.S.
Supreme Court has agreed to review the Ninth Circuit's ruling in favor
of Mario Echazabal in his ADA suit against Chevron Corp. over a refinery
job, "contending that he should have gotten the job despite a chronic case
of hepatitis C. Doctors who examined Mr. Echazabal said exposure
to chemicals at the refinery would speed the deterioration of Mr. Echazabal's
liver and that a large exposure from a plant fire or other emergency could
kill him." ("Justices to decide if ADA protects hepatitis patient",
AP/Dallas Morning News, Oct.
31). Dissenting judge Stephen Trott called the result "unconscionable"
and noted that it "would require employers knowingly to endanger workers"
in pursuit of the nondiscrimination ideal. ("Needlessly endangering
workers" (editorial), Las Vegas Review-Journal,
November 5 -- "Teen
sex offenders face years of stigma". "He was 16,
wanting to be one of the guys, playing truth or dare. The dare: touch
a girl's breast during a football game at Hazel Park High School last year
[outside Detroit]. He did. As a result, the boy will be branded
as a sex criminal until the
year 2024." (L.L. Brasier, Detroit Free Press, Oct.
15) (via iFeminists.com).
November 2-4 --
Opponents of profiling, still in the driver's seat.
Hiring for a job that involves, say, transporting petroleum, caustic chemicals
or other hazardous materials? Don't you dare apply any extra scrutiny
to driver-applicants of Mideast origin, experts warn. Federal anti-discrimination
law bans employer policies or interview
questions that relate in any way to religion, ethnicity, or national origin
and the Equal Employment Opportunity Commission has put out word that its
commitment to this policy is in no way altered by the events of Sept. 11.
"Experts say that companies must be careful to apply equally to all job
applicants any beefed up prejob screening. Companies can't, for example,
run criminal background checks only on their Middle Eastern job applicants."
It's also extremely hazardous as a legal matter to contact law enforcement
about any unusual pattern of behavior involving one or more employees
of Mideast origin unless one is prepared to show in court that one would
have acted just as quickly to report the same unusual pattern in employees
of Welsh or Korean or West Indian extraction. Hey, we may be sitting
ducks, but at least we're non-discriminatory sitting ducks, right?
And of course if someone uses one of your trucks to cause harm you can
expect to be sued for every dime you're worth to compensate the survivors
(Deirdre Davidson, "Rethinking the Workplace After Sept. 11", Legal
Fourteen Syrian men arrived at Dallas/Fort Worth Airport last month
to enroll in U.S. flight schools; although "their country is one of seven
on the State Department's 'watch list' of nations that sponsor terrorism,"
they were waved through, there still being no official policy that would
pose the slightest impediment to their obtaining such training here (Ruben
Navarrette, "Flight training for Syrians should raise red flags",
Morning News, Oct.
19). The Associated Press, describing reports of extra scrutiny
given to air passengers of Middle
Eastern descent, quotes a parade of sources who deplore such scrutiny but
not a single source willing to say there might be good reasons for it,
although majorities of both blacks and Arab Americans have supported passenger
profiling in post-Sept. 11 polls. ("Some travelers suspect profiling",
21). "A traveler, no less a potential immigrant, with a passport
from Yemen and visas from Lebanon and Qatar should receive greater scrutiny
-- not harassment, but careful scrutiny -- than a traveler with a passport
from Chile and a visa from Spain. That is not racism; it is prudence --
an objective assessment of where the threat resides. To do otherwise
after September 11 would constitute extraordinary negligence," writes Martin
Peretz ("Entry Level", The New Republic, Oct.
15). Before jumping into any proposal to apply heightened
scrutiny to residents of Arab descent in this country, however, it should
be recalled that the vast majority of Arab-Americans are in fact of Christian,
not Muslim, descent, which makes them especially unlikely targets of recruitment
efforts by bin Laden cell organizers. (Smart -- and Stupid -- Profiling",
Chris Mooney, The American Prospect, Oct.
23). (DURABLE LINK)
MORE: Air Canada has assured the Canadian
Arab Federation that it has no policy of coordinating with police about
passengers with Arabic-sounding names who check in on its flights (Jamie
Glazov, "Discrimination a Must For Protection Against Islamic Terrorism",
24). On Sept. 22 a United Air Lines flight crew prevented M. Ahsan
Baig, a Pakistani man who works for a California high-tech company, from
boarding a flight bound from the West Coast to Philadelphia. "A customer
service manager repeatedly apologized to Baig for the incident and immediately
got him on another flight," but he's suing the airline anyway (Harriet
Chiang, "Man barred from flight sues airline", San Francisco Chronicle,
30). Also see Jason L. Riley, "'Racial Profiling' and Terrorism",
24; Jonah Goldberg, "In current context, racial profiling makes sense",
26; Allison Sherry, "Profile protest ignites debate", Denver Post,
21 (sensitivity training demanded after incident at a Radio Shack).
See Sept. 19-20, Oct.
3-4, Oct. 9.
November 2-4 --
Updates. Digging deep into our backlog in search
of items we can call good news:
* Gov. Bob Taft has signed a bill reversing some of the most extreme
aspects of the Ohio Supreme Court's recent jurisprudence expanding the
bounds of employer-provided auto insurance. The new law went into
effect Oct. 29 on a prospective basis, but judicially mandated retroactive
liability will still cost employers more than $1.5 billion in estimated
claims currently in the pipeline. (Ohio Chamber of Commerce, summary,
Underinsured Motorists Availability Act of 2001"; see June
29 and David J. Owsiany, "Judicial tyranny in Ohio", Buckeye Institute,
* Following urgings in this space (do you think we had an effect?),
the U.S. Department of Justice has reversed its previous position and asked
federal judges "to drop thousands of upstate property owners as defendants
in lawsuits by Indian tribes to recover land they contend New York State
took from them illegally in the 19th century." (see Nov.
3, 2000 and commentaries linked there) (Richard Perez-Peña,
"Justice Dept. Moves to Drop Homeowners In Tribes' Suits", New York Times,
Aug. 4, not online)
* Courts have generally been frowning on the idea of letting companies
milk their insurance policies for the cost of fixing Y2K
computer problems, which was the goal of an attempt by creative policyholder
lawyers to reinterpret an old marine insurance doctrine known as "sue and
labor". (Celia Cohen, "Y2KO'd: Unisys Damage Suit Voluntarily Dismissed",
30; Sept. 16, 1999).
November 2-4 --
Ambulance driver who broke for doughnuts entitled to sue.
"A federal judge has denied the city of Houston's request to throw out
a lawsuit filed by a former ambulance driver fired
after he stopped for doughnuts while transporting a patient to a hospital."
On July 10, 2000 Larry Wesley made a snack stop while transporting an injured
youth to Ben Taub Hospital; the boy's mother filed a complaint, and Wesley
subsequently lost his job. But U.S. District Judge Lee Rosenthal
said Wesley could proceed with his suit charging that had he been white
rather than black he would not have been disciplined as severely for the
lapse. (Rosanna Ruiz, "Judge refuses to toss suit by ambulance driver
fired after doughnut stop", Houston Chronicle, Oct.
31)(& update Jun. 28-30, 2002:
Wesley loses case). (DURABLE LINK)
November 1 -- Cipro
side effects? Sue! In a welcome if somewhat
belated move, public health authorities have advised the public that the
normally indicated treatment for suspected exposure to the current round
of anthrax attacks should be older antibiotics such as doxycycline rather
than the extremely potent antibiotic Cipro, which is best reserved for
infections that do not yield to conventional germ-killers. The German
and chemical company Bayer, having been whipped up one side of the street
for its perceived reluctance to hand out Cipro to everyone among the worried
well who feels they would like some, might end up getting whipped down
the other because it failed to dissuade consumers from using the drug,
given the side effects some will likely suffer from it. "Cipro, or
ciprofloxacin, is one of several fluoroquinolones, a controversial class
of antibiotics that can cause a range of bizarre side effects: from psychological
problems and seizures to ruptured Achilles tendons. ... Fluoroquinolone
users who have suffered severe side effects call themselves 'floxies' and
have created their own Web site ["Quinolone
Antibiotics Adverse Reaction Forum"]. ... The Philadelphia law firm
Ludwig Badey has been involved in about two dozen cases of severe quinolone
side effects." (Tara Parker-Pope, "Health Journal: Surge in Use of Cipro
Spurs Concerns About Side Effects", Wall Street Journal, Oct.
26 (online subscribers only)) Lawyers have already jumped all
over Bayer over claimed side effects from its cholesterol-lowering drug,
Baycol (Ruth Bryna Cohen, "More Locals Jump on Baycol Bandwagon", The
Legal Intelligencer (Philadelphia), Aug.
November 1 -- Swiss
banks vindicated. A four-year investigation has
concluded that "[m]ost dormant Swiss bank accounts thought to have belonged
to Holocaust survivors were opened by wealthy, non-Jewish people who then
forgot about their money." Although officials at first assumed that
a large share of the 10,000 older dormant accounts would turn out to be
those of Nazi victims, only about 200 were, accounting for around $10 million.
A public relations and litigation campaign led by American trial lawyers
forced Swiss banks into a $1.5 billion settlement of claims that they withheld
money from Holocaust victims' families. (Adam Sage and Roger Boyes,
"Swiss Holocaust cash revealed to be myth", The Times (London),
13; see Aug. 29, 2000; May
31, 2000 (second item); Feb. 5, 2000
(second item); Aug. 25, 1999).
November 1 -- Words
as property: "entrepreneur". How common does a common
English word have to be before it's okay to use it as a domain
name without fear of being sued? The magazine named Entrepreneur
has made legal rumblings suggesting that it violates its trademark rights
for an unrelated entity to run a website entitled Entrepreneurs.com.
The latter site does not plan to fold its tent quietly, however, and has
mounted a vigorous defense
of its position.