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ARCHIVE -- OCT. 2001 (I)


October 10-11 -- "U.S. to Fully Compensate Victims' Kin".   In a step virtually unprecedented in a government-run program, the new Sept. 11 fund will assign a dollar value to, and compensate at taxpayer expense, the emotional pain and suffering experienced by survivors (David G. Savage, Los Angeles Times, Oct. 5).  Wealthier victims' families could be the ones who mostly opt out of the federal plan and into private litigation, because of the proviso by which payments from the federal fund will be reduced to reflect amounts families can recover from insurance and other contractual sources, which will often amount to a large offset in the case of high-paid execs  (Harriet Ryan, "Victims' families face choices in collecting compensation", CourtTV.com, Sept. 28).  With damages for airlines limited to their insurance, "the hunt is on for additional defendants with deep pockets.  Lawyers say these could include wealthy supporters of terrorism; private baggage-screening firms hired by airlines; contractors that may have improperly screened service personnel allowed on planes; and the operators of the airports where the hijackers boarded."  (Martin Kasindorf, "Families seeking compensation face a choice", USA Today, Oct. 2)  And see if you can spot the implicit assumption in this headline: Seth Stern, "Who pays the damages for Sept. 11?", Christian Science Monitor, Sept. 27

October 10-11 -- "Never far from school halls: the lawsuit".   "Schools have always been fertile ground for lawsuits over religious observance and free speech. But educators say the volume of suits is on the rise, forcing them to siphon time and money away from learning." (Seth Stern, Christian Science Monitor, Oct. 9). 

October 10-11 -- "Man Thought He Was Dead, Sues Airline".   Scott Bender of Philadelphia was snoozing when the U.S. Airways flight from North Carolina landed at the Birmingham, Alabama airport and the crew left him there in the little plane until he woke up.  It was really dark, says his lawyer, and Bender "didn't know if he was alive or dead" -- it turned out the former.  Now he wants money for the fright and other harms.  (Chanda Temple, Birmingham News, Oct. 4). 

October 9 -- Employee's right to jubilate over Sept. 11 attack.  Kenneth Bredemeier, "On the Job" columnist for the Washington Post, yesterday ran the following remarkable communication from one of his readers, which we take the liberty of quoting at length since it deserves to be read word for word: 
"On the day of the World Trade Center and Pentagon disasters, a Muslim woman at work jumped for joy in the cafeteria saying, 'Yes, yes, yes,' upon hearing the news.

"Apparently nothing was said to her at the time of her 'celebration.'  Her supervisor consulted the HR manager for advice.  He suggested a group meeting to explain that this is a very sensitive time for everyone and that it is probably best to not discuss the disasters at all.  He also said to not single out anyone or specifically mention her actions.

"When I heard about it, I wanted to know why she is still at work. I was told to not say anything.  Is that right?  I have no intention of starting a riot, but I feel this incident should not be ignored. What, if anything, can I do?" 

Don't say anything to her; hold a group meeting; tell other workers to stop talking about the attacks.  Could this be just one supremely craven HR manager, at one sensitivity-addled company?  No, it gets worse.  Bredemeier then consults an expert named Laurie Anderson, a "Chicago clinical psychologist and organizational consultant".  Her advice?  As "uncalled for [!] as the impromptu celebration might have been, corporations 'can't fire someone for violating something that was never spelled out.'  She said the employee who was upset by her co-worker's joy at the attacks ought to go to management and say that she wants 'to be a part of the ongoing conversation about our policies.'"  And Anderson adds: "It's horrifying, but there's no law against being insensitive." 

But of course Anderson gets it exactly, 180-degrees wrong on that last point.  There is a federal law against being insensitive in ways that make co-workers feel disliked or disparaged because of their ethnic or national affiliation -- it's called the "hostile environment" branch of harassment law, and lawyers have deployed it repeatedly to win big bucks for workers who have testified that they were upset by hearing slighting comments aimed at their ethnic or national group.  If an employer in this country learns that one of its workers has burst into applause in the cafeteria at learning of, say, a massacre or assassination aimed at a protected ethnic minority, then its failure to discipline that worker would create something approximating a dream case if and when a member of that minority chooses to sue the company charging hostile environment.  (Nor will it get the company off the hook, in explaining its failure to discipline, to plead that it had not previously warned its workers specifically not to jubilate in such circumstances.) 

The difference between the two fact patterns?  So far as we can tell, it's mostly that "American" doesn't operationally count as a protected ethnicity under federal law.  And so we arrive at a supposed right to jubilate, among Americans, over the deaths of Americans without having to worry about the risk of dismissal or even harsh words or shunning.  Could anything be crazier?  (Kenneth Bredemeier, "At Some Companies, An All-Too-Rapid Response to Attacks", Washington Post, Oct. 8). 

Addendum: no more than urban legend?  Reader John Kingston of Carle Place, N.Y., in a letter to Washington Post columnist Bredemeier which he cc's to us, writes: 

Your column on workplace reaction to September 11 may have come closest to actually identifying the jubilant Muslims, a story sweeping the country that has all the earmarks of an urban myth. It appears the person who wrote you the note at least claims to have actually seen the jubilant worker. Every other reference to the jubilant workers has several key omissions: the name of the workplace where it happened (as in your case); the name of the jubilant person (OK, understandable); or an actual first-person account (which you sort of have, but do not actually identify the first-person). Yet these stories of the celebrating Muslims have come from all over the country, and none of them have been proven.

Please do your readers a service in a future column. Put the name of this correspondent in print. And if the correspondent does not want to be put in print, please call him up and grill him on the facts of the case. Because quite frankly, this story sounds like a pile of baloney, and I was shocked to see it repeated and given credence, without what I would consider significant attribution, in a fine paper like yours.

Adds reader Kingston: "And to make it worse, Overlawyered.com repeats it as well. OK, its point was regarding what a workplace could do if it actually had a publicly jubilant Muslim. But my guess is that nobody actually did. This story, Mr. Olson, sounds like a close cousin of junk science." (DURABLE LINK) [And see Letters, Oct. 22

October 9 -- "Plaintiff's lawyers going on defense".   In at least two major areas of mass tort litigation now under way, plaintiff's lawyers well known from asbestos and tobacco work have crossed the aisle to work for defendant businesses: Sulzer Orthopedics Inc. has hired Mississippi's Richard Scruggs to represent it in hip joint cases, and Bridgestone Firestone has hired Texas's Wayne Reaud to settle tire cases.  "Already this year, Reaud has negotiated 117 settlements for Firestone in Texas, including 22 cases involving deaths." (Mark Curriden, Dallas Morning News/Austin American-Statesman, Sept. 4, Googlecached) On Reaud and Firestone, see also Michael Freedman, "The Informer: It Takes One to Know One", Forbes, Sept. 17(DURABLE LINK)

October 8 -- Why we fight, #2.  Reason #1 is of course what happened on Sept. 11; but how strangely constricted would be our war aims if they did not also by this point include the final overthrow of the Taliban. (Sam Handlin, "Justice takes on a different meaning in Afghanistan", CourtTV.com, Sept. 28; Jan Goodwin, "The first victims: the Taliban have been terrorizing women for years", New York Daily News, Oct. 4; Vincent Laforet, "At Kabul's door, an army of addicts", New York Times, Oct. 7 (reg) (arms chopped off by the Taliban for smoking opium in an Afghan school, Mooruddin Aki now begs on a street in Quetta, Pakistan, where passersby stuff bills into his mouth)). 

Among pieces we've liked recently: Peter Ferrara, "What is an American?" (National Review Online, Sept. 25).  And what's the opposite of Osama bin Laden?  Here's one answer: "The men and women of the space program, and their legions of scientific antecedents, spent countless hours acquiring the knowledge and developing the moral values that led to the moon landing.  Not many years later, Osama bin Laden and his fellow terrorists also spent many hours of planning, sitting not in laboratories and libraries, but in tents and caves, with one goal: not to create, but to annihilate human creations.  The scientists measured their success by how much they could produce.  The terrorists measure their success by how much they can destroy."  (Michael Berliner, "Terrorists vs. America", Ayn Rand Institute, Oct. 5) (via InstaPundit). 

October 8 -- "Hama to sue bridge owners over her daughter's fall".   When Kaya, a 17-month-old with Down's syndrome, fell from her mother's arms and off the Capilano Suspension Bridge in Vancouver, she miraculously escaped with only scratches, tree boughs breaking her fall.  But her mother, Nadia Hama, is suing the bridge operator anyway; her lawyer says she was traumatized by the aftermath of the incident which included a police investigation and press coverage that "was largely very negative". (Andy Ivens, "Hama to sue bridge owners over her daughter's fall", The Province (Vancouver), Sept. 25). 

October 5-7 -- Feds' Lanning v. SEPTA turnabout.   The U.S. Justice Department has unexpectedly dropped its support of a long-running lawsuit which sought, in the name of female applicants, to weaken the physical fitness standards used in hiring by the Philadelphia transit police.  The Department did not cite the Sept. 11 attacks in explaining its abrupt shift, but its spokesman Don Nelson explained the new stand as follows: "Our position is that we believe it is critical to public safety for police and firefighters to have the ability to run and climb up and down stairs under the most extraordinary circumstances".  In earlier rounds of litigation the feds had sided with plaintiffs lawyers from the Public Interest Law Center of Philadelphia, whose chief counsel calls the new turnabout "a slap in the face of women" and a breach of what he said was a promise made by Attorney General John Ashcroft not to retreat on any civil rights issue.  (Joseph A. Slobodzian, "U.S. backs away from suit against SEPTA test", Philadelphia Inquirer, Oct. 2) (see Sept. 15, 1999).  Maybe someone at the Department has been listening to our commentaries of Sept. 13 and other dates. Update Oct. 25-27, 2002: Third Circuit panel rules for SEPTA.

October 5-7 -- Civil liberties roundup.   What Alexander Hamilton (who used to hang out a lot in New York's financial district) would want us to remember (Andrew Ferguson, "Strange Bedfellows in This War", Bloomberg.com, Oct. 2).  The left-right civil liberties coalition that has urged scrutiny of the counter-terrorism bill doesn't agree within itself on much more than platitudes, argues James DeLong of the Competitive Enterprise Institute ("Liberty and Order", National Review Online, Oct. 2).  And London's invaluable Spectator points out some of the very real costs of national identity cards, whose use would probably not have done much to hinder last month's suicide attacks, the ringleaders of which were mostly traveling under their own names with valid ID ("Fighting for Freedom" (editorial), Sept. 29). 

October 5-7 -- "Attorney Ordered to Pay Fees for 'Rambo' Tactics".   "Clifford Van Syoc, a solo practitioner in Cherry Hill, N.J., is known for his zealotry in pursuing plaintiffs' employment-discrimination claims.  But now a federal judge, comparing Van Syoc to Rambo, says he's gone over the line.  The judge excoriated him for unreasonably pushing a meritless reverse-bias claim and assessed Van Syoc personally for $59,216 in fees and expenses." (Tim O'Brien, New Jersey Law Journal, Sept. 6). 

October 5-7 -- Utah lawmakers: don't smoke in your car.   Legislators in that state have "approved in concept" the idea of legally banning parents from smoking in cars in the presence of their kids, but some among them are reluctant to put their names on such a measure as sponsors given its appearance of extreme meddlesomeness in what was once considered private life (James Thalman, "Lawmakers may up ante for smoking around kids", Deseret News, Sept. 15). 

October 3-4 -- Anti-bias law not a suicide pact.  "Earlier this summer, U.S. officials told airlines that conducting extra checks on passengers of Arab origin was a violation of the passengers' civil rights.  Also, Transportation Secretary Norman Mineta ordered a federal investigation into complaints by Arab-Americans that they were being unfairly targeted by security screenings."  (Catherine Donaldson Evans, "Terror Probe Changes Face of Racial Profiling Debate", FoxNews.com, Oct. 1; Stuart Taylor Jr., "The Case for Using Racial Profiling at Airports", National Journal/The Atlantic, Sept. 25).  But of Arab Americans in metropolitan Detroit, "61 percent said such extra questioning or inspections are justified, according to a poll conducted last week by the Detroit Free Press and EPIC/MRA.  Twenty-eight percent disagreed; 11 percent were undecided." (Dennis Niemiec and Shawn Windsor, "Arab Americans expect scrutiny, feel sting of bias", Detroit Free Press, Oct. 1).  "Federal regulations give commercial captains the right to remove anyone from a flight without reason." (Jonathan Osborne, "Passenger ejections seen as profiling", Austin American-Statesman, Sept. 29). 

In reaction to the horrors of World War II, the federal constitution of Germany curbs what might be termed religious profiling in law enforcement, and authorities in Hamburg, where preparations for last month's attack were apparently made, acknowledge that their monitoring of extremist Islamic activity has been sharply limited as a result: "police are severely restricted in probing groups defined by faith".  (Carol J. Williams, "German Hunt for Terrorists Haunted by Past", Los Angeles Times, Oct. 1).  Detailed passenger profiling is essential to the much-admired security record of the Israeli airline El Al (Vivienne Walt, "Unfriendly skies are no match for El Al", USA Today, Oct. 2).  Updates: see Nov. 2-4, Nov. 9-11

October 3-4 -- "Follow the money ... but don't hold your breath".   Shutting down sham 'charities' and terrorist-owned businesses canít hurt the war effort," and it's also worth investigating the possibility that persons with foreknowledge of the attack might have engaged in options speculation before and since Sept. 11, which would leave a relatively robust paper trail.  Don't expect much, however, from more generalized efforts to prevent terrorist supporters from moving less-than-enormous sums around the globe; there are too many ways around such rules, which are also highly onerous to the non-terrorist economy (James Higgins, Weekly Standard, Oct. 8; Michael Lynch, "Following the Money", Reason.com, Oct. 4). 

October 3-4 -- Fear of losing welfare benefits deemed coercive.  "A Nova Scotia woman who confessed to cheating the welfare system out of more than $70,000, can't have her admission used against her in court because she gave it only out of fear that her benefits would be cut off."  Judge Peter Ross of Nova Scotia Provincial Court conceded that Brenda Young's case was a "particularly glaring instance of welfare fraud", but "said her fear of impoverishment meant her confession was effectively coerced by the state, an action which violated her constitutional right not to incriminate herself."  Young is no longer on the welfare rolls, however.  (Richard Foot, "Judge: confession by welfare cheat cannot be used", National Post, Sept. 29). 

October 3-4 -- Victory (again) in Connecticut.   "A unanimous state Supreme Court Monday threw out Bridgeport's lawsuit against dozens of gun manufacturers and retailers, saying the city's claims of injury to its citizenry, budget and reputation are too specious and indirect to litigate." (Lynne Tuohy, "Court Disarms Gun Lawsuit, Hartford Courant, Oct. 2) (see Dec. 11-12, 1999

October 3-4 -- "Proposed Law Would Consider Alcohol As Date-Rape Drug".   Liquor may be something that prospective sexual assault victims consume voluntarily and knowingly, while substances such as Rohypnol get sprung on them unawares; but backers of the bill introduced into the Wisconsin legislature by Rep. Terese Berceau (D-Madison) say that shouldn't make a difference in regarding both substances alike as date-rape drugs.  (WISC-TV/Channel 3000/Yahoo, Sept. 27). 

October 1-2 -- "Litigation threatens to snarl recovery".   "[S]ome lawyers are already gearing up for what could be the most complicated web of litigation in American history.  Lawyers across the country are looking for ways around the victims' fund established as part of a $15 billion government bailout of the airline industry in the wake of the attacks."  During the (still-continuing) litigation over the previous bombing of the World Trade Center in 1993, plaintiff's lawyers suing the Port Authority insisted that it turn over as part of "discovery" its internal reports on terrorist threats and security, even though "Port Authority lawyers at the time argued that providing the reports would leave security information open to terrorists for another attack." (Kate Shatzkin, Baltimore Sun, Sept. 30). 

MORE: Signe Wilkinson cartoon, "Unleashing Our Most Feared Weapon Against Afghanistan" (guess who), Philadelphia Daily News/Slate ("Get Image" for Sept. 27); Alan Fisk, "Calculation of Losses, Liability to Be Major Insurance Issues in Wake of Terrorism", National Law Journal, Sept. 28; Michael Freedman and Robert Lenzner, "Lawyers Won't Sue, But For How Long?" Forbes.com, Sept. 19

October 1-2 -- Ralph Nader is heard from.   Addressing students at the University of Minnesota, the prominent litigation advocate -- always willing to impute the most evil of motives to his adversaries at home -- "asked audience members to consider why U.S. foreign policy is creating enemies.  'We have to begin putting ourselves in the shoes of the innocent, brutalized people in the Third World and ask ourselves, why do they dislike our foreign policy?'" Maybe if we referred to the Trade Center murderers as "Terrorism Inc." he'd mistake them for a legitimate business and start turning up the rhetorical heat (Jessica Thompson, "Nader calls for 'permanent patriotism' in Northrop speech", Minnesota Daily, Sept. 26).  (DURABLE LINK)

October 1-2 -- Chemical-plant vulnerabilities: read all about them.   A "provision of the 1990 amendments to the Clean Air Act requir[ed] that thousands of industrial facilities develop risk management plans (RMPs) and submit them to the Environmental Protection Agency (EPA)."  One part of the required analysis "documents the potential impacts of a catastrophic accidental chemical release assuming the 'worst case scenario." The [analysis] includes the number of potential fatalities that an accidental release could cause to the surrounding community.  The law then demands that EPA make this information available to the public."  When an initial plan was floated to publish such reports on the Internet, "security experts -- the FBI, CIA, the International Association of Fire Chiefs and various other groups -- raised alarm."  The plan was soon shelved, but "public interest groups" vowed to make the information broadly anyway in defiance of the warnings, and a current public availability scheme involving drop-in "reading rooms" appears highly vulnerable to exploitation by advance scouts for terrorist operations, who need only present an identification card, something the Sept. 11 terrorists had little trouble obtaining  (Angela Logomasini, "Innocent no more", Competitive Enterprise Institute/Washington Times, Sept. 27).  (DURABLE LINK)

October 1-2 -- "Polls say blacks tend to favor checks".   "African-Americans, whose treatment by the criminal justice system gave rise to the phrase 'racial profiling,' are more likely than other racial groups to favor profiling and stringent airport security checks for Arabs and Arab-Americans in the wake of this month's terrorist attacks, two separate polls indicate. 

"The findings by the Gallup Organization and Zogby International were met with varying degrees of disappointment and disbelief by black activists and intellectuals, who struggled with explanations." (Ann Scales, Boston Globe, Sept. 30) (see Sept. 19-20). 

October 1-2 -- Propulsid verdict: "Robbery on Highway 61".   A jury in Claiborne County, Mississippi deliberated just over two hours before voting $100 million in compensatory damages to 10 plaintiffs in the first suit to reach trial against a Johnson & Johnson subsidiary over alleged side effects of the anti-heartburn medication Propulsid.  "Defense attorney Robert Johnson III of Natchez said in closing arguments Friday that no evidence was presented in the four-week trial that showed Propulsid caused any of the plaintiffs' health problems.  He said the plaintiffs' own doctors said there was no evidence the drug was to blame. ... Stop Lawsuit Abuse in Mississippi executive director Chip Reno called the decision 'unbelievable.' 'This was highway robbery on Highway 61," Reno said.  'Our system is broke.'" (Jimmie E. Gates, "$100M verdict: Propulsid at fault", Jackson Clarion-Ledger, Sept. 29).  Judge Lamar Pickard later ruled out punitive damages.  (Deborah Bulkeley, "Judge Bars Drug Trial Punitive Damages", AP/Yahoo, Sept. 29). Update May 15, 2004: Miss. Supreme Court vacates verdict and orders individual trials, after earlier reduction of award by trial judge.


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