May 10-12 -- Lawyers
say taxpayers owe $41 million to smuggled illegals' survivors.
Two Yuma, Ariz. lawyers have filed wrongful death claims with the federal
government's Fish and Wildlife Service demanding $3.75 million each for
the families of eleven illegal immigrants who died in May 2001 while being
smuggled through a desolate section of the Cabeza Prieta National Wildlife
Refuge in southern Arizona near the Mexican border. The suit charges
the government with failing to authorize the placement of water stations
intended for use by unlawful visitors, though it knew smugglers of immigrants
were active in the desert area. "It's absolutely untrue that anyone
ever proposed to put stations where the aliens perished," said Tom Bauer,
spokesman for the Fish and Wildlife Service regional office in Albuquerque.
(Hernán Rozemberg, "Families sue U.S. over Mexican migrants who
died in desert", Arizona Republic, May 9; David J. Cieslak, "Families
of migrants who died last year file claim against U.S. government", Tucson
May 8). Update May
21, 2004: judge allows further time for plaintiffs to prove case. (DURABLE
May 10-12 -- "Judge
allows powwow lawsuit". It's sensitivity vs. sensitivity:
in Minnesota state court a group of female drummers are pursuing a sex
discrimination law over their exclusion from the ritual drumming at a Native
American powwow held annually at the University of St. Thomas.
"Larry Smallwood, part of the Little Otter Singers drum group from the
Mille Lacs Indian Reservation in central Minnesota, said women singing
around a drum is a 'cultural no-no.'" However, a judge denied the
university's motion to throw out the case, ruling (among other things)
that "the school failed to show that drumming is protected speech under
the First Amendment". (Hannah Allam, St. Paul Pioneer Press, May
7). (DURABLE LINK)
May 10-12 -- Updates.
More developments in stories familiar to longtime readers:
* In a case arising under San Francisco's pioneering ordinance banning
discrimination on the basis of height and weight, "Jennifer Portnick, a
240-pound San Francisco aerobics instructor rejected by Jazzercise because
of her size, has reached an agreement under which the firm will drop its
requirement that instructors look fit." (see Feb.
27) (Elizabeth Fernandez, "Exercising her right to work", San Francisco
* Blackford High School in Hartford City, Ind., has relented and
is going to allow Rob Mahon to attend its prom after all despite the positive
results on his blood test for nicotine (he is 18 and it is legal for him
to smoke) ("School Reverses Prom Ban For 18-Year-Old Smoker", IndyChannel,
26)(see Apr. 26)(via WhatTheHeck.com)
* In the acrimonious litigation between the members of classical music's
Audubon Quartet (see Nov. 13, 2001
and links from there), "Estranged violinist David Ehrlich, who won a $611,000
judgment against his former quartet colleagues over his sudden dismissal
two years ago, has filed motions in court that could force Clyde 'Tom'
Shaw and his wife, Doris Lederer, to sell their Blacksburg home in order
to pay their court-imposed debt." (Kevin Miller, "Spurned violinist seeks
house", Roanoke Times, May
9; documents, defendant
Shaw's site)(& see letter to editor, Jun.
14, recommending website critical of defendants)(Update Dec.
4, 2005). (DURABLE LINK)
May 9 -- The rewards
of growing mold together. "Toxic
mold" claims are among the fastest-growing source of lawsuits and claims
against property insurance companies. Now various government agencies
in Texas are investigating suspected unsavory practices in the thriving
business that has sprung up of assisting homeowners to file such claims.
After first moving the homeowner into a rental, some dishonest adjusters
proceed to "put wet towels in the house, spray down the draperies, hose
down furniture -- anything to increase moisture. They close the windows
and crank up the heat. It's called 'cooking' the house, and it's
a recipe for sprouting mold and bilking insurance companies out of thousands
of dollars." The scams sometimes are unbeknownst to homeowners and
at other times go on with their collusion. Alan Bligh, president
of the Better Business Bureau in the Coastal Bend area of Texas, calls
the practice "fairly widespread", saying there are both legitimate and
dishonest firms operating locally within the "mold remediation" business,
which has mushroomed in short order from two or three companies to about
100. Insurance companies that delay paying mold claims or subject
them to too much scrutiny can face punitive damages from angry jurors.
(Laura Elder, "'Cooked' houses burn insurers", Corpus Christi Caller-Times,
5)(via CALA Houston).
See also Mike Vallante, "Calm the mold hysteria", Houston Chronicle,
26. (DURABLE LINK)
May 9 -- House
bill would cut off municipal gun suits. A proposed "Protection
of Lawful Commerce in Arms Act" would defend interstate commerce in guns
from lawsuits brought on behalf of hostile local jurisdictions. As
of mid-April the bill had 215 co-sponsors in the House. "When 219
members co-sponsor it the bill would likely be voted on by the full House.
Four more co-sponsors would help bring the battle between the gun banners
and the firearms industry to a swift and honorable conclusion." (Tanya
Metaksa, "Stop the War Against the Gun Industry", FrontPage, Apr.
16; H. Sterling Burnett, National Center for Policy Analysis, "Congress
should stop lawsuits against legal firearms, Apr.
18; "House GOP seeks to end handgun suits", AP/Washington Times,
Apr. 19). (DURABLE LINK)
May 9 -- "'Little'
done for firm, Rendell says". It's commonplace for
on leaving office to step into remunerative partnerships at big law firms,
even when (especially when?) those law firms do a lot of business with
the public entities associated with the politicians. What has raised
eyebrows in the case of former Philadelphia mayor and Pennsylvania gubernatorial
candidate Ed Rendell is his superior candor: he freely admits that he has
done "very little work" to justify the $250,000 he draws annually from
the prominent Philadelphia law firm of Ballard, Spahr, Andrews & Ingersoll.
(Tom Infield and Thomas Fitzgerald, Philadelphia Inquirer, Apr.
23). (DURABLE LINK)
May 8 -- Zoo asserts
animals' "medical privacy". The Washington Post
had asked to see the medical records of a beloved giraffe after its death,
but no go: "The Smithsonian Institution's National Zoo has taken the position
that viewing animal medical records would violate the animal's
right to privacy and be an intrusion into the zookeeper-animal relationship."
On the other hand, the zoo does allow curious visitors to view the matings
and other intimate habits of reclusive creatures through its PandaCam,
and Naked Mole-Rat
Cam. (James V. Grimaldi, "National Zoo Cites Privacy Concerns
in Its Refusal to Release Animal's Medical Records", Washington Post,
May 6). (DURABLE LINK)
May 8 -- Mayor
Bloomberg goes to bat for liability reform. "Having made
little headway so far in his efforts to get the State Legislature to pass
the bills he is seeking to limit damages against the city, the mayor has
now turned his sights on the City Council. Mr. Bloomberg said that he would
submit two bills to the Council tomorrow to make the city less vulnerable
to slip-and-fall lawsuits. 'All too often, people file tort claims
for the same reason they file lottery tickets,' he complained at a news
conference in City Hall." (Michael Cooper, "Mayor Fights to Reduce
Damage Awards", New York Times, May
7 (reg)). See Steven Malanga, "Tort City", City Journal,
2001; "Tort Trauma", Summer
2001. (DURABLE LINK)
May 8 -- Blumenthal
sues own client. Connecticut Attorney General Richard
Blumenthal, whose never-ceasing quest for turf and publicity frequently
earns him mentions in this space, has filed suit against a body called
the Connecticut Siting Council in an attempt to stall construction of an
underwater cable line that would supply electric power to New York's Long
Island. There's just one problem: the Council is a unit of the state
government and thus is among his own clients, being in fact "represented
in court by members of Blumenthal's office." (Thomas Scheffey, "Can
Connecticut AG Sue His 'Client'?", Connecticut Law Tribune, April
30). (DURABLE LINK)
May 7 -- "Crime
and Punitives". The Supreme Court's jurisprudence in civil
punitive damage cases like BMW v. Gore -- where it limited
a state court's multi-million-dollar punitive award over a new car's undisclosed
paint touch-up -- turns out to have various organic connections with the
course of its jurisprudence on arguably excessive criminal sentences, like
those handed out under California's "three-strikes" law. Why?
"Because, when it comes to punishment, the Court should try to be consistent
-- even across the line dividing criminal law from civil law and the line
dividing the Eighth Amendment from the due process clause. This isn't
just my opinion; it's the Court's." (Evan Schultz, Legal Times,
May 7 -- "Big government
ruined my long weekend". A couple goes off for a
brief getaway to the mountains, then realizes that the wife has left behind
her prescription medication. Think they can convince a standby doctor
to authorize four pills so that she can make it through the weekend?
Forget it: "Between the War on Drugs and the liability climate, doctors
are scared to death to make this kind of accommodation." (Jim Henley, Unqualified
Offerings blog, Apr.
6). (DURABLE LINK)
May 7 -- "Reno
owes the public answers". If former attorney general
Janet Reno is going to present herself to the voters of Florida as a candidate
for governor, the least she can do is answer questions -- raised anew by
a PBS "Frontline" documentary last month -- about whether her prosecution
as Dade County district attorney of the sensational Country Walk ritual-child-abuse
case resulted in the imprisonment of innocent defendants
(editorial, St. Petersburg Times, Apr.
28; PBS/WGBH, "The
Child Terror"; Dorothy Rabinowitz, "The Pursuit of Justice in Dade
County", Wall Street Journal, Oct.
28, 1996, reprinted at McGill University site; Rael Jean Isaac, "Janet
Reno and her Record as a So-Called Champion of Children", Independent Women's
Forum, Apr. 27, 2000). (DURABLE LINK)
May 6 -- Fearing
ethnic profiling charges, bureau ignored flight school warning.
"An F.B.I. agent in Phoenix told counterterrorism officials at the bureau's
headquarters last July that he had detected an alarming pattern of Arab
men with possible ties to terrorism taking aviation-related training, and
urged a nationwide review of the trend, according to F.B.I. officials.
The agent's recommendation was not acted upon before Sept. 11, however
... F.B.I. officials said there was reluctance at the time to mount such
a major review because of a concern that the bureau would be criticized
for ethnic profiling of
foreigners." (James Risen, "F.B.I. Told of Worry Over Flight Lessons
Before Sept. 11", New York Times, May
4; Kausfiles, "Hit Parade", scroll
to May 5). (DURABLE LINK)
May 6 -- ReplayTV
copyright fight. Television networks are suing the maker
of the ReplayTV device, arguing, among other things, that their copyright
is infringed by the device's power to let users skip commercials during
playback. To Steven den Beste, this is a bit like demanding that
scissors be banned "because they might be used to clip articles out of
magazines." (U.S.S. Clueless,
4; Christopher Stern, "Privacy Fight Centers on Ad-Zapper", Washington
May 4). (DURABLE LINK)
May 6 -- "Unharmed
woman awarded $104,000". "A woman who believes she
was poisoned by a chemical spill in 1993 has been awarded [C]$104,000 by
a Manitoba court, even though the
judge acknowledged the woman is likely mistaken in her belief." Lynette
Mary Sant, 55, reported being exposed
to fumes from a broken bottle of the chemical phenol. "Medical
tests found no evidence of liver, kidney or nervous system damage."
When Sant was examined at a clinic, "it was found that while she exhibited
symptoms when exposed to phenol, she also exhibited symptoms when exposed
to distilled water." (Francine Dubé, National Post,
Apr. 26). (DURABLE LINK)
May 3-5 -- Australian
roundup: taxpayers pay for schoolyard fight. "A young
man involved in a schoolyard punch-up with another student seven years
ago was awarded more than [A]$1 million in damages yesterday because the
failed to provide adequate playground supervision." At Narrandera
High School, according to the record of the case, 13-year-old David Michael
Griffin "and another student, Joshua Ferguson, met for an 'arranged fight'
next to the basketball court, in the schoolgrounds, at lunchtime on March
1, 1995. Mr Griffin
first punches and Mr Ferguson hit back, knocking him to the ground."
(Ellen Connolly, "Former student wins $1m over injuries", Sydney Morning
1). "An entrepreneur schoolboy trying to save up for a skateboard
by selling flowers has fallen foul of local laws by failing to take out
a A$5 million ($2.70 million) public liability insurance policy." ("Law
Puts Schoolboy Flower Seller Out of Business", Reuters, Apr. 23).
And a dispute over team standings in the Australian soccer league may proceed
to litigation (Michael Cockerill, "Con-undrum: who is in the finals?",
Sydney Morning Herald, Apr.
7). Plus: coverage of medical liability insurance crisis
("Health Under Threat", news.com.au, May
3 and other dates) (DURABLE
May 3-5 -- Update:
Defend yourself in print and we'll sue (cont'd). In a
decision deplored alike by business groups and the ACLU, the California
Supreme Court ruled Thursday by a 4-3 vote (PDF
format) that that companies can be sued for false advertising over
policy statements made in "issue ads". The Nike Corporation had bought
ads defending its record on the use of so-called sweatshop labor and was
promptly sued by activists whose "private attorney general" action claimed
that the ads violated the state's fair advertising law (see Feb.
13). "What [Thursday's] decision means," says Deborah La Fetra
of the Pacific Legal Foundation, "is that one side of the debate gets full
free speech protection, but a corporation trying to defend itself is subject
to strict liability." (Mike McKee, The Recorder, May
3). UCLA free speech specialist Eugene Volokh, whose already-indispensable
new blog it seems we are beginning to quote daily, has the perfect instant
analysis complete with a hypothetical on speech
by abortion clinics that may help drive home why this new decision is anything
but "progressive" (May
2). (DURABLE LINK)
May 3-5 -- "It's
No Laughing Matter". The Chicago Tribune finds
law trainers continuing to warn management against tolerating an atmosphere
of joking in the workplace: "once a disgruntled employee files a lawsuit,
'they'll remember every inappropriate joke (ever) told,' said Malcolm Kushner,
who teaches harassment classes to attorneys in Santa Cruz, Calif.
'Even if they laughed at it (at the time), it looks horrible to a jury.'"
(T. Shawn Taylor, Chicago Tribune,
28). (DURABLE LINK)
May 1-2 -- What
big teeth you have, Sen. Edwards. In this week's New
Yorker, Nicholas Lemann profiles ambitious trial lawyer/Sen. John Edwards
of North Carolina, who is itching to run
for President "as a trial lawyer". ("The Newcomer", May 6, not
online.) Noteworthy line: "Throughout much of the South, trial lawyers
are, in effect, the left: an influential group that, instead of converting
populist sentiment into redistributionist legislation, converts it into
big rewards for a small number of people who have stories of having been
screwed by powerful, uncaring figures." Mickey Kaus nails Edwards'
demagogic "us against them" populism as exactly the sort of thing you'd
expect from one who chose his route to the top: "Trial lawyers like Edwards,
Lemann notes, specialize in a theatrical form of scapegoating, taking complicated
disasters and finding a 'villain' with deep pockets." (Kausfiles, "Hit
Parade: The pretty ShrumPuppet", scroll
to Apr. 30; InstaPundit, Apr.
An analysis by Roll Call finds that Edwards (D-N.C.) "has relied
almost entirely on his trial lawyer friends" to underwrite his $1.39 million
war chest. "Of that total, $1.19 million -- 86 percent -- came from
lawyers, their employees or their family members, .... No other Congressional
leader or potential presidential contender has such a heavy reliance on
a single industry for their leadership PAC. Edwards ... makes a point
of stressing that he won't take money from PACs or registered lobbyists",
but conveniently trial lawyers don't need to couch their donations in either
of those forms. (Paul Kane, "Trial Lawyers Fuel Edwards' Efforts",
Call, Apr. 25; see Ribstone Pippin blog, Apr.
28) (& welcome Andrew
Sullivan readers). (DURABLE LINK)
May 1-2 -- Ad model
sues tobacco company. "An Arkansas man who said he worked
as a model in cigarette ads in the late 1970s sued R.J. Reynolds Tobacco
Co. yesterday, saying he experienced years of emotional distress from enticing
people to smoke. Raymond
Leopard of Little Rock seeks at least $65 million in damages in the lawsuit
filed in U.S. District Court ... The suit said Mr. Leopard worked as the
'Winston Man' from 1978 to 1980, pictured in Winston cigarette ads in popular
magazines. The suit said he never smoked Winstons. ... 'His reputation
has been forever tarnished and his personal credibility diminished,' the
suit said." ("Former tobacco model sues Reynolds over 'reputation'",
Washington Times, Apr. 30). (DURABLE
May 1-2 -- "Injudicious
conduct". National Law Journal's annual roundup
of bad behavior on the bench includes cases mentioned previously in this
space (Amundson, Couwenberg)
plus a bunch of others (Gail Diane Cox, National Law Journal, Apr.
23). (DURABLE LINK)
May 1-2 -- "Don't
sue for Israel". Following legal threats, a small Texas
automotive exporter has apologized for apparently having refused to do
business with Israeli firms and citizens. When the story circulated
last week, our friend James Taranto at the WSJ/OpinionJournal's
"Best of the Web" audibly hoped that the exporter would get in trouble
under the odd "antiboycott" law that makes it a federal offense, inter
alia, for an American company to engage in "actual refusal to do business
with or in Israel". ("Best of the Web", Apr.
25; W. Gardner Selby, "Texan's fax causes international fuss", San
Antonio Express-News, Apr. 30). But Sasha Volokh points out
the inconsistency of the antiboycott law with the principle of free association,
connects that theme nicely with the Boy Scouts v. Dale case
and hate speech litigation, and adds a bunch of useful links ("Don't sue
for Israel", Volokh brothers blog, Apr.
28). (DURABLE LINK)