November 10-12 — Election special: litigating our way into a constitutional crisis? It isn’t often that a New York Times editorial exactly captures our own reaction to public events, but we wouldn’t have changed a word in this morning’s. It expresses concern about the “Gore campaign’s rush to litigation” and the possibility that matters might escalate into “scorched-earth legal strategy” on both sides of the presidential contest: “it is worrying that Mr. Gore and a legal team led by Warren Christopher, the former secretary of state, would announce their support for a lawsuit while the mandatory recount is still going on and while seven days remain for the arrival of overseas absentee ballots. It is doubly worrying that some Gore associates are using the language of constitutional crisis and talking of efforts to block or cloud the vote of the Electoral College on Dec. 18 and of dragging out the legal battle into January….
“We take very seriously the fairness issues raised by the ballot confusion in Palm Beach County and understand the public frustration or even outrage attendant upon the possibility of having the popular will thwarted by procedural errors, especially when a presidential outcome hangs in the balance. The problem is that potential remedies, such as a new election in Palm Beach County, seem politically unsound and legally questionable. The sad reality is that ballot disputes and imperfections are a feature of every election. It will poison the political atmosphere if presidential elections, in particular, come to be seen as merely a starting point for litigation.” (“A Fateful Step Toward Court” (editorial), New York Times, Nov. 10) (reg). Also: “Senator Robert G. Torricelli, Democrat of New Jersey, warned against getting mired in the courts. ‘I want Al Gore to win the election,’ Mr. Torricelli told reporters, ‘but more than that, I want somebody to win this election. There is going to have to be a very compelling case for anybody to take this into a court of law. It’s a downward spiral. It may begin in Florida, but it can go to other states and ultimately the presidency of the United States should not be decided by a judge.'” (R.W. Apple Jr., “Gore Campaign Vows Court Fight Over Vote, With Florida’s Outcome Still Up in the Air”, New York Times, Nov. 10). (DURABLE LINK)
November 10-12 — Election special: Nader non grata. Many liberals are furious with Ralph Nader for apparently costing Al Gore the election, with the Times rounding up indignant quotes from union, feminist and environmentalist officials. “Senator Joseph R. Biden Jr. of Delaware, echoing the sentiments of several other Democrats on Capitol Hill, said: ‘Ralph Nader is not going to be welcome anywhere near the corridors. Nader cost us the election,’ … Several Democrats said today that they expected many longtime financial supporters of Mr. Nader to cut off their contributions to organizations with which he is affiliated” — though, frustratingly, the article says nothing about what kind of supporters these might be (trial lawyers? unions?) thus accommodating Nader’s longtime practice (see June 13, Andrew Tobias in Worth) of concealing his sources of financial support (James Dao, “Angry Democrats, Fearing Nader Cost Them Presidential Race, Threaten to Retaliate”, New York Times, Nov. 9 (reg)). At an election-night gathering at Bill and Hillary Clinton’s hotel room, according to Lloyd Grove of the Washington Post, publishing figure Harry Evans exclaimed “I want to kill Nader!”, to which Sen.-elect Hillary Clinton replied, “That’s not a bad idea!”, immediately followed by a collective cry of “That’s off the record!” — too late (Lloyd Grove, “The Reliable Source”, Washington Post, Nov. 9) “My only hope is that no matter who wins, he will name Ralph Nader the first U.S. ambassador to North Korea. That way Ralph can spend his days with another egomaniacal narcissist, Dear Leader Kim Jong Il, and get a real taste of what a country that actually follows Mr. Nader’s insane economic philosophy — high protectionism, economic autarky, anti-markets, anti-globalization, anti-multinationals — is like for the people who live there.” (Thomas L. Friedman, “Original Sin”, New York Times, Nov. 10) (DURABLE LINK)
November 10-12 — Obese soldiers class action. When kicking out servicepeople for gaining too much weight, the U.S. armed services have insisted that they return their enlistment bonuses. “Under a federal ruling handed down last week, they’ll be able to sue the Pentagon in a class-action lawsuit to recover damages.” (Justin Brown, “How far can military go in punishing obese soldiers?”, Christian Science Monitor, Nov. 9).
November 10-12 — Dubious death-penalty science. The Supreme Court in 1993 (Daubert v. Merrell Dow) instructed lower federal courts to curb the use of unreliable expert testimony in civil litigation, with highly beneficial results for the quality of justice. Oddly, the Court has failed to tighten the corresponding rules for capital criminal cases, although there is evidence that some expert testimony that sends prisoners to Death Row would flunk a Daubert test, notably testimony which purports to predict future dangerousness with a high degree of certainty. “The use of psychiatric testimony in capital cases has also been sharply criticized by Peter Huber, a fellow at the Manhattan Institute in New York and a former law clerk for Justice Sandra Day O’Connor whose influential book denouncing junk science is widely credited with sparking the legal movement to limit expert testimony.” (Henry Weinstein, “Death Penalty Debate — Can New Violence Be Predicted?” Los Angeles Times, Nov. 6). Also: some critics are questioning whether fingerprint identification, among the pillars of forensics for a century or more, is really 100 percent reliable as is commonly assumed (Simon Cole, “The Myth of Fingerprints”, Lingua Franca, Nov.).
November 10-12 — Mickey Kaus on constitutional activism. The Slate and Kausfiles.com columnist worries that Bush high court nominees would go too far in striking down Congressional legislation on federalism grounds, but expresses even more alarm at the implicit activist judicial philosophy of Vice President Gore, which recalls “my law school days, in the mid-1970s, when the rights-making machine of legalistic liberalism was still churning away. …When Gore babbles eagerly about how ‘the Constitution ought to be interpreted as a document that grows with … our country and our history’ — sounding like a guy who went to the first year of law school for a few months but didn’t stick around long enough to realize what a crock much of it was — I think back to the liberals-out-of-control paradigm of my youth.” Whole piece is worth a read (“Don’t Rush Me! (Part 8)”, Slate, Nov. 6) (Kausfiles.com).
November 10-12 — Did securities-law reform fail? Five years ago Congress overrode President Clinton’s veto and enacted legislation intended to deter unwarranted shareholder “strike suits” organized by professional class action lawyers. Since then the number of suits has gone up, however, and observers differ as to how much good the law may have done and whether lawyers are finding it easy to evade. (Tamara Loomis, “Securities Reform: What Went Wrong?”, New York Law Journal, Oct. 27; Peter Catapano, “Who Wants To Be a Fraud Litigant”, Wired News, Nov. 8).
November 9 — Lawyers descend on Florida. “Over the sunny horizon, a plague of lawyers is descending on Florida. They officially are ‘watching’ the presidential recount. But they are also scouring every comma and ‘whereas’ in the Florida code to see if any loophole can be found to invalidate Florida, or to block such an action.” “Soon after [Florida Secretary of State Katherine Harris] ordered the recount, lawyers for both candidates flocked to the state, led by two former secretaries of state — Warren Christopher for Gore and James A. Baker III for Bush.” Jesse Jackson said black leaders may sue, while a Bush campaign source told Insight that “[o]ur people down there are getting the clear impression that the Democrats are searching madly for anything they can litigate on.” (Nov. 8: “Recount continues in Florida”, AP/Northern Light; Rod Thomson, “The Florida Rules”, National Review Online; Jamie Dettmer, “Election Update: Charges of Cheating Abound”, Insight Magazine; Raju Chebium, “Election Day allegations could form basis for legal challenges, experts say”, CNN.com; Paul Singer, “Rev. Jackson hints legal challenge to Fla vote”, Virtual New York; “More Irregularities Alleged”, ABCNews.com.)
November 9 — More election results. Three Michigan Supreme Court justices assailed by trial lawyers and other critics “trounced their Democratic opponents by large margins” (see Nov. 7; David Shepardson, “GOP projected to win state Supreme Court”, Detroit News, Nov. 8). In Ohio, however, Justice Alice Robie Resnick easily held onto her seat despite outrage from organized business over her authorship of a decision invalidating liability limits in the state, and a challenger nearly succeeded in knocking off incumbent Justice Deborah Cook, who had voted to sustain the reforms (see Oct. 30; James Bradshaw, “High court unchanged despite negative TV ads”, Columbus Dispatch, Nov. 8). And in a House race in West Virginia, GOP insurgent Shelley Moore Capito pulled off an upset to defeat Jim Humphreys, a wealthy asbestos lawyer who had poured more than $6 million of his own money into his campaign. (see Oct. 23; Karin Fischer, “Capito scores upset”, Charleston Daily Mail, Nov. 8).
November 9 — Reshuffling blackjack decks not racketeering. A three-judge panel has ruled that Atlantic City, N.J. casinos did not violate the federal RICO (racketeering) law by adopting “countermeasures” against known and suspected practicers of card-counting at the blackjack tables. At the “heart of the lawsuit … was the players’ objection to the casinos’ practice of re-shuffling the decks ‘at will’ whenever a card-counter is spotted.” The plaintiffs included 60 casino patrons, most with card-counting skills, as well as companies that offer courses in the memory technique, which allows a customer to increase the chances of beating the house by deducing the distribution of cards remaining undealt. Federal judge Morton Greenberg ruled that the claims “are completely insubstantial and border on the frivolous” because the rules of the New Jersey Casino Control Commission specifically authorize casinos to reshuffle at will, because the players “can avoid any injury simply by walking away from the alleged wrongdoers, the casinos”, and because the loss of the chance to make money at a casino’s expense can hardly be characterized as “an injury to business or property”. (Shannon P. Duffy, “Federal Court Finds Players Have No RICO Claim Against Casinos, The Legal Intelligencer, Nov. 6).
November 8 — “Opposition to Indian mascots intensifies”. Legal pressure is intensifying on school systems, universities and professional sports clubs to drop mascots and team nicknames (“Warriors”, “Chieftains”, etc.) that refer to American Indians. In a case now on appeal, “[t]he U.S. Patent and Trademark Office ruled last year that [football’s Washington] Redskins have no right to trademark the name because it is disparaging to American Indians.” Activists are filing complaints seeking the cutoff of federal education funds to schools that decline to drop old team names. “Kevin Gover, who heads the Interior Department’s Bureau of Indian Affairs, applauds such an effort. ‘Any school putting forward a stereotyped image of any race is in violation of civil rights laws, and I think should lose federal funding,’ he said. ‘If the Justice Department won’t do it, lots of lawyers like me will do it for them.'” (Don Babwin, AP/FindLaw, Nov. 6). St. Petersburg Times columnist Robyn Blumner takes a dim view of using copyright law to enforce a regime of political correctness in cases like that of the Washington football club (“Government has no business in Redskins opinion”, July 23).
November 8 — Loser-pays activism. The New Century Project, a fledgling policy group chaired by retiring Rep. John Kasich (R-Ohio), lists “Legal Reform” among its four central issues and in particular states: “We support a so-called “loser pays” reform which would allow judges to order fee shifting in tort and contract cases. Such efforts may also include imposing penalties on attorneys, law firms, or individuals bringing frivolous lawsuits.” Its other three main issues: school choice, elimination of the federal estate tax, and opposition to Internet taxation.
November 8 — From the evergreen file: cancer alley a myth? “Everyone knows that cancer rates are sky-high along the Mississippi River between Baton Rouge and New Orleans.” Trial lawyers and the “environmental justice” movement say the area’s poor and black residents fall victim to cancer at high rates because of the large concentration of chemical refineries along the river. “The only problem is that what ‘everyone knows’ just isn’t true.” According to an article in the Journal of the Louisiana Medical Society, the incidence of most types of cancer in the alley does not differ from national incidence, and the few exceptions, such as high rates of lung cancer in New Orleans, are plausibly attributable to smoking and other familiar risks. (Michael Gough, “Did You Hear? Good News from Cancer Alley”, Cato Daily, October 15, 1997) (via Junk Science). The contrary view, which dismisses the incidence comparisons as inept or corrupt, is widely found around the Web (stored Google search), including Barbara Koepple, “Cancer Alley, Louisiana”, The Nation, Nov. 8, 1999. Also: there’s now a whole parody page (dhmo.org) devoted to warning against that insidious substance, dihydrogen monoxide (you might drown in it).
November 7 — Litigation reform: what a Democratic Congress would mean. What would happen to the chances for curbing excessive litigation should the Democratic Party retake Congress in today’s election? To begin with, key committee posts (as at Judiciary and Commerce) would fall to longtime trial lawyer allies like Sen. Ernest Hollings (D-S.C.), Sen. Edward Kennedy (D-Mass.), Sen. Patrick Leahy (D-Vt.), and Rep. John Conyers (D-Mich.). And then there’s Rep. Patrick Kennedy (D-R.I.), who serves as spokesman for his party as chair of the Democratic Congressional Campaign Committee. On October 10 the younger Kennedy was making an appearance on CNBC “Hardball” when host Chris Matthews brought up the topic of excessive trial lawyer sway within the Democratic Party. Kennedy began his answer by questioning the patriotism of those who presume to criticize the American litigation system (graciously suggesting we should “go someplace else and live” if we don’t appreciate it). When Matthews volunteered that he himself was “a little skeptical of the motives” of trial lawyers, Kennedy suggested that such a view was really tantamount to opposing the system of trial by jury. Finally, after Matthews persisted, saying that in his view “there’s probably too much litigation in the country and too many big settlements”, Kennedy simply dismissed the whole subject out of hand, saying his host must have “been reading the Republican propaganda”. The entire sequence must be read to be fully disbelieved, so we’ve posted it on a separate page. Also: don’t forget our special page on trial lawyers and politics.
November 7 — Michigan high court races. More coverage of the closely watched state supreme court races in which three respected conservatives appointed by Republican Gov. John Engler have been targeted by the state Democratic Party and its trial lawyer and union allies; partisans of both camps have run injudicious ads, with the Detroit News calling the latest broadside from the Democratic side “truly vicious” (Detroit News, Oct. 31; Nov. 1; Nov. 6; Detroit Free Press, Sept. 25; Oct. 21; Oct. 24; Oct. 27; Oct. 28 Markman, Taylor, Young). Earlier coverage on this site: Aug. 25, May 9, May 15, 2000; Aug. 6, 1999.
November 7 — Family law roundup. Headline says it all regarding bitter split between ex-spouses over a farm in Somerset, England: “Divorce battle ends with £840,000 bill” (Ananova.com, Oct. 26). Conflicts over the disposition of frequent flier miles in divorces and will contests are on the rise, reports the New York Times. A Dallas woman says she and her ex-husband “had agreed to split the miles in their divorce settlement, but that he used the bulk of them before the divorce was finalized. She said she was shocked when she called American Airlines days after her divorce and was told that there were only 543 miles left in her husband’s account, down from more than 60,000.” Her hubby’s lawyer says she should have asked the judge for a restraining order if she didn’t want him to use up the miles (Jane Wolfe, “A New Thorn in Divorces: Who Gets the Miles?”, New York Times, Oct. 29) (reg). And controversy is simmering over allegedly clubby relations between family law judges and lawyers in Marin County, Calif.: was it easier to win your divorce or custody case if you’d attended one of the judge’s big parties, or hired a member of the insider lawyers’ group that called itself FLEAs, for Family Law Elite Attorneys? (Matt Isaacs, “Odor! Odor in the court!”, San Francisco Weekly, Oct. 18).
November 7 — Update: judge turns down “Millionaire” ADA suit. A federal judge ruled last week that the Americans with Disabilities Act does not prohibit ABC and the producers of the TV show “Who Wants To Be a Millionaire?” from using a touch-tone phone system to pre-screen entrants, despite the hurdle that poses to deaf contestants (see March 24) (“Judge: ‘Millionaire’ qualifying round not covered by ADA”, AP/Boston Globe, Oct. 30). Update Jun. 21-23, 2002: appeals court reinstates suit.
November 6 — Coercive capitalism? “Nader is most famous for his attacks on corporations and capitalism. . . .He does not believe that individuals choose their economic relationships with these companies. Instead, he argues that they involve some type of force or compulsion. In short, he equates the coercive power of government with the economic power of the private sector.
“If you think he’s right, try two things. For a whole year, don’t send your money to the IRS, and don’t send your money to McDonald’s. Don’t pay your taxes and don’t buy a Big Mac. See which organization — the government or McDonald’s — comes after you with guns, threatening to put you in jail, seize your property, or even take your life, if you don’t give them your money.” (David Parker, “An American Dictatorship: Ralph Nader’s Vision for America”, Capitalism Magazine, August). See also Jay Whitehead, “Ralph Nader: Analog Anachronism”, ZDNet, Sept. 1.
November 6 — Beehive of legal activity: Utah tobacco fees. Utah is one of the smaller states, but the Tobacco Fee Arbitration Panel has shown its usual generosity and awarded the attorneys who represented it in the state-Medicaid litigation a whopping $64.85 million. Even this sum is a great deal less than some of the lawyers feel entitled to recover for working on behalf of the state; last year one of the law firms involved, Giauque, Crockett, Bendinger & Peterson, got into a fight with state attorney general Jan Graham when it filed a lien to claim 25 percent of the state’s settlement, or about $250 million. The Giauque Crockett website says that the arbitration award “will be a dollar for dollar offset or credit against the obligation of the state of Utah to pay the Firm under the Firm’s contingent fee contract.” South Carolina’s Ness, Motley is also sharing in the Utah payout, as in many other states’. (Reuters/CNN, “Utah attorneys awarded $64.85 million in tobacco fees”, Oct. 25; Judy Fahys, “Tobacco Tussle, Round II, Graham sues law firms in dispute over settlement, Salt Lake Tribune, Nov. 25, 1999).
November 6 — Good Humor man busted for ringing bell. In Arlington, Va., it’s against the law for a commercial vendor to ring a bell to attract notice, resulting in a recent wave of law enforcement activity targeting the venerable Good Humor ice cream man. “That’s crazy,” one mom says. “How would the kids know he was there if he didn’t ring his bell?” (Patricia Davis, “In Arlington, Ringing Up the Tickets”, Washington Post, Oct. 30).
November 6 — Welcome visitors. Overlawyered.com has recently been cited on the Eight Kinds of Ice weblog (November 5 entry) and LinkLog; won the “MadPick” site award bestowed by humor columnist Madeleine Begun Kane; figured several times as a source for the Bonehead of the Day award; been among Jack Lyne’s weekly Editor’s Choice Web Picks (week of Oct. 2) at Site Selection Online Insider, which serves commercial real estate execs; been called a “must-visit Web site” by Jacquelyn Horkan, editor of the “InBox” at Florida Business Insight (August 4) (Associated Industries of Florida); and gotten a mention in the online Law Society Journal of the Law Society of New South Wales, Australia (Patrick McAlister, “Outside View”, Sept.).
November 3-5 — Rick & Hillary spar over Indian land claims. GOP senatorial candidate Rick Lazio has been running radio ads in upstate New York criticizing the Clinton Administration’s support for Indian land claims that have asserted title to wide swaths of the western part of the state, mobilizing thousands of property owners to outraged protest (see Oct. 5 and Oct. 27, 1999; Feb. 1, 2000) The ads say his Democratic opponent, Hillary Clinton, “refuses to stand up for the rights of upstate New Yorkers” on the land issue. A spokeswoman for Mrs. Clinton says the First Lady supports the litigation in general, which has been backed and assisted by her husband’s Justice Department, but does not approve of the naming of individual homeowners as defendants.
Meanwhile, “[t]he U.S. Interior Department has proposed a new American Indian land claim case that could affect property owners on more than 100,000 acres of prime suburban and rural land in western New York,” this time on behalf of the Senecas, including large areas in suburban Buffalo. Jim Mazzarella, of Republican Gov. George Pataki’s Washington office, “called the potential suit ‘outrageous’ and ‘another attack on the homeowners of western New York.'” (John Machacek, “Indian land claim may hit area”, Rochester Democrat & Chronicle, Nov. 1). Upstate Citizens for Equality, an organization critical of Cayuga and other claims, maintains information on its website about the status of Indian claims in New York and elsewhere. Update Nov. 2-4, 2001: Bush Justice Department reverses position and urges judges to dismiss individual homeowners from the suit.
November 3-5 — Just had to donate. This year, as in the past, plaintiff’s lawyers are pouring money into the campaigns of judicial candidates considered friendly to their interests, and in Mississippi, as in other states, they prefer to put forward the notion that their spending is purely reactive, meant to offset the donations that their dastardly opponents are making in judicial contests (and by their opponents they tend to mean pretty much every donor to such campaigns other than themselves, with the possible exception of labor unions). However, that still doesn’t explain why they feel obliged to give their favored judicial candidates enough money to outspend their opponents two to one. Thus Supreme Court candidate Percy Lynchard, heavily backed by plaintiffs’ lawyers, has raised $446,000 in his bid to unseat incumbent Justice Kay Cobb, while Cobb has raised $171,000; and Frank Vollor, whom they are backing for another seat on the court, raised $402,000 as compared with $217,000 for his opponent, incumbent Justice Jim Smith. Lynchard’s “frenzy” of fund-raising included $83,000 in contributions on a single day, Oct. 17, “mostly from plaintiff lawyers”, and $276,690 for October as a whole. (Beverly Pettigrew Kraft, “Judicial gifts hit record amounts”, Jackson Clarion-Ledger, Nov. 1).
November 3-5 — Gets no kick from football verdict. Last month (see Oct. 13) a jury awarded $2 million to Heather Sue Mercer, who sued Duke University for sex bias after being cut from her walk-on spot as a kicker with the football team. Among those not thrilled by the jury’s action, according to last Sunday’s Atlanta Journal-Constitution, is kicker Tonya Butler of Middle Georgia College, whose dream is to become the first female given a football scholarship to a four-year school. “‘That’s ridiculous,’ Butler remembers thinking. ‘Not just the money, but the whole case. I thought it would be thrown out of court. I’m sorry, but she just got beat out by the other kickers. That happens.’
“‘I’m afraid the case has really hurt my chances. Now everyone has to worry if I’ll sue, too, if things don’t work out. I hope it hasn’t closed all the doors for me.
“I don’t play football to make a statement. I play because I love kicking and I’m good at it. I shouldn’t be penalized because of what someone else did.” She has been calling colleges trying to assure them she wouldn’t sue if things didn’t work out, but their interest has waned since the verdict. In 1997 Willamette University in Oregon drew national attention when it briefly employed Liz Heaston as a kicker, but Willamette coach Mark Speckman “said he would not dare call on Heaston now. He, like other coaches, has two million reasons why, after the Duke case. ‘A coach in my position can’t take the risk,’ Speckman said. ‘This is just going to freeze any possibility out. It isn’t worth it.'” Current interpretations of Title IX, the feminist athletics statute, do not entitle women to join men’s football teams but do allow them to sue for damages if they are accepted and then treated unequally. Former Duke coach Fred Goldsmith, who befriended Mercer and then saw the relationship deteriorate and give rise to the lawsuit, said, “I was a nice guy, and I got stabbed in the back.” (Guy Curtright, “Blow to the cause”, Atlanta Journal-Constitution, Oct. 29).
November 3-5 — Alarming byline. “MIKE CRAIG is an attorney and writer in Chicago. He has written for Online Investor and sued nearly everyone for all sorts of misbehavior.” — byline on an article in Green Magazine (“Listen to the Money Talk”, Oct. 27).
November 2 — Radiologists: sue them enough and they’ll go away. Although more women are getting the word about the life-saving benefits of mammography (X-ray screening for breast cancer), “doctors who read the X-rays seem to be fleeing the field at an alarming rate. Caught between rising litigation over allegedly missed tumors and low reimbursement for their services, a growing number of radiologists say their field just isn’t worth the stress any more,” writes Judy Foreman in the Boston Globe. On the legal front, failure to diagnose breast cancer is “‘the number-one allegation against all doctors, in Massachusetts and nationally,’ said Martha Byington, a loss-prevention specialist at the Risk Management Foundation, which insures Harvard doctors and hospitals.” Radiologists have replaced gynecologists as the medical professionals that lawyers most often go after in that variety of case, especially since “mammograms can be extremely difficult to read. Indeed, with hindsight — that is, after a diagnosis of breast cancer — radiologists say they can often look back at old mammograms and pick up tell-tale signs of cancer that, on first reading, did not raise a red flag.” Not surprisingly, high-profile jury verdicts and settlements have proliferated.
As the specialty has developed a reputation for being legally difficult, young doctors have shunned it. Meanwhile, “[t]he retirement rate of radiologists doubled from 1995 to 1997, from 400 to 800 a year, while the number of new radiologists specializing in mammograms dropped by 80 percent, according to a study by the American College of Radiology. . . . For women, radiologist burnout translates into a months-long wait for routine screening at many centers — when the mammograms are available at all.” With the availability of free and even paid mammograms plunging, more women are likely to go without exams, with deadly consequences. (Judy Foreman, “Stressed Out: Burned by Lawsuits and Low Pay, Radiologists Are Quitting, Making Women Wait Longer to Find Out If They Have Breast Cancer”, Boston Globe, Oct. 24).
November 2 — Pot tax bond. Kentucky investigators lacked enough evidence of criminality to convict or even arrest 23-year-old Charles Thomas Jr., who lived in a trailer in Breathitt County near where 517 marijuana plants were found growing on land he did not own. “Nevertheless, Thomas owes the state a little more than $1 million under a 1994 law that taxes [presumed] marijuana dealers $1,000 a plant and penalizes those who do not pay the tax before they are caught.” Moreover, the law “requires suspected dealers to post a bond equal to the amount owed before they can file a protest.” Since Thomas doesn’t have that kind of money, his lawyer says his right to protest the assessment in court might as well be a dead letter. (“$1 Million Pot Tax Bill Stirs Fight”, APBNews/FindLaw, Oct. 27).
November 2 — No K Street in Forbidden City. “During the 300 years of the Qing Dynasty, lobbying was an offense punishable by death. The emperor was considered the Son of Heaven, and for a mere mortal to have the audacity to suggest policy to him was unforgivable.” (Sam Loewenberg, “Navigating the Maze” (lobbying in present-day China), Legal Times, Sept. 19).
November 1 — Don’t meet with her alone. “Michael Land wants other male sole practitioners to learn from his sexual harassment disaster. Never meet a prospective female client alone, the Atlantic County, N.J., lawyer advises. Always have a secretary or paralegal present. . . . In 1996, a potential client complained to police that Land fondled her while they were alone. Police officers arrested him and handcuffed him to a pipe while they booked him.” A judge soon threw out the woman’s criminal complaint, and evidence came to light that she was a frequent filer of suits deemed frivolous, but customers whispered and Land’s business began to dry up. Four years later, in a most unusual turn of the tables, a jury not only denied her claim but ordered her to pay him $225,000 on his counterclaim of malicious prosecution. Vindication, yes, but at a price: “I have not seen a female client unescorted after-hours since this incident and probably never will again,” he told a local paper. (Henry Gottlieb, “New Jersey Jury Docks Client $225K for Saying Lawyer Groped Her”, New Jersey Law Journal, Sept. 6).
November 1 — Contingency fee reform. State ethics codes do not give inexperienced legal consumers enough protection from excessive lawyers’ fees, argues the University of Illinois’s Richard Painter, especially in the realm of contingency fees, where it is “difficult to discern much competition in a market that usually assigns the same risk premium (33%) to a plaintiff’s case, no matter how large the case is and no matter how likely the client is to win.” In this paper for the Civil Justice Memo series of the Manhattan Institute (with which this site’s editor is associated), Painter “reviews a number of the proposals that have been made so far and discusses the comparative strengths of a new proposal made by Jim Wootton, President of the U.S. Chamber of Commerce Institute for Legal Reform: a ‘New American Rule’ that would require a lawyer to set for each client at the beginning of a representation a limit of any amount (phrased in dollars per hour of legal services) on how high the contingent fee can go and then disclose to the client general information about the fees that the lawyer has charged to other clients.” (Richard W. Painter, “The New American Rule: A First Amendment to the Client’s Bill of Rights”, Manhattan Institute Civil Justice Report #1, March 2000). Columnist David A. Giacalone at PrairieLaw also endorses disclosure-based contingency-fee reforms (“Advocate This!: Pricey Contingency Fees“), as does presidential candidate George W. Bush (campaign website, “Civil Justice Reform” — see “Client’s Bill of Rights” item).
November 1 — “School Suspends Girl for Casting Spell”. In Broken Arrow, Oklahoma, the Union Intermediate School District is said to have suspended student Brandi Blackbear on suspicion of casting a spell. According to the American Civil Liberties Union, assistant principal Charlie Bushyhead called Blackbear to his office after a teacher fell unexplainedly ill, questioned her about her passing interest in Wicca, and summarily suspended her. “I, for one, would like to see the so-called evidence this school has that a 15-year-old girl made a grown man sick by casting a magic spell,” said the ACLU’s Joann Bell. However, the school attorney, Doug Mann, called the account into question, saying privacy laws protecting juvenile records prevented him and the district from commenting on the case: “It’s totally unfair that we are gagged by federal and state law and they can say anything they want,” he said. “If the parents will sign a release for what’s in the girl’s files, we will talk about the true facts.” (Ben Fenwick, Reuters/Excite, Oct. 30).
November 1 — 750,000 pages served on Overlawyered.com. Thanks for your support!
November 20 — Flow control. The Florida Supreme Court has a liberal and activist reputation, which is why many Gore supporters see it as their ace in the hole in the recount controversy (John Fund, “On the Bench for Gore?”, OpinionJournal.com (Wall Street Journal), Nov. 15; Robert Alt, “The Florida Supremes”, National Review Online, Nov. 16). “To scrounge for every last vote, Gore has flooded Fort Lauderdale with tough, seasoned Democrats, the sort who are used to keeping wafflers in line and to count and recount votes until they know exactly what it will take to outdo their opponents. Many of the hired hands speak with a Boston brogue,” reports the L.A. Times. A lawyer explains the routine to volunteers: “‘It’s very, very important that if you see any kind of mark — a scratch, a dent, a pinprick in Al Gore’s column — that you challenge.’ When someone then asked what they should do if they found a Bush ballot with an indent, the lawyer said: ‘Keep your lips sealed.'” (Elizabeth Mehren and Jeffrey Gettleman, “Seasoned Democratic Army Hits the Shores of Florida”, Los Angeles Times, Nov. 17). “[I]f you’re just counting existing ballots, there shouldn’t be any chads on the counting-room floor. But, whether by accident or design, the little fellers keep detaching themselves from the ballot, thereby creating more and more new votes.” (Mark Steyn, “Smooth man Gore starts to play rough”, Daily Telegraph (UK), Nov. 19; “Gore’s law: When you’re beaten to the punch, it’s the chads that count”, Nov. 17). See also Charles Krauthammer, “Not By Hand”, Washington Post, Nov. 17; Jurist special page on election 2000.
November 20 — “Judge fines himself for missing court”. “Hamilton Municipal Court Judge Paul Stansel believes he has no more right to skip court than the people who have to appear before him. Stansel found himself in contempt of court and fined himself $50 — half a month’s salary — after missing the Sept. 27 monthly court session because he was tending to his sick pony named Bubba and forgot it was court day, he said.” (Harry Franklin, Columbus Ledger-Enquirer, Nov. 7).
November 20 — How to succeed in business? Earlier this fall it was widely reported that Christian Curry received nothing from the settlement of his race and sexual orientation suit against Morgan Stanley Dean Witter, which had fired him after nude pictures of him were published in a sexually explicit magazine. See, for example, “Curry Drops Suit Against Morgan Stanley Dean Witter” (press release), Yahoo/Business Wire, Sept. 15 (quoting Curry: “I will receive no payment”); Dan Ackman, “L’Affaire Curry Ends In Settlement”, Forbes.com, Sept. 15 (“Curry got nothing, and said he was happy with that.”). However, the New York Post reported last month that Curry arrived at a press conference in a new red Ferrari to announce that he had just paid $2 million to buy a Harlem newspaper and “plans to start a modeling agency, a film and TV production company and a hedge fund.” According to the paper, “sources” tell it that the investment firm paid Curry $20 million on condition he keep quiet about the case. “The settlement was brokered in September, right before Morgan Stanley CEO Philip Purcell was to give his deposition.” Curry declined at the press event to comment on the status of his lawsuit; it is not clear how the earlier and more recent accounts can be reconciled with each other. (Evelyn Nussenbaum, “Curry Buys Newspaper, Has Big Plans”, New York Post, Oct. 20). See update, Nov. 23, 2003.
November 17-19 — Punch-outs, Florida style. Palm Beach tobacco law magnate Robert Montgomery is a frequent subject of commentaries in this space (see April 12, Aug. 8-9, 2000; Aug. 21, 1999; estimated tobacco fee $678 million), and somehow we knew he’d turn up as a player in the recount mess. Sure enough he’s acting as attorney for embattled county elections director Theresa LePore (Kathryn Sinicrope and Michele Gelormine, “Recount waiting game continues”, Palm Beach Daily News, Nov. 16). Montgomery, a major party donor, recently represented without charge the incumbent Democratic court clerk in Palm Beach against a public records lawsuit filed by Republican challenger Wanda Thayer; in that capacity he gave Thayer reason to feel really sorry she ever filed the action, putting her through a harsh deposition and menacing her with having to pay his $350-$500 /hour fee if she lost. Someone who represents the clerk of court free of charge against her opponent in a politically sensitive case is likely to stay a pretty popular guy around the courthouse, no? (Marc Caputo, “Attorneys carry clerk’s campaign”, Palm Beach Post, Sept. 26).
In the Broward County recount Republicans have noticed no fewer than 78 of the loose bits of paper known as “chads” lying on the floor of the recount facility and say the punchcard ballots are being over-handled in chaotic fashion by ad hoc election workers, some of them unknown to the official in charge. They’ve asked that the recount be halted until more secure procedures can be instituted, but a judge turned them down and a Democratic attorney ridicules their concerns (Sean Cavanagh, “Gore gets 13 more votes so far in Broward recount”, Fort Lauderdale Sun-Sentinel, Nov. 16; Marian Dozier, “Chad ‘fallout’ grows the more ballots are handled”, Nov. 15). “Q. If lawyers for Democrats and Republicans beat each other’s brains out for a few months in Florida, won’t that result in fewer lawyers? Who can argue with that? A. Like night crawlers, a complete new lawyer grows out of any piece of attorney sliced off in court. Their regenerative powers are frightening.” (Gary Dunford, “Night crawlers”, Canoe/Toronto Sun, Nov. 15).
November 17-19 — “U.S. Holocaust lawyer plans Austria train lawsuit”. Much-publicized New York attorney Edward Fagan is drumming up business among survivors of the Alpine tunnel calamity, which killed as many as 160. “The suits most likely would be filed in U.S. courts because they typically could award bigger damages than overseas courts”, even though the article cites no nexus whatsoever between the disaster and the United States as regards the great majority of victims, who were of Austrian or German nationality. Imagine how strange it would seem if a train full of Americans and Canadians crashed in Colorado and some lawyer from Austria flew in to propose that lawsuits be filed in his country. (Reuters/FindLaw, Nov. 14).
November 17-19 — “Tax collector found to owe $3,500 in delinquent taxes”. From Scranton, Pa., another entry for the do-as-we-say file: “I have no defense,” says Thomas Walsh, director of the county’s Tax Claim Bureau, of the city property tax bill on his home, which he’s left unpaid since 1991 and has now mounted to more than $3,500. “I just got behind.” (“Pay thyself”, AP/Fox News, Nov. 13).
November 17-19 — “Coca-Cola settles race suit”. The Atlanta-based soft-drink maker has agreed to pay $192.5 million to settle charges of race bias, “described by the plaintiffs as the largest ever in a race discrimination class action suit”. (CNNfn, Nov. 16) (see July 21, July 19).
November 16 — Palm Beach County “under control”. “There was evidence that the Gore campaign hoped to muscle up the forces at its disposal. An e-mail circulated to a trial lawyers organization sought at least 500 attorney volunteers to help out with recounts in selected counties.” (David Espo, “Bush Holds Narrow Lead in Fla.”, AP/Yahoo, Nov. 15). “The request was passed along on the Internet E-mail list of the National Association of Trial Lawyer Executives (NATLE) by the executive director of the group, Kathleen Wilson, suggesting they pass along the request to lawyers on the Internet E-mail lists they’re on.” The volunteer lawyers would be deployed in Volusia, Miami-Dade and Broward Counties, with the email describing the Gore forces as “comfortable that Palm Beach County is under control.” The organization NATLE “includes many executive directors and other officials with lawyer groups”. (“Gore Campaign Recruiting Lawyers”, AP/Washington Post, Nov. 14).
Judge-shopping? “Although most of the lawsuits filed to date have been in state court, one Gore supporter filed an action in federal court last week only to withdraw it the same day (apparently out of a concern that the judge assigned to the case, Reagan appointee Kenneth Ryskamp, would not look favorably upon it).” (Jay Lefkowitz, “It’s the Law, Stupid”, Weekly Standard, Nov. 20). Meanwhile, “[a] group with Republican links sued TV networks Tuesday and accused them of discouraging voters from going to the polls in the Florida Panhandle by erroneously projecting Al Gore would carry the state.” (“Group Sues Over Gore Projection”, AP/Washington Post, Nov. 14). “In the Stephen Sondheim song, when something bad happens in the circus, they send in the clowns. In America’s political circus, they send in the lawyers.” (Gavin Esler, “Don’t let the lawyers make a crisis out of America’s Political Drama”, The Independent (UK), Nov. 13) (cites our editor).
November 16 — Judge shopping, cont’d. U.S. International Trade Commission administrative law judge Sidney Harris has reprimanded Rambus Inc. for having abruptly withdrawn its patent violation case against Hyundai Electronics Industries Co. after it was assigned to him; the judge, who has a reputation as tough on patent-holders’ claims, concluded that the company did not want him to be the one to handle the case and had engaged in “blatant” judge shopping. The company denies the allegation. (Jack Robertson, “Rambus Slammed For ITC ‘Judge Shopping'”, Electronic Buyers News, Nov. 15; Dan Briody, “Litigation headaches send Rambus stock skidding”, RedHerring.com, Aug. 30).
November 16 — They call it distributive justice. Following the lead of numerous other overseas governments and other entities that have jumped on the tobacco-suit bandwagon in hopes of finding money, Saudi Arabia’s state-owned King Faisal Specialist Hospital says it is preparing litigation against international tobacco companies to recover the costs of treating smokers, to be filed in American courts and elsewhere. If successful, the litigation will presumably succeed in raising the price per pack paid by poverty-level smokers in Arkansas and West Virginia in order to ship the money off to that very deserving recipient, the government of Saudi Arabia. (“Saudi hospital to sue tobacco firms for $2.6 bn”, AP/Times of India, Nov. 8) (& see update, Dec. 10, 2001)
November 15 — Foreign press on election mess. “‘Got a problem? Get a lawyer’ has become a maxim of American life, whether you scald yourself with a McDonald’s coffee or lose a presidential election.” (Philip Delves Broughton, “Lawyers will be winners of contest born in Disneyworld”, Daily Telegraph (UK), Nov. 10). “The confusion over the election results has paved the way for a stealthy and rapid seizure of power in the US. The lawyers have truly taken over.” (Julian Borger, “Lawyers are back: US is on trial”, The Guardian (UK), Nov. 11). “We are not in Florida or Kansas anymore. We are in . . . Chad.” (Mark Steyn, “She held up the ballot and she saw the light”, National Post (Canada), Nov. 13).
November 15 — Beep and they’re out. DuPage County Associate Judge Edmund Bart “has taken extreme offense to Traffic Court visitors who allow cellular phones or pagers to ring when court is in session. He has dealt with them extremely — by throwing those visitors behind bars.” (“Time for Some Order from the Court” (editorial), Chicago Tribune, Nov. 11).
November 15 — “ATLA’s War Room”. Much feared by defendants, the 61 litigation groups of the Association of Trial Lawyers of America enable plaintiff’s lawyers to map out joint strategy and share in the “exchange of documents, briefs, depositions, expert testimony, and general plaintiffs’-side lore”. The groups are noted for “Kremlinesque secrecy”: “Group chairmen, for instance, are not supposed to identify themselves as such in public, and journalists can only get their names from ATLA by agreeing not to quote them as chairmen. … The association does not post the list of litigation groups on its public Web site.” However, that list includes (according to Alison Frankel of The American Lawyer): AIDS, automatic doors, bad faith insurance, benzene/leukemia, birth defects, breast cancer, casino gaming, chorionic villus sampling (CVS), computer vendor liability, firearms and ammunition, funeral services, herbicide and pesticide, inadequate security (and its subgroup, the Wal-Mart Task Force), interstate trucking, lead paint, liquor liability, nursing homes, Parlodel, pharmacy, Stadol, tabloid outrage, tap water burns, tires, truck underride, and vaccines. Recent additions include firefighter and EMS hearing loss, Allercare subgroup of herbicides and pesticides group, laser eye surgery malpractice, MTBE, Propulsid, and Rezulin. (Alison Frankel, “ATLA’s War Room”, The American Lawyer, Oct. 16).
November 14 — Columnist-fest. People writing about things other than the election mess:
* How long would Mark Twain’s Tom Sawyer last if he were growing up today? He’s the kind of boy who plays hooky from class, joins a gang and commits petty crime, enjoys violent literature (pirate stories), tortures the family cat and even smokes. “Doubtless he’d be in therapy three times a week and jacked up on Ritalin. Or — most likely — he’d be in jail.” (Alex Beam, “Tom Sawyer and the end of boyhood”, Boston Globe, Oct. 31).
* Don’t count on the black-reparations bandwagon to provide benefits over the long term to anyone but the lawyers and other middlemen in charge, argues Linda Chavez (“Johnnie Cochran plays his card”, TownHall, Nov. 8).
* The case for Paula Jones’s outraged modesty in that Arkansas hotel room is looking pretty thin now that she’s taken her clothes off for Penthouse, but what exactly did reformers think would happen once the law began to turn unsubstantiated sex stories into enormously lucrative potential claims? “Women like Jones have been lured into becoming the workplace equivalent of Third World terrorists strolling around the office with suitcase bombs.” (Sarah J. McCarthy, “The Victim in the Centerfold”, LewRockwell.com, Nov. 11).
November 14 — “Fla. DUI Teen Sues Police”. “A teen-age driver seriously injured in an accident is suing the city because a police officer failed to arrest him for drunken driving minutes before the crash.” Richard L. Garcia of Bradenton, Fla. alleges that officers told him to drive home rather than taking him into custody despite his intoxication, which makes it their fault that he got into a serious accident minutes later. (AP/Yahoo, Nov. 13).
November 14 — “Survey: Jurors Anti-Big Business”. “Potential jurors often mistrust corporations and think they must impose billions of dollars in punitive damages to send them a clear message, according to survey results released Friday.” The survey is set to appear in this week’s National Law Journal. (Reuters/CBS News, Nov. 10).
November 14 — “Internet Usage Records Accessible Under FOI Laws”. “In an opinion sure to heighten the tension between some parents and school systems over the Internet’s role in publicly financed education, a New Hampshire judge has decided that a parent is entitled to see a list of the Internet sites or addresses visited by computer users at local schools.” Unless overturned on appeal, the ruling will entitle parent James M. Knight of Exeter, N.H. to inspect the logs of general student and faculty Internet use, not just those of his own children. However, the log files will be redacted in an attempt to prevent the identification of individual user names and passwords. Knight, a proponent of filtering/blocking software, had made the request under the state open records law. (Carl S. Kaplan, “Ruling Says Parents Have Right to See List of Sites Students Visit”, New York Times, Nov. 10 (reg); Slashdot thread).
November 13 — Election hangs by a chad. Once underway in earnest, plenty of observers fear, litigation on the 2000 presidential vote will “only spawn more litigation and drag on and on, to the detriment of the political system.” (R.W. Apple Jr., “News Analysis: Experts Contend a Quick Resolution Benefits Nation and Candidates”, New York Times, Nov. 12 (reg)). With the filing of a federal court action by the Bush people to block a planned “hand recount” in Palm Beach County, the legal battling now officially involves the candidates themselves; earlier, the Gore people had been backing litigation filed in the name of Florida residents without actually filing on their own (David S. Broder and Peter Slevin, “Both Sides Increase Legal Wrangling As Florida Begins Slow Hand Count”, Washington Post, Nov. 12). “There is a well-known trick among statistical economists for biasing your data while looking honest. First, figure out which data points don’t agree with your theory. Then zealously clean up the offending data points while leaving the other data alone.” Such a bias would be introduced in the Florida vote by recounting pro-Gore counties like Palm Beach, Broward and Dade so as to validate more ballots by inferring voters’ intent, without doing the same for pro-Bush counties like Duval (Jacksonville). (Edward Glaeser, “Recount ‘Em All, or None at All”, Opinion Journal (Wall Street Journal), Nov. 11). “The leverage that the Gore camp has,” writes columnist Molly Ivins, “is an injunction to prevent certification of the Florida result until that’s settled [namely, its expected demand for a Palm Beach County revote if the pending “hand recount” doesn’t do the trick]. Without Florida, Gore wins the Electoral College.” Admittedly, however, “[a] system that managed to acquit O.J. Simpson cannot be counted upon to produce justice.” (“The right to seek justice is undeniable in Florida”, Fort Worth Star-Telegram, Nov. 11).
If you’re looking for truly ripe ballot irregularities, George Will suggests, look to the heartland: “Election Day saw Democrats briefly succeed in changing the rules during the game in Missouri: Their lawyers found a friendly court to order St. Louis polls to stay open three hours past the lawful 7 p.m. closing time. Fortunately, a higher court soon reimposed legality on the Democrats and ordered the polls closed at 7:45.” (“It All Depends on the Meaning of ‘Vote'”, New York Post, Nov. 12). A nice thing about those emergency public donation funds to hire teams of lawyers: there’s no limit on contributions and the parties will be really grateful (David Greising, “Al’s Now a Boy Named Sue, and It’s Not Helping”, Chicago Tribune, Nov. 10). Meanwhile, we note that a prominent Democratic campaign-law expert is denying that his party is “overlawyering” the Florida situation, while the New York Post‘s Rod Dreher uses another variant on the same term in discussing mistaken ballots: “Despite what some in this overlawyered culture seem to believe, the courts have no obligation to protect people from their own carelessness.” (Don Van Natta Jr. and Michael Moss, “Counting the Vote: The Nerve Center”, New York Times, Nov. 11, quoting Robert F. Bauer, no longer online; New York Post, Nov. 12).
November 13 — Vaccine compensation and its discontents. One of the more recently adopted no-fault compensation systems aimed at displacing personal injury litigation is the federal childhood vaccine compensation program, which since 1988 has paid out $315 million to some 1,445 claimants and turned away another 3,372 claimants on the grounds that they could not prove that the vaccines caused injury. The system has substantially reduced the number of lawsuits filed against makers of DPT (diphtheria, tetanus and pertussis (whooping cough)), which “dropped from 255 in 1986 to 4 in 1997”. However, the no-fault system itself partakes of some of the drawbacks of litigation, including delay and adversarialism. One thing it has succeeded in curbing, however, is jackpots for trial lawyers: “Lawyers representing claimants get paid whether a claim is successful or not, but they get closely monitored hourly rates — not the jackpots they occasionally win when they sue, say, tobacco or tire companies.” (Doug Donovan, “Needle damage”, Forbes, Sept. 4).
November 13 — Don’t give an inch. In Sunderland, England, merchant Steven Thoburn has become the first vendor to be prosecuted for sticking to English weights and measures despite an official mandate to convert to European metric alternatives. To coordinate with European Union rules, “British laws came into effect at the beginning of this year imposing fines of up to $8,000 and possible imprisonment on retailers if they refuse to adopt liters and meters.” (“Defiant Brit Vendor Taken To Court”, AP/FindLaw, Nov. 8).
November 30 — The right to be poisoned. Large numbers of urban apartments continue to have old lead-based interior paint on their walls, and you might think it makes obvious sense from a public health standpoint to take precautions to keep children who already show dangerous levels of lead in their blood from moving into such units. At least, you might think so if you weren’t among the “public interest” lawyers who’ve now successfully sued Northern Brokerage, a Baltimore landlord, over its policy of not letting lead-affected kids move into apartments where they might be exposed to more of the same. It’s a discrimination issue, you see: Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, said it’s “hugely discriminatory” to turn families away from such housing just because their kids already display high lead levels. In a settlement earlier this month, “Northern Brokerage agreed to no longer require testing for children under 6 and to pay a total of $13,000 in damages to the plaintiffs and their attorneys.” Of course, if the kids’ blood-lead levels keep rising after they move in, other lawyers might very well step forward to sue the same landlords for every last dime they possess. But that’s only fair, too, right? (John Biemer, “Landlord settles lawsuit for refusing to rent to lead-poisoned families”, AP/FindLaw, Nov. 16).
November 30 — Welcome Mother Jones readers. MoJoWire’s “Alternative Election News Coverage” summarized one of our commentaries about a Gore lawyer’s dimple flip-flop (see Nov. 24). “Not everyone is happy that it appears the next president will be chosen by what some have called a tournament of lawyers. America’s litigation explosion was itself a subtext of the campaign, critics point out. Mr. Bush has called for tort reform to limit the ability of class-action lawyers to win big judgments. Mr. Gore has adopted the traditional Democratic Party position of trial-lawyer defense.” (Peter Grier, Justin Brown and Francine Kiefer, “All Florida becomes a stage for lawyers”, Christian Science Monitor, Nov. 30 — quotes our editor). And we evidently spoke too soon when we praised a New York Times editorial on the Florida mess immediately after the election (see Nov. 10), since within days the paper had reversed its editorial line almost completely on the relevant issues (Elizabeth Arens, “Times falls back into line”, National Review Online, Nov. 28).
November 30 — Updates. Further developments in stories previously covered in this space:
* “Samuel Feldman, convicted in September for a two-year spree of bread and cookie destruction in a Yardley supermarket (see Oct. 6), was sentenced [Nov. 20] to 180 days’ probation and ordered to make $1,000 in restitution payment.” He also got a severe scolding from the judge (Oshrat Carmiel, “Bucks bread squeezer sentenced to probation”, Philadelphia Inquirer, Nov. 21).
* Falling upward in Washington state: “An assistant attorney general who lost one of the state’s largest civil cases and later shared blame for missing the deadline to appeal the case has been promoted to a new job in state government.” As we reported Sept. 13, state attorney general Christine Gregoire missed a deadline to appeal a $17.8 million verdict against the state, a goof that aroused widespread consternation in Evergreen State legal circles. Now assistant attorney general Loretta Lamb, whom an investigation saddled with some of the responsibility for the mix-up, has been appointed assistant vice president of Washington State University for personnel and business administration. (Eric Nalder, “Attorney in missed deadline case gets new job”, Seattle Times, Sept. 29).
* Although a Bridgeport jury last year gave Microsoft an almost complete victory in an antitrust suit filed by competitor Bristol Technologies (see Aug. 31, 1999), awarding only a token dollar, federal judge Janet Hall upped the award under a Connecticut trade statute to $1 million and Bristol is now asking for a new trial (Thomas Scheffey, “Connecticut Judge Socks Microsoft with $1 Million in Punitives”, Connecticut Law Tribune, Sept. 11; “What was the Microsoft Jury Thinking?”, Nov. 27).
November 29 — After an air crash, many Latin “survivors”. “Three of the 88 passengers and crew who died when Alaska Airlines Flight 261 crashed into the Pacific Ocean on Jan. 31 allegedly had something in common apart from their tragic deaths: They cheated on their partners, led secret lives and fathered secret illegitimate children, all of whom were growing up in Guatemala.” Or at least that’s the story being told by Coral Gables, Fla. lawyer Robert Parks, who’s filed wrongful-death suits against the airline, Boeing and other defendants on behalf of the alleged secret survivors. “The crash victims’ undisputed relatives and close friends say the stories have been fabricated in an effort to capitalize on the tragedy.” In one case, a 53-year-old San Francisco man who perished on the doomed flight is alleged to have recently fathered two Latin American children who deserved to collect for his decease, a story that ran into trouble when his outraged gay partner of twenty years, Dale Rettinger, 63, stepped forward to challenge it.
David Lietz, a Washington, D.C. lawyer hired by Rettinger to investigate the case, said: “We do this kind of work all the time and in the course of doing it, we’ve seen people who make their living lining up victims. It’s not uncommon to find people in Mexico or Central America who try to craft these stories and shop them around to lawyers,’ Lietz said. ‘It’s the aviation equivalent of ‘bus jumping,’ which is a bunch of people seeing a bus accident and running up to it so they can claim whiplash or something.” Many such claims come from Latin America, where “records are very bad and (false claimants) will swear under oath but say anything they want,” he added.
Families of two other victims also named as supposed secret fathers of Latin American children also reacted with indignation or incredulity. However, Parks, the Florida lawyer pressing the cases, says criticism is misplaced. “We wouldn’t have filed the lawsuits if we didn’t feel these people had claims. I don’t deal in coincidences … I’ve been involved in aviation litigation over 30 years, a lot in Central America and South America,” he said. “Sometimes in these areas, truth is stranger than fiction. … The process is going to sort this out. No one is trying to get something that isn’t there”. Parks is also preparing a claim on behalf of alleged secret offspring of yet a fourth Alaska Air crash victim, this time from a still unnamed Latin American country. (Scott Winokur, “Capitalizing On a Crash? Suits allege secret lives for some on fated Alaska Airlines flight”, San Francisco Chronicle, Nov. 26) (via Aero News Network)(and see April 10, 2001, Aug. 3, 2001) (DURABLE LINK)
November 29 — “Clinton readies avalanche of regulations” “The Clinton administration is striving mightily to pour forth regulations on the environment, labor, health care and other controversial topics before Jan. 20 brings a new occupant to the White House.” So-called midnight regulations are especially common in cases where a new party is coming in: “The Jimmy Carter administration became renowned for stuffing the Federal Register with 23,000 pages of regulations during the three months before Ronald Reagan took office in 1981.” The Mercatus Center at George Mason University has launched a website, RegRadar.com, to monitor the last-minute onslaught (Robert A. Rosenblatt and Elizabeth Shogren, L.A. Times/Chicago Tribune, Nov. 26).
November 29 — “Hush — good news on silicone”. More details on the release of that new study (see Oct. 23) exonerating breast implants of a once-feared link to cancer, which the National Cancer Institute commissioned at great expense but whose results it quietly buried: “NCI press representative Brian Vastag says he was ‘forbidden’ by his superiors from touting the impending release of this study the way he normally does with other public health research. … So Mr. Vastag, who had already announced he was leaving NCI, defied his bosses and e-mailed names in his media Rolodex. ‘It drives me crazy when tax-funded public health research doesn’t make it to the public,’ he said.” (John Meroney, Washington Times, Nov. 22).
November 28 — Highway responsibility. A Fort Lauderdale jury has awarded $7 million to Diana Mancuso, 43, who was badly hurt when her car was hit broadside by a drunk driver six years ago. The drunk driver, Shane Peter Leanna, who was 23 at the time, served nearly two years in prison. However, the ones being ordered to pay the bill are McFadden Leasing Inc., which owned the sport utility vehicle Leanna was driving, and Next Generation Inc., which leased it to him. (“Woman gets $7 million in DUI case”, AP/New York Times, Nov. 23). And last month the mother of late National Football League star Derrick Thomas went to court to blame various organizations for his death following a crash in which he had been speeding on an icy road without wearing a seat belt. The lawsuit names General Motors Corp. as a defendant as well as local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident and may now have reason to be sorry they got near him. (Cindy Lin, “Derrick Thomas (1967-2000)”, ChannelOne.com, Feb. 9; Kenny Morse, editorial, MrTraffic.com, Feb. 10; “Derrick Thomas’ mother sues GM”, Jefferson City News-Tribune, Oct. 11). Update Aug. 18, 2004: jury rejects suit against GM. (DURABLE LINK)
November 28 — “NCAA Can Be Sued Under ADA, Federal District Judge Rules”. “In a major defeat for the National Collegiate Athletic Association, a federal judge has ruled that it qualifies as a “place of public accommodation” under the Americans with Disabilities Act and can therefore be sued by a learning-disabled student who says its discriminatory rules barred him from getting an athletic scholarship.” (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Nov. 14).
November 28 — Federal power over mud puddles? The Supreme Court is expected to resolve this term whether the federal Clean Water Act applies to “isolated wetlands that have no connection to major rivers or drainage systems flowing from state to state.” Environmental groups favor wide federal authority over “prairie potholes” and the like, which they say are important to migratory waterfowl. A brief supporting property owners, however, counters: “Under the Corps’ [of Engineers] interpretation of the [Act], its regulatory authority stretches to virtually every body of water in the country — including seasonally wet areas in homeowners’ backyards — because virtually any water body is or could be used as a feeding or resting place by some of the 5 billion birds that migrate over the continental United States each year.” The brief also warns: “The Corps’ rationale would justify federal regulation not just of all waters but of virtually all human activity.” (Warren Richey, “Wetlands and federal power”, Christian Science Monitor, Oct. 31).
November 27 — Follow instructions, please. Well before Election Day, the Gore campaign was ready for a massive recount campaign based on a 1994 manual called The Recount Primer, whose tactical advice presciently foreshadows many recent developments (Ryan Lizza, “Overtime: How the Gore campaign came back from the dead”, The New Republic Online, Nov. 16).
“Note: If you make a mistake, return your ballot card and obtain another. AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. –Voting instructions, Palm Beach County, Florida”
“The capitalized words appeared on the voting guide clearly posted in every Florida polling station that used Votomatic machines and in leaflets mailed to many voters in Palm Beach. They are the only instructions on the flyer in bold capitals. … The [Gore] position, so far as I can glean, is that … [a] vote should be counted … even if the voter blithely ignores clear voting instructions” … A Gore victory through judicially imposed, loosely interpreted hand counts in South Florida will resonate across the country as the triumph of a liberalism that has replaced responsibility with victimhood, law with legalism, character with partisanship. Rather than challenging voters to a new civic responsibility, the Democrats are defining down democracy to include those who cannot even be held responsible for following a simple ballot instruction.” (Andrew Sullivan, “TRB from Washington: Bad Intent”, The New Republic Online, Nov. 22; see also commentaries on andrewsullivan.com, and Charles Krauthammer, “There is a good reason that casting a ballot is a precise act”, Dallas Morning News, Nov. 24). “[I]t is the voter’s duty to take reasonable care to record a vote. To correct that judgment after the fact is unfair.” (“Dimples aren’t votes” (editorial), Miami Herald, Nov. 24).
November 27 — Asbestos litigation destroying more companies. The lawsuits’ relentless logic is devouring more leading industrial companies. Armstrong World Industries, the nation’s pre-eminent manufacturer of flooring, failed to repay $50 million in commercial paper that came due Wednesday (Reuters/Yahoo, Nov. 22), and a Nov. 16 Bloomberg story said its parent, Armstrong Holdings Inc., may seek Chapter 11 bankruptcy protection. The company’s stock, which stood at $36 in January, on Friday closed at 1 3/16 (stock chart). In early October (see Oct. 6-9) Owens-Corning, the number one maker of insulation, filed for bankruptcy protection (asbestos product makers list, law firm of Patten, Wornom, Hatten & Diamonstein).
Many of these concerns’ involvement with asbestos was both remote in time and tangential to their main operations. Of Crown Cork & Seal, the large packaging concern that closed Friday at 4 5/8, down from 24 in January and 50 in 1997, Yahoo/Reuters reported as follows: “Its only ties to asbestos-related products stem from an acquisition more than 40 years ago of a company that had a subsidiary that made insulation products, said Andrew O’Conor, an analyst with Merrill Lynch. It sold the insulation business three months after acquiring it, he said. ‘They’re more of a peripheral player,’ O’Conor said. ‘It was a tiny thing.'” (stock chart; “Crown Cork jumps on reevaluation of asbestos claims”, Yahoo/Reuters, Nov. 20). For trial lawyers’ ingenuity in identifying new defendants to name in suits, see June 1 and “Thanks for the Memories“.
Each removal of another solvent defendant shifts more litigation pressure onto remaining defendants. Owens-Illinois, the prominent glass and packaging concern, closed Friday at 3 13/16, down from 25 in January and 48 in 1998 (stock chart). Federal-Mogul (brakes, auto parts) closed at 2, down from 24 in January and 70 in 1998 (stock chart). W.R. Grace, the giant chemicals manufacturer much in the news lately because of the contamination of its Montana vermiculite mining operations with naturally occurring asbestos, closed Friday at 2 1/2, down from 15 in January and more than 20 earlier. (stock chart). Investment analyst Jim Cramer wrote last month that Armstrong, Federal-Mogul, and Grace, all longtime mainstays of industrial portfolios, now find themselves “on a death march to zero … I am combing through this embattled trio looking for signs that they won’t meet Owens’ fate. I haven’t found any yet.” (James J. Cramer, “The Death of the Value Stalwarts”, TheStreet.com, Oct. 25). Of the billions sunk in the litigation, a very high percentage goes toward the process itself, or other purposes other than actual compensation of workers for injuries. Meanwhile, intensive advertising and recruitment campaigns by law firms continue to attract thousands of new asymptomatic claimants into the system, while asbestos plaintiff’s lawyers are numbered prominently among instigators of the “tobacco round” as well as among the most prominent financial supporters of the Democratic Party and the Al Gore campaign. (DURABLE LINK)
November 26 — Sunday election special: votes only lawyers can see. “He squinted and stared, but Bob Kerrey was blind to the party line.” The Nebraska senator was making the South Florida rounds to talk up the Democratic line on the virtues of hand recounts and patience, but when he squinted at a ballot allegedly sporting an actual “dimpled chad” of the sort his fellow Democrats want to count, Kerrey admitted he couldn’t see it. “‘I better get out of here before I get you guys in trouble,’ Kerrey reportedly joked to his party’s team. But senator, isn’t it a little scary to decide an election with votes that only lawyers can see?” (Brad Hahn, “Nebraska senator sees sights — but can’t see chads”, South Florida Sun-Sentinel, Nov. 25; Drudge Report transcript of Broward dimple-asserting). “On my local television station, the latest update was followed by the reassuringly familiar commercial for personal-injury lawyers Welch, Graham and Manby — ‘where winning is no accident’. That’s the spirit!” (Mark Steyn, “Even Al’s friends are sick of his dimples”, Sunday Telegraph (UK), Nov. 26).
On Saturday, the Broward County Election Canvassing Board conveniently decided to go looking for dimpled chads on 500 previously disqualified absentee ballots, even though on an absentee ballot the “voter can clearly see how he voted and whether the chad fell out, unlike the Votamatic machines used at polling places in Broward.” Did demonstrators, as Democrats claim, “intimidate[ ] the Miami-Dade canvassing board into canceling its planned recount [?]. Nonsense, say board members. ‘I was not intimidated,’ David Leahy told CNN. ‘My vote had nothing to do with the protests. It simply had to do with not enough time.'” (John Fund, “Gore’s Electoral ‘Lock Box'”, Opinion Journal (WSJ), Nov. 25).
“Vice President Gore’s effort to convince Florida election officials to count indented or ‘dimpled’ ballots as votes for him runs contrary to the practice in almost all jurisdictions that use the punch card system, with the notable exception of Texas, the home state of George W. Bush, his rival for the presidency. In the 38-year history of punch card voting, only a small number of communities have counted these ballots as valid, voting experts said. R. Doug Lewis, executive director of the Election Center, a nonpartisan group that trains and certifies election supervisors, said that to his knowledge, with the exception of Texas, ‘no election official has counted a dimpled chad as a vote. Instead they tend to turn the question over to a judge, and historically courts around the country have said dimpled chads aren’t clear enough for them,’ Lewis said, stressing that he is not referring to Florida.” (John Mintz, “Most states don’t count dimples”, Washington Post, Nov. 24). Despite the Florida Supreme Court’s wholesale rewrite of the state’s election law after the fact, “it is still possible that the will of the people will prevail. … Broward County has for 10 years refused to count ‘dimpled chad’ as a vote. Now, it has changed that rule. … It may become necessary for [the Florida legislature] to exercise its responsibility and ensure a fair outcome to the presidential election of 2000.” (“Elections: A grand larceny” (editorial), Florida Times-Union (Jacksonville), Nov. 24).
“Today, the courts — that is, the lawyers – run nearly every aspect of American life. … They tell us how much tobacco is appropriate. Who may buy and sell guns — and how. What level of care governments must provide the needy. They set taxes and school curricula. Now they mean to pick a president.” (“Government by lawyers” (editorial), New York Post, Nov. 24 — cites our editor). “Where has abandoning law and tradition left us? Courts have put the fate of the election in the hands of Democratic partisans reviewing pregnant chads only in Gore’s strongholds. … Is it any wonder that the rest of the world is laughing at us?” (“Comedy of errors of the lowest sort” (editorial), Chicago Sun-Times, Nov. 24).
November 24-26 — Gore lawyers mishandled Illinois precedent. Lawyers for Vice President Al Gore repeatedly cited, and the Florida Supreme Court obligingly quoted at length and with approval, an Illinois Supreme Court opinion from 1990 which directed election officials to consider voters’ intent, which the Gore team suggested provided a rationale for counting punchcard ballots with the now-fabled “dimpled chad”. But in fact “the Illinois court actually affirmed a trial judge’s order to exclude dented ballots,” and a Cook County attorney who provided the Gore effort with an affidavit to the contrary last week now concedes that his recollection was mistaken (Jan Crawford Greenburg and Dan Mihalopoulos, “Illinois case offers shaky precedent”, Chicago Tribune, Nov. 23). “Doesn’t [Gore attorney David] Boies now have a professional obligation to inform the courts and others of his error?,” asks Mickey Kaus (“Hit Parade”, Kausfiles.com)
The generally liberal Miami Herald, which endorsed Gore in the election, editorializes that the Florida high court “made hash of Florida’s election law” and agrees with Gov. George W. Bush’s charge that the court “has changed the rules after the election”. It cites “the court’s unseemly willingness to stand in for the Legislature and create a new election scheme … by deciding that the counts could continue until as late as Monday morning, the justices have substituted their own deadlines for those that have long existed in state law and that Secretary [of State Katherine] Harris was sworn to uphold.” (“A muddled ruling raises questions of fairness” (editorial), Miami Herald, Nov. 23). On the New York Times op-ed page, New Republic legal affairs correspondent Jeffrey Rosen calls the Florida court’s rewrite of state election law “a bold example of judicial activism” in which the court “vastly overplayed its hand” and which “has made the justices appear to be partisans rather than neutral arbiters”. Rosen says the ruling allows Republicans to “argue plausibly that activist Democratic judges changed the counting rules in the middle of the game, only after it was obvious that the Democratic candidate needed dimpled ballots to win”. (“Florida’s Justices Pushed Too Far”, Nov. 23).
November 24-26 — “Qwest ordered to pay AT&T $350 million”. A Travis County, Texas jury has voted $1.2 million in actual damages and $350 million in punitive damages against telecommunications carrier Qwest for negligently cutting an AT&T fiber-optic phone line on several occasions in 1997. “It’s not unique that a fiber line gets cut. It’s unique it gets to [a] jury and gets this far down the road,” an investment analyst told the Austin American-Statesman. “We tried to send a message,” said a juror, as usual. “The only way to do that was to make the stockholders feel it in the bottom line.” (AP/CNet, Nov. 15).
November 24-26 — “Company Is Told to Stay and Face New Union”. A Los Angeles federal judge, “acting on a union’s complaint, has … issued a preliminary injunction preventing Quadrtech, a small manufacturer of earrings and ear-piercing machines, from laying off 118 newly unionized workers and moving its manufacturing operations to Tijuana until labor complaints against it are resolved. … Lawyers at the National Labor Relations Board, which petitioned the court on behalf of the workers, said this was the first time an American company trying to keep out a union had been prevented from leaving the United States.” (Anthony DePalma, New York Times, Nov. 23).
November 22-23 — “Gore’s point man argued against dimples in 1996”. Attorney Dennis Newman of Boston is now the point man in charge of putting Al Gore in the White House by insisting that “dimples show the true intent of the voter. Voters caused those dimples. Dimples should count. Four years ago, in a similar election spat, Newman took a much different stand. Employing his best legal tactics on behalf of a Democrat holding a slight lead in a primary race for Congress, Newman scoffed at the idea of counting the tiny indentations as votes.” Back in that case, Newman endorsed the series of propositions now urged by Republicans about the tiny indentations: that they could have been inflicted by later handling, that they could represent hesitation marks (the kind coroners find on suicides — ed.), and so forth. (Joel Engelhardt, Palm Beach Post, Nov. 22). Although the press has widely echoed the assertion of Gore attorneys that federal courts stay out of state electoral disputes — even, purportedly, when the elections are for federal offices such as president — Alabama Attorney General Bill Pryor argues that there is squarely opposed precedent to the contrary in the Eleventh Circuit, which includes both Alabama and Florida. In Roe v. Alabama (1995), the Eleventh Circuit found a federal constitutional violation in state balloting irregularities that accompanied a very close race, including a court order which appeared to change the rules after the election as to which votes would count. Moreover, the federal court intervened in Roe even though the election was for Alabama state office, not federal office (“Attorney General Bill Pryor and Secretary of State Jim Bennett File Friend of the Court Brief in Presidential Election Dispute”, Office of the Alabama Attorney General, Nov. 20, links to PDF document). (DURABLE LINK)
November 22-23 — “Descent into the lawyerclysm”. Humorix, the Linux-oriented parody site, takes off from the Florida election mess to imagine the lawsuit-ridden dystopia of the not too distant future: “Nuclear weapons are scrapped and replaced by subpoenas. … While most forms of physical violence ceases, the ensuing legal violence is far, far worse — a fleet of lawyers can bring poverty and bankruptcy to billions of innocent civilians within a matter of hours. Stage 6. World economy collapses under the weight of overlawyering.” (Jon Splatz, Nov. 19).
November 22-23 — Don’t do it, Tillie! Tillie Tooter, 84, gained national attention in August when she survived for three days trapped in her wrecked car, which had gone over a Florida interstate highway abutment; she “survived by capturing rainwater in a steering wheel cover and divvying up a stick of gum, a cough drop and a mint.” Now a lawyer is representing her and has “put her rescuers on notice that she intends to sue them for not finding her sooner”. Jim Romenesko at Obscure Store has some advice for her: you’re an old lady, you really don’t want to spend your remaining days hanging around lawyers and courtrooms. (Jodie Needle, “Tillie Tooter to sue Lauderdale, FHP for not finding her sooner in wreck”, Fort Lauderdale Sun-Sentinel, Nov. 16).
November 22-23 — France OKs wrongful-birth suit. “A severely disabled French boy has won a landmark case against medical authorities for allowing him to be born rather than aborted.” Josette and Christian Perruche sued doctors for negligently failing to realize that Josette had contracted rubella (German measles) during her pregnancy; their son Nicolas was born deaf, part-blind and with mental disabilities as a result. “Would my son really have wanted to live if he’d known he had all these disabilities?” asked Christian. “That’s the question I’m posing.” (“Boy compensated for being born”, BBC, Nov. 17).
November 22-23 — “eBay suit wins class-action status”. San Diego Superior Court Judge Linda B. Quinn has granted class-action status to a suit against eBay that “alleges the largest Internet auction company is liable for facilitating the sale of fake sports memorabilia”. (“eBay suit wins class-action status”, Bloomberg News/CNet, Nov. 19) “If successful, the suit could undermine eBay’s business model,” the Industry Standard reported earlier this year (see July 13). “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Also earlier this year four New Jersey teens “were treated for vomiting and disorientation after taking a substance called dextromethorphan, or DXM”, which one of them had bought on the online flea market. (Mylene Mangalindan, “Is eBay Liable in Drug Sale?”, WSJ Interactive/ZDNet, May 31)(see letter, Jan. 16).
November 22-23 — Canada reins in expert witnesses. “The Supreme Court of Canada accelerated its campaign against doubtful expert witnesses [Nov. 9], ruling that ‘novel scientific evidence’ from a Quebec sexologist had no place in a criminal trial.” Like the U.S. Supreme Court in its landmark 1994 Daubert decision, the Canadian high court urges judges to take responsibility as “gatekeepers” to exclude dubious testimony. (Kirk Makin, “Top court reins in use of experts”, The Globe and Mail (Toronto), Nov. 10).
November 21 — The O.J. trial of politics. By early in the morning after the long election night, “the phones began ringing at the 16-lawyer West Palm Beach personal injury firm Lytal, Reiter, Clark, Fountain & Williams, which claims credit for 22 multimillion-dollar verdicts and settlements. Local Democratic staffers had used the firm’s conference room to make get-out-the-vote calls on Election Day, and the phones were still there.” (Peter Aronson, “Lawyers take center stage”, National Law Journal, Nov. 20). “This is the O.J. trial of politics,” the Boston Globe quotes GOP lawyer Tom Rath as saying, while the Wall Street Journal reports that clients in high-profile cases turn to attorney David Boies “as much to signal a declaration of war as anything else.” (Both quoted in Deborah Asbrand, “David Boies Rides Again”, Industry Standard/Law.com, Nov. 17). It’s a class action suit with the presidency rather than the coffers of the tobacco or gun industries as the target, argues the Wall Street Journal‘s editorial side (“Al Gore’s Class-Action”, Nov. 17). When Gore brings out the lawyers by the hundreds to help him, he’s bringing out his base (Rich Lowry, “Lawyers: The Gore Hard Core”, New York Post/National Review Online, Nov. 20).
November 21 — Burglar sues for compensation. In Australia, “[a] man who broke into a house and attacked the home owner when he was discovered has launched a civil action against his victim for compensation.” Shane Colburn says he is still suffering “physically and emotionally” from the aftermath of the 1997 incident, in which he scuffled with Peter Vucetic and Giavanna Grah and was attacked by the couple’s dogs. (“The thief who sued his victim”, Daily Telegraph (NSW, Australia), Nov. 17).
November 21 —Behind “Boston Public”. “[David E.] Kelley, an ex-lawyer [and creator of hit TV show Ally McBeal and the new Boston Public], has made this subject [overregulation] the obsession of every TV show he has written. Whenever teachers or administrators try to help or discipline students, they immediately butt up against their or their bosses’ anxiety about litigation. The worst, in Kelley’s book, are sexual harassment laws, which he started railing about in Ally McBeal long before Monica Lewinsky got down on her knees. But there are also digs at anti-discrimination laws and an episode about a degrading school board regulation that requires all teachers to submit to thumb printing since they work with children. . . . people who should be looked up to and supported are met instead by automatic suspicion.
“So what’s the parallel between Boston Public and the current crisis? That you can’t educate children, just as you can’t run a country, in an atmosphere of rancor and litigiousness, when the people who are supposed to be in charge are dismissed in a knee-jerk fashion as corrupt and illegitimate by the people they’re supposed to be governing.” (Judith Shulevitz, “Culturebox: The Ungovernable Boston Public”, Slate, Nov. 10; “Public-School Teachers, Those Ink-Stained Wretches”, Nov. 14 (more on teacher fingerprinting)).
November 21 — Reckless skier convicted. Nathan Hall has been convicted of criminally negligent homicide in the case arising from his fatal collision with another skier three years ago on the slopes at Vail, Colo. (see Sept. 25-26) (Steve Lipsher, “Skier verdict closes chapter”, Denver Post, Nov. 18; “Ski Racer Convicted in Homicide”, AP/FindLaw, Nov. 17).