Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2003

Commentary-fest

More good opinionated reads:

* Author Philip K. Howard, writing last week in the Wall Street Journal on the celebrated decision by the Appellate Committee of Britain’s House of Lords in Tomlinson v. Congleton Borough Council, discussed earlier in this space Aug. 11 and Oct. 3 (“When Judges Won’t Judge”, Oct. 22, reprinted at Common Good);

* Also in the Wall Street Journal (OpinionJournal, Oct. 27), editor Robert Bartley on the vindication of his editorial page in its criticism of hysterical media fads over supposed epidemics of sex abuse at nursery schools (see May 8, 2003, Sept. 4-6, 1999) and autoimmune disease from silicone breast implants;

* Clint Bolick, vice president of the Institute for Justice, strongly supports the nomination of the “strikingly libertarian” California Supreme Court Justice Janice Brown to the D.C. Circuit (“Good judge”, Reason Online, Oct. 27; more on the nomination from David Bernstein, Lawrence Solum).

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Fast. fast, fast relief from forum-shopping

In Philadelphia, Common Pleas Judge Norman Ackerman “has begun tossing out lawsuits by people who said they suffered strokes after taking Alka-Seltzer Plus Cold medicine, saying the claims should be dealt with in other states. … ‘Most of those cases, like this one, involve out-of-state plaintiffs who chose to file (in Philadelphia) for no apparent reason other than the fact that their attorneys have their offices here,’ Ackerman wrote in the case of Larry Hunter, of Seattle.” (Another apparent reason might be the city’s famously generous juries.) For background on suits blaming phenylpropanolamine (PPA) for strokes, see Apr. 6-8, 2001. (“Alka-Seltzer Suit Thrown Out”, WPVI.com, Oct. 1). More: May 1, 2004, Jan. 21, 2006 (further setbacks to litigation)

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Slower saint-making

“If canonization of Australia’s Mary MacKillop, who died in 1909, is taking a relatively long time, compared to that of Mother Teresa, six years dead, part of the reason is that Indians are less litigious.” Among legal fears that might slow down the process at various stages: “A doctor who treated an individual might be miffed by claims that the cure had no medical explanation. There is also privacy legislation, which might be referred to by relatives objecting to church investigators nosing into the departed one’s affairs. … According to Sister Maria Casey, who is handling the processing of Mother Mackillop, ‘it is not very easy these days because of threats of litigation'”. (Malcolm Brown, “Saint? Call the lawyers”, Melbourne Age, Oct. 27; longer version, Sydney Morning Herald) (& welcome Eugene Volokh readers; he says nice things about us)(& welcome Carnival of the Capitalists readers).

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Overcriminalized.com

Not related to this website despite its name, Overcriminalized.com is a new site from the Heritage Foundation “devoted to challenging and ultimately reversing the harmful trend by government to criminalize more and more ordinary activities.” Among the case histories presented: Palo Alto v. Leibrand, in which a 61-year-old homeowner was fingerprinted and booked (complete with mug shot) on charges of letting the street-side xylosma bushes near her bungalow grow more than two feet high (her site); and cases of alleged federal overzealousness in enforcing the False Claims Act (U.S. v. Krizek, alleged overbilling by psychotherapist); and environmental law (Hansen v. U.S., manager of bankrupt chemical plant sentenced to 46 months despite critics’ questions as to both mens rea and his practical capability to rectify the various violations). For a sampling of similar themes aired on this site, see Aug. 6 (drowsy driving), Jul. 22 (corporation’s vicarious criminal liability for acts of employees and agents), Jul. 14 (U.K. seaweed-picking); May 14 (sexual harassment); Aug. 3-5, 2001 (cloned human cells); Dec. 8-10, 2000 (gun sale); Oct. 20-22, 2000 (product liability); May 18-21, 2000 (public morality laws) and Dec. 20 and Aug. 2, 1999 (injury to animals). Plus: Tim Sandefur (Oct. 28) has more, including pointers to an earlier Heritage memo on the subject (Paul Rosenzweig, “The Over-Criminalization of Social and Economic Conduct”, Apr. 17) and commentaries by Tyler Cowen (Oct. 21) and himself (Oct. 16).

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Fear of litigious diploma mills, cont’d

“Under pressure from administrators at the University of Illinois at Urbana-Champaign, [tenured physics professor George Gollin] has shut down a Web site he created to make information available about the unaccredited distance-learning institutions often referred to as ‘diploma mills.'” (Andrea L. Foster, “U. of Illinois Administrators Ask Professor to Remove Web Site About Diploma Mills”, Chronicle of Higher Education, Oct. 13; “Cracking Down on Diploma Mills”, CBS News, Jul. 25). Some of the alleged diploma mills cited by Gollin had threatened to sue the university, and Eugene Volokh (Oct. 25) finds it a fair inference that fear of litigation contributed to university administrators’ wish to be rid of the site. However, the state of Oregon accreditation office soon agreed to put up Prof. Gollin’s material on its own site (Office of Degree Authorization). On earlier suits and threatened suits by these enterprises, see our Apr. 28-20, 2000 entry.

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Santa Monica blamed for Farmers Market deaths

“It was a tragedy in July when 86-year-old George Russell Weller drove his car through several barricades into a crowded farmers market in Santa Monica, killing 10 people and injuring dozens. … Since they can’t target Mr. Weller profitably, accident victims have already filed five lawsuits against the city of Santa Monica, which has much deeper pockets. … according to some of the victims, the city contributed to the crime by not erecting stronger barricades or otherwise doing more to prevent a man from driving into a crowd of people.” Mentions this site (Adam Summers, “Extracting Cash from Calamity”, Orange County Register/Reason Public Policy Institute, Oct. 23).

Bin Laden’s gift to lawyers

“Say what you like about Osama bin Laden. He’s done wonders for the defamation bar,” says a British barrister. A group of wealthy Saudi businessmen are engaging in “libel tourism,” suing in British courts to silence American critics. British libel law, unburdened by the First Amendment, puts the burden on defendants to prove that their stories are true; the threat of libel suits often acts to deter journalistic inquiries, but now suits are being aimed at American publishers. The Wall Street Journal faces two lawsuits for a February 2002 report on Saudi support for terror that was reprinted in its European edition. (Michael Isikoff & Mark Hosenball, “Libel Tourism”, Newsweek Web, Oct. 22). (via Postrel)

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Update: Calif. business groups launch s. 17200 initiative

As predicted in this space (Sept. 29), a California business coalition which includes the state Chamber of Commerce, auto dealers and the Civil Justice Association of California has launched an initiative drive aimed at curbing lawsuits under s. 17200, the state’s bizarrely broad consumer-protection statute. (see Oct. 2, Aug. 27 and links from there). The coalition “expects to spend $1 million to $2 million to collect signatures to put the initiative on the November 2004 ballot. … Under the initiative, private attorneys or individuals would no longer be able to file a lawsuit without a specific victim or evidence of harm or financial loss. … The right to sue on half of the public would rest with the attorney general, county district attorneys and other local prosecutors.” (Gilbert Chan, “Ballot drive targets lawsuits”, Sacramento Bee, Oct. 23). More: Law.com coverage (Jeff Chorney, “Tort Reformers Want Voters to Remake Calif. Unfair Competition Law”, The Recorder, Oct. 27)

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“Court overturns damages award for van full of mice”

“Boise attorney Gale Merrick, who represented the automaker, said the Supreme Court ruling reinforced the company?s contention that there was no evidence that mice got into the van because of some manufacturing defect. ‘They could have left the windows down or a door open,’ Merrick said.” An Idaho jury had held Honda liable for $10,250 because of the smell of mouse droppings in the vehicle. (Idaho Statesman, Oct. 24; Powers v. American Honda Motor Co.; “Of mice and men: Honda damages are overturned”, AP, Oct. 23; see also Julie Pence, “Mouse tales … Little critters can cause problems in your car”, Twin Falls Times-News Online, Oct. 24 for a story about the problems of mice in cars in the area).

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“Court Warns of Campus ‘Police State'”

An Orange County public school teacher was eventually convicted of having an affair with a 13-year-old student. The parents sued the school district for failing to detect the molestation and won a $640,000 award. The school district protested that the affair was kept secret by both parties, and they had no way to prevent it. The California Court of Appeals reversed on the grounds that the consequences of a decision of liability would force the school district to take counterproductive behavior. “According to the court’s opinion: ‘Under our facts here, a policy of prevention of this sort of harm would require turning the culture at every high school in the district into a virtual police state.'” (David Reyes, L.A. Times, Oct. 25; Bob Egelko, “Court overturns damages for parents of abused pupil”, San Francisco Chronicle, Oct. 24; Stephen F. v. Anaheim Union School Dist.). (via Bashman)

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