Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2004

Religious vilification laws

In 2001, despite alarms from free-speech advocates, the Australian state of Victoria enacted a “‘Racial and Religious Toleration Act” which provides in part:

(1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Now various religious enthusiasts are in court accusing each other of false teachings, and inevitably so, since some faiths 1) hold proselytizing to be an obligation of believers and 2) hold it to be an essential part of this task to argue to potential converts that there is something seriously wrong with or deficient about other faiths. “Amir Butler, executive director of the Australian Muslim Public Affairs Committee, wrote: ‘All these anti-vilification laws have achieved is to provide a legalistic weapon by which religious groups can silence their ideological opponents, rather than engaging in debate and discussion. …Who, after all, would give credence to a religion that appears so fragile it can only exist if protected by a bodyguard of lawyers?'” (Neil Addison, “Divided before the law”, Nov. 17). U.K. home secretary David Blunkett has proposed similar legislation; see Jul. 16. (Reworded Jan. 17 to reflect a reader’s objection; see letter to the editor of that date).

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Holiday-dinner-table obesity roundup

The Centers for Disease Control admitted last week that a much-touted estimate of enormous mortality rates resulting from increasing obesity in America was wrong and arose from incorrect methodology; it promises a revised and lower estimate (Gina Kolata, “Data on Deaths From Obesity Is Inflated, U.S. Agency Says”, New York Times, Nov. 24; Radley Balko, Nov. 24; Jacob Sullum, Reason “Hit and Run”, Nov. 24; Jim Copland, PointOfLaw, Nov. 24 and Nov. 30). The National Institutes of Health’s body mass index is also falling into disrepute for overrating the incidence of obesity (Gina Kolata, “Tell the Truth: Does This Index Make Me Look Fat?”, New York Times, Nov. 28)(see Apr. 29-30, 2002).

As for lawsuits, the scary Public Health Advocacy Institute, where trial lawyers meet dietitians, held its second annual conference in September, with opening remarks by Sen. Tom Harkin (D-Iowa) (Marguerite Higgins, “Anti-obesity group mulls swell in suits”, Washington Times, Sept. 19; “Lawyers see obese U.S. ripe for fat lawsuits”, Sept. 20; Center for Consumer Freedom, “Looking For Lawsuits In All The Wrong Places”, Sept. 24). The food-industry-defense Center for Consumer Freedom (“Don’t Sue the Hand That Feeds You”) has prepared a “Thanksgiving Guest Liability and Indemnification Agreement” (PDF) (via LawfulGal, Nov. 25) and has also (Sept. 27) compiled a list of the “Ten Dumbest Food Cop Ideas” of the year. These include law prof John Banzhaf’s proposals for suing parents of obese children and doctors who fail to warn their obese patients against overeating; Texas officials’ edict against schoolkids’ sharing of snacks; and a proposal by the New Zealand health minister to apply age restrictions, in the manner of carding for alcohol and tobacco purchases, to keep kids from buying hamburgers, pie and candy. A Deloitte consumer opinion survey (“The Weight Debate”, last updated Jul. 14) finds the public overwhelmingly opposed to lawsuits against restaurants.

Read On…

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Guestblogging opportunities

We’ve had numerous guestbloggers on the site during the past year and a half — and we’re expecting some of them back for return engagements — but it’s also time to renew the call for volunteers. The likeliest candidates are those who have a track record of at least somewhat relevant writing, either at another blog or in scholarly, professional or journalistic outlets. To nominate yourself, just drop me a line at editor – at- thisdomainname – dot – com.

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He’s a therapy dog, Your Honor

That California trend (Oct. 25) toward getting a doctor’s note that characterizes a dog or other animal as a therapeutic “assistance pet”, entitled under disabled-rights law to be taken practically anyplace regardless of the wishes of shop owners or landlords, isn’t just in California anymore. Cases are cropping up in New York too, it seems. (Mark Fass, “Dog-as-Therapy Argument Doesn’t Sit Well With Judge”, New York Law Journal, Nov. 18).

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Left, right and center together

A correspondent on Andrew Sullivan’s letters page, unnamed as is the practice there, thinks the new Pixar animation “The Incredibles” (Feb. 24, Oct. 25, and, yes, I saw and liked it) might point the way to fruitful dialogue between those who deplore the litigation culture generally and those outraged at big business’s overuse of aggressive litigation tactics in areas like Linux, trademark and file-sharing contexts (Nov. 23).

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“Who needs a bad teacher when you can get a worse judge?”

The Economist (Nov. 25) on the paralysis of our schools, with special reference to the legal consent decrees that tie up public education in New York City (via Right Coast). And as Jim Copland reports at Point of Law (Nov. 29), “Over at Phil Howard’s Common Good, they have collected all the laws and regulations governing a typical public high school in New York City. On their new website, ‘Over Ruled,’ you can access explanations and commentary by type of regulation as well as follow interactive flow charts explaining the labyrinthine process for, e.g., suspending a student.”

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Medical Protective

One company that sells medical malpractice insurance — Medical Protective, owned by General Electric — angling for a rate increase in Texas, recently claimed to regulators that it didn’t expect to save much money from the state’s recently enacted liability caps. Trial lawyer allies of course immediately ran to the press claiming this proves something or other (though what it most obviously proves is that some companies have an incentive to poor-mouth their future expectations, especially when angling for rate increases). Other medical insurers have cut rates in Texas or announced plans to re-enter the state. MedPundit Sydney Smith tries to sort things out (Nov. 26). More: see Point of Law, Mar. 2, 2005.

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Supported by a Reid

New Senate Minority Leader Harry Reid (D-Nevada) is sounding conciliatory toward the Republican majority on some issues, but not on litigation reform, where he’s hinting at a Daschle-like line of hard-core resistance. Reid appears to have plenty of friends in the Litigation Lobby: OpenSecrets.org reports that of his top seven contributors, five are casino companies that operate in his home state of Nevada, while the other two are plaintiffs’ law firms SimmonsCooper (Madison County, Ill.) and Baron & Budd (Dallas) (more). The increasingly invaluable Madison County Record has more, quoting unnamed sources who tell it that Reid “has long been a regular on the SimmonsCooper corporate jet”. (“Follow the Leader: East Alton Clout”, Nov. 21). Update Dec. 7: more on Madison County Record.

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PETA wields s. 17200

One of the most justly unpopular of animal-rights groups is hoping to exploit the speech-suppressing potential of the California law invoked in Nike v. Kasky: “People for the Ethical Treatment of Animals Inc. accused the California Milk Advisory Board of violating the state’s unfair competition law by portraying an idyllic lifestyle for California dairy cows while knowing they endure a “harsh, uncomfortable and often painful existence.” The group is appealing a San Francisco judge’s ruling that the law’s false-advertising provisions cannot be invoked against a governmental entity such as the milk board. (Mike McKee, “PETA Cries Over Cow-Filled Milk Board Ads”, The Recorder, Nov. 18). For more on Nike v. Kasky, see Jul. 1, Jul. 9, Sept. 14, 2003. (Update Jan. 16, 2005: appeals court rules against PETA.)

Read On…

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