Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for October, 2005

Toronto schools: Halloween insensitive to witches

From the National Post (Nicholas Kohler, “School board cautions against offending Wiccans”, Oct. 27)(via Stuttaford):

Teachers should forego traditional classroom Halloween celebrations because they are disrespectful of Wiccans and may cause some children to feel excluded, says a Toronto District School Board memo sent to principals and teachers this week.

“Many recently arrived students in our schools share absolutely none of the background cultural knowledge that is necessary to view ‘trick or treating,’ the commercialization of death, the Christian sexist demonization of pagan religious beliefs, as ‘fun,’ ” says the memo.

Showing more common sense than the school board, an actual Wiccan priestess interviewed by the newspaper, Nicole Cooper, said she didn’t feel threatened by costumes or trick-or-treating: “If I had children I wouldn’t deprive them of that — it’s a really fun thing to do. It’s engaging in the spirit of the season; it’s exciting for kids,” she said.

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Seriously Bad Elf beer

The Ridgeway Brewery in England brews a bitter winter ale which it calls Seriously Bad Elf, complete with a drawing of a gnomic figure on the label. Now officials in Connecticut, including Attorney General and bete-noire-of-this-site Richard Blumenthal, have banned imports of the ale on the grounds that an elf drawing might entice minors to drink the beer. (“‘Seriously Bad Elf’ Beer Banned In CT”, CBS4Boston, Oct. 28; “Connecticut looks to ban British beer with elf label”, AP/USA Today, Oct. 29).

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“If you say so, then fine with me”

Tales of the expert witness biz: Australian lawyers in an copyright infringement case, acting on behalf of the makers of the Kazaa file-sharing program, ran into trouble when the expert witness they’d hired, Keith Ross of Polytechnic U. in New York, was revealed as perhaps a bit too agreeable to their interests for their own good. “Evidence tendered showed that Professor Ross admitted he had not tested propositions Clayton Utz’s solicitors had inserted in his draft report, but accepted them anyway.” A judge discounted Ross’s testimony with scathing remarks; the law firm insists it never intended to put words in his mouth. And:

[New South Wales] Legal Services Commissioner Steve Mark said solicitors often put pressure on witnesses to come up with a particular result, and his office took a firm stand on lawyers who coached witnesses or attempted to influence their findings.

“A lawyer’s primary duty is to the court,” he said.

(Garth Montgomery, “Music copyright facts fine-tuned”, The Australian, Sept. 9).

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Update: President signs gun-shield bill

On Wednesday, at a White House ceremony, President Bush signed into law the Protection of Lawful Commerce in Arms Act, setting up a likely battle as gun control advocates attempt to counter motions to dismiss various pending lawsuits (William Freebairn, “Gunmaker seeks suit dismissal”, Springfield (Mass.) Republican, Oct. 29). The Legal Talk Network is airing an audio discussion on the new law among David Kopel of the Independence Institute (more), UCLA lawprof Eugene Volokh and Josh Horwitz, executive director of the Coalition to Stop Gun Violence. I’ve been speaking in favor of a measure like this for years; see, e.g., Apr. 7 and this site’s ongoing coverage of gun litigation more generally, as well as this discussion with Michael Krauss at Point of Law. Jacob Sullum, like Krauss, continues to disagree with me on federalist grounds.

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Fiscal blow to Port Authority

If the agency is indeed made to pay $1.8 billion for not preventing the first (1993) bombing, as suggested by this week’s jury verdict (Oct. 27), it could be forced “to reduce drastically its spending on the region’s airports, bridges and tunnels,” its leaders say. Hmmm… since security measures are among the big items in the current budget, might that not have menacing implications for future anti-terrorist preparedness all by itself? And Mark Geistfeld, a law prof at NYU, agrees that “It’s really hard to get your mind around” the jury’s finding that the terrorists themselves were only 32 percent responsible for the outrage, with the agency responsible for 68 percent. (Anemona Hartocollis and Patrick McGeehan, “Port Authority Fears Costs From Verdict”, New York Times, Oct. 28). More: the Times has a fascinating article about winning plaintiff’s lawyer David J. Dean, who bounced back from disbarment (Oct. 30). Yet more: David Bernstein, Orin Kerr and commenters. And the Washington Examiner blasts the verdict in an editorial that kindly quotes me (“Blame the terrorists, not their victims”, Oct. 31).

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Update: U.K. religious-vilification law

The Blair government, encountering more resistance than it had anticipated, has agreed to soften some of the aspects of the hate-speech bill (Oct. 19, etc.) that are most menacing to freedom of expression:

After suffering a defeat in the [House of] Lords on Tuesday by 260 votes to 111, the Government chose not to oppose an amendment drafted by the Liberal Democrat lawyer Lord Lester with cross-party support. This introduces a number of safeguards.

First, prosecutors would have to prove that the defendant intended to stir up religious hatred; mere likelihood would not be enough. Second, the words or behaviour would have to be threatening rather than merely abusive or insulting. And, crucially, there would be protection for freedom of expression.

Notwithstanding the improvements, the history of such legislation in Australia (see Dec. 3, 2004) suggests that civil libertarians are right to take a stand against the whole thrust of the legislation. “Even if no prosecutions are brought, the Act will inhibit public debate on issues of great importance.” (Joshua Rozenberg, “A legal lesson from Down Under”, Daily Telegraph, Oct. 27).

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House again passes LARA

By a vote of 228-184 yesterday, mostly on partisan lines, the House of Representatives approved H.R. 420, the proposed Lawsuit Abuse Reduction Act (LARA). (“Tort Reform Legislation Passes House, Moves to Senate”, Insurance Journal, Oct. 28). The vote margin was about the same as last year (see Jun. 21 and Sept. 15, 2004), and, as with last year, Senate passage this session is considered a long shot. For more on the bill’s sound overall rationale, as well as its weaker aspects, see our earlier coverage. More: Stop the BS has posted a copy of the bill (Oct. 29).

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