Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for April, 2006

Oz: discrimination law vs. free speech

In Australia, a professor faces punishment for politically unacceptable speech:

Academic Andrew Fraser will defy the Human Rights and Equal Opportunity Commission by not apologising to the Sudanese community for his study linking African refugees to high crime rates.
In a landmark ruling that raises fresh questions about the limits to which academics can engage in public debate, HREOC chairman John von Doussa has found Professor Fraser’s comments were unlawful because they amounted to a “sweeping generalisation” that was not backed by research.

Professor Fraser was suspended last year from teaching at Sydney’s Macquarie University over his comments about Sudanese refugees in Australia.

(Greg Roberts, “Academic still links Africans to crime”, The Australian, Apr. 4)(via David Bernstein).

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A Recipe for Greatness

The previous post regarding California Judge Sill’s memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.

Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).

It seems that Ms. Webster, a native of New England (“a fact of some consequence,” noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes (“in chunks (also a fact of some consequence),” noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).

Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.

The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon’s explanation that elevates the opinion to art form.

Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:

“No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code.”

After noting the defendant’s exhortation that “this court knows well that we are not talking of some insipid broth as is customarily served to convalescents” and quoting Daniel Webster’s recipe for fish chowder in a footnote, the Court observed:

“It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”

Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.

The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.

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Prop 65 and Bounty Hunters

George Wallace at Declarations and Exclusions points us to a judge who is not afraid to call them as he sees them — “them” in this case being the lawyers who mine California’s over-reaching environmental law purely for profit. In rejecting plaintiffs’ lawyer’s application for $540,000 in legal fees for their effort, here is the judge’s conclusion:

“Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight.”

Much much more for your reading pleasure there.

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Intellectual Property Run Amok

Mother Jones provides an amusing roster of facts pertaining to the crazy world of intellectual property protection. Among my favorites:

AMONG THE 16,000 people thus far sued for sharing music files was a 65-year-old woman who, though she didn’t own downloading software, was accused of sharing 2,000 songs, including Trick Daddy’s “I’m a Thug.” She was sued for up to $150,000 per song.

NINETY-ONE pending trademarks bear Donald Trump’s name, including “Donald J. Trump the Fragrance” and “Trump’s Golden Lager.” He failed to trademark the phrase “You’re fired.”

FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered.

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Netflix claims a patent on renting movies on-line

And sues Blockbuster for allegedly infringing the patent, issued Tuesday, which purports to teach “a method for subscription-based online rental that allows subscribers to keep the DVDs they rent for as long as they wish without incurring any late fees, to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue of DVDs to be rented.” Blockbuster Online has 1 million subscribers to Netflix’s 4.2 million. (Reuters, Apr. 4). I’m suddenly a lot less sympathetic about Netflix’s class-action troubles. (Full disclosure: I own stock in Blockbuster.)

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The Felonious Stomping of a Pet Fish

Courtesy of Dean’s World, a New York Appellate Court decision which all too easily brings to mind Monty Python’s immortal routine, “Eric the Pet Fish:”

The defendant argues that his “stomping of young Juan’s pet goldfish” is a misdemeanor pursuant to Agriculture and Markets Law §353 (unjustifiable killing of any animal, whether wild or tame), and not a felony because a fish is not a “companion animal” and his “stomping” did not constitute “aggravated cruelty” within the meaning of the statute.

The Appellate Court rejected the defendant’s fanciful interpretation of New York criminal statutes, ruling:

The defendant’s contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute.

But can you get a license for that fish?

Dad Loses Suit Alleging Abusive Coach

Chalk another one up to the judicial ref.

A judge has made it safe again for high school coaches to lose their tempers, tossing out a lawsuit that accused a coach of inflicting “emotional distress” on a softball player by calling her “a 2-year-old.” (Arcadia, CA, Apr.4)

Attorney Michael Oddenino filed the lawsuit in October, alleging that Riggio yelled at his daughter when she played on the JV team last spring. He named Riggio, varsity Coach Ed Andersen and the Arcadia Unified School District in the lawsuit. He sought $3 million for intentional and negligent infliction of emotional distress, negligence, a civil rights violation, and sex discrimination.The suit alleged that Riggio “took advantage of his position of authority to engage in an abusive pattern of excessive intimidation and humiliation of the female players, frequently calling them `idiots,’ and belittling them for minor errors.”

Oddenino is a family law lawyer who specializes in child custody issues. Go figure.

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Trial lawyers in GOP politics

Now it’s Pennsylvania: Donna Rovito has got the goods on the trial bar’s efforts to influence the forthcoming (May 16) Republican primary for a state senate seat in the Wilkes-Barre area. They’re backing Kingston mayor Jim Haggerty, who’s facing off against former gubernatorial aide Lisa Baker and three other candidates (Mar. 23, scroll to item 5). Update May 21: Haggerty loses.

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