I was so characterized by one Rep. Gary Ackerman (Jun. 13) because my testimony before a congressional subcommittee today about problems in securities class actions dared to mention Milberg Weiss. Decide for yourself.
Archive for June, 2006
Why the Jessica Cutler case matters
For some reason, we haven’t yet covered the Washingtonienne libel suit, where Little Rock law professor Robert Steinbuch revealed he was “R.S.” by filing suit against the infamous blogger, causing Judge Paul Friedman to comment, “I don’t know why this guy thought it was smart to file a lawsuit and lay out all of his private intimate details in an appendix to the complaint.”
Now Wonkette reports that Cutler’s third set of attorneys in the litigation Robert Steinbuch has filed against her, and has not yet retained new attorneys. Why might you care? Because Steinbuch, who waited until May 16, 2005 to complain about a May 4, 2004 blog post, is planning on arguing that every new blog post restarts the statute of limitations for a plaintiff wishing to complain about a blog. (T.R. Goldman, “A Man Scorned”, Legal Times, May 22). If Cutler defends against this argument pro se, Judge Friedman could be induced into an erroneous ruling that makes life difficult for bloggers everywhere. And there’s no reason that Steinbuch’s logic wouldn’t equally apply to computer databases like LEXIS that “republish” mainstream media articles upon request. One hopes Friedman will see through the Steinbuch argument.
A Limit to Special Treatment
A divided Massachusetts Supreme Court has held that disabled employees can be fired for misconduct regardless of whether it results from their disability. Mammone v. Harvard College involved a bi-polar receptionist for a Harvard museum, who was disciplined for misconduct that occurred while in a manic state. He handed out flyers attacking his employer’s wages and spent time on his personal computer rather than working, ignoring pleas from his supervisor to perform his assigned duties.
The court held that state handicap discrimination statutes only protect qualified handicapped people, and that a “disabled individual cannot be a qualified handicapped person ‘if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute.’”
In dissent, Justice Greaney argued that employers should have to put up with “occasional displays of inappropriate, and sometimes bizarre, workplace behavior” resulting from an employee’s disability and give such employees a “measure of special treatment.”
The U.S. Supreme Court has yet to address this issue. The Americans with Disabilities Act distinguishes between alcoholics, whom it expressly recognizes can be disciplined for disability-related misconduct, and other disabilities, about which it is silent on the question of disability-related misconduct.
The Massachusetts courts are usually more pro-plaintiff than the federal courts. For example, they have rejected the U.S. Supreme Court’s conclusion that a correctable condition is not a protected disability.
“…a class of disappointed males”
John Stossel revisits two of the high points in EEOC history, its crusades against sex imbalances in the Hooters restaurant waitstaff and Sears hardware departments (“When sexism claims are a real hoot”, syndicated/TownHall, Jun. 28).
Craigslist classifieds suit
Google, Amazon, AOL and Yahoo are all defending Craigslist in the suit demanding that it censor its housing ads so as to prevent users from requesting “gay Latino sought for roomshare” and the like (Lynne Marek, “Online Peers Stand Up for Craigslist in Lawsuit”, National Law Journal, Jun. 28). Earlier coverage: Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, 2006. Craigslist’s defense, by CEO Jim Buckmaster, is here.
New column — Times Online
I’m pleased to announce that I’ve begun a new periodic gig as a columnist on American law for the online Times (the London-based one). My first effort examines the possibility, discussed in this space recently, that fans of Barbra Streisand might file a class-action lawsuit against the singing legend because she is again doing a concert tour years after a tour that was supposed to be her farewell. (Walter Olson, “The long, long, long goodbye”, The Times Online, Jun. 27).
Incidentally, British readers visiting this site for the first time will find an archive of UK-related material here.
Memo to campaign consultants
If you’re running someone for Congress and he wants to make an issue out of his support for litigation reform — even if, or especially if, he’s actually shown a willingness to support such reform as a state legislator — it’s probably best if his own law firm doesn’t have a full-page “We get results!” ad in the Yellow Pages inviting victims of “slip and fall injuries, medical negligence … dog-bite injuries, wrongful death [and] defective products” to “put our experience to work for you. … No fee unless you collect.” (Eric Zorn, “Candidate’s reform talk may be adding insult to injury”, Chicago Tribune, Jun. 22).
Miscellaneous personal tech note
I’ve finally replaced my aging PC with an iMac and am in the midst of the transition now — apologies for some email delays that have resulted. Mac’s native browser, Safari, doesn’t play well with Movable Type so I’m sticking with Firefox. I’m a complete newcomer to the iMac, so feel free to send useful tips about getting the most from it.
Investor Protection: A Review of Plaintiffs’ Attorney Abuses in Securities Litigation and Legislative Remedies
I’m testifying tomorrow morning before the Capital Markets, Insurance, and Government Sponsored Enterprises Subcommittee, the same hearing on H.R. 5491 Sam Munson covered at Point of Law.
Those interested in soundbites can see me on CNBC’s “Power Lunch” tomorrow at approximately 1:20 pm Eastern. I’ll link to testimony once it’s publicly available.
Protection Against Unanticipated Lawsuits
On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.
The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.
This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.
This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning “disparate impact” may be beyond the Department’s authority under the Supreme Court’s Alexander v. Sandoval decision.)
(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).
The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.