Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for March, 2009

CPSIA: handing the GOP an issue?

Two can stir more easilyAccording to one of Rick Woldenberg’s sources, the leadership on Capitol Hill ordered a Democratic member “in no uncertain terms” not to address next Wednesday’s rally calling for legislative reform of the Consumer Product Safety Improvement Act of 2008. The bill was rushed to passage this year with overwhelming support from both parties; the public outcry in recent months has stirred proposals mostly but not entirely from Republicans for legislative relief.

You’d think the Democrats would be smart enough to want to be perceived as listening to public outrage on this issue rather than letting the Republicans develop it as a source of partisan advantage. But apparently you’d be wrong.

P.S. Deputy Headmistress now has up a very interesting post on the partisanship/non-partisanship angle. The movement to protest and reform or repeal CPSIA, as she notes, is truly diverse ideologically, politically, and in almost every other way: it brings together persons of astoundingly disparate views and manners of living. On the other hand — as she demonstrates by citing particulars of the news coverage a year or two back — the maneuvering that got CPSIA passed in the first place was remarkable for its jealous partisanship, something easily overlooked in retrospect given the near-unanimous eventual vote in favor of the law.
Public domain image: Yankee Mother Goose (1902), illustrator Ella S. Brison, courtesy ChildrensLibrary.org.

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“These are just kids being irresponsible and careless; they are not criminals.”

The ACLU says a Pennsylvania D.A. has threatened to prosecute teenage girls over mildly naughty-sounding photos of themselves on their cellphones, which he has called “provocative”. The case could help provoke a legislative clarification of what laws apply to the teenage practice that has been called “sexting”; one law professor suggests excusing original senders and recipients of photos from liability in most circumstances, while leaving open the possibility of penalties for resending to others.

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CPSIA: one for the books

As Charles Henry and Carter Wood observe, Tuesday’s Washington Post article on the fate of vintage books is another sign that the CPSIA debacle is gradually edging into the attention zone of even the more highly placed members of the press. littlefly2Florida’s St. Petersburg Times also covered the book/library angle over the weekend, following earlier coverage by the Associated Press Mar. 17, and before that by the Fort Worth Star-Telegram, the Guardian (U.K.), Cincinnati Enquirer and elsewhere. (Other aspects of the law, similarly, have won sporadic rather than sustained attention at individual large papers, and none have yet broken through to the print columns of The Deaf Lady and thereby reached those who rely on her for their news agenda.)

If nothing else, the Washington Post story should lay to rest the still sometimes heard notion that no one is talking about banning many of these books or that everyone somehow favors broadly exempting vintage books, with the only real question being how to get there. Reporter Michael Birnbaum interviewed Columbia public health specialist David Rosner, known as a high-profile lead hawk and critic of any toleration of nonzero exposure risks (and also a recurring expert witness for plaintiff’s lawyers in lead litigation, in which role he puts in a cameo in this fine 2007 Joe Nocera column in, of all places, the NYT). Rosner quite unmistakably does not want older books exempted as a general matter and does want government to intervene against those that have detectable, even if infinitesimal, levels of lead in their ink. He dismisses as ignorant — unacquainted with “the latest science” — parents and booksellers who object that they grew up with these books, they turned out okay, etc. (In fact, “latest science” or no, scientists have by no means joined in the consensus Rosner aims to suggest; hence the remarks from Centers for Disease Control spokesman Jay Dempsey the other day that “On a scale of one to 10, this is like a 0.5 level of concern“).

Birnbaum also interviews a second high-profile lead hawk, Johns Hopkins public health professor and longtime regulatory activist Ellen Silbergeld, who takes a somewhat contrasting view more akin to CDC’s (dismissing the book issue as “very clearly not a high priority” in protecting children). But that’s not all: Silbergeld appears to associate herself with (otherwise unnamed) critics who “accuse the safety commission of trying to undermine the law by stirring up popular backlash”, calling the agency’s continued inability to resolve the issue “absurd” and “disingenuous”. The suggestion here, it would seem, is that the CPSC is purposefully sabotaging the law by accommodating, even in part and inconsistently, the views of one of its own two commissioners, Thomas Moore, who famously called for some share of older books to be “sequestered” — not to mention outsiders like Rosner whose views appear to follow similar lines. So now we’re apparently meant to go on a hunt for imagined wreckers and saboteurs at the agency, presumably including its key career staff.

Meanwhile, and fortunately, discussion continues among persons who care passionately about old books for their own sake and don’t want to see them lost. Well-known author Neil Gaiman remarked on the story on Twitter (“So wrong, so wrong, so utterly, utterly wrong“) which was passed along (“retweeted”) by hundreds of his readers and fans; many blog posts and discussions resulted. David Niall Wilson (“Glimpses Into an Overactive Mind”) contributed two passionate posts (“This idiocy has to be stopped”.) twotailedcatThe popular James Lileks, whose eponymous site is one of the most consistently diverting in American journalism, did a short column for the Minneapolis Star-Tribune, and the subject erupted in comments at Boing Boing. Some other discussions, all worth reading: Tim & Zodi (via Deputy Headmistress), Michael Lieberman at Book Patrol (also Wessel & Lieberman), Jennifer at Series Books for Girls (“this lead thing has not gone away. Don’t think for a minute that it has”), Vivian Zabel, Le Mars, Iowa, Daily Sentinel, Aria Nadii/Wild Muse Notes.

And don’t forget the rally next Wednesday morning, April 1, in Washington, and covered by, among other places, Apparel News. Registration can be accomplished here. And Lahle Wolfe at About.com Women in Business Blog offers six (other) ways to protest the law.

Public domain images: Yankee Mother Goose (1902), illustrator Ella S. Brison, courtesy ChildrensLibrary.org.

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Target of Milberg suit sues over Torkelsen testimony

Economist John Torkelsen, a star expert witness for Milberg Weiss in many cases, declared in a sworn deposition that he was working for an hourly fee in a case in which he estimated damages to class clients to be more than $165 million in one of Milberg’s cases against casino operator Lakes Entertainment. In reality, Torkelsen had a concealed contingency fee arrangement with Milberg that helped ensure his incentives would be lined up in favor of a high damages estimate. Now Lakes wants its settlement back with treble damages, saying it would never have offered such a high settlement had Torkelsen’s true relationship to the law firm been disclosed (cross-posted from Point of Law).

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Live by the swindle…

Call it karma? Among Bernard Madoff’s victims, Eric Turkewitz has discovered*, is none other than the infamous Morris Eisen, who made a ton of money in personal injury practice by faking evidence for his cases (highlights: taking a pickax to a pothole before photographing it, using a shrunken replica of a ruler so as to magnify the seeming size of defects in photographs, and calling the same “witness” for two different accidents, who happened to be serving time upstate for forgery at the time of both). Eisen was disbarred, served time, and paid some money, but “clearly” was left with “substantial assets”, notes Turkewitz, including a residence in Fisher Island, Florida. (Wikipedia: “According to the U.S. Census Bureau, Fisher Island had the highest per capita income of any place in the United States in 2000.”) I wrote about the Eisen scandal in my first book, The Litigation Explosion, the relevant PDF chapter of which is available at Point of Law; also see this City Journal piece.

*OK, “learned from one of his readers”; see comments.

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CPSIA: coming attractions

Preoccupied with unrelated deadlines, I’ve skipped over a number of interesting stories and developments on CPSIA that deserve in-depth discussion. Each of the following really deserves its own full-length post, and if my schedule permits in the coming days and weeks, I’ll try to do each one justice.

Slowly getting there

  • In response to Michigan Democratic Rep. John Dingell’s request for information about problems in implementing the law, CPSC Acting Chairwoman Nancy Nord had a smart response: she let the commission’s top career staff draft the letter answering the Congressman. The result is a 21-page memo (PDF; w/three-page cover letter) that provides a devastating and thoroughly documented account of why the law was destined from its day of passage to have catastrophic consequences for producers and retailers. In Washington, the career staff of an agency is often listened to in a way that an appointee of an outgoing administration is not. With much detail not formerly available and careful documentation of the way the law’s drafters tied the agency’s hands to prevent the very same reasonable exemption-making that many proponents of the law now claim to favor, the document deserves much more extended analysis than I can give it here and now; it should be read by anyone interested in the case for CPSIA reform.
  • CPSIA’s threat to vintage books is the subject of a story in yesterday’s Washington Post, and was covered by Publisher’s Weekly last week (as well as at many blogs). Both pieces can usefully be read in conjunction with the detailed discussion of the vintage book issue toward the end of the CPSC staff/Nord/Dingell letter, above, which sheds light on questions raised in both articles.
  • Deputy Headmistress has been looking into the question of how it was that European countries had earlier adopted regulations on the same subject and yet experienced far less trauma to small producers, sellers and consumers. She takes up the topic in posts here, here, and here. Not to spoil the suspense, but it has a lot to do with Europe’s willingness to 1) phase in regulations over a period of years; 2) prescribe testing and certification protocols as if they actually cared about sparing producers pointless cost and hassle; 3) target regulations at the particular market segments (e.g., items used by the youngest kids) most likely to present an actual risk of ingestion. In each instance, the U.S. Congress chose differently.

My to-be-blogged file also contains whole stacks of stuff on who on Capitol Hill appears to have a clue on this issue and who doesn’t, on the often wrongly guesstimated costs of testing, and yet more on vintage books, among many other topics. And don’t forget the rally coming up next Wednesday in D.C.

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Legal blogs: keeping lawyers more honest?

Venkat Balasubramani of the blog Spam Notes has a highly interesting guest column at AvvoBlog arguing that blog coverage has emerged as a new check on lawyers’ tendency to pursue their cases in an overzealous or hardball fashion. In the BlockShopper, Nordstrom/Beckons, and Kentucky domain-name seizure affairs, as well as numerous gripe-site and reputational-claim actions where the Streisand effect came into play, blogs have helped call national attention to the weakness of a litigant’s position, the danger that a disputant without major resources will be bulldozed by the cost of litigation, or both.

Balasubramani is kind enough to single out three bloggers in particular and to include me among their number:

…Walter Olson: who blogs at Overlawyered is another blogger who frequently flags unreasonable positions taken by lawyers. While he monitors litigation excess generally, absurd tort lawsuits are his specialty, and many a plaintiff’s lawyer has graced the pages of his blog in shame.

And he concludes:

Increased scrutiny of legal decisions and lawsuits by blogs and internet commentators will have undoubtedly have an overall beneficial effect. … Lawyers these days live in fear that one of their lawsuits will be highlighted on the pages of sites such as Overlawyered, the Legal Satyricon, or the Volokh Conspiracy. I know I sometimes do.

Whole thing here.

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March 25 roundup

  • Driver on narcotic painkillers crashes car, lawyer says pharmacists liable [Las Vegas Review-Journal]
  • Who’s that cyber-chasing the Buffalo Continental Air crash? Could it be noted San Francisco-based plaintiff’s firm Lieff Cabraser? [Turkewitz]
  • Axl Rose no fan of former Guns N’ Roses bandmate or his royalty-seeking attorneys [Reuters]
  • Cheese shop owner speaks out against punitive tariff on Roquefort, now due to take effect April 23 [video at Reason “Hit and Run”, earlier]
  • Too many cops and too many lawsuits in city schools, says Errol Louis [NY Daily News]
  • Law professor and prominent blogger Ann Althouse is getting married — to one of her commenters. Congratulations! [her blog, Greenfield] Kalim Kassam wonders when we can look forward to the Meg Ryan film “You’ve Got Blog Comments”.
  • “Louisiana panel recommends paying fees of wrongfully accused Dr. Anna Pou” (charged in deaths of patients during Hurricane Katrina) [NMissCommentor]
  • U.K.: “Privacy Group Wants To Shut Down Google Street View” [Mashable]

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