- Social justice education: on the march and coming to a school system near you [Frederick M. Hess and Grant Addison, National Review]
- New wave of institutional reform litigation aims to replace democratic oversight of public schools with governance by courts, lawyers, and NGOs [Dana Goldstein, New York Times]
- Texas Attorney General Ken Paxton, trying to force a student to stand for the Pledge of Allegiance, ignores 75 years of Supreme Court precedent [Scott Shackford] “My Daughter’s Middle School Plans to Teach Her Meek Compliance With Indiscriminate Invasions of Privacy” [Jacob Sullum]
- “The Regressive Effects of Child-Care Regulations: More strenuous requirements raise child-care prices but have little apparent effect on quality” [Ryan Bourne, Regulation and Governing]
- “Denver Schools Stopped ‘Lunch-Shaming’ Kids Whose Parents Didn’t Pay. The Results Were Predictable.” [Hess and Addison]
- Wisconsin public union reform: “A school district’s implementation of Act 10 is associated with an increase in math proficiency on average. The positive impact … is consistent across small town, rural, and suburban school districts.” [Will Flanders and Collin Roth, Wisconsin Institute for Law and Liberty]
- “Look to the Dutch for true educational pluralism” [Charles Glenn, Acton Institute]
Do teenagers have a constitutional right to drivers’ education as a part of substantive due process? That’s one question raised by a hard-fought battle over federal judge Janis Jack’s virtual takeover of the Texas foster care system. The state has strongly pressed its defense, and the Fifth Circuit has stayed Jack’s injunction. As with earlier ventures into institutional reform litigation in such fields as school finance and busing, special education, and prison reform, the case raises separation of powers issues by transferring the power of the purse into judicial hands and delegating essentially legislative powers to special masters and, implicitly, to private advocacy lawyers who drive the process. [Mark Pulliam/Law and Liberty, first and second parts; Robert T. Garrett, Dallas News; more on foster care, institutional reform litigation and its frequent result, consent decrees]
Yesterday the city of Baltimore signed a 227-page consent decree with the U.S. Department of Justice putting the city’s police department under wide-ranging federal control for the indefinite future (earlier).
The decree (document; summary of high points) mingles some terms that rise to genuine constitutional significance with others that no court would have ordered, and yet others that appear not to be requirements of the law at all, but at most best practices. Many are virtually or entirely unenforceable (“professional and courteous” interaction with citizens). Whether or not the decree results in the less frequent violation of citizens’ rights, it is certain to result in large amounts of new spending and in the extension of the powers of lawyers working for various parties.
In November David Meyer Lindenberg of Fault Lines, the criminal justice website, wrote this opinion piece about the failure of DoJ police reform consent decrees to live up to the high claims often made for them (more: Scott Shackford, Reason). Our consent decrees tag traces the problems with these devices in a variety of public agencies such as those handling children’s and mental health services, as well as the budgetary rigidity they often impose.
Since Congress passed enabling legislation in 1994 in the aftermath of the Rodney King beating, the Washington Post and Frontline reported in a 2015 investigation, “Twenty-six [police] investigations — a little more than half of them since President Obama took office — have led to the most rigorous outcome: binding agreements tracked by monitors. More than half were consent decrees, meaning they were approved and managed in federal court.” As of that point only Ohio, at 4 agreements, had had more than Maryland, at 3.
This 2008 report from the Alabama Policy Institute by Michael DeBow, Gary Palmer, and John J. Park, Jr. takes a critical view of the decrees’ use in institutional reform litigation (not specifically police), and comes with a foreword by Sen. Jeff Sessions, now the nominee to replace Loretta Lynch as Attorney General of the U.S. Speaking of which, there’s something so weird about some liberals’ eagerness to hand the keys to big-city police departments over to Mr. Sessions. It’s as if they think once Main Justice is calling the shots it won’t think of using that leverage on issues like, say, sanctuary cities.
- U.N. rapporteur lectures U.S. on Indian rights, calls for “some form of land restoration” [IPSNews] “So, the UN Wants the U.S. to Return Land to Indian Tribes…” [Claudia Rosett] In Chapters 10 and 11 of Schools for Misrule, I discuss the growing cooperation between Indian land-claim activists in this country and international organizations both within and without of the U.N. system. (More: I expand theme into a Daily Caller piece).
- “Union Uses NAFTA To Fight Alabama Immigration Law” [Sean Higgins, IBD]
- “UN hunger expert investigates Canada” [Hillel Neuer, National Post]”Everyone’s grievances can thus be transformed into human rights violations” [Jacob Mchangama and Aaron Rhodes, Freedom Rights Project, PDF]
- Admittedly, at a “lefty Quaker school in the Northeast”: “You know international law is getting some traction when your fourth-grader is being taught about the Convention on the Rights of the Child.” [Peter Spiro, OJ]
- New Third Circuit opinion in remanded U.S. v. Bond case, which tested limits of treaty power, could tee up issue for another SCOTUS outing [Spiro/OJ, FedSoc Blog, Liberty and Law; earlier]
- “Canada’s Much Better and Very Different Alien Tort Statute” [Ku/OJ]
- Implementation of United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) could draw inspiration from U.S. experience with institutional reform lawsuits [Michael Perlin via Bagenstos]
Alas, my chapter on institutional reform litigation in Schools for Misrule has proved only too relevant to the headlines: In today’s 5-4 Brown v. Plata decision, the Supreme Court approved a Ninth Circuit panel’s order that 46,000 California prisoners be freed to relieve overcrowding (opinion PDF via Josh Blackman). Alito (with Roberts) dissented on the grounds that the Prisoner Litigation Reform Act requires nothing of the sort, and in fact was drafted with a mind to discourage such outcomes:
Before ordering any prisoner release, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that prisoner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses. Members of Congress were well aware of this experience.
Scalia (with Thomas) dissented on the grounds that, PLRA aside, the orders go far beyond the federal courts’ prescribed role and institutional competence:
It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.
But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified.
Concur: Ted Frank, Hans Bader. A contrasting view: Tim Lynch at Cato. Background: podcast with Sarah Hart, Federalist Society. And Jason Mazzone asks whether the majority’s inclusion of a photo of crowded prisoners really helps or hurts its case with the public.
- The Economist on the future of the legal business;
- Hairpin reversals of fortune in long-running Barbie v. Bratz doll fight [Cal Biz Lit, earlier]
- As I note in Schools for Misrule, institutional reform litigation is alive and well: Reinhardt says 9th Circuit should take over VA’s mental health efforts, Kozinski dissents [LAT, AP, The Recorder]
- Court rejects Koch suit over spoof website posing as Koch’s to make political points [EFF, earlier]
- “Romeo and Juliet” amendment could soften harsh Texas sex-offense laws [Lenore Skenazy] Law isn’t especially protective of teen boys persuaded to sign paternity declarations [Amy Alkon]
- “Disney Trademarks ‘Seal Team 6′” [Atlantic Wire]
- Great moments in human rights law: UK high court rules airplane hijackers should have been admitted to country as refugees [five years ago on Overlawyered]
If blogging has been lighter than usual, one reason is that I’ve been racing forward on my new book on law schools and their influence, tentatively entitled Schools for Misrule: Legal Academia and an Overlawyered America, which is in the catalogue for Winter/Spring (a year hence) from Encounter Books. I reached first draft in December and am rapidly whipping that rough copy into something closer to final shape.
My original nickname for the book was Ten Bad Ideas from the Law Schools — and How They Changed The World. We decided to go with something a little more dignified, but the book still tries to answer the underlying question of why so many bad ideas — and certain kinds of bad ideas, especially — keep emerging from the law schools. Along the way it looks at some sociological and political angles, such as why modern liberal-left leadership so often is formed in the elite law school milieu (Barack Obama, Bill and Hillary Clinton, etc.) Then it takes up a series of issues — from institutional reform litigation and school finance to slavery reparations and international law — in which legal academia has led campaigns to challenge and redefine the nature of government sovereignty, with consequences that have been usually unforeseen and sometimes calamitous.
I’ll be blogging more on all those points over the coming year, but in the mean time I’ve got a request (“bleg” = blog request, or begging post) for this site’s well-informed readers. One of my chapters takes up the now-ubiquitous phenomenon of law school clinics in which students represent outside clients, sometimes in “cause” litigation and sometimes not. I trace the origins of this movement (a big philanthropic push from the Ford Foundation made the difference), the resistance it met from law-school traditionalists and its eventual triumph, as well as some of its present-day manifestations, which are not always those foreseen by the circa-1970 visionaries who started the programs. The chapter is pretty good as is, I think, but I’d like to add a little more illustrative detail about the clinics, especially vignettes from the early years shedding light on what it was expected they would accomplish in changing society (a subject that isn’t as well documented on the web as I’d like). Responses can be made in comments or by email to editor – at – overlawyered – dot – com. (And, yes, I’ve already read Heather Mac Donald’s interesting City Journal critique and some of the responses it provoked.) (& welcome Instapundit readers. Numerous good emails from readers already).
February 10 — By reader acclaim: “Student sues to get A+, not A”. Memphis, Mich.: “A high school senior says he earned an A+, not an A, and has sued to get the grade changed to bolster his chance at becoming valedictorian.” Brian Delekta’s suit “names the school principal, superintendent and all seven school board members as defendants.” (AP/CNN, Feb. 6). (DURABLE LINK)
February 10 — “Woman files $500,000 lawsuit for ‘ruined’ fingernail”. Also from Michigan: “A Clinton Township woman who had a $5 fingernail repair job done at a local salon now wants $500,000 or more in damages, claiming a beautician nicked her finger with cuticle scissors.” Ann Laerzio’s lawyer says she had to undergo surgery after a resulting infection: “The $500,000 figure isn’t necessarily what we’ll get (in court). It’s to put some attention to the case, and to how important we consider it.'” (Chad Halcom, Macomb Daily, Feb. 5). (DURABLE LINK)
February 10 — Asbestos: “better than the lottery”. Inside one asbestos client-recruitment operation: “[A]s many as 70,000 new [lawsuits] are added each year. Most are workers or retirees invited into medical screenings by lawyers offering quick money. … ‘I saw the notice in the union newsletter and said, “Why not?”‘ said an automotive worker from Ford. Sitting on the tailgate of his shiny, new Chevy pickup and lighting a fresh cigarette off the one he had just finished, he added: ‘It’s better than the lottery. If they find something, I get a few thousand dollars I didn’t have. If they don’t find anything, I’ve just lost an afternoon.’ Standing nearby, a Boeing worker 10 days from retirement volunteered, ‘The lawyers said I could get $10,000 or $12,000 if the shadow [on the x-ray] is big enough, and I know just the fishing boat I’d buy with that.’ Asked if he’d ever worked with asbestos, he said, ‘No, but lawyers say it’s all over the place, so I was probably exposed to it.'” (Andrew Schneider, “Asbestos lawsuits anger critics”, St. Louis Post-Dispatch, Feb. 8). (DURABLE LINK)
February 6-9 — After failed workplace romance, a $1.3 million bill. After a three day trial, a jury has ordered the village of Bloomingdale, Illinois to pay $1.3 million dollars to a former employee who alleged that supervisors ignored her complaints about a co-worker who she said continued to pester her after their romantic relationship ended. Worse yet, the village had given the man a promotion. “Something every manager who thinks he or she can date a subordinate without inviting trouble should think about,” comments EmployersLawyer (Feb. 3; Christy Gutowski, “Lost suit to cost village $1 million”, Daily Herald (suburban Chicago), Feb. 2). (DURABLE LINK)
February 6-9 — Discovery abuse: spitballs at the Opera. In a 148-page opinion, federal judge Loretta Preska ruled that New York’s Metropolitan Opera was entitled to judgment in a defamation case and an award of attorney fees because of misconduct by Local 100 of the Hotel Employees and Restaurant Employees International Union and the union’s law firm, Herrick Feinstein. Judge Preska said lawyers with the firm “completely abdicated their responsibilities”. “I am certainly familiar, both from practice and from my time on the bench, with discovery disputes that devolve into arguments about which child threw the first spitball,” the judge declared. “The discovery process in this case, however, transcended the usual clashes between adversaries, sharp elbows, spitballs, and even Rambo litigation tactics.” (Mark Hamblett, “Firm’s Discovery Abuse Leads to Win for Met Opera”, New York Law Journal, Jan. 29). (DURABLE LINK)
February 6-9 — Do as we say dept.: Wellstone campaign didn’t buy workers’ comp for its employees. Although the late Sen. Paul Wellstone was a noted backer of stringent anti-employer legislation, it was disclosed last Friday that Wellstone’s re-election campaign had failed to purchase workers’ compensation insurance to cover its own employees, four of whom were killed with the senator in last October’s plane crash. Instead, a state fund is now being obliged to cover a large share of the benefits expected by the aides’ families. “State law requires employers to buy worker’s compensation insurance as a safety net in the event workers are injured or killed while on the job. But election campaigns are believed to widely overlook the requirement.” Translation: we don’t have to obey that stuff, do we? (Greg Gordon, “Wellstone campaign aides weren’t covered by worker’s comp insurance”, Minneapolis Star Tribune, Feb. 1). (DURABLE LINK)
February 6-9 — Tort suits over global warming. “Rather than treaties and regulations, litigation may soon be the weapon of choice for those concerned about human-induced global warming.” Among other efforts is that of recent Yale Law grad David Grossman: “In a paper to be published in the Columbia Journal of Environmental Law, Grossman argues that tort litigation over global warming — in which communities or states seek damages from oil companies, electric utilities and automobile manufacturers — is entirely feasible.” Among the desired effects: to “make fossil fuels more expensive and thus force corporations to pay more attention to renewable energy. … So don’t be surprised if ‘See you in court’ becomes the environmentalist’s new rallying cry.” (Madhusree Mukerjee, “Greenhouse Suits: Litigation becomes a tool against global warming”, Scientific American, Feb. 3) (see Jul. 31, 2001). (DURABLE LINK)
February 4-5 — We own e-commerce. A little-known company in San Diego named PanIP, or Pangea Intellectual Properties, holds patents which it claims cover basic elements of electronic commerce. It files lawsuits against businesses across the country, particularly small and medium-sized companies engaged in Internet sales, and then demands sums ranging to $30,000 or more in exchange for dropping the complaints. Some of PanIP’s targets have organized a website entitled YouMayBeNext.com to spread the alarm and encourage resistance. (Jon Van, “Firm claims patent on e-commerce”, Chicago Tribune/Newark Star-Ledger, Feb. 3; “Every E-Commerce Site is Threatened”, press release, Internet News Bureau, Jul. 11; Slashdot thread, May 2002). (DURABLE LINK)
February 4-5 — “Governance by Lawyers”. “Tort law is not the only aspect of the litigation spectrum that should be on Congress’ agenda this term. Congress should also address the phenomenon known as institutional reform litigation. We refer to the process — which has grown exponentially over the last 30 years — in which advocacy groups bring suits resulting in consent decrees; those decrees then effectively — and inflexibly — run public agencies and institutions, sometimes for decades. Institutional reform decrees dealing with special education, foster care, mental health, public health and dozens of other state and local programs continue — sometimes decades after their issuance — without any real regard to whether court control still is needed to protect rights or whether the decree is the best way to achieve statutory goals. Courts base these cases mostly on rights embedded in federal statutes like the Americans With [Disabilities] Act or the Individuals with Disabilities Education Act.” Ross Sandler and David Schoenbrod summarize the argument of their important new book Democracy by Decree (National Law Journal, Jan. 20). (DURABLE LINK)
February 4-5 — Slip, fall, learn who to blame. Law firm promotion, or lawsuit incitement? On the website of Florida plaintiff’s firm Jacobs and Goodman is found the following passage: “In the United States, more than a million people are injured each year in falls. Oftentimes, if your loved one has been previously injured or is elderly or disabled, you might have a tendency to assume that they are responsible for the accident. However, we at Jacobs & Goodman have worked with kinesiologists to help us understand the study of motion and to help you, the injured, look beyond your assumptions to find the actual cause of the accident.” (“Premises Liability” section) (DURABLE LINK)
February 4-5 — Sanity restored? Three cases ruled on by the courts in the last month or so “offer hope that sanity can be restored to product liability litigation“, writes syndicated columnist Jacob Sullum. Besides the dismissal of a McDonald’s-obesity case by a New York judge, and one of the pack of pending individual-smoker cases by a California judge, “a Florida judge threw out a verdict against the gun distributor that sold the pistol used by 12-year-old Nathaniel Brazill to kill schoolteacher Barry Grunow in the summer of 2000. Last November a jury found the distributor, Valor Corp., 5 percent responsible for Grunow’s death and said it should pay $1.2 million to his widow.” (see Dec. 13-15). Cites our editor’s new book on issues of jury selection (“Defective Arguments”, Jan. 31). Also see Ramesh Ponnuru, National Review “The Corner”, Jan. 14. (DURABLE LINK)
February 3 — Claim: marriage impaired by tough bagel. Panama City Beach, Fla.: “A couple is suing the franchisee of a McDonald’s restaurant, claiming an improperly prepared bagel damaged the husband’s teeth and their marriage.” John and Cecelia O’Hare “contend in the suit that John O’Hare broke teeth and bridgework on Feb. 1, 2002 when he bit into the bagel. The suit did not say what exactly was wrong with the bagel. The suit alleges the wife ‘lost the care, comfort, consortium and society of her husband.’ … Tracey Johnstone, owner of [franchisee/defendant] Johnstone Foods, said she never before had a bagel complaint and had no idea how it could have been prepared in a way that would damage teeth. ‘It’s a bagel,’ she said.” (“Couple Sue McDonald’s Over Tough Bagel”, AP/Kansas City Star, Feb. 1). (DURABLE LINK)
February 3 — NFL said to blame for Bengals’ haplessness. Cincinnati: “Hamilton County Commissioner Todd Portune sued the Bengals and the National Football League claiming the team violated its stadium lease by failing to be competitive. Portune filed the lawsuit Thursday in Hamilton County Common Pleas Court as a private taxpayer, without backing from other commissioners. The complaint, which also named the other 31 NFL franchises as defendants, alleges fraud, civil conspiracy, antitrust violations and breach of contract.” In return for municipal concessions on stadium construction, “the Bengals promised to field a competitive team, Portune said. Cincinnati hasn’t made the playoffs since 1990, and just finished the worst season in franchise history at 2-14.” (Terry Kinney, “Commissioner sues Bengals, NFL”, AP/Cincinnati Enquirer, Jan. 31). (DURABLE LINK)
February 20 — Start that movie on time, or else. Lawyers filed suit Tuesday “against movie theaters that claim in their ads they’ll show movies at a certain time, but, instead, show on-screen commercials at the advertised time, delaying the movie’s start. Theaters are committing consumer fraud when they claim in advertising that a movie starts at a certain time but it really starts a few minutes later because of the ads, said Mark Weinberg, a Chicago attorney who filed the two suits.” But a lawyer in China (of all places) got there first, as we reported Jan. 10. (Dave Newbart, “Pre-movie ads rip off theatergoers, suits claim”, Chicago Sun-Times, Feb. 19; Eric Krol, “If you don’t like commercials at movies, why not sue?”, Daily Herald (Chicago suburban), Feb. 19). (DURABLE LINK)
February 20 — Reforming punitive damages. “The best and most practical reform is to let the jury vote up or down on punitive damages, then have judges set the amount,” argues Douglas McCollam, Washington correspondent of the American Lawyer. Since punitive damages partake of the nature of civil fines, they should also be paid into a public fund, and plaintiff’s lawyers should not be allowed to capture a percentage share of them; instead they should be “paid for their time and reimbursed for their costs, with amounts determined at a fee-award hearing.” (“Damaging Justice”, Wall Street Journal, Oct. 31, 2002, reprinted at Texans for Lawsuit Reform). (DURABLE LINK)
February 19 — They’ll be back for seconds. Syndicated columnist Steve Chapman of the Chicago Tribune explains why we haven’t heard the last of the lawsuits trying to make food companies pay for obesity. Quotes our editor (“A fast track for fast-food lawsuits?”, Feb. 13). The New York Times‘s “Editorial Observer” is oh-so-impressed with the suits’ logic (Adam Cohen, “The McNugget of Truth in the Fast-Food Lawsuits”, Feb. 3). But Rep. Ric Keller (R-Fla.) says he plans to introduce legislation in the U.S. Congress to cut off obesity suits against food companies; the AP quotes the Association of Trial Lawyers of America as opposing any such move (Mike Schneider, “Bill would outlaw lawsuits blaming restaurants for obesity”, AP/Naples Daily News, Jan. 28) (DURABLE LINK)
February 19 — “Pass-the-parcel” accounting liability. One company’s newsworthy firing of its CFO may signal that Sarbanes-Oxley is already having perverse effects on the interactions of accounting firms with their corporate clients, according to Asymmetrical Information’s pseudonymous “Mindles H. Dreck” (Feb. 17, and comments). Michael Fox at Employers’ Lawyer (Feb. 16) also has some thoughts. (DURABLE LINK)
February 19 — One solution to the malpractice crunch. “A New York doctor is commuting 1,220 miles to work to avoid the city’s high medical malpractice insurance rates. Dr David Abraham, an ear-nose-and-throat specialist from Long Island, leaves his family twice a month to travel to Minnesota.” According to the New York Post, Dr. Abraham had been paying $70,000 to insure his solo practice and can save up to $40,000 a year with the new arrangement. (“Doctor travels 1,220 miles to work”, Ananova, Feb. 3). (DURABLE LINK)
February 18 — It’s all for the clients. MedPundit Sydney Smith (Feb. 3) says next time you hear the trial lawyers’ association saying that litigation is about protecting the public, rather than about making money, you should keep in mind this page. (DURABLE LINK)
February 18 — “Namibian tribe sues Germany for genocide”. “A Namibian tribe that came close to being exterminated by Germany’s colonial forces nearly a century ago is suing the German government and two companies for £2.6 billion.” The forces of Kaiser Wilhelm committed atrocities against the Herero people in the then-German colony of South-West Africa between 1904 and 1907, as reprisals against the killing of white settlers. Rights activists and lawyers plan to sue the German government and German companies for compensation in — natürlich! — American courts. (Christopher Munnion, Daily Telegraph (U.K.), Jan. 31). (DURABLE LINK)
February 18 — My lawyer says I’m the valedictorian. Outside Boston: “The family of a student who could be denied valedictorian honors at Hull High School, even though she has the best grades, has sued the school district, arguing the top slot should be hers.” The suit filed by Sharisse Kanet’s family “seeks to enjoin Hull from naming any valedictorian until the matter is resolved.” (“Would-Be Valedictorian Sues to Ensure Top Rank”, WHDH Boston, Feb. 16) (DURABLE LINK)
February 17 — Pet custody as legal practice area. Everything you could want to know about the rapid rise of who-gets-Fluffy litigation, including the tale of a San Diego woman’s $146,000 (in fees incurred) courtroom battle to get custody of Gigi, a greyhound-pointer mix: “At trial, the court entertained a ‘day-in-the-life of Gigi’ video proffered by the wife’s divorce attorney, which showed Gigi sleeping under the wife’s desk while at work, walking in the park, and playing on the beach.” (Quentin Letts, “Fur better or fur worse”, Daily Telegraph (U.K.), Feb. 16; law firm of Blumberg Lorber Nelson LLP, “Who Gets Fido? Pet Custody in Divorce Cases”, undated; PetCustody.com). (DURABLE LINK)
February 17 — Inmate entitled to disability payments. “A Beverly Hills lawyer doing time for sinking his yacht to collect the insurance money won a judgment against two insurance companies that canceled his monthly disability payments because they suspected him of committing fraud. … The companies stopped paying [Rex K.] DeGeorge his $8,200-a-month disability payments in 1999, saying he faked his ailments and continued to work as a lawyer. DeGeorge filed the claims in 1990, saying he was disabled because of a heart condition and brain damage caused by an auto accident. … The jury also found DeGeorge remains disabled, forcing Equitable to continue paying him $4,700 a month for the rest of his life. … DeGeorge was sentenced last year to 7 1/2 years in federal prison for sinking his 76-foot yacht off the Italian coast to collect on his $3.5 million insurance policy, which prosecutors said was inflated through a series of phony sales transactions. He is appealing his conviction.” (“California Inmate Wins Disability Case”, AP/ABC News, Feb. 15) (DURABLE LINK)
February 14-16 — Tried to outrun Coast Guard in chase. Last month a Cuban smuggling boat tried to outrun a pursuit by the U.S. Coast Guard and instead capsized; the 34 persons aboard were rescued and most were repatriated to Cuba. Now a lawyer for relatives of the Cubans is suggesting that the Coast Guard may have been overly aggressive in pursuit of the boat and thus responsible for its capsizing. A spokesman for the Coast Guard begs to differ: the boat “was grossly overloaded … and being captained by criminals with a ruthless intent.” (Elaine DeValle, “Video on Cubans’ boat that capsized sought by lawyer”, Miami Herald, Jan. 28). (DURABLE LINK)
February 14-16 — Take care of myself? That’s the doc’s job. “Physicians, lawyers, insurers, juries — all absorb criticism for the rising cost of medical premiums, a surge that has provoked the cry for tort reform. Meanwhile, patients remain generally blind to their own culpability in the crisis.” The story of how one Ohio man’s bad habits contributed to his demise, and how his widow then prevailed in a $4.7 million suit against the physician who treated him for prostate cancer but did not push him to seek a cardiologist’s help as well. Quotes our editor (Martin Kuz, “Cash Diet”, Cleveland Scene, Feb. 12) (see Sept. 18-19, 2002). (DURABLE LINK)
February 14-16 — Politico’s law associate suspended over “runner” use. “Louisiana’s highest court has suspended a former law associate of a since-disbarred and imprisoned state senate president for her role in the use of ‘runners’ to solicit personal injury clients for the senator’s law firm.” An official with the state bar says he has seen a sharp increase in offenses involving the use of “runners”, who drum up injury cases. (“Louisiana Cracks Down on Client Solicitation”, National Law Journal, Feb. 13). “At the former O’Keefe law firm, more than $1 million was paid annually to ‘runners’ who hustled car accident cases. One runner, caught on hidden camera, explains how the scheme worked. ‘Say look, you ain’t say you hurt, if you say no, ain’t nothing there for you, understand what I’m saying? Because you can’t collect nothing if you ain’t hurt, you understand? If anyone say they ain’t hurt ain’t gonna make no more money,’ he said. [Attorney Stephen] Bernstein ran the day-to-day business for attorney Michael O’Keefe, who bankrolled the entire operation and fronted the money to pay the runners, [reporter Richard] Angelico said. O’Keefe is serving 19 and-a-half years in federal prison on other charges. Although O’Keefe never performed any legal work, one lawyer who worked at the firm said that 60 percent of all legal fees flowed into O’Keefe’s pocket.” (“Feds Charge ‘Canal Street Cartel’ Lawyer, The New Orleans Channel, Oct. 16, 2000). “O’Keefe served in the state Senate from 1960-84, the last 12 years as president.” He was convicted for his role in a scheme that skimmed millions of dollars from an ailing medical malpractice insurer. (Joe Gyan Jr., “Ex-legislator O’Keefe appeals conviction, argues witness lied”, Baton Rouge Advocate, Aug. 21, 2002) (see Sept. 13, 1999, July 31, 2001). (DURABLE LINK)
February 13 — “Florida Jury Awards $100M for Pool Accident”. A case summarized by one of our readers thusly: “And the money goes to: the parents who left a 2 year old alone by the pool.” The plaintiff’s attorneys, in mock trials, “were careful about the composition of the jury. They were cautious of young, new parents who might be too critical of the father’s inattention”. (Dee McAree, National Law Journal, Feb. 10). (DURABLE LINK)
February 13 — ABA endorses asbestos litigation reform. What next — a blue moon, a month of Sundays, the freezing over of Hell? The nation’s largest lawyers’ group, the American Bar Association, can no longer be counted among consistent opponents of limits on litigation now that it’s voted to back restrictions on asbestos suits; it may also endorse measures to require that nationwide class actions be heard in federal rather than state court. Read, and rub your eyes: “ABA leaders argued that lawyers should accept blame for a crisis in courts overwhelmed with 600,000 asbestos claims, as well as the bankruptcies of dozens of companies that were sued. ‘This is not tort reform, it’s scandal reform,’ said Terrence Lavin, a Chicago plaintiffs’ attorney,” whom this site hereby nominates our Man of the Week. “‘I have watched helplessly as some, but not all, members of the asbestos bar have made a mockery of our civil justice system and inflicted financial ruin on corporate America.'” (Gina Holland, “Lawyer group wants to restrict asbestos suits “, AP/Chicago Sun-Times, Feb. 12). And over at the Volokh Conspiracy, Juan Non-Volokh catches out National Public Radio in a very funny bit of reportorial inconsistency — at the least — relating to asbestos litigation and this nation’s Public Enemy #1. (Feb. 12). (DURABLE LINK)
February 13 — “Illegal art”. An exhibit of artwork that could land its owners or creators in court, mostly consisting of parodies or adaptations vulnerable to attack by intellectual property owners. (via Jesse Walker, Reason “Hit and Run”, Dec. 9). (DURABLE LINK)
February 12 — Feinstein set to back Bush malpractice plan. California Democratic Senator Dianne Feinstein, often at odds with the Bush administration, has emerged as an unexpected ally of the President on the issue of medical malpractice and plans to introduce a federal bill mirroring the provisions of MICRA, the California law. “Feinstein said she agreed with much of Bush’s speech. ‘There is no question about malpractice,’ she said. ‘Before 1975, California had one of the highest malpractice insurance rates in the country.’ In 1975, the state enacted the Medical Injury Compensation Reform Act that capped pain-and-suffering judgments at $250,000. … Cases filed in California are also subject to caps on legal fees. The percentage of jury awards allowed for attorney fees decreases as the settlement increases, with lawyers collecting only 15 percent of any award of $600,000 or more. According to the California Medical Association, the state law has kept physician insurance rates considerably lower than in most other states.” (David Whitney, “Bush likes California medical suit law”, Sacramento Bee, Jan. 17; Feinstein press release, Jan. 16). (DURABLE LINK)
February 12 — Most overrated American judge ever? Aaron Haspel at God of the Machine levels pretty much that charge against Oliver Wendell Holmes, Jr. (Feb. 9). “Robert Musil” comments. (DURABLE LINK)
February 12 — “Grieve for Fido, but don’t litigate”. A bill pending in the Colorado legislature “would allow dog and cat owners to sue animal abusers and veterinarians and seek damage awards for ‘loss of companionship’ of up to $100,000. … [W]hatever the emotional distress of losing a dog or cat, we don’t think the courts should treat it the same way it treats injury to or death of, say, a child, a best friend, or a nonmarital partner. … would spur the statewide growth of the ‘pet lawyer’ industry, and we would soon see its ads in newspapers everywhere: ‘Have you lost a pet lately?'” (Rocky Mountain News (editorial), Feb. 11) (DURABLE LINK)
February 11 — By reader acclaim: “Sisters Suing Southwest Over ‘Racist Rhyme'”. “A judge has set a trial date in a discrimination lawsuit filed against Southwest Airlines by two black passengers who were upset when a flight attendant recited a version of a rhyme with a racist history. … [F]light attendant Jennifer Cundiff, trying to get passengers to sit down, said over the intercom, ‘Eenie, meenie, minie, moe; pick a seat, we gotta go.'” (AP/Fox News, Feb. 10; Robert A. Cronkleton, “Rhyme at center of lawsuit against Southwest Airlines”, Kansas City Star, Feb. 10). (DURABLE LINK)
February 11 — Welcome The Lawyer (U.K.) readers. Great Britain’s leading legal periodical, The Lawyer, in its Jan. 20 issue (not online, alas) accords generous coverage to “the rather wonderful US website overlawyered.com, which chronicles the excesses of litigation culture on the other side of the Atlantic” as well as our editor’s new book The Rule of Lawyers (“picking up rave reviews …delivers a withering attack on lawyer greed … a full-blooded attack on the massive class action culture that pervades US society”).
“The most popular section of the vast overlawyered.com site is the ‘Whatever happened to personal responsibility‘ section. A few headlines offer a flavour of the kind of stories posted there: ‘Patient sues hospital for letting him out on the night he killed‘; ‘Rough divorce predisposed him to hire hitman‘; and ‘Pitcher hit by line drive sues maker of baseball bat‘. Before we get too smug, though, there is an increasing contribution from the UK, such as ‘Stop clowning around, clowns told‘, which came from The Times last year. It tells the sorry tale of UK clowns terrified that unappreciative patrons would sue them over injuries from thrown pies and water-squirting. Does it worry Olson that overlawyered.com is read as a comic site as opposed to a platform for his more earnest law reforming? Not at all. “I try to make sure it’s humorous. Otherwise, frankly, you’d just cry,” he says.”
In other recent publicity, TechCentralStation columnist Duane Freese reviews The Rule of Lawyers together with Catherine Crier’s The Case Against Lawyers, emphasizing our proposal that the litigation business be required to submit to more disclosure and transparency (“Legal Tyrannies”, Feb. 6). And in the New York Post, William Tucker flays Attorney General Eliot Spitzer for the way Spitzer has gone to court to defend the exorbitant fees being collected by tobacco lawyers representing New York state (“Spitzer vs. N.Y.”, Feb. 4). (DURABLE LINK)
February 28-March 2 — NYC challenges class action fees; taxpayers save $200 million. Litigation over financial wrongdoing at Cendant Corp. led to a mammoth award of fees to class action lawyers. Some major class members, including the states of California and New York, acquiesced in the judge’s ruling on fees, but New York City’s Corporation Counsel courageously “appealed — and won a decisive victory: The entire $207 million saving will revert to the pension funds.” Among other things, the “story is also a window into the amazing power lawyers now wield in our economy.” (William Tucker, “Shark Hunt”, New York Post, Feb. 27). (DURABLE LINK)
February 28-March 2 — We have an RSS feed. We’re not exactly sure how these work, but they allow subscribers to obtain the latest “headlines” from this site by means of a kind of remote broadcasting. See the orange “XML” button at the left column of this site’s front page. If it malfunctions, could readers let us know? Courtesy of the nice folks at Janes’ Blogosphere. (DURABLE LINK)
February 28-March 2 — “Trauma centers warn lives could be at risk”. “Trauma centers across Central and North Florida warned Thursday that they may be unable to take up the slack when Orlando Regional Medical Center, barring a ‘miracle,’ shuts its Level 1 trauma unit April 1.” The trauma unit, which serves 33 counties, is losing its existing neurosurgery team and has been unsuccessful in recruiting out-of-state replacements to a legal climate symbolized by liability insurance costs that run as much as $175,000 a year. It is expected that central Florida trauma victims will be airlifted to already overburdened trauma centers in Tampa and Jacksonville, if there is room for them there, but the added time needed to fly them may rob them of their chance of survival. “Hospital officials and emergency-services personnel said they expect the shutdown will cost some people their lives…. ‘I don’t think there is any question that patients will be compromised,’ said John Hillenmeyer, Orlando Regional’s president.” (Greg Groeller and Jerry W. Jackson, Orlando Sentinel, Feb. 28). (DURABLE LINK)
February 27 — Obstetric liability: “Delivering Justice”. Our editor has an op-ed in today’s Wall Street Journal summarizing some of the implications of a new and comprehensive study finding that — contrary to the premises underlying many medical malpractice suits — most cases of cerebral palsy and other brain damage in newborns have nothing to do with mistakes by obstetricians. (Walter Olson, “Delivering Justice”, Wall Street Journal, Feb. 27. See Jane E. Brody, “Labor Problems Do Not Cause Most Cerebral Palsy, Study Finds”, New York Times, Feb. 26; Carey Goldberg, “Disputed study finds doctors not to blame in most cerebral palsy”, Boston Globe, Jan. 31; William Tucker, “Profiteers of Tragedy”, New York Post, Feb. 10; American College of Obstetricians and Gynecologists, “Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology”, executive summary and press release (& welcome “Robert Musil” readers) (DURABLE LINK)
February 26 — Our editor profiled in New York Sun. Where he’s called “intellectual point man for the tort reform movement … Mr. Olson’s vision could be the inspiration for John Grisham’s latest legal thriller ‘The King of Torts,’ in which obscenely rich trial lawyers fly their private jets in ostentatious loop de loops, landing every now and again to mine an industry for everything it’s worth.” Plus more about his home life than you could have wanted to know (Lauren Mechling, “He’s Taking On the ‘Tort Kings'”, New York Sun, Feb. 26) (& welcome InstaPundit readers; likewise those from Ernie the Attorney, whose kind words are much appreciated). Last Friday’s Wall Street Journal also pursues the Grisham parallel: “Trumped-up charges of neglect. Huge lawsuits. Lurid tales of lawyerly sleight-of-hand. Whopping jury awards. Fat legal fees. Bankrupt businesses. Abused clients. Above all, an appalling indifference to morality and justice. I am referring, of course, to the shocking details to be found in Walter Olson’s ‘The Rule of Lawyers,’ a recent account of real-life class-action litigation, from asbestos and tobacco to breast implants and diet pills. John Grisham writes about this world, too…” (Erich Eichman, “Bookmarks”, Wall Street Journal, Feb. 21 (online subscribers only)). (DURABLE LINK)
February 26 — “Family of electrocuted thief gets $75,000”. “The family of a convicted burglar who was electrocuted in 1997 when he tried to break in to a bar in Aurora after-hours and triggered a homemade booby trap has been awarded a $75,000 jury verdict to be paid by the owners of the bar and the property.” Frustrated by repeated burglaries, Jessie Ingram electrified the inside of his tavern’s window and “then posted several warning signs outside, including one outside the window [Larry] Harris broke in through. Drunk and high on cocaine, Harris, 37, either didn’t see or ignored the warnings.” (Dan Rozek, Chicago Sun-Times, Feb. 25). (DURABLE LINK)
February 26 — Punitive damages soared in 2002. “In 2001, total punitives [awarded in the fifty biggest jury verdicts, of which 22 included punitive damages] was $3.2 billion. For 2002, the figure was $32.6 billion. … [T]he ratio of punitive damages to compensatory damages shot up substantially”. (Gary Young, “Juror Anger Leads to Larger Punitive Awards”, National Law Journal, Feb. 10). (DURABLE LINK)
February 26 — Pigs’ right not to be bored. Under new European Community animal-welfare regulations, farmers will face fines if they do not provide toys such as balls for their pigs to play with. “Farmers may also need to change the balls so the pigs don’t get tired of the same ones,” said a British official. There is still no law requiring that human children be given toys, which suggests that “animals have a stronger constituency than children have in certain EU countries.” (Debra Saunders, San Francisco Chronicle/TownHall, Feb. 10). Addendum: a reader directs us to this Jan. 30 New York Times dispatch which reports that EU officials, irritated at public derision occasioned by earlier reports, have specified that balls and other toylike objects are not required, at least on solid floors, so long as the swine are provided with other “manipulable materials” such as straw, wood or sawdust to keep them interested. See also Brian Kimberling, “Fat cats and laughing pigs”, Prague Post, Feb. 28. (DURABLE LINK)
February 25 — The jury pool he faced. One of MedPundit’s readers recalls the following regarding the jury selection for the malpractice case against him in a jurisdiction known for high jury awards and aggressive lawyer advertising: “One of the questions the judge asked these twenty five people is, ‘How many of you have filed or are in the process of filing a medical malpractice suit, personal liability claim, or disability claim?’ 12/25 jurors raised their hands. Just about 50%. I was stunned.” (Feb. 22) (DURABLE LINK)
February 25 — MIT sued over student’s nitrous-oxide death. The parents of the late Richard A. Guy Jr., a 22-year-old MIT student who died of asphyxiation after abusing nitrous oxide (“laughing gas”), have filed a wrongful death suit against the university, saying it should have taken stronger measures to keep students from stealing the gas from laboratories and that it should have been put on notice of illegal drug use by the condition of their son’s dorm, where “the walls and ceilings of part of the 5th floor were painted black and light bulbs [were] painted pink and purple”. “The complaint admits that prior to 1999, Guy ‘had engaged in experimental drug use, and had sought treatment from MIT’s medical and health service staff for this problem.'” (Kevin R. Lang, “Wrongful Death Suit Against MIT Filed By Parents of Richard Guy”, The Tech, Nov. 8, 2002). (DURABLE LINK)
February 24 — Hotel sued in “Murder by Mercedes” case. “A private investigation firm and a hotel chain were added Thursday as defendants in a civil lawsuit brought against a woman convicted last week of mowing down her husband in her Mercedes-Benz. … Clara Harris, a 45-year-old dentist, ran over her orthodontist husband last year in the parking lot of a Hilton in suburban Houston after finding him there with his receptionist-turned-lover. She was sentenced to 20 years in prison Feb. 14. The lawsuit alleges Hilton had not properly trained employees to handle the confrontation”. (“Woman Who Ran Over Husband Named in Suit”, AP/ABC News, Feb. 20). Update Jun. 27, 2004: hotel and investigation firm settle case. (DURABLE LINK)
February 24 — Supervising the church hierarchy. A Massachusetts judge has ruled that Boston’s Roman Catholic archdiocese can be sued under a standard of whether it provided “reasonable care” to prevent sex abuse by priests, not unlike the standard of “reasonable care” applied to corporate boards of directors. Blogger “Robert Musil” (who we wish would come out from behind that pseudonym) argues that the ruling bids to prescribe certain forms of governance for churches in violation of current Supreme Court precedent on religious liberty, and also makes a startling prediction: a legal motion, at some point down the road, “to replace the Archbishop with a trustee in bankruptcy” in the form of a secular lawyer representing the interests of plaintiff/creditors. (Feb. 20). And scroll up for a post on punitive damages, federalism and the asbestos mess (Feb. 22). (DURABLE LINK)
February 21-23 — Client-chasing: we interrupt your grief. Following the stampede at Chicago’s E2 nightclub, which killed 21, families are feeling besieged by lawyers hoping to sign them up as clients. “The family of Nicole Patterson had not even had a chance to identify her body when the calls started coming. Did she need representation? attorneys wanted to know. ‘I don’t even know how they got our number,’ said Sheretta Patterson-Pennington, Nicole’s mother. … [Felesa] Melvin-Childs said one funeral director offered her free services if she agreed to sign with the attorney he suggested.” (Bryan Smith, “Families feel besieged by lawyers, morticians”, Chicago Sun-Times, Feb. 20) (DURABLE LINK)
February 21-23 — Client-chasing: tantrum-enablers. The prominent law firm of Bingham McCutchen LLP recently took out a half-page ad in the Wall Street Journal to hawk its litigation services to business clients. What illustration did it employ to catch readers’ attention? A close-up of a bawling toddler in mid-tantrum, accompanied by the caption, “In litigation, getting what you want is everything.” The subsequent text explains that “Litigation can be rough” and that the Bingham firm will “commit to achieving nothing less” than “what you want”.
We can think of several ways of interpreting this ad campaign, none of them flattering to the Bingham firm. Does it really conceive of its prospective clients as squalling infants who care for nothing but getting their own way? (Or do the clients walk in its doors as sober, self-possessed adults, and get turned into red-faced me-machines only after spending time with Bingham litigators?) We figured that most lawyers, like parents, realized that there are times when the demanding center of the household isn’t entitled to get what he wants (when the object of desire rightly belongs to someone else, for example), other times when he expresses unrealistic wants (a million billion cookies), and other times when he shouldn’t want something in the first place (as from revenge or mere destructiveness). If Bingham wants to make itself the law firm for clients’ inner brats, the sad truth is that it will have a lot of competition. (DURABLE LINK)