Michael Barone has a refresher on its appearance in areas from school discipline to housing to hiring, and how it pressures actors to take more account of race and ethnicity rather than less in their decision making. [Examiner]
The Justice Department and Department of Education have sent out a Dear Colleague letter discouraging schools from pursuing strict discipline policies against student misbehavior, especially against “routine” or “minor” infractions; Education Secretary Arne Duncan cited tardiness and disrespect as examples of the latter. [Christian Science Monitor]
Assuming that the federal government has somehow acquired the legitimate constitutional authority to begin dictating the fine points of disciplinary policy to local schools in the first place — a big if — it might seem at first that much of this is innocuous. Some early coverage, for example, makes it sound as if the letter is mostly aimed at obtaining a reconsideration of zero-tolerance policies, long criticized in this space, as well as the sorts of suspensions and expulsions that are based on far-fetched dangers like finger guns or forbidden hugs.
Unfortunately, there’s much more. The letter represents the culmination of a years-long drive toward imposing tighter Washington oversight on school discipline policies that result in “disparate impact” among racial or other groups. Policies that result in the suspension of differentially more minority kids, or special-ed kids, will now be suspect — even if the rate of underlying behavior is not in fact uniform among every group. (Special-ed kids, for example, include many placed in that category because of emotional and behavioral problems that correlate with a higher likelihood of acting out in misbehavior. Boys misbehave more than girls.)
If the policy helps speed the correction of some overly harsh, mechanical school policies, both under the zero-tolerance rubric and otherwise, it may have some positive side effects. But the disparate-impact premise is a pernicious one that’s sure to create many new problems of its own. [Andrew Coulson, Cato; Scott Johnson, PowerLine]
More: in 2012 Senate testimony, Andrew Coulson pointed out that 1) compared with the alternatives, the use of out-of-school suspensions appears to improve the learning environment for other (non-disciplined) students by protecting them from disruption; 2) zero-tolerance policies were adopted in the first place in part as a defense for administrators against disparate-impact charges. In other words, the new supposed remedy (disparate-impact scrutiny) helped cause the disease to which it is being promoted as the cure. (& welcome Andrew Sullivan, Scott Greenfield, Hans Bader readers; cross-posted at Cato at Liberty)
Don’t miss Heather MacDonald’s account at City Journal of one of Washington’s most troubling regulatory initiatives. Legal background:
Unfortunately, the Bush administration failed to rescind the Department of Education’s disparate-impact regulation, guaranteeing that the next Democratic administration would again unleash it upon hapless school districts. Advocates inside and outside the executive branch are now celebrating the resuscitation of disparate impact.
Also includes a sidebar on the feds’ somewhat contrasting “anti-bullying” campaign. More: Hans Bader, plus a letter from him in the Frederick News-Post; update on similar plans by Maryland state board of education; Ted Frank with a link to a fairly horrifying comment at Joanne Jacobs’s site.
- Judge Neil Gorsuch on education law issues [Clint Bolick and Marty West, Education Next] And if you haven’t read Gorsuch’s dissent in the “burping student” case, A.M. v. Holmes — among his most famous opinions — it’s here;
- Tables for sharing food at cafeterias: “‘It’s the same objections every single time,’ he said. ‘There’s this myth that they’re going to get sued.'” [Michael Melia, AP/Yahoo]
- “Why heroin and classroom sex aren’t enough to get teachers fired anymore” [Julia Marsh, New York Post]
- “…a story of the pitfalls that await teachers who make extended efforts to aid troubled students.” [Andrew Marra, Palm Beach Post]
- St. Paul, Minn. saga of school discipline and “disparate impact,” cont’d [Katherine Kersten, earlier here, here, and here]
- “I first found ‘Free Range Kids’ from the Overlawyered site” — one commenter’s tale of the fate of children’s books at a local library after CPSIA came in [Free-Range Kids]
- New Jersey arbitrator’s ruling: “Teacher Who Was Late to Work 111 Times in 2 Years Will Keep His Job” [AP/Time]
- Claim: feds’ Title IX regs on campus discipline and sex were OK, but colleges went overboard [Sam Bagenstos, Washington Monthly; my different view; Scott Greenfield] Related on OCR power: David Savage and Timothy Phelps, L.A. Times;
- Bon temps rouler: Louisiana public universities claim $274 million in damages from the BP/TransOcean gulf spill [AP/Insurance Journal]
- Washington Supreme Court flexes muscle on school finance case, fining state $100,000 a day until it falls in line with higher spending [Seattle Times]
- Not a parody: major in social justice rage at Washington State U. [one syllabus, another via Daily Caller] Hounding of Nobelist Tim Hunt in a British university milieu not so different from ours [Jonathan Foreman, Commentary]
- “Disparate Impact in School Discipline: What Does the Public Think?” [Education Week] “How Eric Holder’s Disparate Impact Crusade Leads To Quotas” [Hans Bader, Daily Caller]
- “Want Safer Kids? Send Them Into Traffic” [Lenore Skenazy on pedestrian safety practice for little ones]
The groundbreaking move follows negotiations with the federal government, which sent out a letter to school systems warning that disciplinary patterns with “disparate impact” were under suspicion. There is of course a reformist cast for rethinking some harsh aspects of school discipline systems, zero tolerance policies being one, but not the only, example. Such reforms might well have the effect of narrowing disproportionately high rates of discipline for students in some minority groups. But the Minneapolis system’s move (apparently encouraged by Washington) to consider race explicitly in the suspension process, with minority kids getting an additional layer of review, raises the likelihood of a challenge under the Constitution’s equal protection clause, as does the setting of an enforceable compliance objective of achieving identical suspension rates from one demographic group to the next independent of whether misconduct rates are identical. [Tom Corbett/Star Tribune, Hans Bader/CEI, John Steele Gordon/Commentary, RiShawn Biddle/Dropout Nation (a different view)].
- Any dollar figure will do: “Ohio woman sues for $500 billion after her car is towed” [Jalopnik]
- Rabbit-breeding without a license proves costly for Missouri family facing $90K USDA fine [Amy Alkon]
- Per Linda Greenhouse, SCOTUS in Bush v Gore said “this opinion is never to be cited.” Oh? [Ed Whelan, NRO, further]
- Boston loses young innovation-sector workers by overregulating nightlife [Dante Ramos, Globe]
- “Title IX after 40 years” is topic of a discussion and lunch this Wednesday at Cato; “CA Lawmaker Speaks Truths on Title IX, Bashing Ensues” [Deborah Elson, American Sports Council; Chris Norby]
- Department of Justice is conducting “incredibly aggressive” push against local governments under civil rights laws, or so says one supporter [Bagenstos] “School discipline and disparate impact” [John R. Martin, Federalist Society “Engage”]
- Traffic laws changed considerably following the development of the automobile. Something sinister in that, or pretty much what one would expect? [Sarah Goodyear, “The invention of jaywalking,” Atlantic Cities]
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.
February 9-11 — Litigators vs. standardized tests, I: the right to conceal. “In a major victory for disability rights groups, the Educational Testing Service announced yesterday that on many of its standardized exams it would stop flagging the results of students with physical or learning disabilities who receive special accommodations, like extra time, for the tests.” Disability rights advocates had sued ETS arguing that it was violating antidiscrimination law by letting university admissions departments and other downstream users know that a test had been taken with extra time or other accommodations. “The real winners aren’t the physically handicapped,” observes Virginia Postrel (Feb. 8). “They’re academically disabled people who know how to work the legal system.” Upwards of ninety percent of accommodations are demanded by students asserting learning disability or attention deficit, and extra time is typically among the demands; figures from California and elsewhere indicate that affluent students are much more likely to assert such disabilities than are students from modest backgrounds. (Tamar Lewin, “Disabled Win Halt to Notations of Special Arrangements on Tests”, New York Times, Feb. 8)(reg) (more).
February 9-11 — Litigators vs. standardized tests, II: who needs sharp cops? “Last May, the Ninth Circuit Court of Appeals ordered the Justice Department to pay Torrance, Calif., $1.7 million in attorneys’ fees for a police bias suit the trial court had called ‘frivolous and unreasonable.’ The alleged police wrongdoing? They screened for reading and writing skills (albeit at a ninth-grade level) in hiring exams. Such tests, argued Justice, have a disparate impact on minorities and have no legitimate job purpose. … But as the court recognized, analytic skills are essential to policing. Officers must digest written material, understand complex procedural laws, and produce clear reports for use in court.
“Despite its defeat in Torrance, Justice continued to threaten police departments with litigation unless they replaced traditional hiring exams with federally approved tests. These all but excise cognitive questions in favor of true/false ‘personality’ measures such as: ‘I would like to be a race car driver,’ or ‘I would like to go to a party every night if I could.’ Such states as New York, New Jersey and Missouri caved in. Many jurisdictions have ceased cognitive testing pre-emptively.” (Heather Mac Donald (Manhattan Institute), “Stop Persecuting the Police”, Wall Street Journal, Feb. 5 (online subscribers only)).
February 9-11 — “Victim is sued for support”. “A woman convicted of shooting her estranged husband in the head, and who served almost two years in jail for her crime, is going to court to get spousal support from the man she nearly killed. And there is a very good chance she’ll get it, according to several family law practitioners.” That Christine Alexander attempted to murder her husband David “may be a moot point when determining support, since Canada’s Divorce Act is ‘no fault’ and does not take prior conduct into consideration. Nor is there any statute of limitations for filing a claim. ‘Her conduct isn’t admissible under the Divorce Act,’ Toronto family lawyer Philip Epstein said. ‘Technically speaking, the fact that she shot him in the face doesn’t bar her from a support case.”” (Martin Patriquin, Toronto Star, Jan. 23).
February 7-8 — “Woman who drove drunk gets $300,000”. “An Ontario woman who got drunk at an office party and crashed her car has successfully sued her employer for allowing her to drive — even though her company offered a cab ride or accommodation if she gave up her keys. Linda Hunt, 52, won more than $300,000 in damages and interest from Sutton Group Realty Ltd., of Barrie, Ont., after arguing her boss should have stopped her from driving home in a snowstorm following a 1994 Christmas party.” The judge assessed Hunt’s damages from the resulting accident at C$1.2 million, but reduced that by three quarters to reflect her own fault in the matter. He “went on to declare it the duty of employers to monitor the alcohol consumption of employees at company functions. The decision is expected to send a chill through offices across the country”. (Charlie Gillis, National Post (Canada), Feb. 6) (& update Aug. 16, 2003: appeals court orders new trial).
February 7-8 — “Survivor” contestant sues. Stacey Stillman — the one contestant on the hit TV show “Survivor” who was an attorney in real life — “is suing its producer, alleging he rigged the outcome by arranging to have her voted off the show, according to a published report Tuesday.” The report, in USA Today, said Stillman had sought a $5 million settlement from CBS and other defendants. (“TV’s ‘Survivor’ sued”, CNNfn, Feb. 6).
February 7-8 — Safer smokes vs. the settlement cartel. One fledgling business would like to experiment with selling a cigarette designed to inflict less harm on the user’s lungs than the regular kind. But the trial-lawyer-brokered multistate settlement between cigarette companies and state attorneys general imposes a special prohibitive charge on new-entrant companies that might seek to compete with incumbent tobacco companies, the better to protect the states’ revenue stream. Too bad for smokers, but who cares about them anyway?, seems to be the general view. (Jonathan Rauch, “How To Build a Better Cigarette — And How To Snuff It Out”, The Atlantic/National Journal, Jan. 19).
February 7-8 — Employees not tenured in California. Of the fifty state supreme courts, California’s and Michigan’s had led the way in creating new rights for employees to sue over “wrongful termination”, edging toward a sort of property right on the part of workers not to be fired, at least if they had been on the job for a while with no complaint from their employers. But Michigan’s court has pulled back from its liberal interpretations in recent years, and now it appears that California’s is doing the same. The state’s Supreme Court ruled last term that an employee could not assert an “implied” promise to be retained in continued employment when his employer had explicitly spelled out in print that it had the right to discharge him at will. Commonsensical as the ruling may seem, it confirms that “implied” tenure rights are not going to swallow the general background rule of at-will employment in California, as they seemed likely to do not so long ago. (Kevin Livingston, “Employers Win Big in At-Will Case”, The Recorder/CalLaw, Oct. 6) (Guz v. Bechtel — PDF/document, courtesy Findlaw).
February 6 — “Persistent suitor”. For more than ten years now, a commercial publisher of scientific journals by the name of Gordon & Breach has been suing two scientific societies, the American Physical Society (APS) and the American Institute of Physics (AIP), which it says have conspired to disparage the physics journals it publishes. The two societies say they’re being sued for having had the temerity to spread the word about a price comparison of journals in which G&B’s entries fared badly, and they say the publisher is using litigation to punish them for exercising their rights of free speech, not to mention academic freedom. (Andrew R. Albanese, “Inside Publishing”, Lingua Franca, Dec./Jan.; barschall.stanford.edu; more)
February 6 — “Lawsuits could tame ski slopes”. Lawyers pursuing a wrongful-death case against the Vail ski resort will try to dodge Colorado’s strict limits on ski-operator liability. “I don’t envy the jury. It will understandably sympathize with the mother’s loss. But before it litigates our winter sports out from underneath us, I hope it will consider that many Americans see winter’s snows as a liberating force, as a frontier-like challenge against which we define ourselves. The most interesting and challenging winterscapes count if and only if we can freely throw ourselves into them and confront chaos, if we can ski the chutes and risk the avalanches.” (Tom Wolf, Denver Post, Nov. 26).
February 6 — Amazon “Honor System”: a new way to support this (and other) websites. How do people keep nonprofit, literary, hobby or “cause” websites going? The answer isn’t obvious, given that banner ads are obtrusive and don’t after all bring in that much revenue (we’ve avoided them from the start). Pretty much every small web publisher is hoping that some system of micropayments or -donations comes along soon and now Amazon.com is leading the way by launching, today, something it calls the “Honor System”: it allows readers of a site to make small online contributions toward its upkeep (see this site’s front page).
As you can imagine, we’d like to be able to purchase better page construction and FTP software, keep expanding our ListBot-hosted mailing list without having to put ads in it, buy somewhat more deluxe hosting services, subscribe to more journals that serve as sources for our kinds of stories, get out to more conferences other than the ones that pay us to come speak, and — who knows? — maybe even develop a few banner ads of our own to let more new readers know about Overlawyered.com. And now you can help out toward the site’s continuation and expansion by clicking Amazon’s “Honor System” box where you will learn how to make a small donation, much as if you were buying or subscribing to a print newsletter or magazine. You can use your credit card, the donations can be quite micro in nature — a dollar or two, for example — and no information about you will be shared with us, which means you will have to accept our gratitude in a very general way (again, see this site’s front page). We also urge you to check out the roster of other participating sites that Amazon is publicizing as part of the system’s launch — it includes some gems.
February 5 — Caesarean rate headed back up. “The number of US women giving birth by caesarean section is rising rapidly, signaling an apparent end to an ambitious public health effort over the past decade to reduce the nation’s C-section rate. With about one in four babies born by C-section in the late 1980s, rates began to fall after health authorities warned that the numbers were unnecessarily high and that too many surgeries were motivated by doctors’ fear of lawsuits over vaginal deliveries.” (Shari Roan, “C-section rates rise after 1-year decline”, L.A. Times/Boston Globe, Jan. 30).
Although a large volume of malpractice litigation blames cerebral palsy (CP) in newborns on asphyxia of the infant during labor (which is often, in turn, attributed to doctors’ failure to perform a timely C-section), much of the research would “indicate that there is poor, if any, correlation” between most markers for asphyxia and the development of CP in infants, writes the chairman of the ob/gyn department at University of Texas, Houston, Medical School (Larry C. Gilstrap III, MD, “Obstetric antecedents of cerebral palsy: What we know and don’t know”, January 18 – 21, 2000). And five years ago a literature review for the state of Minnesota found that electronic fetal monitoring (EFM) had proved of uncertain benefit at best in improving neonatal outcomes but was in nearly universal use due to liability concerns, and in turn led to a higher rate of Caesareans and other surgical interventions: “The widespread use of EFM during labor appears to be driven, in part, by medicolegal concerns by physicians.” (“Fetal Heart Rate Assessment During Labor”, State of Minnesota Health Advisory Technology Committee, 1996). (DURABLE LINK)
February 5 — Welcome Wall Street Journal readers. Friday’s “Taste” section credited us for the story (Jan. 31) of the Ohio man who won an all-you-can-drink contest and then sued the bar after drinking so much he fell down. (“Tony and Tacky: The Punch Bowl”, Feb. 2 (online subscribers only)). We’ve also racked up links/mentions from, among many others, the Canadian site LegalHumour.com; New Hope, Pa. “Interesting Links“; NotPC.com; Cajun’s Morning Fix; the Utah state library system (July — they call us “opinionated but interesting”); Laurie Ralston, Pepperdine University, “Types of [Sexual] Harassment”, last modified Oct. 26 (see “The ‘Other Side’ of Sexual Harassment”); Bob Gaines, Univ. of North Carolina, Greensboro, “Sexual Harassment Resources”, last updated Feb. 2 (deeming us a “somewhat conservative point of view”); the Kansas Chamber of Commerce; and IRCpolitics.org.
February 5 — Mysterious portents. Tomorrow we expect to unveil a new feature on Overlawyered.com, but we’re not supposed to tell you what it is yet. Now, is that mysterious enough to make you come back, or what?
February 2-4 — Annals of zero tolerance: pointing chicken finger. “An 8-year-old boy was suspended from school for three days after pointing a breaded chicken finger at a teacher and saying, ‘Pow, pow, pow.'” The Jonesboro, Ark., school district, scene of a multiple shooting by a student three years ago, maintains a zero-tolerance policy on weapons, extending in this case to edible objects used as pretend-weapons. “Kelli Kissinger, mother of first-grader Christopher, said she believed the punishment was too severe. ‘I think a chicken strip is something insignificant,’ she said. ‘It’s just a piece of chicken.'” The school’s principal “said the school has zero-tolerance rules because the public wants them.” (“Boy suspended for pointing chicken finger like gun”, AP/CNN, Jan. 31).
February 2-4 — “Juries handing out bigger product liability awards”. Figures for cases collected by LRP Publications show a median award of $500,300 in 1993 rising to $1.8 million in 1999, while plaintiff win rates rose from 39 percent to 46 percent over the same period. Such numbers must be weighed with extreme caution, since they represent only a sampling of all cases (in fact, this group’s numbers on jury awards rely on self-reporting by winning lawyers, an obviously unscientific method vulnerable to manipulation), since they jump around a lot from year to year, and since median figures (half-higher, half-lower) are not nearly so useful as averages in trying to gauge the overall impacts on society of such litigation. (The median earthquake in India this year may have been quite moderate.)
Trial lawyers have their spin all ready: they’ve just gotten really selective in taking cases, you see, so those they do file are the ones that deserve much more money. They also call attention to the ongoing decline in the number of product liability cases filed in federal court, which has dropped steeply, from 32,856 in 1997 to 14,428 in 2000. Of course the main reason for this is that they’ve been filing cases instead in state courts, perceived as more plaintiff-friendly in recent years. (AP/CNN, Jan. 31; Geraldine Sealy, ABC News/Yahoo, Jan. 30)
February 2-4 — Crime does pay. Settling a lawsuit, the city of Denver has agreed to pay $1.2 million to teenager DeShawn Hollis, “who was shot by the police three years ago, moments after he had burglarized a house.” (Michael Janofsky, “Denver to Pay $1.2 Million to Young Burglar Shot by the Police”, New York Times, Jan. 31)
February 2-4 — AGs’ inflammable policy. Royalty disputes between state governments and oil and gas companies are not new, but state attorneys general have lately taken to hiring private tort lawyers to press their state’s claims in exchange for a share in the booty, and the lawyers are using their well-honed skills to whip juries into awarding sums far in excess of the original dispute. Quotes our editor (James Glassman, “Publicity-seeking politicians and contingency-fee lawyers corrupt the law”, TechCentralStation/ Reason Online, Jan. 29).
February 2-4 — One million pages served on Overlawyered.com. Last month set a new traffic record, as did last week … thanks for your support!
February 20 — Australia: student wins millions over corporal punishment. “A man has been awarded more than [A]$2.5 million in damages for the pain and suffering he has endured since receiving the strap at school in 1984.” The Catholic Education Office has decried as “manifestly excessive” a court’s award to 30-year-old Paul Hogan of Sydney, who says being twice subjected to stropping as a student 17 years ago has left him with chronic pain and ruined his career hopes of becoming an engineering project manager. The second punishment had been administered to Hogan after he had called the school’s headmaster a “black bastard”. (Ellen Connolly, “$2.5m payout over school punishment”, The Age (Melbourne), Feb. 15) (& update Dec. 15-16: appeals court rules award excessive)
February 20 — “Overlawyered & Overgoverned”. In what is becoming something of an annual tradition, our editor devotes his Reason column to a roundup of last year’s highlights from this website, proceeding month by month from January (“New York City announced that it did not intend to give back the brand-new $46,000 Ford Explorer it had seized from 34-year-old construction worker Joe Bonilla after his arrest on drunk-driving charges, even though Bonilla had been found not guilty of the charges”) through December (Great Britain announces that soldiers’ exposure to the noise from military brass bands violates occupational-safety regulations). (March).
February 16-19 — “Angelos made rare donation to GOP”. During the last election cycle the torts magnate and Orioles owner made himself “one of the five biggest Democratic donors in the country. He gave nearly $1 million, most in the form of unregulated soft money. But just before the election, Angelos delivered a rare contribution to a Republican: $25,000 to Sen. Orrin G. Hatch, making the Baltimore trial lawyer the largest single donor to the Utah senator’s re-election campaign.” The safety of Hatch’s seat was never in doubt, and the senator won by an overwhelming margin; “I don’t follow his activities,” claims Angelos regarding the senator’s official work as chair of the Judiciary Committee, which oversees proposed curbs on litigation as well as the continuation of the baseball antitrust exemption. (Paul West, Baltimore Sun, Feb. 9).
February 16-19 — Tobacco arbitrator: they all know whose side I’m on. “Texas Tech University School of Law in Lubbock recently found itself in the ethical crosshairs over a $12.5 million donation it solicited from Wayne Reaud, a prominent trial attorney and alumnus of the school. Texas Lawyer reported earlier [in 2000] that the situation was ‘raising eyebrows’ in the state, because the school’s dean, Frank Newton, solicited the donation and then later agreed to serve on an arbitration panel setting fees for lawyers in the state’s $17.3 billion settlement with cigarette manufacturers. The problem: Reaud was one of the lawyers due to receive part of the eventual $3.3 billion fee. Newton saw no conflict since everyone, including the tobacco firms, knew where his loyalties lay. ‘There’s no question about who I am or what my role was,’ he said. ‘The tobacco companies knew that I was going to try and get the most money for Texas [and the attorneys].'” Are we the only ones who are having to rethink associating the term “arbitrator” with such presumed virtues as neutrality, objectivity and impartiality? (“Tough Questions: Taking the High Road”, National Jurist, Oct. 2000; “Donor remains generous after donation ‘not enough'”, AP/ AmarilloNet.com, Sept. 12 (school says Reaud would have to give twice as much for it to rename itself after him); Linda P. Campbell and John Moritz, “Lawyers who led Texas’ assault on the tobacco industry awarded $3.3 billion”, Fort Worth Star-Telegram, Dec. 11, 1998).
February 16-19 — Expanding definitions of child abuse. Only an extremely conservative parent these days would punish a child for using profanity by washing his mouth out with soap, or punish lying by putting hot pepper on the child’s tongue. And only an extremely progressive parent would dispense condoms to her sexually active 13-year-old son. What both manners of parenting have in common in America today is that they can get you into deep trouble with child welfare authorities and even put you at risk of jail time. (Paul Craig Roberts, “Targeting Parents”, TownHall.com, Dec. 13; “Criminalizing sex ed”, Feb. 1).
February 16-19 — Trial lawyers (some of them) yank Nader funding. Peeved at the longtime litigation advocate for helping defeat Al Gore, some leading trial lawyers are pulling back the generous contributions they’d been making to the Nader network of pressure groups. For example, prominent plaintiff’s aviation attorney Lee Kreindler has un-pledged his firm’s $10,000 pledge to Nader’s Aviation Consumer Action Project, and others are said to have cut their support of his Center for Auto Safety, Center for the Study of Responsive Law, Public Citizen and so forth. (This is soooo confusing since the official line of many Nader organizations had been that the trial bar was not an important source of funding for them.) Even San Antonio personal injury attorney Pat Maloney (“We support him overtly, covertly, in every way possible”, he once said of Nader — see June 13, 2000) says he’s not giving his usual $5-10 K. All together now: boo-hoo! (Tatiana Boncompagni, “Nader Facing Trial Lawyer Backlash”, Legal Times, Feb. 15).
February 14-15 — E-privacy invasion made simple. As Bill Gates and all the rest of the world now knows, getting sued under American rules means that hostile lawyers can demand back copies of more or less every byte of e-mail you’ve sent or received from your workplace, which they can then trawl through in search of the bits that make you look worst. Now specialized “electronic discovery” companies have sprung up to assist in this process; an exec with one such company says reading your opponent’s past e-mails as part of the “discovery” process should be “as easy as surfing the Internet”. Toward that salutary end, new technology allows electronic discovery “to be reviewed in its native format — electronically” — which means the litigator won’t risk missing the chance to inspect aspects of your correspondence like lists of bcc (blind-carbon-copy) recipients, forwarding trails, or revision time-stamps. (Virginia Llewellyn, “Discovery the E-Way”, Texas Lawyer, Feb. 1). And messages you thought you deleted long ago (Ross Hanig, “Computer Forensics Lab Plumbs the Depths of E-Mail Evidence”, The Recorder (San Francisco), Feb. 14). More on electronic discovery: Thomas W. Hazlett, “Tattletale emails”, Forbes ASAP, Aug. 21 (lesson: “Burn the emails”); Chris Oakes, “This email will self-destruct”, Wired News, Sept. 21 (some ways to do that).
February 14-15 — Microdonation update. We’ve been pleased by the response during the inaugural week of Amazon.com’s new “Honor System”, which gives readers a chance to make small donations ($1 to $50) to support websites they enjoy. (This site was among Amazon’s picks as a participant in the launch, which resulted in a little attention for us all by itself.) Thanks to all of you who’ve contributed. We notice that several of the writer-driven sites we visit regularly, including Kausfiles, Virginia Postrel’s VPostrel.com, AndrewSullivan.com, and The Occasional, either have signed up with the system already or are talking about doing so. Think of us all (to borrow Mickey Kaus’s image) as buskers on the street, competing for you to throw your entertainment dollar into our hat (see left column of front page).
February 14-15 — $1,000/hour for shareholder class lawyers. Last month a federal judge “awarded $24.3 million in attorney’s fees — 30 percent of an $82.5 million settlement — to the team of plaintiffs’ lawyers in the class-action shareholder’s suit against Aetna Inc.” Attorneys from Savett Frutkin Podell & Ryan and the law offices of Bernard M. Gross, both of Philadelphia, and New York’s Milberg Weiss Bershad Hynes & Lerach claimed to have spent a necessary 22,000 hours on a settled case accusing Aetna of painting an overly rosy picture of its merger with managed-care giant U.S. Healthcare in 1996, a merger that worked out less well in practice. Even accepting the 22,000-hour claim at face value, the fee request works out to more than $1,000 an hour, but Judge John Padova declared that it would be “arbitrary” to give the lawyers any less. At one point the underlying suit was thrown out on summary judgment, but the lawyers got it revived. (Shannon P. Duffy, “Federal Judge Awards $24.3 Million in Fees to Attorneys of Aetna Shareholders”, Legal Intelligencer (Philadelphia), Jan. 9).
February 14-15 — U.K.’s school bullying suits. Vaulting ahead of the United States in this respect, Britain has been rapidly establishing a new right for schoolchildren bullied by their classmates to sue education authorities for cash awards. The first such claim, in 1994, won £30,000 damages for derogatory remarks, teasing and name-calling, and another claim of verbal bullying won £1,500 in October. “According to the National Association of Head Teachers‘ bullying guidelines, bullying can be ‘physical, verbal, emotional, racist or sexual’, and includes ‘sarcasm, gestures, and exclusion from social groups’. And just in case that leaves anything out, the guidelines go on to say that ‘while others may not feel that certain actions or words are of a bullying nature, if the recipient feels they are being bullied that is sufficient evidence to treat the case as prima facie bullying’ … When almost anything can be interpreted as bullying, the scope for compensation claims against schools and [local authorities] is enormous. It is not necessary for the potential litigant to have suffered any physical harm. … Claims for compensation usually include the allegation that as a result of being bullied the victim underachieved or failed to reach their potential in life.” While the problem of school bullying is hardly an imaginary one, handing over authority to the courts further enfeebles schools’ authority and the democratic process. (Charlotte Reynolds, “Law School Bullies”, SpikedOnline (UK), Jan. 29).
February 12-13 — Welcome KSFO listeners. The San Francisco station’s “Web Wanderer” feature gives us a recommendation (Feb. 10), as does “O’Donnell on Computers” in an echo effect (also Feb. 10). In an interview with Online Journalism Review, Stephen Mayne, who puts out Australia’s stylish humor/politics site crikey.com.au, says the land down under has no equivalent of Matt Drudge or of American websites that provide critical coverage of a single industry or profession, such as (blush) us (Tim Blair, “Where Are Australia’s Web Voices?”, Feb. 6). And we’re linked (as one of the “Good Guys”) by numberwatch.co.uk, a new British site “working to combat Math Hysteria” by looking at “the scares, scams, junk, panics, and flummery cooked up by the media, politicians, bureaucrats, so-called scientists and others who try to confuse you with wrong numbers.”
February 12-13 — GAF sues asbestos lawyers. GAF, the biggest name in the roofing materials business, recently reorganized itself as G-1 Holdings and filed for bankruptcy under the pressure of thousands of lawsuits claiming injury from asbestos products it sold decades ago. Now it has sued several prominent asbestos plaintiffs’ law firms on a variety of grounds. It claims that Charleston, S.C.’s Ness Motley and New York’s Weitz & Luxenberg pushed forward claims by thousands of workers who lack significant health impairment despite a promise not to do so on which GAF relied in contributing to earlier settlement rounds; and it charges Dallas-based Baron & Budd, through its use of the now-famed secret “Preparing for Your Deposition” memo (more), with “intentionally generating false testimony” to support claims against former makers of asbestos-containing products and “induce inflated settlements of such claims.” (Baron & Budd chieftain Frederick Baron is the current president of the Association of Trial Lawyers of America.)
GAF/G-1 also alleges that the lawyers successfully arm-twisted other defendant companies to stop pressing for a bill in Congress that would replace asbestos litigation with an administered compensation scheme, by threatening to turn down otherwise acceptable settlement offers from those companies (thus menacing them with the risks and costs of trial) unless they agreed to stop supporting the legislation. GAF/G-1 argues (which sounds like a dubious line of argument to us) that this variety of hardball violated its constitutional right to petition the government for redress of grievances; a more apt criticism of the law firms (if the allegations turn out to be true) would be that they stood ready to sacrifice the interest of some current clients, who might have been well served by accepting immediate settlements, so as to maximize the legal clout enjoyed by future claimants (we would never imagine that the lawyers’ opposition to administered compensation had anything to do with their own self-interest). One of the opposing lawyers calls GAF’s suit “desperate”. (Mark Hamblett, “Asbestos Lawyers Named in Civil RICO Suit”, New York Law Journal, Jan. 12). (See update Dec. 10.)
February 12-13 — Sleepin’-lawyer case to get more review. The full Fifth Circuit U.S. court of appeals has agreed to consider whether Death Row inmate Calvin Burdine should automatically be assumed to have been deprived of his constitutional right to a fair trial if his lawyer fell asleep during parts of that trial, or whether, as the majority of a three-judge panel had it, the appropriate inquiry is whether the dozed-through portions of the proceedings were important enough to have made a difference in the outcome. Episodes of barrister somnolence recur often enough in Texas capital jurisprudence that the locals term the resulting appeals “sleepin’-lawyer cases”. (Mary Alice Robbins, “Sleeping Lawyer Case Reheard by 5th Circuit”, Texas Lawyer, Jan. 30; “Court revisiting murder case in which lawyer dozed”, AP/CNN, Jan. 22). Update Aug. 20-21: court rules trial improper, new trial likely.
February 12-13 — Batch of reader letters. We hear from our correspondents regarding the “chicken-finger” and “dramatic-reading” zero-tolerance cases; more instances of food companies’ asserting intellectual property claims over seemingly familiar munchies; how personal responsibility should cut both ways in the Cincinnati all-you-can-drink contest case; and what you may not have known about trifecta and perfecta payouts.
February 28-March 1 — Put out that match. Environmental activists are stepping up efforts to curb agricultural burning, a practice common among farming peoples since prehistoric times. One pressure group in Washington state filed a complaint a year and a half ago charging that the state was violating the Americans with Disabilities Act by issuing permits to wheat farmers to burn the stubble of their fields, the argument being that the smoke from the practice could aggravate existing respiratory distress among the disabled. Last March the state entered into a pact with the activists in which it agreed, among other things, to “conduct airplane flights … to assess compliance with legal permitting requirements for wheat-stubble burning” and to enter mediation concerning other demands. (Department of Ecology news release, March 3, 2000). And via Irk Magazine (Nov. 1) we learn of the existence of Burning Issues, founded by a Sierra Club activist, whose mission is to crusade against the burning of wood — that is to say, wood as in fireplaces and wood stoves. Its website includes headings like: “The holidays — the deadliest time of the year” with advice on ways to roast chestnuts other than on an open you-know-what, as well as its motto: “Learn Not To Burn”. The ever-meddlesome American Lung Association has come out for tighter restrictions on household woodburning, declaring that “individuals should avoid burning wood in houses where less polluting heating alternatives are available” — which is to say, rejecting entirely as an adequate reason for snuggling in front of a fireplace simply that you and your snugglee might enjoy doing so. (Government Relations position, April 24, 1999).
February 28-March 1 — “It’s time to disarm the hired guns”. “‘He acted as a lawyer,’ said longtime Clinton adviser Harold Ickes of his law partner William Cunningham’s pardon work while he was treasurer of Hillary Clinton’s Senate campaign. … The legal profession can’t take much more of this free publicity.” (Arianna Huffington, syndicated column, Feb. 26).
February 28-March 1 — By reader acclaim: suing over circumcision. William Stowell is suing the hospital where he was born, saying that his adult sex life is not as much fun for him and his partners as it might have been because it subjected him as an infant to the surgical procedure of circumcision. “Stowell is just a test case for a new niche of personal-injury caselaw being carved out by Atlanta lawyer David Llewelyn, who has become to the anti-circumcision camp what Johnnie Cochran is for celebrities accused of horrendous, made-for-TV crimes. More than a decade since the first ‘wrongful circumcision’ case, Llewelyn has been increasingly successful at winning settlements ($65,000 in a 1995 case, for example) and blocking unwanted circumcisions.” (Gersh Kuntzman, “Sex life not good? Sue!”, Newsweek/MSNBC, Feb. 26)
February 27 — Appeals panel: schools’ harassment rule unconstitutional. A panel of the Third Circuit U.S. Court of Appeals has unanimously ruled that the State College, Pa. school district impermissibly infringed on freedom of expression when it adopted a policy banning a broad range of name-calling and other deprecating speech directed at students’ sex, race, color, national origin, age, disability, or “other personal characteristics” such as “clothing,” “appearance,” “hobbies and values” and “social skills”. “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause,” wrote Judge Samuel Alito. “Moreover, the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.” (April White, “3rd Circuit Finds School Anti-Harassment Policy Violates Free Speech Rights”, The Legal Intelligencer (Philadelphia), Feb. 16).
February 27 — Forbidden paint zone. Touring a school in her New York City council district, Eva Moskowitz noticed that although most of each classroom had been newly painted, the upper part of the walls and the ceiling conspicuously hadn’t been. It turned out to reflect a systemwide work rule: custodians can only paint the walls up to ten feet, beyond which you have to call in the painters. It’s “a bizarre and wasteful approach to maintenance that we would never accept in any other context. Would you want your apartment to be painted in two steps, perhaps years apart? Your inconvenience would be doubled,” to say nothing of how the results would look. “The 10-foot rule is a symptom of a much deeper problem. We are at the mercy of an educational monopoly, a system that is the sole repository of public funds for education and therefore competes with no one for the privilege of educating our children.” (Eva Moskowitz, “Paint by Numbers”, The New Democrat Online, Dec. 20) (via WSJ Opinion Journal).
February 26 — Insurance class settlement scuttled. Following scrutiny of the case by a reporter for the Albuquerque, N.M. Journal, Santa Fe attorney Gary Duncan has dropped a proposed settlement of a class action against the MassMutual life insurance company which would have paid him millions of dollars while all but two policyholders received no cash at all. “The lawsuit accuses MassMutual of failing to disclose installment charges that it levies on policyholders who pay annual premiums over time rather than in one lump sum. The proposed settlement called for Duncan to receive $5 million in cash, a $3 million life-insurance policy and annual payments of $250,000 for life. The two MassMutual policyholders named as plaintiffs in the lawsuit would have shared $400,000, but 6 million other current and past policyholders represented by Duncan would have received nothing.”
“The insurance company has acknowledged not expressly stating installment charges in policies, but it has said policyholders could easily calculate such charges from payment schedules. It also has said that its policies have been approved by state insurance regulators,” according to reporter Thomas Cole in the Albuquerque paper. More than a dozen similar class actions have been filed against insurers in New Mexico courts, and in December state judge Robert Scott approved a settlement in a case against Primerica Life Insurance Co. in which lawyers shared $7.5 million in fees and costs, the company agreed to improve disclosures, two named plaintiffs got $30,000 each, and the other 3 million members of the plaintiff class got $0.00. Although Duncan wasn’t one of the lawyers in the Primerica case, one lawyer who was, Floyd Wilson of Albuquerque, also turned up as one of the two named plaintiffs in the MassMutual case “and was to receive $250,000 under the proposed settlement.” (Thomas J. Cole, “Lawyers Reap Millions in Suits Against Insurers”, Albuquerque Journal, Feb. 18; “Attorney Backs Out of Insurance Settlement “, Feb. 23). Noted class-action objector Lawrence Schonbrun calls the MassMutual settlement “the poster child for class action abuse” (press release, not online, law offices of Lawrence Schonbrun, (510) 547-8070). (DURABLE LINK)
MORE ON CLASS ACTIONS: Tatiana Boncompagni, “Businesses, Lawyers Gird for Tort Battle”, Legal Times, Feb. 14 (class action reform shaping up as one of earliest legal-system fights in Congress this year); Amanda Levin, Insurers Cry Out for Class-Action Reform, National Underwriter, April 24, 2000, reprinted at United Farmers Agents Association site (big class actions have insurers alarmed; quotes our editor); Mary Alice Robbins, “Tort Reformers Pushing for Limits on Class Actions — Again”, Texas Lawyer, Feb. 12, reprinted at CALA Houston site; and perhaps the least shocking headline of the year 2000: Maggie Mulvihill, “Lawyers fight cap on class action fees”, Boston Herald, Oct. 10.
February 23-25 — Hugh Rodham’s “success fee”. What’s so awful about President Clinton’s brother-in-law charging presidential pardon-seekers on a contingency basis, accepting his whopping fee from them only if Brother Bill can be prevailed on to grant the clemency? Doesn’t that just guarantee customer satisfaction on the part of the client? Ira Stoll asked that question in yesterday’s SmarterTimes (Feb. 22) so here’s one answer: lawyers are supposed to act as officers of the court, which means they’re obliged to refrain from doing many things that might make their clients happy at the expense of justice. If you incentivize lawyers too sharply by promising an instant fortune if they find a way to win, more of them will fall into ethical lapses and bad judgment (disgracing their senator sis, for example) in the quest to find get-rich-quick cases of this sort and make them come out the right way. That’s why most legal systems ban contingency fees for lawyers as unethical, and why ours used to do so too (more by our editor on this: part one, two). See also Chris Suellentrop, “Explainer: Should Hugh Rodham Be Disbarred?”, Slate, Feb. 23) (Florida ethics rules forbid contingency payment in criminal cases, but it’s not clear whether pardon lobbying counts as such).
February 23-25 — “P.C., M.D.” Sally Satel is making a stir with her critique of the politicizers of medicine, particularly the “indoctrinologists” who seem to have taken over much of the field of public health. She summarizes her thesis in this talk before the American Enterprise Institute. (“Postmodern Medicine”, Bradley Lecture Series, Jan. 8) (more about book)(New Republic review by Sherwin P. Nuland, Feb. 19).
February 23-25 — “Cop’s claim: Gun belt too heavy”. “A five-year Federal Way Police Department veteran has filed a $57,000 damage claim against the city, saying he was forced to wear a heavy leather gun belt and holster that damaged his hip.” Roger Baldwin, 29, says he has developed bursitis. (Seattle Post-Intelligencer, Feb. 22).
February 23-25 — Top jury awards soar in 2000. “Each year, there are record jury verdicts handed out somewhere. But 2000 saw the largest verdict ever awarded — $145 billion in a products liability class action. Indeed, massive awards in nearly every category jumped significantly last year.” Especially hot: awards for patent infringement and other IP claims. (“The Verdict on Jury Awards in 2000”, National Law Journal, Feb. 15; Margaret Cronin Fisk, “Patent Victories Reflect 2000 Trend”, Feb. 19; “Jury verdicts rise despite economy: paper”, Reuters/FindLaw, Feb. 9).
February 21-22 — 3Com prevails in shareholder suit. A California judge has dismissed on summary judgment a shareholder class action against 3Com, which had alleged that the high-tech firm misled investors in 1996 and 1997. “Despite the 1995 Private Securities Litigation Reform Act, 3Com — like other companies dealing with dips in the stock market — has faced a flood of securities fraud class actions. … ‘They were tired of getting sued,’ [said Keith Eggleston, a Wilson Sonsini lawyer who defended 3Com]. ‘A lot of companies settle these because they need to get rid of distraction and it’s the path of least resistance.’ … Since the 1995 legislation, securities class action filings in federal courts have increased from 188 in 1995 to 238 in 1999, according to National Economic Research Associates, an economic consulting and analysis firm based in New York. The cost of settlements has also risen substantially in the past five years, from $8.5 million to $12 million.” (Shannon Lafferty, “Judge Dismisses Securities Fraud Suit Against 3Com”, The Recorder (S.F.), Jan. 31).
While the case is a setback for plaintiffs’ attorneys Milberg Weiss Bershad Hynes & Lerach, which has sued 3Com three times in recent years, the law firm fared better in a White Plains, N.Y. courtroom where a federal judge ruled that Milberg had not maneuvered improperly to secure lead-counsel status in a class action against Oxford Health Plans Inc. (see Jan. 18). Judge Charles Brieant rejected contentions by Oxford’s lawyers, Sullivan & Cromwell, that Milberg’s clients had been trying to sue despite favorable results on their Oxford investments. (Jonathan D. Glater, “Judge’s Ruling Is Victory for Law Firm’s Reputation”, New York Times, Feb. 16).
February 21-22 — ABA criticizes zero tolerance. Who says we’re doomed always to disagree with the leadership of the American Bar Association? They’ve now voted to oppose zero tolerance school discipline policies (“ABA Opposes ‘Zero Tolerance’ in Schools”, AP/ABCNews.com, Feb. 20). And the L.A. Times reports that school districts around the country have been quietly dropping or softening the policies, appalled by their tendency toward results both harsh (straight-A students kicked out for having a nip in the limo on prom night) and irrational (Seattle officials first expelled, later contenting themselves with suspending, a student who had a box cutter in his backpack for use in his after-hours job in a supermarket; numerous Boy Scouts got in trouble for knives; not to mention “the 10-year-old in Colorado who brought her mother’s bread knife to school by mistake and was expelled even though she had turned it over to school authorities.” “We were just throwing kids out,” said an assistant superintendent of the Brea Olinda schools in Orange County, Calif. “It was a tough-love policy without the love.” (Jessica Garrison, “Schools Learn Zero Tolerance Isn’t 100 Percent Foolproof “, L.A. Times/St. Louis Post-Dispatch, Feb. 19).
February 21-22 — Welcome visitors. We were named yesterday (Tuesday) as the latest “Cool Site” by National Review Online; cited by Scott Norvell in his FoxNews.com column on political correctness and free speech, “Tongue-Tied“; and made it onto the Wall Street Journal‘s “Opinion Journal Best of the Web” (Feb. 20). So it’s no surprise that readership of this site is on track to set another record this month. Thanks for your support!