May 10 — Another billion, snuffed. You don’t have to be a Microsoft shareholder to wonder whether antitrust law has become a destabilizing influence on the business world. In late March a Paducah, Ky. federal jury ordered U.S. Tobacco, the number one maker of snuff and chewing tobacco, to pay a staggering $1.05 billion to its smaller competitor Conwood in an antitrust dispute. UST, whose annual sales are $1.5 billion — meaning that the verdict equals the entire gross revenue it takes in over eight months of a year — makes such brands as Skoal and Copenhagen, while Conwood manufactures the Kodiak brand. The finding of $350 million in damages will be automatically trebled under antitrust law if not overturned. “Both companies accused each other of removing display racks from stores, making under-the-table cash rebates to win retailers and holding strategy sessions to plot out how to eliminate the other from the lucrative retail-checkout market.” (No! Not strategy sessions!) In addition, “Conwood attorneys accused U.S. Tobacco of spreading rumors that Conwood’s snuff contained stems and was stale.” (“U.S. Tobacco Co. Faces $1.05B Payout”, AP/Milwaukee Journal Sentinel, March 29; Andrew Edgecliffe-Johnson, “US tobacco group faces possible $1bn payout”, Financial Times, March 30)
May 10 — Court okays suit against “flagging” of test conditions. In San Francisco, federal judge William Orrick Jr. has rejected a motion to dismiss a case in which Oakland-based Disability Rights Advocates is suing the Educational Testing Service, charging that it’s discriminatory for ETS to “flag” test scores taken under special conditions. “Accommodations” such as extra or unlimited time, the right to have questions explained, and the right to use calculators have become common in recent years following the aggressive use of disabled-rights law by test-takers; in a majority of cases the operative diagnosis is not a traditional disability such as blindness or paraplegia, but one such as learning disability or attention deficit disorder. If the lawsuit succeeds in banishing the loathed asterisk, test-takers will win the right to conceal from downstream institutions, such as medical schools and employers, the fact that a particular result was achieved with extra time or other assistance. (Michael Breen, “ETS Discrimination Case Goes Forward”, The Recorder/CalLaw, April 14).
DRA director of litigation Sid Wolinsky is also representing parents in a challenge to the state of Oregon’s refusal to allow test-takers to use automatic spell-check on statewide exams. “I see an enormous amount of potential litigation” ahead on such issues, he says. In Woburn, Mass., some special-needs students are given the whole day to complete a writing exam normally administered in ninety minutes, another indication that “two national movements [are] on a collision course: disability rights and educational standards.” (Daniel Golden, “Meet Edith, 16; She Plans to Spell-Check Her State Writing Test”, Wall Street Journal, Jan. 21 (fee-based archive)).
May 10 — This side of parodies. Infant wins one-billionth-litigant prize as America adopts as new motto “It’s not my fault” (Paul Campos, “Everyone suits up for latest litigation”, Rocky Mountain News, May 2). Grim news you always feared about “gateway sodas”: (“Mountain Dew Users May Go On To Use Harder Beverages”, The Onion, April 26). And the colorless, odorless, tasteless industrial solvent and prominent component in acid rain that kills thousands of people each year, most through inhalation but also from withdrawal symptoms given its evident addictiveness. Contamination is reaching epidemic levels — the horror must be stopped! (“Ban dihydrogen monoxide!”, Donald Simanek site, undated — stored Google search).
May 9 — Mother’s Day special: Arizona unwanted-birth trial. At a trial under way in Phoenix, Ruth Ann Burns is suing her family physician and obstetrician for failing to diagnose her pregnancy as early as they should have. She says she’d have aborted her two-year-old toddler Nicholas had she known in time that he was on the way, though he is perfectly healthy and she claims to dote on him now. The doctors say Burns herself didn’t think she was pregnant when she first sought medical attention and say when the pregnancy was discovered she still had time to pursue an abortion, but chose not to. (Senta Scarborough, “Doctors sued for unwanted pregnancy”, Arizona Republic, May 4). A columnist for the Arizona Republic wonders what the boy will think when he grows up and learns that his mother swore out oaths as to his unwanted, impositional nature (E.J. Montini, “Unwanted boy blooms in the future”, May 7).
May 9 — Not with our lives you don’t. More evidence that rank-and-file police aren’t happy about Clintonites’ scheme to skew city gun procurement to punish manufacturers that don’t capitulate to lawsuits (see April 14-16). Many cities presently allow officers a choice of which gun to carry, and Smith & Wesson hasn’t been a popular choice in recent years. “Local officials acknowledge they are reluctant to risk hurting morale by ending officers’ ability to choose their weapon,” the news-side Wall Street Journal reports — “morale” being a bit of a dodge here, since the risks at issue go beyond the merely psychological. In Flint, Mich., the mayor has asked the police department to buy S&Ws, “but the chief’s firearm experts have rated the Sig Sauer as more durable and accurate, and the police rank-and-file prefer the better-known and easier-to-shoot Glock.” Miami-Dade is “considering offering a $100 rebate for selecting a Smith & Wesson”, in effect establishing the kind of experiment of which cost-benefit analysts are so fond, measuring people’s willingness to accept cash payment in exchange for giving up a degree of perceived personal safety. A second obstacle to the scheme is that most jurisdictions have open-bidding laws aimed precisely at keeping politicos from pitching public business to favored contractors on a basis other than price and quality, but Sen. Charles Schumer (Democrat, New York) helpfully plans to introduce legislation to allow bypass of such laws. (Vanessa O’Connell, “Plan to Pressure Gun Makers Hits Some Snags”, Wall Street Journal, April 11, subscription site).
Plus: The gun lawsuits have become an issue in the presidential contest, with Vice President Al Gore, one of their ardent supporters, assailing Texas Governor George W. Bush for not pledging to veto legislation that would curtail them (“Bush, Gore camp trade questions on guns, credibility”, AP/FindLaw, May 5). And: this weekend’s pro-gun-control “Million Mom March” in Washington, D.C. has picked up endorsements ranging from President Bill Clinton to plaintiff’s class-action firm Bernstein, Litowitz, Berger & Grossmann LLP and the Association of Trial Lawyers of America — if that’s much of a range, politically speaking (March sponsors list, link now dead; ATLA endorsement; Terence Hunt, “Clinton Endorses Million Mom March”, AP/Yahoo, May 8, no longer online).
May 9 — In Michigan, important judicial races. Eyes of knowledgeable litigation reformers this fall will be on Michigan where three Supreme Court justices appointed by Republican Gov. John Engler — Clifford Taylor, Robert Young and Stephen Markman — are up for election (see Jan. 31). The trio enjoy a growing reputation as thoughtful jurists who share a skepticism toward expansive new liability doctrines; the state’s trial bar is expected to pour almost limitless funds into its attempt to defeat them. “The head of the Michigan Trial Lawyers’ Association has said privately that individual law firms have pledged as much as $500,000 each for the effort”. (Abigail Thernstrom, “Rule of Law: Trial Lawyers Target Three Michigan Judges Up for Election”, Wall Street Journal, May 8, reprinted at MI site).
May 8 — No more Fenway peanut-throwing? For nineteen years Rob Barry has worked in the stands at Boston’s Fenway Park, tossing bags of peanuts to hungry Red Sox fans. Grown-ups gasp and children cheer at his sure aim in lobbing the bags across intervening rows of spectators, but now he’s in trouble with management: “Aramark, the company that provides remarkably mediocre hot dogs and $4.50 cups of beer, has a rule, and that rule prohibits vendors from throwing food in the stadium.” Although admittedly “there are no recorded cases of catastrophic injury caused by a bag of peanuts,” you can never be too safe: before long some other food vendor might follow his example, “and soon you’ll have a cotton candy spear sticking through some young fan’s eye and a cash settlement that could cost the Red Sox Nomar Garciaparra.” Barry says he’s thinking of just retiring if he can no longer practice the peanut-tosser’s art: his father worked at Fenway for 45 years, while two beer-serving sisters have put in a combined 44 years. (Brian McCrory, “Vendor tossed from the game”, Boston Globe, May 5, link now dead).
May 8 — “Lilly’s legal strategy disarmed Prozac lawyers”. Little-noted story of how drugmaker Eli Lilly & Co. has managed so far to fight off a wave of lawsuits over its antidepressant Prozac, quietly settling some stronger cases while maneuvering aggressively to win a favorable jury ruling in the relatively weak one arising from the Wesbecker (Standard Gravure) shooting-spree in Louisville. (Jeff Swiatek, Indianapolis Star, April 22).
May 8 — Trial lawyers’ political clout. “Invited Speaker: President William Jefferson Clinton” — highlight of the brochure in last week’s mail promoting the Association of Trial Lawyers of America’s 2000 annual convention in Chicago. (Does not currently appear in online version (PDF)). Among other scheduled speakers: Sens. Richard Durbin (D-Illinois) and Max Cleland (D-Georgia). “Who will be the most influential political player making independent expenditures in this year’s presidential election?” asks Wall Street Journal editorialist John Fund. The AFL-CIO, the religious right, the NRA? More likely lawyers flush with new tobacco fees: “a comprehensive study by Citizens Against Lawsuit Abuse found that trial lawyers gave 78 percent of all contributions to the Texas Democratic Party in the 1998 election cycle, when Bush was running for re-election.” (“Invasion of the Party Snatchers”, MSNBC, May 2). Last year by a 4-3 majority, the Ohio Supreme Court tossed out a 3-year-old tort reform package. Per Ohio Citizens against Lawsuit Abuse, “since 1992 the four justices in the majority received $1,528,054 from personal injury attorneys”, compared with $70,704 for the three dissenting justices. Doug Bandow, “Buying Justice: Plaintiffs’ Lawyers Reap Huge Dividends by Investing in Judges and Politicians”, syndicated column, Dec. 16, 1999, reprinted in Cato Daily Commentary, Dec. 28, 1999.
May 8 — Atlantic City mulls bond issuance to finance lawsuit payouts. The New Jersey resort city is so frequently sued, especially in employment and police cases, that it’s considering issuing special bonds to cover a possible $12.3 million exposure from 23 lawsuits. (Henry Gottlieb, “Suit City, Here We Come”, New Jersey Law Journal, April 4).
May 5-7 — Pro malo publico. Elite law firms endlessly congratulate themselves on the pro bono publico work they perform, seeing it as the “penance they pay for serving a capitalist system”, in Judge Laurence Silberman’s words. Too bad so much supposedly public-interest litigation is in reality actively harmful to the public interest as well as to the persons and institutions on its receiving end, argues Heather Mac Donald. Despite its reputation for being done gratis, pro bono work often brings in very rich court-ordered fee awards from opposing parties, and it also helps shape the legal profession’s continuing impulse to use the courtrooms for feats of social engineering. Homeless advocate Robert Hayes, who has fought for a new right of shelter-on-demand for the homeless, was asked why he litigated rather than taking his case to the legislature. “Personally, I don’t like politics,” he replied. “It’s really hard.” (Heather Mac Donald, “What Good Is Pro Bono?”, City Journal, Spring).
May 5-7 — Lion’s share. Tangled class action litigation against commodities brokerage, now the subject of a petition for review before the Supreme Court, in which plaintiffs’ lawyers were accorded $13 million in fees, twice the $6.5 million that their clients wound up getting. “The system stinks,” says Paul Dodyk of Cravath Swaine and Moore. “The class gets screwed.” Also mentions this website (Bernard Condon, “Conspiracy of Silence”, Forbes, May 1).
May 5-7 — Comment of the day. Accepting an award for general excellence at the National Magazine Awards on Wednesday, William L. Allen, editor in chief of National Geographic, said: “I would hug my staff, but our legal department has advised me not to.” (Alex Kuczynski, “Levity Prevails as Awards Are Handed to Magazines”, New York Times, May 4, no longer online).
May 5-7 — Liked your car so much we kept it. Last year New York City seized Pavel Grinberg’s 1988 Acura, Joe Bonilla’s brand-new Ford Expedition, and Robert Morris’s 1989 Grand Prix, on suspicion of their owners’ drunken driving. However, all three men were cleared of the charges in a court of law. So of course the city gave them their cars back, right? Don’t be naive…. (Gersh Kuntzman, “Rudy Driven To Excess in His DWI Crackdown”, New York Post, Feb. 7).
May 4 — Sports lawsuits proliferate. “More and more, the sports section looks like the rest of the newspaper. First commerce swallowed chunks and now the law has come along to take a bite. In the last few days, we’ve read stories about coaches suing players, fans suing players and now another player preparing to sue his league.” Toronto coach Butch Carter has now dropped his suit against Knick forward Marcus Camby (see April 25-26), but it’s still “getting tougher by the minute for pro sports leagues to call their own shots…. The chain of command in sports is being yanked at every opportunity, from all sides, often with the aid of the court system.” (Jim Litke, AP/Excite, April 27; “Raptors’ coach doesn’t get apology”, AP/ESPN, undated).
May 4 — Splash of reality. A judge has imposed sanctions of $10,000 each against New Rochelle, N.Y. attorney Gordon Locke and client Kenneth Lariviere “for bringing a frivolous breach-of-contract action against members of a board that refused to authenticate a work the two men claimed was painted by Jackson Pollock. Justice Emily Jane Goodman dismissed the action as a ‘laughable and clumsy attempt at fraud, by an individual who, like everyone familiar with the artist’s work, wishes he owned a Jackson Pollock painting.'” Cerisse Anderson, “Lawyer Fined for Frivolous Suit Over Artwork”, New York Law Journal, April 12).
May 4 — Harassment-law roundup. “The Internet start-up community is going to be a major target for sexual harassment litigation,” says management-side attorney Gregory I. Rasin of Jackson Lewis Schnitzler & Krupman, though the progress of such legal action is for the moment impeded by a job market so robust that would-be plaintiffs are “getting six job offers on the way to their lawyers’ offices,” as his colleague Garry Mathiason puts it. (Melinda Ligos, “Harassment Suits Hit the Dot-Coms”, New York Times, April 12). The Equal Employment Opportunity Commission has been filing enforcement actions to back up its position that employers violate the law if they fail to move quickly enough in cleaning up sexually and racially offensive graffiti in employee restrooms and preventing recurrence (“Chicago EEOC Makes Second Move Against On-the-Job Racist Graffiti”, Employment Law Weekly, Jan. 20). The case of Boston bar owner Tom English, subject to charges of “hostile public accommodations environment” by the Massachusetts Commission Against Discrimination for putting up allegedly insensitive seasonal bar decorations, calls attention to a troubling collision between bias law and free speech, writes UCLA First Amendment specialist Eugene Volokh (“Watch What You Say, Or Be Ready to Pay”, Jewish World Review, April 13; Federalist Society Free Speech and Election Law Newsletter, sixth March item). And a jury has awarded Staten Island cop Susan Techky $50,000 after she “testified that male officers wouldn’t talk to her, left pornographic magazines in the co-ed bathroom and watched sex videos in her presence in their quarters,” as well as keeping nude pin-ups in their locker area, which she had to walk through to get to hers. “Island cop wins discrimination suit”, Staten Island Advance, April 21).
May 3 — Ministry of love-discouragement. Complete bans on dating among office-mates are “unrealistic and difficult to enforce,” according to an attorney’s advice column on how lawyers representing management can ward off possible harassment-law liability for their firms. “More practical is to prohibit dating between management and nonmanagement personnel and to discourage, but not completely prohibit, romantic relationships between co-workers. This may require co-workers to disclose immediately any relationship to their immediate supervisor.” To reduce the likelihood of later invasion-of-privacy claims against the employer, such policies “should put employees on notice that the company reserves the right to inquire into employees’ personal lives if necessary to determine whether a relationship exists…. [A]n employer may want to include in its nonfraternization policy a statement indicating that in the event of an office relationship, the company may request that employees execute an agreement attesting to the voluntary nature of their relationship” — this to forestall the pattern now becoming familiar in which “an employee may decide, after an unpleasant breakup, that the relationship was not consensual after all.” (Nicole C. Rivas, “Employment law: ‘love contracts'”, National Law Journal, Feb. 7, not online).
May 3 — eBay yanks e-meter auctions. “E-meters” are electrical devices employed by practitioners of the Church of Scientology in counseling church adherents. Although previously used devices have been resold by private owners for years and were apparently not the subject of licensing agreements that would limit resale, the Church now asserts a copyright interest in the objects that would allow it to legally restrict their distribution, and eBay has recently begun pulling auctions of e-meters to avoid a legal run-in with the church, known in the past for frequent court clashes with its opponents. Critics say it’s another example of how the Digital Millennium Copyright Act encourages online providers to err on the side of timidity when presented with copyright assertions. (“eBay E-Meter Auctions Yanked”, Slashdot, April 28).
May 3 — Fee shrinkage. The Second Circuit U.S. Court of Appeals has upheld a federal court’s ruling that two class-action firms representing plaintiffs burned in the Drexel Burnham Lambert fiasco of the 1980s should receive $2.1 million in fees, less than 20 percent of the $13.5 million they sought. The two law firms — Milberg Weiss Bershad Hynes & Lerach and Abbey, Gardy & Squitieri — had argued that it was appropriate to apply a “multiplier” of six to the otherwise going rate for legal fees because a fee recovery of 25 percent was a “benchmark” in the practice of class action law (the recovery for the class was $54 million). However, the appeals panel upheld Judge Shirley Wohl Kram’s reasoning that the case was a promising one with almost certain prospects of a large recovery, so that enhancing rates “would likely result in [counsel’s] overcompensation.” (Mark Hamblett, “Cut in Drexel Case Attorneys’ Fees OK’d”, New York Law Journal, March 31).
May 3 — Little League lawsuits. No, they’re not just figments of tort reformers’ imaginations. In Waynesboro, N.C., Nicolas and Alina Rothenberg are suing the national and local Little League, along with local game officials, over an incident where their son was hit in the mouth with a ball, losing two teeth and experiencing “extreme pain and suffering” and emotional distress. “It was an accident,” said Tammy Meissner, the wife of defendant Michael Meissner. “My husband was hitting the ball just like he’s been hitting the ball for years and years and years.” (“Accident prompts Little League lawsuit”, AP/Winston-Salem Journal, April 23, no longer online). Another clip from mid-1998, datelined Naugatuck, Ct., describes how two teammates, both 8 years old at the time of the incident, wound up in court after Michael Albert swung his bat in the dugout and hit Brittany Gauvin in the head. (“Little League lawsuit pits 10-year-olds against each other”, AP/Danbury News-Times, June 8, 1998).
May 2 — “Access excess”. Our editor’s May Reason column explores the dangers posed by the Americans with Disabilities Act to the freedom of the Net: countless private websites are currently considered “inaccessible” and will apparently be obliged to undergo systematic redesign, an expensive and cumbersome process that will go far to stifle creative freedom in HTML design (see earlier commentaries). This column has already drawn one of the biggest reader reactions of anything we’ve published in a long time — in future updates we’ll try to share highlights from some of the many thoughtful letters that have come in. (Walter Olson, “Access Excess”, Reason, May; also reprinted at Jim Glassman’s Tech Central Station).
May 2 — North Carolina (& Kentucky & Tennessee) tobacco fees. The three leaf-growing states were among the last of the fifty to sign onto the Medicaid reimbursement lawsuits against cigarette companies, and by necessity did little of the heavy lifting in developing the case. North Carolina attorney general Mike Easley picked private lawyer John McArthur to handle the state’s grower-advocacy role in the tobacco negotiations, a task McArthur also performed for the other two states; conveniently, he happened at the time to be coming off a stint as counsel to Easley himself. Now he’s rumored to be in line for $1.5 million in fees, concededly far lower than the take of lawyers who represented other states. Why aren’t more precise figures public? McArthur says it’s because of lawyer-client confidentiality. Easley is favored for the state’s gubernatorial nomination in today’s Democratic primary, and a spokesman for his primary rival, Lt. Gov. Dennis Wicker, has called for more light to be shed on the fee details: “Certainly the people have a right to know if the attorney general’s office is North Carolina’s version of ‘Who Wants to Be a Millionaire'”. Reporter David Rice of the Winston-Salem Journal writes that “Easley has repeatedly talked about his role in the tobacco settlement, but reporters and others always got the impression that the state hired no outside lawyers in the case”; now Easley says his earlier statements indicating that no outside lawyers had been hired were mischaracterized. (David Rice, “Wicker aide calls for the disclosure of attorney’s fee”, Winston-Salem Journal, April 25; Ben White, “Primary Season Resumes in N.C., Ind.”, Washington Post, May 1, links now dead).
May 2 — IRS drops penny-collection efforts. “The Internal Revenue Service has stopped collection procedures against a Roswell[, N.M.] businessman who inadvertently came up 1 penny short on his tax return. Ernest Spence, owner of Valley Glass Co., had been required to pay $286.50 in penalties and interest for the mistake.” Mr. Spence says the error was unintended and resulted from not carrying the fractional penny while doing the arithmetic on the return. (“IRS backs off man’s penalty for 1-cent mistake”, AP/Dallas Morning News, April 30).
May 2 — Columnist-fest. More to catch up on:
* “It’s not about money, most of the plaintiffs or their lawyers will say, it’s about the healing process. Baloney.” Anne Roiphe on the prospect of Columbine litigation (“Feeling Tired? Blue? Cranky? Just Sue!”, New York Observer, May 1, link now dead).
* George Will invokes the many sound arguments against the Victim’s Rights Amendment to the Constitution (“Tinkering Again”, Washington Post, April 23). Will has been on a roll recently with columns on death row innocents, campaign regulation and the First Amendment, the Boy Scouts case, and campaign regulation again.
* Jacob Sullum on S&W’s hapless attempt at a “clarification” of its HUD-brokered settlement: “Perhaps it is dawning on Smith & Wesson’s executives that it can be dangerous to show weakness in the face of statist demands. Too bad they didn’t pay closer attention to the fate of the tobacco companies, whose efforts at appeasement have only whetted their opponents’ appetites.” (syndicated column, April 19).
May 1 — Tort city, USA. Other cities face a handful of slip-fall cases each year, but New York City gets 3,500, paying out $57 million plus large legal defense costs. When all types of injury litigation are included, the total reaches a staggering $420 million plus defense costs. What makes the political climate in New York so hostile to the city’s interest as a lawsuit defendant? One reason is the number of powerful Gotham politicians with ties to tort practice, such as Bronx Republican state senator Guy Velella, whose law firm’s successful cases against New York City include two separate injury suits on behalf of his parents. Or Assembly Speaker Sheldon Silver, who rents office space from well-connected tort firm Schneider, Kleinick, Weitz, Damashek & Shoot. Or Brooklyn Democrat Helene Weinstein, who chairs the state assembly’s Judiciary committee and “is of counsel to her father’s personal-injury firm … It’s rather like having a Microsoft lawyer in charge of the Congressional committee overseeing antitrust policy.” A jury recently took just an hour to reject a $10 million suit against the city by assemblyman John Brian Murtaugh, who had slipped on ice in a city park while walking his dog and broke his wrist. (John Tierney, “In Tort City, Falling Down Can Pay Off”, New York Times, April 15).
May 1 — “Jury flipped coin to convict man of murder”. You think this sort of thing doesn’t really happen, but it did happen last week in Louisville: “A jury unable to decide on a verdict tossed a coin last week to convict a man of murder, prompting a judge to declare a mistrial … The Jefferson County Circuit Court jury of five men and seven women deliberated about nine hours over two days last week before finding Phillip J. Givens II guilty of murder for killing his girlfriend, Monica Briggs, 29, last May.” Givens faced life in prison on the murder rap, but Judge Kenneth Conliffe declared a mistrial after word reached him of the method the jury had used to break its deadlock: one of the jurors told someone, who told a court employee, who told the judge. (Kim Wessel, Louisville Courier-Journal, April 25).
May 1 — Funny hats and creative drawing. As part of a discrimination settlement, employees of Detroit Edison now have been given an in-house “Learning Zone” where they can “map out their careers, create personal Web sites and even work on their resumes.” A reporter notes that the room “looks like a preschool for adults,” with “puzzles, funny hats, puppets and wall-mounted drawing boards.” One of the plaintiffs in the lawsuit, who has now been installed as “facilitator” of the zone, says that it makes “people feel safe, warm and creative … It’s about the employees.” (Brenda Rios, “Building Careers”, Detroit Free Press, April 27).
May 1 — In praise of bugs. “[Computers] should just work, all the time”, opines one popular tech columnist, and many others (including advocates of more stringent bug liability) likewise promote the view that “defects are a moral failing, and a complete absence of defects must be assured, whatever achieving this goal does to the cost and the schedule. But is achieving bug-free software always in the customer’s best interest?” (Gene Callahan, “Those Damned Bugs!”, Dr. Dobb’s Journal, Dec. 3, 1999, adapted as “In Praise of Bugs”, Mises Institute, March 27).
May 18-21 — “A Smith & Wesson FAQ”. An end run around democratic governance, an assault on gun buyers‘ Second Amendment liberties, a textbook abuse of the power to litigate: the Clinton Administration’s pact with Smith & Wesson is all this and more. When this website’s editor looked into the agreement’s details, he found them if anything worse than he’d imagined — for one thing, they could actually increase the number of people hurt because of gun malfunctions. (Walter Olson, “A Smith & Wesson FAQ”, Reason, June; see also David Kopel, “Smith & Wesson’s Faustian Bargain”, National Review Online, March 20, and “Smart Cops Saying ‘No'”, April 19).
May 18-21 — On the Hill: Clint Eastwood vs. ADA filing mills. The Hollywood actor and filmmaker got interested in the phenomenon of lawsuit mills that exploit the Americans with Disabilities Act (see our March 7, Feb. 15, Jan. 26-27 commentaries) when he was hit with a complaint that some doors and bathrooms at his historic, 32-room Mission Ranch Hotel and restaurant in Carmel, Calif. weren’t accessible enough; there followed demands from the opposing side’s lawyer that he hand over more than just a fistful of dollars — $577,000, the total came to — in fees for legal work allegedly performed on the case. “It’s a racket”, opines Eastwood. “The typical thing is to get someone who is disabled in collusion with sleazebag lawyers, and they file suits.” (Jim VandeHei, “Clint Eastwood Saddles Up for Disability-Act Showdown”, Wall Street Journal, May 9 — online subscribers only). The “Dirty Harry” star is slated to appear as the lead witness in a hearing on the bill proposed by Rep. Mark Foley (R-Fla.) to require that defendants be given a chance to fix problems before lawyers can start running the meter on fee-shift entitlements; the hearing begins at 10 a.m. Thursday, May 18 and the House provides a live audio link (follow House Judiciary schedule to live audio link, Constitution subcommittee; full witness list). The National Federation of Independent Business, Chamber of Commerce of the U.S., National Restaurant Association and International Council of Shopping Centers all like the Foley idea. Eastwood told the WSJ he isn’t quarreling with the ADA itself, and the proposed legislation would affect only future cases and not the one against him; but “I just think for the benefit of everybody, they should cut out this racket because these are morally corrupt people who are doing this.”
May 18-21 — “Dialectizer shut down”. “Another fun, interesting and innovative online resource goes the way of corporate ignorance — due to threats of legal action, the author of the dialectizer, a Web page that dynamically translates another Web page’s text into an alternate ‘dialect’ such as ‘redneck’ or ‘Swedish Chef’ and displays the result, has packed up his dialectizer and gone home”, writes poster “endisnigh” on Slashdot (May 17). (Signoff notice and subsequent reconsideration, Rinkworks.com site). Update: it’s back up now — see Aug. 16-17.
May 18-21 — Dusting ’em off. A trend in the making? Complainants in a number of recent cases have succeeded in reviving enforcement of public-morality laws that had long gone unheeded but never actually been stricken from the books. In Utah, Candi Vessel successfully sued her cheatin’ husband’s girlfriend and got a $500,000 award against the little homewrecker (as she no doubt views her) under the old legal theory of “alienation of affection”, not much heard of these last forty or more years. (“Spouse Stealer Pays Price: Wife Wins Case Against Mistress for Breaking Up Marriage”, ABC News, April 27). Authorities in two rural Michigan counties have recently pressed criminal charges against men who used bad language in public, under an old statute which provides that “any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.” (“2nd man hit with anti-cussing statute”, AP/Detroit Free Press, April 27) (same article on Freedom Forum). And Richard Pitcher and Kimberly Henry of Peralta, N.M., “have been formally charged by Pitcher’s ex-wife under the state’s cohabitation law, which prohibits unwed people from living together as ‘man and wife'”. (Guillermo Contreras, “Couple charged with cohabitation”, Albuquerque Journal, March 11) (update: see May 8, 2001 for newer example).
May 18-21 — Campaign regulation vs. free speech. The state of Kentucky’s Registry of Election Finance has ruled that newspapers have a constitutional right to editorialize on behalf of candidates of their choice, rejecting a complaint that characterized such endorsements as “corporate contributions” made by the newspaper proprietors. (“Kentucky election agency: Newspaper editorials aren’t contributions”, AP/Freedom Forum, May 10). A general hail of dead cats has greeted the Congressional Democrats’ lawsuit charging House Majority Whip Tom DeLay with “racketeering” over campaign fundraising practices, with Democratic operative Paul Begala calling the suit “wrong, ethically, legally and politically.” (David Horowitz, “March of the Racketeers”, Salon, May 15; Michael Kelly, “Hammering DeLay”, Washington Post, May 10). And Mickey Kaus, on his recommended Kausfiles.com website, spells out in words of one syllable to pundit Elizabeth Drew why proposed bans on privately sponsored “issue ads” run smack into the Constitution’s guarantee of free speech (“Drew’s Cluelessness: Please don’t let her anywhere near the First Amendment!”, May 7).
May 18-21 — Gotham lawyers upset at efficient jury selection. A few years ago, led by its Chief Justice Judith Kaye, the state of New York began taking long-overdue steps to reform its notorious jury selection system, under which lawyers had often been permitted to browbeat and grill helpless juror-candidates for days at a time in search of the most favorably disposed (not to say pliable) among them. The changes, which bring the Empire State more into line with the practice around the rest of the country, have markedly reduced the time jurors and others must spend on empanelment. So who’s unhappy? The state’s bar association, naturally, which opposed reform in the first place, and now complains that “attorneys are feeling increasingly constrained by time limits and other restrictions”. A survey it conducted “suggests that many lawyers feel that new practices are cramping their style.” Yes, that was the idea (John Caher, “NYS Bar Favors More Voir Dire Leeway”, New York Law Journal, April 12).
May 17 — Not my fault, I. In 1990 Debora MacNamara of Haileybury, Ontario smothered her nine-year-old daughter Shauna as she slept. Found not guilty by reason of insanity, she spent five years in mental institutions before being released. Now she’s suing two psychiatrists and her family doctor for upwards of $20 million, saying they should have prevented her from doing it. The docs say she was “an uncooperative, recalcitrant patient who didn’t take her medication as prescribed, often cancelled appointments, wouldn’t let those treating her share critical medical information and either minimized or lied about both her symptoms and state of mind.” (Christie Blatchford, “Woman sues doctors for not stopping her from killing”, National Post, May 16, link now dead)).
May 17 — Not my fault, II. “Fourteen years after accidentally shooting himself in the hand, 19-year-old Willie K. Wilson of Pontiac is pointing the finger at his father and Smith & Wesson, suing both last week for at least $25,000 in Oakland County Circuit Court.” His lawyer explains that Willie isn’t actually angry at his pa but is just going after the homeowners’ insurance money. Hey, who could object in that case? (Joel Kurth, “Son sues father, Smith & Wesson”, Detroit News, May 16).
May 17 — Comparable worth: it’s back. This time they’re calling it “pay equity”, but a new study by economist Anita Hattiangadi and attorney Amy Habib for the Employment Policy Foundation finds no evidence that the much-discussed pay gap between the sexes owes anything to employer bias, as distinct from women’s individual choices to redirect energy toward home pursuits during childbearing years (EPF top page; “A Closer Look at Comparable Worth” (PDF)). Plus: the foundation’s comments on White House pay equity report (PDF); background on comparable worth; and writings by Diana Furchtgott-Roth of the American Enterprise Institute, “Still Hyping the Phony Pay Gap”, AEI “On the Issues”, March; Roger Clegg (“Comparable Worth: The Bad Idea That Will Not Die”, National Legal Center for the Public Interest, “Briefly…” series, August 1999 (PDF); and the Chicago Tribune‘s Steve Chapman (“Clinton’s Phony Fight for ‘Pay Equity’, Feb. 24).
May 17 — Update: judge frowns on Philly’s Mr. Civility. Following up on our March 13 commentary, federal judge Herbert J. Hutton has imposed sanctions on attorney Marvin Barish, including an as yet uncalculated fine and disqualification in the case, over an incident during a trial recess in which Barish threatened to kill the opposing lawyer with his bare hands and repeatedly called him a “fat pig”. Barish’s attorney, James Beasley (apparently the same one for whom Temple U.’s law school was renamed after a large donation), said if anyone merited sanctions it was the opposing counsel, representing Amtrak, for having engaged in legal maneuvers that provoked his client to the outburst; Barish is “one of the city’s most successful lawyers handling Federal Employers Liability Act cases”. (Shannon P. Duffy, “Judge Hits Lawyer with Fine Over Alleged Threat”, Legal Intelligencer (Philadelphia), May 2).
May 17 — Disabled vs. disabled. Strobe-light-equipped fire alarms — a great idea for helping the deaf, no? A sweeping new mandate to that effect is pending before the federal government’s Access Board, which would affect workplaces, hospitals, and motel rooms, among other places. All of which horrifies many members of another category of disabled Americans, namely those with photosensitive epilepsy and other seizure disorders: In a recent survey, 21 percent of epileptics said flashing lights set off seizures for them. “Should a seizure be caused by stroboscopic alarms during an actual fire emergency, that person would be incapacitated, leading to even more danger both from the seizure and from the emergency itself.” And then there are all the false alarms. … (Epilepsy Foundation, “Legislative Alert“, Capitol Advantage Legislative Advocacy Center; Access Board, Notice of Proposed Rulemaking, relevant section (see s. 702.3)).
May 16 — Federal commerce power genuinely limited, Supreme Court rules. Big win for federalists at the high court as the Justices rule 5-4 to strike down the right-to-sue provision of the Violence Against Women Act on the grounds that the Constitution does not empower Washington to muscle into any area of police power it pleases simply by finding that crime affects interstate commerce. (Laurie Asseo, “High Court: Prosecution of Rapists Up To States”, AP/Chicago Tribune, May 15, no longer online; U.S. v. Morrison, decision (Cornell); Center for Individual Rights; Anita Blair (Independent Women’s Forum), Investors Business Daily, reprinted Feb. 4).
May 16 — Deflated. After suing automakers up one side of the street for the sin of not installing airbags earlier, trial lawyers are now suing them down the other over the injuries the bags occasionally inflict on children and small-framed adults. Last month Ford got hit with a $20 million verdict in a case where an infant was paralyzed by a Mustang’s airbag, but last week a Detroit jury declined to find liability against DaimlerChrysler in a case where an airbag detonation killed 7-year-old Alison Sanders after her father ran a red light and broadsided another vehicle. (“Jurors clear DaimlerChrysler in 1995 air-bag lawsuit case”, Detroit Free Press, May 11, link now dead; Bill Vlasic and Dina ElBoghdady, “Air bag suits unlikely to stop”, Detroit News, May 12).
Who was it that spread the original image of air bags as pillowy, child-friendly devices, the right solution for all passengers in all circumstances? Lawyers now wish to blame Detroit, but Sam Kazman of the Competitive Enterprise Institute quotes the remarks of longtime Ralph Nader associate Joan Claybrook, who headed the National Highway Traffic Safety Administration during the Carter-era rulemaking: “Air bags work beautifully,” she declared, “and they work automatically and…that gives you more freedom than being forced to wear a seat belt.” (Letting people think an airbag might relieve them of the need to buckle up is now, of course, seen as horrifically bad safety advice.) Moreover, quoth Claybrook, the devices “fit all different sizes and types of people, from little children up to…very large males.” (“Only Smart Air Bag Mandate is No Mandate at All”, CEI Update, March 2).
Even more striking, CEI’s Kazman dug up this photo of Ralph Nader, who long flayed manufacturers for their delay in embracing the devices, using an adorable moppet as an emotional prop. Sam says the photo is from a 1977 press conference; he thinks it would make a lovely display in Nader’s planned museum of product liability law in Winsted, Connecticut. [DURABLE LINK]
MORE SOURCES: Bill Vlasic and Dina ElBoghdady, “Dead girl’s dad fights air bags”, Detroit News, March 29; Janet L. Fix, “Father’s heartbreak fueled lawsuit after 1995 accident”, Detroit Free Press, April 5; “The Deployment of Car Manufacturers Into a Sea of Product Liability? Recharacterizing Preemption as a Federal Regulatory Compliance Defense in Airbag Litigation”, Note (Dana P. Babb), Washington U. Law Quarterly, Winter 1997; Scott Memmer, “Airbag Safety”, Edmunds.com, undated web feature; Michael Fumento, “Paper Scares Parents for Politics and Profit”, 1998, on Fumento.com website.
May 16 — “Clinton’s law license”. “The Arkansas Supreme Court should take away Clinton’s law license because he lied under oath,” declares the editorially middle-of-the-road Seattle Times. “It’s unlikely that Clinton will want to practice after he leaves the White House, but this has more to do with the legal community upholding its own ethics than the president’s next career. The American Bar Association’s standards for lawyer sanctions leave little doubt: ‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information and causes serious or potentially serious injury to a party. …’ Last April, federal judge Susan Webber Wright found Clinton in contempt for ‘giving false, misleading and evasive answers that were designed to obstruct the judicial process’ while under oath in her presence. She also has filed a complaint with the Arkansas Supreme Court, but did not recommend a specific penalty. …Clinton should surrender his license or the court should take it.” (editorial, May 15). Plus: Stephen Chapman in Slate (“Disbar Bill”, May 12). [DURABLE LINK]
May 16 — The asset hider. Curious profession of a New Yorker whose specialty consists in finding ways to help wealthy men hide assets so as to escape legal obligations to their wives. The proprietor of “Special Services” of E. 28th St. also boasts of his skill in private investigation, which didn’t prevent him from falling for the cover story of a New York Post writer who posed as a divorce-bent Internet millionaire while secretly taping their lunch (Daniel Jeffreys, “The Wealthy Deadbeat’s Best Friend”, New York Post, May 15).
May 15 — Doctor cleared in Lewis cardiac case. A team of cardiologists told basketball star Reggie Lewis that his playing days were over. Then his wife helped get him transferred under cover of darkness to a new team of doctors who said he could go on playing. Then he collapsed on the court and died. And then Donna Harris-Lewis, having already collected on her husband’s $12 million Celtics contract, sued the docs for negligence. One paid $500,000 to settle, but last week Dr. Gilbert Mudge of Brigham & Women’s won vindication from a jury. (Sacha Pfeifer, “The verdict is in: no negligence”, Boston Globe, May 9; Dan Shaughnessy, “Everybody has lost in Lewis case; let’s move on”, May 9; Barry Manuel, “As usual, only lawyers won in Lewis case”, May 11, links now dead). Earlier, Harris-Lewis drew flak by comparing herself to the families of six firefighters who died in a Worcester warehouse blaze. “Lots of money is being raised for those families, and I need to be taken care of, too. Everybody has to say I’m greedy. But I do want my money back this time around. Why should I lose?” Well, ma’am, we could start a list of reasons. … (Steve Buckley, “What was Harris-Lewis thinking?”, Boston Herald, March 28).
May 15 — The four rules of sex harassment controversies. We thought we had ’em memorized after the Anita Hill affair … then we had to unlearn all four during the late unpleasantness with President Clinton … and now they’ve all returned in coverage of the Pentagon’s Claudia Kennedy case. (David Frum, “Breakfast Table” with Danielle Crittenden Frum, Slate, May 12). In other harassment news, a jury has awarded $125,000 to a male waiter at a T.G.I. Friday’s near Tampa who said that female co-workers touched and grabbed him lewdly, that co-workers made fun of him when he complained, and that the restaurant chain proceeded to ignore his plight and retaliate against him. (Larry Dougherty, “Waiter wins suit against Friday’s”, St. Petersburg Times, May 5). And a Wisconsin appeals court has upheld a trial court’s award of $143,715, reduced from a jury’s $1 million, to a computer analyst who “said his boss spanked him with a 4-foot-long carpenter’s level during a bizarre workplace ritual” and then announced “Now, you’re one of us”. The boss testified that the spanking ceremony dated way back as an initiation at the Phillips, Getschow Co., a century-old mechanical contracting firm. (Dennis Chaptman, “Court upholds $143,715 award for spanking”, Milwaukee Journal-Sentinel, April 18).
May 15 — Convenient line at the time. Tobacco is special, said the state attorneys general who teamed up with trial lawyers to expropriate that lawful industry via litigation and share out the resulting plunder. It’s “the only product that, if used as intended, could be fatal.” And so they categorically dismissed critics’ fears that the tempting new ways of raising revenue without resorting to explicit taxation might soon be aimed at other industries. Who was fool enough to believe them? (Victor E. Schwartz, “Trial Lawyers Unleashed”, Washington Post, May 10).
May 15 — Gloves come off in Mich. high court race. We warned you it would get nasty (see May 9, Jan. 31), but not this soon. At a recent NAACP gathering, the Michigan Democratic Party circulated a flyer stating that incumbent Justice Robert Young opposes the 1954 U.S. Supreme Court decision in Brown v. Board of Education, which ended racial segregation in public schools. Young, who is African-American and whose record on the court has been conservative, terms the flyer “virulent race-baiting” and untrue and has demanded an apology. State Democratic chairman Mark Brewer dares Young to sue, but declines to name a source for the flyer’s characterization of his views on Brown. (Kathy Barks Hoffman, “Race for 3 spots on top court sparks charge of ‘race-baiting'”, AP/Detroit News, May 11; George Weeks, “Election of justices needs changing” (editorial), May 11).
May 12-14 — Microsoft opinion: the big picture. However well they’re doing in Judge Jackson’s court, Janet Reno’s trustbusters are getting slammed in the court of public opinion, which continues lopsidedly opposed to breakup. While a Harris poll finds less than 40 percent of respondents believing that Bill Gates’s company has treated its competitors fairly, that’s still a better rating than Joel Klein’s Antitrust Division gets: only one in three believe the government treated Microsoft fairly. (Paul Van Slambrouck, “High-tech trust-busting a bust with public today”, Christian Science Monitor, May 5; Manny Frishberg, “Public favors MS in antitrust”, Wired News, May 4). The Independent Institute’s Alex Tabarrok calculates that the loss in capital value of Microsoft as an enterprise amounts to $768 for every person in the United States, and that most of this sum can plausibly be attributed to the legal action rather than to business setbacks. (“The Anti-entrepreneurs,” May 1). Given that the rest of the high-tech sector has also taken a thrashing, economics Nobelist Milton Friedman says Silicon Valley “must rue the day that they set this incredible episode in operation” by siccing the government on their Seattle rival (statement reprinted at National Taxpayers Union site, April 28).
Does all this augur a revival of “vigorous”, sock-’em-hard antitrust enforcement, not much seen in the last couple of decades? If so, ABC’s John Stossel has some deserving nominees for breakup far more monopolistic than Windows ever was, including the U.S. Postal Service — yes, it’s still unlawful to compete with it in first-class service (“Give Me a Break: Government Protection?” (video clip), May 5). And Michael Kinsley wonders why the U.S. government, if it really takes trustbusting principles seriously, still takes such an indulgent, price-fixers-will-be-price-fixers approach toward OPEC — a genuinely noxious cartel that inflicts great damage on the American economy, and whose member countries (among them Russia, Norway, Venezuela and the spectacularly ungrateful Kuwait and Saudi Arabia) appear to suffer nary a repercussion in the conduct of U.S. foreign policy (“Readme: Oil Crooks”, Slate, March 27).
May 12-14 — Dismounted. “A therapeutic horse-riding program for 600 mentally impaired Oakland County children and teenagers is in jeopardy this summer, a potential victim of a liability impasse among lawyers and bureaucrats.” Parents praise the Silver Saddles program, but the county is unwilling to accept liability exposure for it, which could be financially catastrophic in the event of an accident to a young rider. (Hugh McDiarmid, Jr., “Riding-therapy program faces liability hurdle”, Detroit Free Press, May 5).
May 12-14 — Steady aim. Everyone who supports democracy — as well as everyone who opposes the abuse of litigation — should favor legislative measures aimed at reserving gun regulation to elected lawmakers rather than the machinations of ambitious trial lawyers, argues Vince Carroll of Denver’s Rocky Mountain News (“Gun bill puts halt to lawsuit abuse”, April 30). And Washington, D.C.’s Sam Smith, who shows regularly that there’s still life on the Left in his remarkable online Progressive Review (which we’re pleased to see often picks up items from this space), has put up a page of reasons “why politicians, moms, and progressives should stop pressing for more gun control laws” (“Wild Shots“).
May 11 — “Ad deal links Coke, lawyer in suit”. Both the Coca-Cola Co. and plaintiff’s attorney Willie Gary are denying a linkage between Gary’s role as a lawyer in the current high-profile race bias litigation against Coke and the company’s just-announced agreement — financial terms not disclosed — to become a major advertiser on a cable channel of which Gary is part owner. Last month amid fanfare the Florida lawyer arrived in Atlanta on his private jet (“Wings of Justice”) to assume representation of several of the original plaintiffs in the much-publicized employee litigation against the beverage company. “I want a settlement that’s fair and just,” he said then. “I don’t come cheap. I think big, real big.” On Tuesday Coke announced a major five-year deal to buy ads on the fledgling Major Broadcasting Cable Network, which Gary helped launch and of which he is chairman and chief executive. Gary says his clients are aware of the deal and says, “There’s absolutely no conflict. We’re not friends. We’re business people. Coke is not giving me anything. … It’s goods in exchange for service. … No way this is a conflict.'”
A sometime fund-raiser for the Rev. Jesse Jackson’s Rainbow/PUSH coalition, Gary is best known in legal circles for the ruinous $500 million verdict he obtained in a Jackson, Mississippi courtroom against the Loewen Group, a Canadian-owned funeral home chain, in what had previously seemed a routine commercial dispute (see our editor’s account). Last week he announced that he was demanding nearly $2 billion from the Burger King Corporation on behalf of Detroit restaurateur La-Van Hawkins, whose UrbanCityFoods business has not fared as well as expected in its operation of franchised hamburger units. Gary’s entry last month into the Coke case came at a time of unpleasant back-and-forth charges between some of the employees who were first to sue and class-action lawyers who had worked to assemble their and others’ complaints into a suit on behalf of the company’s entire black workforce, led by Washington, D.C.’s Cyrus Mehri, of Texaco fame (our account of that one), with the Mehri camp saying the individuals were holding out for too much money for themselves personally as distinct from the class, and a PUSH coalition activist, Joseph Beasley, countering that under the settlement anticipated from the class action the “lawyers get all the money” while “the black community is left high and dry”.
SOURCES: Henry Unger, “Ad deal links Coke, lawyer in suit”, Atlanta Journal- Constitution, May 10 (fee-based archive); Constance L. Hays, “Coke to Advertise on Channel Owned by Lawyer in Bias Suit”, New York Times, May 10, no longer online; Betsy McKay, “For Coke’s Big Race Lawsuit, a New Wild Card”, Wall Street Journal, April 14 (subscription); Beth Miller, “Cable network to focus on black families”, Media Central, Dec. 13; Trisha Renaud, R. Robin McDonald, and Janet L. Conley, “Money, Trust Behind Coke Split”, Fulton County Daily Record, April 14; “Burger King Has Greater Troubles: Internationally Renowned Trial Attorney Willie Gary Asks Burger King for $1.9 Billion”, Excite/PR Newswire press release from Gary’s firm, May 3; Eric Dyrrkopp and Andrew H. Kim, “Prospecting the Last Frontier: Legal Considerations for Franchisors Expanding into Inner Cities”, Franchise Law Journal, Winter 2000, reprinted at Bell, Boyd & Lloyd site.
May 11 — Tort fortune fuels $3M primary win. In Charleston, W.V., attorney and former state senator Jim Humphries has won the Democratic nomination in the Second Congressional District after investing $3 million from the fortune he made in asbestos litigation. Humphries’s “big-budget, slickly produced campaign” overpowered his primary rivals, who included one of the state’s best-known politicians, Secretary of State and former U.S. Representative Ken Hechler, as well as state senator Martha Walker, who chairs the state senate’s health and human resources committee; between them Hechler and Walker split about half the primary vote. The campaign “shattered all state records for spending in a congressional primary election.” Humphries now faces Delegate Shelley Moore Capito, R-Kanawha, who ran unopposed in the Republican primary. (Phil Kabler, “Humphreys’ $3 million pays”, Charleston Gazette, May 10).
May 11 — Stubbornness of mules a given. A federal court in North Carolina has dismissed a lawsuit by the producers of the soon-to-be-released film “Morgan’s Creek” against animal wrangler Alicia Rudd over the refusal of her trained mule to sit down on cue or cooperate in other ways on the set. The producers said the animal’s recalcitrance had prolonged shooting by an extra day, costing upwards of $110,000, but the judge said there was no proof that Rudd breached a promise or misrepresented her ability to control the mule. (“Judge finds stubborn mule no cause for action”, AP/CNN, May 8).
May 31 — From our mail sack: ADA enforcement vignettes. Reader Roger Clegg of the Center for Equal Opportunity tells us that every month or so he visits the Department of Justice to pore over the new batch of publicly released enforcement letters from the department’s Civil Rights Division. Although the letters are made available by the Department in such a way that parties in the disputes are not individually identifiable, they do provide insight into current enforcement priorities and trends. A few highlights that Roger passes on from letters issued by DoJ regarding the enforcement of the Americans with Disabilities Act:
“The Civil Rights Division’s Disability Rights Section has in the last month or so sent a lot of letters to doctors’ offices on behalf of hearing-impaired patients complaining that the doctors don’t have interpreters (a couple of the offices didn’t understand why the doctor and patient couldn’t just write notes to each other) [see also Sept. 29-Oct. 1].
* “A dance studio got a DOJ letter when it refused to continue giving lessons to a student who was prompting complaints from other students’ parents because accommodating her took up so much class time.
“Other interesting issues prompting DOJ letters:
* “A cruise ship that refused to let a blind person on board for a trip unless he had a medical note stating he could safely travel alone;
* “An HIV-positive student who demanded an air-conditioned classroom;
* “A blind person who wasn’t allowed into a doctor’s office because in the past other patients had had an allergic reaction to his guide dog; and
* “A truly tragic case — a man with a ‘manual disability’ who could not pull the trigger on a gun.”
May 31 — Jumped ahead, by court order. A Delaware court has found that Christiana Care Health Services breached its contract with Ahmad Bali, MD, when it demoted him from third-year to second-year resident. Rather than simply allot monetary damages to Dr. Bali for the trouble and expense of having been held back needlessly at the second-year stage, the court took the more unusual step of ordering the hospital to accord him fourth-year residency status as if he’d completed the third-year program. The result is to put him in the same place he’d be if not for the hospital’s earlier breach, which is certainly one kind of fairness for which the law sometimes strives. But what if third-year residency isn’t simply a re-run of second-year, but involves the acquisition of distinctive skills? (Miles J. Zaremski, “Delaware court reinstates terminated resident”, American Medical News, March 20).
May 31 — Columnist-fest. More opinions worth considering:
* Paul Campos weighs in on the “pink-skirt” case, in which a transgendered employee of a Boulder, Colo. bagel shop is suing because its owner wouldn’t let him wear that girlish item of apparel on the job (“The strange land of identity politics”, Rocky Mountain News, May 16; Matt Sebastian, “Bagel shop wouldn’t let him wear pink dress [sic], so he sues”, Scripps Howard News Service, May 11).
* Big American companies whose German operations were seized by the Nazi regime and run with forced labor are now coming under legal pressure to pay “reparations”. “If we Jews care about justice and retribution, we should not take this money,” argues Sam Schulman of Jewish World Review. “It is tainted — tainted with innocence. And taking money from the innocent blurs the line between innocence and guilt.” (“Some Reparations Money is Better Left on the Table”, Jewish World Review, May 18). An earlier Schulman column examines the drift of the campaigns against the Swiss and the Austrians away from the aim of individualized justice for expropriated families and toward the expiation of inherited national guilt by way of large transfer payments. (“David Irving’s Mirror for the Jews”, May 2).
* Rachelle Cohen of the Boston Herald can’t help wondering: does Massachusetts really need to spend tax money setting up a state-sponsored law school? (“Must taxpayers pay to create more lawyers?”, May 24).
May 30 — You were negligent to hire me. “A former Escondido school district administrator who resigned two years ago after revelations of a 1963 rape-related conviction won a $255,000 jury verdict yesterday against Superintendent Nicolas Retana and the district.” Thirty-four years previously, at age 17, William Zamora had been convicted in New Mexico of assault with intent to rape, serving two years in prison and later being pardoned by the governor. When he applied for an $88,000/year administrative job in 1997 with the district near San Diego, he failed to disclose his long-ago conviction on his employment application, later saying he thought the pardon had wiped his record clean. But an FBI fingerprint check turned it up, and Zamora resigned at once: a California law passed the previous year forbade school districts to hire persons with felony sex convictions. He then proceeded to sue the district and supervisor, contending that if they “had done their jobs properly… they would have waited until the crime check came back before hiring him,” and charging that his privacy had been invaded when Retana conversed with an Albuquerque school board member about the conviction. Last week a jury awarded him $15,000 on the negligent hiring claim and $240,000 on the invasion of privacy claim. “Superior Court Judge Lisa Guy-Schall kept jurors from hearing the details of Zamora’s conviction, in which he pleaded guilty. She said she didn’t want to preside over a mini-trial of events that happened 37 years ago.” (Onell R. Soto, “Ex-administrator wins $255,000 verdict against Escondido schools chief, district”, San Diego Union-Tribune, May 24; and earlier Union-Tribune coverage, May 17, May 21, 1999; May 20, 1999).
May 30 — Illegal to talk about drugs? The so-called Methamphetamine Anti-Proliferation Act, which has been moving rapidly through Congress with relatively little public outcry, would make it a felony punishable by ten years in prison “to teach or demonstrate to any person the manufacture of a controlled substance, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of a controlled substance,” knowing or intending that a recipient will use the information in violation of the law. The aim is to shut down the publishing of books, magazines and websites that furnish information on drug manufacture or use, such as High Times magazine and Lycaeum.org. The prohibition on “distribut[ing]” such information “to any person, by any means” could make it unlawful even to post a weblink to offshore sites of this nature. Another provision of the bill would make it a crime to “directly or indirectly advertise for sale” drugs or drug paraphernalia — and whatever the peculiar phrase “indirectly advertise” may mean in practice, it’s probably not good news for the First Amendment. A Washington Post editorial calls the provisions “overly broad” and “so vague as to threaten legitimate speech”: “The mere dissemination of information, especially without specific intent to further crime, seems within the bounds of free speech protections.”
SOURCES: “The Anti-Meth Bill” (editorial), Washington Post, May 26; Amy Worden, “House Bill Would Ban Drug Instructions”, APBNews, May 10; Declan McCullagh, “Bill criminalizes drug links”, Wired News, May 9; Jake Halpern, “Intentional Foul”, The New Republic, April 10; “Senate panel considers ban on Internet drug recipes”, AP/Freedom Forum, July 29, 1999; Debbi Gardiner and Declan McCullagh, “Reefer Madness Hits Congress”, Wired News, Aug. 6, 1999; J. T. Tuccille, “Shall make no law”, About.com Civil Liberties, Aug. 15, 1999; Phillip Taylor, “Marijuana activists denounce proposed ban of drug recipes”, Freedom Forum, Jan. 6.
May 30 — Won’t pay for set repairs. Orkin, the pest control company, is declining to compensate two consumers who’ve requested that it pay for fixing their TV sets after they attacked unusually convincing simulations of cockroaches that ran across the screen in its ads. The company says a Tampa, Fla., woman tried to kill the insect by throwing a motorcycle helmet at her set, while another man damaged his set by throwing a shoe at it. (“‘I felt really stupid’: Orkin cockroach commmercial has some viewers fooled “, AP/Seattle Post-Intelligencer, April 6).
May 30 — Welcome San Jose Mercury News visitors. At Silicon Valley’s hometown paper, columnist John Murrell (“Minister of Information”) proposes this among sites “for your weekend Web wandering pleasure … your darkest visions of out-of-control litigiousness will be confirmed”. (May 26 entry). The weblog at uJoda.com (“From My Desktop”), where you can pick up Macintosh icons and graphics, reports that its author “found a great site called overlawyered.com, though not eye candy, it is rich in content” (May 6 entry). The pro-Second Amendment Fulton Armory featured us as their site of the week a couple of weeks ago, and we’ve also been linked recently by the Australian Public Law page maintained by the law faculty at the Northern Territory University, down under (“Not much to do with public law but we couldn’t help ourselves,” they explain re including us); by the Smith Center for Private Enterprise, a free-market think tank at Cal State, Hayward; by ClaimsPages.com, which offers a vast array of insurance-oriented links; and by the website of attorney Jule R. Herbert, Jr. of Alabama’s Gulf Coast, among many others.
May 26-29 — “Dame Edna’s Gladioli Toss Lands in Court”. “Dame Edna Everage”, the character created by Australian comedian Barry Humphries (website, B’way show), makes a custom of ending her show by flinging gladioli to the crowd, but now a man has hired a Melbourne law firm to undertake legal action, saying a stem of one of the large flowers struck him in the eye. 49-year-old singing teacher Gary May is “seeking unspecified damages for pain and suffering, loss of income and medical expenses.” (Reuters/Excite, May 25, lnk now dead). Last year (see Dec. 7) NBC’s “Tonight Show with Jay Leno” was sued by an audience member who says he was injured by one of the free t-shirts propelled into the crowd.
May 26-29 — “Skydivers don’t sue”. Lively Usenet discussion last month and this among skydiving enthusiasts (rec.skydiving) over recent lawsuits in the sport. In one, Canadian skydiving acrobat Gerry Dyck is suing teammate Robert Laidlaw over a 1991 accident during an eight-man stunt jump near Calgary in which Dyck was knocked unconscious and severely hurt on landing. (Jeffrey Jones, “Canadian skydiver sues teammate for mid-air crash”, San Jose Mercury News, April 24, no longer online). The other followed the death of James E. Martin, Jr., a Hemet, Calif. dentist and veteran of more than 5,000 jumps who perished when a line snagged on his parachute, his fifth time out on that gear. Now his widow’s suing the gear maker, Fliteline Systems of Lake Elsinore, Calif.; vice president Mick Cottle of Fliteline, the first defendant named in the suit, says Martin was a “close friend”. “Few lawsuits over sky diving deaths ever reach judgment,” reports the Riverside Press-Enterprise. And “most makers of sky-diving gear do not carry liability insurance, which reduces the likelihood of plaintiffs gaining a settlement.” About 32 sky-diving deaths occur annually in the U.S., of which about five lead to lawsuits, according to one frequent expert witness in the field; he estimates that plaintiffs have won only 1 or 2 percent of cases he’s seen, though it’s unclear whether he’s including settlements in that estimate. (Guy McCarthy, “Lawsuit blames gear in sky diver’s death”, Riverside Press-Enterprise, May 8, link now dead; Remarq saved thread; Deja.com archive, recent search on “lawsuit” — hundreds of posts in all)
May 26-29 — Insurers fret over online privacy suits. The wave of lawsuits against Yahoo!, DoubleClick and others for privacy sins has insurance companies “concerned they will have to pay for potentially massive torts they didn’t anticipate” in liability policies they’ve written for the dot-com sector. “‘If it’s not the next really big issue, it’s one of the next big issues where we can expect a lot of litigation,’ said Thomas R. Cornwell, VP of the technology insurance group” for insurer Chubb. “Plaintiff’s attorneys are honing their skills and preparing for a boom in such lawsuits,” reports the magazine Business Insurance in its May 22 lead story. “‘Just as the Internet itself is a growth area, Internet law is being recognized as a growth area within the legal profession,’ said David Sobel, general counsel for the Electronic Privacy Information Center in Washington. The nonprofit organization supports plaintiff lawsuits on Internet privacy.” “My guess is that now that the blood is in the water there will be a lot of plaintiffs’ attorneys sniffing it up,” said one lawyer who’s sued Yahoo. (Roberto Ceniceros, “Internet privacy liability growing”, Business Insurance, May 22, fee-based archives). Expect the cost of securing liability insurance for an Internet launch to rise accordingly.
May 26-29 — Suits by household pets? “Somewhere out there — maybe in a Boston zoo or a Fresno research lab — a Bonzo or Fido is biding his time, deceptively peeling a banana or playing dead, quietly getting ready to sue his master,” writes Claire Cooper of the Sacramento Bee. As animal-rights courses proliferate at law schools, activists are quietly looking for test cases in which to assert the singular new notion of standing for nonhuman creatures — with themselves as the designated legal representatives, needless to say. (“Pets suing their masters? Stay tuned, advocates say”, May 13). In March the Seattle Times profiled the Great Apes Legal Project, which views the non-human primate kingdom as plausible rights-bearing clients. This provoked a letter from reader David Storm of Everett, who said the article was “very interesting, but the goal doesn’t go far enough. In addition, we should declare the apes to be lawyers, which would simultaneously improve our legal system.” (Alex Tizon, “Cadre of lawyers working to win rights for apes”, Seattle Times, March 19; letters, March 21). See also Roger Bryant Banks, “Animal Dogma”, SpinTech (online), May 12, on the question: if Chimp v. Zoo is a good case, why not also Chimp v. Chimp, following incidents of violence or harassment?
May 26-29 — EPA’s high courtroom loss rate. Most federal agencies win most of the time when their regulatory decisionmaking is challenged in federal court, but the Environmental Protection Agency in recent years has been a glaring exception, losing a large share of the cases it has defended, including high-profile battles over electric car mandates, gasoline reformulation, and Clean Water Act permit-granting, among many others. Why does it fare so badly? Jonathan Adler of the Competitive Enterprise Institute thinks one reason is that agency policymakers adopt extreme legal positions, partly due to unclear authorizing statutes, partly due to zealousness among political appointees at the top. “Environmental Performance at the Bench: The EPA’s Record in Federal Court”, Reason Public Policy Institute, Policy Study #269; “EPA in Need of Adult Supervision”, CEI Update, March 1; Adler’s home page. Ben Lieberman, also of CEI, calls attention to one of the more unusual confrontations the EPA has gotten into of late: its crackdown on coal-burning utilities has led it into a showdown with the government-owned Tennessee Valley Authority, which means it’s the feds versus the feds. (“EPA’s tug at TVA’s power”, May 19, no longer online).
May 26-29 — Ready to handle your legal needs. Stephen Glass, who resigned in disgrace from The New Republic just over two years ago after being caught making up stories, is graduating this month from Georgetown Law School. The Pop View has posted this summary of the episode for anyone who’s forgotten (via Romenesko’s Media News).
May 25 — Conference on excessive legal fees. In Washington today from 10 to 4 Eastern, the Manhattan Institute, Federalist Society, Hudson Institute and Chamber of Commerce of the U.S. team up to host a conference on ideas for “protecting unsophisticated consumers, class action members, and taxpayers/citizens” from overreaching legal fees (schedule and confirmed speakers at Federalist Society site; live broadcast at U.S. Chamber site requires RealPlayer).
May 25 — Thomas the Tank Engine, derailed. “Children’s online privacy”: the sort of sweetness-and-light notion practically no one’s willing to criticize in principle. Yet regulation is regulation, and seldom lacking in real-world bite. Declan McCullagh at Wired News reports that the popular children’s TV show Thomas the Tank Engine has had to discontinue sending regular email bulletins to legions of young fans because obtaining parental consent individually would be too cumbersome. The show’s website cites the Children’s Online Privacy Protection Act, which took effect last month. Other online publishers are also unilaterally cutting off subscribers under the age of 12, to their distress. (“COPPA Lets Steam Out of Thomas”, May 13; Lynn Burke, “Kid’s Privacy an Act, or Action?”, April 20).
May 25 — “Taking cash into custody”. Local law enforcement agencies systematically dodge the constraints of state forfeiture law to help themselves to proceeds after seizing cash and property in traffic stops and drug busts, according to this Kansas City Star investigation. And though Congress’s enactment of federal-level forfeiture law reform was much trumpeted earlier this year (see April 13, Jan. 31), it’s likely to leave many of the abuses unchecked. (Karen Dillon, Kansas City Star, series May 19-20).
May 25 — What the French think of American harassment law. Pretty much what you’d expect: “Fifteen years after the first harassment trials, puritanism in the office is total,” marvels the New York correspondent of a French paper named Liaisons Sociales. “A suggestive calendar in a man’s locker? Prohibited. Below-the-belt jokes? Totally excluded. Comments about physique? Illegal. The result is that behavior in the workplace has been profoundly changed. The doors of offices are always open. The secretaries are always present during tete-a-tete meetings, in case they need to be witnesses in litigation.” A few feminist French lawyers would like to emulate the American way of doing things but lament that in their country litigation is frowned on, damages are set at a token level, and, as one complains, “current French law makes no mention of things like improper jokes”. (Vivienne Walt, “Curbing Workplace Sexism Evolving Slowly in France,” New York Times, May 24 (reg)). Plus: chief exec of leading British fashion chain canned after inappropriate conduct (Fraser Nelson and Tim Fraser, “Pat on the bottom costs boss £1m job” Sunday Times (London), May 10).
May 25 — His wayward clients. In March, in 275 pages of court filings, Allstate, Geico and other insurers filed a lawsuit charging what they called “the most extensive fraud upon the New York no-fault system that has ever been uncovered,” suing 47 doctors, chiropractors and businessmen all told. But the complaint did not name as a defendant a lawyer who’s given legal advice or assistance to just about every one of those 47 defendants; he’s a former chairman of the State Bar Association’s health committee who rents office space in a politically connected law firm. Among his specialties is to assist chiropractors and others in getting around a New York rule that no one can own a medical practice other than a licensed doctor. The complaint says a Milford, Conn. physician who holds a license to practice medicine in New York had served as the front guy for no fewer than 29 medical practices in the state. (Glenn Thrush, “Black Belt Lawyer Robert B orsody Evades $57 Million Fraud Lawsuit”, New York Observer, March 20).
May 24 — Musical chairs disapproved. “The traditional children’s party game of musical chairs has been accused of breeding violence,” reports the BBC. A booklet produced under the auspices of the British education ministry by a group called the Forum on Children and Violence argues that the diversion rewards the “strongest and fastest” children and suggests that nursery schools consider an alternative game such as “musical statues”. The education spokeswoman for the opposition Tories, Theresa May, called the advice “political correctness gone mad”. (“Musical chairs ‘too violent'”, BBC News, May 23).
May 24 — After the great power-line panic. Eleven years ago reporter Paul Brodeur penned a series of articles for The New Yorker charging that electric power-line fields were causing childhood cancers and other ailments, later published as a book entitled Currents of Death. Trial lawyers promptly went on the warpath, and the resulting binge of scare publicity terrified countless parents. Hundreds of millions in litigation costs later, the suits have mostly fizzled. But have any lessons been learned? Forbes reprints an excerpt from Robert L. Park’s much-discussed new book, “Voodoo Science” (Oxford U. Press). (“Voodoo Science and the Power-Line Panic”, May 15). Among groups that stoked the panic were Trial Lawyers for Public Justice: see, e.g., “Names in the News: Kilovolt Cancer”, Multinational Monitor, March 1992 (second item, quoting TLPJ’s Michael Koskoff).
May 24 — Smudged plumage. The Baltimore Orioles, owned by trial lawyer zillionaire/political kingmaker Peter Angelos, say that in order not to threaten the “goodwill” arising from their exhibition performance against the Cuban national team last year (see Dec. 9, Oct. 19 commentaries), they’ll refuse to hire any baseball player who defects from Cuba. Roger Clegg of the Center for Equal Opportunity calls this stand “morally indefensible — telling those fleeing a totalitarian regime that they are unwelcome and unemployable” — and wonders how well it accords with the federal laws banning employment discrimination on the basis of national origin and lawful-immigrant status. Maybe the team could beat such charges by arguing that it has nothing against Cuban émigrés based on their national origin as such — it might hire them, after all, if they were loyal Castroites playing with Fidel’s approval. (“Peter Angelos in foul territory”, National Review Online, May 18; “Orioles Avoid Cuban Players Who Have Defected”, Reuters/Yahoo, May 17, link now dead).
May 24 — ADA & the web: sounding the alarm. “It’s simply a matter of (Internet) time before pitched battles over accommodations in the virtual world rival their physical counterparts,” writes MIT’s Michael Schrage (“Brave New Work: E-Commodating the Disabled in the Workplace”, Fortune, May 15; quotes our editor). The National Federation of the Blind’s recent lawsuit against AOL is “a 500-pound gorilla that party-goers can’t ignore,” according to a metaphor-happy lawyer with Morrison & Foerster. “…If the court rules that AOL is a public accommodation, it could require anyone engaging in e-commerce to make their Web site …accessible to people with disabilities.” (Ritchenya A. Shepherd, “Net Rights for the Disabled?”, National Law Journal, Nov. 15, 1999). “In a few years, if regulatory history is repeated, any Web site that doesn’t provide government-sanctioned equal access for the handicapped could be declared illegal,” warns an Internet Week columnist (Bill Frezza, “The ADA Stalks The Internet: Is Your Web Page Illegal?”, Feb. 28). Coming soon, we hope: a few highlights from the mail we’ve been inundated with on this topic, much of which we haven’t even had a chance to answer yet (thanks for your patience, correspondents!).
May 24 — Bargain price on The Excuse Factory. Usually we urge you to buy books through our online bookstore, but right now Laissez Faire Books is offering an unbeatable discount on our editor’s book about law and what it’s doing to the American workplace, The Excuse Factory, just $12.25 while they last (hardcover, too). And it makes a good occasion to check out the rest of the LFB catalogue. (Order direct from them.)
May 23 — Steering the evidence. The FBI is probing charges of evidence- and witness-tampering in a liability case that led a San Antonio judge last week to impose sanctions on plaintiff’s attorneys Robert Kugle, Andrew Toscano and Robert “Trey” Wilson. Bridgett and Juan Fabila had sued DaimlerChrysler, demanding $2 billion, over a 1996 accident in Mexico which killed several family members in their Dodge Neon. Their lawyers alleged that the car’s steering column decoupler was defective. But someone anonymously sent DaimlerChrysler evidence of misconduct by its adversaries, and eventually the carmaker succeeded in laying before 224th District Judge David Peeples evidence of the following:
* The steering decoupler was broken by the time the carmaker was allowed to see it, but photographs taken shortly after the accident showed it intact. The plaintiff’s lawyers denied for two years having any knowledge of such photos, and then, when they came to light, moved unilaterally to drop the suit, then argued (unsuccessfully) that the judge had no authority to impose sanctions on them because his jurisdiction ended with the suit. Close inspection of the steering decoupler revealed the minute scrapings of wrench marks and other signs of deliberate tampering.
* One of the attorneys’ investigators “tried to bribe two Mexican highway patrol officers in an attempt to change their testimony and threatened the family of a Red Cross official who said Fabila told him the accident had occurred because her husband fell asleep behind the wheel.”
* The “investigator who took the first set of photographs claim[ed] Wilson told him in March that his firm was ‘running a bluff, but we had our hand called.'” The lawyers said later that their real demand was for $75 million, of which they would get 40 percent as their share, according to the San Antonio paper’s Rick Casey.
Senior partner Robert Kugle of the Kugle Law Firm counter-accused the car company of itself bribing witnesses and tampering with evidence, while Wilson and investigator Stephen Garza “both asserted their Fifth Amendment right not to testify”. After an inquiry, Judge Peeples dismissed the Fabila family’s suit with prejudice, ordered attorneys Kugle, Toscano and Wilson to pay $920,000 in legal expenses that DaimlerChrysler had incurred — it’s not quite impossible for a defendant to recover its legal costs in an American courtroom — and said he planned to report his findings to the state bar and to county prosecutors for possible action. The FBI has seized the vehicle pursuant to further investigation, according to Casey. Kugle continues to declare his innocence of wrongdoing and says he intends to appeal; the other two attorneys were not available to reporters for comment. Ken Glucksman, associate general counsel of DaimlerChrysler, said the case was “the most flagrant example of misconduct I’ve seen in more than 20 years as a lawyer” and said he hoped the attorneys were disbarred. Update: final ruling by judge sets stage for appeal (June 26). Further update (Mar. 17, 2003).
SOURCES: Adolfo Pesquera, “Sanctions issued in tampering case”, San Antonio Express-News, May 18; San Antonio Express-News coverage by Rick Casey, various dates; “Judge Dismisses $2 Bln Suit vs. Daimler”, Reuters/FindLaw, May 18; “DaimlerChrysler wins $920,489 in fines against three Texas attorneys”, AP/Detroit Free Press, May 18; Dina ElBoghdady, “DaimlerChrysler fights baseless suits”, Detroit News, May 19; “Lawyers who sued DC fined”, Detroit Free Press, May 19, link now dead.
May 23 — “Toronto Torch” age-bias suit. Shirley Zegil, 52, has filed a complaint with the Ontario Human Rights Commission, saying she was improperly discharged by a Brantford strip club because of her age. “They told me I was too old and fat,” said Zegil, who has been disrobing for audiences for more than two decades and performs under the nicknames “The Contessa” and “Toronto Torch”. But she still has plenty of loyal fans among older clubgoers: “A girl is never too old to strip,” she says. (Dale Brazao, “Stripper, 52, a winner in my court of appeal”, Toronto Star, May 22, no longer online).
May 23 — Favorite bookmark. Edward E. Potter is president of the Employment Policy Foundation, which plays a prominent role in debates on workplace issues in the nation’s capital. Yesterday the Cincinnati Enquirer asked him to list his favorite bookmarks, and this site made it onto the short list. Thanks! (“Weighing future of work force” (interview), May 22).
May 23 — “Lawyers’ tobacco-suit fees invite revolt”. Arbitrators’ award of $265 million to Ohio tobacco lawyers was the final straw for editors of USA Today, which came out editorially yesterday in favor of limiting attorneys’ tobacco swag. Fee hauls have mounted to $10.4 billion, including $3.4 billion for lawyers representing Florida, $3.3 billion (Texas), $1.4 billion (Mississippi), and $575 million (Louisiana), the latter of which works out, according to a dissenting arbitrator, to $6,700 an hour. The paper calls the “mega-paydays” a “sorry legacy” of the tobacco deal and notes that lawyers “who represented many states are being paid repeatedly for piggyback efforts.” (May 22).
May 23 — “Harvard reenacts Jesus trial”. Among dramatis personae in simulated trial of founder of Christianity: divinity prof Harvey Cox as Pontius Pilate and, as defense lawyer for the man of Galilee, none other than Alan Dershowitz, who “said the role fulfilled a lifelong dream. ‘Jesus is the one client I’ve always wished I could have represented,’ said the law professor whose clients have included O.J. Simpson, Claus von Bulow and Leona Helmsley”. Arguing that crucifixion was too severe a penalty for defying Roman authorities, Dershowitz “came up with a novel substitute punishment. ‘I think it would be appropriate to tie him in litigation and appeals for years,” he said. ‘That way he would spend his life with lawyers, whom he hated.'” (Richard Higgins, Boston Globe/Omaha World Herald, May 13).
May 22 — Texas tobacco fees. “Every three months, like clockwork, another $25 million arrives for the five Texas tobacco lawyers.” The five are fighting tooth and nail to avoid being put under oath by Texas Attorney General John Cornyn, a Republican, about how they came by that money, specifically, “longtime allegations that his predecessor, Dan Morales, solicited large sums of money from lawyers he considered hiring” for the state’s tobacco case. (Wayne Slater, “Trial lawyers give heavily to Democrats”, Dallas Morning News, May 14; Clay Robison, “Cornyn moves in on anti-tobacco lawyers”, Houston Chronicle, April 27; Susan Borreson, “Motions Flying Again Over Tobacco Lawyers’ Fees”, Texas Lawyer, July 26, 1999; “Lawyers Challenge AG’s Subpoenas”, Nov. 17, 1999).
So far, according to the Dallas Morning News report, the five have taken in more than $400 million of the billions they expect eventually from the tobacco settlement, and have recycled a goodly chunk of that change into political donations — more than $2.2 million in unrestricted soft money to the Democrats already in this election cycle, with further sums expected. Walter Umphrey, along with members of his Beaumont firm, “has put at least $350,000 into Democratic coffers. ‘The only hope of the Democratic Party is that the trial lawyers nationwide dig down deep and the labor unions do the same thing,’ he said. In addition to Mr. Umphrey and his firm, John Eddie Williams and members of his Houston firm have given $720,000; Harold Nix of Daingerfield, $420,000; Wayne Reaud of Beaumont, $250,000; and John O’Quinn of Houston, $100,000.”
May 22 — Not child’s father, must pay anyway. “Told by his girlfriend that she was pregnant, Bill Neal of Glasgow Village presumed he was the father and agreed to pay child support.” Eight years and $8,000 in payments later, Neal was curious why the child didn’t take after his looks, arranged for a DNA test to be done, and discovered the boy was someone else’s. So far the courts have ruled that he has to keep paying anyway because he didn’t contest the matter earlier. The legal system is big on finality on the matter of paternity, as men have learned to their misfortune in similar cases lately in Ohio, Texas and Pennsylvania. (Tim Bryant, “Man must pay support even though he is not boy’s father”, St. Louis Post-Dispatch, May 17, no longer online). Plus: John Tierney on “throwaway dads” (“An Imbalance in the Battle Over Custody”, New York Times, April 29 (requires registration)).
May 22 — “Jury Awards Apparent Record $220,000 for Broken Finger”. It happened in Atlanta after 41-year-old dental hygienist Linda K. Powers took a spin on the dance floor with Mike D. Lastufka but came to grief when Lastufka “tried a shag-style spin move”; her thumb wound up broken and she sued him. The previously reported Georgia record for a broken finger or thumb was $20,000 to a tennis instructor hurt in an auto accident. (Trisha Renaud, Fulton County Daily Report, Jan. 28).
May 22 — Annals of zero tolerance. In Canton, Ohio, a six-year-old boy has been suspended from school for sexual harassment after he jumped from the tub where he was being given a bath and waved out the window to a school bus that was picking up his sister (Lori Monsewicz, “Boy, 6, jumps from tub into sex harassment trouble”, Canton Repository, May 11). In the latest “finger-gun” incident, the principal of a Boston elementary school visited a class of second-graders to admonish several of them for making the thumb-as-trigger gesture during a supervised play-acting session; the youngsters were not subjected to discipline, however. (Ed Hayward, “School gives hands-on lesson after kids pull ‘finger guns'”, Boston Herald, March 28). And the American Bar Association Journal — who says its views don’t coincide with ours occasionally? — points out that “a child is three times more likely to be struck by lightning than to be killed violently at school” and recounts many noteworthy cases: “A second-grader who accidentally grabbed her mother’s lunch bag containing a steak knife was disciplined despite turning the bag over to her teacher as soon as she realized her mistake. A middle-schooler who shared her asthma inhaler on the school bus with a classmate experiencing a wheezing attack was suspended for drug trafficking.” “Kids are not going to respect teachers and administrators who cannot appreciate the difference between a plastic knife and a switchblade,” says Virginia lawyer Diane Fener. (Margaret Graham Tebo, “Zero tolerance, zero sense”, ABA Journal, April).