What are the implications of the Constitution’s Appointments Clause for the tenure of acting attorney general Matthew Whitaker? Thomas Berry, recently a legal associate at the Cato Institute and now at the Pacific Legal Foundation, takes up the question in the Yale Journal of Regulation. More: Michael Rappaport; and earlier at Overlawyered on other Appointments Clause controversies.
Caleb Brown interviews Trevor Burrus and me for the Cato Daily Podcast on Lucia v. SEC, Thursday’s Supreme Court case on the Appointments Clause and administrative law. Crossing to join with the conservatives, Justice Elena Kagan wrote a narrowly tailored opinion invalidating the method by which the Securities and Exchange Commission had appointed its five administrative law judges at the time of the dispute (it has since fixed its appointment method). The majority opinion carefully sidesteps the issue of how ALJs may properly be removed; Justice Breyer, who largely concurred with the result on separate grounds, explored some of those issues in his opinion. See also Ilya Shapiro on June 21 as “government structure day” at the Supreme Court, and with more on the merits. Related: Federalist Society forum on Michael Rappaport proposal for replacement of ALJs with Article III judges.
Explainers by Trevor Burrus and William Baude at Forbes and by Nina Totenberg at NPR . “Noel Canning” is a packaging company in Yakima, Wash., not a person like Noel Coward, but confusingly enough is represented by Noel Francisco of Jones Day, who is a person. Coverage of yesterday’s Supreme Court argument from Cato’s Ilya Shapiro, who says the argument went very badly for the administration’s claims of executive power. “At one point during argument, SG Verrilli argued for Schroedinger’s Senate: in session re 20th Am, not in session for Recess Appts Clause.” [@ishapiro] Cato’s brief in the case is here.
Don’t the New Yorker’s readers deserve a better law analyst than Jeffrey Toobin? In his rant against the Canning decision, notes Ed Whelan, “Toobin asserts that there has never before been a ‘legal challenge’ to the scope of a president’s authority to make recess appointments. Somehow he missed the Eleventh Circuit’s ruling in 2004 — highlighted prominently in the D.C. Circuit opinion — in which liberal law professor Laurence Tribe and others challenged one of President Bush’s recess appointments.” [“Bench Memos“]
P.S. Mike Rappaport on another datum omitted by Toobin amid his fevered charges of judicial partisanship: “Prior to Judge Sentelle’s decision, the only judicial opinion to adopt the same position was written by liberal 11th Circuit Judge Rosemary Barkett, following a brief filed for Ted Kennedy by liberal Marty Lederman.”
- How feckless for an editorial board to undermine institutional legitimacy of a key check on executive power, the Supreme Court, by spreading notion that some of its seats are “stolen” [New York Times]
- Eastern District of Tumbleweeds? High court asked to curtail forum shopping in patent suits [Washington Legal Foundation on TC Heartland LLC v. Kraft Foods Group Brands LLC, more on E.D. Tex.]
- Federal charges result in plea deal. State then charges defendant over same conduct. Ought to call it double jeopardy, even if that means overturning misguided “dual sovereignty” doctrine [Ilya Shapiro and Thomas Berry on cert petition in Walker v. Texas]
- “Justices Struggle With Cheerleader Uniform Case That Holds Big Implications For Fashion” [Daniel Fisher on Star Athletica v. Varsity Brands]
- More Federalist panels on Justice Scalia’s influence: showcase panel on his constitutional influence; federalism and separation of powers with Roger Pilon et al.; the impact of his writing style; criminal law and the Fourth Amendment; Heller, guns, and the Second Amendment;
- Appointments Clause makes one of few checks on unaccountable-by-design CFPB, Court should enforce it seriously [Ilya Shapiro on cert petition in Gordon v. CFPB]
In 2002, Congress passed the Sarbanes-Oxley Act in response to the Enron scandal, greatly expanding regulation of American business. It sharply increased criminal penalties for securities law violations, and created an extremely broad new cause of action for employees seeking to sue over alleged retaliation. It also set up the Public Company Accounting Oversight Board (PCAOB) to regulate the accounting firms that audit America’s public companies. The PCAOB has generated endless red tape. Its rules micromanaging companies’ internal controls, which require auditors to examine such minute details as which employee has access to which computer password, cost the American economy billions of dollars, contributing to an overall price tag for Sarbanes-Oxley of at least $35 billion a year.
A small accounting firm, assisted by the Competitive Enterprise Institute, recently filed a lawsuit challenging the PCAOB as a violation of the Constitution’s Appointments Clause. The lawsuit points out that PCAOB’s board is neither appointed by the President with the consent of the Senate, as the Appointments Clause requires for the nation’s principal officers, nor is it picked by the head of an executive branch department, as the Clause requires for “inferior” officers. Yet the board exercises significant authority under federal law, including the power to investigate accounting firms and fine them up to $2 million for inadvertent violations of PCAOB rules. One of Sarbanes-Oxley’s sponsors candidly admitted that the PCAOB would effectively wield “massive, unchecked powers.” PCAOB board members are accountable only to the SEC, whose five commissioners, acting as a group, pick them to serve for a period of five years.
The PCAOB has moved to dismiss the lawsuit on procedural grounds, alleging that the constitutional arguments should have been presented first to the SEC rather than the courts, and that the accounting firm and its co-plaintiff, the Free Enterprise Fund, lack standing to challenge the manner in which the PCAOB’s board is appointed. Today, a federal district judge in Washington, D.C., will hear arguments on the PCAOB’s motion to dismiss.
On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:
KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.
But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.
This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”
You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”
We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.
I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).
- New Yorker legal correspondent Jeffrey Toobin as unreliable narrator, part 483 [Damon Root, Pejman Yousefzadeh re: attack on Justice Clarence Thomas]
- Background of Halliburton case: Lerach used Milwaukee Archdiocese to pursue Dick Cheney grudge [Paul Barrett, Business Week] More/related: Alison Frankel, Stephen Bainbridge (rolling out professorial “big guns”), Chamber Institute for Legal Reform (paper, “What’s Wrong With Securities Class Action Lawsuits?”)] & update: new Chamber paper on extent of consumer losses;
- Roger Pilon on NLRB v. Canning recess-appointments case [Cato]
- States’ efforts to tax citizens of other states stretch Commerce Clause to breaking point [Steve Malanga]
- Richard Epstein on his new book The Classical Liberal Constitution [Hoover, more; yet more on why Epstein considers himself a classical liberal rather than hard-core libertarian]
- Corporate law and the Hobby Lobby case [Bainbridge]
- Some state supreme courts including California’s interpret “impairment of contracts” language as constitutional bar to curbing even future accruals in public employee pension reform. A sound approach? [Sasha Volokh first, second, third, fourth, fifth posts, related Fed Soc white paper]
- Copyright violations on PIPA sponsors’ websites? [VICE] “A SOPA Analogy” [David Henderson]
- DEA agent who mistakenly shot self loses appeal [BLT, earlier]
- “And people say libertarians lack empathy”: AP adopts pre-emptively disapproving tone toward advances in pain control [Coyote; related, Alkon on Primatene Mist]
- Cordray, NLRB recess picks allow President to reward key Democratic interest groups [Copland, Examiner] Litigation Lobby gunning for ban on consumer finance arbitration as Cordray priority [CL&P] Mike Rappaport on the recess appointment clause [LLL, earlier here, etc.]
- Keystone’s just the half of it: US environmental funders push shutdown of Canada energy production [Vivian Krause, Financial Post]
- Hot potato, or just hot business sector? “Credit Suisse Parts with Litigation Finance Group” [WSJ Law Blog]
- Speaking of shoplifters in elected office [Harrisburg Patriot-News on Perry County, Pa. case h/t commenter A.A.; earlier on California case]
December 10 — “Halliburton Shares Plunge on Verdict”. The market clipped $3.8 billion off the giant oil field service company’s share valuation after Peter Angelos got a $30 million jury award against it. “The ruling is the fourth significant asbestos ruling against Halliburton since late October, according to Merrill Lynch … Over the last 25 years, Halliburton has settled 194,000 asbestos claims, the company said. The average payment was about $200, according to Allen Brooks, executive director at CIBC World Markets. As of Sept. 30, the company faced 146,000 open asbestos claims and 182,000 more from a former subsidiary called Harbison-Walker.” (David Koenig, AP/Yahoo, Dec. 7; Neela Banerjee, “Halliburton Battered as Asbestos Verdict Stirs Deep Anxieties”, New York Times, Dec. 8). Federal-Mogul, the big auto parts maker, became the latest large bankruptcy to result from asbestos litigation with a filing two months ago (Joe Miller, “Asbestos suits hurt Fed-Mogul”, Detroit News, Oct. 2).
“In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. …What made jaws drop was that the plaintiffs weren’t even sick–their X-rays just showed they stood an increased chance of getting sick. ‘Most of these guys have not missed a day of work in their lives,’ their lawyer said. … To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!'” (“Looking for some million-dollar lungs”, U.S. News, Dec. 17).
Some say asbestos defendants should try to avoid angering juries by paying claims without a fight, but an attorney for power plant maker Babcock & Wilcox said an uncritical approach to claims had proved too expensive for his now-bankrupt client: “In the past, you literally filled out a form in five minutes that stated the claimant had a note from the doctor saying he was coughing and had other symptoms and showed that he worked at the site. It took five to 10 minutes to fill out the form that would routinely lead to checks for thousands of dollars.” (Terry Brennan, “Firms Wary of Challenging Asbestos Claims”, The Deal, Nov. 13). And battling continues in a case (see Feb. 12-13) in which B&W and other asbestos defendants have attempted to turn the tables on leading plaintiff’s firms, arguing that they have violated racketeering laws by coaching clients’ testimony and by threatening retaliation against companies that seek a legislative solution to the litigation morass. (Mark Hamblett, “Asbestos Companies Bring RICO Suit Against Plaintiffs’ Firms”, New York Law Journal, Sept. 6). This spring defendant law firms won a court order prohibiting the plaintiff companies from questioning their former, as well as their current, employees without counsel being present — i.e., even if the former employees are eager to spill the beans they will not be allowed to do so except in the presence of someone representing their former employer. That certainly should put a chill on whistleblowing (Mark Hamblett, “Employees of Law Firms Charged With Racketeering Shielded From Interviews Without Counsel”, New York Law Journal, April 11).
Plus: Dallas alt-weekly Observer, which had run some of the best journalism on the Baron & Budd client-coaching asbestos scandal, returned with a terrific follow-up in March which we’ve unconscionably delayed in linking (Thomas Korosec, “Homefryin’ with Fred Baron”, Dallas Observer, March 29). (DURABLE LINK)
December 10 — Steve Chapman on military tribunals. “President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement. ” (Chicago Tribune/ TownHall, Dec. 6).
December 10 — Love contracts. Some lawyers continue to advise employers to get co-workers who are in amorous relationships to sign legal documents affirming that the liaison is indeed voluntary, and that they will not harass each other if it ends. A 1998 survey by the Society for Human Resource Management “found that while 88 percent of the companies that discourage workplace romances do so out of fear of sexual harassment claims, just 4 percent of such relationships resulted in claims that led to litigation.” We don’t know where that “just” comes from — a 4 percent risk of getting the employer dragged into court sounds pretty serious to us. (Torri Minton, “Caught in the pact — Couples involved in office dalliances required to sign ‘love contract'”, San Francisco Chronicle, Dec. 2). (DURABLE LINK)
December 10 — “Saudi Arabia finally gets tough on terrorism!” “We are fighting a holy war to eradicate the source of the biggest corruption on earth,” says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he’s talking about … tobacco companies, who he’s suing in a legal action in Riyadh. (Frank Gardner, “Saudi hospital fights tobacco ‘terrorists'”, BBC, Dec. 4, via Untold Millions weblog, Dec. 5) (see Nov. 16, 2000 — we’re not sure what became of that earlier action, but suspect that it didn’t fare well, since the action’s now moving to Riyadh). (DURABLE LINK)
December 7-9 — Counterterrorism agents, on their own. Gabriel Schoenfeld, writing in Commentary: “Last year, at the behest of Congress, the National Commission on Terrorism, a body of leading experts, issued findings” on U.S. vulnerability to terrorist attack. Among other problems it warned of: the nation lacks adequate counterterrorist efforts, including intelligence monitoring of terrorist groups. “According to the commission, the guidelines governing the recruitment of ‘unsavory’ sources, introduced by the Clinton administration in 1995, had created a climate within the CIA that was ‘overly risk-averse’ and that contributed ‘to a marked decline in agency morale unparalleled since the 1970s.’ That is bad enough; but the morale problem had sources beyond the restrictive guidelines. Again according to the commission, some CIA officers and FBI special agents were being ‘sued individually’ by terrorist suspects for actions taken in the course of their officially sanctioned duties. Instead of representing them in such suits, the government was letting the agents fend for themselves; those who chose to stay on the job were being forced to purchase personal-liability insurance to cover their legal bills.
“Did the commission call for an end to this preposterous state of affairs, whereby accused terrorists have been able to turn the tables on their pursuers and bring them to court? Not at all. It asked only that the government provide ‘full reimbursement of the costs of personal-liability insurance.'” (“Could September 11 Have Been Averted?”, Commentary, December (scroll to near end)).
December 7-9 — Overlawyered schools roundup. A judge has thrown out Desiree Radford’s suit claiming that it was unlawful for the city of Buffalo to lay off teachers in her son’s district without first conducting an environmental impact statement (“Judge Dismisses Mother’s Case To Stop Buffalo Teacher Layoffs”, WGRZ.com, undated). In Ohio, the case of Fairview High School junior Aaron Petitt, “who claimed he was denied freedom of speech and due process when he received a 10-day suspension for hanging posters of airplanes bombing Afghanistan on his student locker,” is ending with a denouement summed up in the Cleveland paper’s headline: “District settles case with student; he gets $2,000, lawyers $21,000”. Aaron’s lawyers are charging local taxpayers $300 an hour for their services. (Sarah Treffinger, Cleveland Plain Dealer, Dec. 1). Schools in Canada’s largest city will probably wind up in court because of an effort to raise standards: “A Toronto parent group concerned about Ontario’s tough new school curriculum will encourage parents to take legal action against the government if their children are suffering under the revamped standards.” (Lee-Anne Goodman, “Toronto parent group encourages legal action”, Canadian Press/Toronto Sun, Dec. 2). And attorney Susanna Dokupil comments on the don’t- read- grades- aloud- in- class case currently before the U.S. Supreme Court. (“Hey, Congress, Leave Us Kids Alone”, The American Enterprise, Nov. 29) (see Nov. 28). (DURABLE LINK)
December 7-9 — “Hell’s litigious angels”. John Leo’s annual who’s-a-victim roundup leads off with the touchy motorcyclists who want protected-group status in discrimination law: “America’s next official victim group may be roaring your way on their Harley-Davidsons.” (U.S. News, Dec. 10; Chris Weinkopf, “Born To Be Mild”, FrontPage, Nov. 28; see Nov. 19-20). The Boston Globe‘s Jeff Jacoby thinks this would be a good time to take a stand on behalf of the principle of freedom of association: “Bikers Demand Their ‘Civil Rights'”, Nov. 29, via Center-Right).
December 7-9 — Chrysler dodges a $250 million dart. Blessed with a favorable appellate circuit (the Fourth) and high-powered counsel (Ted Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn & Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina punitive award overturned. “The court also reversed and remanded for retrial the jury’s finding of liability and its award of [$12.5 million] compensatory damages, finding that Chrysler should have been able to introduce evidence that a child who was ejected from a Chrysler minivan was not wearing a seat belt.” (“Chrysler Escapes $250 Million in Punitives”, National Law Journal, Nov. 1). San Francisco Chronicle legal columnist Reynolds Holding says the disparate fate of punitive damages on appeal in different cases — $5 billion against ExxonMobil held excessive in the Valdez spill case, $25 million upheld against Philip Morris in a case brought by an individual smoker– suggests that critics of punitive awards may have a point about their arbitrariness: would anyone have been especially surprised had the outcome been reversed and the tobacco maker rather than Exxon had gotten its award reduced? (“Scales of justice out of whack”, Nov. 25). And if you still thought plaintiffs in our legal system bore the burden of proving their legal case, get with it: “The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection.” (Charles Toutant, “New Jersey Shifts Burden of Proof in Auto Design Cases”, New Jersey Law Journal, Sept. 11).
December 5-6 — Cosseted to distraction. New Jersey has made itself “the darling of child-safety advocates” by becoming the first state to adopt a National Highway Traffic Safety Administration recommendation that children in cars be required to ride in booster seats until they weigh 80 pounds or reach their eighth birthday. But even some conscientious parents say the new law goes too far: older kids rebel at being forced back into “baby” seating, carpools break up as adult co-workers shun the nannyized vehicles, besides which the devices cost good money. (Kaitlin Gurney, “Tough N.J. safety-seat law poses dilemmas”, Philadelphia Inquirer, Nov. 30). And the Washington Times reports a presumably unintended consequence of those red-light cameras that revenue-hungry municipalities have installed to generate citations: “Some D.C. police officers say they are slowing their response to emergencies because photo-radar cameras are ticketing them for speeding … They said they and other officers have been forced to pay the fines, and are now on edge about speeding to a crime scene and running red lights in emergencies.” (Brian DeBose, “Cops get speeding tickets from cameras”, Nov. 29).
December 5-6 — “Victims of Day-Trader Rampage Say Industry Itself to Blame”. Two years ago financially ruined day trader Mark Barton walked into two office buildings in the Buckhead section of Atlanta and massacred nine persons. Now lawyers, “arguing that Georgia tort law should evolve with the times,” are hoping to put the day-trading segment of the securities industry on trial, saying that the volatile and risky nature of its business made such a crime foreseeable. (Trisha Renaud, Fulton County Daily Report, Nov. 30). Update Jan. 9-10, 2002: judge dismisses suit against building owners and managers, but lets it go forward against two day-trading firms. (see further updateDec. 19, 2003)
December 5-6 — “EU considers plans to outlaw racism”. Free speech for me, but not for thee: “Racism and xenophobia would become serious crimes in Britain for the first time, carrying a prison sentence of two years or more, under new proposals put forward by Brussels … [the ban includes] a wide range of activities that sometimes fall into the sphere of protected political speech, such as ‘public insults’ of minority groups, ‘public condoning of war crimes’, and ‘public dissemination of tracts, pictures, or other material containing expressions of racism of xenophobia’ — including material posted on far-Right internet websites.” The “plans, drafted by the European Commission, define racism and xenophobia as aversion to individuals based on ‘race, colour, descent, religion or belief, national or ethnic origin'”. (Ambrose Evans-Pritchard, Daily Telegraph, Nov. 29). In The American Prospect, Wendy Kaminer discusses the suit filed in August against America Online for allegedly allowing participants in its chat rooms to engage in “hate speech” against Muslims: “Virtual Offensiveness”, Nov. 19 (see Sept. 3).
December 5-6 — Attorney can sue for being called “fixer”. A federal judge has ruled that Pennsylvania attorney Richard Sprague can proceed with his defamation lawsuit against the American Bar Association and its magazine, the ABA Journal, which had called him a “fixer”. Although writers often employ that term to describe the sort of political wheeler-dealer who uses connections in a perfectly lawful way to resolve people’s problems, the judge found the term might also evoke an impression that Sprague improperly “fixed” cases. (Shannon P. Duffy, “Lawyer’s Defamation Claim Against ABA Found Valid”, The Legal Intelligencer, Nov. 19). Update Nov. 30, 2003: case settles for undisclosed sum and half-page apology.
December 5-6 — Resources: terrorism and the law. Some useful jumping-off points for research and reading: Jurist; FindLaw; Federalist Society briefing papers; Brookings; New Yorker.
December 4 — There’ll always be a California. It’s a state of mind, really:
* In a notice letter sent to Nestlé, Tootsie Roll Industries Inc., Godiva and numerous other confectioners including local favorites Ghirardelli and See’s, attorney Roger Carrick of Los Angeles’s Carrick Law Group has charged the companies with violating the state’s Proposition 65 right-to-know law by failing to post warning labels on chocolate advising consumers that it contains toxic substances such as lead and cadmium. Michele Corash, a Morrison & Foerster lawyer defending Hershey and Mars in the controversy, says the Food and Drug Administration has called chocolate harmless: “What Mr. Carrick is complaining about is tiny amounts of trace minerals that are present in virtually all foods. They are in the soil, and foods that are grown in soil absorb them.” Carrick says it hasn’t been proven that all the lead and cadmium content are from natural sources, but even trial- lawyer- friendly California AG Bill Lockyer has weighed in on the side of the candy makers. (John Rosmer, “Chocolate: It’s Fattening, but Is It Toxic?”, San Francisco Daily Journal, Oct. 29, not online; Dan Evans, “Death by chocolate?”, San Francisco Examiner, Nov. 26). And Forbes explains how Prop 65 has made it possible for bounty-hunting lawyers to do very well: “Visit any doctor or dentist in California. If you don’t see signs warning you that the physician is using potentially harmful chemicals as defined by the state’s Proposition 65 (e.g., mercury fillings), haul him into court and demand $2,500 for each day he didn’t post the warnings. You get 25% of the loot, the state 75%”. (Dorothy Pomerantz, “Toxic Avengers”, Forbes, Oct. 15).
* You may have thought your home belonged to you, but some disabled-rights activists have other plans for it: “In what would be the first such rules in the nation, Santa Monica officials are considering a proposal to require that all privately built new homes and those undergoing major remodeling have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible bathroom.” (Bob Pool, “Wheelchair Access as a Must for Residences”, L.A. Times, Dec. 2).
* “Richard Espinosa, whose assistance dog allegedly was attacked by the [Escondido] Public Library’s pet cat last year, filed a lawsuit against the city yesterday seeking $1.5 million in damages.” (see May 7 and (letter from Espinosa) June 13) (& see Apr. 15, 2002) (John Behrman, “$1.5 Million Suit Filed in Library Cat Case”, San Diego Union Tribune, Nov. 28).
December 4 — An ill wind. Among those prospering in the wake of the Sept. 11 attacks: employment lawyers, whose phones may ring nonstop in a time of mass layoffs. (“Layoff Lessons”, Corporate Counsel, Nov. 21). Garry Mathiason of the management-side firm Littler Mendelson says that in addition to that, his firm “has three key advantages: sex, drugs and violence” — all sources of legal risk for employers. (Krysten Crawford, “Littler’s Labors”, The Recorder, Nov. 20).
December 4 — Headline of the day. “Sept. 11 Laws Raise Fears of Tort Reform” — Bob Van Voris, National Law Journal, Nov. 27. Love that “fears”. The NLJ does know its audience, doesn’t it?
December 3 — Can’t do anything but legislate. Some constituents are furious at Pennsylvania state representative Jane Baker, a Republican, after learning that her lawyers have filed papers in a car-accident case portraying her as “virtually unemployable” aside from her lawmaking job. “In a televised debate last fall, Baker assured viewers that, both physically and mentally, she was up to the task of representing them in Harrisburg. Asked directly if she could read and comprehend well, she replied, ‘I’m fine.’ She went on to say that a physical injury to her left arm ‘appears to be permanent, but otherwise … I’m ready to go to work’ in Harrisburg.
“Legal papers Baker filed last month paint a dramatically different portrait. If not re-elected, Baker claimed Oct. 19 in legal papers tied to her case, she will be ‘virtually unemployable’ because of her condition, which includes physical and ‘multiple cognitive defects’ that include problems remembering and recollecting what she has read.'” Baker’s suit is demanding $7.5 million in damages from Judith V. Fulmer, “a former friend who pleaded guilty to drunken driving and leaving the scene of an accident” after police say her vehicle struck Baker as she walked along a country road. (Mario Cattabiani, “Baker’s lawsuit puzzles some”, Allentown Morning Call, Nov. 4).
December 3 — “Terrorists push plots from jail”. It’s practically a tradition for American inmates to continue running criminal enterprises from their cells, but the stakes have gotten higher: investigators now realize that Mideast terrorists locked up in American prisons have repeatedly managed to communicate with outside followers to approve and even help plan further murderous attacks. The Bush administration on Oct. 31 announced a new practice of listening in on conversations between detainees and their attorneys when it determines there is “reasonable suspicion” that such communications are related to future terrorist acts; Attorney General John Ashcroft says that there are only 13 persons in custody — at the moment — for whom it would like to use such power. The detainees and their attorneys are to be advised of the monitoring, and a “privilege team” is supposed to screen the resulting information so that it does not reach the eyes of prosecutors or regular investigators. American Bar Association president Robert A. Hirshon says such monitoring is constitutional only if a judge approves it in advance under a probable-cause standard, and Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice as “unacceptable” in its current form. (Cam Simpson, Chicago Tribune, Nov. 19; Pete Yost, “Ashcroft Defends Monitoring of Inmate-Attorney Conversations”, AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, “Monitoring Attorney-Client Communications of Designated Federal Prisoners”, Federalist Society National Security White Papers, Dec. 3).
December 3 — Lending rules trip up litigation-finance firms. Class-action lawyers have repeatedly tripped up financial services firms by arguing in court that transactions characterized as cash advances (such as “rapid refunds” that tax-preparing companies issue before the actual IRS check arrives) are in reality loans, leaving companies liable if they have not made the full range of disclosures required by truth-in-lending law (see, for example, Apr. 5). So some might see a kind of poetic justice in the news from Ohio, where an appellate court has “ruled that two companies that advance money to personal injury plaintiffs on the understanding that they will be repaid only if the plaintiffs prevail, are making loans — not ‘contingent advances’ — and violated state usury and lender- registration laws.” Every so often, surprising as it may seem, the litigation community does wind up having to live by the same rules it prescribes for the rest of us. (Gary Young, “Ohio Court Rules Against Litigation-Loan Firm in Usury Case”, National Law Journal, Nov. 16) (see also letter to the editor, Oct. 22).
December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).
December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).
December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).
December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.
December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).
December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).
December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).
December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).
December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).
December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).
December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).
December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).
December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.
December 15-16 — Updates. Further developments in cases that were bound to develop further:
* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).
* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).
* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).
* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.
December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).
December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?
The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)
December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.
December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).
As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.
December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)
December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)
December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”
“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).
December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).
December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).
December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.
December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)
December 28, 2001-January 1, 2002 — Eggnog expense exacerbated. Many states artificially inflate the price of holiday cheer through measures designed to further the interests of wine and spirits wholesalers, such as laws making it virtually impossible for liquor manufacturers and importers to switch from one wholesaler to another. (Americans for Tax Reform, “Monopoly Protection Laws Target Wine and Spirits Industry”, Dec. 14).
December 28, 2001-January 1, 2002 — Law firm sued over fen-phen settlement practices. “A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised.” The suit was filed against Napoli, Kaiser, Bern & Associates on behalf of 5,600 fen-phen plaintiffs by Seattle’s Hagens & Berman. Among its allegations are that the Napoli firm resolved cases in a large batch settlement with AHP which left it with unsupervised discretion to distribute the proceeds among various clients, and that it employed a registered nurse and attorney “to tell clients why, in her ‘expert opinion,’ the settlement represented excellent compensation for their injuries. ‘Later, a charge for “expert witness fee” appeared on client closing documents,’ the complaint states. ‘Often the so-called expert fees were dated before she even came to the NKB.'” The defendants say they obtained reasonable settlements for the clients and expect to be vindicated. (Mark Hamblett, “New York Firm Accused of Intimidating Clients in Fen-Phen Litigation”, New York Law Journal, Dec. 13).
December 28, 2001-January 1, 2002 — “The Great Mouthpiece”. Don’t get too nostalgic about the good old days: long before the O.J. trial, back in the ‘teens and 1920s, there were the likes of notorious Manhattan attorney Bill Fallon. “Few Fallon clients spent a day in jail before trial and, if not acquitted, they usually enjoyed hung juries. …Fallon’ style was Runyonesque before Runyon invented it for himself. … so long as he endured in public memory, he was the archetype of the amoral criminal defense lawyer.” (William Bryk, “Old Smoke: Criminal Lawyer”, New York Press, Nov. (vol. 14, iss. 45))
December 28, 2001-January 1, 2002 — “UK women can demand to know men’s salaries”. The new law is supposed to promote “pay equity”, but officials acknowledge there may be a wee problem protecting male employees’ privacy and preventing fishing expeditions aimed at gratifying curiosity or spite rather than fingering equal pay violations. (Jo Revill, “UK women can demand to know men’s salaries”, ThisIsLondon.com, Dec. 4).
December 24-27 — Chestnuts-roasting menace averted. Citing clean-air concerns, the Berkeley, Calif. city council “has banned log-burning fireplaces in new homes and other buildings.” An environmental activist who led the drive for the ordinance is hoping in future to extend it so as to ban homeowners’ use of existing fireplaces as well. At least seven Bay Area jurisdictions, including San Jose and Palo Alto, as well as Contra Costa and San Mateo counties, have banned installation of new residential fireplaces, but Berkeley is the first to forbid new wood-fired restaurant ovens and grills in restaurants unless pollution-control equipment is added, a possible threat to the city’s thriving foodie culture of “foraged-mesquite fires cooking free-range chickens or vegan pizzas”. Famed Berkeley restaurateur Alice Waters, who “said her grill and oven did not work properly when she tried to filter the exhaust”, is among those “totally opposed” to the new law: “We’ve had a fundamental connection between fire and food since the beginning of time.” (Peter Y. Hong, “Cozy Domestic Symbol Takes Heat in Berkeley”, L.A. Times, Dec. 23) (see Feb. 28, 2001 and Dec. 27-29, 2002). (DURABLE LINK)
December 24-27 — Holidays in strict legal form. Three seasonal rituals — the office party, gift-giving, and New Year’s resolutions — might work better if reduced to legal contract form, suggests humorist Madeleine Begun Kane. From HumorMatters.com comes another lawyered-up “Night Before Christmas” parody: “At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter ‘the Vehicle’) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer.” Plus, from the same site: “Politically Correct Christmas Poem” and the much-circulated “Xmas office party memos“. From IndraNet, the also much-circulated “Twelve Days of Christmas for the Politically Correct“. Chadbourne & Parke attorney Lawrence Savell puts out “The Lawyer’s Holiday Humor Album“, with tunes like “Santa v. Acme Sleigh” and “It’s Gonna Be A Billable Christmas”; all we can tell you about is the titles since we haven’t heard the album. For more Christmas lawyer humor, see Dec. 23, 1999. (DURABLE LINK)
December 24-27 — Federal judge rules high school sports schedules unlawful. More Title IX from Outer Space: a federal judge in Kalamazoo, Mich. has ruled that the Michigan High School Athletic Association has been violating federal and state civil rights law and the Fourteenth Amendment’s equal protection clause by scheduling girls’ but not boys’ athletic seasons out of sync with their collegiate counterparts. (James Prichard, “Federal Judge Rules Against Michigan High School Athletic Group in Gender-Equity Lawsuit”, AP/Law.com, Dec. 18; extensive Grand Rapids Press/MichiganLive coverage). See Dave Reardon, “Spring hoops might not be federal case”, Honolulu Star-Bulletin, Dec. 13, 2000. (& letter to the editor, Feb. 28). More: Jul. 10, 2004. (DURABLE LINK)
December 24-27 — Liability for mistargeted bombing? Sovereign immunity, shmovereign immunity, says a Jones, Day attorney who is suing to make the U.S. government (and hence U.S. taxpayers) compensate the owner of a Sudanese pharmaceutical plant destroyed by an American bombing raid in August 1998 that many subsequent reports have suggested was mistargeted. While nothing would prevent the U.S. Congress from appropriating such compensation as a voluntary matter, Justice Department lawyers are unimpressed with attorney Stephen Brogan’s argument that the plant owner is entitled as a matter of law to compensation under the Constitution’s “takings” clause, saying that clause would not cover non-U.S. property owned by a non-U.S. citizen. Not to mention the wider policy issues: “There is something to be said for the government acting with fearlessness in these circumstances,” as George Washington University law professor Jonathan Siegel says. “The president should not have to worry about tort liability” when making tough military calls. (Otis Bilodeau, “When Bombs Miss the Mark”, Legal Times, Nov. 28). (DURABLE LINK)
December 21-23 — Under the Christmas tree. Toy soldiers? Think again if you’re in the child care business: “A daycare center in North Carolina seeking state certification for its preschool program found itself penalized because an inspector discovered green plastic army men on the premises, reports the Wilmington Morning Star. Laura Johnson said the presence of the nine little army guys at her Kids Gym Schoolhouse led to the loss of five points under the state-sanctioned Early Childhood Environmental Rating System. Evaluator Katie Haselden said schools may not have such displays of stereotyping or violence on the premises. The army men ‘reflect stereotyping and violence, therefore credit cannot be given,’ she wrote in her report.” (Scott Norvell, “Tongue Tied”, FoxNews.com, Nov. 26). At home, however, this may be the year that even good liberal parents break down and buy their son a G.I. Joe, if anecdotes from New York are any indication (John Tierney, “G.I. Stands Tall Again (12 Inches)”, New York Times, Dec. 11; and don’t miss Lisa Snell, “What the Schools Teach Children About Terrorism”, Dynamist.com (Virginia Postrel), Sept. 15 (scroll down if necessary to “Power Rangers vs. Eggshells”)). However, trial lawyers and their friends at the Consumer Product Safety Commission have been running a big campaign against that classic Christmas present of a rural boyhood, the Daisy BB gun(Andrew Ferguson, “When the Nanny State Becomes the Mommy State”, Bloomberg.com, Nov. 6; “You’ll Shoot Your Eye Out!” (editorial), Wall Street Journal, Nov. 30).
December 21-23 — Fleeing obstetrics, again. One of the many prices the state of Mississippi is paying for its reputation as a trial lawyer paradise: physicians are increasingly dropping obstetrics from their practices, faced with insurance rates of $40,000-$100,000 a year that would until recently have been more typical of big cities (“Costs Lead Rural Doctors to Drop Obstetrics”, AP/Washington Post, Nov. 23). Similar problems are arising in West Virginia: Rita Rubin, “You might feel a bit of a pinch, USA Today, Dec. 3. Frederick (Md.) Memorial Hospital is among institutions that have moved to a policy of not allowing families to bring cameras to the delivery room, and some upset moms “accuse hospital officials of trying to protect themselves against malpractice suits at the parents’ expense”. (Raymond McCaffrey, “Moms Say Hospital Photo Ban Makes Birth a Blurry Memory,” Washington Post, Dec. 11; see Oct. 18, 2000). And although trial lawyers keep insisting that medical liability coverage is a high-profit line for insurers, one of the largest providers of malpractice insurance, St. Paul Cos., just announced it was finally giving up and pulling out of the business, which would seem a reasonably sincere testimony to its frustration (“St Paul Cos To Exit Medical Malpractice Business”, Wall Street Journal, Dec. 12)(online subscribers only).
December 21-23 — Australia: anti-American tripped up by speech code. In a case currently on appeal, Australia’s Financial Times was found guilty of inciting racial hatred after one of its opinion columnists wrote that Palestinians as a factor in Mideast politics were “vicious thugs” and “cannot be trusted” (see July 11, 2000). Now, to the shock of some in Australian journalism, prominent broadcaster and journalist Phillip Adams has been made the subject of a private complaint for “racial vilification” of … Americans; he had published in The Australian one of those all-too-familiar screeds declaring that the United States is a country of “madness”, “the most violent nation on earth”, etc., etc. Writes commentator Tim Blair: “I can’t see a massive amount of difference here. Either Adams must be found guilty, or – my favored option – we throw this vilification garbage in the toilet and return to living like free men.” (Tim Blair weblog, scroll to near bottom of the page for Dec. 9; scroll to third Dec. 7 item (via Matt Welch); Pilita Clark, “Shock as columnist investigated for un-American activity”, Sydney Morning Herald, Dec. 7; Phillip Adams, “Look back in anger”, The Australian, Oct. 6) (see also Oct. 17-18, on the Sunera Thobani case in Canada). And the British government, in order to get its antiterrorism legislation past the House of Lords, “was forced to abandon the controversial attempt to make a new criminal offense of inciting religious hatred”. (“UK passes antiterror law”, CNN, Dec. 14)(see Oct. 19-21). They’re sometimes a more useful bunch than G&S gave them credit for being, those Lords.