Search Results for ‘mississippi hood hollywood’

Mike Moore’s Mississippi multitasking

Overlooked tidbit from last month on the doings of former Mississippi attorney general Michael Moore, famed for his role in the great tobacco caper, who’s tight with longtime Mississippi AG and Overlawyered favorite Jim Hood [Jacob Gershman, WSJ Law Blog]:

In February, Google released discovery documents that the company said showed that the DCA [the Hollywood-linked “Digital Citizens Alliance”] paid former Mississippi attorney general Mike Moore’s law firm $180,000 for consulting services “at the very same time [Mike Moore Law Firm] was officially deputized to lead the Attorney General’s so-called investigation of Google.”

See also this 2014 post by Jay Caruso at Pocket Full of Liberty. More on Jim Hood’s role as a cat’s paw for Hollywood against Google here, here, here, and here. More on Hood and Moore here, etc.

From the unsealed Mississippi allegations on AG-cozy law firms

We took note last month that a court was unsealing the allegations of a since-settled lawsuit alleging quid pro quo payments at a prominent class-action firm that has represented the state of Mississippi. Now Alan Lange at YallPolitics has more details. “I still maintain that if this case involved any other state officeholder other than Jim Hood that there would be above the fold headlines for days on end.”

Meanwhile, the Fifth Circuit has overturned a procedural win by Google that had halted an investigation by Mississippi AG Jim Hood into Google business practices in which Hood has more or less openly acted as the cat’s paw of Hollywood studios: “in some cases demand letters that came from Hood’s office were actually written by MPAA lawyers.” Google will still have the right to challenge the investigation at a later stage. [Joe Mullin/ArsTechnica, earlier]

How Jim Hood acted a Hollywood role against Google

We’ve covered this topic before, but Mike Masnick at Techdirt has a slew of revealing new details on how Mississippi attorney general Jim Hood acted as cat’s paw for Hollywood studios in his legal battles against Google. Former Mississippi attorney general Michael Moore, another longtime Overlawyered favorite, plays a key role in the story as well. Our coverage of Hood’s work over many years is here.

Jim Hood, a go-to guy for Hollywood?

Who’d have guessed that movie studios would entrust populist Mississippi Attorney General and longtime Overlawyered favorite Jim Hood with a key role in pushing their rights as copyright owners against online services and search engines? Not I [Eli Lehrer, Weekly Standard] More from Mike Masnick at TechDirt: “it appears the MPAA and the major Hollywood studios directly funded various state Attorneys General in their efforts to attack and shame Google.” Related: The Verge.

Sequel: Google goes to court to block a sweeping subpoena from Hood [ArsTechnica, HuffPost (Hood: “salacious Hollywood tale”)] “One of Hood’s letters critical of Google, published earlier this week by The New York Times, was ‘largely written by lawyers for the movie industry,’ the company points out.” More: Hood vs. Google, from our archives.

July 29 roundup

  • Former NYT Peking correspondent Richard Bernstein, who now co-owns two nail salons, challenges Times blockbuster on prevalence of labor exploitation at NYC salons [New York Review of Books, Elizabeth Nolan Brown and followup, Times rebuttal. More: Bernstein rejoinder]
  • More details on how studios used Mississippi attorney general’s office as cut-out against Google [Mike Masnick, TechDirt, earlier here and here, more on AG Jim Hood]
  • Of course licensing laws “are only there to protect consumers and are enforced in a totally neutral way that has nothing to do with viewpoints or political pull (lol).” [Coyote on Boston mayor’s “not welcome in our town” message to Donald Trump]
  • Speaking of Donald Trump, would his lawyer threaten litigation to intimidate reporter Tim Mak? Only in a totally classy way [Daily Beast, S.E. Cupp/New York Daily News (Cohen, 2011: “I’m going to come at you, grab you by the neck and I’m not going to let you go until I’m finished”), earlier from the vaults on Trump’s use of litigation]
  • Things class-action lawyers sue over: “Beggin’ Strips Don’t Have Enough Bacon” [Reuters, New York Post]
  • As Lois Lerner targeting scandal drags on, time for Congress to impeach IRS officials? [Mike Rappaport, Liberty and Law]
  • Welcome to AFFH-land: Bharara, on behalf of feds, says Westchester County should pay for not squeezing Chappaqua hard enough to approve housing project [Journal-News, earlier here and here]

June 2002 archives


June 10 — Advertisement for “friendly” employee deemed discriminatory. In Bolton, England, a government job listing center has refused to accept an advertisement asking for a “friendly” applicant to manage a travel agency’s staff cafe. The travel agency’s manager said “we were told, ‘It’s discriminatory because some people may perceive that they are friendly even if you don’t’.” A spokeswoman for the government bureau that runs the job center service acknowledged that “somebody’s been a little over-zealous,” but also said: “We’ve got to be very careful when we get adverts so we don’t discriminate against anybody.” (“Jobcentre comes under ‘friendly’ fire”, BBC, Jun. 7). (DURABLE LINK)

June 10 — Profiling: a Democrat outflanks Ashcroft. On CNN last week, California Democratic Sen. Dianne Feinstein spoke frankly of the need for some measure of ethnic profiling in both air passenger security and intelligence gathering — a position that places her considerably to the right of Attorney General John Ashcroft and his colleagues in the Bush Administration, who continue to deny any such need. (Chris Weinkopf, “Sanity, not bigotry, calls for profiling”, L.A. Daily News, Jun. 9). (DURABLE LINK)

June 10 — Sin-suit city. In Las Vegas, ripples continue from the word that some lawyers and activists are eyeing the hometown industry as their nominee for Next Tobacco (“Organization: Casinos could be sued”, Las Vegas Review-Journal, Jun. 6; see May 31, May 20-21). And on the food-suit front, a major British newspaper, the Independent, has claimed that corporate machinations make healthful and low-calorie foods simply unavailable to Middle Americans, an assertion that columnist Jacob Sullum calls “such an audacious misrepresentation that I don’t know whether to refute it or simply stand in awe.” (Andrew Gumbel, “Fast Food Nation: An appetite for litigation”, The Independent, Jun. 4 (profile of anti-tobacco and anti-food industry law prof John Banzhaf)(alternate site); Jacob Sullum, “Big fat lie”, Reason Online, Jun. 7). (DURABLE LINK)

June 7-9 — “Tough tobacco laws may not deter kids”. Now they tell us dept.: “Stopping kids from buying cigarettes has become a centerpiece of anti-smoking campaigns, but a new study finds that cracking down on merchants doesn’t prevent underage smoking.” (Jim Ritter, Chicago Sun-Times, Jun. 3; Caroline M. Fichtenberg and Stanton A. Glantz, “Youth Access Interventions Do Not Affect Youth Smoking”, Pediatrics, Jun.) (via MedPundit, Jun. 5)(see Sept. 16, 1999). (DURABLE LINK)

June 7-9 — “Legal Fight Over Chemical Leak Ends With Whimper”. “Attorneys who won $38.8 million in West Virginia’s first class action toxic tort case have agreed to settle for a fraction of that amount after a federal appeals court ruled their original victory was based on the testimony of a witness who did not know what he was talking about.” FMC Corp. will instead pay only $1.35 million, which “will cover about $500,000 in litigation expenses but nothing for fees”, according to the plaintiff’s counsel, attorney/author and former state chief justice Richard Neely. (Peter Page, National Law Journal, Jun. 4). (DURABLE LINK)

June 7-9 — Helmets for roller skaters. First it was motorcycles, then bicycles, and now the anti-fun brigade, in the form of the California state senate, has voted to extend mandatory helmet-wearing to riders of skateboards, non-motorized scooters and even roller skates. (“Senate OKs helmet law for skateboarders”, AP/Contra Costa Times, May 17). (DURABLE LINK)

June 6 — Airlines sued over alleged profiling. “Washington is in its third week of self-flagellation over why the U.S. government couldn’t prevent the Sept. 11 hijackers from commandeering four planes and slamming them into the World Trade Center and the Pentagon. Meanwhile, with no sense of irony, the ACLU, the American-Arab Anti-Discrimination Committee, and some other groups are launching five separate lawsuits over cases of men being removed from airplanes. The ACLU is party to three of the suits.” (Jonah Goldberg, “Flying While Arab”, National Review Online, Jun. 5). The men were removed from planes or denied boarding in various incidents late last year after airline employees or co-passengers deemed them suspicious in behavior or appearance. “The airlines named in the suits are American, Continental, Northwest and United. Most of the companies responded strongly to the suits yesterday, denying allegations of prejudice.” (“Lawsuits Accuse 4 Airlines of Bias”, Washington Post, Jun. 5; Niala Boodhoo, “Rights Groups Hit Airlines with Post-Sept. 11 Suits”, Reuters/ Yahoo, Jun. 4).

Many opponents of passenger profiling (including, frequently, officials within the Bush administration) act as if it were flatly impermissible to apply even the slightest bit more scrutiny to young male Arab fliers with Muslim first names than to elderly Dutch nuns — a position that at least has the merit of bright-line clarity and consistency, however suicidal it could prove in practice. Curiously, the lawyers filing the latest suits seem to be taking pains to stake out a critique of profiling that is less absolutist and makes more concessions to the threats made manifest last Sept. 11. Thus Reginald Shuford, an ACLU lawyer based in New York, says his clients are resigned to a “higher level of scrutiny when they fly, more security checks” but suggests that further extra scrutiny becomes intolerable once fliers have “cleared all security checks [and are] sitting on the airplane”. (Why? He doesn’t say.) Even Ibish Hussein, of the American- Arab Anti- Discrimination Committee, acknowledges that it’s “a tricky situation” and says of refusals to fly passengers: “It’s understandable, but it’s not acceptable.” (Alexandra Marks, “New lawsuits aim to curb racism aboard airplanes”, Christian Science Monitor, Jun. 5). Despite this concessionary- sounding language, with its seeming recognition of the unavoidability of judgment calls and gray areas, at least three of the suits ask for the airlines to be subjected to punitive damages. See also Eugene Volokh, Volokh Conspiracy weblog, Jun. 4. (DURABLE LINK)

June 6 — Alexa “Editor’s Pick”. The editors of indexing service Alexa have selected various sites in the category of “Legal Reform”, with you-know-who leading the pack (June 5). This site’s front page clocks in at #94,327 in Alexa’s traffic ratings, a little ahead of Virginia Postrel (#103,177) and nipping at the heels of Matt Welch (#90,063) and Mickey Kaus (#78,754) — though we have no idea how reliable all these numbers are. Update: not very reliable at all, says Glenn Reynolds (Jun. 6) (DURABLE LINK)

June 5 — “Remove child before folding”. “Americans are not losing their minds, but they are afraid of using their minds. They are afraid to exercise judgment — afraid of being sued.” Not-to-be-missed George Will column ties together overprotective playgrounds, fear-of-asbestos verdicts, demoralized obstetricians and public employee tenure and tips the hat to author Philip Howard’s new organization Common Good, which intends to call public attention to legal excess on a regular basis (Washington Post, June 2). In April, Common Good released the results of its first study, in association with the AEI-Brookings Joint Center, on defensive medicine: “Concerns about liability are influencing medical decision-making on many levels. From the increased ordering of tests, medications, referrals, and procedures to increased paperwork and reluctance to offer off-duty medical assistance, the impact of the fear of litigation is far-reaching and profound.” (“The Fear of Litigation Study: The Impact on Medicine”, AEI-Brookings Joint Center Related Publication, April (abstract), (full text, PDF format) (DURABLE LINK)

June 3-4 — Australian party calls for banning smoking while driving. The Australian Democrats, a small but non-fringe political grouping, have called for a ban on smoking cigarettes while driving. “If using mobile phones is illegal, so should cigarette smoking in cars because of its capacity to distract drivers,” said party official Sandra Kanck in a statement. “Ms. Kanck called for legislation to also ban smoking cigarettes in vehicles transporting children. ‘Parents and other adults shouldn’t subject young people to the carcinogenic dangers of side-stream smoke in cars, yet it is common to see this happening,’ she said.” (“Democrats call to ban smoking while driving”, AAP/West Australian, May 31; see Oct. 5, 2001, Dec. 29, 1999). And although anti-tobacco campaigners are crowing about a recent court verdict in Australia against British American Tobacco, blogger “Max Power” (May 23) suggests the verdict may reflect one judge’s idiosyncratic view of company document retention obligations. (DURABLE LINK)

June 3-4 — Penthouse sued on behalf of disappointed Kournikova-oglers. Dignity of the law dept.: The skin mag has already paid to settle the legal claim of a woman whose topless images it mistakenly ran as those of Anna Kournikova, and “now Miami, Florida lawyer Reed Stomberg has filed a class-action lawsuit on behalf of himself and every other male who purchased the June issue. Stomberg explains, ‘The sole reason I paid the $8.99 was for the alleged Anna pictorial. I bought it for a friend of mine, not to say I didn’t take a quick peek at the pictures.'” (IMDB People News, May 30) (& welcome WSJ Best of the Web readers). (DURABLE LINK)

June 3-4 — Sue foodmakers for obesity? Of course! In response to its publication (see May 27) of an article critically examining the push for class actions against purveyors of calorie-laden foodstuffs, Salon draws a big sack of mail from its readers, including a couple of amusingly hysterical attacks on author Megan McArdle (May 31). (DURABLE LINK)

June 3-4 — “Top Ten New Copyright Crimes”. Satire making the rounds on what could soon land you in trouble if ideas of creators’ rights continue to proliferate: “10. Watching PBS without making a donation … 9. Changing radio stations in the car when a commercial comes on. … 7. Getting into a movie after the previews, but just in time for the main feature. … 5. Inviting friends over to watch pay-per-view.” (Ernest Miller, LawMeme, May 2 & May 8). (DURABLE LINK)

June 3-4 — Sick in Mississippi? Keep driving. Malpractice-suit crisis, cont’d: “You are driving through Mississippi and you develop a serious pain in your side. What do you do? If you are smart, you keep on driving until you reach the border.” (Dick Boland, “Sue your way to the morgue”, Washington Times, May 25; see Apr. 5) Evidence that he may not entirely be joking: Ed Cullen, “Natchez doctors eye Vidalia”, Baton Rouge Advocate, May 19 (doctors in Natchez, Miss. consider transferring practices to Vidalia, La., across the river). (DURABLE LINK)


June 19-20 — Supreme Court clarifies ADA. This term the Supreme Court handed down four decisions interpreting the Americans with Disabilities Act, in each case rejecting expansive readings of the law. Our editor analyzed the three employment cases in yesterday’s Wall Street Journal (Walter Olson, “Supreme Court Rescues ADA From Its Zealots,” Wall Street Journal, Jun. 18 (online subscribers only)). See also David J. Reis and Dipanwita Deb Amar, “U.S. Supreme Court in ‘Echazabal’ Puts Federal, State Disability Laws in Line”, The Recorder, Jun. 17) (even California employment law, nearly always more favorable for employees than its federal counterpart, acknowledges that employees may refuse to employ disabled workers in jobs that endanger their safety). (DURABLE LINK)

June 19-20 — Judicializing politics (cont’d). Rep. Bob Barr (R-Ga.), active in the 1998 battle over impeachment of then-Pres. Clinton, “has filed suit in a Washington federal court against the former president, Clinton loyalist James Carville and politically active pornographer Larry Flynt seeking compensatory damages ‘in excess of $30 million’ for ‘loss of reputation and emotional distress’ and ‘injury in his person and property’ allegedly caused by these three — who Barr claims conspired to ‘hinder [the plaintiff] in the lawful discharge of his duties.'” Barr is being represented by Larry Klayman of the famously litigious organization Judicial Watch (see Apr. 16-17). (Lloyd Grove, “Bob Barr’s Believe It or Not”, Washington Post, Jun. 13). (DURABLE LINK)

June 19-20 — To run a Bowery flophouse, hire a good lawyer. What with New York City’s absurdly anti-landlord rental code and the ongoing predations of publicly funded legal services groups, “it takes a tough lawyer to run a decent flophouse.” (John Tierney, “A Flophouse With a View (on Survival)”, New York Times, Jun. 11). Tierney, whose columns have been a highlight of the Times‘ Metro section, is moving to Washington to cover that city for the paper. (DURABLE LINK)

June 19-20 — “Suits Against Schools Explore New Turf”. Sexual harassment suits are on the rise, suits demanding concessions for special education students are already well-established, and although many states’ laws give schools some protection against personal-injury suits, “attorneys are finding creative new ways to get around the roadblocks”. (Alan Fisk, National Law Journal, Jun. 11). (DURABLE LINK)

June 17-18 — No “flood” of Muslim or Arab discrimination complaints. After the terrorist attacks last fall some major media outlets reported that state and local civil rights agencies were being flooded with complaints of discrimination by Muslims and persons of Arab descent. Notwithstanding a widely publicized recent suit against airlines for alleged misdeeds in passenger security profiling (see Jun. 6), the official numbers on other types of discrimination cases “tell a less alarming story. While there certainly was a hike in such bias claims since September, it’s hard to say that the increase was serious or even statistically significant.” (Jim Edwards, “Post-Sept. 11 ‘Backlash’ Proves Difficult to Quantify”, New Jersey Law Journal, Jun. 12). (DURABLE LINK)

June 17-18 — Spitzer riding high. In the New York Times Magazine, James Traub profiles New York Attorney General Eliot Spitzer, currently enjoying a wave of favorable publicity after negotiating a settlement in which Merrill Lynch agreed to change its analyst policy and fork over money to the states; Spitzer’s efforts to bludgeon the national gun industry into accepting unlegislated gun controls, however, have been markedly less successful. Quotes this site’s editor (James Traub, “The Attorney General Goes to War”, New York Times Magazine, Jun. 16). On abusive litigation by AGs, see the recently published analysis by Cumberland law prof Michael DeBow, “Restraining State Attorneys General, Curbing Government Lawsuit Abuse” (Cato Policy Analysis No. 437, May 10). On the federalism angle, see Michael S. Greve, “Free Eliot Spitzer!”, American Enterprise Institute Federalist Outlook, May-June. Plus: Boston Globe columnist Charles Stein on the trouble with policymaking by prosecution, also quotes our editor (“Memo to Policy Makers: Make Policy”, Jun. 16). (DURABLE LINK)

June 17-18 — Jury nails “The Hammer”. Rochester, N.Y.: “A state Supreme Court jury nailed personal-injury lawyer James ‘The Hammer’ Shapiro with a $1.9 million judgment Tuesday in a legal-malpractice case. Jurors found that Shapiro, best known for flamboyant television commercials in which he promises to deliver big cash to accident victims, mishandled the case of client Christopher Wagner, who was critically injured in a two-car crash in Livingston County. They also found that Shapiro’s advertising, which led Wagner to him, was false and misleading. … Wagner’s lawyers, Patrick Burke and Robert Williams, said the award should chasten Shapiro, who gleefully refers to himself as ‘the meanest, nastiest S.O.B. in town’ in his commercials.”

After suffering a severe auto crash which left him in a coma for a month, Wagner “hired Shapiro after his brother saw one of Shapiro’s TV commercials. Wagner dealt with a paralegal and never met a lawyer from Shapiro’s firm until after he agreed to a $65,000 settlement.” The jury found that the law firm had negligently failed to press Wagner’s case against the other motorist, instead accepting from that motorist’s insurer a settlement which undervalued the case and was insufficient to pay Wagner’s medical bills. “Shapiro, whose firm of Shapiro and Shapiro is based in Rochester, didn’t attend the trial. He testified by a videotaped deposition in which he admitted that he has never tried a case in court, leaves the legal work to subordinates and lives in Florida.” (Michael Ziegler, “Award claws ‘The Hammer'”, Rochester Democrat & Chronicle, Jun. 12)(link now dead). Shapiro is also known for his role in websites entitled Million Dollar Lungs (asbestos client recruitment) and CPalsy.com (“Your child’s cerebral palsy may be the result of a mistake. Don’t Get Mad, Get Even”). See also Dec. 5, 2003. Update May 24, 2004: court suspends Shapiro from practice in New York for one year. (DURABLE LINK)

June 17-18 — Not worth the hassle? “Home Depot Inc., the nation’s largest hardware and home-improvement chain, has told its 1,400 stores not to do business with the U.S. government or its representatives.” Most managers in the chain surveyed by the St. Louis Post-Dispatch said “they had received instructions from Home Depot’s corporate headquarters this month not to take government credit cards, purchase orders or even cash if the items are being used by the federal government. … One Home Depot associate at a store in San Diego said, ‘It feels weird telling some kid in uniform that I can’t sell him 10 gallons of paint because we don’t do business with the government.'” Although the Atlanta-based chain is close-lipped about the reasons for its policy, companies that sell more than nominal quantities of products or services to the federal government risk being designated as federal contractors, a status that brings them under a large body of regulation over their practices in employment and other areas. (Andrew Schneider, “Home Depot stops doing business with federal government”, St. Louis Post-Dispatch, Jun. 16). Update Jul. 1-2: company reverses policy. (DURABLE LINK)

June 17-18 — Alamo’s stand. “Alamo Rent A Car had no ‘duty to warn’ a Dutch couple visiting Miami not to drive into high-crime areas of the city, lawyers for the company told a three-judge panel of the 3rd District Court of Appeal Wednesday in an effort to overturn a $5.2 million jury verdict. Lawyers for Alamo told the judges that there is no way their client could have known that the couple would venture into Miami’s Liberty City neighborhood, where Tosca Dieperink was shot to death as she sat in the rental car in 1996.” We last covered this story Jun. 29, 2000, at which time we wondered: how many different kinds of legal trouble would Alamo have gotten into if it had warned its customers to stay out of the toughest urban neighborhoods? (Susan R. Miller, “Car Rental Agency Fights $5.2M Verdict for Slain Tourist”, Miami Daily Business Review, Jun. 14). (DURABLE LINK)

June 14-16 — “Civil Rights Agency Retaliated Against Worker, EEOC Rules”. Do as we say dept.: The Equal Employment Opportunity Commission has ruled that the U.S. Commission on Civil Rights, the federal agency which claims for itself the role of public watchdog on discrimination matters, unlawfully retaliated against its former staff solicitor, Emma Monroig, after she filed a discrimination complaint against it in 1995. The commission, which has a staff of about 75, has been hit with nine recent EEOC complaints from employees, of which at least three have been settled. (Darryl Fears, Washington Post, Jun. 13). (DURABLE LINK)

June 14-16 — Dealership on the hook. “A Michigan auto dealership that failed to complete the title transfer on a car involved in a fatal accident has been hit with a $12 million jury verdict.” In July 1999 Les Stanford Oldsmobile in suburban Troy allowed Mohammad Bazzi, then 20, to drive away his newly purchased 1996 Camaro convertible although the paperwork to transfer title was not complete. Bazzi was supposed to return to sign the papers, but never made it: two days later, driving intoxicated at an estimated 100 mph on I-75 at 2:30 in the morning, he smashed the car into the rear of a slower moving truck, killing his 18-year-old passenger, Ronny Hashem. Hashem’s survivors sued the dealership citing Michigan’s 70-year-old Owner Liability Statute, “which holds the owner of a car liable whenever the car is being operated consensually”. (Peter Page, “High-Speed Death”, National Law Journal, Jun. 12). (DURABLE LINK)

June 14-16 — Batch of reader letters. Readers take issue with our coverage of a Canadian court’s ruling on welfare reform (we stand accused of citing a conservative columnist) and of the recent suit against a baseball-bat maker by a teenager hit by a line drive; offer a different perspective on the Audubon String Quartet litigation; and track down the drunk driving defense law firm that has trademarked the phrase “Friends don’t let friends plead guilty”. (DURABLE LINK)

June 13 — Breaking news: slaying at Texas law firm. 79-year-old Richard Joseph Gerzine of Vidor, Tex. is in custody following a fatal shooting at the offices of the prominent Beaumont plaintiff’s firm of Reaud, Morgan & Quinn, known for its role in the asbestos and tobacco controversies. The victim was senior partner Cris Quinn. The perpetrator was said to have been angered by the law firm’s refusal to represent him in an asbestos case. (Beaumont Enterprise, Jun. 13; AP/Houston Chronicle, Jun. 13). (DURABLE LINK)

June 13 — “Student gets diploma after threatening lawsuit”. “A threatening letter from her lawyer and an opportunity to retake an exam hours before graduation helped a West Valley high school student get her diploma last month. … On May 22, Stan Massad, a Glendale attorney representing the Peoria family, faxed a letter to [English teacher Elizabeth] Joice asking her to take ‘whatever action is necessary’ for the student to graduate or the family would be forced to sue. ‘Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students becomes relevant, should litigation be necessary,’ he wrote to the teacher.” (Monica Alonzo-Dunsmoor, Arizona Republic, Jun. 10; lawyer’s letter; teacher’s response; Joanne Jacobs, Jun. 12).

UPDATE: The case has mushroomed into a cause celebre in Phoenix (Arizona Republic coverage: Maggie Galehouse, “Decision to allow Peoria student to graduate draws outrage”, Jun. 12; “State Bar probes threat against teacher over student’s graduation”, Jun. 13; “Failing your classes? Get a better lawyer”, (editorial), Jun. 11; “Pathetic plight in Peoria” (editorial), Jun. 12; Benson cartoon, Jun. 11; Richard Ruelas, “Lawyer made an offer school couldn’t refuse”, Jun. 12). In the blog world, see Thomas Vincent, Jun. 11 and later posts; Edward Boyd, Jun. 11 and later posts; DesertPundit, Jun. 13. And InstaPundit and “Max Power” discuss issues of whether the lawyer might face bar discipline and why the family members have been allowed to keep their names confidential. More update: Monica Alonzo-Dunsmoor, “Peoria district issues an apology for furor”, Arizona Republic, Jun. 15. (DURABLE LINK)

June 13 — “The NFL Vs. Everyone”. “Why is it that football players/owners/teams are in court all the time? And why would the Broncos sue fans? The NFL is a great case study in litigiousness gone haywire.” (Dan Lewis, dlewis.net, Jun. 12; see “NFL Bootleg: Making the Court Circuit”, Bootleg Sports/FoxSports, Jun. 12). Lewis’s blog also calls our attention (Jun. 11) to this article explaining one remarkable implication of new “medical privacy” laws: “Law May Forbid Leagues to Say if Player Is Hurt” (Buster Olney, New York Times, Jun. 11 (reg)) (DURABLE LINK)

June 13 — He’s at it again. It seems Kevin Phillips has published another of his awful books. Here’s what we said about one of the earlier ones. (DURABLE LINK)

June 11-12 — “French ban sought for Fallaci book on Islam”. The true meaning of hate-speech laws? In France, an “anti-racist” group has filed a legal action demanding a ban on the publication of a new book by outspoken Italian journalist Oriana Fallaci criticizing Islamic fundamentalism and defending the United States in the wake of the Sept. 11 attacks. (Reuters/MSNBC, Jun. 10)(& welcome InstaPundit readers). (DURABLE LINK)

June 11-12 — Malpractice crisis latest. More problems with the notion of suing our way to quality medical care: Philadelphia’s Jefferson Hospital, citing rising malpractice insurance bills, has laid off 99 workers and eliminated 80 vacant jobs. (Linda Loyd, “Jefferson Hospital cuts 179 positions”, Philadelphia Inquirer, May 21). Brandywine Hospital, which operates the only trauma center in Chester County, Pa., said it would temporarily close its center, with the result that “trauma patients — the most severely injured accident victims — will be diverted to trauma centers at hospitals in surrounding counties.”. It blamed malpractice costs for difficulty in recruiting qualified physicians (Josh Goldstein, “Hospital closing trauma center”, Philadelphia Inquirer, Jun. 5). The closure of a Wilkes-Barre ob/gyn practice typifies the forces driving doctors out of Pennsylvania, according to the Wilkes-Barre Times Leader (M. Paul Jackson, “Frustrated doctors look to quit area”, May 1). The supply of neurosurgeons in central Texas is likewise under pressure, resulting in the family of an accident victim’s “being told a city of Austin’s size had no spine surgeon available when they desperately needed one”. (Mary Ann Roser, “Neurosurgeons in short supply”, Austin American-Statesman, May 19). Update: Francis X. Clines, “Insurance-Squeezed Doctors Folding Tents in West Virginia”, New York Times, Jun. 13). (DURABLE LINK)

June 11-12 — Flash: law firm with sense of humor. This one’s been around for a while, but we’ve never paid it due tribute: Denver’s Powers Phillips maintains the only law firm website we’ve seen that’s laugh-out-loud funny (and even manages to tell you a lot about the firm) (& update:Metafilter thread). (DURABLE LINK)

June 11-12 — “San Francisco Verdict Bodes Ill for Oil Industry”. Oil refiners are unhappy about a recent verdict in which a West Coast jury declared that the gasoline additive MTBE, which has a nasty tendency to seep into water tables, is defective and should never have been marketed. The refiners have contended that the federal government itself pushed the industry into adding MTBE to gasoline by way of the Clean Air Act’s 1990 amendments, which mandated the use of reformulated and oxygenated gas to reduce air pollution. At least two earlier courts did accept that defense, but now the industry may stand exposed to potential billions in damages. (June D. Bell, National Law Journal, May 3). Background: Energy Information Administration, “MTBE, Oxygenates, and Motor Gasoline” (Mar. 2000). (DURABLE LINK)

June 11-12 — Welcome “Media Watch” (Australia). On the Australian Broadcasting Corp. program, which monitors the press, Steve Price traces the circulation of the much-forwarded “Stella Awards”, a list of (fictitious, invented) outrageous lawsuits (see Aug. 27, 2001) (June 10). (DURABLE LINK)


June 28-30 — Lawyer’s 44-hour workday. “Cook County State’s Attorney Dick Devine is investigating charges a lawyer routinely billed the state’s child welfare agency for more than 24 hours’ work a day on uncontested adoptions.

“According to records obtained by Cook County Public Guardian Patrick Murphy, Joyce Britton had a busy week in April 2001: On Monday, April 9, she worked 34 hours. On Tuesday, she worked 44 hours. On Wednesday it was 29; 33 on Thursday, 25 on Friday, 42 on Saturday. … Britton billed the agency $862,000 for fiscal years 2000 and 2001. The second-most-active attorney handling uncontested adoptions billed $285,000.” (Abdon M. Pallasch, “Did adoption lawyer really work 44 hours in one day?”, Chicago Sun-Times, Jun. 25). (DURABLE LINK)

June 28-30 — Tobacco settlement funds go to tobacco promotion. An investigation by the Charlotte Observer finds that of the $59 million that the state of North Carolina has spent so far in proceeds from the tobacco settlement, nearly three-quarters — “about $43 million — has gone toward production and marketing of N.C. tobacco”. (Liz Chandler, “N.C. spends settlement on tobacco, not health”, Charlotte Observer, Jun. 23) (via Andrew Sullivan — scroll to third item). (DURABLE LINK)

June 28-30 — Ambulance driver who stopped for donuts loses suit. Sad news for the hero of our Nov. 2-4 item: “A federal judge has dismissed a lawsuit filed by a former ambulance driver who claimed he was wrongfully fired after stopping for doughnuts while transporting a patient to a hospital.” Larry Wesley “stopped for doughnuts in July 2000 while he was taking an injured youth to Ben Taub Hospital” and was fired after the boy’s mother complained. U.S. District Judge Lee Rosenthal “ruled that Wesley’s claims that other employees received lesser sanctions were not supported by the record, and he also failed to show that he was treated more harshly than other drivers.” (“Judge dismisses lawsuit filed by ambulance worker fired for doughnut stop”, AP/KRTK Houston, Jun. 27). (DURABLE LINK)

June 28-30 — More on gambling as next-tobacco. The Newark Star-Ledger‘s take; quotes our editor (Judy DeHaven and Kate Coscarelli, “Gaming Industry Could Be Next Target of a Big Tobacco-Type Lawsuit”, Newhouse News Service, Jun. 24)(see May 20-21). (DURABLE LINK)

June 27 — Pledge marathon. Even Justice William Brennan seemed to recognize that it tends to damage the good name of religious unbelief to associate it in the public mind with theories of hair-trigger unconstitutionality which encourage running to court over the most minute details of official ceremony. See Eugene Volokh (multiple posts); “One Nation Under Blank” (editorial), Washington Post, Jun. 27; Megan McArdle (and reader comments); Walter Dellinger, “Logically Speaking, the 9th Circuit Doesn’t Exist”, Slate, Jun. 27; David G. Savage, “9th Circuit just following form”, L.A. Times/ Houston Chronicle, Jun. 26. Update: also see columns by Steve Chapman, “Coming to terms with our Constitution”, Chicago Tribune, Jun. 30; Jonathan Foreman, “The real pledge problem”, New York Post, Jul. 1. (DURABLE LINK)

June 26-27 — “Win Big! Lie in Front of a Train”. Per a case summary in a recent New York Law Journal, “A State Supreme Court jury in Manhattan had awarded $14.1 million to a woman who was hit by an E train. The accident occurred on May 3, 2000, in a subway tunnel just north of the 34th Street station on the Eighth Avenue line. … What was she doing in that strange place to begin with? It seems the woman, then 36, had entered the tunnel and lain down on the tracks. The police concluded later that she was trying to kill herself. She denied it, though she also said she could not remember how she had ended up there.” No wonder the Bloomberg administration is pushing municipal tort reform (Clyde Haberman, New York Times, Jun. 25)(see also Oct. 23, 2001, Dec. 17, 2001). (DURABLE LINK)

June 26-27 — Asbestos: saving the Crown jewels? “In a decision that is sure to grab the attention of the asbestos personal injury bar, a Philadelphia Common Pleas judge has dismissed Crown Cork & Seal as a defendant in 376 pending asbestos cases. Judge Allan J. Tereshko found that Philadelphia- based consumer packaging company Crown Cork & Seal qualifies for relief under a new Pennsylvania law that limits the successor liability of asbestos defendants whose liability results only from merging or acquiring companies that produced asbestos products. Under the law, the company must be incorporated in Pennsylvania prior to May 2001 and must show that its liabilities in asbestos lawsuits have equaled or exceeded the ‘fair market value’ of the company whose acquisition resulted in the successor liability.” (Shannon P. Duffy, “Pennsylvania Court Upholds Law Limiting Asbestos Liability”, The Legal Intelligencer, Jun. 13)(see Jun. 27, 2001). (DURABLE LINK)

June 26-27 — “Ex-Teach’s Suit: Kids Abused Me”. Sued if you do, sued if you don’t dept.: trial is set to start today in Brooklyn “in a ground-breaking lawsuit filed by a former special education teacher who charges he was harassed by students. … Vincent Peries, who is from Sri Lanka, says students at Francis Lewis High School in Queens mimicked his accent, tossed paper balls at him,” and made fun of his ethnic background. “School officials don’t deny Peries was harassed — but argue that they can’t discipline special ed students for slurring a teacher. ‘This is because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,’ city lawyer Lisa Grumet wrote in court papers. Special ed students can be suspended only for incidents involving physical violence, drugs or a dangerous weapon, according to Board of Education regulations.” (John Marzulli, New York Daily News, Jun. 25)(& welcome Joanne Jacobs readers) (& update Jul. 24; city settles with him for 50K). (DURABLE LINK)

June 26-27 — “‘Vexatious litigant’ vows he’ll keep coming back”. Portrait of a Texas frequent litigant who’s filed more than twenty lawsuits over the past two years, against a list of defendants that includes more than a dozen judges and assorted other officials. Among factors working in his favor, aside from our general lack of a loser-pays rule: “pauper status” rules providing for the waiver of filing fees, and a lack of cross-checking that might allow the clerk in one county to learn that Mr. O’Dell is under a court order handed down in another county to petition for approval before filing any more suits in the state. (Lisa Sandburg, San Antonio Express-News, Jun. 24). (DURABLE LINK)

June 24-25 — Reparations roundup. Someone should start a weblog devoted to reparations links, it’d be easy to fill:

* In the fall of 2000, ABC’s “20/20” and New York Times reporter Barry Meier distinguished themselves by collaborating on a devastating exposé of “personal injury lawyer Edward D. Fagan, [who] recreated himself four years ago as [a] media-savvy figure behind huge lawsuits on behalf of Nazi victims” as the Times‘s abstract puts it. The investigation (to quote ABC) “found serious questions being raised about this so-called savior, now accused of ignoring and neglecting some of the very clients he had promised to help”. ABC interviewed well-known legal ethicist Stephen Gillers, who spoke in startlingly blunt terms of his opinion of Fagan’s client-handling record (“I think it’s despicable”; “This is client abuse, in my view, and it should not be allowed to continue”.) As for Fagan’s allegedly pivotal role in developing the WWII claims, “‘We essentially worked around him,’ says New York University law professor Burt Neuborne. ‘I mean, he was, he was there, but, but he played, if I tell you zero, I mean zero role in developing the legal theory, in presenting the legal theory, and in participating as a lawyer,’ says Neuborne.” (Brian Ross, “A Case of Self-Promotion?”, ABCNews.com, Sept. 8, 2000; Connie Chung, Sam Donaldson and others, “The Survivors” (transcript), ABCNews “20/20”, Sept. 8, 2000; Barry Meier, “An Avenger’s Path: Lawyer in Holocaust Case Faces Litany of Complaints”, New York Times, Sept. 8, 2000 (abstract leads to fee-based archive); Barry Meier, “Judge Warns Lawyer to Pay Past Penalties”, Sept. 13, 2000 (same)).

But credulity springs eternal — at least in those portions of the press not industrious enough to do a Google search or two to check out the background of a lawyer re-emerging into the headlines. Last week, Fagan was all over the papers announcing that he was going to file reparations suits against Western corporations on behalf of victims of the late apartheid regime in South Africa. Britain’s Observer swallowed his pitch whole, bannering its article “Lawyer who championed those who suffered in the Holocaust fights for South Africa’s oppressed” and calling Fagan the “American lawyer who won compensation for Holocaust victims”. We’re sure that would come as news to Prof. Neuborne. (Terry Bell, “Apartheid victims sue Western banks and firms for billions”, The Observer, Jun. 16).

* On New York’s Niagara Frontier: “Thousands of Grand Islanders were thankful and relieved Friday after a federal judge ruled that the Seneca Indians do not own the land beneath their homes, businesses and public buildings”. U.S. District Judge Richard C. Arcara ruled that not only did the Seneca tribe relinquish any legal claim they might have had to the relevant tracts of New York state way back in 1764, but “there is no archaeological evidence that the Senecas ever actually set foot on the Niagara Islands.” But landowners on the island are nowhere near achieving clear title to the properties they once thought they owned, since the Senecas vow to appeal. (Dan Herbeck and T.J. Pignataro, “Sigh of relief”, Buffalo News, Jun. 22).

Meanwhile, litigation by other tribes continues to wreak havoc across a wide swath of New York State (see Nov. 3-5, 2000 and links from there). Last fall another such case ended with a federal judge’s ruling in favor of the Cayuga tribe, which 200 years ago sold the 64,000-acre tract to the state in violation of the U.S. Trade and Intercourse Act. The verdict was $36.9 million to which the judge added $211 million in interest for a grand total of $247.9 million, considerably below the $2 billion that the tribe’s lawyers had been asking for, a request that had reflected the tendency of a sum starting off long enough ago to grow to the sky through the miracle of compound interest. (Margaret Cronin Fisk, “200-Year-Old Land Dispute Nets $247.9 Million”, National Law Journal, Oct. 17). See also John Caher, “New York State May Be Solely Liable for Indian Land Claims”, New York Law Journal, Apr. 2 (suit by Oneidas “demand ‘ejectment’ of the City of Syracuse”). Update Jun. 29, 2005: Second Circuit panel throws out Cayugas’ suit and damage award as inconsistent with recent Supreme Court decision in City of Sherrill.

* Ah, the healing and emollient qualities of the reparations movement, which holds out the promise of putting racial frictions finally behind us: “A new Mobile Register – University of South Alabama survey shows that while 67 percent of black Alabamians favor the federal government making cash payments to slave descendants, only 5 percent of white Alabamians agree. Among the supporters is J.L. Chestnut, a black Selma lawyer who is part of a national legal team preparing to file reparations litigation. … ‘In five years of polling in Alabama, I have never seen an issue that was so racially polarizing,’ Nicholls [Keith Nicholls, the University of South Alabama political science professor who oversaw the survey] said. He added that the mere mention of reparations and an official U.S. government apology for slavery — another issue addressed in the poll — caused many white respondents to get so angry that they had trouble completing the interview.” (Sam Hodges, “Register-USA poll: slavery payments a divisive question”, Mobile Register, Jun. 23). (DURABLE LINK)

June 21-23 — “Trolling for litigation on eBay”. Via Ernie the Attorney: “Someone bought a packaged cheese stick that supposedly had a human hair. They want to sue, and have posted the following description of the item bid for on Ebay: ‘You are bidding on the opportunity to represent us in a civil proceeding. Naturally, our discovery of this apparently tainted product has traumatized us, and we may never be able to truly enjoy cheese (or other dairy products, or other processed foods, or other food for that matter) ever again. We reserve the right to review winner’s qualifications upon auction end. Winner must be a licensed attorney.” Before you ask, no, we don’t know whether the person who posted the auction is serious or not, though our guess is that they’re not. Update 20:45 EDT Friday: it looks as if the eBay authorities have removed the auction. It was discussed by users on eBay Forums (Jun. 21). (DURABLE LINK)

June 21-23 — Tobacco fees: a judge gets interested. Here’s one to watch closely: a Manhattan judge may finally be getting ready to delve into some of the ethical questions raised by the 1998 tobacco settlement, or at least the $25 billion portion of it that covers New York state. The judge “has asked the New York attorney general’s office and several law firms to justify $625 million in attorney fees awarded” as part of New York’s settlement with the tobacco industry (see May 11, 2001). “Citing unspecified ethical concerns, Supreme Court Justice Charles E. Ramos ordered state lawyers and attorneys from six firms that represented the state to explain why the fees should not be set aside. One ground for vacating the fees, the judge said, could be that the arbitrators who awarded them may have ‘manifestly disregarded well established ethical and public policies.’ Ramos suggested that the court had the power to not only ask a new panel of arbitrators to determine reasonable fees, but to vacate the entire $25 billion settlement, approved by another judge in 1998, if such action was warranted. He also said the issue could be referred to the Departmental Committee on Discipline and require the outside firms to produce time sheets detailing their roles in the litigation.” (Tom Perrotta, “New York Judge Cites Ethics Concern Over Tobacco Case Fees”, New York Law Journal, Jun. 20). (DURABLE LINK)

June 21-23 — 11th Circuit reinstates “Millionaire” lawsuit. “A federal appeals court has reinstated a lawsuit alleging that ABC discriminates against disabled people trying to become contestants on ‘Who Wants to be a Millionaire.’ The 11th U.S. Circuit Court of Appeals decided that the lawsuit contained a valid claim that the show’s qualifying system, which uses touch-tone phones, violates the Americans with Disabilities Act.” (see Nov. 7, 2000; Brian Bandell, “Lawsuit Reinstated Against ABC Show”, AP/New York Post, Jun. 19; Susan R. Miller, “Disabled Floridians Get Shot at ABC’s ‘Millionaire'”, Miami Daily Business Review, Jun. 21). (DURABLE LINK)

June 21-23 — Welcome Grouse.net.au readers. We’re picked as link of the day on this Australian site for June 21. Also for Jun. 21, we’re Mr. Quick’s “Link of the Day”. Among blogs sending us visitors lately: Tres Producers, Flyover Country, Aaron Haspel’s God of the Machine, Hollywood Investigator, Bob Owen of the Twin Cities, Ross Nordeen, Ravenwolf, Jon Garthwaite’s TownHall C-Log, Junkyard Blog, Now You Listen to Me Little Missy, and many others, as well as the links page of premier Cathblogger Amy Welborn. (DURABLE LINK)

March 2002 archives


March 8-10 — Will EU silence the pipes? Some Scottish members of the European parliament are warning that new noise regulations could make it unlawful to play their nation’s musical instrument: lowering maximum noise levels to 87 decibels, as is being proposed, could “silence the bagpipes for the first time since Culloden”. “If this goes through then the Queen will have to be without her piper every morning who wakes her up at Buckingham Palace,” said Jim Banks, the head of the Piping Centre in Glasgow. “It is just daft.” An EU spokeswoman denied that the authorities in Brussels wished to suppress bagpipes, but a Tory MEP said the application of the rules to employment contexts could result in the end of professional pipe bands. Two years ago the British defense ministry announced that the din of military brass bands was in violation of job-safety noise limits (see Dec. 22, 2000) (Hamish Macdonell, “EU threat to noisy bagpipes”, The Scotsman, Mar. 6)(more on bagpipers in trouble: June 21, 2001).

March 8-10 — Inability to get along with co-workers. An assembly worker with bipolar disorder “fired in 1996 following a series of conflicts with her fellow employees and what court papers termed ‘her confrontational and irrational behavior’ with her supervisor” is entitled to sue her employer under the Americans with Disabilities Act since the ability to interact or get along with others is “a major life activity”, a federal judge ruled in New York. The employer had responded to the woman’s lawsuit with a counterclaim against her, charging that her erratic and hostile behavior had cost it $500,000 in losses to its operations, but Judge Frederic Block suggested that its counterclaim was “in terrorem tactics” and “a naked form of retaliation” against “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit,” and suggested that he might impose sanctions on the company for so foolishly imagining that the accusation game might work in both directions. (Mark Hamblett, “Plaintiff With Bipolar Disorder Protected Under ADA”, New York Law Journal, March 4).

March 8-10 — Near and dear to their hearts. Florida trial lawyers are up in arms over the merest suggestion, from a committee on jury innovations, that it might be time to start rethinking their cherished right to kick prospective jurors off panels without offering reasons or explanations. Thomas Scarritt, chair of the Florida bar’s trial lawyers section, “called any discussion of eliminating peremptory challenges ‘a dangerous move.’ Scarritt told the [state supreme] court ‘that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.'” (Susan R. Miller, “Juror Power?”, Miami Daily Business Review, Feb. 6).

March 8-10 — Crestfallen at the news. “Obviously, we’re disappointed.” — Len Selfon, director of benefits programs for the Vietnam Veterans of America, on word that the Institute of Medicine had found no evidence that the herbicide Agent Orange, to which many veterans were exposed, has contributed to the risk of a form of leukemia in children (“Washington in Brief: Science Panel Retreats On Agent Orange Risks”, Washington Post, Feb. 28) (via Health Facts and Fears (American Council on Science and Health), March 5).

March 6-7 — Updates. Stories that kept on developing:

* “A judge dismissed a lawsuit Monday that claimed several video game and movie makers shared blame for the 1999 Columbine High School massacre. … [Federal judge Lewis] Babcock said there was no way the makers of violent games and movies could have reasonably foreseen that their products would cause the Columbine shooting or any other violent acts. ‘Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence,’ Babcock wrote.” (“Columbine Family’s Lawsuit Against Video Game Makers Dismissed”, AP/Tampa Bay Online, Mar. 5)(see April 24, 2001).

* A Southwest Texas University student who bared her breasts at a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million default judgment against the makers of a Wild Party Girls video who used the resulting topless picture of her in their promotions. She continues to pursue a lawsuit against the E! cable network for airing the “Too Hot for TV” ads with her image. (“Woman in ‘too hot for TV’ suit gets $5 million”, Cox/AZCentral, Feb. 27) (Update Apr. 15: default judgment thrown out). And the quest for a very private Mardi Gras continues as a Florida State University business major “has sued producers of the ‘Girls Gone Wild’ videos, claiming they invaded her privacy and used her image without permission. … [She] admits in her lawsuit that she was among the women on the streets and balconies of the French Quarter last year who removed their tops in exchange for Mardi Gras beads and trinkets.” (Janet McConnaughey, “Coed files suit over nude video”, AP/Polk County Online, Jan. 23)(see Sept. 28, 2001). At Metafilter, user “Mikewas” has some advice (Oct. 1) for how a defense lawyer might try such cases after first determining whether the local jury is of liberal or conservative leaning.

* ” In what is being described as a major victory for the so-called ‘visitability’ movement, two cities in disparate parts of the country [last month] started requiring all new homes to be accessible to the handicapped.” Besides the expected passage of such an ordinance in Naperville, Ill. (see Feb. 6), a new ordinance in Pima County, Arizona “includes the significant additional requirement of a zero-step entrance.” “I thought homes were for the owners,” says University of Chicago law professor Richard Epstein. A suburban Chicago homebuilder says the added expense could run as high as $3,000 a house: “it’s real easy to spend somebody else’s money,” adds J. Mark Harrison, executive director of the Home Builders Association of Illinois. (“Activists Win New Rules Requiring Handicapped-Accessible Private Homes”, FoxNews.com, Feb. 10).

March 6-7 — Quest for deep pockets in Ga. crematory scandal. “But while relatives focus their anger on the Marshes, their lawyers have deeper pockets in mind — the funeral homes that sent bodies to Tri-State. The reason is simple: Funeral homes have more insurance. Lawyers know the Marshes’ assets are likely to be eaten up in criminal court defending Ray Brent Marsh, the man charged with theft by deception in the Tri-State case. That leaves the funeral homes, who carry multimillion-dollar liability policies.” (Duane D. Stanford, “Big bucks at stake as lawsuits hit funeral homes that sent bodies to Tri-State Crematory”, Atlanta Journal-Constitution, Mar. 3).

March 6-7 — Washington eyes your 401(k). At Reason Online, Mike Lynch explains why the Enron collapse doesn’t prove what members of Congress keep saying it does about the supposed laxity of pension regulation (“Political Returns”, April) (see Feb. 15).

March 6-7 — Dewey deserve that much? Dig deeper into your pockets, smokers: federal judge Jack Weinstein of the Eastern District of New York “has awarded nearly $38 million in legal fees to New York-based Dewey Ballantine for representing Blue Cross and Blue Shield in a suit against the tobacco industry — more than twice the amount of a jury verdict in the case last year.” (Tom Perrotta, “Dewey Ballantine Given $38 Million Fee Award”, New York Law Journal, Mar. 1). (Update Oct. 23, 2004: New York high court derails award and underlying case.) And Loyola University law professor Dane Ciolino has dropped his challenge of the $575 million in legal fees private lawyers got for representing the state of Louisiana in the national tobacco settlement. Terms were confidential; Ciolino said he is not receiving personal benefit from the deal. “When they signed on to represent the state, the lawyers from 13 different firms became Louisiana assistant attorneys general. The lawyers claimed they acted as independent contractors, not government employees.” (Marsha Shuler, “Tobacco fee challenge dropped”, Baton Rouge Advocate, Feb. 15).

March 5 — Scenes from a malpractice crisis. “In Las Vegas, more than 10% of the doctors are expected by summer to quit or relocate, plunging the city toward crisis. … In California — where juries hearing malpractice lawsuits are limited to maximum awards of $250,000 for pain and suffering — [ob/gyn Dr. Cheryl] Edwards’ insurance premium this year is $17,000 [it had been $150,000 when she practiced in Nevada]. Because of 1975 tort reform, doctors in California are largely unaffected by increasing insurance rates. But the situation is dire in states such as Nevada where there is no monetary cap.”

“Doctors in Oregon have been told to brace for ‘breathtaking’ increases in malpractice insurance premiums in coming weeks. … When the Oregon Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain- and- suffering awards in malpractice cases, jury awards of $8 million, $10 million and $17 million swiftly followed. … The Arizona border town of Bisbee has lost its hospital maternity ward because four of the town’s six obstetricians can no longer afford to practice. … Both trauma centers in Wheeling, W.Va., have closed because their neurosurgeons couldn’t pay their new malpractice premiums. The trauma center at Abington Memorial Hospital outside Philadelphia faces closure next month as its doctors scramble to find affordable insurance.” (Tom Gorman, “Physicians Fold Under Malpractice Fee Burden”, Los Angeles Times, Mar. 4; also (same story) Boston Globe; Joelle Babula, “Malpractice Crisis: Trauma unit faces cuts”, Las Vegas Review-Journal, Feb. 7). In Mississippi, where trial lawyers hold great sway in many courts and recently blocked tort reform in the state legislature, an 18-doctor group of emergency physicians in Hattiesburg two years ago “paid $140,000 for malpractice insurance. Last year, the premium went to $250,000. The next annual premium would be $437,500 or $475,000…” (“Cost to cover errors in ER to rise for doctors”, Hattiesburg American, Jan. 26). See also Geekemglory blog, Dec. 13. (DURABLE LINK)

March 5 — Case for declaring wars, cont’d. “The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces.” Unfortunately, Congress nowadays tends to abdicate its responsibility by delegating to the White House discretion on whether to institute hostilities. (Sheldon Richman, “Anything to declare?”, Foundation for Economic Education, Feb. 16) (see Sept. 13, 2001) (via Free-Market.Net).

March 5 — “Man awarded $60,000 for falling over barrier”. Australia: “A surfer who fell and injured his back when he stepped over a guard rail to urinate has been awarded more than [A]$60,000 in compensation. Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier to relieve himself in what he thought was ground level bush.” (The Age (Melbourne), Mar. 4). Update Mar. 8-9, 2003: award overturned.

March 4 — 9/11: grab for the gems. Lawyers have sued large Manhattan jewel dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other defendants, seeking to attach proceeds from the sale of the popular gemstone tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals with links to Al-Qaeda are widely believed to have engaged in trading in the gem, which is extensively smuggled out of Tanzania, the East African country where it is mined. “Yesterday, representatives of STS and the Tanzanian Mineral Dealers Association vehemently denied any connection between their industry and al Qaeda. ‘My sympathies to the victims, but this is ridiculous,’ said STS owner Sunil Agrawal.” Among lawyers involved in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, “Tanzanite Dealers Named in Suit Brought by the Families of Victims”, Wall Street Journal, Feb. 15 (online subscribers only)). See also Ralph R. Reiland, “Lawyers Lust for 9-11 Gold” (The American Enterprise, Feb. 18). And a great Stuart Taylor, Jr. column from January that we somehow missed back then: “How 9/11 Shines a Spotlight on Litigation Lottery”, (National Journal/The Atlantic, Jan. 8).

March 4 — No reply. Lawyers from Jacoby & Meyers have filed a class action suit against online payments firm PayPal alleging all manner of atrocities in its customer service. “PayPal’s spokesman said he could not comment on the suit because his company is in the midst of a [legally mandated] post-IPO [initial public offering] quiet period.” You get to accuse them, and they can’t answer back — isn’t it fun being a lawyer? (Cheryl Meyer, “Class Action Filed Against PayPal”, The Deal, Feb. 25).

March 4 — A menace in principle. Under a law that took effect in New Hampshire last year, police are required to arrest and hold until arraignment anyone accused of violating a domestic protective order. So when a woman in the town of Farmington charged her estranged husband with placing harassing phone calls, they had to haul him in, even after a visit to his house revealed that he is blind, uses a wheelchair, and is on dialysis, leaving him not much of a credible threat to anybody. “Police had to wait three hours for an ambulance to bring [him] to the jail, but the jail wouldn’t hold him because of potential liability.” (“State domestic violence law puts police in bind”, AP/Manchester Union-Leader, Feb. 25) (via Free-Market.Net).

March 1-3 — Should have arrested him faster. “A convicted sex offender wanted in Florida who fled into the Maine woods from police is complaining that he got frostbite and lost a few toes because he wasn’t arrested fast enough. Harvey Taylor, 48, who spent at least three nights in the woods in Mattawamkeag after running from a Penobscot County Sheriff’s detective a few weeks ago, is threatening to sue the detective for not arresting him promptly.” (Mary Anne Lagasse, Flight from law leads to frostbite, threat of lawsuit”, Bangor Daily News, Feb. 27).

March 1-3 — Too much Nintendo. “A Louisiana woman is suing Nintendo, alleging her 30-year-old son suffered seizures after playing video games for eight hours a day, six days a week.” (AP/Minneapolis Star Tribune, Feb. 24; Brett Barrouquere, “Woman sues Nintendo in death of her son, 30”, Baton Rouge Advocate, Feb. 23).

March 1-3 — Batch of reader letters. We’ve fallen far behind both on posting reader letters and in answering our mail (and unfortunately we can’t answer all of it). Still, we’ve managed to put up a batch of letters from the closing weeks of last year. Topics include safe deposit boxes at the WTC, a federal judge’s decision striking down high school sports schedules that put boys’ and girls’ sports in different seasons, and discrimination against motorcyclists.

March 1-3 — Entitled to jobs that kill? On Wednesday the Supreme Court heard argument on the case of Echabazal vs. Chevron, which poses the question: “Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?” The Bush administration and business groups are trying to advance what turns out to be the controversial proposition that “employers have an interest in keeping their employees from being hurt or killed.” (Michael Kirkland, “Are disabled entitled to jobs that kill?”, UPI, Feb. 27; Warren Richey, “Can a disabled worker put himself at risk?”, Christian Science Monitor, Feb. 27; Marcia Coyle, “Rejecting a Worker”, National Law Journal, Feb. 26)(see Nov. 5, 2001). Update: Court unanimously rules for defense (see Jun. 19-20, 2002).

March 1-3 — Launder mania. Rushed through Congress in the weeks after Sept. 11, the USA Patriot Act “requires every financial institution — not just traditional banks — to monitor and to report suspicious customers to federal officials.” The paperwork and compliance burdens will be enormous, but there is little assurance that the program will make much difference in preventing terrorism, which tends to be accomplished on relatively small budgets. (Krysten Crawford, “On the Home Front”, Corporate Counsel, Jan. 22) (see Nov. 29, 2001).

March 1-3 — Welcome Boortz.com listeners. Popular Atlanta-based broadcaster Neal Boortz calls this site “one of my frequent stops” in researching his show (Feb. 27). He sure does have a lot of listeners — our traffic on Wednesday, when he did a segment paying us this tribute and endorsing loser-pays, was among the best ever.

Another noteworthy bit from his commentary: “Day after day people file lawsuits just to ‘see if we can get the other side to pay something.’ I’ve been there, folks. I’ve seen it. I was a member of the Georgia Trial Lawyers Association and the American Association of Trial Lawyers. I went to the conventions. I sat in the meetings. I participated in those discussions where lawyers would say ‘I know we don’t have a case — but maybe they would rather fork over a hundred thousand or so rather than taking the chance of going to trial. Hell, their expenses alone would be more than we’re asking!'”.


March 20-21 — No more restaurant doggie bags. In Australia, the restaurant doggie bag is in decline because of fears that patrons will store food at improper temperatures, allowing the growth of food-poisoning bacteria. “The Australian Leisure and Hospitality Group, which has 142 hotel restaurants across the country, has banned patrons from taking home leftovers. Victoria has already brought in anti-doggie-bag legislation, with other states tipped to follow before the end of the year, Mr Deakin said. ‘If we are the cooker of the food we are liable,’ he said.” (“Restaurants ban doggie bags”, The Advertiser (Adelaide), Mar. 18). Meanwhile, in the U.K.: “Some restaurants in Britain are forcing customers who like their meat rare to sign a disclaimer form before eating due to fears of the risk of E. coli and salmonella poisoning, the Sunday Times newspaper reported.” (“British Eaters Who Like Rare Meat Sign Disclaimers”, Reuters/Yahoo, Mar. 18).

March 20-21 — “School told to rehire cocaine abuser”. Florida: “Escambia County Schools must rehire a school employee who reported to work with cocaine in his system – 50 times above the cutoff level for a positive drug test. Robert K. Sites III, 37, initially was terminated after arriving at Brentwood Middle School on Aug. 10 in an agitated and nervous state. A ‘reasonable suspicion’ drug test revealed cocaine metabolites in his system. An independent arbitrator ruled this month that a penalty less severe than termination was warranted and wants Sites rehired with full pay and benefits.” (Lisa Osburn, Pensacola News Journal, Mar. 15). Under zero tolerance rules, of course, schools can suspend or even expel a student for possessing aspirin or other ordinary over-the-counter drugs.

March 20-21 — Lawyer: deep-pocket defendants are real culprits in identity theft. Perpetrators of the fast-growing crime of “identity theft” sometimes use fraud, stealth or dumpster-diving to obtain data on potential victims from businesses in the form of credit card or employment data. “Companies that contribute to identity theft by failing to protect their customers’ and employees’ Social Security numbers and other personal information could be held liable, some observers warn. Although relatively few cases of this type have been filed so far, some observers predict that with the incidence of identity theft rising, more frustrated victims will successfully sue companies that fail to protect this information … Sean B. Hoar, Eugene, Ore.-based assistant U.S. attorney for the District of Oregon, said he has spoken to groups of plaintiffs attorneys on the topic and the reaction has been ‘My gosh, this is a huge new area for civil litigation because of the likely liability that will be incurred.’ ‘I think that victims of identity theft are becoming much more cognizant of the fact that they have been hurt more by the negligent or careless acts of the companies than they are by the criminals,’ said Mari Frank, a Laguna Niguel, Calif.-based attorney who has specialized in the area of identity theft since she became a victim herself in 1996.” (Judy Greenwald, “ID theft suits in the cards”, Business Insurance, Mar. 4, subscriber-based site).

March 20-21 — McElroy on wrongful life suits. FoxNews.com columnist Wendy McElroy surveys the burgeoning field of “wrongful life” and “wrongful birth” suits following “the birth of a disabled child whom the mother would have aborted had she received adequate medical information.” The concept has been familiar in American courts for years and has cropped up in France and Australia recently as well. “The human cost of this new litigation is terrible. Parents publicly tell a child that they wish he or she had never been born.” (Wendy McElroy, “Parents Sue Doctors for ‘Wrongful Birth’ of Disabled Child”, FoxNews.com, Mar. 19)(see Aug. 22, 2001).

March 19 — Teen beauty pageant lands in court. In suburban Detroit, the outcome of this year’s Miss Teen St. Clair Shores beauty pageant was tainted, according to parent Barbara Scheurman’s legal complaint on behalf of her 15-year-old daughter Jennifer, which is expected to reach a local court next month. The controversy concerns whether the winning contestant should have been allowed to redo her talent presentation; a $200 savings bond and crown was the prize. (Tony Scotta, “Shores pageant judge defends her ruling”, Macomb Daily, Mar. 13).

March 19 — So depressed he stole $300K. Minnesota prosecutors are charging appeals court judge Roland Amundson, 52, who has resigned from the bench, with stealing more than $300,000 from a trust fund that a father had left for his developmentally disabled daughter. The judge’s attorney, Ron Meshbesher, said his client plans to plead guilty and “attributed Amundson’s actions to depression that followed his mother’s death”. According to prosecutors, however, his honor was not too depressed to put part of the money to use “to buy bronze statues, marble flooring, antique chairs and other items for himself.” (Pam Louwagie and Randy Furst, “Judge charged with stealing $300,000 from woman’s trust”, Minneapolis Star Tribune, Feb. 27; Elizabeth Stawicki, “Court’s credibility damaged by Amundson, judges say”, Minnesota Public Radio, Mar. 11). Update July 1-2: sentenced to 69 months. (DURABLE LINK)

March 19 — “Bad movie, bad public policy”. Among reasons to skip the Denzel Washington vehicle John Q: “at the end of the movie, we see real footage of Hillary Clinton and Jesse Jackson advocating for expanded federal health insurance. Last time I checked, though, countries with government-run health plans were less likely to give dying kids organ transplants, or the powerful drugs needed to keep their bodies from rejecting the new organs after the operation.” (Robert Goldberg (Manhattan Institute), “Painful John Q“, National Review Online, Mar. 8).

March 18 — Injured in “human hockey puck” stunt. “An Avon man has sued the Colorado Avalanche hockey team for negligence, claiming he was seriously injured during a ‘human hockey puck’ event Dec. 13, 2000, at the Pepsi Center. Ryan Netzer claims that during one of the intermissions, he was selected to take part in the event, in which he was slung by a bungee cord across the ice rink on a metal sled, according to the lawsuit filed Wednesday in Denver District Court.” Joseph Bloch, Netzer’s lawyer, says the organizers omitted protective padding that was supposed to be on boards into which his client slammed, suffering two leg fractures. “Prior to the event, Netzer signed a waiver.” (Howard Pankratz, “Fan sues Avalanche over stunt injuries”, Denver Post, Mar. 15).

March 18 — Couldn’t order 7-Up in French. “A federal government employee is suing Air Canada for more than $500,000 because he could not order a 7-Up in French.” Michel Thibodeau, 34, has already won a favorable determination from the Commissioner of Official Languages over the incident on an Aug. 14, 2000 flight from Montreal to Ottawa which resulted in an altercation after Mr. Thibodeau, “who is fluently bilingual, was unable to use French to order a 7-Up”. He wants $525,000 and an apology. “‘I am not asking for a right here, I am exercising a right I already have,’ Mr. Thibodeau said shortly after filing his lawsuit.” (Ron Corbett, “Air Canada sued over language dispute”, Ottawa Citizen/National Post, Mar. 2).

March 18 — Columnist-fest. Perennial-favorite scribes come through for readers again:

* Those consumer-battering steel import quotas are just temporary, says President Bush, and if you believe that … (Steve Chapman, “Relief from imports, for as long as it takes”, Chicago Tribune, Mar. 14);

* Airport security checking is a “ridiculous charade” because of officialdom’s continued pretense that “the 80-year-old Irish nun, the Hispanic mother of two, the Japanese-American businessman, the House committee chairman with the titanium hip” are all just as likely hijacker candidates as the young Middle Eastern man (Charles Krauthammer, “The Case for Profiling”, Time, Mar. 18; see also “Profiles in Timidity” (editorial), Wall Street Journal, OpinionJournal.com, Jan. 25);

* Dave Kopel says the abusive municipal gun lawsuits have served to galvanize a firearms industry that has historically shied away from politics: “Pearl Harbor day for the gun industry was the day that [New Orleans mayor] Marc Morial filed his lawsuit”. (“Unintended Consequences”, National Review Online, Mar. 6). See also Jacob Sullum, “Too many guns?”, Reason Online, Jan. 4 (on “oversupply” gun-suit theories).

March 15-17 — Texas docs plan walkout. More than 600 physicians in the Rio Grande Valley of Texas are planning to walk off the job April 8 to protest the state’s malpractice climate (Juan Ozuna, “‘Walkout’ Planned by Physicians”, McAllen Monitor, Feb. 16; Mel Huff, “Doctors discuss fallout from lawsuit abuse”, Brownsville Herald, Feb. 21; “The Doctor is Out”, McAllen Monitor, Feb. 19; “Sick system”(editorial), Brownsville Herald, Feb. 22). In famously litigious Beaumont, only one neurosurgeon is left practicing, which Texas Medical Association vice president Kim Ross calls “a scary thing … What if a patient has a car wreck, needs a neurosurgeon, and there’s none available? It’s an hour to Houston. That ‘golden hour’ [when treatment is most beneficial] is lost.” (Vicki Lankarge, “Soaring malpractice premiums bleed doctors, rob consumers”, reprinted by Heartland Institute, Jan.) “Channel-surf wherever you will; sooner or later (probably sooner) you’ll encounter an attorney urging you to bring your problems to him or her. Some are shameless in their opportunism: Have you suffered from respiratory problems? Throat inflammation? Sinus woes? Come see me; let’s find somebody to sue.” More than half of Texas physicians had claims filed against them in 2000, the Dallas Morning News has found. (“Litigation explosion plagues physicians” (editorial), Corpus Christi Caller-Times, Jan. 24 (via CALA Houston)).

March 15-17 — “Before you cheer … ‘Sign here'”. There are few things that trial lawyers loathe with more passion than the liability waivers that schools have parents and students sign before going out for extracurricular activities such as field trips or cheerleading. They’re carrying on a state-by-state campaign to get courts to strike down such waivers, voluntarily entered or not. (Mark Clayton, Christian Science Monitor, Mar. 12).

March 15-17 — “Politicians’ Syllogism”.

“Step One: We must do something;

“Step Two: This is something;

“Step Three: Therefore we must do it.”

— Jonathan Lynn & Antony Jay in the British television series “Yes, Minister” (via Prog Review; site on show; Hugh Davies, “Celebrities and friends say fond farewell to Sir Nigel”, Daily Telegraph, Jan. 10 (memorial for show star Sir Nigel Hawthorne, who died Dec. 26)).

March 13-14 — “Greedy or Just Green?”. “In the last few days of December, Kamran Ghalchi sent more than 3,000 California businesses an unwelcome holiday greeting — legal notices claiming they were in violation of Proposition 65, a one-of-a-kind California law requiring warnings on products that contain potentially dangerous chemicals. More than half of Ghalchi’s December notices were filed against car dealers and other automotive businesses throughout the state. Warnings at gas stations are a familiar sight to Californians, but car dealers do not warn customers that buying a car could expose them to oil, gasoline and car exhaust. In a letter offering to settle with one dealer, Ghalchi demands $7,500 to settle right away: $750 of it in fines to the attorney general, the rest split evenly between Ghalchi and Citizens for Responsible Business, a new Proposition 65 enforcement group that is the plaintiff in all of Ghalchi’s December filings.”

Recent figures from Sacramento indicate that of “citizen suit” settlements by companies for failing to post Prop 65 warnings, less than eight percent of payouts go to the state, while two-thirds go to plaintiff’s attorneys’ fees and costs, and much of the remainder to freelance enforcement groups that work with the lawyers. Even California attorney general Bill Lockyer, no friend of business, detects “an odor of extortion around many of these notices that concerns me'”. (Bob Van Voris, National Law Journal, Feb. 26).

March 13-14 — U.K. soldiers’ claim: brass didn’t warn of war trauma. In Great Britain, a high court lawsuit accuses the Ministry of Defence of “failing to adequately prepare service personnel for their inevitable exposure to the horrors of war”. Nearly 2,000 potential claimants have registered an interest in the action, which seeks to recover for post-traumatic stress disorder, according to Queen’s Counsel Stephen Irwin, arguing on their behalf. “Mr. Irwin said that the case was ‘enormous’, would take a very long time and would cost a ‘great deal of money'”. (“MoD sued over trauma from ‘horrors of war'”, London Times, Mar. 4; Joshua Rozenberg, “2,000 sue MoD over psychiatric injuries of war”, Daily Telegraph, Mar. 5)(see also “Britain’s delicate soldiery”, Dec. 22, 2000).

March 13-14 — Education reforms could serve as basis for new suits. “Robin Hood” lawsuits prevailing on courts to order equalization of spending between rich and poor public school districts have been a dismal failure even on their own terms, undermining local taxpayers’ willingness to shoulder property tax burdens. But undaunted by previous fiascos, activist education lawyers figure the answer is yet more litigation: they’re hoping to latch onto new federal mandates for uniform test scores as the basis for a renewed round of lawsuits arguing that underperforming schools have a constitutional right to more money. (Siobhan Gorman, “Can’t Beat ‘Em? Sue ‘Em!”, Washington Monthly, Dec. 2001).

March 13-14 — I’ve got a legally protected bunch of coconuts. “A Slidell businessman who painted 150 green-and-white coconuts to pass out at the city’s St. Patrick’s Day parade got a visit Thursday from a business partner of the Zulu Social Aid and Pleasure Club, which has been tossing gilded and glittery coconuts on Mardi Gras for decades. ‘The guy told me that as soon as I put paint on a coconut, I was infringing on their copyright,’ said Ronnie Dunaway, who owns Dunaway’s Olde Towne Market. ‘I was absolutely dumbfounded that there were laws about what you can and can’t do with a coconut.'” (Paul Rioux, “Zulu partners clamp down on copy-cat coconuts “, New Orleans Times-Picayune, Mar. 8).

March 12 — Texas trial lawyers back GOP PAC. Sneaky? In Houston, plaintiff’s lawyers traditionally aligned with the Democratic Party are funding a “Harris County GOP PAC” which has endorsed candidates in today’s Republican primary for Supreme Court, Congress, the state legislature, and county attorney. Though unaffiliated with the official Republican organization, the PAC has sent voters a slickly produced brochure whose “logo even mimics the official logo of the Harris County Republican Party, which features an elephant inside of a star”. (“Harris County GOP PAC funded by plaintiff’s lawyers”, Citizens Against Lawsuit Abuse Houston, undated March; John Williams, “Republicans want distance from PAC”, Houston Chronicle, Mar. 7).

March 12 — Liability concerns fell giant sequoia. “The Sonora Union High School District, owner of the property, had been concerned about liability if the 85-foot-tall tree fell on its own.” (Melanie Turner, “Giant sequoia felled despite legal wrangling”, Modesto Bee, Feb. 23) (via MaxPower blog, Feb. 17).

March 12 — A “Jenny Jones Show” question. Why do ads for injury lawyers so often air on the same TV shows as debt-restructuring ads aimed at viewers desperate for financial relief? — wonders blogger Patrick Ruffini (March 8).

March 11 — Fast-food roundup. The Chicago Tribune is reporting that McDonald’s Corp. is on the verge of settling lawsuits brought on behalf of vegetarians over its use of beef extract as a flavoring agent for French fries; the terms include “$10 million to charities that support vegetarianism and $2.4 million to plaintiffs’ attorneys.” Yum! (Ameet Sachdev, “McDonald’s nears deal on fries suit”, Chicago Tribune, March 7; AP/Fox News, Mar. 9; see May 4, 2001, and Rediff.com coverage: May 4, May 8, July 3, 2001). Public health activists are taking aim at the food industry’s sinister ploy of providing customers with big portions, in a contrast with the inflationary 1970s when activists denounced the same companies’ shock-horror practice of shrinking the size of the candy bar or taco (Randy Dotinga, “Super-Size Portion Causing U.S. Distortion”, HealthScoutNews/ Yahoo, Feb. 19). Whatever happened to the old notion of “leave some on the plate for Miss Manners”, anyway? On EnterStageRight.com, Steven Martinovich analyzes the next-tobacco-izing of snack food, quoting our editor on the subject (“The next moral crusade”, Feb. 25). Also see accounts on ConsumerFreedom.com: Jan. 24, Jan. 30, Feb. 5. And a lefty commentator for a British newspaper has concluded that our battle with the waistline is really all capitalism’s fault: Will Hutton, “Fat is a capitalist issue”, The Observer, Jan. 27.

March 11 — Parole board’s consideration of drug history could violate ADA. In a case filed by inmates at the state prison in Vacaville, Calif., a Ninth Circuit panel has ruled that parole boards may violate the Americans with Disabilities Act if they regard a prisoner’s history of drug addiction as a reason to accord any less favorable disposition to his request to be turned loose early, such history counting as a disability protected under the law. Sara Norman, a lawyer for the inmates, said the ruling “might also apply to those suffering mental disabilities covered by the ADA. … The panel also suggested that the ADA covers a panoply of law enforcement decision making, including arrests.” The case “could lead to a swell of court challenges”. (Jason Hoppin, “ADA Applies to Decisions About Parole, Says 9th Circuit”, The Recorder, Mar. 11).

March 11 — Editorial-fest. Sense is breaking out all over: “The government’s impulsive entrance into the victim-compensation business was born of a one-time mix of compassion and political expediency, but it sets an unaffordable precedent at a time when the nation faces the likelihood of more terrorist acts.” (“Why Is One Terrorism Victim Different from Another?” (editorial) USA Today, Mar. 8). The Washington Post, which has helped lead the case for reform of nationwide class action procedures, is back with another strong editorial on the subject (“Restoring class to class actions”, Mar. 9). And following the lead of its sister Fortune (see Feb. 18-19), Time is out with a piece asking why workers themselves should put up with the widespread abuse of asbestos litigation (“The Asbestos Pit”, Mar. 11).


March 29-31 — British judge rejects hot-drink suits. U.K. lawyers had hoped to replicate the success of the celebrated American case in which a jury voted Stella Liebeck $2.7 million (later reduced to just under $500,000, and settled out of court) after she spilled coffee in her lap. However, on Mar. 27 High Court Justice Richard Field ruled against lawsuits by 36 patrons whose lawyers had claimed that the burger chain failed to warn of risks of scalding, “served drinks that were too hot, [or] used inadequate cups … ‘I am quite satisfied that McDonald’s was entitled to assume that the consumer would know that the drink was hot and there are numerous commonplace ways of speeding up cooling, such as stirring and blowing,’ the judge said.” (“British Judge Rules McDonald’s Not Liable for Hot Drinks That Scald”, AP/TBO, Mar. 28; “Judge rules against McDonald’s scalding victims”, Daily Telegraph, Mar. 27).

March 29-31 — Florida’s ADA filing mills grind away. The clutch of Miami lawyers who’ve been making a tidy living filing disabled-accommodation claims against local entrepreneurs are moving their way up into central Florida, where they are suing tourist businesses along interstate corridors, reports the St. Petersburg Times (see July 20, 2001 and links from there). One motel owner hit with a complaint has agreed to pay off the plaintiff lawyer’s hefty “fee” in installments, but can’t tell a reporter how big it is, because as part of the settlement he is forbidden to disclose the amount. (“Big winners in disabled crusade? Lawyers”, St. Petersburg Times, Mar. 24).

March 29-31 — The lawyers who invented spam. “On April 12, 1994, Laurence Canter and Martha Siegel, two immigration lawyers from Arizona, flooded the Internet with a mass mailing promoting their law firm’s advisory services.” Widely reviled at the time, Canter is still quite unapologetic: “Yes, we generated a lot of business. The best I can recall we probably made somewhere between $100,000 to $200,000 related to that — which wasn’t remarkable in itself, except that the cost of doing it was negligible.” (Sharael Feist, “Spam creator tackles the meaty issue”, ZDNet News, Mar. 26).

March 27-28 — Judge orders woman to stop smoking at home. In Utica, N.Y., Justice Robert Julian has ordered Johnita DeMatteo, if she wants to continue visitation rights with her 13-year-old son, to stop smoking in her home or car, even in the boy’s absence. “While similar rulings have been made in cases where children are in poor health, Julian’s ruling is apparently the first involving a healthy child who is not allergic to smoke” or suffer from a condition like asthma that would be worsened by it. (Dareh Gregorian, “Judge Bars Mom from Smoking”, New York Post, Mar. 26; Samuel Maull, “Judge Imposes Smoking Ban on Mother”, AP/Washington Post, Mar. 25)(see Oct. 5 and Nov. 26, 2001). Following the publication of a new study suggesting the possibility of a link between smoking and sudden infant death syndrome, anti-smoking activists are excited to think they may now have the leverage needed to obtain legal measures against smoking by parents in homes. “Ms. [Gail] Vandermeulen of [Ontario] Children’s Aid said attempts to curb smoking in the home have so far proved unworkable. In 1999, for example, the association drew up a policy trying to keep foster parents from smoking. ‘It caused quite a controversy; people felt they had a right to do what they want to do in their own homes,’ Ms. Vandermeulen said. (Carolyn Abraham, “Secondhand smoke linked to SIDS”, Toronto Globe & Mail, Feb. 21). And anti-smoking activists, in a report financed by the government of California, are demanding that an “R” rating be attached to movies in which anyone smokes, putting Golden Age Hollywood films off limits to the underage set unless they drag an adult to the theater with them (“Anti-smoking groups call for movie ratings to factor in tobacco”, Hollywood Reporter, Mar. 12; “The Marlboro woman” (editorial), The Oregonian, Jan. 28 (Univ. of Calif.’s Stanton Glantz)). (DURABLE LINK)

March 27-28 — “The American Way”. Thanks to James Taranto at WSJ “Best of the Web” (Mar. 26) for this pairing of quotes:

* “They evil ones didn’t know who they were attacking. They thought we would … roll over. They thought we were so materialistic and self-absorbed that we wouldn’t respond. They probably thought we were going to sue them.” — President George W. Bush, Mar. 21.

* “Whether or not we invade Iraq to topple Saddam Hussein, let’s go about this the American way. Let’s sue him.”– Nicholas Kristof, New York Times (reg), Mar. 26.

March 27-28 — Reparations suits: so rude to call them extortion. What happened on Wall Street when the first three major U.S. companies were named in lawsuits demanding reparations for slavery? “In afternoon New York Stock Exchange trading, Aetna shares were up 44 cents at $37.78, CSX shares were up 66 cents at 37.55, and FleetBoston shares were up 24 cents at $35.38.” Should we interpret that as a recognition of the frivolous nature of the suits, or as investors’ vote of sympathy for the first extortion targets among many more to come? (Christian Wiessner, “Reparations Sought From U.S. Firms for Slavery”, Reuters/Yahoo, Mar. 26; “Suit seeks billions in slave reparations”, CNN, Mar. 26; text of complaint in PDF format, courtesy FindLaw; James Cox, “Aetna, CSX, FleetBoston face slave reparations suit”, USA Today, Mar. 24). Reparations activists are shrewdly structuring their meritless suits as guilt-seeking missiles, aimed at corporations nervous about their image and, coming up, the juiciest target of all: elite colleges and universities. At Princeton, for example, an early president of the college was recorded as owning two slaves at his death, and “numerous trustees and antebellum-era graduates owned slaves.” Reason enough to expropriate Old Nassau — get out your wallets, alums. (Andrew Bosse, “Reparations scholars may name University in lawsuit”, Daily Princetonian, Mar. 12; Alex P. Kellogg, “Slavery’s Legacy Seen in the Ivory Tower and Elsewhere”. Africana.com, Aug. 28, 2001) (see Feb. 22).

“It’s never about money,” lawyer Alexander Pires of the Reparations Coordinating Committee said last month. (Michael Tremoglie, “Reparations — ‘It’s Never About Money'”, FrontPage, March 4). “To me it’s not fundamentally about the money,” said radical Columbia scholar Manning Marable, who is also helping the reparations effort. (Kelley Vlahos Beaucar, “Lawsuit Chases Companies Tied to Slavery”, FoxNews.com, Mar. 25). Translation: it’s about the money. And next time you are inclined to be overawed by the reputation of Harvard Law School, consider that an ornament of its faculty, Prof. Charles Ogletree, not only is a key adviser to the reparations team but also co-chairs the presidential exploration committee of buffoon/spoiler candidate Al Sharpton, whose name will be forever linked with that of defamation victim Steven Pagones (see Dec. 29, 2000). (Seth Gitell, “Al Sharpton for president?”, Boston Phoenix, Feb. 28 – Mar. 7). (DURABLE LINK)

March 27-28 — Why your insurance rates go up. To the Colorado Court of Appeals, it makes perfect sense to make an auto insurer pay for a sexual assault that took place in a car. (Howard Pankratz, “Court: Attack in car insured”, Denver Post, Mar. 15). Update Oct. 15, 2003: state’s Supreme Court reverses by 4-3 margin.

March 25-26 — Web speech roundup. The famously litigious Church of Scientology has had some success knocking a major anti-Scientology site off the Google search engine (the offshore Xenu.net, “Operation Clambake”) by informing Google’s operators that the site violates copyrighted church material under the Digital Millennium Copyright Act. (Declan McCullagh, Google Yanks Anti-Church Sites”, Wired News, Mar. 21; “Google Restores Church Links”, Mar. 22; John Hiler, “Church v Google, round 2”, Microcontent News, Mar. 22) (via Instapundit)(see Mar. 19, 2001). The National Drug Intelligence Center, a unit of the U.S. Department of Justice, acknowledged in December that it monitors more than 50 privately operated websites that provide information about illegal drugs. In a report, the Center warned that many such sites include material “glamorizing” such substances or are “operated by drug legalization groups” with an aim to “increase pressure on lawmakers to change or abolish drug control laws.” Yes, it’s called “speech” to you, buddy (Brad King, “DOJ’s Dot-Narc Rave Strategy”, Wired News, Mar. 13; “Government Admits Spying on Drug Reformers”, Alchemind Society, Mar. 15; National Drug Intelligence Center, “Drugs and the Internet”, Dec. 2001; more on what DoJ calls “offending” websites).

Companies continue to wield threats of litigation with success against individuals who criticize them on investor and other message boards: “Dan Whatley …lost a $450,000 defamation lawsuit for statements he had made about a company called Xybernaut on an Internet message board. He said he didn’t even know the suit existed.” (Jeffrey Benner, “Online Company-Flamers: Beware”, Wired News, Mar. 1). The Texas Republican Party recently threatened legal action against a parody website aimed at calling attention GOP links to the failed Enron Corp., but succeeded only in giving the site’s operators far more publicity than they could have gotten in any other way (Eric Sinrod (Duane Morris), “E-Legal: Republican Party of Texas Goes After Enron Parody Web Site”, Law.com, Mar. 5). The Canadian government has demanded that pro-tobacco website Forces Canada cease using a version of the national flag’s maple leaf (which turns out to be a trademarked logo) as a design feature, claiming it could confuse viewers into thinking the site is officially sanctioned (Joseph Brean, “Take Canadian flag off Web site, government tells smokers’ group”, National Post, Jan. 30). And the Electronic Frontier Foundation along with law school clinics at Harvard, Stanford, Berkeley, and the University of San Francisco have launched the new Chilling Effects Clearinghouse, aimed at assisting site owners worried about being accused of violating copyrights or trademarks. It includes special sections devoted to fan sites, poster anonymity and other issues, and publishes examples of lawyers’ letters commanding site owners to cease and desist, popularly known as nastygrams. (Gwendolyn Mariano, “Site reads Web surfers their rights”, Yahoo/CNet, Feb. 26). (DURABLE LINK)

March 25-26 — La. officials seek oyster judge recusal. “The Louisiana Department of Natural Resources is asking a state district judge to remove himself from hearing oyster lease damage cases because he has already awarded a former client and the client’s family almost $110 million from two previous cases. Monday, state District Judge Manny Fernandez is set to begin hearing more lawsuits claiming the Caernarvon Freshwater Diversion damaged oyster leases in St. Bernard Parish. The state says at least one plaintiff in the case is a former client of Fernandez’s and that man’s family and related companies received damage awards in recent Fernandez decisions. … The upcoming case is the latest in a string of oyster damage suits that, if upheld on appeal, will cost the state more than $1 billion, according to the state’s motion.” (Mike Dunne, “DNR asks judge to step down”, Baton Rouge Advocate, Mar. 16). (DURABLE LINK)

March 25-26 — Tribulations of the light prison sleeper. David Wild, serving a sentence for murder at a medium security prison in British Columbia, is asking C$3 million in damages over what he calls the prison’s “inhumane” practice of conducting head counts in the middle of the night, which “has caused him to lose a full night’s sleep 509 times over five years.” In particular, Wild’s suit “says prison guards acted thoughtlessly and carelessly by rattling door knobs, stomping down stairs, turning on lights and talking loudly on two-way radios in the middle of the night.” Federal Court Justice James Hugessen has already ruled that the case can go forward, rejecting the Canadian government’s attempt to get it thrown out as frivolous or vexatious. (Janice Tibbetts, “Prison guards wake me up too much, murderer claims in $3.1M lawsuit”, Southam/National Post, Mar. 12). (DURABLE LINK)

March 22-24 — “O’Connor Criticizes Disabilities Law as Too Vague”. Another noteworthy public speech from Supreme Court justice Sandra Day O’Connor on a topic dear to our heart, namely the way the Americans with Disabilities Act created a massive new edifice of rights to sue without making clear who was actually covered by the law or what potential defendants had to do to comply. Law professor Chai Feldblum, who played a key role in guiding the law to passage while with the American Civil Liberties Union’s Washington office, counters by saying that its backers were not rushed and devoted much care and attention to drafting the bill’s provisions. Note that this does not actually contradict the charge of vagueness, but only Justice O’Connor’s charitable assumption that the vagueness was inadvertent; it is consistent with our own long-voiced opinion that the bounds of the law were made unclear on purpose. (Charles Lane, Washington Post, Mar. 15). For the Justice’s comments last summer on the relation between contingency fees, class actions and the litigation explosion, and on zero-tolerance policies, see July 6, 2001. (DURABLE LINK)

March 22-24 — Lawyers stage sham trial aimed at inculpating third party. Arizona bar authorities say opposing lawyers in a medical malpractice case cut a secret deal in which the lawyers for the physician defendant “promised not to object to any of the plaintiffs’ evidence in return for the plaintiffs’ promise to dismiss the case before the jury began deliberations.” A second defendant, Scottsdale Memorial Hospital, had already been dismissed from the case on summary judgment, and for the plaintiffs the point of the maneuver “was to create a record that would help them in seeking reconsideration of the summary judgment in favor of the hospital”. Both parties were aware that the physician defendant’s resources were insufficient to pay the claim if successful. The trial judge had been suspicious of the plaintiffs’ motion to withdraw the case, and later discovered the secret agreement when considering their motion to reconsider the summary judgment in favor of the hospital.

The state bar of Arizona brought a disciplinary action against Richard A. Alcorn and Steven Feola, who had represented the doctor. (The plaintiff’s attorney involved in the deal, Timothy J. Hmielewski, is from Florida). A hearing officer recommended against punishing the two, “concluding that the lawyers had a ‘good faith belief’ that they had no duty to disclose the secret pact”. However, both a disciplinary panel and the Arizona Supreme Court disagreed, and the latter ordered Alcorn and Feola suspended from practice for six months. It “concluded that the scripted trial and prearranged dismissal worked a serious fraud on the court and the public.” The trial judge had also “ordered all the attorneys involved to pay a $15,000 fine each for committing a fraud on the court and duping the court into conducting ‘a mock trial at the taxpayers’ expense.’ That sanction was affirmed on appeal.” (“‘Sham Trial’ Slammed, ABA Journal eReport, Mar. 8; In re Alcorn, Ariz. No. SB-01-0075-D.) (DURABLE LINK)

March 22-24 — Arsenic: one last dose? Last year some environmental groups did their best to make the public think that by pulling back the Clinton administration’s last-minute arsenic rules the incoming Bush White House was trying to let “polluters”, specifically the mining industry, get away with dumping the poison into town drinking water supplies. “This decision suggests the Bush Administration is caving to the mining industry’s demands to allow continued use of dangerous mining techniques,” said Sierra Club executive director Carl Pope. (Sierra Club release, Mar. 20, 2001). “This outrageous act is just another example of how the polluters have taken over the government,” said Natural Resources Defense Council senior attorney Erik Olson. (NRDC release, Mar. 20, 2001). Critics of the stringent Clinton rule said its real victims would be ratepayers and taxpayers in the Southwest where municipal water systems would be forced to spend huge amounts to remove traces of naturally occurring arsenic that had been causing no evident health effects (see Sept. 11, 2001 and links from there).

So who was right? The Bush people ran into a p.r. disaster and soon backed down, but this week’s L.A. Times report from Albuquerque, N.M., which has more arsenic in its water than any other big American city, suggests that the enviros won their victory on the issue by misleading the public. Pretty much everyone the paper talked to in Albuquerque, from the Democratic mayor on down, dislikes the new standard: “many people here say the rule will do little more than cost the city $150 million, and Albuquerque and the state of New Mexico are suing to block it.” Did mining operations cause the city’s high arsenic levels? No, “volcanoes and lava flows are responsible”. (Elizabeth Shogren, “Albuquerque Battles to Leave Arsenic in the Water”, L.A. Times, Mar. 18). See also Robert McClure, “Mining, arsenic rules are next on Bush’s list”, Seattle Post-Intelligencer, Mar. 21, 2001: “Virtually all arsenic in drinking water is naturally occurring.” Mining companies wind up being affected indirectly by drinking water standards because of rules that treat mine runoff water as pollution if it flunks drinkability standards, even (absurdly) if the natural occurrence of substances like arsenic in the soil meant that the water would not have met the standard with or without mining operations. (More: Nick Schulz, “Greens vs. Poor People”, TechCentralStation, Nov. 6; Jonathan Adler, “Wrong way on water”, National Review Online, Nov. 13). (DURABLE LINK)

September 2001 archives


September 10 — “Group Sues Starbucks Over Tea Ingredient”. A newly formed group in Berkeley, Calif. by the name of Council for Education and Research on Toxics charges that the Tazo Chai tea sold by the Seattle-based coffee chain contains some quantity of ephedrine, a stimulant found in the Chinese herb ephedra or ma huang whose use poses hazards to health. (“Starbucks sued in LA court over alleged tea additive”, AP/KING-5 Seattle, Sept. 8; “Group Sues Starbucks Over Tea Ingredient”, Channel 2000, Sept. 6). Starbucks says that while it does not comment on litigation, “Starbucks and Tazo believe it is important to confirm for our customers that ephedrine has never been used as an ingredient in Tazo’s Chai Tea or any other Tazo product”. Lawyers have recently been making a big business suing over alleged health effects of ephedra consumed as a dietary supplement: searching on terms like ephedra and ma huang results in a bountiful harvest of lawyer advertising and client-recruitment pages. Ephedra has long been used in herbal teas and nutritional supplements, sometimes in trace quantities, other times in high dosages sought by dieters and athletes deliberately for its medicinal effects, which are related to those of phenylpropanolamine (PPA), a stimulant long ubiquitous in over-the-counter remedies until pulled off the market last fall (see April 6).

“The only purpose of the suit is to get Starbucks to get the ephedrine out of the product, not to get any money,” claims attorney Raphael Metzger, who filed the suit. While CERT is previously unknown, the same is not true of attorney Metzger, based in Long Beach, who runs a large “toxic-tort” practice whose website is publicizing the Starbucks action (leads to complaint in long PDF document). “The constitutional right of Californians to pursue and obtain safety could be an untapped source of riches that plaintiffs’ attorneys should consider on behalf of their clients and the public,” Metzger wrote a while back in the San Francisco Daily Journal regarding the prospect of tort claims based on the California Constitution’s “inalienable rights” provision. (Civil Justice Association of California “Balance”, Q4 1997 — scroll to “Deep Pocket Dreaming” near bottom).

September 10 — Japan sued for $1 trillion in reparations. We only thought there was a postwar treaty settling all claims against the Japanese — law prof Anthony D’Amato of Northwestern U. claims to have found a loophole that would let him reopen the whole thing. “I think we’re being conservative,” he says of his $1 trillion monetary demand. “This isn’t the first unusual legal action by D’Amato, who specializes in international law,” reports the Chicago Tribune. “In 1999 he filed suit seeking unsuccessfully to halt U.S. bombing of the former Yugoslavia to prevent damage to churches, shrines, monasteries and sacred relics.” (Matt O’Connor, “Suit seeks $1 trillion from Japan for war”, Chicago Tribune, Sept. 6 (reg); complaint in PDF format; “Japan sued for $1 trillion in reparations”, UPI/InfoSpace, Sept. 6).

September 10 — Employment class actions: EEOC to the rescue. For trial lawyers pressing job bias cases, the key to getting a big employer to offer a jumbo-sized settlement is to get the case certified as a class action on behalf of minority or female workers as a group: “Once it’s certified, it’s difficult for an employer to suck it up and go to trial. The [financial] risk is too high,” says management-side attorney C. Geoffrey Weirich of the Atlanta office of Paul, Hastings, Janofsky & Walker. But if plaintiff’s lawyers are falling short on the certification issue they can get a second bite at the apple by persuading the federal Equal Employment Opportunity Commission to intervene in the case; the EEOC is held to looser standards in class representation. “[S]howing up to bail out a plaintiffs’ lawyer who ran off the road doesn’t seem like a proper use of the process”, according to Fred Alvarez, a former EEOC commissioner who now represents employers at Palo Alto, Calif.’s Wilson Sonsini. Plaintiff’s lawyers counter that intervention on behalf of groups of workers is an intended part of the agency’s function and occurs only occasionally, despite a 1996 Forbes article in which an official of the EEOC’s Chicago office endorsed class actions as offering the agency “a much bigger bang for the buck”. (Mike McKee, “Employment Bar at War Over EEOC Intervention in Workplace Complaints”, The Recorder, Aug. 30). Sample case: Matt Gove, “Harris Teeter sued by black employees”, Atlanta Business Chronicle, Sept. 7.

September 7-9 — Judges overturning fewer huge verdicts. The litigation lobby is always insisting that alarm about excessive damage awards is misplaced because judges can be relied on to reduce or overturn anything really out of line. But is that so? A new survey by the National Law Journal of 100 jury awards exceeding $1 million dating back to 1997 that came under review by trial and appellate courts found that “the rate of outright reversal has fallen, and the bar has been raised considerably on what judges find offensive. “Federal and state judges are accepting numbers that would have been rejected as excessive only a few years ago,” notes the NLJ. “Jury awards that ‘used to make you gag and choke are being upheld,’ says defense counsel Frank Daily of Milwaukee’s Quarles & Brady.” Personal injury awards were least likely to be reversed, while large awards won by businesses against other businesses fared somewhat less well after trial. Somehow we doubt the folks at ATLA are going to be ringing their friends in the press about this one (Margaret Cronin Fisk, “Hard to Shock”, “After the Jurors Go Home”, National Law Journal, Aug. 29).

September 7-9 — Managed care bill: Do as we say…. Notable fact: “the Patients’ Bill of Rights just passed by the House exempts the 9 million federal workers, retirees and dependents covered by the federal health plan, including Congressional employees. … Tellingly, the House bill also exempts the 41 million people insured through Medicaid and the more than 50 million covered through Medicare and other federal programs from the potentially expensive new mandates and protections.” Proponents claim the new scope for litigation won’t drive up costs — but they sure don’t act as if they believe that (Ira Carnahan, “Do As We Say …”, Forbes, Sept. 3) (see also Dec. 6, 1999). And: “Liberals are right: a patients’ bill of rights is just a baby step. But it’s a step in the wrong direction,” expanding access to pricey experimental treatments for the middle class while pushing more poorer persons down into the ranks of the uninsured. (Noam Scheiber, “Daily Express: Stand Still”, The New Republic Online, July 13).

September 7-9 — Mosh pit mayhem. The mosh pit down front at the rock concert is a great place to get yourself injured (but you probably knew that). And it’s an equally great place for briefcase-toting lawyers to descend afterward filing “personal injury lawsuits with promoters, producers, arenas and sometimes even the musicians themselves as defendants”. Concert promoters say part of the crowd is always eager to enter the mosh area despite the known risks, but one plaintiff’s lawyer dismisses such talk: “The guy who controls the microphone controls the crowd,” he says. Among rock groups that have reached confidential settlements after being sued in such cases is the frenetically anti-capitalist group Rage Against the Machine, which distributes Noam Chomsky tracts to its fans. (Robert Wiener, “Rock And Roll Lawsuits”, LexisOne, July 31; Anthony DeBarros, “Injuries surge to high levels”, USA Today, Aug. 8, 2000).


September 6 — Red-light cameras. A San Diego judge has dismissed 300 traffic tickets issued under a system that “snaps a photo of a red-light runner and mails a $271 citation to the registered owner of the vehicle,” $70 of which is kept by a former Lockheed Martin subsidiary that operates the enforcement system. Such systems have already spread to fifty cities; critics charge that errors are common and very difficult for the motorist to fight, and that the company running the computerized cameras has no financial incentive to reduce the rate of erroneously issued tickets — quite the contrary, since it collects a share of the ill-gotten gains. According to Rep. Dick Armey (R-Tex.), since red-light cameras became a major source of municipal revenue, many cities have significantly shortened the duration of yellow lights, a practice that profitably increases the number of violations for the cameras to catch but worsens the risk of traffic accidents themselves. It’s another wrinkle on the bad old practice of contingency-fee law enforcement — a sure recipe for injustice whether inflicted by public authorities, private contractors, or the two in combination. (“Judge Dismisses 300 Tickets Spawned by Red-Light Cameras, FoxNews.com, Sept. 5; Alex Roth, “Ex-worker says firm puts profits over safety; Man testifies that revenue is main purpose of red-light cameras at intersections”, San Diego Union-Tribune, July 6; Ray Huard and Alex Roth, “Doubt focuses on red-light cameras”, San Diego Union-Tribune, Aug. 17; RedLightLawyers.com; Eric Peters, “Rigging traffic lights hurts safety”, Detroit News, Aug. 12; OpinionJournal.com, “Big Brother’s Camera” (editorial), July 3) (see also Apr. 8-9, 2002).

September 6 — Judge Kent: another helping. A Philadelphia environmental litigator who asks to remain anonymous writes: “I love your stuff on Judge Kent [the Hon. Samuel Kent, federal judge, S.D. Texas; see Aug. 2, Aug. 3]. I have in my grubby lawyer hands a Judge Kent order dated June 7, 2001 (entered June 8, 2001) in Labor Force, Inc. v. Jacintoport Corp. & James McPherson, Civ. Action No. G-01-058 (opinion in PDF form courtesy Green Bag). In that opinion, the judge, among other things, calls the lawyer’s motion ‘obnoxiously ancient, boilerplate, [and] inane.’ He also refers to it as asinine. … No URL as yet, and I don’t think it’s on Westlaw.

“There are 38 uses of ‘asinine’ in the allfeds database in Westlaw. Judge Kent has the vast majority of them. Thank God I’m in PA and not Texas.” (Corrected Aug. 15, 2004: fixed earlier erroneous spelling of case name).

September 6 — Reparations talk. “Reparations, so popular a topic in black-radio discussions and in black newspapers, masquerade as a bonus check for being black. They are a Trojan horse full of devastating consequences for the future of black America. Reparations are a dangerous, evil idea that has to be derailed now before emotions and momentum take American race relations on a crash course”. (Juan Williams, “Get a Check? No, Thanks”, GQ/FrontPage, Sept.) East Indians, recently arrived, made themselves a power in small business and science “with organization and planning. They certainly didn’t do it with reparations checks. Blacks could have done it, if for years we hadn’t been following leaders whose motto should be ‘Ain’t Too Proud to Beg.'” (Gregory Kane, “Slavery reparations no fix for ‘community in disarray'”, Baltimore Sun, Aug. 18). “Europe has indeed played a unique role in the history of slavery. Slavery has been a universal feature of all societies throughout most of history. … What makes Europe unique is that it ended slavery.” (Andrew Kenny, “White is Right”, The Spectator (UK), Aug. 25). And the King of Senegal has weighed in, pointing out that the guilt for slavery as an institution in his part of Africa long antedated Europeans’ arrival (Ellen Knickmeyer, “Senegal’s leader blasts idea of slave reparations”, AP/Nando, Aug. 29) (see Aug. 22 and links from there).

September 5 — “New law would stem abuses in Disabilities Act”. H.R. 914, the ADA Notification Act, is a bill introduced by Rep. Mark Foley (R-Fla.); Sen. Daniel Inouye (D-Haw.) is sponsoring a Senate counterpart. It would give businesses 90 days to make renovations to their facilities demanded under the Americans with Disabilities Act, thus putting a crimp (it’s hoped) in the complaint mills by which lawyers file accessibility complaints by the dozen and then collect legal fees from target businesses (see Jan. 26, 2000). (Hector Florin, Miami Herald, Aug. 31).

Among South Florida lawyers who have filed many near-identical complaints, collecting thousands of dollars per defendant in legal fees on settlement, are William Tucker and Lawrence McGuinness. The Fort Lauderdale Sun-Sentinel notes, however, that “Tucker works out of a Fort Lauderdale building that has no disabled parking, a ramp steeper than the law allows, no landing and a door with a round doorknob. McGuinness’ office in Coral Gables has a curb with no ramp to the front door.” (Aug. 26). The same paper editorializes: “The Americans with Disabilities Act has been hijacked by trial lawyers who are using it to drum up legal fees.” (editorial, Aug. 28) (via OpinionJournal.comBest of the Web“).

September 5 — New York’s crazy homeless program. It’s the result of litigation by advocacy groups that have been tying the city in courtroom knots for years (Heather Mac Donald, “Forbidden Facts”, New York Post, Aug. 21).

September 5 — Target: trade associations. Two appeals courts in Washington state have upheld a verdict holding the National Spa and Pool Institute liable for $6.6 million in damages to a man who broke his neck diving into a below-ground pool and sued, saying the institute’s voluntary safety standards for pool design should have been stricter. “To protect its assets, the pool group was forced to file for bankruptcy (it’s now out of it) and sell off its $3 million (net income) trade show. Until this decision virtually all courts declined to extend product liability to associations that develop voluntary safety standards in good faith.” (Matthew Swibel, “On the Docket: In Hot Water”, Forbes, July 9 (reg)).

September 3-4 — “Lawsuit demands AOL stop anti-Islamic chat”. “A Muslim subscriber sued America Online yesterday, claiming that anti-Islamic insults in AOL’s chat rooms violate his civil rights. If successful, the suit could force the world’s largest Internet company to strictly limit what 30 million members can say in 14,000 chat rooms. … The suit alleges that by not kicking out the disrupters, AOL violated its contract with users. But it also claims that under the 1964 Civil Rights Act, an AOL chat room is a ‘public accommodation,’ as is a restaurant or a hotel.” (Hiawatha Bray, Boston Globe, Aug. 31; AP/Yahoo, Aug. 30; Leef Smith, “Suit Says AOL Permits Insults”, Washington Post, Aug. 31; BBC; Robyn Weisman, “AOL Stung by Hate Speech Lawsuit”, NewsFactor.com, Aug. 31) (& see Dec. 5-6).

September 3-4 — Not discriminatory to kick sleeping worker’s chair. A Pittsburgh federal jury has decided that it did not constitute race or sex discrimination for a supervisor to kick the chair of a sleeping 911 emergency dispatcher to wake her up. The supervisor had said that he had jostled the chairs of other workers who snoozed on the job. (“911 Boss Cleared In Woman’s Kicking Lawsuit”, WTAE/Yahoo, Aug. 28). And Great Britain’s Institute of Management has said that privacy provisions of that country’s newly enacted Human Rights Act may restrict an employer’s right to call its employees at home. “‘An employer does not have the right to demand an employee’s telephone number unless it is specified in the contract that the employee has a duty to be available outside normal working hours,’ the institute said. … The body also said employees are under no obligation to divulge their addresses except for the purpose of receiving ‘routine correspondence’ in connection with their job, such as salary slips.” (“Plagued by calls from the boss at home? Sue them”, Yahoo/Reuters, Aug. 24).

September 3-4 — Batch of reader letters. On topics such as Miniver Cheevy’s prospective wrongful-birth lawsuit, the next Cessna, slavery reparations, should doctors turn away lawyers as patients?; a 2-cent class action refund, and zero tolerance meets domestic violence. Also: we recommend a new book.


September 19-20 — Profiling, again. There’s a fairly wide consensus at the moment that airport detectives, border guards and various other kinds of security personnel are sometimes, at least, entitled to apply closer scrutiny to groups of youngish men of Middle Eastern extraction than to groups of elderly women of Scottish descent. Does that mean abandoning our longstanding ideal of equality under the law, or is there some place to draw a principled line? (Joyce Purnick, “Last Week, Profiling Was Wrong”, New York Times, Sept. 15 (reg)).

WORTH READING: Michael Brus, “Proxy War”, Slate, July 9, 1999; James Forman Jr., “Arrested Development: The Conservative Case Against Racial Profiling”, The New Republic, Sept. 10; Randall Kennedy, “Suspect Policy”, The New Republic, Sept. 13, 1999; Yahoo Full Coverage; Heather Mac Donald, “The Myth of Racial Profiling”, City Journal, Spring; George Will, “Racial profiling may be more myth than reality”, Washington Post/Detroit News, April 23; and see (linked already Sept. 14-15) Tarek E. Masoud, “American Muslims Are Americans. Let’s Act Like It”, WSJ OpinionJournal.com, Sept. 14.

September 19-20 — Welcome Insure.com, Atlanta Constitution, Houston Chronicle, Money/CNNfn, About.com readers. Plenty of press mentions lately for this site, its editor or both, including comments on the litigation likely to follow the Trade Center bombing (Vicki Lankarge, “Insurers and airlines face years of litigation over terrorist attacks”, Insure.com, Sept. 13) and in particular the possibility that major airlines could be ruined by liability actions on behalf of victims on the ground (Nancy Fonti and Dave Hirschman, Atlanta Constitution, Sept. 18 — quotes included in earlier but not current online version). Earlier, we were selected as a weekly web pick by the Houston Chronicle: “It’s written in nonlegal terms, so you’ll be able to dive right in and understand what you’re reading.” (Cay Dickson, “What’s Online”, Houston Chronicle, Sept. 10). In another article published before the attack, this one for Money magazine, Amy Feldman quotes us on lawsuits by investors against brokers (“You screwed up? Sue!” (excerpt of longer article), Money/CNNfn, Sept. 10).

We’ve also recently been linked to by several pages at Robert Longley’s U.S. Government section of About.com, including the sections on Gun Control (nominating us as “excellent” and “Best of the Net”) and Environment (“Do some environment laws go just a ‘bit too far?’ Overlawyered.com suggests they might and offers some fascinating reading to back this up.”)

September 19-20 — Washington Post on airline liability. The newspaper is properly skeptical about a generalized bailout of the airlines as such, but sees merit in the idea that they ought not to face near-infinite liability for the terrorists’ actions. “Congress should accept some liability costs, taking care that these are not costs already covered by private insurance. It should also pass legislation to ensure that liability payments are held to a reasonable level and that trial lawyers do not pocket large chunks of the money.” (“The Airline Bailout” (editorial), Washington Post, Sept. 18).

September 19-20 — Michigan tobacco fees. The $450 million award “works out to an hourly rate of $22,500, based on claims by law firms in South Carolina and Mississippi that they spent 20,000 hours on the Michigan portion of the tobacco case,” reports the Detroit Free Press‘s Dawson Bell. Arbitrators conceded that lawyers had done only a “modest” amount of work specifically on behalf of the Wolverine State, but said their efforts on the litigation on a national level deserved kudos, besides which it had been a coup for them to have recruited then-Michigan Attorney General Frank Kelley, considered influential among his fellow AGs. Sure sounds to us like it’s worth $450 million! (“Panel awards big pay in suit”, Sept. 7; Yahoo/Reuters; William McQuillen, “Michigan Tobacco Lawyers Awarded $450 Mln From Accord”, Bloomberg.com, Sept. 7).

September 18 — Settle a dispute today. A story with a moral from Texas Lawyer: “With America under attack by terrorists, lawyers involved in the trial of a bitter, highly personal fee fight agreed the dispute was trivial in the wake of the horror and tragedy of the events of Sept. 11, and they resolved their disagreement.” The $105 million battle over division of fees from tobacco and other litigation had pitted celebrated plaintiffs’ lawyer John O’Quinn against former associate Kendall Montgomery, who was represented by prominent attorneys Joseph Jamail and Ronald Krist; it had riveted the Houston legal community with a series of highly unflattering revelations about both sides. Then came the blasts in New York and Washington, which helped put a lot of other things in perspective. We hardly ever find ourselves writing favorably of Messrs. O’Quinn and Jamail, but here’s hoping their example adds a new item to our national to-do list: 1) make a donation for NYC and Washington relief; 2) book some air travel; and 3) clear the decks of some old dispute that doesn’t seem nearly as important as it used to. (Brenda Sapino Jeffreys, “Crisis Catalyst for Settlement”, Texas Lawyer, Sept. 17 and Houston Chronicle coverage typified by Bill Murphy, “Ex-partner covered for drunken O’Quinn, lawyer says”, Sept. 6; “O’Quinn reneged on agreement, jurors told”, Sept. 7). (DURABLE LINK)

September 18 — More on asbestos in WTC. Less and less seems clear about this subject, notwithstanding the reports we linked yesterday. Here’s Newsweek/MSNBC: “Reports have been conflicting about how much asbestos was installed in the twin towers, which were built between 1966 and 1973, or how much might have remained there at the time of the collapse. … Guy F. Tozzoli, the physicist-engineer who headed overall development of the World Trade Center throughout its construction and remained there until 1987, says asbestos was only used in the first 39 floors of the Tower One, the first building struck Tuesday and the second one to fall. After that, other materials were used at an additional cost of over $400,000, he says. ‘There was no asbestos used anywhere else in the buildings,’ says Tozzoli, who currently is president of the World Trade Center Association.” (David France and Erika Check, “Asbestos Alert”, Newsweek/MSNBC, Sept. 14). The reports linked yesterday from Steven Milloy and JunkScience.com, on the other hand, describe much more of the complex, including the lower 64 floors of Tower 2, as having been given asbestos insulation.

How much of the original insulation was still there as of Sept. 11? Yesterday’s linked articles seemed to proceed from the premise that it remained in place. But here’s Newsweek/MSNBC again: “Subsequently, the asbestos was encapsulated in a honeycomb of plastic, and in the early ’80s, after a ‘fastidious, painstaking process,’ it was entirely removed, he [Tozzoli] says. ‘If they are finding asbestos in the ash, it is not coming from us.'” The Port Authority, the buildings’ owner, engaged in prolonged litigation with asbestos manufacturers and its own insurers seeking to shift to them $600 million in costs of asbestos abatement. (British Asbestos Newsletter, Spring 1996, item #2; Mound, Cotton, Wollan & Greenglass, “What’s New“, “Cases”). Reader Maximo Blake writes to say: “To the best of my knowledge a majority of the asbestos coating the beams and elsewhere was removed in the 1980s. My information comes from a Port Authority employee who supervised the removal.” Just to add a bit more complication, a web search reveals a relatively recent Sept. 12, 2000 entry from the Port Authority’s Construction Advertisements Archive in which the authority solicits sealed bids for ongoing “Removal and Disposal of Vinyl Asbestos Floor Tiles and Other Incidental Asbestos-Containing Building Materials” at the WTC, with bids due October 17, 2000.

Plus: Today’s New York Times quotes specialists with a range of opinions on whether the change in materials might have made a difference. (James Glanz and Andrew C. Revkin, “Did the Ban on Asbestos Lead to Loss of Life?”, New York Times, Sept. 18 (reg)).

September 18 — “Civil liberties in wartime”. Just-started Slate dialogue between Stewart Baker (Steptoe & Johnson) and Eugene Volokh (UCLA School of Law, Center-Right) looks like it will be a good one, as we’d expect from these two (began Sept. 17).

September 17 — Renewed in alabaster. Our friend (and frequent contributor to this site) John Steele Gordon, author of The Business of America, contributed this commentary on the afternoon of the blast to National Public Radio’s Marketplace, still relevant today:

“The beating heart of world capitalism will beat again, and soon.

“The New York financial market — a potent and emotional symbol of American power — has been struck before. In 1863 the draft riots, sparked by opposition to the Civil War, engulfed the city from downtown to its northern edge, then in the east forties. Hundreds, perhaps thousands, died in the three days of looting, fire, and lynching. But as soon as order was restored — by army regiments rushed in from Gettysburg — the banks and the stock exchange reopened. Business went on.

“In 1920, a deliberate attack on Wall Street itself resulted in an explosion in front of the Morgan Bank. Hundreds of pounds of cut up iron chunks, intended as people killers, were hurled throughout the neighborhood, and awnings as high as twelve stories up burst into flame. Thirteen were killed and dozens injured. Had the bomb exploded a few minutes later, when lunch-hour crowds would have thronged the corner of Wall and Broad, the death toll would have been in the hundreds. But the next day, the Morgan bank, and the stock exchange across the street, were open for business, their shattered windows boarded up, their courage intact.

“New York City is a tough place, both when it comes to dishing out misfortune and when it comes to absorbing it. And no part of this city is tougher than its oldest part, where people have come for three hundred and fifty years to seek their fortunes. Too many hearts have been broken there, and too many dreams fulfilled, to be more than momentarily shaken even by an outrage of the magnitude of this attack.

“We New Yorkers will bury our dead — however many they may be — comfort our wounded, plan our revenge. But most of all, New York will go on.

“It will go on doing what New York does best, buying and selling, searching for opportunity, reaching for the stars.

“Two thousand years ago, St. Paul said, ‘I am a citizen of no mean city.’ On this terrible day, millions of New Yorkers know exactly what he meant.” (DURABLE LINK)

September 17 — How many lives would asbestos have saved? Don’t-miss column from FoxNews.com’s Steven Milloy, associated with the Cato Institute and known for his JunkScience.com page: “Until 30 years ago, asbestos was added to flame-retardant sprays used to insulate steel building materials, particularly floor supports. The insulation was intended to delay the steel from melting in the case of fire by up to four hours. In the case of the World Trade Center, emergency plans called for this four-hour window to be used to evacuate the building while helicopters sprayed to put out the fire and evacuated persons from the roof. … In 1971, New York City banned the use of asbestos in spray fireproofing. At that time, asbestos insulating material had only been sprayed up to the 64th floor of the World Trade Center towers.” [see addendum/correction below] Both planes struck higher floors, and the substitute material did not prove notably effective in preserving the steel, whose melting caused the towers to collapse 56 minutes in one case and 100 minutes in the other after fire broke out. Moreover, Milloy argues, by the time of the WTC’s construction, “wet-spraying” techniques of asbestos installation had been developed that made it possible to drastically lessen the danger to construction workers of breathing in harmful fibers during application. The late Herbert Levine, “who invented spray fireproofing with wet asbestos … frequently would say that ‘if a fire breaks out above the 64th floor, that building will fall down.'” (“Asbestos Could Have Saved WTC Lives”, Sept. 14).

Addendum: reader Thomas Sanderson, mechanical and aerospace engineer, writes: “Given that I read your site every day because of the quality and common sense, I was deeply disappointed to find you referring this article without appearing to recognize the problems with its argument.

“Fire insulations for buildings are designed to protect the structure against the heat from a fire fueled by the building’s contents: paper, furniture, carpet, etc. This is true of asbestos insulations and their replacements. When you add several hundred thousand pounds of jet fuel you create a fire that is far hotter than anything the designers planned for. In addition, the crash itself would have stripped most of the insulation from the steel columns, rendering the insulation useless no matter what material was used. The collapse of the towers short of the 4 hour mark specified in the article was due to the size and heat of the fire being well outside the specifications of the insulation and building codes; there is no reason to believe that asbestos insulation would have performed any better than the insulation that was used and every reason to believe that asbestos would have failed in the same way.

“By citing this column without pointing out its obvious flaws, you are encouraging the kind of unjustified lawsuits your site intends to stamp out.”

Further addendum: Milloy’s JunkScience.com (first Sept. 15-16 item) adds the following correction/amplification in response to reader emails: “Apparently, One World Trade Center was completely insulated with asbestos. But Two World Trade Center was insulated with asbestos only up to the 64th floor. One World Trade Center lasted almost 45 minutes longer than Two World Trade Center. It’s possible — no guarantees — that more people might have gotten out of Two World Trade Center had it been fully asbestos-insulated. Nothing would have prevented the buildings from collapsing eventually given the heat generated by the combustion of jet fuel.” (& see Sept. 18: MSNBC quotes an authority who contradicts the above account and says the asbestos was removed in the 1980s)

September 17 — $3 million verdict for selling gun used in suicide. Ryan Eslinger, 19, committed suicide with a gun he bought after lying on the application at Kmart to conceal his history of paranoid schizophrenia; the 17-year-old clerk, an acquaintance of his from high school, mistakenly accepted Eslinger’s passport as adequate identification, which it isn’t under federal gun laws. Now a federal court jury in Utah has told the retailer to pay $1.5 million in compensatory and $1.5 million in punitive damages to Eslinger’s family, saying it acted with “reckless indifference”. (Patty Henetz, “Kmart Pays Punitives to Utah Family Over Shotgun Sold to Suicidal Teen”, AP/Law.com, Sept. 17; “Kmart sued for wrongful death in suicide case”, AP/Nando, Sept. 5).

September 14-16– “Why they hate us”. “It was a novel thing in 1776 to treat people as ends in themselves, not as the instrument of some higher purpose. In many places, it still is. As a rule, Americans don’t subordinate individuals to grand and noble causes — we let them decide whether to subordinate themselves. … Our deference to the pursuit of happiness exasperates critics who see it as frivolous and shallow. They think life is meaningless and even wicked unless it is devoted to some cause greater than yourself.” Best column we’ve read lately on why premodern fanatics of every stripe and on every continent hate our society for its supposed decadence, materialism, and moral laxity. (Steve Chapman, Chicago Tribune/TownHall.com, Sept. 13).

September 14-16 — Security holes: to the North… December 1999’s interception of Ahmad Ressam as he crossed from British Columbia into the U.S. with bomb-making materials, and the apparent use of Nova Scotia and other parts of Canada as staging areas for this week’s outrage, points to a persistent problem: “Canada, according to David Harris, former CSIS chief of strategic planning, is ‘a big jihad aircraft carrier [terrorists use] for launching strikes against the U.S.'” While actual carrying out of terrorist schemes is against Canadian law, the country’s authorities allow surprisingly wide scope for organizing and fundraising in support of such schemes. (“With friends like us” (editorial), National Post, Sept. 13; Mark Steyn, “A very curious nation where Canada once was”, National Post, Sept. 13; Tom Arnold (& files from Reuters), “U.S. to call for tighter security at borders”, National Post, Sept. 13; Elizabeth Nickson, “Evil resides among us, in our hearts”, Sept. 13; Paul J. Smith, “The Terrorists and Crime Bosses Behind the Fake Passport Trade”, Jane’s Intelligence Review, July 1; Mary Anastasia O’Grady, “Threat from the North”, WSJ OpinionJournal.com, Sept. 14).

September 14-16 — …and at home. Often quite unfairly, organized Arab-Americans and Muslim-Americans find their loyalty to this country put in question. As the surest way of dispelling such imputations, “they should help in every way possible to smash the network within their own communities that provides money and shelter to terrorists. It’s the least they can do for their neighbors”. (Nolan Finley, “Arab-Americans can help cause by exposing terrorist sympathizers”, Detroit News, Sept. 13; Tarek E. Masoud, “American Muslims Are Americans. Let’s Act Like It”, WSJ OpinionJournal.com, Sept. 14).

September 14-16– What you knew was coming. Lawyers “say they expect an avalanche of lawsuits against the airlines, the security companies the airlines hired to screen passengers at the airports and the government agencies that run the airports.” (Joseph B. Treaster and David Cay Johnston, “Billions in Claims Expected, but Compensation Could Vary Widely”, New York Times, Sept. 13; Robert Manor and Rick Popely, “U.S. airlines face trouble in aftermath of attack”, Chicago Tribune, Sept. 13). After the earlier bombing of the World Trade Center in 1993, New York’s Port Authority unsuccessfully sued companies that made fertilizer, one of the bomb’s components (Aug. 23, 1999). The Association of Trial Lawyers of America yesterday called for a “moratorium” of unspecified length on the filing of suits over this week’s calamity (ATLA website, “A National Tragedy“). On lawsuits against the U.S. government over terrorism and their tendency to give the terrorists a second victory, see July 5, 1999 (Kenya and Tanzania embassy bombings). On the problematic nature of recently passed laws that permit victims of terrorism to sue responsible foreign states and then recover part of the resulting jury awards from U.S. taxpayers, see June 18, May 9; July 6, 2000.

Today’s Times reports that the two airlines whose planes were hijacked, American and United, are urging Congress to curtail suits against them by victims on the ground (as opposed to their own passengers and crew), a step that might be taken in conjunction with a federally legislated compensation scheme for victims in lieu of litigation; trial lawyers appear to be mobilizing to oppose such measures, even though a federal scheme of legislated compensation would be likely to get cash to survivors earlier and with more certainty than would lawsuits. “Lawyers who specialize in representing plaintiffs said the airlines were the most likely targets for negligence and wrongful death suits for victims on the ground and in the air. Potential payments could run into the hundreds of millions of dollars, the lawyers said.” For those new to this topic, this figure of “hundreds of millions” apparently represents not airlines’ aggregate liability, but of what they could pay in individual cases where high-paid businesspersons perished (such payments by airlines to families having ranged well into the tens of millions of dollars in individual cases in the past). Missing from the article is any plausible estimate of airlines’ aggregate liability should lawyers succeed in getting them held responsible for ground losses (a theory which of course the courts may not accept). Counting wrongful-death, injury, property damage and business interruption claims, it seems unlikely that the totals would stop short of many tens of billions of dollars, a prospect likely at some point to exhaust the airlines’ available insurance coverage and drive them into bankruptcy, with resulting destabilizing effects on the U.S. air transport system and economy (again, assuming courts go along, which they may not). Today’s Times coverage also cites “plaintiff’s lawyers” as having spread word in recent days that insurance companies might be preparing to deny WTC claims by resorting to war exclusions in policy coverage, a report well calculated to alarm and anger policyholders and make them more likely to consider hiring lawyers, but for which the evidence so far appears remarkably scanty; every insurer spokesperson we’ve seen quoted has contradicted the report. (Joseph B. Treaster, “Airlines Seek Restrictions on Lawsuits Over Attacks”, New York Times, Sept. 14).

September 13 — Before going to war, declare war. Formal declarations of war paradoxically help make the world a more civilized place, at least when compared with the alternative, the modern practice of waging war without declaring it: like other legal formalisms, they help put an end to self-serving guessing games among both combatants and third parties as to who owes obligations to whom. “We should seriously consider a congressional declaration of war,” writes columnist Charles Krauthammer. “That convention seems quaint, unused since World War II. But there are two virtues to declaring war: It announces our seriousness both to our people and to the enemy, and it gives us certain rights as belligerents (of blockade, for example).” (“To War, Not to Court”, Washington Post, Sept. 12). There are also various precedents Congress might consult for steps other than the conventional declaration of war against a named enemy state; among them are letters of marque and reprisal, employed in the early history of American navigation. (Washington Post, letter to the editor from Wade Hinkle, Annandale, Va., Sept. 12; scroll to near bottom) (via Instapundit).

September 13 — Self-defense for flight crews. Issuing them guns (employing ammunition of a type unlikely to pierce a metal fuselage) might be better than today’s practice of mandating their defenselessness, and a whole lot more meaningful than (to name one newly announced step) forbidding airport shops to sell plastic dinner knives. A less drastic approach “would be to give all flight crews tasers, pepper spray, and the training to use them. This approach has the added benefit of dealing with ‘air rage,’ which is still far more common than hijacking, but the airlines would probably need some legislative protection from lawsuits to adopt the practice.” (Virginia Postrel, Dynamist.com, Sept. 12; Dave Kopel, “Making the Air Safe for Terror”, National Review Online, Sept. 16).

September 13 — Non-pregnant rescuers, please. “The D.C. Fire Department and Emergency Medical Services is in all kinds of hot water for disqualifying its pregnant female applicants.” Would this be an okay time to agree that society, women included, has a compelling reason to want to hire the strongest, quickest, and hardiest prospects for jobs that may involve pulling victims from the rubble of disasters? (“The law vs. common sense” (editorial), Washington Times, Sept. 10).

September 13 — Message to the killers. “What was it you hoped we would learn? Whatever it was, please know that you failed. Did you want us to respect your cause? You just damned your cause. Did you want to make us fear? You just steeled our resolve. Did you want to tear us apart? You just brought us together.” (Leonard Pitts Jr., “The barbarians will learn what America’s all about”, Miami Herald/Seattle Times, Sept. 12) And: Mark Steyn, “West’s moral failure at root of tragedy”, National Post, Sept. 11; Dave Barry, “Just for being Americans …”, Miami Herald, Sept. 13; Jeff Jacoby, “Our enemies mean what they say”, Boston Globe/Jewish World Review, Sept. 13; eyewitness account with pictures: The Fine Line blog, Sept. 12.

September 12 — “From the dust will come justice”. “[J]ustice may not be swift. It is important, though, that it be sure.

“For those who on Tuesday took a part of America’s heart, there must be one uneasy assurance: Life is long. We are not finished. And it is they who must feel the terror.” (Chicago Tribune (editorial), Sept. 11). We also recommend the coverage on Virginia Postrel’s and Glenn Reynolds’ sites.

September 12 — Barbara Olson, 1955-2001. The attorney, commentator, author, and wife of Solicitor General Ted Olson (and no relation to this site’s editor) was on board American Airlines Flight 77 and used her cell phone to call her husband and relay details about the flight’s hijacking. A former prosecutor, Mrs. Olson rendered many services to this country, and it would be fitting if by this final act she helped assist law enforcement in the inquiries that lead to bringing the murderers to justice (John Solomon, “Barbara Olson, wife of U.S. solicitor general, dies in Pentagon attack”, AP/Boston Globe, Sept. 11).

September 12 — Transsexual passenger’s airline hassle. We were preparing a light, jolly sort of item about the lawsuit charging United Air Lines with discrimination against transsexuals because they over-hassled Richard Ward/Sarah West at boarding time: “according to the lawsuit, Ward was told he wouldn’t be able to fly until he looked more like his passport photo, which shows him as a man.” But we knew there was a serious point at the incident’s core: airline personnel aren’t just being spiteful when they insist that passengers match up fairly closely with their picture IDs. Could we agree that this is a bad moment at which to assert a new civil right to board airliners in disguise? (WJLA, “Airline Orders Man to Change Out of Women’s Clothing”, Sept. 5; AirDisaster.com thread)

September 12 — Self-defense: an American tradition. In his much-praised book ”Arming America: The Origins of a National Gun Culture”, Emory University historian Michael A. Bellesiles delivered a novel thesis many reviewers were eager to hear: that America’s identification of gun ownership with individual liberty is a recent invention, and that “gun ownership was exceptional in the seventeenth, eighteenth, and early nineteenth century, even on the frontier”. Now a front-page Boston Globe article backs up a growing furor over the book’s methods and veracity. (David Mehegan, “New doubts about gun historian”, Boston Globe, Sept. 11; Melissa Seckora, National Review, Oct. 1; Dave Kopel and Clayton Cramer, “Check the Footnotes”, National Review Online, Jan. 13-14).

September 11 — Soaring medical malpractice awards: now they tell us. We couldn’t have said it better than SmarterTimes did yesterday: “Unreformed on Tort Reform: An article on the front page of today’s [i.e. Monday’s] New York Times reports that jury awards in medical malpractice cases reached an average of $3.49 million in 1999, up from $1.95 million in 1993. The article reports that in California, ‘juries awarded more than $1 million in 39 malpractice lawsuits, up from 28 seven years earlier. … The average award rose to $2.9 million, from $2 million.’ Well, the Times looks a bit silly, in retrospect, for that largely uncritical report in its national section on August 6, 2001, which ran under the headline, ‘A Study’s Verdict: Jury Awards Are Not Out of Control’ and concluded with a quote from a law professor who asserted, ‘The evidence is that juries are not out of control.’ That August article didn’t mention any of these statistics about the increase in jury awards in malpractice cases. Today’s article, meanwhile, is flawed because it doesn’t say how many of these large jury awards are reduced by judges on appeal.” [on which, see our Sept. 7-9 entry: the National Law Journal finds that judges appearing to be leaving intact a larger share of big awards]. (Joseph B. Treaster, “Malpractice Rates Are Rising Sharply; Health Costs Follow,” New York Times, Sept. 10 (reg); Yahoo version (no reg, but shorter shelf life). Earlier Times report: William Glaberson (who else?), New York Times, Aug. 6 (fee-based archive), Googlecached at Seattle Post-Intelligencer site).

Here’s more, from the trade journal Business Insurance, on the looming crisis in med-mal insurance: “In response to losses on medical malpractice liability business, The St. Paul Cos. Inc. has raised rates and is walking away from some health care risks. … The St. Paul, Minn.- based insurer said it has raised its medical malpractice liability rates for large hospitals an average of 76% on policies that have renewed this year and has not renewed some policies. Rate increases have become steeper in recent months, with the average renewal in July up 103% from last year’s rate. … because of the serious losses recorded by large hospitals, St. Paul plans to exit some geographic regions and not renew policies with certain hospitals, [company official Michael] Miller said.” (“Updates: Med Mal Rate Hikes”, Business Insurance, Aug. 27, fee-based archive). And a report from July 2 on the crisis facing nursing homes: “In Florida, for example, nursing homes, would merely be swapping dollars for liability coverage, according to Mr. Henderson [Jim W. Henderson, vp-marketing division of insurance brokers Brown & Brown in Daytona Beach, Fla.]. ‘You can probably purchase insurance,’ he said, ‘but it would be almost dollar-for-dollar based upon exposure and premium. You’ll spend $3 million for $3 million worth of coverage.’ Buyers in Florida, Texas and Pennsylvania that can get nursing home liability coverage at increases of less than 200% to 300% will be lucky, Mr. Henderson said.” (Michael Bradford and Lee Fletcher Rosenberg, “Brokers the bearers of bad pricing news”, Business Insurance, July 2, fee-based archive).

September 11 — The view from Arsenictown. In the controversy over arsenic levels in drinking water, Chicago Tribune columnist Steve Chapman does something remarkable: he actually checks out what residents think in one of the towns (San Ysidro, N.M.) meant to benefit from the tighter rules (Sept. 6; TownHall.com version) (& see Aug. 17-19, April 18).

September 11 — P.D. James on compensation culture. Columnist George Will, in London, interviews mystery writer P.D. James: “She is mildly disdainful of what she calls ‘the climate of compensation,’ which Americans call the entitlement mentality of a therapeutic culture. ‘People,’ she says bemusedly, ‘expect to be counseled if they suffer trauma.’ Recalling the soldiers returning from two wars, she says tartly, ‘I don’t remember them all coming home expecting to be counseled about what they went through.'” (“The edge of a moral sleuth”, Washington Post, Sept. 9).


September 28-30 — Draconian hacker penalties? The counter-terrorism act (whose contents, as we have mentioned before, keep changing) was drafted to include what critics say are extraordinarily severe penalties for low-level forms of computer trespassing that bear no relation to terrorism. (Matthew Broersma, “EFF: Bill treats hackers as terrorists”, ZDNet (UK), Sept. 27; Kevin Poulsen, “Hackers face life imprisonment under ‘Anti-Terrorism’ Act”, SecurityFocus.com, Sept. 23). More on the bill’s progress: Declan McCullagh, “Congress Weighs Anti-Terror Bill”, Wired News, Sept. 25; “Wiretap Bill Gets Third Degree”, Sept. 26; Jonathan Ringel, “Surveillance Major Sticking Point in Anti-Terrorism Legislation”, American Lawyer Media, Sept. 26.

September 28-30 — Terrorists, American business execs compared. Was it a passing lapse of taste, sense and perspective in the early shock of the disaster that led New York Times columnist Thomas Friedman to compare the struggle against terrorism to the campaign against … cigarette companies? In his first column after the attacks, Friedman wrote that we need to encourage defections from within the world of Muslim extremism, just as “Americans were really only able to defeat Big Tobacco when whistleblowers within the tobacco industry went public and took on their own industry, and their own bosses, as peddlers of cancer.” A very fair analogy, that! (“Smoking or Non-Smoking?”, Sept. 14). And the way-out-there-leftist website TomPaine.com, from which we don’t really expect better, gave us this gem in January of last year: “The hype [about a terrorist threat] is unfounded, largely because there is no evidence of a world wide terrorist conspiracy against the U.S., and the few alleged terrorists that have actively targeted U.S. citizens have done so infrequently.” From stupidity the article proceeded to viciousness: “The actions of business executives — from tobacco sellers to weapons manufacturers — claim the lives of hundreds of thousands of Americans every year — 38,505 gun-related deaths in 1994, 6,112 workplace fatalities and 500,000 deaths from smoking in 1996 — many times more than the handful of terrorist incidents. These are the people we should be afraid of, and seek to restrain, rather than fictional characters that have more to do with Hollywood hype than political reality.” (Roni Krouzman, “The Terrorism Scare”, TomPaine.com, Jan. 19, 2000) (via WSJ OpinionJournal.com “Best of the Web”, Sept. 17). What is it to bomb the World Trade Center, after all, compared to the more menacing status of being the sort of business exec who would work in it? See also MichaelMoore.com, “Mike’s Message”, Sept. 19 (attributing character of Osama Bin Laden to his family’s being in the building contractor trade). (DURABLE LINK)

September 28-30 — Privacy claim by Bourbon Street celebrant. Just because she cavorted topless in New Orleans’ French Quarter during Mardi Gras doesn’t mean it was okay to videotape her and use the resulting footage in a compilation release entitled “Girls Gone Wild!”. “They’re really exploiting her, victimizing her,” says one of her lawyers; the idea that there might be cameras around doesn’t seem to have crossed her mind at the time. (James L. Rosica, “Poster girl sues makers of videos”, Tallahassee Democrat, Sept. 18)(& see update Mar. 6, 2002).

September 27 — Rush to reconcile. Different things seem important now, cont’d: “Dismissals in divorce cases have skyrocketed in the Harris County Family Law courts since the terrorist attacks of Sept. 11. Family-law attorneys have found that clients contemplating divorce, as well as those in the middle of one, now say they will try to patch things up.” (see Sept. 18) (Mary Flood, “Couples want peace at home”, Houston Chronicle, Sept. 25).

September 27 — “Shooting range sued over suicide”. “The family of a woman who shot herself in the head sues a business for renting her the gun.” She came in to the shooting range with her husband; the lawyer says the attendant should have seen that she’d been drinking (St. Petersburg Times, Sept. 25).

September 27 —Force majeure fights. Do the events of September 11 constitute a material change in circumstances, thus entitling businesses to get out of merger deals and other contractual obligations? Squabbling over that issue “should keep attorneys busy for years. ‘Unfortunately, there will be litigation, whether it’s meritorious or not,’ says James Salzman, a law professor at American University.” (“Collateral Damage”, Michael Freedman and Daniel Kruger, Forbes, Oct. 15).

September 27 — Where towers stood.

Who knows how empty the sky is
In the place of a fallen tower.
Who knows how quiet it is in the home
Where a son has not returned.

— Anna Akhmatova (1889-1966) (via Alex Beam, Boston Globe, Sept. 18, who says it’s from a cycle of poems, “Youth”)

September 25-26 — Vast new surveillance powers for state AGs? Mickey Kaus, on Kausfiles.com, expresses rightful unease about a most unpleasant little surprise in the counterterrorism package: he doesn’t “see why state attorneys general, the biggest showboaters in American politics, need to be given the power to employ the FBI’s ‘Carnivore’ email-tapping program without a court order.” He suggests they’ll “probably use it to ferret out tobacco users and sue them”. (“Hit Parade”, Sept. 22; see also Jacob Weisberg, “Microsuits: Why state attorneys general are suddenly suing everybody”, Slate, May 22, 1998). (But note that the contents of the legislative package keep changing rapidly; we couldn’t locate such a provision in the draft versions we consulted on the Electronic Frontier Foundation site.)

September 25-26 — Legal botches encouraged terrorists. “The international jihad arrived in America on the rainy night of Nov. 5, 1990, when [El Sayyid] Nosair walked into a crowded ballroom at the New York Marriott on 49th Street and shot and killed [extremist political figure] Rabbi Meir Kahane… With a room full of witnesses and a smoking gun, the case against Nosair should have been a lay-down. But the New York police bungled the evidence, and Nosair got off with a gun rap. At that moment, Nosair and [sidekick Mahmud] Abouhalima may have had an epiphany: back home in Egypt, suspected terrorists are dragged in and tortured. In America, they can hire a good lawyer and beat the system.” (Evan Thomas, Newsweek/MSNBC, Oct. 1).

September 25-26 — Third Circuit cuts class action fees. In a long-awaited ruling, the 3rd Circuit federal court of appeals last month ordered that a $262 million award of lawyers’ fees be slashed to a yet undetermined level in a $3.2 billion settlement of class action securities litigation against Cendant Corp. and its auditors, Ernst & Young. Objectors had argued that the case had been relatively easy to prove and that the award would pay lawyers at least 45 times their usual rates. The court “also criticized the use of ‘auctions’ to appoint lead plaintiffs’ counsel in securities class action cases”. (Shannon P. Duffy, “Cendant $3.2 Billion Settlement Upheld, but Attorneys’ Fee Award Must Be Reduced”, The Legal Intelligencer, Aug. 29) (see June 20 and Sept. 4, 2000).

The fee squabble had cast a spotlight on the tendency of many big class action firms to contribute heavily at campaign time to elected officials who by controlling state pension funds can put these lawyers in line for big fees by designating them to represent the state in such actions. “Milberg Weiss gave $127,125 to New York state candidates since 1999, including $16,000 to state auditor Carl McCall’s campaign for the Democratic nomination for governor,” and Barrack Rodos and Bernstein Litowitz have pumped big contributions into such states as Pennsylvania, California and Louisiana. The lawyers hired Harvard law prof Arthur Miller to defend their $262 million fee. (Tim O’Brien, “3rd Circuit Reviews Fees, Counsel Choice in Cendant Class Action Settlement, New Jersey Law Journal, June 4).

In a separate decision, involving a suit against CBS, the same appeals court ruled that “lawyers who represent shareholders in derivative actions [i.e., vicariously on behalf of the corporation] are not entitled to any fees unless the suit benefited the corporation.” It overturned a deal which would have given attorneys more than $580,000 in fees; the attorneys had claimed that the settlement of their derivative suit benefited shareholders by clearing the way for a $67 million settlement of a class action suit, but the judge said the test of benefit was whether shareholders were better off for its having been filed in the first place, not for its having been settled. (Shannon P. Duffy, “3rd Circuit Takes Back $580K in Lawyers’ Fees”, The Legal Intelligencer, Sept. 21).

September 25-26 — “Asbestos column raised awareness”. Steven Milloy of JunkScience.com fields reader reaction to his column raising the question whether asbestos insulation might have enabled the WTC towers to hold out longer before their collapse (FoxNews.com, Sept. 21) (see Sept. 17, 18).

September 24 — From mourning to resolution.

There is sobbing of the strong,
And a pall upon the land;
But the People in their weeping
Bare the iron hand;
Beware the People weeping
When they bare the iron hand.

— Herman Melville, “The Martyr”, on Lincoln’s assassination (via AndrewSullivan.com and John Ellis, FastCompany)

September 24 — “Despite Protection, Airlines Face Lawsuits for Millions in Damages”. The newly passed bill puts the federal government and its taxpayers on the hook for costs of further terrorist strikes in the near term, and assists the airlines in their quest for insurance, but does less than one might imagine to shield them (and a long list of other defendants) from lawsuits over the Sept. 11 attack. (Charles Piller, L.A. Times, Sept. 22). It does not restrict filing of mass suits on creative theories based on damage on the ground, but instead gives victims a choice of whether to apply for government compensation through a “special master” in lieu of suing. Trial lawyers have already begun volunteering to help claimants with the special master process, which could put them in a position to steer those claimants back toward court-based options, especially if the taxpayer-funded compensation packages prove less than generous. And the airline bailout, which includes billions in cash subventions, may come at a high cost of future Washington entanglement for the industry: “A last-minute addition to [the bill] will let the federal government take equity stakes in the cash-strapped carriers and may even open the door to a government role on their corporate boards, lawmakers said on Friday.” (Adam Entous, “Airline Bailout Allows US to Take Stake”, Reuters/Yahoo, Sept. 21) (Yahoo Full Coverage).

September 24 — Blame video games, again. Expect renewed scrutiny of both videogames and flight simulator software, either of which might assist bad guys as well as good guys in honing skills relevant to lawlessness in the air. (David Coursey, “How video games influenced the attack on America”, ZDNet, Sept. 21; Marc Prensky, “Video games and the attack on America”, TwitchSpeed.com, undated). On earlier rounds of agitation against game makers and entertainment companies, see Gwendolyn Mariano, “Columbine victim families sue over violent games”, ZDNet, April 24, and collected commentaries on this site.

September 24 — Miami jury to Ford: pay $15 million after beltless crash. It wasn’t one of the much-publicized Explorer/Firestone cases, but instead arose from the rollover accident of an Econoline van none of whose twelve occupants was wearing seatbelts. A Ford spokeswoman criticized the verdict: “‘No proof of a manufacturing defect was shown,’ she said. ‘This was simply a tragic accident compounded by passengers not being belted.”’ (“Ford to Pay $15 Million in Rollover Case”, Reuters/FoxNews.com, Sept. 21). And the Association of Trial Lawyers of America is showcasing on its website an $18 million jury verdict against GM in favor of an 18-year-old driver who fell asleep at the wheel at 70 mph in his Chevrolet S-10 Blazer SUV. The automaker “tried to introduce evidence that plaintiff had a blood alcohol level between .04 and .07 at the time of the accident, which was illegal given his age. [Plaintiff’s attorney Michael] Piuze successfully moved to exclude this fact on the ground that plaintiff had admitted his responsibility for the accident.” (ATLA Law Reporter, MayLambert v. General Motors).

September 21-23 — “The high cost of cultural passivity”. “FAA’s silly rules did exactly nothing to stop the hijackers” (Mark Steyn, National Post, Sept. 17; “Making it safe to fly” (letters to the editor), Washington Post, Sept. 21). What did help was the revolt of the heroic passengers on United Flight 93 (Rick Reilly, “Four of a Kind”, Sports Illustrated, Sept. 19; Dan LeBatard, “Final heroic act not forgotten by the many saved”, Miami Herald, Sept. 20; some particularly good commentaries from Virginia Postrel on Sept. 20 and earlier days; proposal for a monument to them). Writes Lisa Snell: “I would rather be on a hijacked airplane with someone inoculated by Power Rangers than someone who believes the inherent message of every school institution: that weapons are bad and that the authorities and the government will solve all problems and protect you” (quoted by Joanne Jacobs, Sept. 14).

September 21-23 — Judge to “Sopranos” suit: Fuhgetaboutit. Free speech prevails: “A judge on Wednesday dismissed a lawsuit filed by an Italian-American organization that accused the makers of the HBO television series ‘The Sopranos’ of offending Italian-Americans by depicting them as mobsters. ….The American Italian Defense Association sued Time Warner Entertainment Co. under the ‘individual dignity’ clause of the Illinois Constitution.” (AP, link now dead; “Judge dismisses ‘Sopranos’ lawsuit”, MSNBC/Reuters, Sept. 19) (see April 6-8).

September 21-23 — “Don’t sacrifice freedom”. We can win this one without giving up what makes us Americans (Glenn Reynolds, FoxNews.com, Sept. 14; Dave Kopel, “Don’t Press the Panic Button”, National Review Online, Sept. 21; Stuart Taylor Jr., “Thinking the Unthinkable: Next Time Could Be Much Worse”, National Journal/The Atlantic, Sept. 19; E. J. Dionne, “To Go On Being Americans”, Washington Post, Sept. 14).

September 21-23 — “Lawsuits From Attacks Likely to Be in the Billions”. Trial lawyers speculate about various targets for the vast amount of litigation they intend to file; on the list are airlines, New York’s much-sued Port Authority and a great many others. (Robert Gearan, New York Daily News, Sept. 19; “In aftermath of terror attacks, lawyers holding off on lawsuits, but they’re coming”, ABCNews.com, Sept. 20; “Attorneys hold off on flurry of lawsuits”, USA Today, Sept. 21; “S&P: Airlines Need Relief From Lawsuits”, Reuters/Yahoo, Sept. 20).

May 2001 archives, part 2


May 18-20 — “Couple sues for doggie damages”. Claiming that their 4-year-old golden retriever Boomer was hurt by an “invisible fence” electronic collar device, Andrew and Alyce Pacher, of Vandalia, Ohio, want to name the dog itself as a plaintiff in the suit. “It’s my opinion that it’s clear dogs cannot sue under Ohio law,” says the fence company’s lawyer. But the Pachers’ attorney, Paul Leonard, a former lieutenant governor and ex-mayor of Dayton, says that’s exactly what he hopes to change: he’s “hoping to upgrade the legal status of dogs in Ohio.” (“Damages for Injuries Caused by Invisible Fence Sought for Dog”, AP/FoxNews.com, May 11).

May 18-20 — “Fortune Magazine Ranks ATLA 5th Most Powerful Lobby”. The business magazine finds that plaintiff’s lawyers have more clout in Washington than the U.S. Chamber of Commerce or the AFL-CIO; more than Hollywood or the doctors or the realtors or the teachers or the bankers. (Fortune, May 28; ATLA jubilates over its rise from 6th to 5th, May 15).

May 18-20 — Batch of reader letters. Our biggest sack of correspondence yet includes a note from a reader wondering if some open-minded attorney would like to help draft a loser-pays initiative for the ballot in Washington state; more about carbonless paper allergies, the effects of swallowing 9mm bullets, the Granicy trial in California, and “consumer columns” that promote lawyers’ services; a link between ergonomics and gun control controversies; and a reader’s dissent on the case of the boy ticketed for jaywalking after being hit by a truck.

May 17 — “Crash lawyers like Boeing move”. Attorneys who sue after midair mishaps are pleased that Boeing is planning to relocate its headquarters to Chicago. They say the courts of Cook County, Ill., hand out much higher verdicts than those of Seattle, the aircraft maker’s former hometown. Some lawyers in fact predict that domestic crashes, at least when the plane is Boeing-made, are apt to be sued in Cook County from now on regardless of where the flight originated or went down; under the liberal rules of forum-shopping that prevail in American courts, most big airlines may be susceptible to venue in the Windy City since they do at least some business there. (Blake Morrison, “Crash lawyers like Boeing move”, USA Today, May 16).

May 17 — Like a hole in the head. As if the nine private law schools in the state of Massachusetts weren’t enough, proponents now want to establish a public one by having the state take over the struggling Southern New England School of Law at North Dartmouth, near New Bedford. (Denise Magnell, “Crash Course”, Boston Law Tribune, May 1).

May 17 — Lessons of shrub-case jailing. The months-long contempt-of-court jailing of John Thoburn of Fairfax County, Va. for refusing to erect enough trees and shrubs around his golf driving range is a good example of the excesses of bureaucratic legalism, says Washington Post columnist Marc Fisher (“In Fairfax shrub fight, Both Sides Dig In Stubbornly”, April 26). Some of the county’s elected supervisors voice few misgivings about the widely publicized showdown, saying their constituents want them to be tougher in cracking down on zoning violations. (Peter Whoriskey and Michael D. Shear, “Fairfax Zoning Case Draws World Attention”, Washington Post, April 21) (freejohnthoburn.com).

May 16 — No baloney. “A suspected drug dealer who was served a bullet-and-bologna sandwich wants a side of lettuce — about $5 million worth. ” Louis Olivo says he was given an officially prepared lunch during a break in a Brooklyn Supreme Court hearing last week, and felt something “crunchy” which turned out to be a bullet. Surgery (not syrup of ipecac?) is expected to remove the 9mm bullet from Olivo’s stomach; his lawyer wants $5 million (Christopher Francescani, “$5M Lawsuit Over Bulletin in Bologna”, New York Post, May 15) (& letter to the editor, May 18)

May 16 — “Who’s afraid of principled judges?” More questions should be raised about a retreat held at Farmington, Pa. earlier this month in which 42 Democratic Senators were lectured on the need to apply ideological litmus tests to judicial nominees, writes Denver Post columnist Al Knight. (May 13). “Liberals rightly decried efforts a decade ago to turn membership in the American Civil Liberties Union into a disqualification for high office; current efforts to do the same thing to the Federalist Society are equally wrong. … In fact, they are the only group, liberal or conservative, that regularly sponsors debates throughout the nation’s law schools on important public-policy issues.” (Howard Shelansky, “Who’s Afraid of the Federalist Society?”, Wall Street Journal, May 15).

May 16 — Drawing pictures of weapons. In Oldsmar, Fla., an eleven-year-old “was taken from his elementary school in handcuffs after his classmates turned him in for drawing pictures of weapons.” (Ed Quioco and Julie Church, “Student removed from class because of drawings”, St. Petersburg Times, May 11; “Pinellas fifth grader cuffed, sent home after classmates turn him in for drawing weapons”, AP/Fort Lauderdale Sun-Sentinel, May 11). In Sunderland, England, police raided Roland Hopper’s 11th birthday party and arrested him as he cut the cake after he was seen playing with the new pellet gun his mother had bought him (“Armed Police Raid 11th Birthday”, Newcastle Journal, April 10). And the website ztnightmares.com, which developed out of a controversy at Lewis-Palmer High School in Monument, Colo., “publicizes the downside or evils of zero tolerance school discipline policies” and has a noteworthy list of outside links as well as horror stories.

May 15 — “Judges or priests?”. Why have judicial nomination fights taken on the intensity and bitterness once associated with religious disputes? “The only places left in this country that could be described as temples — for that is how we treat them — are the courts. … They are temples because the judges who sit in them now constitute a priesthood, an oracular class … we have abdicated to them our personal responsibility and, in many cases, even what used to be the smallest judgment call a citizen had to make for himself.” (Tunku Varadarajan, WSJ OpinionJournal.com, May 11).

May 15 — Techies fear Calif. anti-confidentiality bill. Trial lawyers have been pushing hard for the enactment of legislation granting them wide leeway to disseminate to anyone they please much of the confidential business information they dig up by compulsory process in lawsuits. (At present, judges are free to issue “protective orders” which restrain such dissemination.) Proponents say lawyers will use this new power to publicize serious safety hazards that now remain unaired; critics predict they will use it to stir up more lawsuits and for general leverage against defendants who have been found guilty of no wrong but who don’t want the inner details of their business to fall into the hands of competitors or others. A lawyer-backed bill had been hurtling toward enactment in California following the Firestone debacle, but now a counterforce has emerged in the person of high-tech execs who say the proposal “could expose confidential company information, stifle innovation and encourage frivolous litigation. … TechNet CEO Rick White called the bills ‘the most significant threat to California’s technology companies since Prop. 211.’ White was referring to the 1996 initiative that would have made company directors and high-ranking executives personally vulnerable to shareholder lawsuits.” (Scott Harris, “Old Foes Squabble Over Secrecy Bills”, Industry Standard/Law.com, May 10).

May 15 — Canadian court: divorce settlements never final. The Ontario Court of Appeal has ruled that courts may revisit and overturn former divorce settlements if a “material change of circumstances” has taken place since the original deal. “Tens of thousands of people who believed they had agreed to a ‘final’ divorce settlement could face more financial demands … Family law lawyers predict a surge of legal attacks on separation agreements and marriage contracts as a result of the ruling.” (Cristin Schmitz, “Divorce deals never final: court”, Southam News/National Post, April 28).

May 14 — Write a very clear will. Or else your estate could wind up being fought over endlessly in court like that of musician Jerry Garcia (Kevin Livingston, “Garcia Estate Fight Keeps On Truckin'”, The Recorder, April 25; Steve Silverman, “Online Fans Sing Blues About Garcia Estate Wrangling”, Wired News, Dec. 16, 1996; Don Knapp, “Garcia vs. Garcia in battle for Grateful wealth”, CNN, Dec. 14, 1996). Or actor James Mason (A Star is Born, North by Northwest) (“He would have been horrified by all this. … he hated litigation”) (Caroline Davies, “James Mason’s ashes finally laid to rest”, Daily Telegraph (London), Nov. 25, 2000). Or timber heir H.J. Lutcher Stark of Orange, Texas, who died in 1965 and whose estate, with that of his wives, has spawned several rounds of litigation which look as far back for their subject matter as 1939 and are still in progress (William P. Barrett, “How Lawyers Get Rich”, Forbes, April 2 (reg)).

May 14 — City gun suits: “extortion parading as law”. To curb the use of officially sponsored litigation as a regulatory bludgeon, as in the gun suits, the Cato Institute’s Robert Levy recommends “a ‘government pays’ rule for legal fees when a governmental unit is the losing plaintiff in a civil case”. (Robert A. Levy, “Pistol Whipped: Baseless Lawsuits, Foolish Laws”, Cato Policy Analysis #400 (executive summary links to full paper — PDF))

May 14 — Update: “Messiah” prisoner’s lawsuit dismissed. In a 22-page opinion, federal district judge David M. Lawson has dismissed the lawsuit filed by a Michigan prisoner claiming recognition as the Messiah (see April 30). The opinion contains much to reward the curious reader, such as the list on page 5 of the inmate’s demands (including “5 million breeding pairs of bison” and “25,000 mature breeding pairs of every creature that exists in the State of Michigan,” and the passage on page 18 citing as precedent for dismissal similar previous cases such as Grier v. Reagan (E.D. Pa. Apr. 1, 1986), “finding that plaintiff’s claim she was God of the Universe fantastic and delusional and dismissing as frivolous complaint which sought items ranging from a size sixteen mink coat and diamond jewelry to a three bedroom home in the suburbs and a catered party at the Spectrum in Philadelphia”). (opinion dated April 26 (PDF), Michigan Bar Association site) (DURABLE LINK)

May 11-13 — Welcome Aardvark Daily readers (NZ). “New Zealand’s leading source of Net-Industry news and commentary since 1995” just referred us a whole bunch of antipodal visitors by featuring this website in its “Lighten Up” section. It says we offer “an aggregation of quirky and oddball legal actions which go to prove that the USA has far too many lawyers for its own good”. (Aardvark.co.nz). For NZ-related items on this site, check out July 26, Sept. 8 and Oct. 31, 2000, as well as “Look for the Kiwi Label”, Reason, July 2000, by our editor.

May 11-13 — New York tobacco fees. “An arbitration panel has awarded $625 million in attorneys’ fees to the six firms that were hired by New York state to sue the tobacco industry, say sources close to the arbitration report.” The well-connected city law firm of Schneider, Kleinick, Weitz, Damashek & Shoot (which last year was reported to be renting office space to New York Assembly Speaker Sheldon Silver; see May 1, 2000) will receive $98.4 million. Three firms that took a major national role in the tobacco heist will share $343.8 million from the New York booty, to add to their rich haul from other states; they are Ness Motley, Richard Scruggs’ Mississippi firm, and Seattle’s Hagens & Berman. (Daniel Wise, “Six Firms Split $625 Million in Fees for New York’s Share of Big Tobacco Case,” New York Law Journal, April 24). Update Jun. 21-23, 2002: judge to review ethical questions raised by fee award.

May 11-13 — “Judges behaving badly”. The National Law Journal‘s fourth annual roundup of judicial injudiciousness includes vignettes of jurists pursuing personal vendettas, earning outside income in highly irregular ways, jailing people without findings of guilt, and getting in all sorts of trouble on matters of sex. Then there’s twice-elected Judge Ellis Willard of Sharkey County, Mississippi, who allegedly “fabricated evidence such as docket pages, arrest warrants, faxes [and] officers’ releases.” That was why he got in trouble, not just because he was fond of holding court in his Beaudron Pawn Shop and Tire Center, “a tire warehouse flanked by service bays on one side and a store that holds the judge’s collection of Coca-Cola memorabilia.” (Gail Diane Cox, National Law Journal, April 30).

May 11-13 — Update: Compaq beats glitch suit. In 1999, after Toshiba ponied up more than a billion dollars to settle a class action charging that its laptops had a glitch in their floppy drives, lawyers filed follow-on claims against other laptop makers whose machines they said displayed the same problem. But Compaq refused to settle, and now Beaumont, Tex. federal judge Thad Heartfield has felt constrained to dismiss the suit against it on the grounds that plaintiff’s lawyer Wayne Reaud had failed to show that any user suffered the requisite $5,000 in damages. (Daniel Fisher, “Billion-Dollar Bluff”, Forbes, April 16 (now requires registration)).

May 2001 archives


May 10 — “Barbecue group sued over contest”. Jim Woodsmall of Jumpin’ Jim’s BBQ in Johnston, Ia., has sued the Kansas City Barbeque Society, charging that his business has suffered because the society has failed to award his barbecue recipe the stellar ratings he feels it deserved. The enthusiast group fails to follow impartial and uniform rules in its cook-offs, Woodsmall claims, which he thinks amounts to fraud and negligence. (Lindsey A. Henry, Des Moines Register, May 8).

May 10 — Fortune on Lemelson patents. We’ve run a couple of items on the amazing Jerome Lemelson patent operation (see Jan. 19, 2001 and August 28, 1999) and now Fortune weighs in with the best overview we’ve seen. Lemelson, who died in 1997, filed patents for hundreds of ideas and industrial processes which he said he had invented, and which underlay such familiar modern technologies as VCRs, fax machines, bar-code scanners, camcorders and automated warehouses. A mechanical genius? Well, at least a genius in figuring out the angles that could be worked with American patent law: by filing vague patents and then arranging to delay their issuance while amending their claims to adjust to later technological developments, Lemelson steered them into the path of unfolding technology, eventually securing bonanzas for his tireless litigation machine. Foreign-owned companies folded first because they were afraid of American juries, which helped give Lemelson the war chest needed to break the resistance of most of the big U.S.-based industries as well. $1.5 billion in royalties later, his estate continues to sue some 400 companies, with many more likely to be added in years to come. (Nicholas Varchaver, “The Patent King”, May 14).

May 10 — Prospect of $3 gas. One reason refinery disruptions lead to big spikes in the price of gasoline at the pump: environmental rules end up mandating a different blend of gas for each state, hampering efforts to ship supplies to where they’re most needed. (Ron Scherer, “50 reasons gasoline isn’t cheaper”, Christian Science Monitor, May 4; Ben Lieberman (Competitive Enterprise Institute), “Skyrocketing Ga$: What the Feds Can Do”, New York Post, April 23, reprinted at CEI site).

May 10 — Welcome Norwegian readers. We get discussed, and several of our recent news items summarized, on the “humor” section of Norway’s Spray Internet service (Bjørn Tore Øren, “For mange advokater”, May 8). Among other non-U.S. links which have brought us visitors: Australia’s legal-beat webzine, Justinian (“A journal with glamour — yet no friends”; more); Baker & Ballantyne, in the U.K.; the Virtual Law Library pages on media law compiled by Rosemary Pattenden at the University of East Anglia; and Sweden’s libertarian- leaning Contra.nu (“Har advokatkåren i USA för stort inflytande?” they ask of us)(more).

May 9 — Oklahoma forensics scandal. After serving fifteen years in prison on a 1986 rape conviction, Jeffrey Pierce was released Monday after new DNA evidence refuted testimony against him by a forensic specialist whose work is the subject of a growing furor. “From 1980 to 1993, Joyce Gilchrist was involved in roughly 3,000 cases as an Oklahoma City police laboratory scientist, often helping prosecutors win convictions by identifying suspects with hair, blood or carpet fibers taken from crime scenes.” Although peers, courts and professional organizations repeatedly questioned the competence and ethical integrity of her work, prosecutors asked few questions, perhaps because she was getting them a steady stream of positive IDs and jury verdicts in their favor. Now Oklahoma Gov. Frank Keating has ordered an investigation of felony cases on which Gilchrist worked after an FBI report “found she had misidentified evidence or given improper courtroom testimony in at least five of eight cases the agency reviewed.” (Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry”, New York Times, May 8; “Inquiry Focuses on Scientist Used by Prosecutors”, May 2)(reg)

May 9 — Not about the money. Foreign policy making on a contingency fee: “When attorneys agreed to champion the causes of American victims of terrorism in the Middle East, it wasn’t supposed to be about the money.” We’ve heard that one before, haven’t we? “But the prospect of multimillion-dollar fees in what once seemed to be long-shot litigation against Iran has left lawyers fighting over fees in federal court in Washington, D.C. High principles of international law and justice aren’t at stake. It’s simply a matter of who gets paid.” (Jonathan Groner, “Anti-Terrorism Verdicts Spur Big Fee Fights”, Legal Times, April 18).

May 9 — Update: cookie lawsuit crumbles. Half-baked all along, and now dunked: a federal court in March dismissed a would-be class action lawsuit against web ad agency DoubleClick over its placing of “cookies” on web users’ hard drives. Other such suits remain pending (see also Feb. 2, 2000); this one was brought by Milberg Weiss’s Melvyn Weiss and by Bernstein, Litowitz (Michael A. Riccardi, “DoubleClick Can Keep Hand in Cookie Jar, Federal Judge Rules”, New York Law Journal, March 30).

May 8 — “Lawyers to Get $4.7 Million in Suit Against Iomega”. “Lawyers in a class action suit alleging defects in portable computer Zip disk drives will get the only cash payout, up to $4.7 million, in a proposed settlement with manufacturer Iomega Corp., according to the company’s Web site.” Rebates of between $5 and $40 will be offered to past customers who buy new Iomega products, while Milberg Weiss and three other law firms expect to split their fees in crisp greenbacks, not coupons, if a Delaware judge approves the settlement in June. (Yahoo/Reuters, April 12) (Rinaldi class action settlement notice, Iomega website).

May 8 — A definition (via Sony’s Morita and IBM’s Opel). “Litigious (li-TIJ-uhs) adjective: 1. Pertaining to litigation; 2. Eager to engage in lawsuits; 3. Inclined to disputes and arguments. [From Middle English, from Latin litigiosus from litigium, dispute.]

“‘My friend John Opel of IBM wrote an article a few years ago titled ‘Our Litigious Society,’ so I knew I was not alone in my view that lawyers and litigation have become severe handicaps to business, and sometimes worse.” — Sony co-founder Akio Morita (Wordsmith.org “A Word a Day” service, scroll to Jan. 26).

May 8 — “Halt cohabiting or no bail, judge tells defendants”. “A federal judge in Charlotte is using a 19th-century N.C. law banning fornication and adultery, telling defendants they won’t be freed on bond until they agree to get married, move out of the house or have their partner leave. U.S. Magistrate Judge Carl Horn won’t release a criminal defendant on bond knowing that he or she will break the law. And that includes North Carolina’s law against unmarried couples cohabiting, placed on the books in 1805.” (Eric Frazier and Gary L. Wright, Charlotte Observer, April 4) (see also May 18, 2000).

May 7 — Says cat attacked his dog; wants $1.5 million. “A San Marcos man has filed a $1.5 million claim against the city because a cat who lives in the Escondido Public Library allegedly attacked his dog.” Richard Espinosa says he was visiting the library on November 16 with his assistance dog Kimba, a 50-pound Labrador mix, when the feline, named L.C. or Library Cat because it’s allowed to live in the building, attacked the dog inflicting scratches and punctures. As for Espinosa, wouldn’t you know, he “was emotionally traumatized and suffers from flashbacks, terror, nightmares and other problems.” Four lawyers declined to take his case and he finally filed it himself. “The cat was apparently uninjured.” (Jonathan Heller, “Escondido gets $1.5 million claim; library cat allegedly assaulted dog”, San Diego Union-Tribune, May 4) (see letter to the editor from Espinosa, June 13).

May 7 — Judge throws out hog farm suit. As was reported a few months ago, a number of environmental groups aim to take a lesson from the tobacco affair by using mass lawsuit campaigns to pursue various goals which they haven’t been able to secure through the legislative and electoral process. To do this they’ve teamed up with tobacco-fee-engorged trial lawyers; the nascent alliance got lots of publicity in December with one of its first projects, suing Smithfield Farms for billions over the nuisance posed by large-scale hog farming, a project apparently masterminded by Florida trial lawyer Mike Papantonio (tobacco, asbestos, fen-phen) and with suits against chicken and livestock operations promised in later phases of the effort (see Dec. 7, 2000). Far less publicity has been accorded to Judge Donald W. Stephens’s ruling in March which threw out the first two lawsuits as having failed to state a legal claim against the large hog packer and raiser. (Appeal is expected.) Power scion Robert F. Kennedy, Jr. is still on board with his headline-ready name to front for the lawyers in the press, but he doesn’t seem to have gone out of his way to call attention to the adverse ruling (“North Carolina judge dismisses lawsuits against hog producer”, AP/MSNBC, March 30; Scott Kilman, “Environmental groups target factory-style hog farm facilities”, Wall Street Journal/MSNBC, undated; Smithfield press release, March 29).

MORE: National Public Radio, “Living on Earth” with Steve Curwood and reporter Leda Hartman, week of Feb. 16; Water Keeper Alliance (Kennedy’s group), hog campaign homepage with list of lawyers (J. Michael Papantonio, Steven Echsner and Neil Overholtz, Levin, Papantonio, Pensacola, Fla.; Thomas Sobol, Jan Schlichtmann, Steven Fineman and Erik Shawn of Lieff, Cabraser, New York and Boston; F. Kenneth Bailey, Jr. and Herbert Schwartz of Williams Bailey, Houston; Howard F. Twiggs and Douglas B. Abrams of Twiggs, Abrams, (Raleigh, N.C.), Ken Suggs and Richard H. Middleton, Jr. of Suggs, Kelly & Middleton (Columbia, S.C.), Joe Whatley, Jr., Birmingham, Ala.; Kevin Madonna, Chatham, N.Y.; Stephen Weiss and Chris Seeger, New York; Charles Speer, Overland Park, Kan.; Hiram Eastland, Greenwood, Miss.) Compare “Conoco Could Face $500 Million Lawsuit Over Bayou Water Pollution Problems”, Solid Waste Digest: Southern Edition, March 2001 (page now removed, but GoogleCached) (Papantonio campaign in Pensacola).

May 7 — Website accessibility law hits the U.K. “Scottish companies were warned yesterday that they could face prosecution if their websites are not accessible to the disabled. Poorly-designed websites are often incompatible with Braille software.” (more) (yet more) (Pauline McInnes, “Firms warned on websites access”, The Scotsman, April 19).

May 4-6 — By reader acclaim: “Vegetarian sues McDonald’s over meaty fries”. Seattle attorney Harish Bharti wants hundreds of millions of dollars from the burger chain for its acknowledged policy of adding small amounts of beef flavoring to its french fries, which he says is deceptive toward vegetarian customers (ABCNews.com/ Reuters, May 3). Notable detail that hasn’t made it into American accounts of the case we’ve seen, but does appear in the Times of India: “When he is not practising law in Seattle, Bharti says he teaches at Gerry Spence’s exclusive College for Trial Lawyers in Wyoming”. Does this mean you can be a predator without being a carnivore? (“US Hindus take on McDonald’s over French fries”, Times of India, May 3) (see also Aug. 30, 1999).

May 4-6 — Mississippi’s forum-shopping capital. The little town of Fayette, Miss., reports the National Law Journal, is “ground zero for the largest legal attack on the pharmaceutical industry” in memory. Tens of thousands of plaintiffs are suing in the Fayette courthouse over claimed side effects from such drugs as fen-phen, Rezulin, and Propulsid, not because they’re local residents (most aren’t) but because the state’s unusually lax courtroom rules allow lawyers to bring them in from elsewhere to profit from the town’s unique brand of justice. The townspeople, nearly half of whom are below the poverty level and only half of whom graduated from high school, “have shown that they are willing to render huge compensatory and punitive damages awards”. Among other big-dollar outcomes, Houston plaintiff’s lawyer Mike Gallagher of Gallagher, Lewis, Serfin, Downey & Kim “helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours…” There’s just one judge in Fayette County to hear civil cases, Judge Lamar Pickard, whose handling of trials is bitterly complained of by out-of-town defendants. As for appeal, that route became less promising for defendants last November when plaintiff’s lawyers solidified their hold on the Mississippi Supreme Court by knocking off moderate incumbent Chief Justice Lenore Prather.

Lots of good details here, including how the Bankston Drug Store, on Main Street in Fayette since 1902, has the bad fortune to get named in nearly every suit because that tactic allows the lawyers to keep the case from being removed to federal court. Plaintiff’s lawyer Gallagher, who also played a prominent role in the breast implant affair, says criticism of the county’s jurors as easily played on by lawyers “‘sounds racist’, since the jury pool is predominantly black”. He also brushes off defendants’ complaints about forum-shopping with all the wit and sensibility at his command: “They want to tell me where I can sue them for the damage they caused? They can kiss my a**.” (Mark Ballard, “Mississippi becomes a mecca for tort suits”, National Law Journal, April 30).

May 4-6 — Agenda item for Ashcroft. Attorney General Ashcroft could make a real difference for beleaguered upstate New York communities by backing off the Justice Department’s Reno-era policy of avid support for revival of centuries-dormant Indian land claims, which went so far as to include the brutalist tactic of naming as defendants individual landowners whose family titles had lain undisturbed since the early days of the Republic (see Oct. 27, 1999, Feb. 1, 2000) (John Woods, “Long-Running Indian Land Claims in New York May Hinge on Ashcroft’s Stance”, New York Law Journal, April 16).

May 3 — “Family of shooting victim sue owners of Jewish day-care center”. If the gunman doesn’t succeed in wiping out your institution, maybe the lawyers will: “The parents of a boy who was shot by a white supremacist at a Jewish day-care center have filed a lawsuit claiming the center’s owners failed to provide the necessary security to prevent hate crime attacks.” Buford O. Furrow fired more than 70 shots at the North Valley Jewish Community Center in Los Angeles on Aug. 10, 1999 (AP/CNN, May 1).

May 3 — Update: mills of legal discipline. They grind slow, that’s for sure, but does that mean they grind exceeding fine? A disciplinary panel has ended its investigation of New Hampshire chief justice David Brock, letting him off with an admonishment, in the protracted controversy over the conduct (see April 5 and Oct. 11, 2000) which also led to his impeachment and acquittal in the state senate; Brock’s lawyer had threatened to sue the disciplinary panel if it continued its probe, and a dissenting committee member called that lawsuit-threat “intended to intimidate” (“Threat of lawsuit ended Brock case”, Nashua Telegraph, April 23; Dan Tuohy, “Finding bolsters call for reform”, Foster’s Daily Democrat, April 26). A hearing committee of the District of Columbia Board on Professional Responsibility has recommended that Mark Hager be suspended for three years over the episode [see Feb. 23, 2000] in which he and attorney John Traficonte “began negotiations with [drugmaker] Warner-Lambert to make refunds to consumers, and to pay himself and Hager $225,000 in exchange for which they would abandon their representation, agree to hold the agreement and fee secret from the public and their clients, and promise not to sue Warner-Lambert in the future. Traficonte and Hager accepted the offer without first obtaining the approval of any class member.” The disciplinary committee “found that Hager’s conduct was shockingly outrageous, and that his status as a law professor was a factor in aggravation.” We’ve seen no indication that anyone in the administration of American University’s law school, where Hager continues to teach, has expressed the smallest misgivings about the example that students are supposed to take from his conduct (Denise Ryan, law.com D.C., Board on Professional Responsibility No. 31-98, In re Hager, issued Nov. 30, 2000). (Update Jul. 19, 2003: Hager resigns AU post in April 2003). And off-the-wall Michigan tort lawyer and politician Geoffrey Fieger faces charges before the state attorney grievance commission following reports that he used his radio show to unleash “an obscenity-laced tirade” against three state appeals judges (“Fieger Under Fire For Alleged Swearing Fit”, MSNBC, April 17).

May 3 — “Valley doctors caught in ‘lawsuit war zone'”. A report from the Texas Board of Medical Examiners finds medical malpractice cases approximately tripled in 1999 in Texas’s McAllen-Brownsville region compared with the previous year. Among short-cuts lawyers are accused of employing: suing doctors without an authorization from the client, and hiring as their medical expert a family doctor who charges $500 an hour and has reviewed 700 cases for lawyers, second-guessing the work of such specialists as cardiovascular surgeons, but has not herself (according to an opposing lawyer) had hospital privileges since 1997. (James Pinkerton, Houston Chronicle, March 2 — via Houston CALA). State representative Juan Hinojosa has introduced a bill that would allow doctors and hospitals to countersue lawyers and clients who file suits with reckless disregard as to whether reasonable grounds exist for their action. (“Doctors seek new remedy to fight frivolous lawsuits”, CALA Houston, undated).

May 2 — Suing the coach. “A teenager, who felt she was destined for greatness as a softball player, has filed a $700,000 lawsuit against her former coach, alleging his ‘incorrect’ teaching style ruined her chances for an athletic scholarship. Cheryl Reeves, 19, of Rambler Lane in Levittown, also alleges that her personal pitching coach, Roy Jenderko, of Warminster, not only taught her an illegal style of pitching but also used ‘favorite players’ which resulted in demoralizing the teen. ” (Dave Sommers, “Legal Pitch”, The Trentonian, May 1).

May 2 — Trustbusters sans frontieres. Truly awful idea that surfaced in the press a while back: a bipartisan group of senators led by Sen. Arlen Specter (R-Pa.) say they’re trying to pressure the Bush administration to file an antitrust suit against the Organization of Petroleum Exporting Countries, accusing it of restricting the output of oil in order to raise prices to consumers in countries like ours — which is, of course, OPEC’s reason for existence. “Most antitrust and foreign policy experts interviewed say they cannot imagine a scenario in which such legal action would succeed, or that any president would risk his foreign policy goals for such a lawsuit”, reports the National Law Journal. But even the gesture of inviting unelected judges and unpredictable juries to punish sovereign foreign powers would increase the chances of our landing in a series of confrontations and international incidents that would be at best imperfectly manageable by the nation’s executive branch and diplomatic corps (which cannot, for example, necessarily offer to reverse or suspend court decisions as a bargaining chip).

The United States’s relations with OPEC countries, it will be recalled, have on occasion embroiled us in actual shooting wars, which are bad enough when entered after deliberation on the initiative of those to whom such decisions are entrusted in our system of separation of powers, and would be all the less supportable if brought on us by the doings of some rambunctious judge or indignant jury. Wouldn’t it be simpler for Sen. Specter to just introduce a bill providing that the courts of the United States get to run the world from now on? (Matthew Morrissey, “Senators to Press for Suing OPEC Over Pricing”, National Law Journal, March 1).

May 1 — Columnist-fest. Scourings from our bookmark file:

* Mark Steyn on the Indian residential-school lawsuits that may soon bankrupt leading Canadian churches (see Aug. 23, 2000): (“I’ll give you ‘cultural genocide'”, National Post, April 9). Bonus: Steyn on protectionism, globalization and Quebec City (“Don’t fence me in”, April 19).

* Federalists under fire: there’s a press campaign under way to demonize the Federalist Society, the national organization for libertarian and conservative lawyers and law students. The Society has done a whole lot to advance national understanding of litigation abuses and overuse of the courts — could that be one reason it’s made so many powerful enemies? (Thomas Bray, “Life in the Vast Lane”, OpinionJournal.com, April 17; Marci Hamilton, “Opening Up the Law Schools: Why The Federalist Society Is Invaluable To Robust Debate”, FindLaw Writ, April 25; William Murchison, “In Defense of the Federalist Society”, Dallas Morning News, April 25).

* A Bush misstep: the White House has named drug-war advocate and Weekly Standard contributor John P. Walters as head of the Office of National Drug Control Policy. “Walters, almost alone among those who have spent serious professional time on drug abuse in America, harbors no misgivings over the fact that we’ve been crowding our prisons almost to the bursting point with nonviolent drug offenders.” (William Raspberry, “A Draco of Drugs”, Washington Post, April 30) (Lindesmith Center).

* “Overreaching IP legal teams kick the firm they supposedly represent”: Seth Shulman of Technology Review on the “patented peanut butter sandwich” case (see Jan. 30). (“Owning the Future: PB&J Patent Punch-up”, May). Also: California judge William W. Bedsworth (“Food Fight!”, The Recorder, March 16).


May 18-20 — “Couple sues for doggie damages”. Claiming that their 4-year-old golden retriever Boomer was hurt by an “invisible fence” electronic collar device, Andrew and Alyce Pacher, of Vandalia, Ohio, want to name the dog itself as a plaintiff in the suit. “It’s my opinion that it’s clear dogs cannot sue under Ohio law,” says the fence company’s lawyer. But the Pachers’ attorney, Paul Leonard, a former lieutenant governor and ex-mayor of Dayton, says that’s exactly what he hopes to change: he’s “hoping to upgrade the legal status of dogs in Ohio.” (“Damages for Injuries Caused by Invisible Fence Sought for Dog”, AP/FoxNews.com, May 11).

May 18-20 — “Fortune Magazine Ranks ATLA 5th Most Powerful Lobby”. The business magazine finds that plaintiff’s lawyers have more clout in Washington than the U.S. Chamber of Commerce or the AFL-CIO; more than Hollywood or the doctors or the realtors or the teachers or the bankers. (Fortune, May 28; ATLA jubilates over its rise from 6th to 5th, May 15).

May 18-20 — Batch of reader letters. Our biggest sack of correspondence yet includes a note from a reader wondering if some open-minded attorney would like to help draft a loser-pays initiative for the ballot in Washington state; more about carbonless paper allergies, the effects of swallowing 9mm bullets, the Granicy trial in California, and “consumer columns” that promote lawyers’ services; a link between ergonomics and gun control controversies; and a reader’s dissent on the case of the boy ticketed for jaywalking after being hit by a truck.

May 17 — “Crash lawyers like Boeing move”. Attorneys who sue after midair mishaps are pleased that Boeing is planning to relocate its headquarters to Chicago. They say the courts of Cook County, Ill., hand out much higher verdicts than those of Seattle, the aircraft maker’s former hometown. Some lawyers in fact predict that domestic crashes, at least when the plane is Boeing-made, are apt to be sued in Cook County from now on regardless of where the flight originated or went down; under the liberal rules of forum-shopping that prevail in American courts, most big airlines may be susceptible to venue in the Windy City since they do at least some business there. (Blake Morrison, “Crash lawyers like Boeing move”, USA Today, May 16).

May 17 — Like a hole in the head. As if the nine private law schools in the state of Massachusetts weren’t enough, proponents now want to establish a public one by having the state take over the struggling Southern New England School of Law at North Dartmouth, near New Bedford. (Denise Magnell, “Crash Course”, Boston Law Tribune, May 1).

May 17 — Lessons of shrub-case jailing. The months-long contempt-of-court jailing of John Thoburn of Fairfax County, Va. for refusing to erect enough trees and shrubs around his golf driving range is a good example of the excesses of bureaucratic legalism, says Washington Post columnist Marc Fisher (“In Fairfax shrub fight, Both Sides Dig In Stubbornly”, April 26). Some of the county’s elected supervisors voice few misgivings about the widely publicized showdown, saying their constituents want them to be tougher in cracking down on zoning violations. (Peter Whoriskey and Michael D. Shear, “Fairfax Zoning Case Draws World Attention”, Washington Post, April 21) (freejohnthoburn.com).

May 16 — No baloney. “A suspected drug dealer who was served a bullet-and-bologna sandwich wants a side of lettuce — about $5 million worth. ” Louis Olivo says he was given an officially prepared lunch during a break in a Brooklyn Supreme Court hearing last week, and felt something “crunchy” which turned out to be a bullet. Surgery (not syrup of ipecac?) is expected to remove the 9mm bullet from Olivo’s stomach; his lawyer wants $5 million (Christopher Francescani, “$5M Lawsuit Over Bulletin in Bologna”, New York Post, May 15) (& letter to the editor, May 18)

May 16 — “Who’s afraid of principled judges?” More questions should be raised about a retreat held at Farmington, Pa. earlier this month in which 42 Democratic Senators were lectured on the need to apply ideological litmus tests to judicial nominees, writes Denver Post columnist Al Knight. (May 13). “Liberals rightly decried efforts a decade ago to turn membership in the American Civil Liberties Union into a disqualification for high office; current efforts to do the same thing to the Federalist Society are equally wrong. … In fact, they are the only group, liberal or conservative, that regularly sponsors debates throughout the nation’s law schools on important public-policy issues.” (Howard Shelansky, “Who’s Afraid of the Federalist Society?”, Wall Street Journal, May 15).

May 16 — Drawing pictures of weapons. In Oldsmar, Fla., an eleven-year-old “was taken from his elementary school in handcuffs after his classmates turned him in for drawing pictures of weapons.” (Ed Quioco and Julie Church, “Student removed from class because of drawings”, St. Petersburg Times, May 11; “Pinellas fifth grader cuffed, sent home after classmates turn him in for drawing weapons”, AP/Fort Lauderdale Sun-Sentinel, May 11). In Sunderland, England, police raided Roland Hopper’s 11th birthday party and arrested him as he cut the cake after he was seen playing with the new pellet gun his mother had bought him (“Armed Police Raid 11th Birthday”, Newcastle Journal, April 10). And the website ztnightmares.com, which developed out of a controversy at Lewis-Palmer High School in Monument, Colo., “publicizes the downside or evils of zero tolerance school discipline policies” and has a noteworthy list of outside links as well as horror stories.

May 15 — “Judges or priests?”. Why have judicial nomination fights taken on the intensity and bitterness once associated with religious disputes? “The only places left in this country that could be described as temples — for that is how we treat them — are the courts. … They are temples because the judges who sit in them now constitute a priesthood, an oracular class … we have abdicated to them our personal responsibility and, in many cases, even what used to be the smallest judgment call a citizen had to make for himself.” (Tunku Varadarajan, WSJ OpinionJournal.com, May 11).

May 15 — Techies fear Calif. anti-confidentiality bill. Trial lawyers have been pushing hard for the enactment of legislation granting them wide leeway to disseminate to anyone they please much of the confidential business information they dig up by compulsory process in lawsuits. (At present, judges are free to issue “protective orders” which restrain such dissemination.) Proponents say lawyers will use this new power to publicize serious safety hazards that now remain unaired; critics predict they will use it to stir up more lawsuits and for general leverage against defendants who have been found guilty of no wrong but who don’t want the inner details of their business to fall into the hands of competitors or others. A lawyer-backed bill had been hurtling toward enactment in California following the Firestone debacle, but now a counterforce has emerged in the person of high-tech execs who say the proposal “could expose confidential company information, stifle innovation and encourage frivolous litigation. … TechNet CEO Rick White called the bills ‘the most significant threat to California’s technology companies since Prop. 211.’ White was referring to the 1996 initiative that would have made company directors and high-ranking executives personally vulnerable to shareholder lawsuits.” (Scott Harris, “Old Foes Squabble Over Secrecy Bills”, Industry Standard/Law.com, May 10).

May 15 — Canadian court: divorce settlements never final. The Ontario Court of Appeal has ruled that courts may revisit and overturn former divorce settlements if a “material change of circumstances” has taken place since the original deal. “Tens of thousands of people who believed they had agreed to a ‘final’ divorce settlement could face more financial demands … Family law lawyers predict a surge of legal attacks on separation agreements and marriage contracts as a result of the ruling.” (Cristin Schmitz, “Divorce deals never final: court”, Southam News/National Post, April 28).

May 14 — Write a very clear will. Or else your estate could wind up being fought over endlessly in court like that of musician Jerry Garcia (Kevin Livingston, “Garcia Estate Fight Keeps On Truckin'”, The Recorder, April 25; Steve Silverman, “Online Fans Sing Blues About Garcia Estate Wrangling”, Wired News, Dec. 16, 1996; Don Knapp, “Garcia vs. Garcia in battle for Grateful wealth”, CNN, Dec. 14, 1996). Or actor James Mason (A Star is Born, North by Northwest) (“He would have been horrified by all this. … he hated litigation”) (Caroline Davies, “James Mason’s ashes finally laid to rest”, Daily Telegraph (London), Nov. 25, 2000). Or timber heir H.J. Lutcher Stark of Orange, Texas, who died in 1965 and whose estate, with that of his wives, has spawned several rounds of litigation which look as far back for their subject matter as 1939 and are still in progress (William P. Barrett, “How Lawyers Get Rich”, Forbes, April 2 (reg)).

May 14 — City gun suits: “extortion parading as law”. To curb the use of officially sponsored litigation as a regulatory bludgeon, as in the gun suits, the Cato Institute’s Robert Levy recommends “a ‘government pays’ rule for legal fees when a governmental unit is the losing plaintiff in a civil case”. (Robert A. Levy, “Pistol Whipped: Baseless Lawsuits, Foolish Laws”, Cato Policy Analysis #400 (executive summary links to full paper — PDF))

May 14 — Update: “Messiah” prisoner’s lawsuit dismissed. In a 22-page opinion, federal district judge David M. Lawson has dismissed the lawsuit filed by a Michigan prisoner claiming recognition as the Messiah (see April 30). The opinion contains much to reward the curious reader, such as the list on page 5 of the inmate’s demands (including “5 million breeding pairs of bison” and “25,000 mature breeding pairs of every creature that exists in the State of Michigan,” and the passage on page 18 citing as precedent for dismissal similar previous cases such as Grier v. Reagan (E.D. Pa. Apr. 1, 1986), “finding that plaintiff’s claim she was God of the Universe fantastic and delusional and dismissing as frivolous complaint which sought items ranging from a size sixteen mink coat and diamond jewelry to a three bedroom home in the suburbs and a catered party at the Spectrum in Philadelphia”). (opinion dated April 26 (PDF), Michigan Bar Association site) (DURABLE LINK)

May 11-13 — Welcome Aardvark Daily readers (NZ). “New Zealand’s leading source of Net-Industry news and commentary since 1995” just referred us a whole bunch of antipodal visitors by featuring this website in its “Lighten Up” section. It says we offer “an aggregation of quirky and oddball legal actions which go to prove that the USA has far too many lawyers for its own good”. (Aardvark.co.nz). For NZ-related items on this site, check out July 26, Sept. 8 and Oct. 31, 2000, as well as “Look for the Kiwi Label”, Reason, July 2000, by our editor.

May 11-13 — New York tobacco fees. “An arbitration panel has awarded $625 million in attorneys’ fees to the six firms that were hired by New York state to sue the tobacco industry, say sources close to the arbitration report.” The well-connected city law firm of Schneider, Kleinick, Weitz, Damashek & Shoot (which last year was reported to be renting office space to New York Assembly Speaker Sheldon Silver; see May 1, 2000) will receive $98.4 million. Three firms that took a major national role in the tobacco heist will share $343.8 million from the New York booty, to add to their rich haul from other states; they are Ness Motley, Richard Scruggs’ Mississippi firm, and Seattle’s Hagens & Berman. (Daniel Wise, “Six Firms Split $625 Million in Fees for New York’s Share of Big Tobacco Case,” New York Law Journal, April 24). Update Jun. 21-23, 2002: judge to review ethical questions raised by fee award.

May 11-13 — “Judges behaving badly”. The National Law Journal‘s fourth annual roundup of judicial injudiciousness includes vignettes of jurists pursuing personal vendettas, earning outside income in highly irregular ways, jailing people without findings of guilt, and getting in all sorts of trouble on matters of sex. Then there’s twice-elected Judge Ellis Willard of Sharkey County, Mississippi, who allegedly “fabricated evidence such as docket pages, arrest warrants, faxes [and] officers’ releases.” That was why he got in trouble, not just because he was fond of holding court in his Beaudron Pawn Shop and Tire Center, “a tire warehouse flanked by service bays on one side and a store that holds the judge’s collection of Coca-Cola memorabilia.” (Gail Diane Cox, National Law Journal, April 30).

May 11-13 — Update: Compaq beats glitch suit. In 1999, after Toshiba ponied up more than a billion dollars to settle a class action charging that its laptops had a glitch in their floppy drives, lawyers filed follow-on claims against other laptop makers whose machines they said displayed the same problem. But Compaq refused to settle, and now Beaumont, Tex. federal judge Thad Heartfield has felt constrained to dismiss the suit against it on the grounds that plaintiff’s lawyer Wayne Reaud had failed to show that any user suffered the requisite $5,000 in damages. (Daniel Fisher, “Billion-Dollar Bluff”, Forbes, April 16 (now requires registration)).


May 31 — Fieger’s firecrackers frequently fizzle. Famed lawyer Geoffrey Fieger extracts huge damage awards from Michigan juries in civil cases even more often than he manages to get Dr. Jack Kevorkian off the hook from criminal charges, but he does much less well when the big awards reach higher levels of judicial consideration. “In the last two years, Fieger and his clients have watched as judges, acting on appeal or post-trial motion, erased more than $55 million in jury verdicts,” including $15 million and $13 million verdicts against Detroit-area hospitals and a $30 million verdict, reduced by the judge to $3 million, arising from a Flint highway accident. Opponents say Fieger’s courtroom vilification of opponents and badgering of witnesses often impresses jurors but plays less well in the calmer written medium of an appellate record.

Appeals courts are now considering Fieger cases “totaling an estimated $50 million to $100 million … Among those cases is $25 million awarded in the infamous Jenny Jones talk-show case and $20 million to a woman who was sexually harassed at a Chrysler plant.” (Update Oct. 25-27, 2002: appeals court throws out Jenny Jones verdict. Further update Jul. 24, 2004: state high court throws out Chrysler verdict). Fieger, who was the unsuccessful Democratic challenger to Michigan Gov. John Engler at the last election, charges that the appeals courts are politically biased against him: “It’s a conspiracy to get me”. However, a reporter’s examination of Fieger cases that went up to appeals courts indicates that the partisan or philosophic background of the judges on the panels doesn’t seem to make a marked difference in his likelihood of success (Dawson Bell, “Fieger’s wins lose luster in appeals”, Detroit Free Press, May 29). “Colorful” barely begins to describe Fieger’s past run-ins with the law and with disciplinary authorities; see Dawson Bell, “Fieger’s skeletons won’t stay buried”, Detroit Free Press, August 13, 1998.

May 31 — “Dead teen’s family sues Take our Kids to Work”. Had to happen eventually dept.: in Welland, Ontario, “[t]he family of a teenage girl killed while driving a utility vehicle at a John Deere plant is suing the company, the school board and the organizers of Take Our Kids to Work day.” (Karena Walter, National Post, May 25).

May 31 — Pale Nanny with an ad budget. The Indoor Tanning Association, a salon trade group, is “worried about proposed legislation in Texas that would outlaw indoor tanning for anyone under age 18, require tanning salons to post pictures of different types of skin cancer, and allow dermatologists and anti-tanning activists to make contributions to the Texas Health Department to pay for an anti-tanning advertising campaign.” You didn’t think these sorts of campaigns were going to stop with tobacco, did you? (“Inside Washington — Presenting: This Season’s Latest Tan Lines”, April 14, National Journal, subscribers only).

May 30 — Supreme Court: sure, let judges redefine golf. By a 7-2 vote, the high court rules that the PGA can be forced to change its rules so as to let disabled golfer Casey Martin ride in a cart between holes while other contestants walk. (Yahoo Full Coverage; Christian Science Monitor; PGA Tour v. Martin decision in PDF format — Scalia dissent, which is as usual the good part, begins about two-thirds of the way down). For our take, see Reason, May 1998; disabled-rights sports cases).

May 30 — Microsoft v. Goliath. “The antitrust laws originally aimed to preserve competition as idealized by Adam Smith. Can they now preserve and promote Schumpeter’s [“creative destruction”] competition? The Microsoft case suggests that they cannot. ” (Robert Samuelson, “The Gates of Power”, The New Republic, Apr. 23).

May 30 — Evils of contingent-fee tax collection, cont’d. Another city, this time Meriden, Ct., has gotten in trouble for hiring a private firm to assist in its taxation process on a contingent-fee basis — in this case, the firm conducted property reassessments and got to keep a share of the new tax revenue hauled in by them. A Connecticut judge has now found that this system gave the firm a pointed incentive to inflate supposed property values unjustifiably, that it had done so in the case at hand, and that the incentive scheme, by destroying the impartiality that we expect of public servants, had deprived taxpayers of their rights to due process under both federal and state constitutions. He ordered the city to refund $15.6 million to two utility companies whose holdings had been overassessed in this manner. (Thomas Scheffey, “Connecticut Judge Blasts City’s $15.6 Million Mistake”, Connecticut Law Tribune, May 3). It’s yet another recognition (see Jan. 10, 2001; Dec. 3, 1999) that when governments hire contingent-fee professionals to advise them on whether private parties owe them money and if so how much, due process flies out the window — as has happened routinely in the new tobacco/gun/lead paint class of lawsuits, which operate on precisely this model.

May 29 — Claim: inappropriate object in toothpaste caused heart attack. A Shelton, Ct. man is suing Colgate-Palmolive, claiming he discovered an extremely indelicate object in a six-ounce standup tube of the company’s regular toothpaste and that the resulting stress caused his blood pressure to escalate over a matter of months, leading him to suffer a heart attack a year later. The company said it does not think its production processes would have allowed the offending object to have entered the tube. (“Man sues over condom in toothpaste”, AP/WTNH New Haven, May 25).

May 29 — States lag in curbing junk science. According to one estimate, only about half of state courts presently follow the U.S. Supreme Court’s standard for excluding unreliable scientific evidence from trials (Daubert v. Merrell Dow, 1993). Where states follow a laxer standard, they run the risk of approving verdicts based on strawberry-jam-causes-cancer “junk science”. A new group called the Daubert Council, headed by Charles D. Weller and David B. Graham of Cleveland’s Baker & Hostetler, aims to fix that situation by persuading the laggard states to step up to the federal standard. (Darryl Van Duch, “Group is Pushing ‘Daubert'”, National Law Journal, May 25).

May 29 — Brace for data-disaster suits. Companies with a substantial information technology presence are likely to become the targets of major liability lawsuits in areas such as hacker attacks, computer virus spread, confidentiality breach, and business losses to co-venturers and customers, according to various experts in the field. (Jaikumar Vijayan, “IT security destined for the courtroom”, ComputerWorld, May 21).

May 28 — Holiday special: dispatches from abroad. Today is Memorial Day in the U.S., which we will observe by skipping American news just for today in favor of the news reports that continue to pour in from elsewhere:

* Swan victim Mary Ryan, 71, has lost her $32,600 negligence claim against authorities over an incident in which one of the birds knocked her to the ground in Phoenix Park in central Dublin, Ireland. She testified that she had just fed the swan and was walking away when she heard a great flapping of wings and was knocked down, suffering a broken wrist. “Ryan said park commissioners should have put up signs warning the public about ‘the mischievous propensity and uncertain temperament'” of the birds, but Judge Kevin Haugh ruled that evidence had not established that the park’s swans were menacing in general, although the one in question had concededly been having “a very bad day.” (Reuters/Excite, May 25).

* In Canada, the New Brunswick Court of Appeal has ruled improper the disbarment of Fredericton attorney Michael A.A. Ryan, whom the Law Society had removed from practice after finding that he had lied to clients and falsified work, reports the National Post. To conceal his neglect of cases which had lapsed due to statutes of limitations, “Mr. Ryan gave his clients reports of hearings, motions and discoveries that never occurred, and when pressed for details of a supposedly favourable judgment, forged a decision from the Court of Appeal. The clients were eventually told they had won $20,000 each in damages,” but in the end Ryan had to confess that he had been making it all up. “The lawyer has admitted to a long-standing addiction to drugs and alcohol, and told the court he was depressed during the period of his misconduct because of the breakup of his marriage.” (Jonathon Gatehouse, “Court gives lawyer who lied to clients second chance,” National Post, May 18).

* Authorities in Northumbria, England, have agreed to pay thousands of pounds to Detective Inspector Brian Baker, who blames his nocturnal snoring on excessive inhalation of cannabis (marijuana) dust in the line of police duty. Baker says that his spending four days in a storeroom with the seized plants resulted in nasal congestion, sniffing, dry throat, and impaired sense of smell as well as a snore that led to “marital disharmony”. (Ian Burrell, “Payout for policeman who blamed his snoring on cannabis”, The Independent (U.K.), April 11; Joanna Hale, “Drugs inquiry made detective a snorer”, The Times (U.K.), April 11). And updating an earlier story (see May 22), a woman in Bolton, Lancashire has prevailed in her suit against a stage hypnotist whose presentation caused her to regress to a childlike state and recall memories of abuse; damages were $9,000 (AP/ABC News, May 25).

May 25-27 — “Judge buys shopaholic defense in embezzling”. “A Chicago woman who stole nearly $250,000 from her employer to finance a shopping addiction was spared from prison in a novel ruling Wednesday by a federal judge who found that she bought expensive clothing and jewelry to ‘self-medicate’ her depression.” Elizabeth Roach faced a possible 18-month prison term for the embezzlement under federal sentencing guidelines, but U.S. District Judge Matthew Kennelly reduced her sentence, sparing her the big house, in what was evidently “the first time in the country that a federal judge reduced a defendant’s sentence because of an addiction to shopping.” She had bought a $7,000 belt buckle and run credit-card bills up to $500,000. (Matt O’Connor, Chicago Tribune, May 24).

May 25-27 — Columnist-fest. More reasons to go on reading newspapers:

* A New York legislator has introduced a joint custody bill that he thinks would significantly reduce the state’s volume of child custody litigation, but it hasn’t gone anywhere. Leaving aside debates about the other pros and cons of joint custody, one reason it languishes is that it “has been opposed by matrimonial lawyers in the state. ‘They make their living on these divorces,’ said [assemblyman David] Sidikman, a lawyer himself. “… The parents usually start off these cases promising to be adults, but that doesn’t last once the lawyers get involved.” “(John Tierney, “The Big City: A System for Lawyers, Not Children”, New York Times, May 15 (reg)). Bonus: Tierney on the NIMBY-ists who would sue to keep IKEA from building a store in a blighted Brooklyn neighborhood (“Stray Dogs As a Litigant’s Best Friend”, April 13).

* Steve Chapman points out that the recent release of an Oklahoma man long imprisoned for a rape he didn’t commit (see May 9) casts doubt not only on shoddy forensics but also on that convincing-seeming kind of evidence, eyewitness testimony (“Don’t believe what they say they see”, Chicago Tribune, May 13). Bonus: Chapman on the scandal of medical-pot prohibition (“Sickening policy on medical marijuana”, May 17).

* Reparations: “Germans may be paying for the sins of their fathers but asking Americans to stump up for what great-great-great-grandpappy did seems to be rather stretching a point. ” (Graham Stewart, “Why we simply can’t pay compensation for every stain on our history”, The Times (U.K.), March 22).

May 25-27 — “Gone with the Wind” parody case. The legal status of parody as a defense to copyright infringement is still uncertain in many ways, and contrary to a widespread impression there is no legal doctrine allowing extra latitude in copying material from works such as the Margaret Mitchell novel that have become “cultural icons” (Kim Campbell, “Who’s right?”, Christian Science Monitor, May 24; Ken Paulson, “What — me worry? Judge’s suppression of Gone With the Wind parody raises concerns”, Freedom Forum, May 20).

May 24 — “Family awarded $1 billion in lawsuit”. Another great day for trial lawyers under our remarkable system of unlimited punitive damages: a New Orleans jury has voted to make ExxonMobil pay $1 billion to former state district judge Joseph Grefer and his family because an Exxon contractor that leased land from the family for about thirty years left detectable amounts of radioactivity behind from its industrial activities. Exxon “said it offered to clean up the land but the Grefers declined its offers.” The company says the land could be cleaned up for $46,000 and also “claims that less than 1 percent of the land contains radiation levels above naturally occurring levels.” The jury designated $56 million of the fine for cleaning up the land; the total value of the parcel is somewhere between $500,000 (Exxon’s view) and $1.5 million (the owners). (Sandra Barbier, New Orleans Times-Picayune, May 23; Brett Martel, “Jury: ExxonMobil Should Pay $1.06B”, AP/Yahoo, May 22; “Exxon Mobil to Appeal $1 Billion Fine”, Reuters/New York Times, May 23).

May 24 — Humiliation by litigators as turning point in Clinton affair. “It strikes me as relevant that the turning point in the Lewinsky saga was the broadcasting of Clinton’s deposition, an image of an actual human being humiliated for hours on end. It was then that we realized we had gone too far — but look how far down the path we had already gone.” (Andrew Sullivan, TRB from Washington, “Himself”, The New Republic, May 7).

May 24 — Tobacco: angles on Engle. With three cigarette companies having agreed to pay $700 million just to guarantee their right to appeal a Miami jury’s confiscatory $145 billion verdict in Engle v. R.J. Reynolds, other lawyers are piling on, the latest being an alliance of hyperactive class action lawyers Cohen, Milstein, Hausfeld & Toll with O.J. Simpson defense lawyer Johnnie Cochran (“Lawsuit says tobacco industry tried to hook kids”, CNN/AP, May 23; Jay Weaver, “Tobacco firms agree to historic smoker payment”, Miami Herald, May 8; “Tobacco Companies Vow to Fight $145 Billion Verdict”, American Lawyer Media, July 17, 2000; Rick Bragg with Sarah Kershaw, “”Juror Says a ‘Sense of Mission’ Led to Huge Tobacco Damages”, New York Times, July 16, 2000 (reg); “Borrowing power to be considered in tobacco suit”, AP/Seattle Post-Intelligencer, June 1, 2000 (judge ruled that companies’ ability to borrow money could be used as a predicate for quantum of punitive damages)).

May 23 — “Insect lawyer ad creates buzz”. Torys, a large law firm based in Toronto, has caused a stir by running a recruitment ad aimed at student lawyers with pictures of weasels, rats, vultures, scorpions, cockroaches, snakes and piranhas, all under the headline “Lawyers we didn’t hire.” The ad, devised by Ogilvy and Mather, says the firm benefits from a “uniquely pleasant and collegial atmosphere” because it doesn’t hire “bullies, office politicians or toadies”, who presumably go to work for other law firms instead.

However, some defenders of invertebrates and other low-status fauna say it’s unfair to keep comparing them to members of the legal profession. Vultures, for example, “provide a really essential role in terms of removing dead animals and diseases,” says Ontario zoologist Rob Foster. “It’s slander, frankly,” he says, “adding that one exception might be the burbot, a bottom-feeding fish whose common names include ‘the lawyer.’ … ‘Whenever I see a dung beetle portrayed negatively in a commercial, I see red,’ he said yesterday, recalling that in The Far Side comic strip, cartoonist Gary Larson once drew two vermin hurling insults by calling each other ‘lawyer.'” (Tracey Tyler, Toronto Star, Apr. 19). (DURABLE LINK)

May 23 — “Working” for whom? An outfit called the Environmental Working Group has recently taken a much higher profile through its close association with “Trade Secrets”, a trial-lawyer-sourced (and, say its critics, egregiously one-sided) attack on the chemical industry that aired March 26 as a Bill Moyers special on PBS. Spotted around the same time was the following ad which ran on one of the FindLaw email services on behalf of EWG: “Thought the Cigarette Papers Were Big? 50 years of internal Chemical Industry documents including thousands of industry meeting minutes, memos, and letters. All searchable online. Everything you need to build a case at http://www.ewg.org“. Hmmm … isn’t PBS supposed to avoid letting itself be used to promote commercial endeavors, such as litigation? (more on trial lawyer sway among environmental groups)

MORE: Michael Fumento, “Bill Moyers’ Bad Chemistry”, Washington Times, April 13; PBS “TradeSecrets”; Steven Milloy, “Anti-chemical Activists And Their New Clothes”, FoxNews.com, March 30; www.AboutTradeSecrets.org (chemical industry response); ComeClean.org; Ronald Bailey, “Synthetic Chemicals and Bill Moyers”, Reason Online, March 28. The New York Times‘s Neil Genzlinger wrote a less than fully enthralled review of the Moyers special (“‘Trade Secrets’: Rendering a Guilty Verdict on Corporate America”, television review, March 26) for which indiscretion abuse was soon raining down on his head from various quarters, including the leftist Nation (“The Times v. Moyers” (editorial), April 16). (DURABLE LINK)

May 22 — From dinner party to court. “I’m never going to invite people around for dinner again,” says Annette Martin of Kingsdown, Wiltshire, England, after being served with a notice of claim for personal injury from dinner guest Margaret Stewart, who says she was hurt when she fell through a glass and steel dining chair in Miss Martin’s home. Martin says that “up to then we had been good friends,” and that Miss Stewart “looked perfectly fine when she walked out the door that evening. … I feel very strongly about the television adverts that encourage this sort of nonsense. I think the Government should intervene before we become like the Americans and sue over anything.” (Richard Savill, “Dinner party ends with a sting in the tail”, Daily Telegraph, May 19). In other U.K. news, a woman from Bolton, Lancashire, is suing stage hypnotist Philip Green, claiming that during one of his performances “she was induced to chase what she believed were fairies around the hall, drink a glass of cider believing it was water and believe she was in love with Mr. Green,” all of which left her depressed and even for a time suicidal, calling up memories of childhood abuse. (“Woman sues stage hypnotist over ‘abuse memories'”, Ananova.com, May 21) (more on hypnotist liability: March 13). UpdateMay 28: she wins case and $9,000 damages.

May 22 — Razorfish, Cisco, IPO suits. In a decision scathingly critical of the “lawyer-driven” nature of securities class action suits, New York federal judge Jed Rakoff rejected a motion by five law firms to install a group of investors as the lead plaintiff in shareholder lawsuits against Razorfish Inc., a Web design and consulting company. The investor group had been “cobbled together” for purposes of getting their lawyers into the driver’s seat, he suggested. “Here, as in many other such cases, most of the counsel who filed the original complaints attempted before filing the instant motions to reach a private agreement as to who would be put forth as lead plaintiff and lead counsel and how fees would be divided among all such counsel.” Rakoff instead installed as lead counsel Milberg Weiss and another firm, which jointly represented the largest investor claiming losses in the action. “Judge Rakoff noted drily in a footnote that numerous complaints were filed within days that essentially copied the original Milberg Weiss complaint verbatim,” and wondered whether the lawyers filing those copycat suits had taken into account the requirements of federal Rule 11. (Bruce Balestier, “Judge Rejects Lawyers’ Choice of Lead Plaintiff in Razorfish Class Actions”, New York Law Journal, May 8).

Observers are closely watching the onslaught of class action suits filed against Cisco Systems since its stock price declined. Stanford securities-law professor Joseph Grundfest, who “helped craft the 1995 reform act and has worked on both plaintiffs-side and defense cases … said he sees the Cisco case as part of a buckshot strategy by plaintiffs’ lawyers. They are suing multiple technology companies with hopes of extracting a large settlement from at least one. ‘They only need a small probability to make it worth their while,’ Grundfest said. ‘How much does it cost to write a complaint?'”. (Renee Deger, “Cisco Inferno”, The Recorder, April 27). Shareholder suits in federal court are headed toward record numbers this year in the wake of the dotcom meltdown (Daniel F. DeLong, “Lawyers Find Profit in Dot-Com Disasters”, Yahoo/ NewsFactor.com, May 14; see also Richard Williamson, “Shareholder Suits Slam High-Tech”, Interactive Week/ZDNet, Dec. 19, 2000).

May 22 — Welcome SmarterTimes readers. Ira Stoll’s daily commentary on the New York Times mentioned us on Sunday (May 20 — scroll to first “Late Again”). And Brill’s Content has now put online its “Best of the Web” roundtable in which we were recommended by federal appeals judge Alex Kozinski (May — scroll about halfway down righthand column).

May 21– Six-hour police standoff no grounds for loss of job, says employee. “A formerly suicidal insurance executive who lost his job after a six-hour standoff with police at Park Meadows mall [in Denver] is suing his former employer for discrimination under federal and state laws protecting the mentally disabled. The 43-year-old plaintiff, Richard M. Young, alleges he was wrongfully terminated from Ohio Casualty Insurance Co. after the company interpreted a suicide note he wrote to be his letter of resignation. … The civil complaint says Young was on emergency medical leave for an emotional breakdown May 29, 2000, when he drove to the shopping center’s parking garage and was spotted on mall security cameras with a revolver. … Douglas County sheriff’s deputies finally coaxed him into surrendering”. His suit seeks back pay, front pay and punitive damages. (John Accola, “Man who was suicidal sues ex-employer for discrimination”, Rocky Mountain News, May 18). (DURABLE LINK)

May 21 — “Anonymity takes a D.C. hit”. If Rep. Felix Grucci has his way, you won’t be able to duck into a library while on the road to check your Hotmail; the New York Republican has “introduced legislation requiring schools and libraries receiving federal funds to block access from their computers to anonymous Web browsing or e-mail services. … Grucci says it’s necessary to thwart the usual suspects, terrorists and child molesters.” (Declan McCullagh, Wired News, May 19). And did you know that it would be unlawful to put out this website in Italy without registering with the government and paying a fee? New regulations in that country are extending to web publishers an appalling-enough-already set of rules that require print journalists to register with the government. Says the head of the Italian journalists’ union approvingly: “Thus ends, at least in Italy, the absurd anarchy that permits anyone to publish online without standards and without restrictions, and guarantees to the consumer minimum standards of quality in all information content, for the first time including electronic media.” (Declan McCullagh’s politechbot, “Italy reportedly requires news sites to register, pay fees”, April 11; “More on Italy requiring news sites to register, pay fees”, April 12) (via Virginia Postrel’s “The Scene”, posted there May 6). (DURABLE LINK)

May 21 — “Patients’ rights” roundup. Well, duh: “Doctors supporting patients’ rights bills have suddenly become alarmed that some of the proposals could boomerang and expose them to new lawsuits.” (Robert Pear, “Doctors Fear Consequences of Proposals on Liability”, New York Times, May 6 (reg)). “Consumers do not consider the right to sue health insurers over coverage issues a top healthcare priority, according to new survey data released by the Blue Cross and Blue Shield Association (BCBSA),” which is of course an interested party in the matter; a right to sue “finished last among 21 major health issues that consumers were asked to rank.” (Karen Pallarito, “Poll: Right to sue HMOs low priority for consumers,” Reuters Health, April 26 (text) (survey data — PDF)). And if liability is to be expanded at all, Congress should consider incorporating into the scheme the “early offers” idea developed by University of Virginia law professor Jeffrey O’Connell, which is aimed at providing incentives for insurers to make, and claimants to accept, reasonable settlements at an early stage in the dispute (John Hoff, “A Better Patients’ Bill of Rights,” National Center for Policy Analysis Brief Analysis No. 355, April 19). (DURABLE LINK)

MORE: Greg Scandlen, “Legislative Malpractice: Misdiagnosing Patients’ Rights”, Cato Briefing Papers, April 7, 2000 (executive summary) (full paper — PDF); Gregg Easterbrook, “Managing Fine”, The New Republic, March 20, 2000.