February 9-11 --
Litigators vs. standardized tests, I: the right to conceal.
"In a major victory for disability rights groups, the Educational Testing
Service announced yesterday that on many of its standardized exams it would
stop flagging the results of students with physical or learning disabilities
who receive special accommodations, like extra time, for the tests."
Disability rights advocates had sued ETS arguing that it was violating
antidiscrimination law by letting
university admissions departments
and other downstream users know that a test had been taken with extra time
or other accommodations. "The real winners aren't the physically
handicapped," observes Virginia Postrel (Feb.
8). "They're academically disabled people who know how to work the
legal system." Upwards of ninety percent of accommodations are demanded
by students asserting learning disability or attention deficit, and extra
time is typically among the demands; figures from California and elsewhere
indicate that affluent students are much more likely to assert such disabilities
than are students from modest backgrounds. (Tamar Lewin, "Disabled
Win Halt to Notations of Special Arrangements on Tests", New York Times,
February 9-11 --
Litigators vs. standardized tests, II: who needs sharp cops?
"Last May, the Ninth Circuit Court of Appeals ordered the Justice Department
to pay Torrance, Calif., $1.7 million in attorneys' fees for a police bias
suit the trial court had called 'frivolous and unreasonable.' The
alleged police wrongdoing? They screened for reading and writing skills
(albeit at a ninth-grade level) in hiring
exams. Such tests, argued Justice, have a disparate impact on minorities
and have no legitimate job purpose. ... But as the court recognized, analytic
skills are essential to policing. Officers must digest written material,
understand complex procedural laws, and produce clear reports for use in
"Despite its defeat in Torrance, Justice continued to threaten police
departments with litigation unless they replaced traditional hiring exams
with federally approved tests. These all but excise cognitive questions
in favor of true/false 'personality' measures such as: 'I would like to
be a race car driver,' or 'I would like to go to a party every night if
I could.' Such states as New York, New Jersey and Missouri caved in.
Many jurisdictions have ceased cognitive testing pre-emptively."
(Heather Mac Donald (Manhattan Institute), "Stop Persecuting the Police",
Wall Street Journal, Feb.
5 (online subscribers only)).
February 9-11 --
"Victim is sued for support". "A woman convicted
of shooting her estranged husband in the head, and who served almost two
years in jail for her crime, is going to court to get spousal support from
the man she nearly killed. And there is a very good chance she'll
get it, according to several family
law practitioners." That Christine Alexander attempted to murder
her husband David "may be a moot point when determining support, since
Canada's Divorce Act is 'no fault'
and does not take prior conduct into consideration. Nor is there any statute
of limitations for filing a claim. 'Her conduct isn't admissible under
the Divorce Act,' Toronto family lawyer Philip Epstein said. 'Technically
speaking, the fact that she shot him in the face doesn't bar her from a
support case.''" (Martin Patriquin, Toronto Star, Jan.
February 7-8 --
"Woman who drove drunk gets $300,000". "An Ontario
woman who got drunk at an office
party and crashed her car has successfully sued her employer for allowing
her to drive -- even though her company offered a cab ride or accommodation
if she gave up her keys. Linda Hunt, 52, won more than $300,000 in damages
and interest from Sutton Group Realty Ltd., of Barrie, Ont., after arguing
her boss should have stopped her from driving home in a snowstorm following
a 1994 Christmas party." The judge assessed Hunt's damages from the
resulting accident at C$1.2 million, but reduced that by three quarters
to reflect her own fault in the matter. He "went on to declare it
the duty of employers to monitor the alcohol consumption of employees at
company functions. The decision is expected to send a chill through
offices across the country". (Charlie Gillis, National Post (Canada),
6) (& update Aug.
16, 2003: appeals court orders new trial).
February 7-8 --
"Survivor" contestant sues. Stacey Stillman -- the
one contestant on the hit TV show
"Survivor" who was an attorney in real life -- "is suing its producer,
alleging he rigged the outcome by arranging to have her voted off the show,
according to a published report Tuesday." The report, in USA Today,
said Stillman had sought a $5 million settlement from CBS and other defendants.
("TV's 'Survivor' sued", CNNfn, Feb.
February 7-8 --
Safer smokes vs. the settlement cartel. One fledgling
business would like to experiment with selling a cigarette designed to
inflict less harm on the user's lungs than the regular kind. But
the trial-lawyer-brokered multistate
settlement between cigarette companies and state attorneys general
imposes a special prohibitive charge on new-entrant companies that might
seek to compete with incumbent tobacco companies, the better to protect
the states' revenue stream. Too bad for smokers, but who cares about
them anyway?, seems to be the general view. (Jonathan Rauch, "How
To Build a Better Cigarette -- And How To Snuff It Out", The Atlantic/National
February 7-8 --
Employees not tenured in California. Of the fifty state
supreme courts, California's and Michigan's had led the way in creating
new rights for employees to sue over "wrongful termination", edging toward
a sort of property right on the part of workers not to be fired, at least
if they had been on the job for a while with no complaint from their employers.
But Michigan's court has pulled back from its liberal interpretations in
recent years, and now it appears that California's is doing the same.
The state's Supreme Court ruled last term that an employee could not assert
an "implied" promise to be retained in continued employment
when his employer had explicitly spelled out in print that it had the right
to discharge him at will. Commonsensical as the ruling may
seem, it confirms that "implied" tenure rights are not going to swallow
the general background rule of at-will employment in California, as they
seemed likely to do not so long ago. (Kevin Livingston, "Employers
Win Big in At-Will Case", The Recorder/CalLaw, Oct.
6) (Guz v. Bechtel -- PDF/document,
February 6 -- "Persistent
suitor". For more than ten years now, a commercial
publisher of scientific journals by the name of Gordon & Breach has
been suing two scientific societies, the American Physical Society (APS)
and the American Institute of Physics (AIP), which it says have conspired
to disparage the physics journals it publishes. The two societies
say they're being sued for having had the temerity to spread the word about
a price comparison of journals in which G&B's entries fared badly,
and they say the publisher is using litigation to punish them for exercising
their rights of free speech, not
to mention academic freedom.
(Andrew R. Albanese, "Inside Publishing", Lingua Franca, Dec./Jan.;
February 6 -- "Lawsuits
could tame ski slopes". Lawyers pursuing a wrongful-death
case against the Vail ski resort will try to dodge Colorado's strict limits
on ski-operator liability. "I don't envy the jury. It will
understandably sympathize with the mother's loss. But before it litigates
our winter sports out from underneath
us, I hope it will consider that many Americans see winter's snows as a
liberating force, as a frontier-like challenge against which we define
ourselves. The most interesting and challenging winterscapes count
if and only if we can freely throw ourselves into them and confront chaos,
if we can ski the chutes and risk the avalanches." (Tom Wolf, Denver Post,
February 6 -- Amazon
"Honor System": a new way to support this (and other) websites.
How do people keep nonprofit, literary, hobby or "cause" websites going?
The answer isn't obvious, given that banner ads are obtrusive and don't
after all bring in that much revenue (we've avoided them from the start).
Pretty much every small web publisher is hoping that some system of micropayments
or -donations comes along soon and now Amazon.com is leading the way by
launching, today, something it calls the "Honor System": it allows readers
of a site to make small online contributions toward its upkeep (see
this site's front page).
As you can imagine, we'd like to be able to purchase better page construction
and FTP software, keep expanding our ListBot-hosted mailing list without
having to put ads in it, buy somewhat more deluxe hosting services, subscribe
to more journals that serve as sources for our kinds of stories, get out
to more conferences other than the ones that pay us to come speak, and
-- who knows? -- maybe even develop a few banner ads of our own to let
more new readers know about Overlawyered.com. And now you
can help out toward the site's continuation and expansion by clicking Amazon's
"Honor System" box where you will learn how to make a small donation, much
as if you were buying or subscribing to a print newsletter or magazine.
You can use your credit card, the donations can be quite micro in nature
-- a dollar or two, for example -- and no information about you will be
shared with us, which means you will have to accept our gratitude in a
very general way (again, see this site's front
page). We also urge you to check out the roster of other
participating sites that Amazon is publicizing as part of the system's
launch -- it includes some gems.
February 5 -- Caesarean
rate headed back up. "The number of US women giving
birth by caesarean section is rising rapidly, signaling an apparent end
to an ambitious public health effort over the past decade to reduce the
nation's C-section rate. With about one in four babies born by C-section
in the late 1980s, rates began to fall after health authorities warned
that the numbers were unnecessarily high and that too many surgeries were
motivated by doctors' fear of lawsuits over vaginal deliveries."
(Shari Roan, "C-section rates rise after 1-year decline", L.A. Times/Boston
Although a large volume of malpractice
litigation blames cerebral palsy (CP) in newborns on asphyxia of the
infant during labor (which is often, in turn, attributed to doctors' failure
to perform a timely C-section), much of the research would "indicate that
there is poor, if any, correlation" between most markers for asphyxia and
the development of CP in infants, writes the chairman of the ob/gyn department
at University of Texas, Houston, Medical School (Larry C. Gilstrap III,
MD, "Obstetric antecedents of cerebral palsy: What we know and don't
18 - 21, 2000). And five years ago a literature review
for the state of Minnesota found that electronic fetal monitoring (EFM)
had proved of uncertain benefit at best in improving neonatal outcomes
but was in nearly universal use due to liability concerns, and in turn
led to a higher rate of Caesareans and other surgical interventions: "The
widespread use of EFM during labor appears to be driven, in part, by medicolegal
concerns by physicians." ("Fetal Heart Rate Assessment During Labor",
State of Minnesota Health Advisory Technology Committee, 1996).
February 5 -- Welcome
Wall Street Journal readers. Friday's "Taste"
section credited us for the story (Jan. 31)
of the Ohio man who won an all-you-can-drink contest and then sued the
bar after drinking so much he fell down. ("Tony and Tacky: The Punch
2 (online subscribers only)). We've also racked up links/mentions
from, among many others, the Canadian
site LegalHumour.com; New
Hope, Pa. "Interesting Links";
Morning Fix; the Utah state library system (July
-- they call us "opinionated but interesting"); Laurie Ralston, Pepperdine
University, "Types of [Sexual] Harassment", last modified Oct.
26 (see "The 'Other Side' of Sexual Harassment"); Bob Gaines, Univ.
of North Carolina, Greensboro, "Sexual Harassment Resources", last updated
(deeming us a "somewhat conservative point of view"); the Kansas
Chamber of Commerce; and IRCpolitics.org.
February 5 -- Mysterious
portents. Tomorrow we expect to unveil a new feature
on Overlawyered.com, but we're not supposed to tell you what it
is yet. Now, is that mysterious enough to make you come back, or
February 2-4 --
Annals of zero tolerance: pointing chicken finger.
"An 8-year-old boy was suspended from school for three days after pointing
a breaded chicken finger at a teacher and saying, 'Pow, pow, pow.'" The
Jonesboro, Ark., school district, scene of a multiple shooting by a student
three years ago, maintains a zero-tolerance
policy on weapons, extending
in this case to edible objects used as pretend-weapons. "Kelli Kissinger,
mother of first-grader Christopher, said she believed the punishment was
too severe. 'I think a chicken strip is something insignificant,'
she said. 'It's just a piece of chicken.'" The school's principal
"said the school has zero-tolerance rules because the public wants them."
("Boy suspended for pointing chicken finger like gun", AP/CNN, Jan.
February 2-4 --
"Juries handing out bigger product liability awards".
Figures for cases collected by LRP Publications show a median award of
$500,300 in 1993 rising to $1.8 million in 1999, while plaintiff win rates
rose from 39 percent to 46 percent over the same period. Such numbers
must be weighed with extreme caution, since they represent only a sampling
of all cases (in fact, this group's numbers on jury awards rely on self-reporting
by winning lawyers, an obviously unscientific method vulnerable to manipulation),
since they jump around a lot from year to year, and since median figures
(half-higher, half-lower) are not nearly so useful as averages in trying
to gauge the overall impacts on society of such litigation. (The
median earthquake in India this year may have been quite moderate.)
Trial lawyers have their spin all ready: they've just gotten really
selective in taking cases, you see, so those they do file are the ones
that deserve much more money. They also call attention to the ongoing
decline in the number of product liability
cases filed in federal court, which has dropped steeply, from
32,856 in 1997 to 14,428 in 2000. Of course the main reason for this
is that they've been filing cases instead in state courts, perceived as
more plaintiff-friendly in recent years. (AP/CNN, Jan.
31; Geraldine Sealy, ABC News/Yahoo, Jan.
February 2-4 --
Crime does pay. Settling a lawsuit, the city of
Denver has agreed to pay $1.2 million to teenager DeShawn Hollis, "who
was shot by the police three years ago, moments after he had burglarized
a house." (Michael Janofsky, "Denver to Pay $1.2 Million to Young
Burglar Shot by the Police", New York Times, Jan.
February 2-4 --
AGs' inflammable policy. Royalty disputes between
state governments and oil and gas companies are not new, but state attorneys
general have lately taken to hiring private tort lawyers to press their
state's claims in exchange for a share in the booty, and the lawyers are
using their well-honed skills to whip juries into awarding sums far in
excess of the original dispute. Quotes our editor (James Glassman,
"Publicity-seeking politicians and contingency-fee lawyers corrupt the
law", TechCentralStation/ Reason Online, Jan.
February 2-4 --
One million pages served on Overlawyered.com.
Last month set a new traffic record, as did last week ... thanks for your