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ARCHIVE -- MAY 2002 (I)

May 10-12 -- Lawyers say taxpayers owe $41 million to smuggled illegals' survivors.  Two Yuma, Ariz. lawyers have filed wrongful death claims with the federal government's Fish and Wildlife Service demanding $3.75 million each for the families of eleven illegal immigrants who died in May 2001 while being smuggled through a desolate section of the Cabeza Prieta National Wildlife Refuge in southern Arizona near the Mexican border.  The suit charges the government with failing to authorize the placement of water stations intended for use by unlawful visitors, though it knew smugglers of immigrants were active in the desert area.  "It's absolutely untrue that anyone ever proposed to put stations where the aliens perished," said Tom Bauer, spokesman for the Fish and Wildlife Service regional office in Albuquerque. (Hernán Rozemberg, "Families sue U.S. over Mexican migrants who died in desert", Arizona Republic, May 9; David J. Cieslak, "Families of migrants who died last year file claim against U.S. government", Tucson Citizen, May 8). Update May 21, 2004: judge allows further time for plaintiffs to prove case. (DURABLE LINK)

May 10-12 -- "Judge allows powwow lawsuit".  It's sensitivity vs. sensitivity: in Minnesota state court a group of female drummers are pursuing a sex discrimination law over their exclusion from the ritual drumming at a Native American powwow held annually at the University of St. Thomas.   "Larry Smallwood, part of the Little Otter Singers drum group from the Mille Lacs Indian Reservation in central Minnesota, said women singing around a drum is a 'cultural no-no.'"  However, a judge denied the university's motion to throw out the case, ruling (among other things) that "the school failed to show that drumming is protected speech under the First Amendment". (Hannah Allam, St. Paul Pioneer Press, May 7).   (DURABLE LINK)

May 10-12 -- Updates.  More developments in stories familiar to longtime readers: 

* In a case arising under San Francisco's pioneering ordinance banning discrimination on the basis of height and weight, "Jennifer Portnick, a 240-pound San Francisco aerobics instructor rejected by Jazzercise because of her size, has reached an agreement under which the firm will drop its requirement that instructors look fit." (see Feb. 27) (Elizabeth Fernandez, "Exercising her right to work", San Francisco Chronicle, May 7). 

*  Blackford High School in Hartford City, Ind., has relented and is going to allow Rob Mahon to attend its prom after all despite the positive results on his blood test for nicotine (he is 18 and it is legal for him to smoke) ("School Reverses Prom Ban For 18-Year-Old Smoker", IndyChannel, Apr. 26)(see Apr. 26)(via WhatTheHeck.com) 

* In the acrimonious litigation between the members of classical music's Audubon Quartet (see Nov. 13, 2001 and links from there), "Estranged violinist David Ehrlich, who won a $611,000 judgment against his former quartet colleagues over his sudden dismissal two years ago, has filed motions in court that could force Clyde 'Tom' Shaw and his wife, Doris Lederer, to sell their Blacksburg home in order to pay their court-imposed debt." (Kevin Miller, "Spurned violinist seeks house", Roanoke Times, May 9; documents, defendant Shaw's site)(& see letter to editor, Jun. 14, recommending website critical of defendants)(Update Dec. 4, 2005). (DURABLE LINK)

May 9 -- The rewards of growing mold together.  "Toxic mold" claims are among the fastest-growing source of lawsuits and claims against property insurance companies.  Now various government agencies in Texas are investigating suspected unsavory practices in the thriving business that has sprung up of assisting homeowners to file such claims.  After first moving the homeowner into a rental, some dishonest adjusters proceed to "put wet towels in the house, spray down the draperies, hose down furniture -- anything to increase moisture.  They close the windows and crank up the heat.  It's called 'cooking' the house, and it's a recipe for sprouting mold and bilking insurance companies out of thousands of dollars."  The scams sometimes are unbeknownst to homeowners and at other times go on with their collusion.  Alan Bligh, president of the Better Business Bureau in the Coastal Bend area of Texas, calls the practice "fairly widespread", saying there are both legitimate and dishonest firms operating locally within the "mold remediation" business, which has mushroomed in short order from two or three companies to about 100.  Insurance companies that delay paying mold claims or subject them to too much scrutiny can face punitive damages from angry jurors.  (Laura Elder, "'Cooked' houses burn insurers", Corpus Christi Caller-Times, May 5)(via CALA Houston).  See also Mike Vallante, "Calm the mold hysteria", Houston Chronicle, Apr. 26(DURABLE LINK)

May 9 -- House bill would cut off municipal gun suits.  A proposed "Protection of Lawful Commerce in Arms Act" would defend interstate commerce in guns from lawsuits brought on behalf of hostile local jurisdictions.  As of mid-April the bill had 215 co-sponsors in the House.  "When 219 members co-sponsor it the bill would likely be voted on by the full House.  Four more co-sponsors would help bring the battle between the gun banners and the firearms industry to a swift and honorable conclusion." (Tanya Metaksa, "Stop the War Against the Gun Industry", FrontPage, Apr. 16; H. Sterling Burnett, National Center for Policy Analysis, "Congress should stop lawsuits against legal firearms, Apr. 18; "House GOP seeks to end handgun suits", AP/Washington Times, Apr. 19).  (DURABLE LINK)

May 9 -- "'Little' done for firm, Rendell says".   It's commonplace for politicians on leaving office to step into remunerative partnerships at big law firms, even when (especially when?) those law firms do a lot of business with the public entities associated with the politicians.  What has raised eyebrows in the case of former Philadelphia mayor and Pennsylvania gubernatorial candidate Ed Rendell is his superior candor: he freely admits that he has done "very little work" to justify the $250,000 he draws annually from the prominent Philadelphia law firm of Ballard, Spahr, Andrews & Ingersoll.   (Tom Infield and Thomas Fitzgerald, Philadelphia Inquirer, Apr. 23).  (DURABLE LINK)

May 8 -- Zoo asserts animals' "medical privacy".   The Washington Post had asked to see the medical records of a beloved giraffe after its death, but no go: "The Smithsonian Institution's National Zoo has taken the position that viewing animal medical records would violate the animal's right to privacy and be an intrusion into the zookeeper-animal relationship."  On the other hand, the zoo does allow curious visitors to view the matings and other intimate habits of reclusive creatures through its PandaCam, ElephantCam and Naked Mole-Rat Cam.  (James V. Grimaldi, "National Zoo Cites Privacy Concerns in Its Refusal to Release Animal's Medical Records", Washington Post, May 6).  (DURABLE LINK)

May 8 -- Mayor Bloomberg goes to bat for liability reform.  "Having made little headway so far in his efforts to get the State Legislature to pass the bills he is seeking to limit damages against the city, the mayor has now turned his sights on the City Council. Mr. Bloomberg said that he would submit two bills to the Council tomorrow to make the city less vulnerable to slip-and-fall lawsuits.  'All too often, people file tort claims for the same reason they file lottery tickets,' he complained at a news conference in City Hall."  (Michael Cooper, "Mayor Fights to Reduce Damage Awards", New York Times, May 7 (reg)).  See Steven Malanga, "Tort City", City Journal, Spring 2001; "Tort Trauma", Summer 2001. (DURABLE LINK)

May 8 -- Blumenthal sues own client.   Connecticut Attorney General Richard Blumenthal, whose never-ceasing quest for turf and publicity frequently earns him mentions in this space, has filed suit against a body called the Connecticut Siting Council in an attempt to stall construction of an underwater cable line that would supply electric power to New York's Long Island.  There's just one problem: the Council is a unit of the state government and thus is among his own clients, being in fact "represented in court by members of Blumenthal's office."  (Thomas Scheffey, "Can Connecticut AG Sue His 'Client'?", Connecticut Law Tribune, April 30). (DURABLE LINK)

May 7 -- "Crime and Punitives".  The Supreme Court's jurisprudence in civil punitive damage cases like BMW v. Gore -- where it limited a state court's multi-million-dollar punitive award over a new car's undisclosed paint touch-up -- turns out to have various organic connections with the course of its jurisprudence on arguably excessive criminal sentences, like those handed out under California's "three-strikes" law.  Why?  "Because, when it comes to punishment, the Court should try to be consistent -- even across the line dividing criminal law from civil law and the line dividing the Eighth Amendment from the due process clause.  This isn't just my opinion; it's the Court's."  (Evan Schultz, Legal Times, Apr. 19). (DURABLE LINK)

May 7 -- "Big government ruined my long weekend".   A couple goes off for a brief getaway to the mountains, then realizes that the wife has left behind her prescription medication.  Think they can convince a standby doctor to authorize four pills so that she can make it through the weekend?  Forget it: "Between the War on Drugs and the liability climate, doctors are scared to death to make this kind of accommodation." (Jim Henley, Unqualified Offerings blog, Apr. 6). (DURABLE LINK)

May 7 -- "Reno owes the public answers".   If former attorney general Janet Reno is going to present herself to the voters of Florida as a candidate for governor, the least she can do is answer questions -- raised anew by a PBS "Frontline" documentary last month -- about whether her prosecution as Dade County district attorney of the sensational Country Walk ritual-child-abuse case resulted in the imprisonment of innocent defendants (editorial, St. Petersburg Times, Apr. 28; PBS/WGBH, "The Child Terror"; Dorothy Rabinowitz, "The Pursuit of Justice in Dade County", Wall Street Journal, Oct. 28, 1996, reprinted at McGill University site; Rael Jean Isaac, "Janet Reno and her Record as a So-Called Champion of Children", Independent Women's Forum, Apr. 27, 2000). (DURABLE LINK)

May 6 -- Fearing ethnic profiling charges, bureau ignored flight school warning.   "An F.B.I. agent in Phoenix told counterterrorism officials at the bureau's headquarters last July that he had detected an alarming pattern of Arab men with possible ties to terrorism taking aviation-related training, and urged a nationwide review of the trend, according to F.B.I. officials.  The agent's recommendation was not acted upon before Sept. 11, however ... F.B.I. officials said there was reluctance at the time to mount such a major review because of a concern that the bureau would be criticized for ethnic profiling of foreigners."  (James Risen, "F.B.I. Told of Worry Over Flight Lessons Before Sept. 11", New York Times, May 4; Kausfiles, "Hit Parade", scroll to May 5). (DURABLE LINK)

May 6 -- ReplayTV copyright fight.  Television networks are suing the maker of the ReplayTV device, arguing, among other things, that their copyright is infringed by the device's power to let users skip commercials during playback.  To Steven den Beste, this is a bit like demanding that scissors be banned "because they might be used to clip articles out of magazines."  (U.S.S. Clueless, May 4; Christopher Stern, "Privacy Fight Centers on Ad-Zapper", Washington Post, May 4). (DURABLE LINK)

May 6 -- "Unharmed woman awarded $104,000".   "A woman who believes she was poisoned by a chemical spill in 1993 has been awarded [C]$104,000 by a Manitoba court, even though the judge acknowledged the woman is likely mistaken in her belief."  Lynette Mary Sant, 55, reported being exposed to fumes from a broken bottle of the chemical phenol.  "Medical tests found no evidence of liver, kidney or nervous system damage."  When Sant was examined at a clinic, "it was found that while she exhibited symptoms when exposed to phenol, she also exhibited symptoms when exposed to distilled water."  (Francine Dubé, National Post, Apr. 26). (DURABLE LINK)

May 3-5 -- Australian roundup: taxpayers pay for schoolyard fight.  "A young man involved in a schoolyard punch-up with another student seven years ago was awarded more than [A]$1 million in damages yesterday because the teachers failed to provide adequate playground supervision."  At Narrandera High School, according to the record of the case, 13-year-old David Michael Griffin "and another student, Joshua Ferguson, met for an 'arranged fight' next to the basketball court, in the schoolgrounds, at lunchtime on March 1, 1995.  Mr Griffin threw the first punches and Mr Ferguson hit back, knocking him to the ground." (Ellen Connolly, "Former student wins $1m over injuries", Sydney Morning Herald, May 1).  "An entrepreneur schoolboy trying to save up for a skateboard by selling flowers has fallen foul of local laws by failing to take out a A$5 million ($2.70 million) public liability insurance policy." ("Law Puts Schoolboy Flower Seller Out of Business", Reuters, Apr. 23).  And a dispute over team standings in the Australian soccer league may proceed to litigation (Michael Cockerill, "Con-undrum: who is in the finals?", Sydney Morning Herald, Apr. 7).  Plus: coverage of medical liability insurance crisis ("Health Under Threat", news.com.au, May 3 and other dates(DURABLE LINK)

May 3-5 -- Update: Defend yourself in print and we'll sue (cont'd).  In a decision deplored alike by business groups and the ACLU, the California Supreme Court ruled Thursday by a 4-3 vote (PDF format) that that companies can be sued for false advertising over policy statements made in "issue ads".  The Nike Corporation had bought ads defending its record on the use of so-called sweatshop labor and was promptly sued by activists whose "private attorney general" action claimed that the ads violated the state's fair advertising law (see Feb. 13).  "What [Thursday's] decision means," says Deborah La Fetra of the Pacific Legal Foundation, "is that one side of the debate gets full free speech protection, but a corporation trying to defend itself is subject to strict liability." (Mike McKee, The Recorder, May 3).  UCLA free speech specialist Eugene Volokh, whose already-indispensable new blog it seems we are beginning to quote daily, has the perfect instant analysis complete with a hypothetical on speech by abortion clinics that may help drive home why this new decision is anything but "progressive" (May 2). (DURABLE LINK)

May 3-5 -- "It's No Laughing Matter".  The Chicago Tribune finds harassment law trainers continuing to warn management against tolerating an atmosphere of joking in the workplace: "once a disgruntled employee files a lawsuit, 'they'll remember every inappropriate joke (ever) told,' said Malcolm Kushner, who teaches harassment classes to attorneys in Santa Cruz, Calif.  'Even if they laughed at it (at the time), it looks horrible to a jury.'" (T. Shawn Taylor, Chicago Tribune, Apr. 28). (DURABLE LINK)

May 1-2 -- What big teeth you have, Sen. Edwards.  In this week's New Yorker, Nicholas Lemann profiles ambitious trial lawyer/Sen. John Edwards of North Carolina, who is itching to run for President "as a trial lawyer".  ("The Newcomer", May 6, not online.) Noteworthy line: "Throughout much of the South, trial lawyers are, in effect, the left: an influential group that, instead of converting populist sentiment into redistributionist legislation, converts it into big rewards for a small number of people who have stories of having been screwed by powerful, uncaring figures."  Mickey Kaus nails Edwards' demagogic "us against them" populism as exactly the sort of thing you'd expect from one who chose his route to the top: "Trial lawyers like Edwards, Lemann notes, specialize in a theatrical form of scapegoating, taking complicated disasters and finding a 'villain' with deep pockets." (Kausfiles, "Hit Parade: The pretty ShrumPuppet", scroll to Apr. 30; InstaPundit, Apr. 30). 

An analysis by Roll Call finds that Edwards (D-N.C.) "has relied almost entirely on his trial lawyer friends" to underwrite his $1.39 million war chest.  "Of that total, $1.19 million -- 86 percent -- came from lawyers, their employees or their family members, .... No other Congressional leader or potential presidential contender has such a heavy reliance on a single industry for their leadership PAC.  Edwards ... makes a point of stressing that he won't take money from PACs or registered lobbyists", but conveniently trial lawyers don't need to couch their donations in either of those forms.  (Paul Kane, "Trial Lawyers Fuel Edwards' Efforts", Roll Call, Apr. 25; see Ribstone Pippin blog, Apr. 28) (& welcome Andrew Sullivan readers). (DURABLE LINK)

May 1-2 -- Ad model sues tobacco company.  "An Arkansas man who said he worked as a model in cigarette ads in the late 1970s sued R.J. Reynolds Tobacco Co. yesterday, saying he experienced years of emotional distress from enticing people to smoke.  Raymond Leopard of Little Rock seeks at least $65 million in damages in the lawsuit filed in U.S. District Court ... The suit said Mr. Leopard worked as the 'Winston Man' from 1978 to 1980, pictured in Winston cigarette ads in popular magazines. The suit said he never smoked Winstons. ... 'His reputation has been forever tarnished and his personal credibility diminished,' the suit said."  ("Former tobacco model sues Reynolds over 'reputation'", Washington Times, Apr. 30). (DURABLE LINK)

May 1-2 -- "Injudicious conduct".  National Law Journal's annual roundup of bad behavior on the bench includes cases mentioned previously in this space (Amundson, Couwenberg) plus a bunch of others (Gail Diane Cox, National Law Journal, Apr. 23). (DURABLE LINK)

May 1-2 -- "Don't sue for Israel".  Following legal threats, a small Texas automotive exporter has apologized for apparently having refused to do business with Israeli firms and citizens.  When the story circulated last week, our friend James Taranto at the WSJ/OpinionJournal's "Best of the Web" audibly hoped that the exporter would get in trouble under the odd "antiboycott" law that makes it a federal offense, inter alia, for an American company to engage in "actual refusal to do business with or in Israel".  ("Best of the Web", Apr. 25; W. Gardner Selby, "Texan's fax causes international fuss", San Antonio Express-News, Apr. 30).  But Sasha Volokh points out the inconsistency of the antiboycott law with the principle of free association, connects that theme nicely with the Boy Scouts v. Dale case  and hate speech litigation, and adds a bunch of useful links ("Don't sue for Israel", Volokh brothers blog, Apr. 28). (DURABLE LINK)

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