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ARCHIVE -- MAY 2002 (II)

May 20-21 -- "Next tobacco" watch: gambling.  "One of the first state attorneys general to sue the tobacco industry told a problem gambling conference Thursday that the gaming business will be the next target for lawyers seeking compensation for addicts.  As gambling continues to expand in Connecticut and across the country, 'somebody is going to sue somebody,' former Massachusetts Attorney General Scott Harshbarger told participants at the New England Conference on Problem Gambling."  Harshbarger, who now heads the private group Common Cause, said "there is a dramatic public health cost, there is a dramatic social cost" to the wagering habit.  "In Canada, Harshbarger's prediction is already reality.  Last week, a judge allowed a class-action lawsuit against Loto-Quebec to go forward.  The lawsuit seeks hundreds of millions of dollars in damages on behalf of people addicted to video lottery terminals." (see June 20, 2001)  (Rick Green, "Problem-Gambler Suits: Activist Foresees Damage Claims", Hartford Courant, May 17) (see May 31, Jun. 28-30).  (DURABLE LINK)

May 20-21 -- "A Fence Too Far".  "Whether you believe that this country should be tightening copyright protections online or loosening them, you should oppose the Hollywood- and record industry-endorsed bill introduced in March by Sen. Ernest Hollings of South Carolina," argues commentator Roger Parloff.  "While the draft legislation, known as the Consumer Broadband and Digital Television Promotion Act, pursues plausible goals, it seeks to achieve them by authorizing mammoth government intrusion into the design of computer hardware and software."  Although Parloff considered Napster illegal and views the DMCA as constitutional and sensible, he draws the line at the latest: "The prospect of gumming up the works of the globe's most exuberant engine of technological innovation and prosperity by subjecting it to bureaucratic notice-and-comment rule-making is unthinkable. ... If controlling digital property requires government intervention on this scale, then there should be no such control."  (American Lawyer, May 15).  For more critiques of the Hollings bill, see many items and links on InstaPundit. (DURABLE LINK)

May 20-21 -- "Trial Lawyers Go to War Against Arbitration".  Trial lawyers keep trying to kill arbitration as an alternative to the lucrative litigation process, and Stephen J. Ware, professor of law at Samford University, blows the whistle on them in a series of new Cato Institute publications ("Arbitration Under Assault: Trial Lawyers Lead the Charge", Cato Institute Policy Analysis #433, Apr. 18; news release; "Trial Lawyers Go to War Against Arbitration", Cato Daily Commentary, May 3).  Ware also rebuts the Nader-founded litigation lobby Public Citizen, which recently "released a study claiming that it costs significantly more to resolve disputes through arbitration than through the court system".  ("Public Citizen Arbitration Study Contains Errors, Half-Truths and Exaggerations, Scholar Says", Cato news release, May 3; "Arbitration costs are so high, many victims are unable to pursue complaints, new Public Citizen report reveals", Public Citizen news release and link to study, May 1).  It might be noted, incidentally, that the same profession that does so much sniping at arbitration when conducted by anyone else is perfectly free to get its clients to enter binding arbitration agreements:  "Lawyers can include arbitration clauses in retainer agreements for fee disputes and malpractice claims so long as the client consents after receiving full disclosure, an American Bar Association ethics panel concluded". ("ABA Panel OKs Arbitration Clauses in Retainers Based on Informed Consent", New Jersey Law Journal, Apr. 16).  We hope the lawyer members of ATLA and similar groups will show the sincerity of their opposition to arbitration by pledging never to make their own clients sign such an arbitration agreement.  (DURABLE LINK)

May 20-21 -- "The Trials of John Edwards".  The prospective White House run of trial lawyer/Senator John Edwards might be just what's needed to politically energize the nation's doctors at last -- in opposition to Edwards, that is (Radley Balko, "Malpractice Suits Driving Out Doctors", FoxNews.com, May 9).  In National Review Online, Byron York takes issue with Edwards' rough handling of Fifth Circuit judicial nominee Charles Pickering: "Edwards's performance was almost a parody of the bad-guy trial lawyer.   In an aggressive cross-examination, Edwards relied on misleading questions, misrepresented premises, and unfounded conclusions as he tried to force Pickering to admit wrongdoing. Although Edwards's style was extraordinarily smooth and polished, it was precisely the kind of exhibition that reinforces the worst images of trial lawyers — whether they are running for president or not." ("The Trials of John Edwards", May 6).  See also Eric Dyer, "Conservative detractors taking swipes at Edwards", Greensboro (N.C.) News-Record, May 12;  Joshua Green, "John Edwards, Esq.", Washington Monthly, Oct. 2001; Ned Martle, "Starting Gun", New York, May 28, 2001(DURABLE LINK)

May 17-19 -- Flowers, perfume in airline cabins not OK?  "The Canadian Transportation Agency has issued a landmark ruling that could affect what passengers are allowed to take on airplanes, including pets, flowers and even the perfume they wear.  The CTA ruled that allergies can be considered a disability and said it will investigate seven complaints against Air Canada by passengers who had allergic reactions to dogs, cats, flowers and paint."  The agency's mandate includes the removal of "undue obstacles" for disabled travelers.  (Paul Waldie, "Allerge ruling nothing to sneeze at", Globe and Mail, May 14).  For more on anti-scent policies in Canada, see Apr. 24, 2000.   (DURABLE LINK)

May 17-19 -- Charged $16,000 for brief he copied from book.  The Iowa Supreme Court has given a six-month license suspension to attorney William J. Lane for claiming to have spent 80 hours writing a brief which the court found he had in fact mostly copied from Barbara Lindemann's and Paul Grossman's "Employment Discrimination Law," a standard 1996 treatise.  Lane, of Sioux City, had submitted an overall $122,000 fee bill to the court for representing a client in an Americans with Disabilities Act case, including $16,000 for writing the brief in question.  "Lane plagiarized from a treatise and submitted his plagiarized work to the court as his own," the court said. "This plagiarism constituted, among other things, a misrepresentation to the court."  Lane's overall fee award in the case was reduced by about five-sixths, to $20,000.  (Mike Glover, "Lawyer's License Suspended for Plagiarizing Treatise", AP/Law.com, Apr. 4).  (DURABLE LINK)

May 17-19 -- Ob/gyns warn of withdrawal.  "On May 6, most of the obstetricians in Las Vegas adopted a policy of rejecting newly pregnant women as patients, even if the woman was an existing patient."  (Wendy McElroy, "Lawsuits Fueling Health Care Crisis", Fox News, May 14).  The American College of Obstetricians and Gynecologists has issued a "Red Alert" warning that shortages of liability insurance may soon leave many areas of the country, particularly rural areas, without adequate obstetric services.  (Ed Susman, "Obstetricians issue alert on insurance", UPI Science News, May 6; Marilyn Elias, "Obstetricians dwindle amid high malpractice costs", USA Today, May 6).  And at medical weblog MedPundit, Sydney Smith offers a rebuttal to an op-ed piece in which the president of the Association of Trial Lawyers of America blames the malpractice crisis on "negligence of bad doctors and the bad business decisions of insurance companies".  (MedPundit, May 15; Leo V. Boyle, "It's not patients' fault when insurance earnings dip", Akron Beacon Journal, Apr. 14) (DURABLE LINK)

May 16 -- TV's lawyer dramas: why they hit home.  "What many of these shows do best is attack the legal system for being obsessed with achieving correct legal results even if the outcomes are morally wrong. ... The greater cynicism and resentment [in jokes about lawyers] is reserved for the moral lapses and legal hair-splittings, the way in which the demands of lawyering furnish a license to engage in dishonest behavior. 'Lawyers go into court and deny what they know to be true,' said William Finkelstein, another former lawyer and executive producer of 'L.A. Law,' who produced and wrote [a reunion show for the series that aired May 12].  'Whenever anyone does that, it doesn't square with our vision of public morality, and on television we try to get underneath that, or reject it entirely.'" (Thane Rosenbaum, "Where Lawyers With a Conscience Get to Win Cases", New York Times, May 12)(reg).  Meanwhile, the American Bar Association is the latest establishment law group to conduct a public survey finding that lawyers are poorly regarded by the public, a phenomenon it chooses to blame -- you guessed it -- on negative media portrayals rather than anything real about today's legal system that the media might be picking up on.  (Mary P. Gallagher, "ABA Survey Finds Lawyers Among Lowest-Regarded U.S. Professions", New Jersey Law Journal, May 7). (DURABLE LINK)

May 16 -- Catharine MacKinnon, call your office.  Latest case illustrating how sexual harassment law can be turned to purposes rather remote from those one associates with feminism: "In a federal lawsuit brimming with biblical references, a Tennessee administrative law judge charges that her supervisors have created a hostile work environment for women and that she has been the victim of discrimination because of her religious beliefs."  The lawsuit by Blair Scoville Morgan, 45, against her employer, the Tennessee Department of State, charges that co-workers circulated sexually explicit jokes in email and that "her religious belief that homosexuality is a sin puts her at odds with someone in her office".  "'The plaintiff is a Bible-believing Christian who holds to the orthodox belief that the Bible is absolutely true; the Bible contains no mistakes; and the Bible has no contradictions or inconsistencies,' her suit states, before listing citations from Psalms, Proverbs, John and Revelations.  Biblical references aside, the suit is also filled with language often found in federal discrimination cases."  Morgan charges that she was assigned a heavier workload and drew poorer evaluations than she deserved, and that "when she posted notices on department bulletin boards about the National Day of Prayer last year, they were taken down without her permission".  (Rob Johnson, "Judge files bias suit against state office",  The Tennessean, May 7). (DURABLE LINK)

May 16 -- Annals of zero tolerance: steak knives, finger "guns".  The Washington Times has an overview of zero tolerance controversies which mentions this site (Valerie Richardson, "Zero tolerance takes toll on pupils", May 13).  In Leesburg, Ga., 18-year old Lee County High School senior Chet Maine "was expelled three weeks before graduation after school officials found two steak knives in the bed of his pickup truck. ... Maine claimed the knives were left over from a weekend camping trip he had taken with friends. But the county school said it was bound by a state zero-tolerance policy for weapons in school."  (AP/WTLV (Fla.), May 8).  In Colorado, "Dry Creek Elementary school has disciplined seven boys for playing a game of 'army and aliens' in which they used their fingers as imaginary weapons and pretended to shoot creatures in the background. ... And, in an Orwellian touch, at least one student was interrogated by school officials who asked whether his family had real guns at home." ("Zero common sense" (editorial), Denver Post, May 15; Robert Sanchez, "Zero tolerance turns into 100 percent trouble", Rocky Mountain News, May 14; "Overreacting to gun games" (editorial), May 15; Mike Littwin, "Not to point fingers, but schools really need to get a grip", May 16).  At Mellon Middle School in Mt. Lebanon, Pa., 11-year-old Becca Johnson was suspended for drawing stick-figure doodles of teachers with arrows through their heads, in a moment of frustration after she had done badly on a test; the same week, "a 17-year-old in Fayette County, Ga., was suspended and arrested when school officials found a machete he used in his part-time landscaping business in the back of his truck, which he'd driven to school." (Dean Schabner, "Zero for conduct", ABCNews.com, May 8).  (DURABLE LINK)

May 14-15 -- Officious intermeddlers, pet division.  Animal-rights lawyers are looking for the perfect chimp case to establish their right to file legal actions on behalf of animals; U. of Chicago law prof and frequent New Republic contributor Cass Sunstein, like Harvard's Larry Tribe (see Apr. 29), seems on board with the plan.  The article's scariest bit appears toward the end, where the executive director of the Animal Legal Defense Fund says the fund is getting involved in "custody battles over pets" such as cats and dogs: "the fund has been submitting legal briefs to the courts, suggesting that judges look at the case in terms of the animal's interest." Just what divorce law needs: an influx of ideologically motivated outside lawyers filing new paperwork to which spouses will have to pay their lawyers to respond, and perhaps urging judges to impose "remedies" over the objections of both human parties.   And how long before they start asking the judge to subtract a suitable fee from the marital estate to compensate them for their animal-advocacy efforts?  (Amanda Onion, "Fighting for Moe: Activists Pursuing Legal Status for Animals One Case at a Time", ABC News.com, May 13).    P.S.  Or could "custody battles over pets" refer to something other than family law cases?  The ALDF website doesn't seem to mention any cases fitting that description. (DURABLE LINK)

May 14-15 -- New York Times endorses liability reform!  With respect to lawsuits against City Hall, at least.  Well, it's a start ("Slip, Fall, Collect" (editorial), May 13 (reg)). (DURABLE LINK)

May 14-15 -- "Tilting the Playing Field".  While on the subject of pleasing if belated developments at the Times, the paper has now officially taken note of the devastation visited by the federal government's Title IX on "smaller" men's collegiate sports such as track and field, wrestling, and diving (Bill Pennington, "More Men's Teams Benched, As Colleges Level the Field," New York Times, May 9 (reg)) (our take on Title IX).  See also Kathryn Lopez, "Benched at Bowling Green", National Review Online, May 10) (men's sports at Bowling Green State U.)  In a new book entitled Tilting the Playing Field, Jessica Gavora not only recounts the sad history of quota-mongering in collegiate sports participation but warns that feminist litigators are rapidly pushing the mandates of Title IX into academic areas.  Perhaps most alarming is the prospect of an assault on numerical imbalances in the hard sciences: "to get the numbers right, universities likely will end up having to discourage men from pursuing scientific and engineering careers."  (Nick Schulz, "Feminism vs. Sports and Science", TechCentralStation, May 10). (DURABLE LINK)

May 14-15 -- The mystery of the transgenic corn.  In March a federal judge approved the settlement of a class action lawsuit filed after the disclosure that genetically modified corn had found its way into products on grocery shelves in violation of an EPA permit which gave it the green light only for use as animal feed.  The food companies "will attach $6 million in coupons, each good for a dollar off, to packages of their products. ... The Chicago law firm of Krislov and Associates will receive $2.4 million for filing the class action lawsuit on behalf of consumers who said they suffered allergic reactions from eating food products that contained the genetically modified corn."  Too bad the case settled, since we would have looked forward to hearing the expert testimony about those claimed allergic reactions (Mike Robinson, "Judge Approves $9M Settlement in Engineered-Corn Suit", AP/Law.com, Mar. 8). (DURABLE LINK)

May 13 -- "Friends Don't Let Friends Plead Guilty".  This slogan, for a lawyer who defended accused drunk drivers, made for "one of the most effective ads I've seen", though "I'm not sure I agree with the sentiment, either as an ethical matter or a pragmatic matter".  (Eugene Volokh, Volokh brothers blog, May 10). (& see letter to the editor, Jun. 14 (pointing out website of L.A. law firm that has trademarked this phrase)). (DURABLE LINK)

May 13 -- "The Tort Mess".    "It's even worse than you think."  Cover story in Forbes tours some of the best-known lawsuit disaster areas including Mississippi medical practice, asbestos litigation, condo construction-defect suits (Michael Freedman, Forbes, May 13).  Plus: opinion pieces on similar themes (Alex F. Rubalcava, "The Cost of Legal Extortion"", Harvard Crimson, Apr. 17; Pejman Yousefzadeh, "Delay No Longer", TechCentralStation, Apr. 8).  (DURABLE LINK)

May 13 -- Bush's big mistake on mental health coverage.  Commentators have given the president pretty much a free pass on his call for forcing health insurance plans to cover mental-health services at some rate that reflects "parity" with therapy for physical illness.   Potential critics may hold their tongues for fear of being charged with ignorance about mental illness or animus toward those it affects.  But the "Bush plan is vintage Clinton: Give Washington the credit for doing good, but send the private sector the bill, and let someone else worry about the consequences." (Steve Chapman, "Delusions on mental-health treatment", Chicago Tribune, May 9).  (DURABLE LINK)

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