August 14-15 — The stuffed-grape-leaf standard. “Ellen Vargyas, senior counsel at the National Women’s Law Center, said the $300,000 in damages, per incident, awarded to victims of sexual harassment, as specified in the 1991 Civil Rights Act, ‘are not exactly what I would call a pot of gold.’…To me, $300,000 is not only a pot of gold, but it equals the bottom-line value of approximately 480,000 grape leaves, stuffed and rolled. When you roll and stuff grape leaves for a living, or toss pizza crusts for ten hours a day, money has a way of taking on new meaning. ‘Let’s see, you mean if I lose this lawsuit, I will have to roll and stuff grape leaves nonstop from now until I’m 68?'” — Sarah J. McCarthy, Pittsburgh restaurant owner (reprinted in Voice of a Few Americans/Common Sense webzine; originally appeared in the Chicago Tribune April 3, 1995). (full story)
August 14-15 — Our award-winning errors. The “404 Not Found” message, or error page, is the one you encounter if you try to enter a misspelled, obsolete, or otherwise non-working address on a website, such as http://overlawyered.com/sue_for_fun.html. We’re pleased to announce that ours won the Cool 404 of the Day award (August 5) (link down at last check) from Cool404.com and also found its way into the 404 Research Lab‘s listing of Great 404s of the Web.
August 14-15 — ABA delegates defeat measure aimed at curbing “pay-to-play”. In something of a surprise, delegates narrowly (by less than 20 votes) turned down a proposed addition to the non-binding Model Rules of Professional Responsibility which would have declared it improper for lawyers or law firms to donate or raise funds for elected officials in exchange for legal work (see August 11 entry below). “‘It’s very, very tough [to change things] because lawyers are effectively the source of money for judicial campaigns’ and the campaigns of other state officials, including state treasurers,” according to Geoffrey Hazard, professor of law at the University of Pennsylvania and chairman pro tem of an ABA commission on ethics rules changes. Edward W. Madeira Jr. of Philadelphia’s Pepper, Hamilton is disappointed because the practice reinforces, in a reporter’s words, “public perception that judges favor the individuals and groups that contribute to their campaign funds.” (Janet Conley, Fulton County Daily Record — full story).
August 13 — “Somebody might trip.” At 80 St. Mark’s Place in New York’s East Village, in front of a locally famed repertory film theater, is a stretch of cement where stars like Gloria Swanson, Joan Crawford and Myrna Loy have left their hand prints, shoe prints and signatures over the years in a mini-homage to L.A.’s Hollywood Boulevard. Last year city inspectors decided the stretch of sidewalk was out of code compliance, and demanded that theater owner Florence Otway pave it over or remove it to be replaced by a conventional sidewalk. City spokesman Mark Patterson pointed out that its surface was uneven: “Somebody might trip,” he said, adding, “We don’t want people to trip and fall. The city might be liable.” (James Barron, “A Walk of Fame’s Melodramatic Turn”, today’s New York Times — link now dead). New York City, which pays out hundreds of millions a year in injury litigation, for many years has been the target of a huge number of sidewalk slip-and-fall claims; Richard Miniter wrote in 1996 that trial lawyers have fingered nearly 90 percent of the city’s blocks as having sidewalks that are in their view hazardous.
August 13 — Don’t link or I’ll sue! In a notorious 1997 episode, the Ticketmaster company asserted a legal right to forbid other websites from “deep linking” to order forms that resided on interior pages of its site, a practice that allowed visitors to bypass introductory pages containing ads Ticketmaster wanted them to see. Taken seriously, the notion of requiring linkers to come in only through a site’s front door would eviscerate much of the usefulness of the web (including sites like this); for example, unable as a routine matter to point to particular news stories, we’d have to point instead at the publisher’s top page and advise readers to start a cumbersome search for the content. So it’s worrisome that legal complaints over deep linking have reportedly led to a series of out-of-court settlements in which defendants have agreed to link only to a site’s top page.
The equities might seem to shift when a link points not to a integral page on the foreign site, but to just one of the resources composing that page, such as a graphic or an audio/video clip. If BigWebCo pays a composer to develop soothing background music for its site, can I really obtain the same background music for my site gratis by pointing at their audio file, imposing more work on their servers while I’m at it? The latest dispute, between Universal Pictures and a site called Movie-List that features trailers of forthcoming movies, may now have been resolved after either a clarification or a rethinking of Universal’s position, depending on how you read the correspondence between the parties that Movie-List’s proprietor, Jean-Pierre Bazinet of Ottawa, has posted. Universal litigation counsel Carolyn Hampton alarmingly wrote Bazinet that “you are not permitted to link to other sites that contain our copyrighted material without our authorization”. However, in later correspondence, Hampton said the company objected only to Movie-List’s linking directly to the video clips of trailers on its servers, and that it was free to link to the full webpage from which the clip was accessible, a resolution that Bazinet accepted. A noteworthy feature of the correspondence was the terrified attitude of Movie-List’s internet service provider, Simple-Net, which didn’t want to risk itself getting sued by the giant studio: “The situation is now that you must abide WHATEVER Universal insists upon,” it wrote Bazinet. “If not, we will have no choice but to suspend your site.” (see July 21 entry).
In his weekly column yesterday, Salon’s Scott Rosenberg warned against developing “a climate in which every Web author needs to check with every link target before putting up a page,” asking, “What about individual users — is “deep bookmarking” to become a problem too? How about passing around a “deep link” on a mailing list?” Other coverage and commentary on the issue has appeared in Wired.com, IT-Director.com, and from attorney Jeffrey Kuester.
August 12 — Age-bias law expands. It’s already easy to violate age-discrimination law without meaning to, and it keeps getting easier. California Gov. Gray Davis has signed a bill that makes it unlawful to target more highly compensated workers for layoffs — baldly rational though that policy may often be as an economic matter — on the grounds that high compensation is often a proxy for age. (AP, Aug. 4, link now dead). And the August 16 Time (not online) reports that trial is expected to begin soon on Michael Sisler’s suit against the Bergen Commercial Bank in Paramus, N.J., for discriminating against him based on his youth (he was given a vice presidency at the tender age of 25, but things didn’t work out). Most age-bias laws cover only workers over 40 and are “one-way”, providing a right to sue over preferences shown to younger but not older rivals, but New Jersey’s high court ruled in February (opinion) that the more ways to sue the merrier. (AP/Phila. Inquirer, Feb. 25, link now dead). Time’s John Cloud writes that eighteen other states have statutes that could be construed the same way as New Jersey’s: “next time you tell the new kid down the hall that he needs to pay his dues, you could end up paying them for him”.
August 12 — Even the chance of loser-pays helps keep ’em honest. It happened in response to some contempt of court that the judge found fairly egregious, and in a bankruptcy setting, where judges have unusual leeway, but it still reminds us that there’s nothing inevitable or foreordained about our being the one Western democracy that refuses to make litigants pay when they inflict harm on their opponents: U.S. Bankruptcy Judge Mary Walrath of Wilmington, Del. has ordered the pilot’s union to pick up Continental Airlines’ legal fees for having tried to relitigate claims settled in the airline’s 1993 reorganization. The pilots had rolled the dice in hopes of a $1-billion-dollar back pay bonanza based on seniority claims. (Delaware Law Weekly, July 28 —full story)
August 12 — Leave the Scouts alone. As happens often, the Chicago Tribune runs the most sensible editorial on last week’s New Jersey high court ruling, urging the Scouts to reconsider their policy of barring gays from membership but saying in the mean time the law’s role is to respect their freedom of association. Overlawyered.com‘s editor is quoted making similar points in Wendy Davis’s New Jersey Law Journal write-up.
August 11 — “Your perfect birth control…blocked?” Highly recommended: the September Glamour, which hit the stands yesterday with a major article by Leslie Laurence on trial lawyers’ devastating assault on Norplant, the long-lasting contraceptive that consists of tiny hormone-releasing rods inserted under the skin of a woman’s upper arm. Despite health professionals’ widespread view that the device is a valuable one whose risks are low, lawyers using billboards, TV ads and media scare campaigns have recruited an astounding 50,000 women to sue the manufacturer, concentrating originally on silicone-disease theories (since the device contains that substance) and then, after the collapse of the scientific basis for those theories, switching to claims based on side effects common to all hormonal contraceptives, such as weight gain and irregular bleeding. Glamour reports that many plaintiffs sued based on vaguely described side effects they’d never reported to their doctors, and that some, even after signing up to sue, continued to recommend the device to friends, said they were glad they’d used it, and went back to their doctors to have another set put in.
Norplant litigation has gone badly for the plaintiffs — “It was like she just wanted to hit the lotto” said a juror in Brownsville, Texas, after one verdict for the defense — but the legal success has come at devastating cost to the manufacturer, American Home Products, which might still at some point find their best option to be buying out the suits for some large sum despite their flimsy basis. One result, says the magazine, is a continued departure of capital from the contraceptive field; few firms will invest in researching new birth-control methods when it’s so easy to get caught up in a legal catastrophe. Leading entrepreneurial firms on the plaintiff’s side include Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole, with 17,000 cases, and Houston’s O’Quinn and Laminack, with more than 3,500 (see item for August 4, below) “If his side wins,” the article concludes of O’Quinn associate Arturo Gonzalez, “millions of women will lose.” The article is not online, but you can read a related piece by Fordham law professor Marc Arkin.
August 11 — Cited in Andrew Tobias’s online column. After starting with a classic list of wacky warning labels (“Warning: contains nuts” on a package of peanuts is one favorite; then there’s the packaging on an iron, “Do not iron clothes on body”) the personal-finance expert observes that “one reason for all this obsessive labeling is fear of lawsuits” and suggests this site as a resource for those who think things might have gotten out of hand. It’s only fair to point out in return that few have made a greater contribution toward public understanding of the absurdly overlawyered area of auto insurance than Andrew Tobias himself: see the discussion in his recent book My Vast Fortune, and don’t miss his devastating article in the October 1996 Worth on the politically fateful entanglements between trial lawyers and some well-known consumer advocates.
August 11 — No comparison. Speaking of which, an article in today’s New York Times (link now dead) on Japan’s famed sokaiya corporate shakedown-artists reports that they’re attempting to refurbish their image. The sokaiya have long been known for gathering dirt about business practices and publicizing it at shareholder meetings and elsewhere, a threat companies can avert only by making handsome payments to their syndicates. Now veteran sokaiya Kaoru Ogawa is trying to recharacterize his activities: “I’m the Japanese Ralph Nader,” he says. Times reporter Stephanie Strom calls the comparison “a stretch”.
August 11 — ABA thinks it can discourage “pay-to-play”. The vote, slated for the Atlanta meeting, was on a model rule aimed at curbing lawyers’ practice of contributing to politicians in exchange for official work. [The proposal was narrowly defeated in a delegate vote; see entry for August 14-15]. “[Currently if outside counsel] are going to be considered for legal work they have to be counted among the campaign contributors,” said Richard Phillips, head of the ABA’s business law section. “It’s a poor way to compete for legal work and it’s very destructive of the integrity of the government process”. One question is whether there’s hope of enforcing such a standard now that contingency fees for government work can turn lawyers into overnight billionaires — an immensely more lucrative and thus more tempting kind of patronage than the hourly-fee transactional work that raised the original concerns. (Reuters, link now dead)
August 10 — Like calling the Orkin man to talk about bugs. Descending further into self-parody at its annual convention in Atlanta, the American Bar Association summons O.J. Simpson defense lawyer Johnnie Cochran for a panel discussion on truth in the legal profession, as well as potential disbaree Bill Clinton to lecture Senators on the perils to the administration of justice of not confirming his nominees to the bench as promptly as he’d like. Cochran impresses attendees by sending an 18-page biography that “lists everything from a soap opera appearance to being named one of the most glamorous men in history”, Reuters reports. By contrast, Harvard law professor David Wilkins, who directs the law school’s Program on the Legal Profession, submitted a three-paragraph bio. (Fox News (link now dead)/New York Times).
In other convention news, ABA head Philip Anderson publicly compared city gun suits to the civil rights cause of the 1950s (overturning Plessy v. Ferguson, scoring a payday with help from the mayor’s trial-lawyer friends — hey, what’s the big difference?). (Fox News — link now dead). The present state of tort law gives municipalities no claim against gun makers, but lawyers have lately made up a variety of new theories they’d like to present to courts that would hold gun makers retroactively liable. Anderson criticized efforts by state lawmakers to interfere with this process, suggesting the emergent new maxim that now seems to hold sway at places like the A.B.A.: any lawyer should be able to concoct any new theory that allows for the extraction of money from anyone else, and whether such a new theory succeeds will be resolved by way of interactions between the Third Branch (the judiciary) and the Fourth (the trial lawyers) This diverges sharply from the traditional separation-of-powers precepts still preserved in musty library stacks, under which legislators counted as a surprisingly important authority on what was and was not to be made legal.
August 10 — You made me defame myself. Even plaintiff’s employment lawyers can get a bit sheepish explaining the theory behind the “doctrine of compelled self-publication,” which works as follows: the employer takes every conceivable step to avoid liability for “workplace defamation”, including not breathing a word to co-workers about the reasons it’s letting an employee go, and successfully forbidding any discussion of the circumstances afterward with reference-checkers or other outsiders, who instead get fobbed off with blandly neutral formulas. But it still loses the ensuing defamation lawsuit, on the grounds that the employee himself spread the allegedly false rumors about his bad performance, having felt forced to do so in order to explain his situation in later job applications. “If you’re the one spreading false information, it looks strange” to turn around and sue a former employer for defamation, concedes Hartford practitioner Jonathan Gould. But the theory has worked for complainants, including a hospital security guard who got $200,000, and Danbury, Ct. lawyer Christine M. Ellis predicts it will be a “wonderful tool” in suing for employees. (Scott Brede, “When Candidness Is a Catch-22“, Connecticut Law Tribune, July 7).
August 9 — More things you can’t have. Latest food items to become unavailable due to fears of liability, according to Wall Street Journal news articles in July: parents’ care packages of food to kids at camp (“[c]amps worry about getting sued should a child get sick from an allergic reaction or from rotten brownies,” as well as raising other objections; July 28); burgers cooked medium-rare in restaurants (diners at establishments in San Francisco and Carnegie, Pa. were recently allowed to obtain pink burgers by signing written liability releases, but other restaurants won’t make even that concession, though E. Coli poses relatively little risk to adults in good health; July 15). (New York Press editor Russ Smith commented on the summer-camp report; scroll down to near bottom of his column.)
August 9 — How to make it as a litigious NYC tenant. “The writer of this book lived rent free in New York City and was paid $55,000 from his landlord!!!”. That’s the pitch from the pseudonymous author (“Tenant X”) of an 88-page booklet entitled Tenant Power, which for $15 will offer advice on how to make life unhappy for someone so unwise as to have rented you an apartment (have the walls of your apartment drilled to test for asbestos; if finally evicted, tell the judge you need to get back in to retrieve medicine). The August 4-10 Village Voice has qualms about the booklet but not on any moral grounds; instead it’s upset that much of the advice isn’t fully accurate. (Full story).
August 9 — Hate-crime laws: why they aren’t liberal. Heidi M. Hurd, professor of law and philosophy at the University of Pennsylvania, told the House Judiciary Committee last Wednesday (8/4) that such laws “revolutionize” traditional criminal-law mens rea standards in order to convey society’s disapproval of hateful character traits and beliefs. That goal is distinctively non-liberal, she argues: “Political liberals allow that the State may use its power to make us act in ways that are right; but they generally insist that the State may not use its power to impose a particular conception of the good life on its citizens. It may not legislate virtue or suppress vice. It may not invade the realm of private beliefs, desires, hatreds, biases, hopes, ambitions, etc. In short, it may make our actions good, but it may not make us good actors.
“Those who favor hate crime legislation, and its implicit license to use the power of the state to suppress vice and encourage virtue, have to admit that they are not liberals. They are, rather, ‘political perfectionists,’ who view the legitimate power of the state as extending to legislation that will nurture in us charitable, kind, courageous dispositions, and eliminate selfish, cowardly, cruel dispositions. Political perfectionism is not without impressive defenders. But the power that it bequeaths to the State is breathtaking….such legislation suggests that the state has abandoned the constraints of liberalism and extended its power to affect not only what we do, but who we are.” (Full testimony)
August 7-8 — Weekend reading. Pixels to take to the beach or cottage:
* Alex Beam in the August Atlantic takes a look at “the extreme sport of First Amendment law” — litigation by celebrities who sue tabloids like the Enquirer and the Globe for libel, invasion of privacy and sundry other torts. Sign of the overlawyered times: some tabloid-haunted celebs insist their wedding guests sign a nondisclosure agreement if they want to be admitted to the ceremony. “That’s so tasteful,” scoffs Gerson Zweifach of Williams & Connolly, who represents tabloid defendants. “You open up the Tiffany invitation and this contract falls out of the envelope.”
* Aside from their professional interest to writers and editors, word counts carry significant consequences for litigators because of the rigid limit on the length of their briefs. Lawyers for a man fighting extradition to Canada on kidnaping charges recently faced possible sanctions for having filed a brief before the Seventh Circuit which they said was 13,824 words long, just under the 14,000-word limit for appellate briefs set by Fed. R. App. 32(a)(7), but which in fact contained 15,056 words, well over the limit. The judges looked into the question and found that Microsoft Word, unlike its competitor WordPerfect, fails to count footnotes when asked to give a word count for a block of highlighted text. Microsoft is promising a fix, Declan McCullagh reports in the August 4 Wired, and in the mean time the court agreed the lawyers didn’t merit sanctions.
* Overlawyered.com‘s editor devoted his July Reason column to the question of why American attorneys are so unpopular these days: was it unsporting for Jurassic Park audiences to burst into applause when the dinosaur ate the lawyer?
August 7-8 — Not so uncontroversial. Who could be against the proposed “Victims’ Rights Amendment” to the Constitution? Plenty of sensible people, it seems, including Beth Wilkinson, a member of the prosecution team in the Oklahoma City bombing case, who writes in yesterday’s Washington Post (August 6; link now dead) that following the procedures prescribed in that amendment could have substantially impaired the chance of getting convictions against bombers Timothy McVeigh and Terry Nichols. Chicago Tribune columnist Steve Chapman (July 22 column; link now dead) points out that many crimes (such as a bank robbery where there are many customers present) place a large number of bystanders in harm’s way, “each of whom [under the proposal, apparently] has to be kept informed, allowed to make his views known, and invited to attend every public proceeding related to the case until the perpetrator has been released from prison, which could be five or 10 years later….If you want a bureaucrat’s full-employment act, here it is.” The measure has been endorsed by Bill Clinton, Bob Dole and Al Gore, among many others.
August 6 — Courts actually begin to define “harassment”; activists in shock. Proponents of expansive harassment law publicly hailed last year’s Supreme Court ruling in Oncale v. Sundowner Offshore Services as a victory for their side because it allowed workers to sue over misbehavior by co-workers of their own sex. But Justice Scalia’s opinion also took pains to clarify for the first time what does and does not qualify as harassment: the complained-of conduct must be directed at the worker “because of” his or her sex, ordinary horseplay isn’t enough, and the role of the courts isn’t to enforce a general civility code in the workplace. This report by the Chicago Tribune‘s Jan Crawford Greenburg (reprinted in St. Louis Post-Dispatch; link now dead) quotes Lambda Legal Defense and Education Fund legal director Beatrice Dohrn as saying her colleagues were aware the latter language might be significant but decided to focus on portions of the decision “we hoped would be picked up on,” a franker-than-usual acknowledgment of the way advocacy groups try to spin the coverage of high court cases. But many lower federal courts noticed Scalia’s language and, it seems, are taking it seriously by screening out cases that fail to meet the standard. That trend meets with peals of outrage, recorded here, from plaintiff’s-side attorneys who liked things better when the question of what constitutes harassment was more poorly defined, since that improved their chances of getting every case to a jury. Notable background fact: Scalia in Oncale spoke for a unanimous Court.
August 6 — News judgment. Last week it was announced that arbitrators had awarded more than $2 billion in legal fees to tobacco lawyers representing just two of the fifty states, Mississippi and Massachusetts. Mississippi’s $1.4 billion award is slated to cram nearly $340 million into the pockets of Pascagoula attorney Richard Scruggs, brother-in-law of U.S. Senate leader Trent Lott, while on Tuesday the Boston Globe‘s Brian MacQuarrie reported that a preliminary analysis of that state’s $775 million fee award “indicates attorneys may be paid nearly $5,000 per hour for their work”.
How has the New York Times, newspaper of record, chosen to cover these revelations? Its total coverage of the arbitration awards has consisted of a 150-word Associated Press dispatch that ran on page 25 of Sunday’s edition, which itself included nothing critical of the awards except to note at the end that tobacco companies found them excessive. Perhaps the Times was too busy preparing to let fly with another round of advocacy from its reporter William Glaberson, who’s argued that public concern about the power of trial lawyers is based on mere “myth” and “fantasy” concocted by conspiratorial tort reformers.
August 6 — The Jarndyce v. Jarndyce of prison litigation. Twenty-eight years after the episode from which it arose, the wrangling over corrections officers’ actions during the Attica uprising drags on, with the Second Circuit sending Blyden v. Mancusi back for a new trial. (New York Law Journal, August 4 — full story)
August 6 — Michigan high court upholds malpractice reform. Not all state supreme courts are looking for ways to frustrate legislators’ efforts to bring litigation under control. (Detroit News editorial).
August 5 — “Settlement bonds”: are guns next? When trial lawyers started lining up pliant mayors to sue the gun industry, everyone kept insisting that the big issue wasn’t money: this was really a public-spirited endeavor aimed at changing the industry’s practices. In Monday’s (August 3) issue of The Bond Buyer, however (online to subscribers only), editor Kieran Beer says a number of Wall Streeters are now seriously talking up the prospects for the issuance of “bonds backed by gun-settlement payments to municipalities,” on the model of the tobacco-settlement bonds that are expected to be floated soon. The idea behind settlement bonds is to allow the politicians and lawyers — who, according to the settlement’s facial terms, would be entitled to receive a stream of payments spread out over decades — to scarf down billions immediately in exchange for signing over the flow of future payments to the financiers.
Bond Buyer editor Beer is somewhat skeptical about the chances for gun bonds to work in practice. He points out that there’s bound to be far less money in guns than in tobacco, and also doubts that the settling parties “will agree to a healthy trade in gun sales in order to insure a revenue stream for gun-settlement bonds,” which is, he notes, the “kind of deal that was struck with big tobacco” (in itself an observation which virtually none of the backers of the tobacco deal have been willing to admit for the public record). On the gun round, attorney Ken Bond of Squire, Sanders & Dempsey says that for optimal results “[t]here should be capital markets people holding the hands of the litigation people so that settlement payments are picked up at the point of sale” rather than having to be extracted from corporate treasuries — another telltale sign that what is being negotiated here is more akin to a new tax than to a damages settlement (see July 29, below).
In the old days, Wall Street earned its commissions by arranging financing for productive enterprise; now it chases the fast buck by facilitating the expropriation of the industries it once helped build.
August 5 — Spreading to the U.K. “Martin Holdgate, chairman of the Royal Geographical Society, had some harsh things to say about our new litigation or ‘blame’ culture last week. He argued that our children were becoming softies as teachers no longer dared take them on adventure expeditions, for fear of parental lawsuits in the event of an accident. ‘Blame culture and an eagerness for litigation have trickled down to the children themselves,’ he said.” (Auberon Waugh in yesterday’s Daily Telegraph (London); full column).
August 5 — Progress of the Overlawyered.com site. As we complete our fifth week, word continues to spread about this site, and traffic continues to grow. One of the first larger sites to link to us was About.com (formerly The Mining Company), which selected us as a resource in its category for Current Events — Law. Not long afterward we were picked as a resource on FindLaw/LawCrawler, one of the most widely used legal search tools, as part of their Litigation category.
August 4 — No spotlight on me, thanks. As one of the wealthiest and most successful plaintiff’s lawyers ever, Houston’s John O’Quinn (breast implants, tobacco, politics) has been known to call press conferences at which he’s leveled charges highly damaging to his opponents’ reputations, accusing them (for example) of conspiring to “remain silent, conceal or suppress information” about problems with their products and operations. So what happened June 4 when O’Quinn was himself sued by a group of unhappy former breast-implant clients seeking class-action status against him? As Brenda Jeffreys reported in the June 14 Texas Lawyer, O’Quinn “didn’t hesitate before pummeling the class action lawyers with a libel suit” charging the lawyers with “encourag[ing] the news media to disseminate false, slanderous and libelous comments about Plaintiff” — said encouragement consisting of their press release about the lawsuit, and the press conference they were planning that would have explained it further.
Had the lawyers challenging O’Quinn succeeded in holding their press conference, interesting questions might have been aired. Their suit charges that a group of women numbering at least 2,000 were wrongfully overcharged tens of millions of dollars in claimed expenses, and that the firm of O’Quinn and Laminack breached its fiduciary duty to them; it sought a fee forfeiture totaling $580 million. But O’Quinn’s firm rushed to court to ask for a temporary restraining order to prevent the lawyers from holding a press event, and on June 7, while a judge was considering that motion, they agreed to a gag order and called off the conference they’d scheduled for that day. The whole process — from the first public notice of the suit to the gag order in hand — had taken only three days. “O’Quinn’s quick action may have prevented a firestorm of public attention to the class action suit,” writes the Texas Lawyer‘s Jeffreys. It is not recorded whether any of the defendants O’Quinn has sued have ever tried, let alone succeeded in, such a tactic against him.
August 4 — For your own good. Boone County (Ky.) High School, in suburban Cincinnati, has added new clauses to its dress code prohibiting students from wearing clothing that it deems unsafe, such as sandals without back straps that might increase their chance of tripping in a stairway or corridor, yesterday’s Cincinnati Enquirer reports. Also banned are excessive jean lengths, again because students might trip on them. “We’re not trying to take away anyone’s personal freedom,” declared assistant principal Ken Spurlock. Seventeen-year-old Malia Novak said she could live with the new rules though they would mean dropping many favorite pairs of shoes from her school wardrobe, but said, “I think people probably trip because they’re clumsy, not because of their shoes”.
The rules will serve students as good training for life in a broader society whose institutions, whether from sheer paternalism or for fear of being sued, are ever more anxious to suppress behavior by which people might hurt themselves. Boone also bans the carrying of book bags and backpacks unless they are made of mesh or a transparent material, thus following the example of many other schools which treat their students as perpetually under suspicion of being little Dylan-Klebolds-in-training.
August 3 — No need for speed. The state courts in New York have a reputation as among the nation’s slowest, and apparently some local lawyers like things that way. Matt Fleischer writes in the August 2 New York Observer (link now broken) that a plan by the state’s top administrative judge to speed up case resolution is meeting with heated resistance from bar associations and legal practitioners. Some lawyers worry about logistical snafus, but others — well, others just seem to like to keep the option of dragging things out. Managing attorney Poppy Quattlebaum at Cadwalader, Wickersham & Taft warned that faster resolution of cases might be more stressful on parties and result in higher lawyers’ bills. Veteran plaintiff’s attorney Harvey Weitz called the scheme “a needless intrusion into our offices” and pointed to lead-paint suits as the sort of area where he did not necessarily want to move to trial quickly. “You want to take those cases to trial when the injuries begin to manifest themselves; it’s almost the later the better,” he said. (A cynic might see the same process as holding an inventory of client kids, aware that a certain percentage will develop troubles in their lives, such as poor grades or behavioral problems, that can be retrospectively blamed on paint exposure.)
Meeting with equal resistance is a plan by Chief Administrative Judge Jonathan Lippman to eliminate the current case assignment system, which often shuffles cases from judge to judge, in favor of assigning each case from the start to one jurist who will be responsible for it through resolution. “In the federal system,” explains Fordham law professor Matthew Diller, “the litigants always know they have to answer to the same judge, so when they engage in shenanigans, they know they’re going to be right in front of the same judge.” “They prefer judge-shopping, that’s what it’s all about,” Ross Sandler, who directs the Center for New York City Law at New York Law School, told Fleischer.
Court-watchers sometimes use backlog figures as a way of getting a handle on the delay problem, but judges have their own ways of gaming those numbers. “Inventory can be worked down in many wonderful ways,” said Judge Elliot Wilk. “I have between 500 cases and 1,500 cases. I can get my inventory from 1,500 to 500 in a week. How? I trust other judges know this: You mark ‘presumed settled.’ You haven’t heard from the parties, they probably settled but didn’t call.”
August 3 — All have lost, and all must have damages. From the July 20 Texas Lawyer comes this tale (“Strange Days Indeed“, by Janet Elliott) of the state of personal responsibility in today’s courts: Crown Life Insurance Co. of Canada was one of numerous insurance companies tarred by the “vanishing-premium” fiasco of the 1980s, in which a speculative form of insurance predicated on the continuation of high interest rates was pitched to unwary prospects but quickly lost its value when rates plunged instead. Litigation on behalf of 22,000 U.S. policyholders eventually resulted in a $27 million settlement. But a separate suit against Crown was wending its way forward in Texas courts, on behalf of William Casteel, one of its own salesmen who maintained that he, too, was a victim. Why? Because he’d sold so many of the policies in his local community that he became a local pariah when they blew up. His lawyer argued that Casteel “became suicidal and was treated for depression” after friends and fellow churchgoers, upset over his role in sweet-talking them into purchasing the policies, ostracized him. A Texas jury proceeded to order Crown to pay Casteel $36 million, a figure built up from $6 million in mental anguish and $1.5 million in lost income, subject to trebling under the state’s consumer-fraud statute, prejudgment interest and attorneys’ fees.
In other words, one of the salesmen who carried out the alleged deception was judged to deserve more from the parent company than all 22,000 victimized customers rolled together. The verdict did not last long, at least in its full $36 million plenitude: a district judge overrruled it on grounds Casteel had no standing to sue as a victimized insurance “consumer”, an appeals court reinstated it but threw out its emotional-damage component, and the Texas Supreme Court last month ordered an entirely new trial. Much to the frustration of the defendants, however, it left intact the new right of Lone Star State insurance agents to sue for “deceptive practices” they themselves helped implement.
August 2 — Polly in Margaritaville. The St. Petersburg Times reported last month (July 2) that Theodore Nobbe had won acquittal from felony charges that could have sent him to prison for five years. The offense he was charged with? Dunking the head of a friend’s parrot in his tequila-based drink several times, allegedly to see if it would get drunk. The incident took place in August of last year at the local Bombay Bicycle Club when a fellow patron reported she’d seen Nobbe and a friend engaging in the psittacine abuse. Nobbe denied it, and the evidence was not the strongest: no one besides the complainant witnessed the alleged plying of the bird with liquor, but a police officer said the creature’s upper portions seemed damp when he was called to the scene, and a Humane Society officer said that when the bird was later brought into the shelter it ate voraciously, a pattern consistent, she averred, with its having the “drunken munchies”. Animal-rights advocates jammed prosecution switchboards demanding that the book be thrown at Nobbe, a 27-year-old Clearwater resident who’d had no previous problems with the law. Prosecutors said they had to charge him with felony as opposed to misdemeanor animal abuse because that’s what the law specifies for “repeated” acts of abuse — and multiple dunkings counted as that. In recent years, to little organized protest, animal-rights advocates have successfully lobbied for criminal statutes on animal abuse to be made more and more stringent.
August 2 — Our first month; new site improvements. Thanks to the many repeat visitors who’ve brought our total pages-served to more than five thousand in our first month. Two more new features debut today, along with some new navigational and cosmetic odds-and-ends. First, there’s an easy-to-use form on the left side of the front page which lets you recommend this site to a friend. Just enter your name, your email and your friend’s, press “send”, and a message is on its way. The form works not only for general recommending of the site as a whole to people who might enjoy it, but also for calling your friends’ attention to a particular entry — just use the added-comments box to say, “Check out today’s parrot story”, or “I told you you couldn’t make me mow the lawn — see July 26”.
In addition, we’ve now put up a page with an explanation of Overlawyered.com‘s format to help newcomers figure out more quickly how to get the most out of the site, paired with some more technical notes for those who want to cite us, link to us, or link to us with graphics. Repeat visitors may also notice that the site now incorporates a pink-rectangle-with-black-letters logo button which usually when pressed will return you to the top page. Real devotees may also notice other differences in the “navigational bar” to the left of the main text, which has been streamlined for some pages and made more detailed for others.
July 31-August 1 — Weekend reading. Pixels to take to the beach or cottage:
* The Boston Globe‘s July 26 article (link now dead) on how the practice of asking people to sign liability release forms is “creeping into nearly every aspect of American life”, even things like the modern equivalent of an old-fashioned New England barn-raising. Reporter Bruce Mohl quotes lawyers who’d like to ban many such liability disclaimers or say that courts should just not enforce them (translation: how dare people try to escape from the system we’ve made for them?).
* Jonathan Rauch’s new National Journal column (July 23) based on his interviews with a forensic psychiatrist, a specialty in much demand these days thanks in part to all the harassment and discrimination suits in which “your damages go way up if you can show emotional distress, incapacitating trauma, or other psychological injury”. After hearing a series of case histories, Rauch concludes that “a lot of workplace disputes that belong in the sandbox are winding up in the courts”.
* LawNewsNet‘s June 17 account of how the Utah law firm of Snow, Nuffer, Engstrom & Drake went to the execution sale of a former client — the forced sale of his assets to satisfy creditors — and bought up his right to sue it for legal malpractice (a judge later struck down the deal).
July 31-August 1 — Personal hell. How common are false charges of sexual abuse, and how often do they succeed in ruining the lives of innocent targets? Two powerful items from the July 26 New York Post leave you wondering. An editorial (alternate URL) tells of New York state psychologist Mark Komlosi, charged by a malicious co-worker with sexually abusing his mentally retarded patients. The story eventually fell apart, but Komlosi went through a personal hell in which the ruin of his career — he wound up putting in time as a doorman and a salesman — was only the start. In an unrelated column, the Post‘s Steve Dunleavy casts fresh doubt (alternate URL) on the credibility of the accuser in 1998’s famous “cyber-sex” rape case, where defendant Oliver Jovanovic was convicted and given 15 years to life; he’s served a little more than a year so far. (update Dec. 23: appeals court overturns Jovanovic’s conviction).
August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”
However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).
August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.
August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.'” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.
August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.
August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).
Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.
August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).
August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).
August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).
August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)
August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:
* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)
* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).
* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).
August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (“.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (“Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).
Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (“Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.
While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com‘s July 10 commentary as a resource in its Full Coverage feature on the case.
August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).
Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).
August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).
August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (“Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.
August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.
August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknowledged Police Commissioner Paul Evans. Why not just end the embarrassment by dropping the suit? (Boston Globe, Aug. 17; link now dead)
August 25 — Calif. state bar improperly spent dues on politicking. The Pacific Legal Foundation had brought suit on behalf of 40 members of the bar in the Golden State. In the 1990 case of Keller v. State Bar, the U.S. Supreme Court unanimously ruled that state bars with compulsory membership must offer a refund to members of moneys spent on politicking to which they object. The California bar proceeded to announce that of the $450.00 dues it charged in 1989, a bare $3.00 was spent on ideological and political activities, a figure it arrived at by designating much of its Washington and Sacramento legislative effort as merely one of “advising” lawmakers which bills to pass. We don’t think so, rules Sacramento County superior court judge Morrison England Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).
August 25 — Lawyers grabbing too much of Swiss bank settlement, charge Holocaust survivors. Yes, it’s one of the sadder headlines of 1999, and no, it’s not one of the more surprising to many who’ve followed the issue. “Gizella Weisshaus, one of the first to sue the banks, said she no longer wanted to be associated with the lawsuit because it would leave too little money for survivors.” (AP: Washington Post, CNN (links now dead)).
August 25 — “Employee lawsuits increasing”. Survey of 353 companies by Society for Human Resource Management and law firm of Jackson Lewis finds slightly more than half have faced employment-related lawsuits, with nine of ten suits coming from former employees. “Another 37 percent of the companies responding to the survey were sued by a current employee, while 8 percent were sued by unsuccessful candidates for employment.” Partner George Wilkins of Cincinnati’s Dinsmore & Shohl says labor and employment is the fastest growing area at his firm. (John Eckberg, Cincinnati Enquirer, August 22; SHRM June 27 press release)
August 24 — The dream verdict. On July 12, three days after a Los Angeles jury voted $5 billion against GM in the Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in a case where several members of Juan Romo’s family had been killed in a rollover accident in their Ford Bronco. Ford’s motion for a new trial, filed last week, sheds light on how such cases are tried in today’s American courtroom.
Plaintiff’s counsel had railed against the “giant,” “wealthy” Ford with its “lawyers back east in Dearborn.” (“I talked about this case was about…corporate greed and arrogance…It’s also about this. It’s about Mrs. Romo’s purse….She didn’t have furniture for crying out loud, and she’s giving money to the church and she’s putting it [in her purse] to provide for the education of her children.” Damages? “You’ve got to say a number that gets on the front page of every newspaper in the country.”
How to deal with the inconvenient circumstance that the Bronco design more than exceeded the standards set by the National Highway Traffic Safety Administration? Keep hammering away at the idea that federal standard-setting (presumably in contrast to jury persuasion) is a “political” process (“that political report called the Federal Register”; “NHTSA has…political appointees”; “You got a reading from a Federal Register as it goes out to the politicians.”)
California law allows affidavits to be taken from jurors after a verdict. According to Ford’s motion, these affidavits revealed that one of the jurors acknowledged she had prejudged the case and told fellow jurors they did not have to follow legal instructions because the case allowed them to “save the babies”. Of one attorney, she said he “really was trying to do something good, and that what he said should be considered as evidence.” And, several jurors testified, the same juror told them at great length about a gruesomely detailed dream she’d had — which she described, not without mystical overtones, as an “omen” — in which a Bronco repeatedly rolled over and killed all the jurors’ children, while the company’s line-up of attorneys and witnesses — armed with guns, no less — “stood by taunting the jurors by chanting ‘Where’s the proof, where’s the proof?’”
The juror affidavits also suggested that the panel was strongly influenced by crash exposés that had aired on “60 Minutes” and similar programs, attacking other Ford models that trial lawyers were suing over, which a second juror saw as proving that Ford had acted in bad faith in such cases. One of these shows, watched by more than one juror, was aired by CBS on May 19, only weeks before the verdict, and included material prejudicial to Ford that the court had excluded from evidence in the Romo case. The apparent influence of the TV coverage helps explain why trial lawyers have gone to such extraordinary lengths over the years, behind the scenes, to shape the coverage on such shows.
After the trial, Ford says, while it was in the process of interviewing jurors to gather affidavits in connection with this new trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to send the jurors a free gift, consisting of his own book inveighing against big business (“The Civil War on Consumer Rights“), which happened to feature a whole chapter devoted to attacking none other than the Ford Motor Company. Included was a note and personal inscription to the jurors: “for all us who care.” Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).
August 24 — Beyond the hired-gun syndrome. Good op-ed in Sunday’s (8/22) Washington Post by David L. Faigman of Hastings College of the Law discussing the Court Appointed Scientific Experts project of the American Association for the Advancement of Science (AAAS). Faigman’s book “Legal Alchemy: The Use and Misuse of Science in the Law” will be published in October by W.H. Freeman & Co.
August 23 — Fertilizer manufacturers not liable for World Trade Center bombing. The Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit by the Port Authority of New York and New Jersey, which had demanded that manufacturers be made to pay damages for the 1993 terrorist bombing of the twin Manhattan towers on the grounds that the misuse of their wares to make fertilizer-and-fuel-oil bombs was “objectively foreseeable”. The appeals court found the lower court had correctly ruled that the manufacturers’ conduct could never be the “proximate cause” of the bombing: “The terrorists’ actions were superseding and intervening events breaking the chain of causation,” writes Judge Jane Roth. If applied consistently, such logic could be helpful to other manufacturers sued over criminal misuse of their products, such as gun makers. Also rejected was a theory that the fertilizer companies were negligent for not having instituted “know-your-customer” controls on buyers of their product — again, an issue that finds its parallel in the gun litigation. (Legal Intelligencer, Aug. 19) A press communiqué (link now dead) from the clearly bewildered government of Norway describes how two of that country’s leading industrial companies became defendants in the World Trade Center litigation, referring to “the Americans’ so-called product liability law”.
August 23 — You may already not be a winner. A Canadian court has turned away prisoner Allen Crawshaw’s lawsuit asking $10,000 of Corrections Canada for failing to mail his entry last year to the Reader’s Digest sweepstakes, which had a first prize of $1.4 million. Prison officials conceded they should have mailed the entry but denied that the loss of a chance of winning should entitle him to damages: “Did you ever see the odds of those?” said spokesman Dennis Finlay. Crawshaw, a former shop steward for the United Food and Commercial Workers at a British Columbia food plant, was convicted in 1994 of killing his boss after being angered by a one-day suspension over heated comments he’d made criticizing management; Crawshaw was “known [locally] as a peace activist”. (National Post, Aug. 11)
August 23 — Political Site of the Day. We’re pleased to announce that Overlawyered.com is today’s Political Site of the Day, an award service that has been picking daily sites for more than four years, practically as long as there’s been an Internet. A stroll through PSoD’s library of past sites is a good way to appreciate the spectacular diversity of the Net: within the space of two weeks we ran into the home sites of the Serbian/Yugoslavian royal family, PostalWatch (a watchdog group on behalf of those regulated by the Postal Service), How To Win a High School Election (“It doesn’t matter whether you’re popular or not…”), and Libertarian Rock, which will send you free stickers to protest curfew laws.
August 23 — “Beating up on ‘deadbeat dads’.” “Those who decry judicial tyranny and family destruction should pay more attention to family courts, for they are the arm of the state that routinely reaches farthest into the private lives of individuals and families,” notes Howard University political scientist Stephen Baskerville in an American Spectator article sharply correcting the usual let’s-lynch-’em view of “deadbeat dads”. The night after Bobby Sherrill came home from spending five months as an Iraqi hostage, the Washington Times reported, the sheriff was there to arrest him for not paying child support during his captivity. A Texas janitor wrongfully convicted of murder and then exonerated after ten years on death row was presented on release with a $50,000 bill for child support he didn’t pay while in prison.
Officials push through ever-more-punitive regulations against delinquent pops, then hop over to for-profit private collection firms, hired by their former agencies, that grow fat on the resulting business. It’s hard to go along with Baskerville in dubbing the deadbeat-dads problem a mere “myth”, but hard not to join him in worrying about “mass incarcerations without trial, charge, or counsel; an apparat that has systematized the invasion of private homes and the confiscation of children to a bureaucratic routine; [and] political leaders [who use] their public office as a platform to vilify private citizens who have been convicted of nothing and who have no opportunity to reply” (full story).
August 21-22 — The Marie Antoinette school of public relations. The June issue of George featured a lavish photo spread (“Puff Daddies”) of six lawyers who “have raked in more than $5 billion for their firms from tobacco litigation“. The backdrops weren’t the usual stuffy law libraries, either. They included the racing boat, conspicuously labeled “Gunsmoke”, of Pascagoula’s Richard Scruggs, brother-in-law of Senate majority leader Trent Lott (more than $1 billion in fees for representing Mississippi and other states); the twenty-horse equestrian estate of Charleston’s Joseph Rice (somewhere between $1 billion and $10 billion); the private putting green on the Pensacola estate of Fred Levin ($325 million); a foundation endowed by politically ambitious Michael Ciresi of Minnesota ($440 million; “some of the fees are excessive”, he cheerfully agrees); and the opulent bathtub where South Florida’s Robert Montgomery ($678 million), posed, fully clothed, under what the Palm Beach Post called “English artist David Jagger’s painting of a naked woman”. (Montgomery describes as “outrageous” Florida’s move to accept an $11.3 billion settlement without forking over a full one-quarter of it to lawyers as agreed). An ostensibly less material note was struck by Seattle’s Steve Berman (roughly $2 billion), who previously made it big filing shareholder class actions, and who says, “I got the notion in the ’60s that you can protest by growing your hair long or you can get trained in the methods of the establishment and use their own tools to beat them. There’s nothing better than beating them at their own game.”
Addressing an Americans for Tax Reform audience earlier this summer, Wall Street Journal editorialist John Fund said he marveled at the willingness of the legal tycoons to rub their critics’ noses in their taxpayer-leveraged success by cooperating in such displays. “Even the robber barons in the Nineteenth Century knew better than to do it that way. Is it that they don’t have anyone giving them p.r. advice? Or do they just think at this point they’re invulnerable?”
August 21-22 — Weekend reading. Pixels to take to the cabin or island:
* Next on the identity-politics agenda: “Partly due to the flurry of judicial and legislative activity pursuant to the Americans With Disabilities Act of 1990, disability studies, once an arcane field of literary theory, has begun to attract attention from both the media and the academy,” reports Norah Vincent in the August 18 Salon. Brown University professor Carol Poore asserts that “disability is actually preferable to ability in that able-bodiedness ‘is the precondition for being a tool of the ruling class.'” Some in the disabilities movement “maintain that, even if they were presented with a cure for their disabilities, they wouldn’t take it” (full story).
* Overlawyered.com‘s editor devotes his latest Reason column to the legal background of the Supreme Court’s Davis v. Monroe decision in May, the one that allowed schools and universities to be sued for not remedying “student-on-student” harassment. No federal law in fact creates a right to sue over sexual harassment in education; it’s an “implied private right of action”, which means basically that the courts get to make it up as they go along. (“Title IX’s Invisible Ink“, August/September).
* From the north comes word that the Canadian Broadcasting Standards Council has declined to take action against Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of the “Bugs Bunny and Tweety” show, alleging that the wascally wabbit had uttered remarks demeaning to women (National Post, Fox News/Reuters, Boston Globe (links now dead))
August 20 — The long march through the courtrooms. From Counterpunch.org, the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair: “Hardly had she [Hillary Rodham] raised her foot to step over the threshold of radicalism than she turned back. She declined to go with the SNCC [Student Non-Violent Coordinating Committee], turned down an offer to work with Saul Alinsky as a community organizer in Chicago. Anderson quotes her political science prof at Wellesley, Alan Schecter, as saying that by the late 1960s his pupil had decided that the best radical strategy was to ‘”use the legal system” as an agent of change.’ She wasn’t alone in that calculation. The long march of the left through the courtrooms was under way: the world would become a better place, courtesy of courtroom briefs, complaints and class action suits.
“And so what we have seen, across the last three decades, is the left vanishing into the quicksands of regulation. All society’s problems could be fixed by a statute, a rule, a waiver, a program. Much of the antiwar left vanished into the consumer movement, the environmental movement and legal fixitry. The mass movement died and litigation — often successful — flourished amid the ruins” (“The First Lady Syndrome”, August 11 — full story)
August 20 — “Three insurers sued for $100 million”. $300 million, actually, since a Prince George’s County, Maryland court is being asked to mulct Allstate, GEICO and State Farm nine digits’ worth apiece for the offense of applying managed-care-style guidelines to limit policyholders’ personal medical claims after auto mishaps. This AP story commits a few of the usual journalistic sins: 1) it signals no awareness that the dollar demands in such cases can be arbitrarily picked for shock/news value, our legal system putting no price tag on exaggeration; 2) it ignores the probable role of the lawyers as parties-in-interest (though it does report that many of the individual policyholders’ claims are for less than $100); 3) it finesses the purely circular process by which anyone deems such filings newsworthy (the seven named customers would normally have had trouble getting even back-page local coverage, but instead scored big national headlines. Why? Because their lawyers asserted a right to speak for a large class of policyholders nationwide. Why would a court accord these particular lawyers that right? Well, they did get all this national publicity…) Best detail: “All of the plaintiffs have maintained their coverage with the companies despite the disputes.” Mad enough to sue, in other words, but not mad enough to switch companies (Yahoo/AP; link now dead).
August 20 — New Overlawyered.com pages: tobacco tycoons, litigation in the workplace. Two more newsworthy topics get their own subpages, bringing the number of topical pages to eight. Seven weeks old, this site has now served more than 15,000 pages, with our traffic rate nearly doubling this month from last. Thanks!
August 19 — Plus extra damages for having argued with us. In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (“the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy (link now dead).
August 19 — Click here to sue! Seattle-based Bendich, Stobaugh and Strong, P.C. specializes in employee class actions arguing that temp, freelance and independent-contractor employees were really “misclassified” and deserve retroactive raises and benefits, no matter what the two sides may have thought they were bargaining for at the time. Taking advantage of the Web, the firm makes it really easy to join its suits against Microsoft (see also Jan. 11, 2000 commentary), Arco, King County (Seattle) and Los Angeles County.
August 19 — NAACP’s “ludicrous” anti-gun suit. Ninety percent of murders of blacks are committed by other blacks, David Horowitz observes, but now litigation offers a handy way to blame the toll on distant white-owned gunmakers, advancing “a fantasy in which African-Americans are no longer responsible for anything negative they do, even to themselves”. (Salon, August 16 — full column).
August 19 — Another scare starts to fizzle. “For three years now, organizations ranging from environmental groups to Consumer Reports have been proclaiming the existence of a deadly wave of endocrine disrupters that cause cancer, infertility, and personality abnormalities,” writes Gregg Easterbrook in the August 30 New Republic. Now the National Academy of Sciences has studied the issue of environmental residues of these synthetic hormones and found much less than meets the eye in the scare reports. (full article). Score another one for skeptics Mike Fumento and Ron Bailey, as well as for the New York Times‘s much-hatcheted Gina Kolata, whose refusal to hype the endocrine-disrupter scare was a chief count in the campaign against her typified by Mark Dowie’s article in the July 6, 1998 Nation.
August 18 — Undislodgeable educators. Tenure laws make it hard in many states to remove even a badly underperforming teacher from the classroom, but hopes for reform rose when Bob Chase became president of the National Education Association with an agenda that included “peer review” methods like those pioneered by NEA’s Columbus, Ohio affiliate. “The goal of peer review is to help people succeed,” Chase has said. “But it could also speed up the process of dismissing a teacher who is not successful….We know that it sometimes takes five or six years to get rid of a teacher, and that is too long.”
But can peer review work if it’s just an overlay onto, rather than a substitute for, the laggard teacher’s right to challenge a dismissal by every current legal means? That question is posed by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus schools whom administrators often observed reading the paper in class with his feet up on the desk while students snoozed. Two years of intensively applied peer review, followed by 16 days of hearings, led to the conclusion that Featherstone should be given a “negative release”, and he was suspended without pay. Duration of the process up to that point: three years, and it turned out things were just getting started. Featherstone was soon off to federal court to charge that the dismissal was racially discriminatory, and it’s taken four more years for a judge to dismiss that case — not on the merits, but on the grounds that Featherstone failed to take the procedural steps needed to preserve his rights to sue. (If he had, presumably, the case might still be in progress). The case gets written up in this week’s communiqué (week of August 16) from Mike Antonucci’s invaluable Education Intelligence Agency; subscriptions are free, and highly recommended to anyone with an interest in how schools work.
August 18 — Ohio case fallout. In a blistering editorial (no longer online), the Columbus Dispatch calls the state high court’s striking down of tort reform (see item for August 17, below) “an act of arrogance and an affront to the doctrine of separation of powers”. Meanwhile, furious business groups vow to make the next set of judicial elections a referendum on the court’s activism. Though with a nominal Republican majority, “the current seven-member tribunal has gained a reputation as a ‘plaintiffs’ court.’ Two Republican justices, Andrew Douglas and Paul E. Pfeifer, have become frequent swing voters with decisions endearing them to labor unions and trial lawyers.” (Joe Hallett, Columbus Dispatch, Aug. 17).
August 18 — “Dieters still want fen-phen”. The hazards of the drug are frightening; so are those of obesity, and Cincinnati Enquirer reporter Susan Vela found many local residents wishing the system still permitted them a choice. “It calmed the monster in my body,” said one woman who was able to get down to 136 on fen-phen but has gone up to 210 without it. “Who do I sue to get it back on the market? I’m suffering without it.” (Aug. 16; full story). An August 14 Washington Post editorial calls the recent Texas $23 million award against the drug’s manufacturer “a terrible signal, almost guaranteed to bring thousands more plaintiffs to court on flimsy evidence”.
August 17 — Ohio high court says forget tort reform; should unionists be cheering? By a one-vote margin, the Ohio Supreme Court basically notifies the state’s lawmakers that it won’t tolerate any attempts by them to say how the state’s liability law should operate. “Ohio legislators might as well shut up shop and go home,” said Linda Woggon of the Ohio Chamber of Commerce. The decision is the 90th in which a state court has invalidated efforts to curb litigation, according to sources at the American Tort Reform Association, which keeps the dismal count. (Columbus Dispatch (link now dead), Cleveland Plain Dealer, Cincinnati Enquirer coverage). Overlawyered.com intended to give the Ohio constitution a look-through to see whether it in fact contained a provision prohibiting legislatures from legislating, but found that as of this morning the state’s engine for searching the Ohio constitution was broken and returning error messages, which seemed kind of appropriate, actually.
The statute had been challenged not only by the Ohio Academy of Trial Lawyers (which argued its members would lose business) but also by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus Dispatch, said “anyone who has been harmed or injured” deserves “their day in court and…a fair decision from a jury”. That’s kind of ironic, since unions themselves long ago procured for themselves a series of tort reforms far more favorable than anything being asked for by the business community, insulating them from the risk of unbounded jury awards at the hands of complainants who’ve been (say) roughed up by union pickets. In California, for example, state law already pointedly says that citizens’ “right to be free from any violence, or intimidation by threat of violence” does not apply in a context of “otherwise lawful labor picketing” (gee, thanks, guys!) and AB 1268 (Kuehl), now moving toward enactment in the labor/trial-lawyer-friendly state legislature, would curtail unions’ civil liability yet further, curbing the application of exemplary (punitive) damages and vicarious liability even if acts of violence are committed by unionists for the organization’s benefit.
So here’s the net effect: it’s just dandy and highly constitutional for legislators to immunize unions from the danger of adverse jury verdicts for acts of deliberate violence, but it suddenly becomes an unconstitutional invasion of jury prerogatives when they try to set any limits at all on the award of “noneconomic” damages, for categories like pain and suffering and emotional distress, in cases where businesses are charged with responsibility for accidental injuries. What do you think Mr. Burga of the Ohio AFL-CIO would say if someone “harmed or injured” crossing a picket line in Akron or Youngstown decided to claim a constitutional right to “their day in court and…a fair decision from a jury”? Would he still insist that legislatures have no constitutional power to limit liability?
August 17 — New Overlawyered.com page: The case for loser-pays. Despite continuing strong Main Street interest in the loser-pays idea, there’s been precious little in the way of Web resources on it, so we’ve made it the subject of the sixth and latest in our series of topical links pages. It’s the most basic, the most indispensable, and the most overdue of all legal reforms; if we can bring it even a little closer to enactment, our time will have been well spent.
August 17 — Correction. In the August 6 item, “Courts actually begin to define harassment“, summarizing a recent Chicago Tribune report on the ripple effects of last year’s Oncale decision, we erroneously reported that the Tribune article did not mention the Oncale Court’s unanimity. In fact, it did mention it. Our apologies.
August 16 — Think I’m too litigious? I’ll sue! (I). In Bakersfield, Calif., the developer of the Fairway Oaks community won’t sell new houses to attorneys because it considers them too likely to get into disputes. Attorney Timothy Liebaert said he was “shocked” and “very mad” to be turned away on the basis of such a generalization, so — how better to disprove it? — he’s suing them. However, occupation is not among the list of categories covered by California housing discrimination laws, and a Kern County judge proceeded to rule that there are legitimate business reasons for a developer to prefer non-lawyer customers. Fairway’s sponsors had previously sold to two attorneys among 500 home buyers and had gotten into a protracted dispute with one, though it had not gone to litigation. Liebaert has filed an appeal and plans to keep the case going on new theories, such as a claim that a developer, if it wants to pursue a policy of not selling to lawyers, is legally obliged to announce that policy in its ads. (Reuters/Fox News; Los Angeles Times, July 25)
In 1986 it was reported that two medical groups practicing obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients attorney Amanda Williams, who had filed what the doctors considered meritless malpractice suits against some of their number, or her law clerk Sheryl Jolly. Williams said she found the policy “offensive” but said “they no doubt take it personally when I file a suit on behalf of a client”.
August 16 — Think I’m too litigious? I’ll sue! (II). Remind us to stay on the good side of attorney Michael Bidart of Claremont, Calif.’s Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January when he convinced a San Bernardino County jury to vote $120.5 million against Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant that he argued might have saved the life of patient David Goodrich. Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the efforts of “a skillful ambulance-chasing lawyer”. And Bidart responded to this dastardly insult by…suing Huber last month for defamation in Los Angeles Superior Court. Legal correspondent Reynolds Holding comments in the San Francisco Chronicle (August 8) that Bidart is “apparently more adept at dishing publicity than taking it”.
August 16 — To restore individual responsibility, bring back contract principles. In this recent Policy Analysis from the Cato Institute, Professor Michael Krauss of George Mason U. School of Law says one major reason liability law has fallen into disrepute is that courts have supplanted contract with tort principles; it doesn’t matter whether you foresaw a risk and agreed to bear it, they’ll let you sue anyway. Formerly, the law sought to secure parties’ rights to shape their own relationships, the role of tort law being to secure persons against unconsensual invasion. Now reliable law has given way to “a general social insurance scheme”, particularly in areas like product liability and medical malpractice, with lamentable consequences: “our rights have been given increasingly less respect by government”. (Full paper)