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A Lipstick-Up

Various cosmetic companies settled a class action suit today. They were accused of price-fixing and collusion, the rank enemies of a competitive market. The companies, by and large, settled — it’s probably cheaper to do that than to litigate, given the chance (however slight) of a jury giving the class a bonanza of a deal. So, what do all the wrong customers get? One (1) item. Enough lipstick to last a few weeks. What do the lawyers get? The AP didn’t mention it, but I’m sure it’s a lot more than a tub of mascara and some blush. Would anything make a class action lawyer blush? (“Settlement could give away $175 million in cosmetics,” AP, Jul. 22). Update Apr. 14, 2004: settlement challenged; May 19: more details; Dec. 3, 2004 and Mar. 14, 2005: judge approves settlement.

Fun with EULAs

We’ve all seen them, checked off the “I Agree” box, clicked “Continue” or “Next” or whatever the button says. But end user license agreements (EULAs) aren’t read too often. Which is why this is funny.

Say It Ain’t So, Ko

A Colorado DA has gone ahead and charged LA Laker star Kobe Bryant with third-degree sexual assault. (“Kobe Bryant Charged With Sexual Assault,” AP, Jul. 18). He’s already admitted to committing adultery (which would still keep him near the top of the “NBA’s Most Noble Stars” list). But given the severity of this charge — it’s borderline rape, if not rape itself — there’s not going to be a wrist-slap plea like in the Chris Webber perjury case. (“Webber’s Guilty Plea Ends Michigan Probe,” AP, Jul. 15).

The statements made today by the DA in Kobe’s case are troubling, particularly his claim that “[these charges] did not come easily.” (ESPN, Jul. 18). My friend Ananda Gupta pointed out that a cynic would believe the DA would want to press charges — after all, Marcia Clark is a household name even almost a decade post-OJ. On the other side, if the DA has a case, where’s the difficulty? (If you want another OJ reference: “If there was a fight, you must indict.”)

Yes, the DA has prosecutorial discretion as to what cases to bring, but if, in his words, he believes he “can prove this case beyond a reasonable doubt,” the decision should be a mechanical one. There are few exceptions to this (especially in sexual assault cases), and the popularity of the would-be defendant and related fall-out isn’t on the list of loopholes. Or at least it shouldn’t be.

Rose Gets Nullified

The mock Pete Rose trial ESPN just had on TV had interesting results. 11 jurors believed Rose bet on baseball, which carries with it an automatic banishment. But of those 11, seven voted to allow Rose onto the Hall of Fame ballot.

I, for one, think Rose’s permanent expulsion should be just that — permanent. But that’s a post for a different website. What’s interesting about the faux ESPN trial is that Alan Dershowitz, the pseudo-prosecutor, asked judge Catherine Crier to charge the jury with two questions: first, did Rose gamble, and if so, shoud he be given the ole’ heave-ho? Johnnie Cochran, the defense attorney (why is this starting to sound like the lead up to a bad punchline?), objected, saying Dershowitz was changing the rules. But Dershowitz’s strategy was clear — he wanted the jury to have to reconcile their factual finding of guilt with their desire to acquit. Crier ruled in favor of Cochran.

If this were a real criminal trial, the charge wouldn’t be anything like the one here. The jury would be asked to determine simply if Rose gambled, and if they did beyond a reasonable doubt, they’d be instructed to find Rose guilty. The jury would have the power to acquit Rose; they’d simply not be told about it.

While I, and many (although admitedly a small minority) would agree with the outcome where nullification is not an option, I hope it’s clear to the thousands of people who watched this Rose trial that taking that power from the jury would make the moot court truly moot. If you ever need an example on why nullification is a proper and arguably necessary instruction, just look to this case. If the only question is “Did Pete Rose gamble on baseball,” there’s not much to debate. (Unless you’re Bill James.) But there’s certainly a debate going on, as there should be, and if it comes out in favor of the accused, let the jury set him free.

Newsflash: Judge Has Sense of Humor

The law school meme of the moment is this order by a magistrate judge (link via, but trust me, it’s going around). Read the whole page and a half when you get a second. It’s a .pdf file, but Eugene Volokh has it as plain text on their site. And remember, the judge has a sense of humor, but it’s not necessarily a good one. You have to turn that in when you take the LSAT.

Suing over H-E-Double Hockey Sticks

The big silliness of the day? A reverend, presiding at a funeral, allegedly said that the recently deceased man of the hour “was “living in sin,” “lukewarm in his faith” and that “the Lord vomited people like Ben out of his mouth to hell.” The survivors, of course, are suing for emotional and physical suffering. Now, say what you will about the emotional claim — I’m sure most would agree with me and shake their heads in disbelief — but physical harm? There are no allegations that the reverend dropped the casket on anyone’s foot. But hey, it could get even more ridiculous. Writes Ted Frank: “Clearly the plaintiffs aren’t thinking ambitiously enough. If their concern is the emotional distress from townspeople thinking that their father is in hell, they should be demanding injunctive relief to place their father in the appropriate afterlife.” Or perhaps a restraining order against Satan, ordering him to keep a distance no less than three ethereal planes from the soul in question? (Zelle Pollon, Reuters, Jul. 17). Other commentary: See the Volokh Conspiracy, OpinionJournal’s Best of the Web Today (last item).

I Quit! Now Pay Me!

Eric Gregg’s lawsuit has been delayed yet again. Gregg, a former National League umpire, was one of 22 who (a) resigned in 1999 and (b) were shocked (shocked!) that the league actually made them stay resigned. Now he wants his severance package as if he were fired. (AP, Jul. 14; link via How Appealing).

Gregg’s case is a hysterical blend of personal responsibility — Gregg resigned out of principle, and wasn’t given his job back — and dumb luck, given his lackluster record as an ump. The story: Gregg claims that he wasn’t fired for cause: “There is no doubt that they are discriminating against me because of my weight.” (“Interview with the Umpire,” Philadephia City Paper, Aug./Sept. 1999). Ignore the fact that he resigned as part of a ploy to get MLB to choose between paying severance pay (why they’d have to pay out in cases of resignation is beyond me). But the reality is that a 1998 survey of players, coaches, and managers (run by the Players’ Association) rated Gregg as the second-to-worst ump in the NL; as Doug Pappas pointed out, “[n]o one needs statistics to conclude that the likes of Ken Kaiser and Eric Gregg don’t belong in the majors. (Pappas’ site, 1999). He was also rated one of baseball’s five worst umpires in a 1998 Baseball Weekly survery.

While his weight was made to be an issue — he was fined $5,000 in 1999 for being too fat — there could be a reason for that. It may have affected his on-field abilities. Never mind that he’d have to run into position to make a call. In 1978, Gregg bumped into a catcher trying to make a throw and called interference on himself. Almost two decades later, he was granted a leave of absence to enter a weight-loss program. (Thanks to Baseball Library for the background info.)

Appealing to a Higher Authority

While most of the law-related praying news centered on Pat Robertson’s missives to “ask for miracles in regard to the Supreme Court” (CBS/AP, Jul.15), Deion Sanders — ex-baseballer, ex-footballer, now an NBC football analyist — allegedly did the same. Rumors had him refusing to pay more than $1,500 of a more than $4k car repair bill — the repairman claims that “[w]hen Sanders drove up, he refused to pay the invoice amount, handing Compton a $1,500 check and saying, ‘Praise Jesus … I follow what in my heart I’m told to pay.’ (ESPN/AP, Jul. 14). One reader wonders, “I don’t know how he could have won.” Answer: Prime Time apparently told the repair man up front that he’d only be forking over $1,500, so the bill best not be padded. And imagine that — the court actually enforced the contract. Perhaps it helps to be a well-known celeb. (Fort Worth Star Telegram, Jul. 14).

Canada: Protect Thyself, Get Arrested

Twice in June, Raj Singh Valcha and Harjeet Singh Saini’s corner store was burglarized. Total cost: $42,000. Total arrests: Zero. Their reply: Take shifts with an aluminum bat, lying in wait for the inevitable third strike. They didn’t have to wait long — before the month was out, they were burglarized again. One criminal was incapacitated, the other escaped. And the storeowners? Cited for aggravated assault. To make matters worse, a reader writes: “Of course the editorials are against defending your own property.” Of course. The first-year law student prospective? No shock here either. When we heard our torts professor mention burglars who slip and fall and sue the would-be victims, mouths drop, people laugh in disbelief, but hey, that wears off by the third day of class. (“Vigilante policing no way to fight crime,” Montreal Gazette,
Jul. 2; also check out a letter to the contrary: “Law now favours robbers and oppressors,” Undated).

Chewing the Shrink’s Ear Off

Mike Tyson is being sued — by his psychiatrist. (If that’s not the start of a good post, what is?) Seems that Iron Mike — a candidate for psychotherapy if there’s ever been one — has been seeing one Mitchell Gibson at the cost of $12k a month, plus $900 for “emergency cross-country visits.” But now Mike won’t pay up the $44,000 he owes the analyst. We’re not one to agree with Tyson, but if the shrink couldn’t talk him out of getting the Che Guevara and face tattoos… well, at least he didn’t bite Lennox Lewis. Yet. (“Tyson sued by his shrink,” Agence France-Presse, Jul. 15; Link via Fark).

And that’s not all! Tyson is doing his part keeping lawyers above the poverty line by beating up bodyguards. Apparently, the former champ “[ran] down the median of I-95 on top of the concrete barrier, with a string of winded people in pursuit” and then punched Izzy Bolton, Don King’s bodyguard, smack in the face. Bolton needed stitches and now claims to suffer from double vision. (“Mike Tyson sued over attack on Don King bodyguard,” Atlanta Constitution-Journal, Jul. 12).