Overlawyered: Chronicling The High Cost Of Our Legal System

Author Archive

Nancy Grace (& lawprofs) on the Duke case

K.C. Johnson has assembled the details (Feb. 19) on the CNN/Court TV commentator’s scurrilous handling of the lacrosse rape allegations. For more on Grace, see Mar. 1, 2006, as well as Legal Blog Watch, May 4, 2005, and Suz at Large, Mar. 2, 2006 (quoting Prof. Bainbridge’s pungent assessment).

The legal professoriate does not escape unscathed from Johnson’s attention, either. He is a particular critic (e.g., Jan. 21) of the televised pronouncements on the case of New England School of Law professor Wendy Murphy. And recent assertions by South Texas College of Law professor Kathleen A. Bergin on the Feminist Law Professors blog (Jan. 29, declaring the players “far from ‘innocent'” whether or not a rape is proven in court) fail to stand up to critical scrutiny, Johnson says (Feb. 18). (More: Cernovich).

P.S. And here’s the Saturday Night Live parody. Plus: Ambrogi, Bainbridge.

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Social life of a blawger

On Friday I attended New York Law School’s conference “Writing About the Law: From Bluebook to Blogs and Beyond“. Aside from the considerable merits of the program itself (PDF), organized by NYLS’s Cameron Stracher, I met a lot of blawgers, lawprofs and others whose work I’ve been reading for years. At lunch, when Northwestern lawprof Jim Lindgren (Volokh Conspiracy) kindly suggested I join his table, I found myself seated between David Lat (Above the Law) and Ann Althouse; the rest of the table consisted of NYLS professors Jethro Lieberman (The Litigious Society) and Arthur Leonard, and publisher/editor Bernard Hibbitts of Jurist. Earlier in the day, I met Paul Caron (TaxProf), Jack Balkin (Balkinization), and Larry Solum (Legal Theory Blog), as well as catching up with old friend Randy Barnett (Volokh). For more on the program, see Larry Solum’s posts here, here and here, David Lat’s here, here and here and Ann Althouse’s here and (Times Select) here.

On Jan. 28, I attended the pre-launch party in Manhattan for BlawgWorld 2007, a volume produced by the TechnoLawyer people which pulls together a sampling of 2006 posts from 76 law-related blogs, rather like a blog festival in print. Among those I finally met in person was George Lenard of George’s Employment Blawg; I also got to say hello to a number of other blawgers I’d run into previously, including Bruce MacEwen of Adam Smith, Esq. and Arnie Herz of Legal Sanity. I can be spotted in a few of the pictures from the event, such as this one, this one and (seeming to pound my hand against the wall, though I was not in fact frustrated) this one. Clearly I should get out more often.

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Ordering cheesesteaks in English, cont’d

Updating our Jun. 12, 2006 entry: “The Philadelphia Commission on Human Relations notified Geno’s owner Joey Vento this week that it had found probable cause that his sign urging patrons to order in English is discriminatory. The next step is to schedule a hearing to settle the dispute or to escalate the charges against the owner of the South Philadelphia sandwich stand.” Vento, who has enlisted on his behalf the Southeastern Legal Foundation, the conservative public-interest law outfit, says he has never actually declined anyone’s order because it was not made in English, but the commission contends the sign could nonetheless make non-English-speakers feel unwelcome or discriminated against. (Andrew Maykuth, “Stakes get higher for Geno’s”, Philadelphia Inquirer, Feb. 9).

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Update: Streaming-media patent troll goes respectable?

The Electronic Frontier Foundation in 2004 derided Acacia Technologies Group’s claims of ownership over streaming-media technology as “laughably broad” (see Aug. 17, 2004), but the firm has prospered since then through licensing deals with big companies. It hasn’t had to face its toughest courtroom challenges yet, though. (Xenia P. Kobylarz, “Extreme Makeover: From Patent Troll to the Belle of the Ball”, IP Law & Business, Feb. 15).

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Update: Mich. domestic partner benefits

As we noted back on Mar. 20, 2005, some Religious Right campaigners appear to have talked out of both sides of their mouths on the question of whether their proposed anti-gay-marriage amendments in states like Michigan would put an end to the availability of existing health insurance benefits for the domestic partners of employees at public entities such as cities and universities. When urging voters to approve Proposal 2, these campaigners suggested that the measure would leave existing benefits undisturbed; once it was on the books, they supported efforts to invoke it to nullify the benefits. Now a Michigan appeals court has agreed that Proposal 2 does ban public-employee DP benefits. Ed Brayton of Dispatches from the Culture Wars has details (Jul. 5, 2006; Feb. 4 and Feb. 5, 2007; see also Nov. 22, 2006) on the, um, fancy footwork engaged in by two Religious Right litigation groups, the Thomas More Law Center and the Alliance Defense Fund. For more, see John Corvino, “A tragic lie in Michigan”, Between the Lines/Independent Gay Forum, Feb. 8; Jonathan Cohn, “Spouse Abuse”, The New Republic, Feb. 15; Andrew Sullivan, Feb. 15.

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Update: C$341K trauma from seeing bottled fly

Updating our Apr. 26, 2005 entry, from Canada: “A Windsor, Ont., man lost out on a $341,775 court judgment yesterday, when the Ontario Court of Appeal ruled that a bottling company should not have been held liable for triggering a phobia of flies that altered his personality and killed his sex life.” No one in the Mustapha family consumed the fly, or any of the water that had come into contact with it, but Waddah (Martin) Mustapha said the unsettling sight had precipitated a disabling psychological aversion. The Ontario court — applying Canada’s costs-follow-the-event principle — assessed $30,000 in costs against Mustapha. (Kirk Makin, “Appeal court rules against man haunted by fly in water bottle”, Globe and Mail, Dec. 16; opinion in Mustapha and Culligan of Canada (PDF)). More: Supreme Court of Canada rules against Mustapha (May 23, 2008)

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What Lincoln said

Abraham Lincoln, as we’re sometimes reminded around this time of year, made a living as a practicing lawyer, much of it in trial practice. For some reason this website has never gotten around to citing Lincoln’s Notes for a Law Lecture, possibly his best-known pronouncement on the ethics and practicalities of law practice. Some highlights:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”

“There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

Among those calling attention to Lincoln’s comments on lawyering this week are David Giacalone (Feb. 12; see also here and here) and Daniel E. Cummins in Pennsylvania Law Weekly (“Lincoln Logs of Wisdom”, Feb. 12), both of whom offer additional quotations of interest.

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“Plavix, lawyers and externalities”

Trial lawyers are advertising for cases against the anti-clotting drug Plavix, which worries DB at MedRants (Jan. 31):

Plavix is an important drug for the proper indications. Having stents placed is a proper indication. Like many drugs, Plavix has side effects. Because it inhibits platelet aggregation patients taking Plavix are more susceptible to bleeding. We know that side effect, and must balance the side effect against the benefits that accrue to preventing stent clotting.

We all see the despicable ads from trial lawyers. Whenever a drug has a side effect they see a pot of gold. Obviously these ads scare patients. The externality here comes from these ads. These ads are meant to attract lawsuits, but they additionally scare patients from taking beneficial drugs. We see this phenomenon often.

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