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Blawg Review #56 at Point of Law

Ted and I join with Jim Copland, Larry Ribstein, Tom Kirkendall, and Sam Munson this morning as co-hosts of the week’s traveling carnival of law-related blogs, Blawg Review, over at Point of Law. A very few highlights:

* Ted comments on the self-unmasking of pseudonymous blogger “Juan Non-Volokh”, on various matters connected with Joe DiMaggio. and on Howard Bashman’s Stakhanovite work pace.

* Jim discusses the tax consequences for plaintiffs of confidentiality agreements in settlements, via Evan Schaeffer’s other weblog; a new way for the plaintiff’s securities bar to get around PSLRA; and a Court TV reality show set in New York City’s real-life night court.

* Larry, Tom and Sam round up posts on corporate law, on the Enron trial and other prosecutorial matters, and on a variety of subjects including law review style.

* And I discuss an on-the-job love triangle that eventuated in a Title VII lawsuit alleging sex discrimination; liability headaches for online enterprises and software manufacturers; the case in which the Cleveland bar association is trying to get a dad penalized for unauthorized practice of law after he successfully represented his own son in special-ed proceedings; Long Island legislator Jeffrey Toback’s demagogic suit against Google for allegedly interfering with children, as dissected by Eric Goldman; and the fast-rising number of cases filed under ERISA, the federal pension and employee-benefits statute.

It’s all here. Next week’s Blawg Review will be hosted by Lawyerlike.

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Update: Canada high court rejects social-host liability

In a ringing reaffirmation of personal responsibility, the Supreme Court of Canada has unanimously rejected an attempt (see May 2) to hold party givers financially liable for a car crash caused by a drunken guest:

“A person who accepts an invitation to attend a private party does not park his autonomy at the door,” wrote Chief Justice Beverley McLachlin.

“The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity.”

Unlike tavern owners, said the court, social hosts can’t monitor their guests’ drinking, may be inebriated themselves, and aren’t trained to detect whether departing guests are intoxicated.

Moreover, “the law does not impose a duty to eliminate risk.

“It accepts that competent people have the right to engage in risky activities,” said the judgment. “Conversely, it permits third parties witnessing risk to decide not become rescuers or otherwise intervene.”

(Bruce Cheadle, “Top court rejects drunk guest lawsuit”, CP/Canoe, May 5; Kathleen Harris, “”, Winnipeg Sun, May 6; opinion, Childs v. Desormeaux; Ann Marie McQueen, “Case boils down to personal responsibility”, Ottawa Sun, May 6; Michelle Mann, “Supreme Court couldn’t rule on compassion in party host case”, CBC, May 5). Numerous U.S. states have embraced social-host liability, whether through legislation or through unilateral court reinterpretation of common law doctrine.

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Update: Wonder Bread dough

First came the mixing up of allegations of racial discrimination against Interstate Bakeries, producer of Wonder Bread and Hostess Twinkies (Jul. 3, 2000). Then came the baking of juror sentiment to a tasty turn by San Francisco plaintiff’s lawyer Angela Alioto’s team, resulting in a $132 million award to 21 workers (Aug. 4, 2000). Then came some deflation of the spongy loaf, as a judge lopped $97 million off the award (Oct. 10, 2000). Now, six years later, the case having settled for maybe $25 million, a lawyer who worked with Alioto continues to battle her in court for a share of the mouth-watering fees (Mike McKee, “Lawyer Still Seeks Slice of Wonder Bread Fees”, The Recorder/Law.com, Apr. 28).

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NYC plans “interventions” with diabetics

More scary paternalism in the name of public health from the Bloomberg crew: the New York City government has begun “legally requiring laboratories that do medical testing to report to the Health Department the results of blood-sugar tests for city residents with diabetes — along with the names, ages, and contact information on those patients. City officials are not only analyzing these data to assess patterns and changes in diabetes prevalence in the city, but are planning ‘interventions.’ … If you wish to keep your medical data confidential, you cannot.” Coercive public-health techniques originally seen as needed to combat communicable and infectious disease will now be deployed in hopes of correcting less-than-healthy individual behavior. Where’s HIPAA, the manically overbroad federal patient-privacy law, now that it might actually do some good? (Elizabeth Whelan, “Big Brother Will See You Now”, National Review Online, Apr. 25).

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Blawg Review #56 upcoming at Point of Law

Next Monday sister site Point of Law will be hosting Blawg Review #56, the weekly traveling carnival which rounds up some of the best recent law-related blog writing. If you’d like to nominate a post from your own or someone else’s blog, you’ll need to do so by Saturday evening. The submissions guidelines are here, and you can submit posts here.

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From the lawyers-as-legislators file

There’s nothing tremendously surprising about, say, a criminal defense lawyer winning election as a state legislator and then using his or her influence to strengthen due process protections for persons accused of crimes or to lower excessive penalties for those convicted. But what are we to make of the much rarer, opposite phenomenon — the criminal defense lawyer who gets elected and then pushes for the application of more stringent penalties against people like his own clients? Jerry Stratton, Charles Homiller, Radley Balko, and Lines in the Sand all discuss the case of Virginia Del. David Albo, a Fairfax Republican whose day job is as a lawyer defending motorists from DUI and other traffic charges. Del. Albo is also a sponsor of a bill in Richmond that would stiffen traffic fines as a way of providing money to fund transportation projects, and he has been the sponsor over the years of numerous other bills that make life more difficult for traffic defendants. Radley Balko is perhaps uncharitable when he suggests that the motive of lawyer/legislators like Albo is to “[steer] customers toward their criminal defense practices” — it’s possible, after all, for a lawyer to hold honest convictions that happen to be adverse to their clients’ interests. But it’s hard not to join in Balko’s parting observation: “I wonder if Albo tells his clients that he wrote many of the laws they’ve hired him to defend them from.” Update: Point of Law, Jun. 25, 2007.

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Update: Teflon class actions

Class action lawyers are seeking to roll together lawsuits against DuPont on behalf of persons in fifteen states who’ve bought the non-stick cookware, whether or not those persons feel aggrieved or have inadvertently left empty pans unattended on the heat with resulting fumes. The sum bandied about as a remedy, $5 billion, hasn’t changed since we covered the story last summer (Jul. 20), but the tone of the plaintiff’s lawyers has grown noticeably more alarmist, as in the case of Kim Baer of Des Moines, who claims that “the material could become toxic when heated ‘enough to fry an egg'”. (“Plaintiffs seek class action in DuPont Teflon lawsuit”, AP/Richmond Times-Dispatch, Apr. 21). And lead plaintiff’s counsel Alan J. Kluger contends: “This stuff shouldn’t be on the market, period.” (Peter Geier, “Teflon Litigators Hope Class Action Sticks”, National Law Journal, Apr. 26).

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“False Rape Accusations May Be More Common Than Thought”

Yeah, and thought’s common enough (Wendy McElroy, FoxNews.com, May 2).

All levity aside, this is a serious column laying out some statistics adduced a decade ago by Peter Neufeld and Barry C. Scheck of the Innocence Project:

They stated, “Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect.”

The authors continued, “these percentages have remained constant for 7 years, and the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate.”

If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). The relatively low estimate of 25 to 26 percent is probably accurate, especially since it is supported by other sources.

McElroy cites a number of caveats which should be kept in mind by those who would cite the Neufeld/Scheck numbers. At a minimum, however, they should serve to refute the still-sometimes-heard contention that false accusation is exceedingly rare. More from McElroy: “Duke Rape Case Raises Issue of Protecting Identity of Accused”, FoxNews.com, Apr. 26; “Did Justice or Politics Drive Arrests in Duke Lacrosse Case?”, Apr. 18). More on Duke case: Cathy Young, syndicated/Reason.com, May 2. P.S. A riposte, and comments, at Ampersand.

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