Writing in the L.A. Times Magazine, Andy Meisler profiles Napa-based environmental lawyer and former SDSer Mark Pollock and his crusade to drive silver dragées, the little confectionery balls found on some Christmas cookies and gingerbread houses, out of the California market (while garnering some nice legal fees at the expense of the bakers, food importers and others he sues). (“A Tempest on a Tea Cart”, Dec. 18). Virginia Postrel calls Pollock a petty tyrant, says his activities illustrate the need for serious litigation reform, and has some kind words for us along the way (Dec. 19; also see Reason “Hit and Run”). Jim Hu at Blogs for Industry (Dec. 20) investigates exactly how hazardous the little silver balls are and finds the apparent answer: not very hazardous, compared with many other things people choose to eat. He also points out that “dragée is pronounced dra-‘zhA and is derived from the same root as ‘dredge'”. For more on California environmental-suit bounty-hunting, see Nov. 4-5, 2002, Apr. 6, 2004 and these links.
Author Archive
Restraining David Letterman
Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman’s property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer’s lawyers are now attempting to get lifted. Ms. Nestler’s application for the order
requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.
Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter….
When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.
(Jason Auslander, “Letterman lawyers: End Santa Fe claim”, Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges’ over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).
Advice for civil defense lawyers
When riding in an elevator with jurors who’ve just rendered a verdict against your client, avoid calling them “crackers” to their face (John Shiffman, “Workers’ bias suit ends in win, slur”, Philadelphia Inquirer, Dec. 20).
“Making the Leap from PI to IP”
Some Texas personal injury lawyers, feeling squeezed by that state’s far-reaching liability reforms, are eager to shift into contingency-fee patent litigation work, especially in the plaintiff-friendly little jurisdiction of Marshall, Texas (see Jan. 14)(Alan Cohen, Law.com/IP Law & Business, Nov. 14).
Preggers, with tenure?
New right spotted on the horizon: that of continuing to teach at a private Catholic elementary school, though unmarried and pregnant, and despite having signed a pledge to “convey the teachings of the Catholic faith by [one’s] words and actions”. The New York Civil Liberties Union is suing to force St. Rose of Lima school in Rockaway Beach, N.Y. to rehire Michelle McCusker. A New York Daily News editorial says, “It’s called freedom of religion. By all rights, the NYCLU should defend the school’s position rather than assault it.” (“Bigotry – on whose part?”, Nov. 23; Josh Getlin, “Pregnancy sparks faith-based clash”, L.A. Times/Chicago Tribune, Nov. 27; John Leo, “The case of Michelle McCusker”, syndicated/TownHall, Dec. 5).
Won’t testify on domestic violence? Jail her
In San Mateo, Calif., Katina Britt was nearly jailed a few days ago for her refusal to testify against the ex-boyfriend who allegedly battered her. (He was convicted anyway and the charges were dropped.) Under present California law, sexual assault victims cannot be jailed for refusing to testify against their attackers, but domestic violence victims can. Chief Deputy District Attorney Steve Wagstaffe said the court order compelling Britt to testify was “for her own protection”. (Malaika Fraley, “Ultimatum in abuse case: Testify or go to jail”, San Mateo County Times, Dec. 10; Michelle Durand, “Assemblyman to back abuse testimony bill”, San Mateo Daily Journal, Dec. 20; more coverage via Google News). Wendy McElroy wonders: “How has the issue of DV drifted from its early roots of empowering ‘victims’ and encouraging their voices toward imprisoning them and coercing their testimony?” (“Don’t jail domestic violence victims”, Enter Stage Right, Dec. 19).
Gun dealers’ liability for crimes
Despite the enactment of the federal pre-emption bill, some politicians, like New York Assembly Speaker Sheldon Silver, are still pushing the idea:
Gun dealers could be held liable if they sell weapons that are later used to commit a crime under an Assembly proposal that’s under fire by gun-rights proponents.
The measure’s chances for passage are considered remote, though. (Heather Yakin and John Milgrim, “Gun dealers balk at proposal to hold them liable”, Middletown, N.Y. Times Herald-Record, Dec. 20).
NYC transit strike
Which New York elected official has the legal authority and responsibility to take action against the union’s lawbreaking, but almost certainly won’t? Ted has the answer. (Hint: initials are E.S.)
P.S. Thanks to our commenter for pointing out that our prediction above wasn’t accurate as worded, since reports are that Attorney General Spitzer is willing to go to court to enforce the injunction. Ted’s point, which I should have been more careful in conveying, is that it’s doubtful Spitzer will proceed to “seek the full measure of damages on behalf of New York citizenry, and criminal penalties for the criminal contempt of the union leadership”.
More (Dec. 21): The judge’s $1 million/day contempt fine against the union may sound high, but needs to be set against economic damage to the city and its residents amounting to hundreds of millions a day. As Ted points out in comments, it amounts to $30/day per union member; MTA bus drivers make $60,000 a year. In addition, unions frequently succeed in negotiating an amnesty for fines as part of an eventual strike settlement; Steve Malanga of the Manhattan Institute notes that in the TWU’s illegal eleven-day walkout in 1980, “when a judge imposed fines on workers, they simply upped their demands to cover the costs, winning 18% wage increases over two years.” (“What Would Reagan Do?”, WSJ (sub), Dec. 21; “Make the TWU Pay For the Harm It’s Done”, (editorial), New York Post, Dec. 21 (reg); “The transit strike” (editorial), New York Sun, Dec. 20; John P. Avlon, “Hostage for the Holidays”, New York Sun, Dec. 16).
The wages of unconstitutionality
A local columnist reminisces:
Salt Lake City attorney Brian Barnard used to sift through state and local statutes passed decades earlier and since declared unconstitutional, then find a plaintiff to fight them in court.
The laws were normally declared unconstitutional through agreement with government lawyers and the court. Barnard then would be paid attorney fees by the state.
But former Attorney General David Wilkinson disliked the idea of paying Barnard attorney fees, so for a time during his 1980s tenure, he would fight the claim of unconstitutionality. That would require Barnard to file more briefs, adding hours to his work and eventually giving him a fatter paycheck when the attorney’s fees came due.
One time, however, Wilkinson was so late in approving Barnard’s attorney fees that the civil rights attorney persuaded a judge to garnishee Wilkinson’s state salary to satisfy the payment. Wilkinson approved the payment right away.
(Paul Rolly, “Attorney steps on some toes”, Salt Lake Tribune, Dec. 9) (via State of the Beehive).
Lawyer charged with suborning perjury
According to the email sent by the DUI defense lawyer:
“they won’t have anyone there to testify how much you had to drink. You won’t be charged with perjury. I’ve never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we’ll just plead guilty and you can get your jail time over with.”
(Nate Morabito, “Tri-Cities Attorney Arrested For Contempt Of Court”, News Channel 11/Tricities.com (Tenn./Va.), Nov. 30). It’s almost unheard-of for lawyers to be prosecuted for telling clients to lie on the stand — see here, for example — but it looks as if it may happen this time. (via Volokh who got it from CrimLaw)