There are numerous scholarly books and law review articles on the history of the Federalist Society. The only book or article the Wikipedia article cites in its references section? “101 People Who Are Really Screwing America,” also cited 9 times in the article. Second is the People for the American Way’s hit piece on the organization, cited five times. Also cited: Daily Kos. Welcome to Wikipedia’s NPOV policy, where the N apparently stands for Nader, rather than neutral.
Archive for the ‘Uncategorized’ Category
“Senate CPSC Bill: A Boon for Trial Lawyers at the Expense of Product Safety”
Andrew M. Grossman and James L. Gattuso analyze the CPSC Reform Act, S. 2663 (the update to S. 2045). We discussed Feb. 20 and Feb. 25, as well as briefly Jan. 1. Update: After the jump, Senator DeMint’s office provides the “Top Ten Reasons to Oppose the CPSC “Reform” Act (S. 2663)”
The health costs of defensive medicine
There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.
Malpractice litigation does change doctors’ incentives, but only with respect to short-term results. Because doctors won’t be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.
(Update: Walter writes in to note that “the problem of needless or avoidable CT and MRI scans has been getting a fair bit of discussion at the medical blogs lately, e.g. White Coat Rants, GruntDoc, and KevinMD.”)
March 4 roundup
- Judge allows lawsuit to go forward as class action claiming consumers defrauded because gasoline expands in summer heat and so there’s less in a “gallon” [KC Star, TodaysTrucking.com; earlier at PoL]
- Online speech: when a lawprof says it silences someone not to let them sue for defamation, it’s time to check definitions [Reynolds, Bainbridge, Volokh]
- Should a law school invite Lerach of all people to teach legal ethics? [Massey/Faculty Lounge; earlier] Plus: Congress should investigate how widespread Lerach-style abuses were at other law firms [Columbus Dispatch editorial]
- Usually no one gets hurt when a physician dodges having to deal with a litigious patient, but then there are those emergencies [Brain Blogger]
- A lesson for Canada: judged by results in places like Kansas, the American approach to hate speech (i.e., not banning it) seems to work pretty well [Gardner/Ottawa Citizen]
- “Way way too egocentric”: a marketing expert’s critique of injury law firm websites [Rotbart/LFOMA via ABA Journal]
- More students are winding up in court after parodying their teachers on the Internet [Christian Science Monitor]
- Money in the air? It happens the quiet little Alaskan Native village suing over global warming is being represented by some lawyers involved in the great tobacco heist [NY Times]
- Ninth Circuit panel hands Navy partial defeat in enviro whale sonar suit; ditto federal court in Hawaii [Examiner; earlier]
- Le Canard Noir “Quackometer” flays pseudo-science, some of its targets complain to ISP which then yanks the site: “We do not wish to be in a position where we could be taken to court” [Orac; earlier]
- Hans Bader guestblogged at Point of Law last week, on such subjects as: courts that decide punishment before damages; presumed guilty of child abuse? inconsistent straight/gay treatment in sexual harassment law; and signs that today’s Supreme Court doesn’t exactly show a pro-business bias in discrimination cases.
College student’s fatal alcohol binge
Many defendants, including five of her friends as well as the inevitable bar, are to blame for not doing more to keep Amanda Jax from downing so much alcohol that night, according to the lawsuit by her family. (“Alcohol death: five times limit”, Mankato (Minn.) Free Press, Nov. 9; Dan Nienaber, “Lawyer: Civil suit coming in drinking death”, Mankato Free Press, Dec. 28; “The defendants and their alleged actions that night”, Minneapolis Star-Tribune, Feb. 28; Scarlet Raven, Feb. 29).
Guestblogger thanks
Our thanks again to Peter Morin for his guestblogging last week. Don’t forget to check out his regular posts at Wavemaker. And if you think you might be interested in joining us for a guest week of your own — whether you’re an existing blogger or not — let me know at editor – [at] – thisdomainname.com.
Quasi-off-topic musing
Inconceivably beyond my frame of reference as an American: self-operated rides in a Denmark amusement park (as part of a larger travelogue on a very strange park, Bon Bon Land). Instructions are provided on signs: customers seat themselves, and the next person on line is supposed to press the appropriate button at the appropriate time to send a customer hurtling down a zip line.
It fascinates me how other cultures tolerate risk and reject idiot-proofing so much differently than the US. I wonder which way the causal arrow goes with the general litigiousness of American culture: are we litigious because we’re risk-averse, or are we risk-averse because we’re litigious? If the former, perhaps the European example actually reflects the moral hazard of social insurance. (Of course, other photos on the travelogue pages demonstrate other important differences between Denmark and the US.)
Related: Subcontinental Drift on zoos in Southeast Asia.
Update: Amusement-park-loving torts prof Bill Childs comments, which is appropriate, because the post was originally just going to be an email to Childs and a handful of other people before I realized there was no reason not to just expand it into a post.
Nanny staters target Anheuser-Busch and Miller
Public Citizen’s blog announced that CSPI plans to sue the beverage sellers, asking for disgorgement of profits from flavored malt beverages, unless they agree to take them off the market. Their theory? By making flavored alcoholic beverages that taste good, they are effectively marketing to children. (Because, after all, adults don’t like beverages that taste good.) CSPI also claims that it violates FDA rules to sell alcoholic beverages that contain caffeine, which would be a surprise to every restaurant that offers Irish coffee.
Arbitration and “coercion”
Relevant to a recent comment discussion, words of wisdom from Judge Easterbrook in IFC Credit Corp. v. United Business & Indus. Federal Credit Union:
Ever since Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), enforced a forum-selection clause printed in tiny type on the back of a cruise-ship ticket, it has been hard to find decisions holding terms invalid on the ground that something is wrong with non-negotiable terms in form contracts. See also, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) (unequal bargaining power does not justify refusal to enforce an arbitration clause in a form contract); Seawright v. American General Financial Services, Inc., 507 F.3d 967 (6th Cir.2007). As long as the market is competitive, sellers must adopt terms that buyers find acceptable; onerous terms just lead to lower prices. See, e.g., Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.1997); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996); George L. Priest, A Theory of the Consumer Product Warranty, 90 Yale L.J. 1297 (1981). If buyers prefer juries, then an agreement waiving a jury comes with a lower price to compensate buyers for the loss-though if bench trials reduce the cost of litigation, then sellers may be better off even at the lower price, for they may save more in legal expenses than they forego in receipts from customers.
There is no difference in principle between the content of a seller’s form contract and the content of that seller’s products. The judiciary does not monitor the content of the products, demanding that a telecom switch provide 50 circuits even though the seller promised (and delivered) 40 circuits. It does not matter that the seller’s offer was non-negotiable (if, say, it offered 40-circuit boxes and 100-circuit boxes, but nothing in between); just so with procedural clauses, such as jury waivers. As long as the price is negotiable and the customer may shop elsewhere, consumer protection comes from competition rather than judicial intervention. Making the institution of contract unreliable by trying to adjust matters ex post in favor of the weaker party will just make weaker parties worse off in the long run. Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 282 (7th Cir.1992) (“The idea that favoring one side or the other in a class of contract disputes can redistribute wealth is one of the most persistent illusions of judicial power. It comes from failing to consider the full consequences of legal decisions. Courts deciding contract cases cannot durably shift the balance of advantages to the weaker side of the market; they can only make contracts more costly to that side in the future, because [the other side] will demand compensation for bearing onerous terms.”).
Deal or Raw Deal?
Howie Mandel’s stunningly successful Deal Or No Deal television game show had an amusing little side-show.
Viewers were invited to play the “Lucky Case Game” by choosing which of six on-screen gold briefcases was the lucky case. Viewers submitted their choice on the Internet for free or through a text message that cost 99 cents. At the end of the program, the winning briefcase was revealed, and the winners were entered into a random drawing. The winner of that drawing received a prize of as much as $10,000.
One enterprising Georgia lawyer claims that this amounts to illegal gambling and has filed a class action lawsuit to obtain refunds of the 99 cent text message fees (plus attorneys fees, of course):
When a Forsyth County couple sent 99-cent text messages trying to win a prize on the NBC game show “Deal or No Deal,” they engaged in illegal gambling and should get their money back, a lawyer told the Georgia Supreme Court on Tuesday.
So should all other Georgians who sent text messages in the show’s “Lucky Case Game” and lost, lawyer Jerry Buchanan said. A judge hearing the case has estimated the bounty could reach tens of millions of dollars.
The case has been report to the state Supreme Court for the answers to two questions:
1. Does Georgia law allow losers of an illegal lottery to recover the money they lost?
2. And, if so, may the losers recover that money from the lottery’s promoter or organizer?
No mention of the third question.
(Atlanta Journal & Constitution, ajc.com, Feb. 27)
Since the suit was filed, the game has stopped.