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Why wacky warnings matter

David Rossmiller blogs:

My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: “I can see someone doing that!” Personally I’ve seen folks do much more ridiculous things many times.

The issue is whether people doing “ridiculous things” should have a cause of action for their own failure of common sense, or whether we require manufacturers to treat all of their adult customers like infants on pain of liability.

Such overwarnings have real social costs: as numerous studies have documented, if one’s personal watercraft manual says “Never use a lit match or open flame to check fuel level,” one’s going to be less likely to slog through the whole thing and find the warnings that aren’t so obvious. In many cases, the “failure-to-warn” is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus “hiding” its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level—and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.

The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a “Do not iron” warning on a lottery ticket is infinitesimal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credulous or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases—such as the McDonald’s coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn’t “big enough” to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds—aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.

Privacy laws and James Kim

In today’s WaPo, Spencer Kim, the father of James Kim, the father of two who died of hypothermia after his family became lost in an Oregon park, notes the effect that privacy laws and liability concerns had on the search:

Congress should change the law so that most recent credit card and phone-use records can be immediately released to the next of kin in the event of an emergency. Privacy laws are important to safeguard personal information, but there needs to be provision for exceptional access to information by relatives when it is critical to a family member’s survival.

Four days passed before we even knew James and his family were missing. But because my family was unable to confirm credit card and phone-use information until days after their absence was discovered, the start of the search was needlessly delayed. Precious time and a precious life were lost. Privacy concerns kept both the hotel where James and his family last stayed and the restaurant where they last dined from sharing credit card records, thus denying us for days important clues that would have helped narrow the initial search area.

The Founders and civil justice reform

Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:

I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.

Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.

But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.

Read On…

Sen. Edwards’ record (and some kind words)

Bill Dyer (Dec. 30), following up on Stephen Bainbridge (Dec. 28), has some thoughts about “whether Edwards’ career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.” Along the way, he has some kind things to say about the authors of this site, which are much appreciated.

The question of what sort of pro bono work Sen. Edwards did during his legal career has also been getting attention recently (as in this guest post at Andrew Sullivan’s). For our take on that, see Jul. 27, 2004.

January 4 roundup

Usually it’s Ted who posts these, but I don’t see why he should have all the fun:

  • Latest ADA test-accommodation suit: law school hopeful with attention deficit disorder demands extra time on LSAT [Legal Intelligencer]

  • John Stossel on Fairfax County (Va.) regulations against donating home-cooked food to the homeless, and on the controversy over Arizona’s Heart Attack Grill

  • More odd consequences of HIPAA, the federal medical privacy law [Marin Independent Journal via Kevin MD; more here, here]

  • UK paternalism watch: new ad rules officially label cheese as junk food; breast milk would be, too, if it were covered [Telegraph; Birmingham Post]; schoolgirl arrested on racial charges after asking to study with English speakers [Daily Mail via Boortz]; brothers charged with animal cruelty for letting their dog get too fat [Nobody’s Business]

  • Stanford’s Securities Class Action Clearinghouse reports impressive 38 percent drop in investor lawsuit filings between 2005 and 2006, with backdating options suits not a tidal wave after all [The Recorder/Lattman]

  • Ohio televangelist/faith healer sued by family after allegedly advising her cancer-stricken brother to rely on prayer [FoxNews]

  • Legislators in Alberta, Canada, pass law enabling disabled girl to sue her mom for prenatal injuries; it’s to tap an insurance policy, so it must be okay [The Star]

  • California toughens its law requiring managers to undergo anti-harassment training, trial lawyers could benefit [NLJ]

  • Family land dispute in Sardinia drags on for 46 years in Italian courts; “nothing exceptional” about that, says one lawyer [Telegraph]

  • “For me, conservatism was about realism and reason.” [Heather Mac Donald interviewed about being a secularist]

Best of 2006: November

Ten-best lists

Christopher Taylor, at Word Around the Net, has nominated his choices for top ten outrageous lawsuits of 2006, giving us an appreciated acknowledgment along the way (Jan. 2). And I have a few critical things to say at Point of Law (Jan. 3) about the curiously narrow selection process by which some legal analysts nominate Top Threats To Civil Liberties.

Thanks to guestbloggers

My sincerest thanks to all three of the guestbloggers who (along with Ted) have kept things lively over the past two weeks: George M. Wallace, whose work you can follow at Declarations and Exclusions and A Fool in the Forest; Kevin Underhill of Lowering the Bar; and Skip Oliva of the Voluntary Trade Blog. Well done! I also notice that the comments section has been humming along busily. I should go away more often.