Overlawyered: Chronicling The High Cost Of Our Legal System

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Bureaucracy vs. Katrina recovery

Jonathan Rauch has a must-read dispatch from devastated St. Bernard Parish, Louisiana:

Cleanup and repair cost the school system tens of millions of dollars, but federal payment has been slow. Reimbursement for small projects goes through five to 10 weeks of federal and state review, according to David Fernandez, the school system’s financial manager. Any expenditure over $1 million is subject to another four to 12 weeks of review in Washington, he said.

This is the so-called “million-dollar queue.” “Anything over a million dollars has to be reported to Congress,” says Brown, the former FEMA director. “Why do you think that is? Congress wants to make an announcement.” In other words, members of Congress want to be the first to boast of a federal project in their district.

“This is all political,” Brown says. “It has nothing to do with good public policy.” …

On private property, even debris — including, for example, 1,600 tree stumps — had to be reviewed for archaeological value before FEMA would pay for removal.

(“Struggling to Survive”, National Journal, Aug. 11; “Stretchier Red Tape”, Aug. 11).

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Foie gras foolery

Chicago’s silly anti-foie gras law is taking effect next week (see Jun. 8 and links therein), but a planned commerce-clause lawsuit against the ban (via Wallace, whose post has a lot of good links on similar bad laws and proposals) is even more silly. In 1995, the Seventh Circuit Court of Appeals upheld an even sillier nanny-state ordinance against spray paint sales that was also challenged on commerce clause grounds: “Just as the Constitution does not enact Mr. Herbert Spencer’s Social Statics, so it does not enact prescriptions from the pages of The Journal of Law & Economics—where, we may assume, an article will appear in due course adding this ordinance to the long list of laws whose costs exceed their benefits.” (Full disclosure: I was a clerk for the author of that opinion at that time.)

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Warrantless Wiretapping Program Struck Down

I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.

While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.

Read On…

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“Have You Tried Rebooting?”

A few quick thoughts about the massive Dell battery recall:

The relatively new Restatement (Third) of Torts: Product Liability proposes some modifications of the common law duty to warn after a sale (as opposed to a duty to warn — i.e., on the packaging — before a sale).

Of course, a manufacturer remains strictly liable for any damages proximately caused by a manufacturing defect before a post-sale warning or recall is announced. Under the Restatement (Third), Section 11, there is still never a “duty to recall,” unless imposed by the government.

Previously, the determination of whether there was a “duty to warn after the sale” was no different than any other test for duty: Did the benefits of a post-sale warning outweigh the costs?

Read On…

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“Legislating Discovery” Pop Quiz

Which of the following was recently uttered by a Member of Congress?

“Cutting-edge research by top scientists from the United States and Israel could…”

a) discover a cure for cancer.
b) locate Noah’s Ark.
c) reduce our reliance on foreign oil.
d) prove the existence of an Intelligent Designer.
e) find a way to end world hunger.

Oh, and if you need a reason to care, is $20 million of taxpayer money annually reason enough?

My previous post on the folly of trying to “legislate discovery” here.

Via Coyote Blog.

European Court Denies Proactive Request for “Food & Water” Order

There but for “the grace…” —

A man with an incurable brain condition has lost his final legal appeal to insist that doctors give him food and drink in the final stages of his life.

Leslie Burke, from Lancaster, feels he will be denied sustenance when his illness makes him unable to speak.

The European Court of Human Rights said it did not believe there was a real threat that his food would be stopped. The European judges refused to reverse a UK ruling that allows doctors to decide a patient’s treatment.

Mr Burke, 46, has Friedreich’s ataxia. It causes a lack of co-ordination, but does not affect mental faculties.

This is certainly not the forum to reopen the Terri Schiavo affair — my posts are the subject can be found at this chain. And I have remained on the sidelines regarding the teenaged cancer victim who was almost forced to undergo debilitating and painful chemotherapy against his will.

I’ll simply note that I consider it axiomatic that food and water are, um, food and water and not “medical care” in the strict sense. And that knowingly permitting a patient under your care for Friedreich’s ataxia to die against his wishes — not of Friedreich’s ataxia, but of dehydration — is homicide.

Discuss.

(Via Medpundit.)

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Perhaps the European courts are correct and Mr. Burke’s litigation was simply not ripe, as we say in the U.S. And perhaps a properly drafted “living will” would preempt any issues or concerns.

On the other hand, a legally recognized spouse would certainly also address those concerns. Generally speaking, when there is any uncertainty, a spouse has the final say about medical decisions when the patient cannot communicate. No living will necessary. Advisable, but not strictly necessary.

Just one of the more than 1,000 ways in which gays suffer in the name of “defending traditional marriage.”

It’s absolutely barbaric.

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The Return of the Coffee Tort

Where’s Ted Frank when you need him?

A bad experience at Starbucks turned into big bucks — 301,000 of them — for a Manhattan lawyer who got a painful hotfoot when a steaming cup of coffee toppled onto her at the java palace.

“I jumped back and looked down,” Alice Griffin, 42, testified. “My foot was steaming, and the puddle was steaming.”

The jury’s April verdict was upheld yesterday by [New York] Supreme Court Justice Emily Jane Goodman — even though the jurist said she was “inclined to agree” the $301,000 that Griffin won at trial “was excessive.”

Gee, absolute deference by a judge. Go figure. I guess remittitur (let alone JNOV) would be “judicial activism.”

In any event, I’m far too humble to blog about hot coffee lawsuits at this site.

Maybe Ted will make a cameo today… [Editor’s note: And he did.]

On Bloomberg’s “Beneficence”

Walter beat me to the punch regarding the announcement that New York City Mayor Michael Bloomberg plans to donate contribute up to $125 million to anti-smoking efforts.

Why the strikethrough?

His effort will include cash for programs that help smokers quit and educate children to prevent them from starting; funds to push for smoking bans and higher tobacco taxes in other cities, states and countries; and money for a system to track global tobacco use and the effectiveness of anti-smoking efforts.

Excuse me, but that’s not “charitable giving.” That’s lobbying.

And I would hope that this portion of Bloomberg’s “benevolence” is therefore appropriately regulated, registered, disclosed, limited, taxed, McCain-Feingolded and generally treated the same way as anyone else’s attempt to buy a law under our current schizophrenic political funding system.

My previous thoughts on campaign finance reform here. A related thread on the abuse of tax exemption by politically active religious leaders and institutions here.

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On “Malpractice Plaintiff” Databases

As consumers, we increasingly have ever more access to information about the enterprises that we may wish to do business with. In the beginning there was the Better Business Bureau, then Zagat Surveys, then BizRate, then online reviews from Amazon, Expedia, iTunes, etc.

In the medical field, patients had indicia such as board certifications and hospital privileges when choosing physicians. There are also services that collect data on malpractice lawsuits — you probably don’t want to retain a doctor (or a lawyer, for that matter) who has lost too many malpractice cases.

Fair enough. But what happens when the professionals turn the tables?

In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.

The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.

Note: The urls “http://www.LitiPages.com” and “http://LitiPages.com” seem to be inactive. Go figure. I guess we now have to treat this post as a hypothetical. Walter blogged about a similar service long ago.

Let’s clearly delineate the two separate concerns here. I will leave to others (Walter?) the task of explaining why a lost lawsuit is not automatically, or even presumptively, a malpractice claim against your attorney.

Read On…

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