Overlawyered: Chronicling The High Cost Of Our Legal System

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“Goodbye, war on smoking. Hello, war on fat”

But somehow, “the food industry” doesn’t sound quite as evil as “the tobacco industry.” Something about food — the fact that it keeps us alive, perhaps — makes its purveyors hard to hate. For that matter, the rationale for recent bans on smoking is the injustice of secondhand smoke, and there’s no such thing as secondhand obesity. …

These obstacles don’t make the assault on junk food futile. But they do clarify how it will unfold. It will rely on three arguments: First, we should protect kids. Second, fat people are burdening the rest of us. Third, junk food isn’t really food….

A fact sheet from [Iowa Sen. Tom] Harkin implies that schools should treat milk, French fries, and pizza like soda, jelly beans, and gum.

(William Saletan, “Junk-Food Jihad”, Slate, Apr. 15).

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Update: “Million Little Pieces” class actions

Following the revelation that author James Frey presented fantasies as if they were autobiographical fact, enough outraged readers have stepped forward to demand cash damages — or at least enough class action lawyers have simulated the stepping forward of such outraged readers — that defendants Random House and Doubleday are now seeking the consolidation of no fewer than twelve lawsuits filed around the country. The federal Judicial Panel on Multidistrict Litigation will soon consider (PDF, scroll to p. 11) the publishers’ motion to aggregate into one proceeding suits filed in the Southern District of New York, Northern District of Illinois, Western District of Washington, Eastern District of Michigan, Central District of California, and Southern District of Ohio (via Childs). For Ted’s extensive coverage of the Frey scandal and suits, see Jan. 31 and links from there.

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Lott v. Levitt II

I appear to have been too generous to Lott’s complaint when I first criticized it. William Ford, a Bigelow teacher at University of Chicago Law, has posted a devastating two-part analysis (via Wright) of the main count of Lott’s complaint. In the first part, he shows that “replication” does not have the “clear and unambiguous” meaning ascribed to it; in the second, he finds examples of Lott himself using “replicate” in meanings other than the definition in his complaint. Lott critic-in-chief Tim Lambert finds some more examples of the use of “replicate” that appear to exonerate Levitt’s phrasing—though Lambert fudges the National Academy of Science report, which says something rather different about replicating Lott’s results than what Levitt said in Freakonomics.

The case won’t necessarily get thrown out of court; Lott still has the second count, an errant e-mail sent by Levitt to a Texas economist accusing Lott of buying articles. But unless he can demonstrate that Levitt repeated that accusation in more than a stray e-mail, or was making other libelous allegations, potential damages look nominal for that count: the big-money claim is in the first count.

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Jay Leno sued over comic routine

This isn’t the first time the Tonight Show’s “Headlines” feature, in which Leno uses real-life news photos as the basis for wisecracks and ridicule, has landed the network and comedian in court. However, a defense lawyer predicts the suit will go nowhere because the audience understood the material to be comedy. (Pam Smith, “Comedian Leno Sued for ‘Sperm Donor’ Joke”, The Recorder, Apr. 12). More “Tonight Show” litigation: Dec. 7, 1999 (flying t-shirt). (Update Jul. 9: court says it will dismiss suit).

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Watch what you say about lawyers, cont’d

The West Virginia Trial Lawyers Association says it will file a Federal Communications Commission complaint unless radio stations yank ads from the U.S. Chamber of Commerce which compare injury lawyers to crocodiles and cite the widely circulated (but trial-lawyer-loathed) Tillinghast studies on the cost of the liability insurance system. (Jake Stump, “Trial lawyers want radio ads pulled”, Charleston Daily Mail, Apr. 6). Carolyn Elefant, Mike Cernovich and Prof. Childs comment. More watch-what-you-say-about-lawyers stories: Jan. 13, 2005, Dec. 23, 2004, and links from there.

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“Hollywood Blackmail” on VH1, tonight

VH1, the cable entertainment channel known for its music videos, is running a feature news special on the problem of shakedowns and borderline-to-real extortion aimed at Hollywood celebrities. The channel interviewed me on camera to talk about some of the ways law can be used both as a remedy for shakedowns and as, itself, a weapon in the hands of the would-be shakedown practitioner. Producer Robin Edgerton tells me that several bits of the interview wound up making it into the finished program. It’s scheduled to air this evening under the title “VH1 News Presents — Hollywood Blackmail“.

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Police sued over jail suicide

Illinois: “The mother of a Granville man who shot himself last year at the Spring Valley Jail has filed a wrongful death suit against the city, the police chief and a former police officer.” Robert “Steve” McFadin, placed in a holding cell after being charged with violating an order of protection against his estranged wife, wrested away the gun of former Spring Valley police officer Thomas Quartucci and beat him. When Quartucci fled the cell, McFadin used the gun to shoot himself. Quartucci, who was admitted to intensive care after the beating and remained on workers’ comp until retirement, is among the defendants in the suit, which “was filed on [Lori] Hafley’s behalf by Miskell Law Center of Ottawa and the Berkland Law Office of Marseilles. The suit alleges Quartucci violated procedure when he did not secure his loaded weapon before entering the cell. The suit also alleges actions taken by the officers at Spring Valley led to McFadin’s death.” (Erinn Deshinsky, “Mother of suicide victim sues police”, Peoria Journal-Star, Apr. 7). The suit seeks $15 million (John Thompson, “Mother sues Spring Valley, police”, La Salle News Tribune, Apr. 5; Dan Churney, “Police officers named in suicide suit”, Ottawa Times, Apr. 13).

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“Drunk driver sues truck maker”

By reader acclaim: an FBI agent who was pulled unconscious from his burning truck with blood alcohol level of 0.306, and subsequently pleaded guilty to drunken driving, “has sued the maker of his pickup because it caught fire after he passed out behind the wheel.” The lawsuit, against General Motors and dealership Bill Heard Chevrolet, says Clymer “somehow lost consciousness” — possibly the empty bottle of Captain Morgan Rum found on the passenger seat had something to do with that? — and that while he lay there with the engine running the 2004 Chevy Silverado “somehow” began to give off smoke from some sort of combustion, which may or may not be code for “theory to be filled in later”.

At sentencing in November — he drew a suspended 30-day jail term and 48 hours community service — “Clymer’s lawyer said his client wanted to take responsibility for his actions.” (Brian Haynes, Las Vegas Review-Journal, Apr. 14).

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“Eastern Law Firms Roll the Dice on Indian Law”

Tribal land claims are getting to be big business (see Jan. 12, etc.), and prominent law firms including Philadelphia’s Cozen O’Connor and Roseland, N.J.’s Lowenstein Sandler are among those lining up to assist Indian tribes (and their wealthy non-Indian backers) in filing lawsuits against hapless landowners as leverage for casino schemes. And here’s a choice quote from Robert Odawi Porter, director of the Syracuse University Center for Indigenous Law, Governance and Citizenship:

In cases where land-claim suits are funded by outsiders, the tribe is usually a passive participant in the litigation, says Porter. Such arrangements are permitted under the Indian Gaming Regulatory Act of 1988, which gives states authority to negotiate revenue-sharing agreements with tribal casinos.

“Everything is dictated by the developer — I call it the ‘sit back and take a check approach,'” Porter says.

(Charles Toutant, New Jersey Law Journal/Law.com, Mar. 20).

Also, updates: in late 2004 a federal court granted defendants’ motion to dismiss the Delaware Indians’ claim to land in the Allentown, Pa. area (Northampton County) including Binney & Smith’s Crayola factory (PDF, at Indianz.com)(see Feb. 9, 2004). And, alas, none other than the Bush Justice Department has weighed in with a petition for certiorari urging the Supreme Court to overturn a Second Circuit panel’s landmark ruling (see Jul. 29, 2005) which threw out the Cayugas’ lawsuit as not pressed in a timely enough way, a ruling which (if it stands) would cast doubt on the validity of of most of the new wave of Indian land litigation.

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