GruntDoc opens his mail to find one (Apr. 3).
Archive for the ‘Uncategorized’ Category
Oz: discrimination law vs. free speech
In Australia, a professor faces punishment for politically unacceptable speech:
Academic Andrew Fraser will defy the Human Rights and Equal Opportunity Commission by not apologising to the Sudanese community for his study linking African refugees to high crime rates.
In a landmark ruling that raises fresh questions about the limits to which academics can engage in public debate, HREOC chairman John von Doussa has found Professor Fraser’s comments were unlawful because they amounted to a “sweeping generalisation” that was not backed by research.Professor Fraser was suspended last year from teaching at Sydney’s Macquarie University over his comments about Sudanese refugees in Australia.
(Greg Roberts, “Academic still links Africans to crime”, The Australian, Apr. 4)(via David Bernstein).
A Recipe for Greatness
The previous post regarding California Judge Sill’s memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.
Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).
It seems that Ms. Webster, a native of New England (“a fact of some consequence,” noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes (“in chunks (also a fact of some consequence),” noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).
Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.
The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon’s explanation that elevates the opinion to art form.
Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:
“No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code.”
After noting the defendant’s exhortation that “this court knows well that we are not talking of some insipid broth as is customarily served to convalescents” and quoting Daniel Webster’s recipe for fish chowder in a footnote, the Court observed:
“It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”
Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.
The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.
The Felonious Stomping of a Pet Fish
Courtesy of Dean’s World, a New York Appellate Court decision which all too easily brings to mind Monty Python’s immortal routine, “Eric the Pet Fish:”
The defendant argues that his “stomping of young Juan’s pet goldfish” is a misdemeanor pursuant to Agriculture and Markets Law ยง353 (unjustifiable killing of any animal, whether wild or tame), and not a felony because a fish is not a “companion animal” and his “stomping” did not constitute “aggravated cruelty” within the meaning of the statute.
The Appellate Court rejected the defendant’s fanciful interpretation of New York criminal statutes, ruling:
The defendant’s contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute.
But can you get a license for that fish?
Constitutional Right to be a Jackass
One of our profession’s enfants terribles, Geoffrey Fieger, is back in court, this time defending his right to call Michigan appellate judges who ruled against him “jackasses” and “nazis.”
Fieger faces a reprimand from the Michigan Attorney Grievance Commission for insulting three state appellate judges on a radio talk show in 1999 after the judges overturned a $15 million verdict he won in a medical malpractice case.
Fieger’s lawyer, Michael Alan Schwartz, maintaining that Fieger’s comments outside the courtroom are protected by the First Amendment.
Summing up Fieger’s modus operandi nicely, Schwartz offers this:
“There’s no law that says you’ve got to be dignified.”
He also offers Standing Committee on Discipline v. Yagman, 55 F.3d 1430 and Craig v. Harney, 331 U. S. 367 (1947) to support his client’s right to criticize the judges.
UPDATE: Sorry folks, I neglected to include a link to the story. It is the Michigan Attorney Grievance Commission seeking to reprimand him. The Commission is “the investigative and prosecutorial arm of the Michigan Supreme Court for allegations of attorney misconduct.”
Ford Foundation Miffs Michigan A.G.
The descendants of Henry Ford were jettisoned long ago from his Ford Foundation, and now the Michigan Attorney General is investigating “governance, potential conflicts of interest and a comparatively thin record of giving to charitable causes in Detroit and the state.” (Detroit News, Apr. 2)
Tending the Garden While the Owner Is Away
Greetings from Boston, Overlawyered readers. Walter has invited me to guest this week as he attends to business, and suggested that I make a brief introduction. I have practiced law in the Boston area for twenty-five years now, in both private and public sectors, beginning as a fledgling zoning lawyer on Cape Cod in the 1980’s. I served three terms in the legislature during the 1980’s and was also General Counsel to a large independent authority for a few years in the early 1990’s. I am now a “wizzened” zoning lawyer in Boston. My specialty is permitting cell towers, so you know that all of the hats I own are black. I thank Walter for this oportunity and shall do my best to make the most of it. Feel free to visit me at Wave Maker any time.
The irrationality of non-economic damages
Unlawfully detained for fourteen years because of a crime you didn’t commit? $14.5 million in damages.
Unlawfully detained for fourteen minutes because of a crime you didn’t commit? $1.2 million in damages, plus potential punitives.
If the fairness of a justice system can be evaluated by whether it treats like cases alike, the status quo fails. (“Jury returns $14.5 million verdict against city”, AP, Mar. 30; Mark Rice, “Jury awards woman $1.2M”, Columbus Ledger-Enquirer, Apr. 1).
Canadian magazine sued over cartoons
Following up on earlier threats (Feb. 14, Mar. 19), Syed Soharwardy has brought a complaint against the Western Standard before the Alberta Human Rights Commission over its publication of the Mohammed cartoons. Ezra Levant, publisher of the Western Standard, explains (Mar. 29) that defendants in the “human rights” tribunal do not benefit from the protection that the loser-pays principle affords most defendants in Canada against groundless or nuisance litigation:
even if we are successful in the human rights commission, we will not be compensated for our legal fees. It’s not like a real court [! — W.O.], where an unsuccessful plaintiff would be ordered to pay a successful defendant’s costs. So even if we win, we lose — the process is the penalty. Worse than that, the radical imam who is suing us doesn’t have to put up a dime — the commission uses tax dollars to pay lawyers and other inquisitors to go at us directly. Human rights tribunals themselves are illiberal institutions.
More: A. Alan Borovoy, “Hearing complaint alters rights body’s mandate”, Calgary Herald, Mar. 16 (PDF).
In other cartoon-jihad news, it appears that giant book retailers Borders and Waldenbooks have been Boston-Phoenix-ized (see Feb. 10); they say they won’t carry the April-May issue of the magazine Free Inquiry, which reprints Mohammed cartoons, for fear of Islamist violence against their employees and customers (Carolyn Thompson, “Borders, Waldenbooks Won’t Carry Magazine”, AP/San Francisco Chronicle, Mar. 29). Free Inquiry is actually worth subscribing to quite aside from this episode; you can do that here.
P.S. Eugene Volokh has a thread discussing the extent to which Borders/Walden might be subject to later tort liability if its sale of the magazine led to violence that harmed customers (Mar. 30). 
Kevin Phillips
Jacob Weisberg does a very nice job of deflating the supposed “GOP strategist” (“The Erring Republican Authority”, Slate, Mar. 29), but I like to think I got there first.