View unsuspecting Innocence a prey,
As guileful Fraud points out the erring way:
While subtle Litigation’s pliant tongue
The life-blood equal sucks of Right and Wrong.
(“On the Death of Robert Dundas, Esq., of Arniston, Late Lord President of the Court of Session”, reprinted in Harvard Classics, Bartleby.com). Matthew Arnold did not find the poem an impressive example of Burns’s art (scroll to #31).
At least eleven people were killed and over a hundred injured yesterday when a suicidal Juan Manuel Alvarez parked his Jeep on the train tracks, causing a collision that eventually derailed three trains. The lead train was being pushed, rather than pulled, by the locomotive, a common means to save time by permitting more trips to be taken. According to the LA Times, experts disagree whether this has safety implications. (Dan Weikel and Scott Glover. “Train’s Lineup May Have Added to Risk”, LA Times, Jan. 27). Realistically, at a minimum, this design probably makes some types of accidents worse, has no effect on some other types of accidents, and provides additional protection for still other kinds of accidents such as being rear-ended (as happened in a Long Island RR accident last year). But the conclusion that courts draw when reasonable people differ over the optimal train design is not that the commuter rail system acted reasonably, but that a jury of laypeople should resolve the debate by second-guessing whether they did so. So mark January 26, 2006, on your calendars, for you’ll surely see lawsuits seeking to hold Metrolink liable for the consequences of Alvarez’s deliberate actions, just as Santa Monica was sued one year after a driver plowed into the Farmers’ Market there (Jul. 14).
I’m off to Austin where I’ll take part in a panel discussion on asbestos reform tomorrow (Thurs.) at the Texas Public Policy Foundation’s third annual policy orientation for the state legislature, an event that I understand is sold out. Any posting before Friday will be from Ted.
“Be prepared for a lengthy process” in the District of Columbia if the quondam paramour doesn’t want to leave, no matter that it’s your house. “It’s really complicated,” says one lawyer. (Sara Gebhardt, Washington Post, Jan. 22). For cases of roommate-entrenchment from Florida and Maryland, see Feb. 19 and Aug. 26, 2004.
New York’s Eliot Spitzer and Connecticut’s Richard Blumenthal, both subjects of longstanding coverage in this space, go back quite a way together and share a similar approach toward the duties of the state attorney general. A new story from AP’s Hartford bureau is kind enough to quote me saying some not-very-acerbic things about them. (Jan. 23: Stephen Singer, “Friendship another tie between two like-minded attorneys general”, Newsday, and Stamford Advocate).
“Video games seem to have two purposes these days: providing entertainment and keeping attorneys busy. Very busy.” (Tresa Baldas, “Video Game Industry Explodes With Legal, Regulatory Issues”, National Law Journal, Jan. 11). For our past coverage, see, among others, Sept. 26, 2003, May 24, 2004 and this selection of pre-2003 posts.
Servers at Giants Stadium in northern New Jersey sold beer to a highly intoxicated patron, so a jury has ordered Aramark, the beer concessionaire, to pay $30 million in compensatory and $75 million in punitive damages to pay for the later acts of the drunkard, who after leaving the game drove off into a catastrophic accident. (Ana M. Alaya, “Jury adds $75 million penalty for beer seller”, Newark Star-Ledger, Jan. 20; David Voreacos, “Aramark loses big in lawsuit”, Bloomberg/Philadelphia Inquirer, Jan. 20). The plaintiff’s lawyer in the case (see Oct. 10, 2003) had asked for damages against the National Football League and the Giants as well, but according to KipEsquire (Jan. 20) those claims were dismissed, or else the award might have been really big. Correction: the jury’s compensatory verdict was split $30 million against Aramark and $30 million against the drunk driver; we originally reported that the entire award was against Aramark, but have fixed the references above.
More: New Jersey Law Journal, Jan. 21, reports that the NFL and Giants paid an undisclosed settlement to be let out of the case, though they also prevailed on a summary judgment motion; and it turns out that Daniel Lanzaro of Cresskill, N.J., the drunk driver, drank at a club with friends after leaving the stadium but before getting into the crash. Yet more: AP adds that “The NFL forbids beer sales after the third quarter, and the Giants close beer concessions at the start of the third quarter. The stadium also mandates that fans can buy only two beers at a time, but the Vernis’ lawyers contend that Lanzaro sidestepped that rule by giving the vendor a $10 tip and was allowed to buy six beers.” And according to the New York Post, “Giants Stadium officials intend to aggressively monitor tailgating and drinking” (emphasis added) in the aftermath of the verdict. Update: Feb. 2.
“The stock market is not eager to fund this capital-intensive, risk-burdened, lawyer-strafed industry. … 40 years of lawsuits and heavy-handed regulation have made the bizjet industry hyperconservative.” (Rich Karlgaard, “Digital Rules: Cheap Jet Update”, Forbes, Jan. 10).
Over the past year journalist Stephanie Mencimer, a frequent contributor to such publications as Mother Jones and the Washington Monthly, has written a series of articles intended to rebut what she calls “The Myth of the Frivolous Lawsuit”. In the course of these articles, Mencimer assails a wide range of writers, publications and institutions that have taken a visible public role criticizing excessive litigation, myself and this site included. Her research often seems to consist of little but the uncritical recycling of allegations circulated by the Litigation Lobby, some of them fifteen or twenty years old and many of them both baldly inaccurate and nastily ad hominem in tone.
I don’t make it a practice to respond to Mencimer’s writings, but the distinguished legal journalist Stuart Taylor, Jr., who writes an influential column for National Journal and contributes to Newsweek, was outraged by her attacks on his work in an article she wrote for the October Washington Monthly and took the time to craft a lengthy, devastating point-by-point rebuttal. He sent it on December 16 to the editors of the Washington Monthly including editor-in-chief Paul Glastris.
Remarkably, in the month since then, the Washington Monthly editors have neither posted the letter for their readers’ benefit nor made any attempt to rebut it. Now Taylor has generously consented to let me post his letter here. Readers can draw their own conclusions about how much of Mencimer’s credibility is left standing after his thorough dissection — and about what it means for the Washington Monthly’s reputation that it seems intent on stonewalling on her behalf. Update Feb. 16: Washington Monthly and Mencimer reply.
Fearing ridicule, the Blair government has backed off a clause of an animal welfare bill “which would have outlawed the use of any animal as a competition prize”, and which was largely aimed at the popular practice of awarding a goldfish in a plastic bag as a prize at carnivals. “The scientific jury is still out on fish stress, with one study suggesting goldfish never get bored because their memories are too short to recall what it was they might have been bored about.” (Martin Wainwright, “Labour gets cold feet over ban on fairground goldfish”, The Guardian, Jan. 15).