Stephen Bainbridge and Eugene Volokh (keep scrolling) explain why. (See also Sept. 10.)
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A different kind of judicial hellhole
We’ll stipulate that Warren Jeffs is not a sympathetic defendant. We’ll further stipulate that that’s an understatement. Jeffs, who calls himself “The Prophet,” is the current leader of the cultish polygamous “Fundamentalist Church of Jesus Christ of Latter Day Saints” estimated with 10,000 members, a few dozen of whom are his wives. (The Church broke off from its namesake when the mainstream Mormons abolished polygamy in 1890.) “Utah and Arizona prosecutors have been investigating allegations of welfare and tax fraud, incest, child abuse and forced marriages of young girls to adult men in the FLDS community” on the state border. Jeffs allegedly grants himself the power to re-assign spouses and children amongst families. The FLDS has also been excommunicating hundreds of teenage boys, allegedly to reduce competition for wives in the cult; the youths, who’ve grown up uneducated, are now completely isolated from their families and the community they grew up in.
Lawyers across the country have been bringing lawsuits. We make no comment on the claims of assault, terroristic threats, extortion, molestation, and kidnapping; such claims are legally legitimate to the extent that they’re true.
More problematic, however, are the allegations of fraud and conspiracy and the demand for injunctive relief and some damages: the complaint poses that FLDS promised “eternal life” to its members; by excommunicating the plaintiffs, they have not only breached that promise, but they have caused the plaintiffs to “suffer[] the emotional and psychological injuries resulting from… having been condemned to eternal damnation.” One can immediately see the trouble that could arise from making theological disputes actionable (see also Feb. 9). Courts have enough trouble adjudicating truth; it is perhaps not wise to also ask them to adjudicate Truth. The risk is that the failure of criminal authorities to adequately intercede may prompt civil courts to create precedents with consequences beyond a polygamous cult getting its just deserts. (AP, Aug. 30; Angie Wagner, “Ousted from sect, ‘lost boys’ start anew”, AP, Sep. 7; Sylvia Moreno, “Polygamous Sect Moves In, And Texas Town Asks ‘Why?'”, Washington Post, Sep. 7; Jon Krakauer, Under the Banner of Heaven; Child Protection Project; Phoenix New Times coverage) (via Heller).
9/11 reverberates in courtrooms
As “the third anniversary of Sept. 11 draws closer, the lawsuits just keep coming.” Some families that received over a million dollars from the Victims’ Compensation Fund have sued parties as remote as Motorola over the terrorist attack. (Leslie Eaton, “In Nation’s Courtrooms, Wounds From 9/11 Persist”, New York Times, Sep. 9; Southern District of New York 9/11 litigation scheduling page; see earlier coverage Jan. 19, Dec. 29, Sep. 11, 2003; Sep. 10, 2003).
Texas: libel not a function of the dumbest readers
In 1999, 13-year old Christopher Beamon of Denton County’s Ponder, Texas, was assigned to write a Halloween story, but when he wrote a horror tale of accidentally shooting a teacher, he earned more than an A+: the local district attorney, Bruce Isaacks, prosecuted him, and Judge Darlene Whitten ordered him detained for a week at a juvenile center.
Already one for the overlawyered files, but then the Dallas Observer printed a parody having Isaacks and Whitten go after Cindy Bradley, a fictional six-year-old girl who read Where the Wild Things Are for first-grade story time. Isaacks and Whitten sued for libel, under the theory that because the story wasn’t labeled satire, some readers might think it’s the real thing. Amazingly, a lower court was ready for this to go to a jury trial before the Texas Supreme Court stepped in Friday and unanimously voted to throw out the case. The Court noted, among other things, that the Beijing Evening News took seriously an Onion story about Congress requesting a dome with a retractable roof and that another Onion story titled “Al-Qaida Allegedly Engaging in Telemarketing” provoked a Michigan sheriff to issue a warning in a press release. (AP, “Court rules for Dallas Observer in libel suit”, Sep. 3; Jesse Walker, “Where the Wild Suits Are”, Reason, Feb.; New Times Inc. v. Isaacks opinion; Daniel Terdiman, “Onion Taken Seriously, Film at 11”, Wired, Apr. 14) (via Hit & Run).
Update, Sep. 9: Howard Bashman has a comprehensive run-down of coverage, and points us to this Dallas Observer story gloating in victory.
Germany Overlawyered
On April 11, 2002, al Qaeda terrorists exploded a tanker truck outside a synagogue in Tunisia, killing 20 other people, including 14 German tourists, and grievously wounding several others, including three-year-old Adrian Esper, who suffered third-degree burns to his face, arms, and upper body, and has had to undergo thirty operations. Thus, the Esper family is suing… the package tour company that arranged the trip to the synagogue, alleging that the company should have known about the terrorist danger at that destination. Lest you think the Germans have completely bought into the American system of jackpot justice, the Espers are only seeking 100,000 Euros in damages. A judge will decide the case October 27 if the parties don’t reach a settlement first. (“Couple Sues Travel Company Over Terror Attack”, Deutsche Welle, Sep. 1; “Germans seek damages for boy burned in Tunisia terror”, Expatica, Sep. 1).
On the road
I’m heading off to speak to the Federalist Society chapter at the University of Arkansas law school in Little Rock. I should be back and posting on Friday.
Police officers, above the law
According to Newsday, reporting from Long Island, N.Y., the spring issue of the local union newsletter of the Police Benevolent Association ran an item by treasurer Bill Mauck advising members that in case the car stopped for a traffic violation happens to be that of a police officer, “you don’t summons another cop”. Questioned by the newspaper, union president Jeff Frayler confirmed that “it has been union policy to discourage Suffolk police officers from issuing tickets to fellow officers, regardless of where they work. ‘Police officers have discretion whenever they stop anyone, but they should particularly extend that courtesy in the case of other police officers and their families,’ Frayler said …. ‘It is a professional courtesy.'” Suffolk County Executive Steve Levy said he was appalled at the policy: “We can’t be sending the message that some are above the law.” (Joe Kelley’s The Sake of Argument, Apr. 5; via Charles Oliver, “Brickbats”, Reason, Apr.).
To protect, and serve, and sue
The traditional “firefighter’s rule” holds “that firefighters, police and rescue personnel accept an inherent risk of injury or even death in their jobs and generally cannot sue those they’re hired to protect. Their recourse is worker’s compensation claims, according to the rule. But lobbying by powerful unions and court decisions have led some states to limit the rule’s scope or rescind it altogether.” I’m quoted in the article criticizing recent moves away from the rule. “New Jersey is one of 11 states that allow police officers, firefighters and rescue personnel to file civil lawsuits when they’re injured through the negligence of individuals or entities.” (Tim Zatzariny Jr., “Police officers sue over injuries on job”, Camden (N.J.) Courier-Post, Aug. 30). For more, see Sept. 30, 2003; Apr. 1 and Jul. 16, 2004.
His so-called reputation
Reports David Giacalone (ethicalEsq):
Elderly Schenectady (NY) lawyer Romolo Versaci has filed a $100,000 defamation suit against Diane C. Richie, an unemployed social worker and widow with two children. Versaci claims — and Richie admits — that she called him a “so-called attorney” on a SchenectadyNY.info message board. …
Versaci says the comment has “greatly injured” his reputation, and adds that “She’s got to stop these cutesy messages and think a little bit.” He has been replaced with another lawyer in the controversy that spawned this lawsuit. Richie says, “I haven’t got $100, let alone $100,000. I couldn’t even imagine a judge looking at this. It’s so stupid.”
Adds ethicalEsq: “Most days, I’d consider being called a ‘so-called attorney’ a compliment.” Evan Schaeffer has strong words concerning the action and his comments section should also be checked out. More watch-what-you-say-about-lawyers cases: Nov. 30, 2003, Sept. 16-17, 2002, more. Updates Jan. 19: David Giacalone reports on a further development; Mar. 20: judge throws out case.
New at Point of Law
There are all sorts of new posts over at our sister website Point Of Law. Attorney Leah Lorber, who’s appeared on this site in the past, has just joined for a week’s worth of guestblogging contributions, including posts on a Mississippi Supreme Court case undoing the joinder of 264 asbestos cases and a Kentucky punitive award against Ford Motor (in a “park-to-reverse” transmission case). On medical malpractice, Ted Frank examines the benefits of the damage limits approved by Texas voters, Jim Copland discusses my WSJ op-ed on the Kerry campaign’s ideas for reform, and I link to an informative paper by Richard Anderson of the Doctor’s Company. Law professors Lester Brickman and Richard Painter, both experts on the ethics of contingency fees, have now completed their featured discussion of the issue.
Plus lots more, including posts by me on the ABA’s plans to push reform of jury trials; how contingency-fee litigation by the state of California is straining U.S. relations with France; Eliot Spitzer, the comparison-shopper’s friend; two posts (here and here) comparing the American way of litigation with that prevailing in other democracies; how liability law affects the way certain products smell; and who you can’t trust to explain the new overtime regulations.