Search Results for ‘"new york" exxon climate’

Another step toward climate speechcrime: New York subpoenas

Months of agitation promoting a government investigation of supposedly wrongful advocacy on the issue of climate change have begun to pay off. As Holman Jenkins [paywall] notes, purportedly levelheaded Democrats and environmentalists are now jumping on the bandwagon for a probe of possible unlawful speech or non-speech by energy companies and advocacy groups they’ve backed. Perhaps the most remarkable name on that list is Hillary Clinton, who said the other day in New Hampshire, referring to Exxon, “There’s a lot of evidence that they misled people.” That’s right: Hillary Clinton, of all people, now wants to make it unlawful for those who engage in public controversy to mislead people.

The first high-profile law enforcer to bite, it seems, will be Eric Schneiderman, whose doings I’ve examined at length lately. “The New York attorney general has launched an investigation into Exxon Mobil to determine whether the country’s largest oil and gas company lied to investors about how global warming could hurt its balance sheets and also hid the risks posed by climate change from the public,” reports U.S. News. Show me the denier, as someone almost said, and I will find you the crime: “The Martin Act is a nearly empty vessel into which the AG can pour virtually any content that he wants,” as Reuters points out. More on the Martin Act here and here.

At Forbes, Daniel Fisher notes the possible origins of the legal action in an environmentalist-litigator confab in 2012 (“Climate Accountability Initiative”) in which participants speculated that getting access to the internal files of energy companies and advocacy groups could be a way to blow up the climate controversy politically. Fisher also notes that Justice Stephen Breyer, in the Nike v. Kasky case dismissed 12 years ago on other grounds, warned that it will tend to chill advocacy both truthful and otherwise by businesses if opponents can seize on disagreements on contentious public issues and run to court with complaints of consumer (or presumably securities) fraud.

Perhaps in this case chilling advocacy is the whole point. And very much related: my colleague Roger Pilon’s post last week, “Whatever Happened to the Left’s Love of Free Speech?“; Robert Samuelson (“The advocates of a probe into Exxon Mobil are essentially proposing that the company be punished for expressing its opinions.”)

Banking and finance roundup

  • Gov. Jerry Brown signs into law California bill imposing minimum quota for women on corporate boards: “it’s very hard to see how this law could be upheld” [Emily Gold Waldman, PrawfsBlawg, earlier, more: Alison Somin, Federalist Society] “The passage of this law resulted in a significant decline in shareholder value for firms headquartered in California.” [Hwang et al. via Bainbridge]
  • Martin Act, part umpteen: “New York Attorney General Overreaches in Climate-Change Complaint Against Exxon” [Merritt B. Fox, Columbia Blue Sky Blog]
  • “Now he tells us! You’d think that maybe Bharara would have publicly acknowledged this ambiguity and haziness [in insider trading law] before bringing a series of cases that destroyed careers and imposed huge costs on the individuals who were accused.” [Ira Stoll]
  • “Because [Florida agriculture commissioner-elect Nikki Fried] took donations from the medical marijuana industry, Wells Fargo and BB&T banks closed her campaign accounts briefly, citing policies against serving businesses related to marijuana, which is still prohibited under federal law.” [Lori Rozsa, Washington Post, Erin Dunne, Washington Examiner (“fix the marijuana banking mess”)]
  • Survey: “Average cost of a settled merger-objection claim has increased 63% to $4.5 million over four years, with little benefit to shareholders” [Chubb] “Time for Another Round of Securities Class Action Litigation Reform?” [Kevin LaCroix, D&O Diary on U.S. Chamber paper, and more on trends in Australia]
  • “Congress Can’t Create an Independent and Unaccountable New Branch of Government” [Ilya Shapiro on Cato cert amicus in State National Bank of Big Spring v. Mnuchin, on constitutionality of Consumer Financial Protection Bureau (CFPB)]

Environment roundup

Environment roundup

  • How regulators dismiss economists’ advice: the case of CAFE fuel economy regs [David Henderson]
  • Other auto manufacturers appear to have an emissions cheating problem, raise your hand if you’re surprised [Coyote]
  • “You can end up getting a platinum LEED certification and still have the highest energy consumption density in the city of Chicago, as it turns out.” [same, sequel]
  • “The Disconnect Between Liberal Aspirations And Liberal Housing Policy Is Killing Coastal U.S. Cities” [Shane D. Phillips] “California Housing Crunch Prompts Push to Allow Building” [Chris Kirkham, WSJ]
  • Tyler Cowen takes a look at the stream protection rule;
  • Well, natch: staff of New York Attorney General Eric Schneiderman was in touch with Rockefeller Family Fund campaigners before he launched climate advocacy subpoenas [New York Post]

“Dems Assigned Conservative Groups to Attack on Senate Floor”

Are you now, or have you ever been, a supporter of the Hoover Institution, the Mercatus Center, the Heritage Foundation, or the Acton Institute? Lachlan Markay, Free Beacon:

Democratic senators have been assigned conservative nonprofit groups to call out by name on the chamber floor in speeches on Monday and Tuesday criticizing corporations and advocacy groups for opposing Democratic climate policies, internal emails reveal.

…[Rhode Island Sen. Sheldon] Whitehouse and his allies, including Senate Minority Leader Harry Reid (D., Nev.), have crafted a schedule for floor speeches on Monday and Tuesday that assigns each participating Senator at least one group to go after by name.

Most of the groups have already been targeted by state Democratic officials that have undertaken a coordinated legal campaign against oil giant ExxonMobil since last year. Many were named in subpoenas sent to the company by state attorneys general as part of that effort.

The ringmaster, once again, is Sen. Sheldon Whitehouse of Rhode Island — yes, that Sheldon Whitehouse, whose hometown Providence Journal rightly called out his current campaign to sic the law on improper climate opinion as likely to “have a chilling effect on free speech, by intimidating dissenters into silence.” The leader on the House side is Rep. Ted Lieu (D-Calif.), also getting to be a familiar name.

One reason this is more sinister than your ordinary political sideshow: the proposed concurrent resolution urges right-leaning nonprofits “to cooperate with active or future investigations” of purportedly unlawful opinion-slinging. One of the most junior senators, Gary Peters of Michigan, apparently drew the short straw in the heresy posse and was assigned to attack my own Cato Institute (which publishes this site) at 6:30 this evening.

The senators participating in this appalling exercise besides Sens. Whitehouse, Reid, and Peters, all Democrats, are Sens. Ben Cardin of Maryland, Tim Kaine of Virginia, Barbara Boxer of California, Martin Heinrich of New Mexico, Chuck Schumer of New York, Al Franken of Minnesota, Elizabeth Warren of Massachusetts, Dick Durbin of Illinois, Tom Udall of New Mexico, Jeanne Shaheen of New Hampshire, Jack Reed of Rhode Island, Edward Markey of Massachusetts, Brian Schatz of Hawaii, Jeff Merkley of Oregon, Richard Blumenthal of Connecticut, and Chris Coons of Delaware.

Some early reactions: “All that is lacking are their public confessions” — Ronald Bailey at Reason (whose associated Reason Foundation is among the targets). “‘Assigned’ groups to attack? That sounds like middle school mean girl behavior.” [C.B. on Facebook] Peter Roff at U.S. News on how the Senators can’t (yet) make dissent illegal but can make it costly. And a reminder: the “Exxon Knew” crowd knew Whitehouse’s RICO-for-speech theory was wrong because their own allies had told them, but went ahead anyway.

More, Matt Welch at Reason:

…Since the targets of this shaming exercise are not being afforded the courtesy to rebut the charges in the forum at which they are being smeared, consider this a prebuttal…

This coordinated campaign would be an assault on free speech even if it were not drenched in conspiratorial inaccuracy. Democratic lawmakers, attorneys general, and activists are systematically singling out free-market think tanks for potential criminal prosecution and one-sided disclosure requirements based on the content of the think tanks’ research and commentary. They are literally trying to criminalize dissent. If successful, they will establish as “fraud” or “racketeering” any future think-tank work that runs afoul of political orthodoxy. …

Sadly, this heavy-handed act of government intimidation will likely go as unnoticed as Hillary Clinton’s long track record against free speech. Why? Because generally speaking both the mainstream press and the organized left reserve their First Amendment outrage for politicians they disagree with. Their silence is shameful, and deafening.

The senators’ action this week is no hyperbolic one-off: Prosecuting ungood climatology is baked right into the Democratic Party Platform. The two major Democratic nominees for president agree.

[Updated to correct error on Lachlan Markay’s name, sorry]

Free speech roundup

  • No, the “government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he'” [Josh Blackman, Washington Post; earlier on NYC human relations commission guidelines; Hans Bader/CEI on new D.C. rules along similar lines]
  • Matt Welch on New York Attorney General Eric Schneiderman and the “casually authoritarian” movement to harass and legally penalize climate deniers [Reason] While styled as fraud probe, AGs’ climate denial investigation is essentially a SLAPP suit meant to silence advocacy [Ronald Bailey; letter from 13 attorneys general critical of probe] As one skirmish ends, expect wider war to continue, as Virgin Islands AG withdraws widely flayed subpoena against our friends at Competitive Enterprise Institute [John Sexton] Massachusetts Attorney General Maura Healey now chasing “right-leaning groups that have never received a penny from Exxon” including local political foe Beacon Hill Institute [Hans Bader/CEI] We’re the ones asking questions around here: AGs dodge public record/FOIA requests on probe [Chris Horner/Fox News]
  • “N.Y. Senate passes bill banning funding for university student groups that ‘encourage’ ‘hate speech'” [Eugene Volokh]
  • Licensing and other laws often restrict what members of professions and occupations can say, a problem that deserves more and better First Amendment scrutiny than it’s gotten [Timothy Sandefur, Regulation]
  • Ninth Circuit will review ruling striking down Idaho ag-gag law [Baylen Linnekin on appellate amicus, Idaho Statesman, NPR last year]
  • Ken White on why it’s okay to loathe Gawker and its actions but still see the danger in Thiel/Hogan episode [L.A. Times, related Dan McLaughlin, earlier]

Environmental roundup

  • Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
  • Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
  • Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
  • “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
  • And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
  • Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]

More on the CEI subpoena

As we noted on Friday, New York Attorney General Eric Schneiderman, more recently joined by several other state attorneys general, has pursued an investigation of the ExxonMobil corporation and its links to “climate denial” that has now resulted in a subpoena (from the attorney general of the U. S. Virgin Islands, Claude E. Walker) demanding ten years’ worth of internal documents from the Competitive Enterprise Institute. CEI, which issued a statement last week (with the text of the subpoena) vowing to resist the legal attack, has a further statement and links here; CEI’s Myron Ebell also recorded a Cato podcast (“fishing expedition… threatens our future… designed to shut us up”) with interviewer Caleb Brown.

Megan McArdle, Bloomberg View, calls the new developments “an attempt to criminalize advocacy”:

State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.”

New York Attorney General Eric Schneiderman gave the game away when he explained that they would be pursuing completely different theories in different jurisdictions — some under pension laws, some consumer protection, some securities fraud. It is traditional, when a crime has actually been committed, to first establish that a crime has occurred, and then identify a perpetrator. When prosecutors start running that process backwards, it’s a pretty good sign that you’re looking at prosecutorial power run amok….

The rule of law, and our norms about free speech, represent a sort of truce between both sides. We all agree to let other people talk, because we don’t want to live in a world where we ourselves are not free to speak. Because we do not want to be silenced by an ambitious prosecutor, we should all be vigilant when ambitious prosecutors try to silence anyone else.

Hans von Spakovsky, Heritage Foundation:

This investigation is intended to silence and chill any opposition. It is disgraceful and contemptible behavior by public officials who are willing to exploit their power to achieve ideological ends….

Given the coalition that has been formed by state attorneys general to conduct a grand inquisition against climate change deniers, this subpoena from the Virgin Islands attorney general is probably just the first assault in their quasi-religious war against unbelievers. Researchers, scientists, think tanks, universities, and anyone else who works or speaks in this area should be aware that they may soon become a target of these malicious investigations.

Hans Bader of CEI, at Law and Liberty:

As the Washington state supreme court noted in Rickert v. State Pub. Disclosure Commission (2007), our forefathers “did not trust any government to separate the true from the false for us” in the realm of politics.

A sobering aspect of the state AGs’ crusade is what is taking place outside of courtrooms: they are pressuring companies to cut off donations to nonprofit groups that employ “climate-change deniers.” … New York’s and California’s attorneys general have investigated Exxon for making donations to think tanks like the American Enterprise Institute and lobbying groups like the American Legislative Exchange Council. Schneiderman complains that these two specifically are “even more aggressive climate change deniers” than the run of the mill. (Ironically, while these large organizations include a few people labeled as “climate change deniers,” they focus mostly on issues having nothing to do with climate change.)

…even if being a “climate change denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a nonprofit that employs such a person would not be a crime.

In February we noted Bader’s strong argument that a “prolonged investigation in response to someone’s speech can violate the First Amendment” in itself even when “eventually dropped without imposing any fine or disciplinary action.”

I’m also quoted in a piece in Vermont Watchdog by Michael Bielawski and Bruce Parker that came out just before the subpoena report, on some of the issues in the investigation.

December 2001 archives


December 10 — “Halliburton Shares Plunge on Verdict”. The market clipped $3.8 billion off the giant oil field service company’s share valuation after Peter Angelos got a $30 million jury award against it. “The ruling is the fourth significant asbestos ruling against Halliburton since late October, according to Merrill Lynch … Over the last 25 years, Halliburton has settled 194,000 asbestos claims, the company said. The average payment was about $200, according to Allen Brooks, executive director at CIBC World Markets. As of Sept. 30, the company faced 146,000 open asbestos claims and 182,000 more from a former subsidiary called Harbison-Walker.” (David Koenig, AP/Yahoo, Dec. 7; Neela Banerjee, “Halliburton Battered as Asbestos Verdict Stirs Deep Anxieties”, New York Times, Dec. 8). Federal-Mogul, the big auto parts maker, became the latest large bankruptcy to result from asbestos litigation with a filing two months ago (Joe Miller, “Asbestos suits hurt Fed-Mogul”, Detroit News, Oct. 2).

“In late October, a Mississippi jury ordered three firms, including oil-services giant Halliburton and manufacturer 3M, to pay six plaintiffs $25 million apiece. …What made jaws drop was that the plaintiffs weren’t even sick–their X-rays just showed they stood an increased chance of getting sick. ‘Most of these guys have not missed a day of work in their lives,’ their lawyer said. … To unearth new clients for lawyers, screening firms advertise in towns with many aging industrial workers or park X-ray vans near union halls. To get a free X-ray, workers must often sign forms giving law firms 40 percent of any recovery. One solicitation reads: ‘Find out if YOU have MILLION DOLLAR LUNGS!'” (“Looking for some million-dollar lungs”, U.S. News, Dec. 17).

Some say asbestos defendants should try to avoid angering juries by paying claims without a fight, but an attorney for power plant maker Babcock & Wilcox said an uncritical approach to claims had proved too expensive for his now-bankrupt client: “In the past, you literally filled out a form in five minutes that stated the claimant had a note from the doctor saying he was coughing and had other symptoms and showed that he worked at the site. It took five to 10 minutes to fill out the form that would routinely lead to checks for thousands of dollars.” (Terry Brennan, “Firms Wary of Challenging Asbestos Claims”, The Deal, Nov. 13). And battling continues in a case (see Feb. 12-13) in which B&W and other asbestos defendants have attempted to turn the tables on leading plaintiff’s firms, arguing that they have violated racketeering laws by coaching clients’ testimony and by threatening retaliation against companies that seek a legislative solution to the litigation morass. (Mark Hamblett, “Asbestos Companies Bring RICO Suit Against Plaintiffs’ Firms”, New York Law Journal, Sept. 6). This spring defendant law firms won a court order prohibiting the plaintiff companies from questioning their former, as well as their current, employees without counsel being present — i.e., even if the former employees are eager to spill the beans they will not be allowed to do so except in the presence of someone representing their former employer. That certainly should put a chill on whistleblowing (Mark Hamblett, “Employees of Law Firms Charged With Racketeering Shielded From Interviews Without Counsel”, New York Law Journal, April 11).

Plus: Dallas alt-weekly Observer, which had run some of the best journalism on the Baron & Budd client-coaching asbestos scandal, returned with a terrific follow-up in March which we’ve unconscionably delayed in linking (Thomas Korosec, “Homefryin’ with Fred Baron”, Dallas Observer, March 29). (DURABLE LINK)

December 10 — Steve Chapman on military tribunals. “President Bush has provoked a storm of criticism by authorizing special military tribunals to try terrorists caught in our war against al Qaeda. Some of the complaints, dealing with the specific rules and procedures that the administration proposes, are worth considering. But other gripes seem to miss the crucial point that war is vastly different from law enforcement. ” (Chicago Tribune/ TownHall, Dec. 6).

December 10 — Love contracts. Some lawyers continue to advise employers to get co-workers who are in amorous relationships to sign legal documents affirming that the liaison is indeed voluntary, and that they will not harass each other if it ends. A 1998 survey by the Society for Human Resource Management “found that while 88 percent of the companies that discourage workplace romances do so out of fear of sexual harassment claims, just 4 percent of such relationships resulted in claims that led to litigation.” We don’t know where that “just” comes from — a 4 percent risk of getting the employer dragged into court sounds pretty serious to us. (Torri Minton, “Caught in the pact — Couples involved in office dalliances required to sign ‘love contract'”, San Francisco Chronicle, Dec. 2). (DURABLE LINK)

December 10 — “Saudi Arabia finally gets tough on terrorism!” “We are fighting a holy war to eradicate the source of the biggest corruption on earth,” says Saudi lawyer Ahmad al-Tuwarjiri, but it turns out he’s talking about … tobacco companies, who he’s suing in a legal action in Riyadh. (Frank Gardner, “Saudi hospital fights tobacco ‘terrorists'”, BBC, Dec. 4, via Untold Millions weblog, Dec. 5) (see Nov. 16, 2000 — we’re not sure what became of that earlier action, but suspect that it didn’t fare well, since the action’s now moving to Riyadh). (DURABLE LINK)

December 7-9 — Counterterrorism agents, on their own. Gabriel Schoenfeld, writing in Commentary: “Last year, at the behest of Congress, the National Commission on Terrorism, a body of leading experts, issued findings” on U.S. vulnerability to terrorist attack. Among other problems it warned of: the nation lacks adequate counterterrorist efforts, including intelligence monitoring of terrorist groups. “According to the commission, the guidelines governing the recruitment of ‘unsavory’ sources, introduced by the Clinton administration in 1995, had created a climate within the CIA that was ‘overly risk-averse’ and that contributed ‘to a marked decline in agency morale unparalleled since the 1970s.’ That is bad enough; but the morale problem had sources beyond the restrictive guidelines. Again according to the commission, some CIA officers and FBI special agents were being ‘sued individually’ by terrorist suspects for actions taken in the course of their officially sanctioned duties. Instead of representing them in such suits, the government was letting the agents fend for themselves; those who chose to stay on the job were being forced to purchase personal-liability insurance to cover their legal bills.

“Did the commission call for an end to this preposterous state of affairs, whereby accused terrorists have been able to turn the tables on their pursuers and bring them to court? Not at all. It asked only that the government provide ‘full reimbursement of the costs of personal-liability insurance.'” (“Could September 11 Have Been Averted?”, Commentary, December (scroll to near end)).

December 7-9 — Overlawyered schools roundup. A judge has thrown out Desiree Radford’s suit claiming that it was unlawful for the city of Buffalo to lay off teachers in her son’s district without first conducting an environmental impact statement (“Judge Dismisses Mother’s Case To Stop Buffalo Teacher Layoffs”, WGRZ.com, undated). In Ohio, the case of Fairview High School junior Aaron Petitt, “who claimed he was denied freedom of speech and due process when he received a 10-day suspension for hanging posters of airplanes bombing Afghanistan on his student locker,” is ending with a denouement summed up in the Cleveland paper’s headline: “District settles case with student; he gets $2,000, lawyers $21,000”. Aaron’s lawyers are charging local taxpayers $300 an hour for their services. (Sarah Treffinger, Cleveland Plain Dealer, Dec. 1). Schools in Canada’s largest city will probably wind up in court because of an effort to raise standards: “A Toronto parent group concerned about Ontario’s tough new school curriculum will encourage parents to take legal action against the government if their children are suffering under the revamped standards.” (Lee-Anne Goodman, “Toronto parent group encourages legal action”, Canadian Press/Toronto Sun, Dec. 2). And attorney Susanna Dokupil comments on the don’t- read- grades- aloud- in- class case currently before the U.S. Supreme Court. (“Hey, Congress, Leave Us Kids Alone”, The American Enterprise, Nov. 29) (see Nov. 28). (DURABLE LINK)

December 7-9 — “Hell’s litigious angels”. John Leo’s annual who’s-a-victim roundup leads off with the touchy motorcyclists who want protected-group status in discrimination law: “America’s next official victim group may be roaring your way on their Harley-Davidsons.” (U.S. News, Dec. 10; Chris Weinkopf, “Born To Be Mild”, FrontPage, Nov. 28; see Nov. 19-20). The Boston Globe‘s Jeff Jacoby thinks this would be a good time to take a stand on behalf of the principle of freedom of association: “Bikers Demand Their ‘Civil Rights'”, Nov. 29, via Center-Right).

December 7-9 — Chrysler dodges a $250 million dart. Blessed with a favorable appellate circuit (the Fourth) and high-powered counsel (Ted Olson, now solicitor general, and Theodore Boutrous of Gibson, Dunn & Crutcher), DaimlerChrysler has managed to get a $250 million South Carolina punitive award overturned. “The court also reversed and remanded for retrial the jury’s finding of liability and its award of [$12.5 million] compensatory damages, finding that Chrysler should have been able to introduce evidence that a child who was ejected from a Chrysler minivan was not wearing a seat belt.” (“Chrysler Escapes $250 Million in Punitives”, National Law Journal, Nov. 1). San Francisco Chronicle legal columnist Reynolds Holding says the disparate fate of punitive damages on appeal in different cases — $5 billion against ExxonMobil held excessive in the Valdez spill case, $25 million upheld against Philip Morris in a case brought by an individual smoker– suggests that critics of punitive awards may have a point about their arbitrariness: would anyone have been especially surprised had the outcome been reversed and the tobacco maker rather than Exxon had gotten its award reduced? (“Scales of justice out of whack”, Nov. 25). And if you still thought plaintiffs in our legal system bore the burden of proving their legal case, get with it: “The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, making it clear that automakers now have the burden of proving their vehicles provide occupants adequate protection.” (Charles Toutant, “New Jersey Shifts Burden of Proof in Auto Design Cases”, New Jersey Law Journal, Sept. 11).

December 5-6 — Cosseted to distraction. New Jersey has made itself “the darling of child-safety advocates” by becoming the first state to adopt a National Highway Traffic Safety Administration recommendation that children in cars be required to ride in booster seats until they weigh 80 pounds or reach their eighth birthday. But even some conscientious parents say the new law goes too far: older kids rebel at being forced back into “baby” seating, carpools break up as adult co-workers shun the nannyized vehicles, besides which the devices cost good money. (Kaitlin Gurney, “Tough N.J. safety-seat law poses dilemmas”, Philadelphia Inquirer, Nov. 30). And the Washington Times reports a presumably unintended consequence of those red-light cameras that revenue-hungry municipalities have installed to generate citations: “Some D.C. police officers say they are slowing their response to emergencies because photo-radar cameras are ticketing them for speeding … They said they and other officers have been forced to pay the fines, and are now on edge about speeding to a crime scene and running red lights in emergencies.” (Brian DeBose, “Cops get speeding tickets from cameras”, Nov. 29).

December 5-6 — “Victims of Day-Trader Rampage Say Industry Itself to Blame”. Two years ago financially ruined day trader Mark Barton walked into two office buildings in the Buckhead section of Atlanta and massacred nine persons. Now lawyers, “arguing that Georgia tort law should evolve with the times,” are hoping to put the day-trading segment of the securities industry on trial, saying that the volatile and risky nature of its business made such a crime foreseeable. (Trisha Renaud, Fulton County Daily Report, Nov. 30). Update Jan. 9-10, 2002: judge dismisses suit against building owners and managers, but lets it go forward against two day-trading firms. (see further updateDec. 19, 2003)

December 5-6 — “EU considers plans to outlaw racism”. Free speech for me, but not for thee: “Racism and xenophobia would become serious crimes in Britain for the first time, carrying a prison sentence of two years or more, under new proposals put forward by Brussels … [the ban includes] a wide range of activities that sometimes fall into the sphere of protected political speech, such as ‘public insults’ of minority groups, ‘public condoning of war crimes’, and ‘public dissemination of tracts, pictures, or other material containing expressions of racism of xenophobia’ — including material posted on far-Right internet websites.” The “plans, drafted by the European Commission, define racism and xenophobia as aversion to individuals based on ‘race, colour, descent, religion or belief, national or ethnic origin'”. (Ambrose Evans-Pritchard, Daily Telegraph, Nov. 29). In The American Prospect, Wendy Kaminer discusses the suit filed in August against America Online for allegedly allowing participants in its chat rooms to engage in “hate speech” against Muslims: “Virtual Offensiveness”, Nov. 19 (see Sept. 3).

December 5-6 — Attorney can sue for being called “fixer”. A federal judge has ruled that Pennsylvania attorney Richard Sprague can proceed with his defamation lawsuit against the American Bar Association and its magazine, the ABA Journal, which had called him a “fixer”. Although writers often employ that term to describe the sort of political wheeler-dealer who uses connections in a perfectly lawful way to resolve people’s problems, the judge found the term might also evoke an impression that Sprague improperly “fixed” cases. (Shannon P. Duffy, “Lawyer’s Defamation Claim Against ABA Found Valid”, The Legal Intelligencer, Nov. 19). Update Nov. 30, 2003: case settles for undisclosed sum and half-page apology.

December 5-6 — Resources: terrorism and the law. Some useful jumping-off points for research and reading: Jurist; FindLaw; Federalist Society briefing papers; Brookings; New Yorker.

December 4 — There’ll always be a California. It’s a state of mind, really:

* In a notice letter sent to Nestlé, Tootsie Roll Industries Inc., Godiva and numerous other confectioners including local favorites Ghirardelli and See’s, attorney Roger Carrick of Los Angeles’s Carrick Law Group has charged the companies with violating the state’s Proposition 65 right-to-know law by failing to post warning labels on chocolate advising consumers that it contains toxic substances such as lead and cadmium. Michele Corash, a Morrison & Foerster lawyer defending Hershey and Mars in the controversy, says the Food and Drug Administration has called chocolate harmless: “What Mr. Carrick is complaining about is tiny amounts of trace minerals that are present in virtually all foods. They are in the soil, and foods that are grown in soil absorb them.” Carrick says it hasn’t been proven that all the lead and cadmium content are from natural sources, but even trial- lawyer- friendly California AG Bill Lockyer has weighed in on the side of the candy makers. (John Rosmer, “Chocolate: It’s Fattening, but Is It Toxic?”, San Francisco Daily Journal, Oct. 29, not online; Dan Evans, “Death by chocolate?”, San Francisco Examiner, Nov. 26). And Forbes explains how Prop 65 has made it possible for bounty-hunting lawyers to do very well: “Visit any doctor or dentist in California. If you don’t see signs warning you that the physician is using potentially harmful chemicals as defined by the state’s Proposition 65 (e.g., mercury fillings), haul him into court and demand $2,500 for each day he didn’t post the warnings. You get 25% of the loot, the state 75%”. (Dorothy Pomerantz, “Toxic Avengers”, Forbes, Oct. 15).

* You may have thought your home belonged to you, but some disabled-rights activists have other plans for it: “In what would be the first such rules in the nation, Santa Monica officials are considering a proposal to require that all privately built new homes and those undergoing major remodeling have a wheelchair ramp entry, wide interior hallways and at least one handicapped-accessible bathroom.” (Bob Pool, “Wheelchair Access as a Must for Residences”, L.A. Times, Dec. 2).

* “Richard Espinosa, whose assistance dog allegedly was attacked by the [Escondido] Public Library’s pet cat last year, filed a lawsuit against the city yesterday seeking $1.5 million in damages.” (see May 7 and (letter from Espinosa) June 13) (& see Apr. 15, 2002) (John Behrman, “$1.5 Million Suit Filed in Library Cat Case”, San Diego Union Tribune, Nov. 28).

December 4 — An ill wind. Among those prospering in the wake of the Sept. 11 attacks: employment lawyers, whose phones may ring nonstop in a time of mass layoffs. (“Layoff Lessons”, Corporate Counsel, Nov. 21). Garry Mathiason of the management-side firm Littler Mendelson says that in addition to that, his firm “has three key advantages: sex, drugs and violence” — all sources of legal risk for employers. (Krysten Crawford, “Littler’s Labors”, The Recorder, Nov. 20).

December 4 — Headline of the day. “Sept. 11 Laws Raise Fears of Tort Reform” — Bob Van Voris, National Law Journal, Nov. 27. Love that “fears”. The NLJ does know its audience, doesn’t it?

December 3 — Can’t do anything but legislate. Some constituents are furious at Pennsylvania state representative Jane Baker, a Republican, after learning that her lawyers have filed papers in a car-accident case portraying her as “virtually unemployable” aside from her lawmaking job. “In a televised debate last fall, Baker assured viewers that, both physically and mentally, she was up to the task of representing them in Harrisburg. Asked directly if she could read and comprehend well, she replied, ‘I’m fine.’ She went on to say that a physical injury to her left arm ‘appears to be permanent, but otherwise … I’m ready to go to work’ in Harrisburg.

“Legal papers Baker filed last month paint a dramatically different portrait. If not re-elected, Baker claimed Oct. 19 in legal papers tied to her case, she will be ‘virtually unemployable’ because of her condition, which includes physical and ‘multiple cognitive defects’ that include problems remembering and recollecting what she has read.'” Baker’s suit is demanding $7.5 million in damages from Judith V. Fulmer, “a former friend who pleaded guilty to drunken driving and leaving the scene of an accident” after police say her vehicle struck Baker as she walked along a country road. (Mario Cattabiani, “Baker’s lawsuit puzzles some”, Allentown Morning Call, Nov. 4).

December 3 — “Terrorists push plots from jail”. It’s practically a tradition for American inmates to continue running criminal enterprises from their cells, but the stakes have gotten higher: investigators now realize that Mideast terrorists locked up in American prisons have repeatedly managed to communicate with outside followers to approve and even help plan further murderous attacks. The Bush administration on Oct. 31 announced a new practice of listening in on conversations between detainees and their attorneys when it determines there is “reasonable suspicion” that such communications are related to future terrorist acts; Attorney General John Ashcroft says that there are only 13 persons in custody — at the moment — for whom it would like to use such power. The detainees and their attorneys are to be advised of the monitoring, and a “privilege team” is supposed to screen the resulting information so that it does not reach the eyes of prosecutors or regular investigators. American Bar Association president Robert A. Hirshon says such monitoring is constitutional only if a judge approves it in advance under a probable-cause standard, and Senate Judiciary chair Patrick Leahy (D-Vt.) also views the new practice as “unacceptable” in its current form. (Cam Simpson, Chicago Tribune, Nov. 19; Pete Yost, “Ashcroft Defends Monitoring of Inmate-Attorney Conversations”, AP/Law.com, Nov. 13; Tom Gede, Kent Scheidegger and William Otis, “Monitoring Attorney-Client Communications of Designated Federal Prisoners”, Federalist Society National Security White Papers, Dec. 3).

December 3 — Lending rules trip up litigation-finance firms. Class-action lawyers have repeatedly tripped up financial services firms by arguing in court that transactions characterized as cash advances (such as “rapid refunds” that tax-preparing companies issue before the actual IRS check arrives) are in reality loans, leaving companies liable if they have not made the full range of disclosures required by truth-in-lending law (see, for example, Apr. 5). So some might see a kind of poetic justice in the news from Ohio, where an appellate court has “ruled that two companies that advance money to personal injury plaintiffs on the understanding that they will be repaid only if the plaintiffs prevail, are making loans — not ‘contingent advances’ — and violated state usury and lender- registration laws.” Every so often, surprising as it may seem, the litigation community does wind up having to live by the same rules it prescribes for the rest of us. (Gary Young, “Ohio Court Rules Against Litigation-Loan Firm in Usury Case”, National Law Journal, Nov. 16) (see also letter to the editor, Oct. 22).


December 20 — New York guardianship scandals. “Cronyism, politics, and nepotism” run rife in New York’s notorious system of court-appointed guardianships, a report released by the state’s chief judge, Judith Kaye, has found after a two-year investigation (see Jan. 12, 2000). “In one case, a lawyer appointed to be a guardian for a woman who could not handle her own affairs billed her estate $850 after he and an assistant took a cake and flowers to her nursing home on her birthday. On another day, the lawyer and an employee took her out for a walk and bought her an ice cream cone. Their bill was $1,275.” And much, much more (Jane Fritsch, “Guardianship Abuses Noted, Including a $1,275 Ice Cream”, New York Times, Dec. 4; Daniel Wise, “Investigation Finds ‘Cronyism’ Abounds in New York Court Appointments”, New York Law Journal, Dec. 5; “Report of the Commission on Fiduciary Appointments”, December; “Fiduciary Appointments in New York“).

December 20 — “Firms Hit Hard as Asbestos Claims Rise”. L.A. Times looks at asbestos litigation and finds abuses and overreaching have gone so far that even some prominent plaintiff’s lawyers agree on the need for action. “An Oakland-based attorney who has represented asbestos victims for 27 years is leading a renegade faction of the plaintiffs’ bar that has joined with many of the corporations they sue in calling for limits on claims from people without serious illnesses. ‘It’s too far gone to do anything else,’ Steve Kazan said. ‘The asbestos companies are really cash cows that we should care for and cultivate so we can milk them for years as we need to. But I have colleagues who’d rather kill them, cut them up and put them on the grill now. We’d all have a great time, but there are people who will be hungry in five years.'” Over 15 years, now-bankrupt boilermaker Babcock & Wilcox “spent $1.6 billion on 317,000 claims that took paralegals five to 10 minutes each to prepare.” (Lisa Girion, “Firms Hit Hard as Asbestos Claims Rise”, L.A. Times, Dec. 17). According to a letter sent by the Manville Trust to federal judge Jack Weinstein on Dec. 2, asbestos claimants with cancer or other grave illness are receiving reduced payments because “disproportionate amount of Trust settlement dollars have gone to the least injured claimants — many with no discernible asbestos-related physical impairment whatsoever.” As usual, a key problem is the submission of questionable x-rays. (Queena Sook Kim, “Asbestos Trust Says Assets Are Reduced As the Medically Unimpaired File Claims”, Wall Street Journal, Dec. 14)(online subscribers only).

December 20 — Accused WTC bombing participant won’t get $110K. “In a decision that comments extensively on the war on terrorism, the 3rd U.S. Circuit Court of Appeals overturned an award of more than $110,000 in attorney fees to a Palestinian man who successfully avoided deportation after the government accused him of involvement in the 1993 bombing of the World Trade Center … the court found that the government’s efforts to deport Hany Mahmoud Kiareldeen were ‘substantially justified’ even though it was ultimately unable to prove its case against him to the satisfaction of the trial judge” by clear, convincing and unequivocal evidence. (Shannon P. Duffy, “3rd Circuit Takes Away Attorney Fee Award in ’93 WTC Bombing Case”, The Legal Intelligencer, Dec. 7).

December 19 — Texas jury clears drugmaker in first Rezulin case. Back to the drawing board for plaintiff’s lawyers trying to take down the Warner-Lambert division of Pfizer over side effects from its diabetes drug Rezulin. “‘It was a good drug. It helped a lot of people,’ said one juror, who asked not to be identified. ‘There just wasn’t enough evidence to show the drug was defective.'” Attorney George Fleming had demanded $25 million in damages and “emphasized Warner-Lambert’s interest in profits, flashing excerpts from internal memos before the jury.” Lawyers have many more Rezulin cases in the pipeline, so they’ll be able to try again and again before other juries. (Leigh Hopper, “Firm wins 1st Rezulin suit in court”, Houston Chronicle, Dec. 17). UpdateJan. 9-10, 2002: second trial goes against drugmaker with $43 million actual damages.

December 19 — “$3 million awarded in harassment”. “A federal jury Wednesday awarded a woman patrol officer for the Cook County Forest Preserve District $3 million in damages — $1 million more than her lawyer sought from the district–for years of sexual harassment and retaliation on the job … One member of the five-woman, three-man jury said he didn’t find the harassment egregious but felt a need to send the Forest Preserve District a message for its inaction regarding Spina’s complaints. ‘The county didn’t respond,’ juror Christopher Calgaro, an insurance claims supervisor from Homewood, said after the verdict. ‘They need to change, I mean catch up to the times.'” (Matt O’Connor and Robert Becker, Chicago Tribune, Dec. 13).

December 19 — Sued if you do dept.: language in the workplace. “Any worker offended by the words of a single employee can sue his employer for damages. Accordingly, many employers have adopted ‘English-only’ rules for their employees, in order to better supervise employee comments. Yet the EEOC also insists that employers can be sued by any employee who takes offense to an ‘English-only’ policy.” (Jim Boulet Jr., , “Catch-22 on Language”, National Review Online, Nov. 14) (see Nov. 17, 1999).

December 18 — False trail of missing lynx. “Federal and state wildlife biologists planted false evidence of a rare cat species in two national forests, officials told The Washington Times. Had the deception not been discovered, the government likely would have banned many forms of recreation and use of natural resources in the Gifford Pinchot National Forest and Wenatchee National Forest in Washington state.” After a Forest Service employee blew the whistle on colleagues, officials discovered that seven government employees, five from federal agencies and two from Washington state, “planted three separate samples of Canadian lynx hair on rubbing posts used to identify existence of the creatures in the two national forests.” The employees were given no serious discipline, merely counseling and being taken off the lynx survey project, and federal officials would not even release their names, “citing privacy concerns.” (Audrey Hudson, “Rare lynx hairs found in forests exposed as hoax”, Washington Times, Dec. 17; InstaPundit, Dec. 17).

December 18 — For client-chasers, daytime TV gets results. “Princeton, N.J. lawyer John Sakson … spends up to $80,000 a month soliciting potential plaintiffs. Some of his advertising is aimed at slip-and-fall and medical-malpractice victims. But these days he’s also trawling for much bigger fish — plaintiffs for deep-pocket attacks on big corporations, especially pharmaceutical companies. … the nation’s largest legal- advertising agency … says one-third of its $20 million in legal billings comes from pharmaceutical litigation ads, compared with maybe 1% a decade ago.” Poor, unemployed and disabled people disproportionately watch daytime TV: “Real-life judge shows like Judge Mills Lane and Judge Judy are jackpots.” (Michael Freedman, “New Techniques in Ambulance Chasing”, Forbes, Nov. 11).

December 18 — Compulsory chapel for Minn. lawyers. “Since 1996, the Minnesota Supreme Court has required attorneys to participate in its version of diversity training — called ‘elimination of bias’ education — as a condition of holding a license to practice law.” The point is less to regulate attorneys’ conduct than to instill in them opinions that the authorities consider correct about complex political and moral questions, and many of the resulting seminars have had a tendentious, preachy anti- white- male tone. (Katherine Kersten, “Court-ordered ‘elimination of bias’ seminars threaten freedom of thought”, Minneapolis Star-Tribune, Dec. 12). See update Nov. 21, 2003 (lawyer challenges requirement).

December 17 — “Suing the City for Sept. 11? Oh, Why Not?”. Giuliani or Bloomberg, New York City’s tort crisis just keeps getting worse: “Settlements cost the city $459 million that year [fiscal 2000], the latest for which statistics are available. … You might expect the litigation to slow down as a hurt and financially damaged city looks to rebuild and weather a recession. You would be wrong. … Interviews with lawyers for the city and prospective plaintiffs indicate that the attack will generate substantially more than 1,000 notices of claim.” (Joyce Purnick, New York Times, Dec. 13).

December 17 — Slouching toward Marin? Every conservative commentator in the country, it seems, has by now told us where to pin the blame for Tali-boy John Walker’s descent into Islamic extremism: it’s all because of his permissive, religiously liberal suburban upbringing. Steve Chapman offers a corrective to all the Culture War axe-grinding (“Is John Walker a failure of liberalism?”, Chicago Tribune, Dec. 16).

December 17 — Daynard watch. It sure did take a long time, but the British Medical Journal has finally admitted to its readers that tobacco-baiting Northeastern University law prof Richard Daynard failed to disclose competing interests in litigation to BMJ readers as per the journal’s policy (see our earlier reports). The correction states that Daynard “has been involved as counsel in suing tobacco companies and has received grants for research into the use of litigation to control tobacco use”. Because this formulation is so terse and artfully worded, however, readers in the United Kingdom (where lawyers are generally not allowed to claim percentage stakes in litigation) may not realize that the competing interest Daynard concealed consisted not in routine hourly fees but a contingency stake that, per his claims, may top $100 million (“Correction: Tobacco litigation worldwide”, Oct. 6). Connecticut activist Martha Perske deserves the credit for getting the BMJ to semi-‘fess up. Meanwhile, Daynard’s division- of- the- spoils suit against former anti-tobacco colleagues Ron Motley and Richard Scruggs “is providing an inside look at the way lawyers finagled fees in the tobacco litigation — and the lengths they’ll go to protect their hoard.” (Elizabeth Preis, “A Piece of the Action”, The American Lawyer, Sept. 7).

December 15-16 — Criminal defense attorneys, doing what they do best. “While it may seem like the ultimate smoking gun, defense lawyers said there would be ways to try to undercut the videotape of Osama bin Laden if he were to go on trial for the Sept. 11 terrorist attacks. … ‘I would argue as a defense lawyer that the tape is puffery, celebration and bragging,’ said Robert E. Precht, director of public interest law at the University of Michigan Law School who was a defense lawyer in the trial of the World Trade Center bombers in 1994′ … several defense lawyers suggested that a creative defense team might claim that the damning translation from Arabic was misleading or that the tape was doctored. ‘The reality is you can make a tampering argument with any tape,’ Barry I. Slotnick, a New York defense lawyer, said.” And: “with tapes that are transcribed from a different language, there are interpreters you can find who can come up with a different transcript,” offered New York’s Benjamin Brafman. Then there’d be attacks on the tape’s admissibility, since “it was not clear how the government obtained it”, which might in turn force the CIA to reveal sensitive information — great tactical leverage. (William Glaberson, “Defense Lawyers See Ways to Attack Tape, if Not Win”, New York Times, Dec. 15). On the role of the O.J. Simpson case in convincing much of the American public that our court system cannot be trusted to deliver even rough justice in a high-profile criminal trial, see, among many others, Glenn Reynolds, InstaPundit.com, Dec. 13.

December 15-16 — Updates. Further developments in cases that were bound to develop further:

* The Canadian Transportation Agency has ruled that obesity in itself is not a disability and that airlines are not therefore obliged by law to offer extra seats to severely overweight passengers, although it suggested they consider doing so voluntarily (see June 7, Dec. 20, 2000)(“Canadian tribunal rules obesity is not a disability”, Reuters/FindLaw, Dec. 13).

* In New South Wales, Australia, an appeals court has ordered a new trial after finding that an award of almost $3 million (Aust.) was “excessively high” in the case of a man who sued over having been subjected to strapping as punishment twice at a Catholic school seventeen years ago (see Feb. 20). (Ellen Connolly, “Compensation takes a caning as $3m payment revoked”, Sydney Morning Herald, Nov. 1).

* Sitting en banc, the Ninth Circuit has held that grabbing the interest on clients’ trust accounts at law firms to finance poverty law does not entail any “taking” for which the clients need be compensated; the 7-4 decision comes over a dissent by Judge Alex Kozinski, whose earlier opinion for a three-judge panel (see Jan. 31) the court reversed. The Ninth now officially disagrees with the Fifth Circuit (so what else is new?) on this issue, and the circuit split may attract the attention of the U.S. Supreme Court. The court did not resolve the question of whether such programs violate the First Amendment. (Jason Hoppin, “IOLTA: 9th Circuit Says IOLTA Programs OK”, The Recorder, Nov. 15) (opinion in PDF format courtesy FindLaw).

* “Five shopkeepers prosecuted for weighing food in British Imperial measurements instead of the metric system demanded by European law appealed to London’s High Court Tuesday to quash their convictions.” After greengrocer Steven Thoburn of Sunderland, the original “metric martyr”, was brought up on charges for weighing bananas in pounds (see Jan. 22, April 11), authorities collared four more shopkeepers who were using the forbidden measures to weigh such items as mackerel and pumpkins. Some 200 protesters demonstrated outside the court in support of the merchants. (“Shopkeepers Battle for Right to Use British Weight” , Reuters/Yahoo, Nov. 23). Update Feb. 20, 2002: they lose High Court appeal.

December 13-14 — “Father seeks $1.5 million after son misses varsity spot”. By reader acclaim: “The father of a high school sophomore seeks $1.5 million in damages and the dismissal of the school’s basketball coach after his son did not make the varsity. Lynn Rubin sued the New Haven Unified School District on Nov. 27 because his son, Jawaan Rubin, was told to return to the junior varsity after being asked to try out for varsity.” The youngster attends James Logan High School in Union City, Calif. (AP/SFGate.com, Dec. 11; Contra Costa Times, Dec. 12).

December 13-14 — SCTLA’s homegrown Chomsky. We’re familiar with the tendency of politically active injury lawyers to espouse opinions farther to the left than those of the communities they live in. Still, we’re a bit amazed at a commentary that appeared last month on CommonDreams.org, a left-leaning website that has vehemently opposed U.S. military action before and after September 11. The commentary, in headlong Noam Chomsky/Robert Fisk rant mode, claims that “the United States is making war on children” in its efforts against the Taliban and al Qaeda, declares that the American military is delivering a “message of greed and violence” to Afghanis, and even puts scare quotes around the word “evil-doers” in referring to those responsible for Sept. 11. The screed’s author? Columbia, S.C. plaintiff’s lawyer Tom Turnipseed, a well-known figure in his state’s Democratic politics (most recently as its 1998 attorney general candidate; he’s now mulling a run for U.S. Senate) who’s often described as a leader of the state party’s progressive wing. Can this sort of thing really play with the voting public and in the jury box in a conservative, pro-military state like S.C.?

The “message of greed” that Turnipseed claims the U.S. is conveying to Afghanis, incidentally, consists of our offer of $25 million for the apprehension of Osama bin Laden. Presumably this is quite different from the message conveyed by Turnipseed’s own web site, which assures prospective clients that he has resolved numerous cases for sums in excess of $1 million. (“Broadcasting and Bombing”, CommonDreams.org, Nov. 22; Turnipseed’s law firm website and “mission“; via Matt Welch). (DURABLE LINK)

December 13-14 — Competitor can file RICO suit over hiring of illegal aliens. A really odd one from the Second Circuit: the court says a commercial cleaning service in Hartford has standing to sue a competitor for racketeering under federal law over the second firm’s alleged hiring of undocumented workers. If the decision stands, expect all sorts of new business-on-business litigation, underscoring the need to roll back RICO’s many overexpansive provisions, or repeal the law entirely. (Elizabeth Amon, “New RICO Target: Hiring Illegal Aliens”, National Law Journal, Nov. 27). Update: see Point Of Law, Jul. 12, 2004.

December 13-14 — Segway, the super-wheelchair and the FDA. The much-publicized new mobility device, known variously as “It”, “Ginger” and the “Segway”, originated as a spinoff of a quest for a truly powerful and versatile wheelchair that would allow disabled users to climb and descend stairs and curbs, traverse rough terrain and surmount other kinds of barriers. The IBot wheelchair project is still considered extremely promising, but progress on it has been less rapid than hoped: genuine safety concerns are part of the problem, but they’re magnified by various legal worries including the arduous process of getting the Food and Drug Administration to approve a new “medical device”. Meanwhile some disabled persons, frustrated at seeing years of their lives slip by without the yearned-for mobility advance, are now considering hacking the “Segway” to meet their needs. (Michelle Delio, “What About Kamen’s Other Machine?”, Wired News, Dec. 7).

As for the Segway itself: “No matter how inherently safe Segways may be, someone, somewhere is going to kill himself on one. ‘It’s inevitable,’ says Gary Bridge, Segway’s marketing chief. ‘I dread that day.’ Never mind that people die every day on bicycles, in crosswalks, on skateboards, in cars. The Segway is the newest new thing, and nothing does more to set hearts afire on the contingency-fee bar. ‘There are some very deep pockets around this thing,’ remarks Andy Grove. ‘I fear this could be a litigation lightning rod.'” (John Heilemann, “Reinventing the wheel”, Time, Dec. 2 (see p. 4)). Update: see Aug. 1, 2002.

December 13-14 — Menace of office-park geese. We knew they were sinister: an Illinois panel has approved a $17,000 settlement for Aramark Corp. deliveryman Nolan Lett, who was attacked by Canada geese on his employer’s property in suburban Oak Brook, and filed a workers’ comp claim “under the theory that Aramark had a duty to warn employees of the dangers of the geese because the building was in an area that attracted them.” Lett broke his wrist trying to fend off the pesky creatures. (“Workers’ compensation: Victim of wild goose attack settles for $17,000”, National Law Journal, Oct. 22). (DURABLE LINK)

December 12 — By reader acclaim: “Teen hit by train while asleep on tracks sues railroad”. Cameron Clapp of Grover Beach, Calif. has sued the Union Pacific railroad and its conductor and engineer, saying that they should have sounded the train’s horn or bell as well as engaged the emergency brake when they saw him asleep on the tracks. Clapp’s blood alcohol level after the accident was measured at .229, nearly three times the permissible level for operating a motor vehicle. “According to Grover Beach police, the engineer and conductor did not sound the horn because they were focused on activating the train’s emergency brakes.” Notwithstanding his client’s having been passed out at the time, Clapp’s attorney, Jim Murphy, claims that ‘These horns are enormously powerful and can literally* wake the dead.'” (Leila Knox, San Luis Obispo Tribune, Dec. 8) (*usage note)

December 12 — A bargain at $700/hour. New York law firms Weil, Gotshal and Manges and Wachtell, Lipton, Rosen & Katz “have each asked for a $1 million bonus, on top of their regular rates and costs, as an ‘enhancement'” for advising United Companies Financial Corp. of Baton Rouge, La. and its creditors during its bankruptcy. Under bankruptcy law, judges must approve the payment of fees in such cases. “Ultimately, any such fees come out of the estate of the debtor, leaving less money to go around. … Weil, Gotshal’s [attorney Harvey] Miller says that while shareholders were wiped out, his firm, which represented the debtor, still deserves a bonus for ‘creating value.’ Weil is seeking $7.3 million in fees in the case. But he says that hourly rates do not always do justice to a lawyer’s contributions. He considers his $700 hourly rate, which he increased from $675 over the summer, ‘a bargain.'”

“In another case, a small firm, Dann Pecar Newman & Kleiman of Indianapolis, has requested $5 million in fees for representing consumers in a two-year-old Chapter 11 proceeding against a defunct satellite-dish financing unit of Houston-based American General Corp. The fee request includes a $3 million bonus, which would put the 22-lawyer firm’s effective rate in the case at roughly $650 an hour — on a par with top New York firms. The consumers ultimately collected about $28 million from the company. David Kleiman, a partner, says he considers the case more akin to a far-flung class-action suit, where courts have long rewarded lawyers a multiple of their hourly rates. The fees were ‘remarkably low,’ he says.” (Richard B. Schmitt, “Bankruptcy Lawyers Seek Big ‘Enhancement’ Bonuses”, Wall Street Journal, Nov. 1 (online subscribers only)).

December 12 — Ready, aim … consult counsel. It seems that situation described by Seymour Hersh in his New Yorker story a few weeks back (see Oct. 19) — of U.S. forces hesitating to destroy a hostile target until they could consult a Pentagon lawyer — is not as unusual as might be assumed. “To many outside of military life, the idea of a judge advocate whispering in the ear of a four-star general [during mission planning and in battlefield decisionmaking] is startling. But nowadays it is standard procedure,” writes Vanessa Blum in Legal Times. “Modern judge advocates literally sit at the side of commanders, drafting rules of engagement, weighing in on targeting decisions, and even helping to prepare special operations forces for risky missions.” (“JAG Goes to War”, Nov. 15).

December 11 — “Lawyers on trial”. In what was originally planned as a cover story, U.S. News in this week’s issue asks: “Are lawyers out of control? Or, more important: Has litigation become more of a burden to society than a safeguard?”. Our editor, who provided considerable assistance (readers of this site will recognize many stories), is quoted. (Pamela Sherrid, U.S. News, Dec. 17) (links to sidebars on class action recruitment, asbestos, forum-shopping, shareholder suits). Also, an account of a recusal controversy in a New York securities-law case quotes our editor to the effect that lawyers are taking a risk when they demand that judges recuse themselves, since such demands tend to annoy not only the target judge but also his colleagues on the bench. (Heidi Moore, “IPO Recusal Motion Backfires”, The Deal, Dec. 7).

December 11 — “Wrongful life” comes to France. A court in Paris has ruled that some disabled children can sue doctors for not having aborted them, a development that OpinionJournal.com‘s “Best of the Web” takes as evidence of specifically French barbarity, apparently unaware that American lawyers have been advancing such theories for years in our courts with some success (see Aug. 22). (Nanette van der Laan, “France debates right not to be born”, Christian Science Monitor, Dec. 7; James Taranto, “Best of the Web”, Dec. 10 (last item)). Update Jan. 9-10, 2002: French doctors stage job action in protest.

December 11 —KPMG. This international services firm (no longer affiliated with the consulting firm of the same name) seems to think it has a legal right to prevent people from linking to its website without its permission, so of course any number of websites are doing just that. Like this: KPMG. Actually, our advice is to skip the company’s tedious site and just check out the Wired News account of the controversy: Farhad Manjoo, “Big Stink Over a Simple Link”, Dec. 6. (& see Blogdex)


December 28, 2001-January 1, 2002 — Eggnog expense exacerbated. Many states artificially inflate the price of holiday cheer through measures designed to further the interests of wine and spirits wholesalers, such as laws making it virtually impossible for liquor manufacturers and importers to switch from one wholesaler to another. (Americans for Tax Reform, “Monopoly Protection Laws Target Wine and Spirits Industry”, Dec. 14).

December 28, 2001-January 1, 2002 — Law firm sued over fen-phen settlement practices. “A New York law firm has come under attack by disgruntled fen-phen plaintiffs who charge the firm persuaded thousands of plaintiffs to opt out of the 1999 global class action settlement, struck a secret deal with American Home Products and then intimidated its clients to settle for far less than was promised.” The suit was filed against Napoli, Kaiser, Bern & Associates on behalf of 5,600 fen-phen plaintiffs by Seattle’s Hagens & Berman. Among its allegations are that the Napoli firm resolved cases in a large batch settlement with AHP which left it with unsupervised discretion to distribute the proceeds among various clients, and that it employed a registered nurse and attorney “to tell clients why, in her ‘expert opinion,’ the settlement represented excellent compensation for their injuries. ‘Later, a charge for “expert witness fee” appeared on client closing documents,’ the complaint states. ‘Often the so-called expert fees were dated before she even came to the NKB.'” The defendants say they obtained reasonable settlements for the clients and expect to be vindicated. (Mark Hamblett, “New York Firm Accused of Intimidating Clients in Fen-Phen Litigation”, New York Law Journal, Dec. 13).

December 28, 2001-January 1, 2002 — “The Great Mouthpiece”. Don’t get too nostalgic about the good old days: long before the O.J. trial, back in the ‘teens and 1920s, there were the likes of notorious Manhattan attorney Bill Fallon. “Few Fallon clients spent a day in jail before trial and, if not acquitted, they usually enjoyed hung juries. …Fallon’ style was Runyonesque before Runyon invented it for himself. … so long as he endured in public memory, he was the archetype of the amoral criminal defense lawyer.” (William Bryk, “Old Smoke: Criminal Lawyer”, New York Press, Nov. (vol. 14, iss. 45))

December 28, 2001-January 1, 2002 — “UK women can demand to know men’s salaries”. The new law is supposed to promote “pay equity”, but officials acknowledge there may be a wee problem protecting male employees’ privacy and preventing fishing expeditions aimed at gratifying curiosity or spite rather than fingering equal pay violations. (Jo Revill, “UK women can demand to know men’s salaries”, ThisIsLondon.com, Dec. 4).

December 24-27 — Chestnuts-roasting menace averted. Citing clean-air concerns, the Berkeley, Calif. city council “has banned log-burning fireplaces in new homes and other buildings.” An environmental activist who led the drive for the ordinance is hoping in future to extend it so as to ban homeowners’ use of existing fireplaces as well. At least seven Bay Area jurisdictions, including San Jose and Palo Alto, as well as Contra Costa and San Mateo counties, have banned installation of new residential fireplaces, but Berkeley is the first to forbid new wood-fired restaurant ovens and grills in restaurants unless pollution-control equipment is added, a possible threat to the city’s thriving foodie culture of “foraged-mesquite fires cooking free-range chickens or vegan pizzas”. Famed Berkeley restaurateur Alice Waters, who “said her grill and oven did not work properly when she tried to filter the exhaust”, is among those “totally opposed” to the new law: “We’ve had a fundamental connection between fire and food since the beginning of time.” (Peter Y. Hong, “Cozy Domestic Symbol Takes Heat in Berkeley”, L.A. Times, Dec. 23) (see Feb. 28, 2001 and Dec. 27-29, 2002). (DURABLE LINK)

December 24-27 — Holidays in strict legal form. Three seasonal rituals — the office party, gift-giving, and New Year’s resolutions — might work better if reduced to legal contract form, suggests humorist Madeleine Begun Kane. From HumorMatters.com comes another lawyered-up “Night Before Christmas” parody: “At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter ‘the Vehicle’) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer.” Plus, from the same site: “Politically Correct Christmas Poem” and the much-circulated “Xmas office party memos“. From IndraNet, the also much-circulated “Twelve Days of Christmas for the Politically Correct“. Chadbourne & Parke attorney Lawrence Savell puts out “The Lawyer’s Holiday Humor Album“, with tunes like “Santa v. Acme Sleigh” and “It’s Gonna Be A Billable Christmas”; all we can tell you about is the titles since we haven’t heard the album. For more Christmas lawyer humor, see Dec. 23, 1999. (DURABLE LINK)

December 24-27 — Federal judge rules high school sports schedules unlawful. More Title IX from Outer Space: a federal judge in Kalamazoo, Mich. has ruled that the Michigan High School Athletic Association has been violating federal and state civil rights law and the Fourteenth Amendment’s equal protection clause by scheduling girls’ but not boys’ athletic seasons out of sync with their collegiate counterparts. (James Prichard, “Federal Judge Rules Against Michigan High School Athletic Group in Gender-Equity Lawsuit”, AP/Law.com, Dec. 18; extensive Grand Rapids Press/MichiganLive coverage). See Dave Reardon, “Spring hoops might not be federal case”, Honolulu Star-Bulletin, Dec. 13, 2000. (& letter to the editor, Feb. 28). More: Jul. 10, 2004. (DURABLE LINK)

December 24-27 — Liability for mistargeted bombing? Sovereign immunity, shmovereign immunity, says a Jones, Day attorney who is suing to make the U.S. government (and hence U.S. taxpayers) compensate the owner of a Sudanese pharmaceutical plant destroyed by an American bombing raid in August 1998 that many subsequent reports have suggested was mistargeted. While nothing would prevent the U.S. Congress from appropriating such compensation as a voluntary matter, Justice Department lawyers are unimpressed with attorney Stephen Brogan’s argument that the plant owner is entitled as a matter of law to compensation under the Constitution’s “takings” clause, saying that clause would not cover non-U.S. property owned by a non-U.S. citizen. Not to mention the wider policy issues: “There is something to be said for the government acting with fearlessness in these circumstances,” as George Washington University law professor Jonathan Siegel says. “The president should not have to worry about tort liability” when making tough military calls. (Otis Bilodeau, “When Bombs Miss the Mark”, Legal Times, Nov. 28). (DURABLE LINK)

December 21-23 — Under the Christmas tree. Toy soldiers? Think again if you’re in the child care business: “A daycare center in North Carolina seeking state certification for its preschool program found itself penalized because an inspector discovered green plastic army men on the premises, reports the Wilmington Morning Star. Laura Johnson said the presence of the nine little army guys at her Kids Gym Schoolhouse led to the loss of five points under the state-sanctioned Early Childhood Environmental Rating System. Evaluator Katie Haselden said schools may not have such displays of stereotyping or violence on the premises. The army men ‘reflect stereotyping and violence, therefore credit cannot be given,’ she wrote in her report.” (Scott Norvell, “Tongue Tied”, FoxNews.com, Nov. 26). At home, however, this may be the year that even good liberal parents break down and buy their son a G.I. Joe, if anecdotes from New York are any indication (John Tierney, “G.I. Stands Tall Again (12 Inches)”, New York Times, Dec. 11; and don’t miss Lisa Snell, “What the Schools Teach Children About Terrorism”, Dynamist.com (Virginia Postrel), Sept. 15 (scroll down if necessary to “Power Rangers vs. Eggshells”)). However, trial lawyers and their friends at the Consumer Product Safety Commission have been running a big campaign against that classic Christmas present of a rural boyhood, the Daisy BB gun(Andrew Ferguson, “When the Nanny State Becomes the Mommy State”, Bloomberg.com, Nov. 6; “You’ll Shoot Your Eye Out!” (editorial), Wall Street Journal, Nov. 30).

December 21-23 — Fleeing obstetrics, again. One of the many prices the state of Mississippi is paying for its reputation as a trial lawyer paradise: physicians are increasingly dropping obstetrics from their practices, faced with insurance rates of $40,000-$100,000 a year that would until recently have been more typical of big cities (“Costs Lead Rural Doctors to Drop Obstetrics”, AP/Washington Post, Nov. 23). Similar problems are arising in West Virginia: Rita Rubin, “You might feel a bit of a pinch, USA Today, Dec. 3. Frederick (Md.) Memorial Hospital is among institutions that have moved to a policy of not allowing families to bring cameras to the delivery room, and some upset moms “accuse hospital officials of trying to protect themselves against malpractice suits at the parents’ expense”. (Raymond McCaffrey, “Moms Say Hospital Photo Ban Makes Birth a Blurry Memory,” Washington Post, Dec. 11; see Oct. 18, 2000). And although trial lawyers keep insisting that medical liability coverage is a high-profit line for insurers, one of the largest providers of malpractice insurance, St. Paul Cos., just announced it was finally giving up and pulling out of the business, which would seem a reasonably sincere testimony to its frustration (“St Paul Cos To Exit Medical Malpractice Business”, Wall Street Journal, Dec. 12)(online subscribers only).

December 21-23 — Australia: anti-American tripped up by speech code. In a case currently on appeal, Australia’s Financial Times was found guilty of inciting racial hatred after one of its opinion columnists wrote that Palestinians as a factor in Mideast politics were “vicious thugs” and “cannot be trusted” (see July 11, 2000). Now, to the shock of some in Australian journalism, prominent broadcaster and journalist Phillip Adams has been made the subject of a private complaint for “racial vilification” of … Americans; he had published in The Australian one of those all-too-familiar screeds declaring that the United States is a country of “madness”, “the most violent nation on earth”, etc., etc. Writes commentator Tim Blair: “I can’t see a massive amount of difference here. Either Adams must be found guilty, or – my favored option – we throw this vilification garbage in the toilet and return to living like free men.” (Tim Blair weblog, scroll to near bottom of the page for Dec. 9; scroll to third Dec. 7 item (via Matt Welch); Pilita Clark, “Shock as columnist investigated for un-American activity”, Sydney Morning Herald, Dec. 7; Phillip Adams, “Look back in anger”, The Australian, Oct. 6) (see also Oct. 17-18, on the Sunera Thobani case in Canada). And the British government, in order to get its antiterrorism legislation past the House of Lords, “was forced to abandon the controversial attempt to make a new criminal offense of inciting religious hatred”. (“UK passes antiterror law”, CNN, Dec. 14)(see Oct. 19-21). They’re sometimes a more useful bunch than G&S gave them credit for being, those Lords.

April 2000 archives, part 2


April 20 — Not tonight, gotta coach my kids. “Children as young as 7 and 9 were coached to fake injuries in a car insurance fraud case in western Arkansas, a lawyer for the state Insurance Department said.” Eleven people in the Fort Smith area were charged with setting up liability claims by staging accidents so as to make it appear that other drivers were at fault. “Clay Simpson, an attorney for the department, said some used children as passengers and trained them to act injured after the staged crashes”. One of the adults evidently decided to add realism, according to Simpson, and “physically struck one of the small children in the head so he would have an injury … and be able to go to the hospital.” (Arkansas Insurance Department press release, April 13; Chuck Bartels, “Eleven Charged for Staging Crashes”, AP/Excite, Apr. 13; “The youngest grifters”, AP/ABC News, Apr. 14).

April 20 — Web-advertisers’ apocalypse? Most noteworthy tidbit in WSJ news story a while back on wave of privacy suits against cookie-deploying Web ad firms, quoting Fordham Law’s Joel Reidenberg, a specialist on the topic: “Even advertisers could have some liability to the extent they benefited from and participated in the DoubleClick network. ‘Anybody in the chain of information who participated in the passing off of information to others would be potential targets,’ Mr. Reidenberg says.” (Richard B. Schmitt, “Online Privacy: Alleged Abuses Shape New Law”, Wall Street Journal, Feb. 29, 2000, fee-based archive).

April 20 — Arm yourself for managed care debate. How much higher will medical costs go when Congress makes it easier to sue, and how many more families will get priced out of health insurance? How coherently will a cost control system work once it’s geared to whichever jury gets angriest? Resources: Krishna Kundu, “The Norwood-Dingell Liability Bill: Health Insurance at Risk”, Employment Policy Foundation cost study, Mar. 24; “The Problems with Punitive Damages in Lawsuits against Managed-Care Organizations”, New England Journal of Medicine, Jan. 27; Health Benefits Coalition.

April 20 — Letourneau scandal: now where’s my million? “The teen-ager who fathered two children by his former grade school teacher, Mary Kay Letourneau, is seeking damages from a suburban [Seattle] municipality and school district. Vili Fualaau, now 16, and his mother, Soona, are seeking damages of at least $1 million for emotional suffering, lost income and the cost of rearing the girls, who are in the care of the boy’s mother.” The suit charges school officials with failing to protect the boy from the amorous advances of his teacher, 38, who’s now serving a 7 1/2 year sentence for her involvement with him. “The teen, his mother and Letourneau previously have said in television appearances and in a book that the relationship was consensual.” (“Teen-age boy seeks damages in Washington state teacher sex case”, AP/CNN, Apr. 14).

April 19 — All dressed up. James and Cynthia Harnage of Norwich, Ct. are seeking $21 million in damages from Publisher’s Clearing House, the magazine sweepstakes company, which they say in or around last December sent them repeated notices marked “Document of Title” and “official correspondence from the Publisher’s Clearing House board of judges” with messages such as “Congratulations! Your recent entry was a winner! And Approved for $21 Million!” The Harnages say they came to be convinced that they would receive the grand prize in person on Super Bowl Sunday and even got all dressed up to wait for the knock on the door, but it never came. According to a local paper, Mr. Harnage describes himself as devastated by the letdown; the lawsuit alleges fraud and breach of contract and says the couple suffered emotional distress. (“Disappointed couple sues Publisher’s Clearing House”, AP/Newsday, Apr. 14; “Couple sues Publisher’s Clearing House”, New London (Ct.) Day, Apr. 16).

April 19 — From the incivility frontier. Richard F. Ziegler, writing in the Feb. 7 National Law Journal: “Until recently, the classic example of incivility in litigation was famed Texas lawyer Joe Jamail’s defense of a deposition witness in the 1993 Paramount-QVC Network-Viacom takeover battle. According to the excerpts of the deposition transcript included in an addendum to an opinion by the Delaware Supreme Court, Jamail told the examining lawyer that he could ‘gag a maggot off a meat wagon’ and made other vituperative remarks that the Delaware court labeled ‘extraordinarily rude, uncivil and vulgar.’ . … Mr. Jamail’s ‘maggot’ rhetoric has now been displaced by a new classic in incivility: a pre-suit letter sent by a New York litigator that threatened the prospective defendant with the ‘legal equivalent of a proctology exam’ if the plaintiff’s claim weren’t satisfied without litigation. That wording, plus some other aggressive tactics by the same lawyer, ended up costing the would-be proctologist a $50,000 sanction (now on appeal).” The sanctions were handed down last November by federal judge Denny Chin against litigator Judd Burstein, in a case called Revson v. Cinque & Cinque P.C. However, prospective targets of legal intimidation should not get their hopes up too high: a few years ago the Second Circuit, which includes New York, “sustained as proper a pre-suit letter that sought to encourage settlement by threatening the opposing party with harmful publicity.” (Richard F. Ziegler, “Litigation: The Price of Incivility”, National Law Journal, Feb. 7).

April 19 — Microsoft case: commentators. A gamut of views, ranging from the moderately appalled to the fully appalled:

* Robert Samuelson on the clash between the living thing that is the New Economy and the seemingly robotic lurch of antitrust enforcement (“Puzzles of the New Economy”, Newsweek, April 17);

* Tom Watson, though declaring himself “no cyberlibertarian,” laments that the suit “has permanently created a Federal presence in the development of networked software in the United States. And that means, of course, lots of lawyers getting lots of hourly fees to litigate in an area they clearly don’t understand.” (“Justice Department Saves the Internet, Film at 11”, AtNewYork, April 6 — via Q Queso);

* Michael Kinsley has fun with a New York Times reporter on the question of whether it was shocking for Bill Gates to try to fend off Justice Department assault by — eeeuw! — hiring lobbyists (“The Timesman With a Microchip on His Shoulder”, Slate, April 17).

April 19 — $60,000 battle over $5 t-shirt. In Westerly, Rhode Island, court wrangling has now gone on for two years over whether then-sophomore Robert Parker’s heavy-metal t-shirt (“White Zombie”, number 666 on back) was unnecessarily disruptive and thus in violation of the school dress code. (Michael Mello, “RI ‘Satanic’ T-Shirt Case Continues”, AP/Washington Post, Apr. 10). Update Aug. 29-30: case has settled.

April 18 — Brockovich story, cont’d: the judges’ cruise. Picking up where we left off yesterday with more highlights from Kathleen Sharp’s investigation for Salon:

* Not long after the case settled with its lucrative $133 million lawyers’ fee, the two L.A. lawyers who’d teamed with the Masry/Brockovich firm to handle the PG&E case, Thomas Girardi of Girardi & Keese in Los Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century City, “organized a weeklong Mediterranean cruise for 90 people, including 11 public and private judges. The three PG&E arbitrators were among those invited,” reports Sharp. “One judge called it ‘absolutely incredible.’ A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: ‘This gives decadence a bad name.'”

“The cruise was organized under the banner of Girardi and Lack’s Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the cruise included ‘an extensive professional program,'” which would make it allowable under judicial rules, but retired judge Schoettler can’t recall anyone he knew actually attending a lecture. “The cost was about $3,000 per person, about half the normal rate; Girardi told the Times he and Lack had received a discount for chartering the entire Cunard cruise ship. After some confusion, all of the judges on the trip paid their way, save two unrelated to the PG&E case who were invited to lecture.”

* Some of the judges in the arbitration had an unusually friendly relationship with Girardi: one had officiated at his second wedding, Schoettler had flown in his Gulfstream to attend the World Series, and so forth. “‘I became aware that I should absolutely stay away from [arbitration firm] JAMS or its retired judges when it came to any dealing with Tom Girardi,’ said Laurence Janssen, a partner in the Los Angeles office of Washington law firm Steptoe & Johnson. … ‘The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi.'” The outcry over the post-Hinkley-case cruise helped spur a California Supreme Court inquiry into the arbitration system. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

Incredibly — given all the above — some in the White House and in the Al Gore campaign are hoping to ride the success of the celluloid “Erin Brockovich” into a chance to seize the initiative on behalf of the wonders of the beneficent tort system and the wickedness of the mean old tort reformers who’d like it to be regulated and supervised more closely. That came across in both a relatively light column by the New York Times‘s Maureen Dowd (“The Erin Factor”, April 5) and a thuddingly heavy one by Salon‘s Joe Conason, whose writings often sum up the theme-of-the-week of the Clinton/Gore attack machine (“Lessons from ‘Erin Brockovich'”, March 28). Given the revelations in Kathleen Sharp’s article — which, if there’s any justice, should be in contention for the next round of journalistic prizes — it now may be time for Gore’s backers to hope that public opinion doesn’t start focusing on the Hinkley case. Also recommended: Dennis Byrne, writing in the Chicago Sun-Times that “as I sat through the movie with a reporter’s skepticism, I was uneasy about how one-sided it was,” and offering a list of “movies you’ll never see come out of Hollywood”, (“A feel-good story with a bad taste”, April 12, link now dead); and Michelle Malkin, “The truth about Erin Brockovich”, syndicated/ Jewish World Review, April 17.

April 18 — Catfight! This store’s not big enough for two tigers. Federal appeals court reinstates Kellogg Co.’s suit against Exxon over the two companies’ use of cartoon tigers, both of which date back to the 1950s. For years Exxon’s “tiger in your tank” was mostly seen at the gas pump, but more recently the petroleum company has moved him indoors to tout food items at its convenience stores, angering the Battle Creek-based cereal company, which uses Tony the Tiger to sell its Sugar Frosted Flakes. (“Kellogg Renews Suit Against Exxon over Tiger”, AP/Washington Post, Apr. 12).

April 18 — Update: trial lawyers’ war on Allstate. Plaintiff’s attorneys score some advances in campaign against big insurer known for lawyer-averse claims practices (see “How To Hammer Allstate”, Dec. 22). A New Haven, Ct. federal judge has refused to dismiss a lawsuit claiming that that company committed fraud by discouraging third parties involved in accidents with its insureds from retaining lawyers. A Seattle judge agreed with trial lawyer arguments that for Allstate to urge such third-party claimants not to hire lawyers amounts to the unauthorized practice of law and is thus illegal. And a Nassau County, N.Y. judge has levied sanctions against the company for insisting on its policyholder’s day in court against a claim where it should in the judge’s view have conceded liability. (Mark Ballard, “Allstate Tactics Under Fire,” National Law Journal, Jan. 31; Thomas Scheffey, “Allstate Suit Gets Nod From Connecticut Court”, Connecticut Law Tribune, Feb. 14; Michael A. Riccardi, “Appeal Battle Over Allstate Sanction Case May Help Tort Plaintiffs”, New York Law Journal, Mar. 22). Update Apr. 25, 2004: insurer prevails in Connecticut federal case.

April 17 — Brockovich story breaks wide open. Salon scoops competition with journalist Kathleen Sharp’s impressive investigation of the real lawsuit that inspired “Erin Brockovich”. In the Hollywood tale, after our spunky heroine vanquishes nasty Pacific Gas & Electric, the residents of Hinkley, Calif. win big. In the real world, many of the Hinkley clients feel they got the royal shaft from the lawyers who represented them, and are now proceeding to sue those lawyers, specifically Brockovich’s firm of Masry & Vititoe, headed by Ed Masry:

* Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 mil to cover expenses, yet were short (the clients say) on detail to back up the latter largish number. Worse, they say Masry, Brockovich & Co. held on to their money for six months after the settlement, a delay that appears highly irregular to the experts Salon checks with, while not paying interest or even returning their phone calls (the lawyers claim the payments did include interest). Some with large awards also got steered toward certain financial planners, among whom was Ed Masry’s son Louis.

* When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary-seeming or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. However, an outside lawyer who interviewed 81 of the plaintiffs says he was told they received an average of $152,000, and Salon reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The numbers are in fact secret, which means clients can’t get an accounting of who received what — you’ve gotta protect the privacy of the other plaintiffs, right? Moreover, “there was no mention of the criteria, formula or method by which the money would be divided,” other than a statement that the amounts would be based on clients’ medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident “blew up at one of the attorneys, who didn’t like his attitude,” according to a fellow townsman, and “got a real bad deal,” allotted in the end only $25,000: “fairly or not, some residents say they saw a pattern in the distribution method. ‘If you were buddies with Ed and Erin, you got a lot of money,’ said [client Carol] Smith. ‘Otherwise, forget it.'”

* Even while the case was pending, many clients (as well as the outside press) found themselves unable to keep tabs on its progress; it was resolved in arbitration, which takes place off the public record. “We had no idea what was going on and weren’t allowed to watch,” said one plaintiff. Yet with help from the plaintiffs’ lawyers, Universal Studios managed to obtain a copy of the trial transcript — more than many of the actual plaintiffs in the case have yet managed to do. When journalist Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were “short and explosive and terminated abruptly by the lawyers.” And when an outside lawyer took an interest in the disgruntled clients’ case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.

* What about the science? (see April 14 and March 30 commentaries) Fumes from the application of chromium-6 in industrial settings are indeed dangerous to workers who inhale them, but the crux of the Hinkley controversy was what kind of health risk the substance poses as a trace water pollutant. Sharp quotes toxicologist Sharon Wilbur at the U.S. Department of Health and Human Services, who flatly contradicts Brockovich on whether the contaminant could have caused the various health problems sued over.

* Sharp also unearths allegations leveled by the Brockovich-side lawyers and by others that the first set of lawyers PG&E had used on the case had engaged in potentially serious misconduct, including privacy invasion by hired gumshoes. It’s hard to know how much weight to give these allegations, but if credited even in part they might suggest a motive for the utility to accept a hasty settlement of the case on unfavorable terms.

Some of Sharp’s sources evidently have a bit of an ax to grind against arbitration as an institution, but the article is still a triumph of sheer reportorial legwork, too rich in detail to summarize in one day. Tomorrow: the judges’ posh Mediterranean cruise, mounting press interest in the case, and the politics of it all. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

April 17 — Annals of zero tolerance: kindergartners’ “bang, you’re dead”. Four kindergartners playing “cops and robbers” at Wilson School in Sayreville, New Jersey were given three-day suspensions after they pretended their fingers were guns and played at shooting each other. “This is a no tolerance policy. We’re very firm on weapons and threats,” said district superintendent William L. Bauer. “Given the climate of our society, we cannot take any of these statements in a light manner.” (“N.J. kindergartners suspended for threats during playground ‘cops and robbers’ “, AP/Court TV, April 6; see also Nov. 20 commentary).

April 17 — Another sampling of visitors. The hundreds of diverse websites that link to us include the Wyoming Libertarian Party (“I’d say this country is overlawyered, but some trial lawyer will probably sue me for saying it”), Arrosage Lemay, a pest control and lawn maintenance enterprise in Notre-Dame- de- la-Salette, Québec (catch the antennae-wiggling animations), and Ridgefield Focus, a community site serving a town of which we’re very fond, Ridgefield, Ct.

April 14-16 — Great moments in defamation law. At a sentencing hearing for James Hermann, who’d pled guilty to armed robbery, defense lawyer Robin Shellow argued that despite her client’s extensive criminal record (six previous adult convictions) he deserved to be treated with some leniency because he’d been struggling with a heroin problem. But this last statement of hers was mistaken: though Mr. Hermann admitted in a probation report that he was high on crack cocaine and Valium when he’d used a shotgun to rob a Milwaukee custard store owner, his drug use did not include heroin. Hermann proceeded to sue her for defamation, and although the judge in the criminal case said her slip hadn’t affected the length of the sentence either way, Hermann proceeded to line up an expert witness willing to testify that he’d “suffered psychological harm as the result of being called a heroin addict instead of a cocaine addict”, according to Shellow’s lawyer, Randal Arnold. Psychologist Paul M. Smerz told the court that Hermann had suffered “lessened sense of self-confidence, self-esteem and overall self-image” and even symptoms of post-traumatic stress disorder as a result of his attorney’s groundless comment. The case dragged on for two years and finally settled this spring as it was approaching trial when Shellow agreed to refund $500 of her original legal fee to Hermann. (Cary Spivak, “‘Hey, I use coke, not H’, robber says in suit v. his lawyer”, National Law Journal, Mar. 27).

April 14-16 — “Erin Brockovich”: plume of controversy. Julia Roberts’s screen appeal is undeniable, but how good’s the science? The New York Times‘ Gina Kolata joins the fray (title says it all: “A Hit Movie Is Rated ‘F’ in Science”, April 11), while Brockovich herself, who’s currently traversing the country helping organize toxic tort suits, spars with critic Michael Fumento in the letters column of the Wall Street Journal (letters exchange reprinted at Fumento website; Raphael Lewis, “Opening in a toxics case near you, Erin Brokovich” [sic], Boston Globe, Apr. 1; Edward Lewine, “Writer’s Slam Angers Real Erin Brockovich”, New York Daily News, Apr. 2; this site’s March 30 commentary).

April 14-16 — “Saints, sinners and the Isuzu Trooper”. Column by Washington Post‘s Warren Brown on Consumer Reports/Isuzu Trooper dustup (see April 10) finds plenty to criticize on both sides. “If anything is to be learned from the Isuzu-CU conflict, it is, perhaps, that both David and Goliath deserve equally aggressive scrutiny because both are equally capable of screwing up.” (“Saints, Sinners and the Isuzu Trooper”, April 13 — online chat with Brown scheduled for Monday 11 a.m. EST at Post site).

April 14-16 — Police resent political gun-buying influence. Part of the developing plan for strong-arming independent gunmakers into a Smith & Wesson-type settlement is to get cities and counties to redirect police-gun purchases toward favored manufacturers such as S&W and any companies that sign similar agreements. But many on police forces see it as playing politics with their lives to select guns based on anything other than their optimality for police use, which requires ease of control and use, speed, accuracy and reliability under extreme conditions. (Smith & Wesson has not been a popular brand in police use.) “Adherence to a particular political philosophy” shouldn’t play a part in gun purchases, Gilbert G. Gallegos, national president of the Fraternal Order of Police, told the Los Angeles Times. A few jurisdictions like Atlanta, Berkeley and San Mateo County, Calif. have signed onto the program, but the L.A. County Sheriff’s Department is planning to stick with its 9-mm Berettas. “Politics aren’t going to enter into how we choose our firearms,” said Capt. Garry Leonard of the department. “When you think of what we do for a living, we just can’t take chances.”

Glock general counsel Paul Jannuzzo said that, in a recent phone call, Housing Secretary Cuomo asked about his company’s sales to police and “made it fairly clear” that those sales would be at risk if the company didn’t play ball. “I think the expression he used was, ‘I have a lot of push with these Democratic mayors,'” said Jannuzzo. “There was no doubt in my mind that I’d just been threatened with economic extortion”. Told about the charge, Secretary Cuomo, ever the model of grace in controversy, retorted: “It’s an interesting response from the subject of an antitrust investigation,” referring to the trade-restraint probe recently launched against the gun industry for allegedly shunning S & W (see March 31). (Richard Simon and Eric Lichtblau, “Police Feel Pressure to Choose the ‘Code'”, Los Angeles Times, Apr. 9).

April 13 — Judge dismisses suit blaming entertainment biz for school shootings. U.S. District Judge Edward Johnstone has dismissed an action on behalf of school shooting victims in Paducah, Ky. against 25 enterprises whose movies, videogames and Internet sites had allegedly incited teenage gunman Michael Carneal to go on his rampage (“Federal judge dismisses lawsuit against movie, video game makers”, AP/Freedom Forum, April 7; “Suit blaming media for Kentucky killings dismissed”, CNN/Reuters, April 7; see July 22 and Nov. 2 commentaries). Plaintiffs vowed to appeal the ruling, which came shortly after a Senate hearing at which conservative Sen. Sam Brownback (R-Kansas) lent a sympathetic ear to the lead plaintiff’s charges against the videogame industry (“Witness tells Senate panel: Video games taught teen killer how to shoot”, AP/Freedom Forum, March 22).

Other litigation continues to move forward around the country seeking to blame the media and game makers for school violence, including the Columbine High School massacre in Colorado. Lt. Col. David Grossman, a former Army psychologist signed as an expert witness by the plaintiffs in the Carneal case, has been much in the press lately denouncing such games as Doom and Quake (“The Games Kids Play”, John Stossel/ABC News 20/20, Mar. 22). And Vermont state senator Tom Bahre (R-Addison) has introduced legislation in that state which would hold makers of graphically violent movies and other media liable for the costs of acts of real-life violence that their products are deemed to have incited. An AP report says Bahre’s bill would “place the burden of proof on those producers to show that their depictions of violence did not cause an actual event.” (“Vermont lawmaker wants to hold media responsible for violence”, AP/Freedom Forum, Dec. 29).

April 13 — Bill Gates and the Nasdaq: why didn’t the Munchkins sing? “When the wicked witch is dead, you expect the Munchkins to break out in song. But that was not the reaction in the technology sector this week, after a federal judge found Microsoft Corp. guilty of behaving like a bully.” Nasdaq, composed heavily of tech firms that Microsoft is supposed to have victimized, fell off a cliff. Paradoxical? “Economists Thomas Hazlett of the American Enterprise Institute and George Bittlingmayer of the University of California at Davis recently published a study in the Journal of Financial Economics documenting that whenever the government’s antitrust suit scores a victory, an index of non-Microsoft computer stocks falls — and when Microsoft wins a round, computer stocks rise.” (Steve Chapman, “The Real Cost of the Microsoft Verdict”, Chicago Tribune, April 6).

April 13 — “Congress passes asset forfeiture bill”. Long awaited reforms will make it harder for the government to seize assets first and ask questions later. “The legislation would shift the burden of proof in asset forfeiture cases from the property owner to the government. … It allows federal judges to release property to the owner if continued government possession causes substantial hardship to the owner, extends the time a property owner has to challenge a seizure in court and ends the requirement that a person seeking to recover property post a bond with the court worth 10 percent of the property value.” (AP) To placate prosecutors, however, the bill also gives law enforcement officials a number of new powers. (Jim Abrams, “Congress passes asset forfeiture bill”, AP/Topeka Capital-Journal, April 12; Stephen Labaton, “Congress Raises Burden of Proof on Asset Seizures”, New York Times, April 12).

April 13 — Regulation through litigation: opinion pieces. The topic’s starting to arouse significant attention among the commentariat, and not a moment too soon:

* We think he’s joking dept.: Univ. of Colorado law prof Paul Campos (Jurismania) foresees a gigantic class-action suit against “Big Auto” (“Where are next brave lawyers?”, Rocky Mountain News (Denver), April 11).

* “First, tobacco. Then, guns. Now, Microsoft. Does anyone seriously believe the class-action legal industry will stop there?” asks Wall Street Journal editorialist John Fund, who sees reformist sentiment rising: “In North Dakota and Texas, new ‘sunshine’ laws give the legislature oversight of government contracts with outside lawyers.” (“Litigation gold rush”, MS/NBC, April 4).

* Today’s less-than-spontaneous agitations against each newly designated Industry-To-Hate remind the Kansas City Star‘s E. Thomas McClanahan of China’s old “mass political campaigns” in which the populace was whipped up to support a purge of the “Four Bads” or of “capitalist roaders”. Quotes this site’s editor, too (“Bypassing the checks and balances”, Apr. 10 (click “columns”, then scroll list))

* “None dare call it extortion” is the Las Vegas Review-Journal‘s take (editorial, April 7).

April 12 — Gore amid friendly crowd (again). Bill Clinton and Al Gore have been racing around the country to attend a seemingly unending series of fund-raisers thrown by such prominent personal-injury lawyers as Dallas’s Fred Baron (see Feb. 14) and Cincinnati’s Stanley Chesley (see Mar. 30). Last Thursday it was the turn of Palm Beach, Fla. tobacco-fee tycoon Robert Montgomery (see Aug. 21-22), for a $10,000-a-plate dinner graced by the Veep.

The Washington Post‘s Ceci Connolly writes that at yet another recent lawyer-hosted fund-raiser — this one at the home of Houston’s Denman Heard — Democratic National Committee Chairman Ed Rendell said, with Gore looking on, “we are proud as a party to have the support of the trial lawyers. It is nothing we apologize for”. “Gore summed up the differences this way: ‘We fight for the working people, for those who don’t have the resources,” he said. Republicans ‘draw from the wealthiest, most powerful and well-heeled.'”

To be sure, Mr. Montgomery, who hosted last Thursday’s Gore event, could give most GOPers a lesson or two about what it means to be powerful and well-heeled: together with some colleagues he pulled off the Florida tobacco caper, representing the state government and nabbing what was at the time the biggest legal fee in history, $3.4 billion, his own share amounting (per George magazine’s estimate) to some $678 million. Montgomery is also a longtime donor to political candidates ranging from the Kennedy family to Hillary Rodham Clinton. Maybe it’s not so surprising after all that the Democratic National Committee raised more money in the first quarter than its Republican counterpart. (Ceci Connolly, “Democrats Have No Argument with Trial Lawyers”, Washington Post, April 9; Jonathan Salant, “Democrats raise more money than Republicans”, AP/CNN, April 7).

A proper account of the Florida tobacco affair for a national readership remains to be written. For an introduction, check out the following 1998 coverage by Lucy Morgan in the St. Petersburg Times: “Tobacco trial lawyers say they had to hire [Governor Lawton] Chiles’ friends”, March 25, 1998; “Tobacco team lawyer is called to account”, March 31, 1998 (“Did lawyers hired by Florida to fight the tobacco industry cough up more than $100,000 for the Clinton/Gore campaign in hopes of currying favor with the administration? And were those campaign contributions illegally disguised as legal expenses — and actually paid by the tobacco industry?” — with eyebrow-raising details about a Fort Lauderdale meeting between the tobacco trial team and Vice President Gore on Oct. 15, 1996, shortly before the 1996 election); as well as “Tobacco and torts” (editorial by the paper), Dec. 19, 1998 (calling the eventual arbitration award to lawyers “breathtakingly excessive … It’s almost disgusting to think of such riches going to a few people who gave relatively little time and expertise to ‘earn’ them. … receiving billions of dollars in fees for a case that never went to trial is utterly unconscionable. … [the lawyers have put] a face on greed”.) (DURABLE LINK)

April 12 — Triumph of plastic foliage. New York Times home and garden section advises that artificial plants are making inroads in both interior commercial decor and landscaping; unlike the live kind, “they don’t house pests or provoke allergic reactions (and subsequent lawsuits)”. (William L. Hamilton, “The Flowers That Bloom in Spring, Ha Ha”, New York Times, April 6).

April 12 — Cops shoot civilian; city blames maker of victim’s gun. In a suit filed last week, the city of Riverside, Calif. says gunmaker Lorcin Engineering should bear legal responsibility for the shooting by Riverside police of 19-year-old Tyisha Miller of Rubidoux, because it sold the weapon she had on her lap at the time she was shot in a locked, idling car. Officers from the force were later fired for the tactics they used in the shooting, which led to a wrongful-death lawsuit by Miller’s survivors. The city is now seeking to dodge that suit by impleading Lorcin on the theory that had it provided better user training Miller might have known not to keep a gun on her person in a way that approaching officers might interpret as threatening to them, though her gun was later found to be inoperable. Lorcin shuttered its plant in nearby Mira Loma and declared bankruptcy last year, but an attorney for the city suggests it still has money. “Every single claim against Lorcin was dismissed, but at a very expensive cost of $100,000 here, $100,000 there” in legal fees, said owner James Waldorf. (Lisa O’Neill Hill and John Welch, Riverside Press-Enterprise, April 7) (discuss at Press-Enterprise site).

April 12 — Endorsed again. “oh man, this is great. overlawyered.com. check the left side for ‘personal responsibility’ …” — thus one of the April 10 entries on Array, a weblog specializing in art and applied digital technology, but with a wide miscellany of other topics in there too.

April 11 — Stuart Taylor, Jr., on Smith & Wesson deal. His new column on law-stretching gun and tobacco suits is must reading even aside from the handsome plug it gives this website (see below). “One thing I am sure of is that the Framers of the Constitution created Congress — and assigned to it ‘all legislative powers herein granted’ — to set policy for the nation on such complex questions of social engineering [as gun control]. They also made it hard to enact legislation unless backed by a fairly broad national consensus. That’s a far cry from what’s going on now….

“[T]he gun litigation represents a deeply disturbing way of making public policy. It was started by private lawyers and municipalities with big financial interests at stake. The courts have largely been bystanders as the Clinton Administration and its allies have sought to bludgeon gunmakers into settling before trial.” (Stuart Taylor Jr., “Guns and Tobacco: Government by Litigation”, National Journal, March 27; NJ yanks these free columns after offering them briefly as a teaser, so catch this one now.)

P.S. Okay, and now about that plug: “For a fuller taste of these and other peculiar workings of our legal system, with copious links to news reports, check out an amusingly depressing Web site called Overlawyered.com, created and edited by Walter K. Olson of the conservative-libertarian Manhattan Institute,” writes Taylor. “Amusingly depressing” — an ideal slogan for our banner ads (if we ever get around to devising them; someone wanna help volunteer?).

April 11 — Oops: D.A.’s and judge’s fwding of sex pic deemed “unfortunate event”. Dateline Las Vegas: “A pornographic photograph sent by e-mail to dozens of Clark County employees originated from a deputy district attorney’s computer. The e-mail was then forwarded to a senior judge who passed it on to other county workers.” Apparently the sexually explicit photo was meant to reach only one or two recipients, but was inadvertently blind-cc’d to a longer list. County manager Dale Askew said those involved likely would be suspended without pay. “Needless to say employees were not happy receiving it because it came across their computer unsolicited,” said county spokesman Doug Bradford, who called the episode “an unfortunate event.” How lucky for all concerned that they weren’t at a big private firm, where skittishness over harassment liability might have gotten the senders fired. (Adrienne Packer, “Obscene e-mail traced to deputy DA”, Las Vegas Sun, Feb. 9). (DURABLE LINK)

April 11 — Krugman on MS: his “blood runs cold”. “I don’t know anyone outside Seattle who is really pro-Microsoft. But a lot of us are, at least mildly, anti-anti-Microsoft. That is, we worry that the crusade against Bill Gates sets a bad, even dangerous precedent. …

“The anti-anti-Microsoft case does not deny that there is some truth to that story [that Redmond’s market dominance and hard-guy tactics caused a climate of fear among its competitors], but asserts that taking punitive action will be the worse of two evils because it will create a different, and worse, climate of fear — fear that success itself will be punished. Today Microsoft, tomorrow Intel and eventually (as soon as somebody figures out what it does) Cisco.”

“… [W]hen I hear that a coalition of states is demanding damages from Microsoft, as if Windows caused lung cancer; well, my blood runs cold. I know that there is an intellectually respectable case against Microsoft, but I’ve got a bad feeling about where we are going.” (Paul Krugman, “Rights of Bill”, New York Times, April 9).

April 11 — Chat into the microphone, please. Securities and Exchange Commission announces plans to acquire automated software to trawl websites, Usenet and Yahoo/AOL-type bulletin boards searching for phrases like “get rich quick” and “free stock” which might signal illicit securities promotion. The results, including email addresses and other identifying information about posters, will be copied into a giant database and indexed for the convenience of SEC investigators whose job is to file civil charges against persons suspected of stock-jobbing. One company invited to submit bids on the system, the big accounting firm of Pricewaterhouse Coopers LLP, has already bowed out of consideration, saying it had “serious concerns about the implications for the privacy of individuals”. The proposal “is equivalent to, in my opinion, wiretapping … the equivalent of planting a bug,” said Larry Ponemon, a partner at the firm in charge of privacy issues. Members of Congress have begun to express concern: “Engaging in such a wide level of monitoring will have a chilling effect on free speech online,” Rep. Bob Barr (R-Ga.) wrote to SEC Chairman Arthur Levitt. “While I understand the need to prevent securities fraud, federal agents should not be allowed to sift through the conversations of millions of innocent parties in order to do so.”

Levitt says there’s little difference in principle betwen current practice — in which flesh-and-blood SEC attorneys laboriously traverse the Web looking individually for possible indicia of fraud — and the new proposal. The commission also says it will keep the data confidential and throw out information that does not establish wrongdoing. Other federal agencies are eager to follow the SEC’s lead, such as the Commodity Futures Trading Commission, which has begun talking to vendors: “For us it’s a very exciting prospect,” says acting CFTC director of enforcement Phyllis J. Cela. (Michael Moss, “SEC’s Plan to Snoop for Crime on Web Spraks a Debate Over Privacy”, Wall Street Journal/ZDNet, March 28; Marcy Gordon, “SEC Plans Web Surveillance System”, AP/Excite, March 29; Michelle Finley, “SEC Plan: Free Speech Violation?”, Wired News, March 29; “House panel questions automated surveillance by SEC”, Reuters/Excite, April 4). (DURABLE LINK)

April 11 — Attention librarians. Starting immediately, we’ll be dividing each new month’s archives into three, rather than two, sections; that way readers with low bandwidth won’t have to wait quite so long for those pages to load.