Report from Rep. Darrell Issa’s oversight committee blasts Operation Choke Point [The Hill, earlier here, here]
P.S.: More from Todd Zywicki at Volokh and Glenn Reynolds at USA Today; and earlier from American Banker and from the Washington Times (gun dealers say Operation Choke Point, FDIC guidelines squeezing their access to banks)]
February 8-10 — Crumbs from the table. “A Las Vegas jury has found that two attorneys committed malpractice in their representation of a brain-damaged man in a personal injury suit. It awarded the man, Jason Nault, $3.3 million. The lawyers had reached a $17 million settlement that gave Nault only $2.5 million — compared with $6.6 million to his wife, from whom he’s now divorced, and $6.8 million to the lawyers.” Attorney W. Randall Mainor of Las Vegas’ Mainor Harris, who with partner Richard Harris was found liable, “insists that the ruling throws a wrench in attorneys’ personal injury work.” However, attorney Gary Logan, who represented Nault on the malpractice claim, “said of Mainor and Harris, ‘This kind of conduct is the reason people hate lawyers.’ … Among the breaches in professional conduct that Logan alleged — some of which were raised at trial and some that were barred — were that another attorney, Joe Rolston, received a $2.2 million referral fee without ever receiving consent of his brain-damaged client, Nault.” Mainor “said that the fee paid to Rolston was an association fee, not a contingency fee.” Nault’s parents began caring for him in 1997. (Elizabeth Amon, “Malpractice Suit Tags Las Vegas Attorneys”, National Law Journal, Feb. 6). Update Jan. 1, 2005: Nevada Supreme Court reverses jury verdict.
February 8-10 — Overlawyered film sets. According to intellectual property expert Larry Lessig, moviemakers “must now ‘clear’ every image that appears in their films, obtaining permission even for minor items like posters in a dorm room, the advertisement on a passing truck, or a can of Coke in someone’s hands. It used to be, Lessig reports, you only had to do this if the item was immediately recognizable; now you have to do it if it shows up in a single stop-motion frame. Even the designers of buildings and furniture included in movie scenes are trying to claim the right to stop films that contain images of their products without permission.” (Glenn Reynolds, “Rights and wrongs”, TechCentralStation.com, Feb. 6).
February 8-10 — “Judge orders God to break up into smaller Deities”. The Onion on antitrust law, and very funny, too (Jan. 30). While we’re at it: James V. DeLong of the Competitive Enterprise Institute comments on the proposed Microsoft settlement (Jan. 25).
February 8-10 — 2,000,000 + pages served on Overlawyered.com. Exact figures are not available because the more comprehensive of our counter programs has gone on the fritz, but we think our tally passed two million pages late last year and now stands above two and a quarter million. Thanks for your support!
February 6-7 — Vandal’s dad sues store over blaze. “The father of a teen who helped spark the fatal Father’s Day blaze has filed a $2 million lawsuit against the store where the fire started.” Silverio Moreno’s “son and another boy tipped over a loose-lidded gallon of gasoline while spraying graffiti behind the store.” According to columnist Andrea Peyser, the younger child “told investigators that when Moreno came looking for his son, and saw what the boys did, he said: ‘Don’t say anything about it.’ Now dad “is suing the elderly owner of Long Island General Supply Co. for $2 million – claiming the store ‘carelessly and negligently permitted the building to explode,’ causing Moreno permanent injuries.” The suit has raised the ire of some widows of NYC firefighters killed in the blaze, although they themselves, it should be noted, “plan to file negligence suits against the hardware store in the future and they have not ruled out taking action against the city, said their lawyer, Michael Block.” (Jessie Graham, “Outrage at Suit By Firestarter’s Dad”, New York Post, Feb. 1; Andrea Peyser, “Of All the Gall! His Kid Is a Vandal — And He’s Suing?”, New York Post, Feb. 1). (DURABLE LINK)
February 6-7 — Chickens are next. In the latest stage of its campaign to use litigation to do an end run around what it considers overly permissive federal environmental agencies, the Sierra Club is targeting Kentucky farmers who raise chicken under contract with Tyson Foods (see Dec. 7, 2000, on hog farming). The suit contends that broiler operations should be counted as industrial emitters of ammonia gas because the individual chickens … well, it’s too indelicate to explain. (James Bruggers, “Sierra Club vows suit over chicken farms and dust they produce”, Louisville Courier-Journal, Feb. 5).
February 6-7 — Your home, their right to enter. Suburban Naperville, Ill. has emerged as the latest target in disabled rights activists’ campaign to require newly built private houses to be wheelchair-accessible — and if you’re a new homebuyer who doesn’t care for the cost and design trade-offs implicit in that, tough, you shouldn’t consider the house yours just because you’re the one paying for it (see Dec. 4, 2001, on Santa Monica) (Karen Mellen, “Making all new houses ‘visitable'”, Chicago Tribune, Feb. 5)(& see update Mar. 6)(& letter to the editor, Apr. 11).
February 6-7 — “Every Man a Cyber Crook”. “Shortly after it enacted the federal computer crime law, Congress amended it to allow victims to sue their attackers in federal court for damages. It is now proving to be a costly mistake. … in practice, private litigants have rarely used the civil provisions to pursue computer hackers, who, after all, usually don’t have very deep pockets. Instead, unfettered by the Department of Justice’s interpretation of federal law, litigants have used the computer crime laws to go after computer hardware manufacturers for product liability, Internet companies for software design, spammers and protesters for commercial and other protected First Amendment speech, and website operators for the installation and tracking of computer cookies.
“These unintended uses of the computer crime statute, and the court’s permitting the suits to proceed in many cases, creates a genuine risk that ordinary business activity and protected speech will be deemed to rise to the level of a computer crime, subject to federal prosecution.” (Mark Rasch, SecurityFocus.com, Jan. 7).
February 4-5 — “‘Let’s Roll’ Trademark Battle Is On”. Why’d she have to hire that lawyer? No sooner does the widow of Flight 93 hero Todd Beamer set up a foundation to honor his memory than its lawyer announces that he’s having it apply for a trademark on the now-famous phrase “Let’s Roll”, so that anyone who wants to use the words on hats or t-shirts will have to fork over a royalty. Since September 11 numerous other individuals have also sought to copyright the phrase, although it was in common use before that date. (AP/Las Vegas Sun, Feb. 1).
February 4-5 — Element in $290,000 award: failure to meet Messiah in person. Dateline Salt Lake City: “A jury awarded $290,000 to two women who said they were deceived by a fundamentalist church whose leaders promised to produce Jesus Christ in the flesh. The True and Living Church of Jesus Christ of the Saints of the Last Days was ordered Monday to pay $270,000 to Kaziah Hancock and more than $20,000 to Cindy Stewart for fraud, breach of contract and intentional infliction of emotional distress.” In exchange for substantial financial contributions from Hancock and Stewart, church founder Jim Harmston had allegedly promised the women various benefits including “membership in heaven’s elite and the chance to meet Christ on earth”. (AP/Boston Globe, Jan. 30)(see June 6, 2001).
February 4-5 — Stop, they said. An assistant professor of political science at the University of Manitoba is reportedly “fighting a $40 traffic ticket in provincial court by launching a constitutional challenge of stop signs — claiming the message they convey is too vague. In what may be one of the strangest legal arguments ever heard in the halls of the downtown Law Courts, Rod Yellon is seeking to prove the word ‘STOP’ isn’t a sufficient warning to motorists.” (excerpt said to be from the Winnipeg Free Press; quoted in Fresh Hell blog, Jan. 5).
February 4-5 — Reparations madness: gypsy survivors sue IBM. Representatives of European gypsies orphaned in the Holocaust want money and an apology from IBM because one of its German subsidiaries, taken over by the Nazi government before World War II, sold punch-card machines used to administer the concentration camp system. (“Gypsies Sue IBM, Claiming Machines Helped Nazis”, AP/Law.com, Feb. 1).
February 1-3 — “Aborigines claim kangaroo copyright”. “In Australia, a group of Aborigines has lodged a high court writ, seeking to stop the government from using the kangaroo and the emu on the national coat of arms. The Aboriginal activists say the representation of the animals — which they regard as sacred totems — is a breach of copyright.” They accuse the Commonwealth of Australia of cultural theft. (BBC, Jan. 29).
February 1-3 — Suicide plane crash blamed on acne drug. When a Florida 15-year-old crashed a plane into a Tampa skyscraper, press accounts were quick to link the incident to the boy’s prescription for the drug Accutane. “As only a handful of media outlets bothered to report a week later, an autopsy showed no trace of the drug in the boy’s system. … If you go to a Web site with an innocuous-sounding name like http://www.accutane_suicide_help.com/ you’ll find you’ve actually come across a lawyer-referral service.” (Michael Fumento, “Bumps in the Night”, Reason Online, Jan. 23; “Tampa Crash Pilot Had Acne Drug Prescription”, AP/Washington Post, Jan. 9). “Rep. [Bart] Stupak’s [D-Mich.] hearings and the recent press stories have all left out one set of voices: the millions of Accutane users who have benefited from the drug.” (Jaime Sneider, “Skin Deep”, Jan. 23) Update Apr. 18: family sues.
February 1-3 — King Cake figurine menace averted. Columnist James Lileks recalls how things used to be with the famous King Cake baked in New Orleans for Mardi Gras: “Since they were the Real Thing, brought directly from N’Awlins, they had small plastic baby Jesuses (Jesii?) embedded in their doughy redoubts. Whoever cracked a molar on the extruded holy infant was obliged to buy the next King Cake. In these litigious days, the store-bought cakes cannot hide the child lest someone choke and sue, so the package explains the tradition, says that a coin can be substituted for the plastic baby — and the coin is sitting ON TOP of the cake, meaning no one will be stupid enough to take that piece.” (“The Bleat”, Lileks.com, Jan. 29).
February 1-3 — International tobacco suits: not quite such easy pickings. U.S. judges have so far not been particularly inclined to loot and expropriate the nation’s tobacco industry for the benefit of such foreign governments as Guatemala, Nicaragua, Ukraine, and Ecuador, which with help from some entrepreneurial-sounding U.S.-based lawyers have sought to duplicate the 1998 feat of the state attorneys general. (Matthew Haggman, “Brazilian City Joins List of Foreign Entities Suing U.S. Cigarette Makers”, Miami Daily Business Review, Jan. 11). For details on the suit filed by that very needy and deserving claimant, the government of Saudi Arabia, see Nov. 16, 2000 and Dec. 10, 2001.
February 20-21 — Updates. Further developments in stories familiar to our readers:
* Britain: “Five market traders — the so-called metric martyrs — have lost their High Court battle for the legal right to trade in pounds and ounces.” (see Dec. 15, 2001) (“Metric martyrs lose battle for pounds and ounces”, Ananova.com, Feb. 18)
* The Taco Bell chain has settled on undisclosed terms a lawsuit charging it with financial responsibility after several of its employees partied on their own time and one got into a fatal car crash; the suit charged that the employees had discussed liquor acquisition while working together at the restaurant (see Nov. 29, 2001) (Jeff Arnold, “Suit Against Taco Bell After Fatal Wreck Resolved”, Fort Smith (Ark.) Times-Record, Jan. 4; KTHV-TV (Little Rock), “Taco Bell Settles a Lawsuit Accusing Them of Contributing to the Death of a Teen”, Jan. 7).
* “Pacifiers, glow sticks and other paraphernalia associated with ‘rave’ parties cannot be banned from the gatherings,” federal judge Thomas Porteous has ruled in New Orleans, despite prosecutors’ contention that the funmakers are linked to drug use (see June 28, 2001) (“Rave Party Items Can’t be Banned Says Federal Judge”, WWL-TV (New Orleans), Feb. 4).
February 20-21 — Trial lawyer smackdown! According to Roll Call, Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again to support Sen. John Edwards (D-N.C.) because of Edwards’ unfair treatment of federal appeals court nominee Charles Pickering. “If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. … While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator’s single largest backer, and many of Scruggs’ friends are among Edwards’ supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics.” (Paul Kane, “Edwards’ Tactics Draw Ire”, Roll Call, Feb. 18).
February 20-21 — Firehouse blues. Near Brighton, England, “A 5ft 1in firewoman who is too short to carry out some of her duties yesterday claimed sex discrimination after she was taken off active duty. … after a number of incidents in which she was not tall enough to handle equipment.” Katie Reid, 31, complained to an industrial tribunal that the East Sussex Fire Authority was sexually discriminatory in having “failed to accommodate her height when designing equipment and in the operation of fire appliances.” (Thomas Penny, “Tiny firewoman sues her brigade”, Daily Telegraph, Jan. 30) (via Bonehead of the Day). And authorities in Anchorage, Alaska have ordered the removal of girlie magazines from firehouses, explaining that the city could be at risk of losing a lawsuit if it lets them stay; a former firefighters union president said he was told that even tamer fare like Maxim has to go. (“Anchorage tells fire halls to eliminate risqué magazines”, JuneauEmpire.com, Feb. 18). (DURABLE LINK)
February 20-21 — “Bush Budget Surprise: $25M for Tobacco Suit”. Appalling: as part of a big increase sought for the budget of the Justice Department’s Civil Division (from $170 million to $240 million), the Bush administration has bowed to its enemies and endorsed the Clinton administration’s lawless federal expenditure recoupment suit against tobacco companies. Who knew John Ashcroft and the Bush White House were this easy to push around? (Vanessa Blum, Legal Times, Feb. 15). Plus: we highly recommend political scientist Martha Derthick’s new book on the tobacco litigation, Up in Smoke: From Legislation to Litigation in Tobacco Politics (order it from CQ Press). Derthick, professor emerita at U.Va. and also with the Brookings Institution for many years, assembles a truly damning indictment of the ways tobacco lawyers and state attorneys general managed to usurp powers constitutionally reserved to lawmakers. (DURABLE LINK)
February 18-19 — “The $200 Billion Miscarriage of Justice”. Best article we’ve seen in quite a while on the asbestos outrage: “the ultimate mass farce … The avalanche of new claims being brought by ever less impaired plaintiffs alleging ever more marginal medical conditions caused by ever more fleeting exposures to asbestos dust has triggered a new wave of bankruptcies … Like the employees of Enron, employees of [newly bankrupted big companies like Owens Corning and Federal-Mogul] have seen their retirement savings vanish in a flash. … But those employees’ losses have thus far gone unbemoaned by Congress.” (Roger Parloff, Fortune, March 4).
February 18-19 — Overprotecting the kids. “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Evidence also shows that more and more of children’s activities are being organised or supervised by adults.” Yet the most often cited reasons for parental anxiety, road accidents and abduction by strangers, are rarer than ever.
“Local authorities, educational staff or outdoor activity instructors are too often blamed for accidents — which can only make them more cautious about providing challenging activities for children. There have been a rising number of litigations against providers of play facilities and organisers of adventure pursuits. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” (Jenny Cunningham, “Play on”, Spiked Online, Jan. 3) (via InstaPundit).
February 18-19 — “Toyota buyers’ suit yields cash — for lawyers”. Under a newly approved class action settlement, thousands of customers will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership charged with cheating buyers. “The lawyers who brought the suit — Richard Fields, Saul Belz and Earle Schwarz — get $1.3 million in legal fees.” Some customers have expressed indignation that in order to get any of their money back they have to patronize the dealership again. “The outcome also may provide fodder for federal lawmakers, including Rep. Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action system. … ‘Justice is there for the victim and the defendant and not just for the lawyers to make money,’ Bryant said Thursday.” (Louis Graham, Memphis Commercial Appeal, Feb. 15).
February 18-19 — Lawyers swallow lion’s share in estate dispute. A contest over the A$154,000 estate left by a 44-year-old Australian has ended with the following resolution: the decedent’s original family is to get $22,000, his live-in male partner is to get $10,000, $10,000 will go to the cost of selling his house, and lawyers and their expenses have swallowed up the remaining $112,000. (“Battle over gay partner’s estate won by lawyers”, AAP/The Age (Melbourne), Feb. 13).
February 15-17 — Kaiser Aluminum bankrupt. North America’s third-biggest aluminum producer “filed for Chapter 11 bankruptcy protection Tuesday, blaming depressed prices and asbestos litigation”. (“Kaiser Aluminum: Prices, asbestos suits force Chapter 11 filing”, Chicago Tribune, Feb. 13; “The Job-Eating Asbestos Blob” (editorial), Wall Street Journal/ OpinionJournal.com, Jan. 23).
February 15-17 — “The Enron mythos”. The story of the energy company’s collapse has been propelled by the conventions of pack journalism, with the New York Times the worst offender (see Kausfiles.com, scroll to Jan. 25). Employee benefits expert Tom Veal, on his Stromata site, dispels a few of the widely circulated misconceptions — check out for example Feb. 2, on the sinister-sounding practice of “locking down” 401(k) plans. (Jan. 15-date). The Times professes to be scandalized at the discovery that many, many investment banks and accounting firms cooperate with big-company clients to structure transactions in ways that dress up their balance sheets: “Actual accounting fraud may or may not be demonstrated in the Enron case — although media and political hysteria makes finding the truth difficult. … But this much is clear: The more widespread the Enron practices are shown to be, the more likely they were NOT malevolent.” (“Robert Musil”, Man Without Qualities blog, Feb. 14 (and see other entries))(& see Mar. 6).
February 15-17 — “‘Preserving’ History at Bayonet Point”. Yes, historic preservation of old buildings is a worthy goal, but the owner of an 1874 home in Midland, Mich. isn’t convinced it should be accomplished through legal compulsion: “One of my neighbors is an 85-year-old woman who has lived in her home for 35 years. She found working with the Historic District Commission (HDC) so distressing that she decided to live with the ongoing damage caused by roof leaks rather than seek approval for correcting the problem. ‘I will let my house fall down before I deal with those people again,’ she commonly says. Score one for the history police, but not for history.” (Paul Arends, Mackinac Institute, Dec. 3).
February 15-17 — Omit a peripheral defendant, get sued for legal malpractice. Here’s a classic way the system feeds on itself, threatening to punish lawyers if they hesitate before pushing lawsuits in cases of less than clear-cut liability: “A New Jersey appeals court reinstated a legal malpractice claim Dec. 27 against a firm whose medical negligence suit against a doctor prescribing tetracycline failed to include a challenge to a 1963 manufacturer warning about the drug’s side effects. The court ruled the adequacy of the warning has never been settled as a matter of law in New Jersey, and a jury can decide whether the lawyers committed malpractice for not raising it.” (Henry Gottlieb, “Malpractice Case Reinstated Against Lawyers for Not Suing Drug Maker”, New Jersey Law Journal, Jan. 4).
February 15-17 — Welcome bloggers. Among webloggers who link to us, besides biggies InstaPundit, Mickey Kaus, Virginia Postrel, and Andrew Sullivan, are: MBaceron, Breaching the Web, Despatches from Flyover Country, Gene Hoffman, Libertarian Rant, Megan McArdle, Sean McCray, Bob Owen, and Kyle Still, among others.
February 13-14 — Didn’t know cinema seats retracted. Australia: “A teacher’s aide who was unaware cinema seats retracted has won her case against Hoyts cinemas after hurting herself at a trip to the movies. The win could force cinemas, theatres, sports stadiums and even Sydney Opera House to warn the public of the possible dangers of their seating. … While sitting down in the cinema, the child she was caring for became rowdy. [Plaintiff Diane] Burns got up to calm him down, unaware, she claims, that her seat retracted after she left it.” Burns was described as “not a regular filmgoer”. (Sarah Crichton, “Warning: movie seats can harm your health”, Sydney Morning Herald, Feb. 9).
February 13-14 — British Telecom claims to own hyperlinks. Hey, this is getting serious! “A British company claimed in federal court Monday that it owns the patent on hyperlinks — the single-click conveniences that take a Web surfer from one Internet page to another — and should get paid for their daily use by millions of people. But a federal judge with a laptop on her desk warned that it may be difficult to prove that a patent filed in 1976, more than a decade before the World Wide Web was created, somehow applies to modern computers.” (Jim Fitzgerald, “British Company Claims Patent on Hyperlinks”, AP/Law.com, Feb. 12; Michelle Delio, “Judge Dubious About Link Patent”, Wired News, Feb. 11; “Why This Link Patent Case Is Weak”, Feb. 12). Update Oct. 1-2: court dismisses case.
February 13-14 — Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman. After Bryan Boyd McGann’s wife filed for divorce, he “ranted and raved” to a police informant for months about his desire to have her killed, then met with a supposed hitman and agreed on a $10,000 murder-for-hire contract. At trial for solicitation of capital murder, McGann attempted to introduce the expert testimony of a psychiatrist, Dr. James Grigson, to support the theory that the stress of the divorce had made him more susceptible to being entrapped by police into such a scheme. Asked whether a normal, law-abiding citizen might under some circumstances be induced to pay money to a hitman who had promised to kill his wife, Grigson testified, “Absolutely …. Even though you’re a law abiding citizen, whenever you’re into a very nasty divorce or a very contested child custody case, your strongest emotions are — are going to be stimulated.” The court disallowed the doctor’s testimony. (David J. Rubin, J.D., “Psychiatrist Claims Divorce Is Deadly”, Forensic Panel Letter, Aug. 20, 2001) (appellate opinion, Texas v. McGann, Sept. 14, 2000 (PDF format)).
February 13-14 — Defend yourself in print and we’ll sue. The Nike Corporation had no sooner published advertisements defending its overseas labor practices than it was sued by a freelance lawyer, under the state’s “private attorney general” laws, for supposed inaccuracies which violated a state law against unfair business practices and false advertising. The case is now pending before the California Supreme Court. Writes a reader: “Amazing! Take out an ad arguing your own side of a public debate and get sued by a ‘private attorney general” looking for a bounty.'” (Mike McKee, “Nike Ads Not Actionable, California Justices Hint”, The Recorder, Feb. 8).
February 11-12 — New Yorkers officially back to normal. At least in one way, they’re suing like mad: Dana Gross of Manhattan is seeking $10 million in compensatory and $10 million in punitive damages against Ticketmaster and Madison Square Garden, saying that $100 tickets to a Michael Jackson concert (she bought six) had bad locations and obstructed views. The case seeks class action status (Dareh Gregorian, “‘Tick’ed-off Jacko Fan Sues for $20M”, New York Post, Feb. 8). (Update Oct. 23, 2004: judge allows suit to move forward as class action). “A Long Island woman who sued her former church for $4 million, claiming she suffered serious injuries when a minister pushed her to the floor while trying to bless her, settled her case yesterday for $80,000. … [Her lawyer Andrew] Siben said the woman was unavailable to discuss her case because the Almighty told her not to comment. … ‘If God told her not to speak, she’s not going to violate that'”. (Kieran Crowley, “80G from L.I. church heals pain in the apse”, New York Post, Feb. 5). And: “From rescue workers who say they have lung problems to business owners who say their shops were damaged, 1,300 people have given notice they may sue New York City for a total of $7.18 billion over the aftermath of the World Trade Center attack. … The vast majority are from firefighters who say the city gave them inadequate respiratory protection at the smoldering trade center site.” (Michael Weissenstein, “1,300 People Give Notice of Intent to Sue New York City”, AP/Law.com, Feb. 8).
February 11-12 — “Congress Looks to Change Class Action System”. Nationwide class actions, unless they are very small, belong in federal courts: “In addition to giving judges more leeway over settlements or awards, the Class Action Fairness Act 2001 would move all cases involving people in more than one state seeking $2 million or more in damages into federal court from the state courts.” (Kelley Beaucar Vlahos, “Congress Looks to Change Class Action System”, FoxNews.com, Feb. 7).
February 11-12 — Columnist-fest. All first-timers:
* “[C]opyright protection for ‘Let’s roll?’ If they get it, I’m going to register ‘Hurry up,’ ‘Pick up your socks’ and ‘Why didn’t you go before we left home?'” (Cory Farley, “Let’s roll right into court”, Reno Gazette-Journal, Feb. 9)(see Feb. 4).
* Upstate New York outdoors columnist J. Michael Kelly is unimpressed with the Consumer Product Safety Commission’s campaign against the Daisy airgun, saying that CPSC really seems to be objecting to features that are industry standards: “Gravity-feed magazines, for example, have been used in BB guns for more than 100 years.” (“BB gun recall appears suspicious”, Syracuse Post-Standard, Dec. 30)(see Dec. 21).
* The plaintiffs in New York Times v. Tasini acted like they were doing freelance writers some great favor by establishing that publications could not include their work in electronic databases such as Nexis without their explicit permission. It wasn’t such a great favor in practice: “Faced with the time-consuming and expensive chore of tracking down everybody who might have rights to the articles in their databases, publishers are just taking the articles out.” (Linda Seebach, “Writers win battle and everyone loses”, Minneapolis Star-Tribune, Feb. 2).
* Stop the presses, an Ellen Goodman column we agree with (on the stacked presidential bioethics panel headed by Leon Kass): “Cure or quest for perfection?”, Boston Globe, Jan. 24. For more on the panel, see Nick Gillespie, “Birthmarks and Bioethics”, Reason, Jan. 18; Jerome Groopman, “Science Fiction”, The New Yorker, Feb. 4; Virginia Postrel’s Dynamist.com, many entries in recent weeks; and Jonathan Rauch, “Therapeutic Cloning: Why Congress Should Butt Out”, National Journal, Dec. 15, reprinted at Reason.com.
February 11-12 — Setback for Lemelson estate. “Hundreds of companies facing infringement suits by inventor Jerome Lemelson’s estate won a victory Thursday when a federal appeals court ruled that unreasonable delay in prosecuting a patent may prevent its enforcement.” The panel of the U.S. Court of Appeals for the Federal Circuit was split 2-1. Foes of Lemelson patent claims (see May 10, 2001) complain that he filed many “submarine” patent claims which he did not pursue as inventions but which surfaced decades later in the form of royalty demands as companies opened up new technologies (Brenda Sandburg, “Lemelson Foes Win Key Patent Ruling”, The Recorder, Jan. 29).
February 27-28 — Aerobics studio mustn’t favor the svelte. “In one of the first cases under San Francisco’s ‘fat and short’ law, a 240-pound fitness enthusiast has filed a discrimination complaint with the city against a leading exercise firm that won’t let her be a company aerobics teacher.” Jazzercise Inc. thinks Jennifer Portnick, at size 16-18, “looks too heavy to be a good role model for exercise buffs,” but Portnick’s supporters say the important thing is that she is fit enough to teach the class. (Elizabeth Hernandez, “240-pound San Francisco woman rejected as aerobics teacher alleges bias”, San Francisco Chronicle/ Minneapolis Star Tribune, Feb. 26)(see Dec. 8, 2000). Update May 10-12: Portnick wins settlement.
February 27-28 — The thrill of it all: plaintiffs win 28 cent coupon. “Food Lion customers who held an MVP [store discount] card between 1995 and 1998 have a 28-cent rebate coming their way as a result of a class-action lawsuit.” Not answered in the article is the burning question: how much more than 28 cents are the lawyers going to get? (“Food Lion MVP customers to get tiny rebate”, AP/Raleigh News & Observer, Feb. 24).
February 27-28 — Ford didn’t push pedal extenders, suit says. A lawsuit at trial in Louisville, Ky., accuses Ford Motor of not promoting and publicizing pedal extenders as a safety boon for drivers of short stature. “If the company were to tout the adjusters’ benefit in helping prevent air bag injuries, it could be open to more lawsuits if a driver is hurt or killed by an air bag while using it.” Ford offers the popular extenders as a convenience feature without stressing their safety aspect. (“Lawsuit faults Ford on safety issue”, AP/Louisville Courier-Journal, Feb. 19; AP/Auto.com, Feb. 18)(& letter to the editor, Apr. 11)
February 27-28 — Milberg faces second probe. “Already the subject of a grand jury investigation in Los Angeles, New York-based Milberg Weiss Bershad Hynes & Lerach is also facing scrutiny over its relationship with a high-ranking political figure in Philadelphia. Both state and federal authorities are looking into whether Philadelphia City Controller Jonathan Saidel received consulting fees from two law firms — one of which is Milberg Weiss — in exchange for helping the firms win city contracts.” (Jason Hoppin, “Milberg Weiss Faces Questions on Second Front”, The Recorder, Feb. 26).
February 27-28 — Jail for schoolyard taunts? In Hastings, Minn., prosecutor James Backstrom has announced “one of the toughest juvenile-justice policies in the nation: School bullies will go to jail.” Subject to the policy are not only kids who violently lay hands on classmates but also those who “intimidate, harass, pick a fight on the playground or the bus … Mr. Backstrom wants those who are at least 13 years old to hear a cell door click behind them. … The jail-for-bullies policy has been in effect since last spring here in Dakota County.” Local prosecutors complain, however, that some judges are undercutting the policy’s intent by taking into account such mitigating factors as whether a youngster’s misbehavior was provoked. (“New plan to put bullies behind bars”, Los Angeles Times/Christian Science Monitor, Feb. 26).
February 27-28 — Welcome Sunday Times (London) readers. We’re mentioned in Andrew Sullivan’s article on the journalistic impact of weblogs (“A Blogger Manifesto”, Sunday Times (London), Feb. 24, reprinted at AndrewSullivan.com).
February 25-26 — European workplace notes. “A French court has ruled that a ‘workplace accident’ claimed the life of an electrician who overdosed on vodka while drinking with colleagues in Russia. The unnamed 44-year-old Frenchman died of alcohol poisoning after a night of heavy drinking with Russian colleagues in Nalchik, southern Russia, three years ago.” (“Vodka death ruled ‘industrial accident'”, BBC, Feb. 18). In County Cavan, Ireland, a “piggery manager who claimed he had suffered deafness as a result of the noise of squealing pigs settled his action against the piggery owner.” (“And this little piggy …. missed his day in court”, Irish Independent, Feb. 19). And in Kent, England, “a dyslexic banker branded ‘Trebor’ by his boss — his Christian name spelled backwards — has been awarded damages of £95,000 by an employment tribunal.” (David Sapsted, “Sacked dyslexic awarded £95,000”, Daily Telegraph, Feb. 22).
February 25-26 — Fen-phen: gold standard indeed. The lead plaintiffs’ lawyers in the fen-phen diet drug litigation want a court to award them $567 million in fees for work negotiating a multibillion-dollar settlement, claiming their efforts set the “gold standard” for devising a mass tort “mega-settlement”. Besides, it’s peanuts when you consider that plaintiffs who opted out “have racked up more than $8 billion in settlements, leading to more than $2.8 billion in fees for their lawyers.” The brief also alleges that drug manufacturer American Home Products “paid its attorneys about $1.2 billion to $1.6 billion in fees and costs for defense of the diet drug cases.” (Shannon P. Duffy, “Fen-Phenomenal”, The Legal Intelligencer, Feb. 21).
February 25-26 — “Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker”. New York’s highest court has ruled that the widow of a Westchester County man killed in a crash of his VW Jetta with more than twice the legal amount of alcohol in his system can nonetheless sue the German automaker. In a 10-page dissent, Justice Albert Rosenblatt wrote that the “majority’s rationale … invites people injured as a result of their own seriously unlawful acts to blame others and recover damages previously prohibited”. (Kenneth Lovett, New York Post, Feb. 20).
February 25-26 — “PETA Says It Will Sue New Jersey Over Deer/Car Accident”. Two activists with the extremist animal rights outfit were driving along the New Jersey Turnpike when a deer (lamentably heedless of their rights) darted out in front of their vehicle, and the ensuing crash caused considerable property damage. Now they have sent “a notice to the New Jersey Division of Fish and Wildlife declaring their intent to sue the state of New Jersey for contributing to the accident through their deer management practices,” the theory being that the state is too willing to cater to the hunters who reduce the deer herd — no, it doesn’t make any sense to us either. (AnimalRights.net (Brian Carnell), Feb. 18)(& see Nov. 29, 2001).
February 22-24 —USA Today on slavery reparations. The story comes close to acknowledging that the legal basis for the impending lawsuits is so shoddy that their only real settlement value comes from the hope of inflicting bad publicity on companies and other defendants willing to pay to make it stop. So what does Gannett/USA Today, itself a likely defendant, do? It awards the lawyers another ton of publicity against named companies. Makes sense, right? Note that Willie Gary now claims the lawyers’ “work is likely to be done pro bono“, which is a very different story from what he said not too long ago (see Dec. 22, 2000) (James Cox, “Activists challenge corporations that they say are tied to slavery; Team of legal and academic stars pushes for apologies and reparations”, USA Today, Feb. 21). (DURABLE LINK)
February 22-24 — Role of the oath. We must take issue with Andrew Sullivan (“The Dish”, Feb. 21), who thinks it’s okay for President Bush to sign a substantially unconstitutional campaign finance bill on the expectation that the Supreme Court will throw out the unconstitutional parts. (Members of Congress sometimes cite a similar theory to explain why they vote for bills they are not sure are constitutional.) But as such commentators as Justice Scalia have pointed out, members of each of the three branches of government, not just the high court, take oaths pledging to uphold the Constitution. Among the functional purposes of the oath is to impress on them that the task of upholding the document is not just someone else’s, but theirs as well. To adopt what you might call the sole-goalie theory of constitutionality — which lets you kick the ball toward the goal of a Constitutional violation, relying on the Court to block — is to leave the document at best in the vulnerable state of being defended once when it deserves three-deep defense. (DURABLE LINK)
February 22-24 — “Student Grading by Peers Passes High Court Test”. The Supreme Court, interpreting federal law, unanimously decides it’s not illegal for teachers to let students rate each other’s work (see Nov. 28, 2001) (Charles Lane, Washington Post, Feb. 20).
February 22-24 — Culture war over BB guns. As suburban culture clashes with rural in Alpharetta, Ga., outside Atlanta, “a new ordinance here makes it a crime to let children under 16 use a BB gun — or its modern cousin, the paintball gun — without parental supervision.” Quotes our editor, although the sentiments attributed to us came out slightly more colorful than what we actually recall saying (Patrik Jonsson, “Town’s curb on BB guns becomes a clash of values”, Christian Science Monitor, Feb. 22).
September 10 — “Group Sues Starbucks Over Tea Ingredient”. A newly formed group in Berkeley, Calif. by the name of Council for Education and Research on Toxics charges that the Tazo Chai tea sold by the Seattle-based coffee chain contains some quantity of ephedrine, a stimulant found in the Chinese herb ephedra or ma huang whose use poses hazards to health. (“Starbucks sued in LA court over alleged tea additive”, AP/KING-5 Seattle, Sept. 8; “Group Sues Starbucks Over Tea Ingredient”, Channel 2000, Sept. 6). Starbucks says that while it does not comment on litigation, “Starbucks and Tazo believe it is important to confirm for our customers that ephedrine has never been used as an ingredient in Tazo’s Chai Tea or any other Tazo product”. Lawyers have recently been making a big business suing over alleged health effects of ephedra consumed as a dietary supplement: searching on terms like ephedra and ma huang results in a bountiful harvest of lawyer advertising and client-recruitment pages. Ephedra has long been used in herbal teas and nutritional supplements, sometimes in trace quantities, other times in high dosages sought by dieters and athletes deliberately for its medicinal effects, which are related to those of phenylpropanolamine (PPA), a stimulant long ubiquitous in over-the-counter remedies until pulled off the market last fall (see April 6).
“The only purpose of the suit is to get Starbucks to get the ephedrine out of the product, not to get any money,” claims attorney Raphael Metzger, who filed the suit. While CERT is previously unknown, the same is not true of attorney Metzger, based in Long Beach, who runs a large “toxic-tort” practice whose website is publicizing the Starbucks action (leads to complaint in long PDF document). “The constitutional right of Californians to pursue and obtain safety could be an untapped source of riches that plaintiffs’ attorneys should consider on behalf of their clients and the public,” Metzger wrote a while back in the San Francisco Daily Journal regarding the prospect of tort claims based on the California Constitution’s “inalienable rights” provision. (Civil Justice Association of California “Balance”, Q4 1997 — scroll to “Deep Pocket Dreaming” near bottom).
September 10 — Japan sued for $1 trillion in reparations. We only thought there was a postwar treaty settling all claims against the Japanese — law prof Anthony D’Amato of Northwestern U. claims to have found a loophole that would let him reopen the whole thing. “I think we’re being conservative,” he says of his $1 trillion monetary demand. “This isn’t the first unusual legal action by D’Amato, who specializes in international law,” reports the Chicago Tribune. “In 1999 he filed suit seeking unsuccessfully to halt U.S. bombing of the former Yugoslavia to prevent damage to churches, shrines, monasteries and sacred relics.” (Matt O’Connor, “Suit seeks $1 trillion from Japan for war”, Chicago Tribune, Sept. 6 (reg); complaint in PDF format; “Japan sued for $1 trillion in reparations”, UPI/InfoSpace, Sept. 6).
September 10 — Employment class actions: EEOC to the rescue. For trial lawyers pressing job bias cases, the key to getting a big employer to offer a jumbo-sized settlement is to get the case certified as a class action on behalf of minority or female workers as a group: “Once it’s certified, it’s difficult for an employer to suck it up and go to trial. The [financial] risk is too high,” says management-side attorney C. Geoffrey Weirich of the Atlanta office of Paul, Hastings, Janofsky & Walker. But if plaintiff’s lawyers are falling short on the certification issue they can get a second bite at the apple by persuading the federal Equal Employment Opportunity Commission to intervene in the case; the EEOC is held to looser standards in class representation. “[S]howing up to bail out a plaintiffs’ lawyer who ran off the road doesn’t seem like a proper use of the process”, according to Fred Alvarez, a former EEOC commissioner who now represents employers at Palo Alto, Calif.’s Wilson Sonsini. Plaintiff’s lawyers counter that intervention on behalf of groups of workers is an intended part of the agency’s function and occurs only occasionally, despite a 1996 Forbes article in which an official of the EEOC’s Chicago office endorsed class actions as offering the agency “a much bigger bang for the buck”. (Mike McKee, “Employment Bar at War Over EEOC Intervention in Workplace Complaints”, The Recorder, Aug. 30). Sample case: Matt Gove, “Harris Teeter sued by black employees”, Atlanta Business Chronicle, Sept. 7.
September 7-9 — Judges overturning fewer huge verdicts. The litigation lobby is always insisting that alarm about excessive damage awards is misplaced because judges can be relied on to reduce or overturn anything really out of line. But is that so? A new survey by the National Law Journal of 100 jury awards exceeding $1 million dating back to 1997 that came under review by trial and appellate courts found that “the rate of outright reversal has fallen, and the bar has been raised considerably on what judges find offensive. “Federal and state judges are accepting numbers that would have been rejected as excessive only a few years ago,” notes the NLJ. “Jury awards that ‘used to make you gag and choke are being upheld,’ says defense counsel Frank Daily of Milwaukee’s Quarles & Brady.” Personal injury awards were least likely to be reversed, while large awards won by businesses against other businesses fared somewhat less well after trial. Somehow we doubt the folks at ATLA are going to be ringing their friends in the press about this one (Margaret Cronin Fisk, “Hard to Shock”, “After the Jurors Go Home”, National Law Journal, Aug. 29).
September 7-9 — Managed care bill: Do as we say…. Notable fact: “the Patients’ Bill of Rights just passed by the House exempts the 9 million federal workers, retirees and dependents covered by the federal health plan, including Congressional employees. … Tellingly, the House bill also exempts the 41 million people insured through Medicaid and the more than 50 million covered through Medicare and other federal programs from the potentially expensive new mandates and protections.” Proponents claim the new scope for litigation won’t drive up costs — but they sure don’t act as if they believe that (Ira Carnahan, “Do As We Say …”, Forbes, Sept. 3) (see also Dec. 6, 1999). And: “Liberals are right: a patients’ bill of rights is just a baby step. But it’s a step in the wrong direction,” expanding access to pricey experimental treatments for the middle class while pushing more poorer persons down into the ranks of the uninsured. (Noam Scheiber, “Daily Express: Stand Still”, The New Republic Online, July 13).
September 7-9 — Mosh pit mayhem. The mosh pit down front at the rock concert is a great place to get yourself injured (but you probably knew that). And it’s an equally great place for briefcase-toting lawyers to descend afterward filing “personal injury lawsuits with promoters, producers, arenas and sometimes even the musicians themselves as defendants”. Concert promoters say part of the crowd is always eager to enter the mosh area despite the known risks, but one plaintiff’s lawyer dismisses such talk: “The guy who controls the microphone controls the crowd,” he says. Among rock groups that have reached confidential settlements after being sued in such cases is the frenetically anti-capitalist group Rage Against the Machine, which distributes Noam Chomsky tracts to its fans. (Robert Wiener, “Rock And Roll Lawsuits”, LexisOne, July 31; Anthony DeBarros, “Injuries surge to high levels”, USA Today, Aug. 8, 2000).
September 6 — Red-light cameras. A San Diego judge has dismissed 300 traffic tickets issued under a system that “snaps a photo of a red-light runner and mails a $271 citation to the registered owner of the vehicle,” $70 of which is kept by a former Lockheed Martin subsidiary that operates the enforcement system. Such systems have already spread to fifty cities; critics charge that errors are common and very difficult for the motorist to fight, and that the company running the computerized cameras has no financial incentive to reduce the rate of erroneously issued tickets — quite the contrary, since it collects a share of the ill-gotten gains. According to Rep. Dick Armey (R-Tex.), since red-light cameras became a major source of municipal revenue, many cities have significantly shortened the duration of yellow lights, a practice that profitably increases the number of violations for the cameras to catch but worsens the risk of traffic accidents themselves. It’s another wrinkle on the bad old practice of contingency-fee law enforcement — a sure recipe for injustice whether inflicted by public authorities, private contractors, or the two in combination. (“Judge Dismisses 300 Tickets Spawned by Red-Light Cameras, FoxNews.com, Sept. 5; Alex Roth, “Ex-worker says firm puts profits over safety; Man testifies that revenue is main purpose of red-light cameras at intersections”, San Diego Union-Tribune, July 6; Ray Huard and Alex Roth, “Doubt focuses on red-light cameras”, San Diego Union-Tribune, Aug. 17; RedLightLawyers.com; Eric Peters, “Rigging traffic lights hurts safety”, Detroit News, Aug. 12; OpinionJournal.com, “Big Brother’s Camera” (editorial), July 3) (see also Apr. 8-9, 2002).
September 6 — Judge Kent: another helping. A Philadelphia environmental litigator who asks to remain anonymous writes: “I love your stuff on Judge Kent [the Hon. Samuel Kent, federal judge, S.D. Texas; see Aug. 2, Aug. 3]. I have in my grubby lawyer hands a Judge Kent order dated June 7, 2001 (entered June 8, 2001) in Labor Force, Inc. v. Jacintoport Corp. & James McPherson, Civ. Action No. G-01-058 (opinion in PDF form courtesy Green Bag). In that opinion, the judge, among other things, calls the lawyer’s motion ‘obnoxiously ancient, boilerplate, [and] inane.’ He also refers to it as asinine. … No URL as yet, and I don’t think it’s on Westlaw.
“There are 38 uses of ‘asinine’ in the allfeds database in Westlaw. Judge Kent has the vast majority of them. Thank God I’m in PA and not Texas.” (Corrected Aug. 15, 2004: fixed earlier erroneous spelling of case name).
September 6 — Reparations talk. “Reparations, so popular a topic in black-radio discussions and in black newspapers, masquerade as a bonus check for being black. They are a Trojan horse full of devastating consequences for the future of black America. Reparations are a dangerous, evil idea that has to be derailed now before emotions and momentum take American race relations on a crash course”. (Juan Williams, “Get a Check? No, Thanks”, GQ/FrontPage, Sept.) East Indians, recently arrived, made themselves a power in small business and science “with organization and planning. They certainly didn’t do it with reparations checks. Blacks could have done it, if for years we hadn’t been following leaders whose motto should be ‘Ain’t Too Proud to Beg.'” (Gregory Kane, “Slavery reparations no fix for ‘community in disarray'”, Baltimore Sun, Aug. 18). “Europe has indeed played a unique role in the history of slavery. Slavery has been a universal feature of all societies throughout most of history. … What makes Europe unique is that it ended slavery.” (Andrew Kenny, “White is Right”, The Spectator (UK), Aug. 25). And the King of Senegal has weighed in, pointing out that the guilt for slavery as an institution in his part of Africa long antedated Europeans’ arrival (Ellen Knickmeyer, “Senegal’s leader blasts idea of slave reparations”, AP/Nando, Aug. 29) (see Aug. 22 and links from there).
September 5 — “New law would stem abuses in Disabilities Act”. H.R. 914, the ADA Notification Act, is a bill introduced by Rep. Mark Foley (R-Fla.); Sen. Daniel Inouye (D-Haw.) is sponsoring a Senate counterpart. It would give businesses 90 days to make renovations to their facilities demanded under the Americans with Disabilities Act, thus putting a crimp (it’s hoped) in the complaint mills by which lawyers file accessibility complaints by the dozen and then collect legal fees from target businesses (see Jan. 26, 2000). (Hector Florin, Miami Herald, Aug. 31).
Among South Florida lawyers who have filed many near-identical complaints, collecting thousands of dollars per defendant in legal fees on settlement, are William Tucker and Lawrence McGuinness. The Fort Lauderdale Sun-Sentinel notes, however, that “Tucker works out of a Fort Lauderdale building that has no disabled parking, a ramp steeper than the law allows, no landing and a door with a round doorknob. McGuinness’ office in Coral Gables has a curb with no ramp to the front door.” (Aug. 26). The same paper editorializes: “The Americans with Disabilities Act has been hijacked by trial lawyers who are using it to drum up legal fees.” (editorial, Aug. 28) (via OpinionJournal.com “Best of the Web“).
September 5 — New York’s crazy homeless program. It’s the result of litigation by advocacy groups that have been tying the city in courtroom knots for years (Heather Mac Donald, “Forbidden Facts”, New York Post, Aug. 21).
September 5 — Target: trade associations. Two appeals courts in Washington state have upheld a verdict holding the National Spa and Pool Institute liable for $6.6 million in damages to a man who broke his neck diving into a below-ground pool and sued, saying the institute’s voluntary safety standards for pool design should have been stricter. “To protect its assets, the pool group was forced to file for bankruptcy (it’s now out of it) and sell off its $3 million (net income) trade show. Until this decision virtually all courts declined to extend product liability to associations that develop voluntary safety standards in good faith.” (Matthew Swibel, “On the Docket: In Hot Water”, Forbes, July 9 (reg)).
September 3-4 — “Lawsuit demands AOL stop anti-Islamic chat”. “A Muslim subscriber sued America Online yesterday, claiming that anti-Islamic insults in AOL’s chat rooms violate his civil rights. If successful, the suit could force the world’s largest Internet company to strictly limit what 30 million members can say in 14,000 chat rooms. … The suit alleges that by not kicking out the disrupters, AOL violated its contract with users. But it also claims that under the 1964 Civil Rights Act, an AOL chat room is a ‘public accommodation,’ as is a restaurant or a hotel.” (Hiawatha Bray, Boston Globe, Aug. 31; AP/Yahoo, Aug. 30; Leef Smith, “Suit Says AOL Permits Insults”, Washington Post, Aug. 31; BBC; Robyn Weisman, “AOL Stung by Hate Speech Lawsuit”, NewsFactor.com, Aug. 31) (& see Dec. 5-6).
September 3-4 — Not discriminatory to kick sleeping worker’s chair. A Pittsburgh federal jury has decided that it did not constitute race or sex discrimination for a supervisor to kick the chair of a sleeping 911 emergency dispatcher to wake her up. The supervisor had said that he had jostled the chairs of other workers who snoozed on the job. (“911 Boss Cleared In Woman’s Kicking Lawsuit”, WTAE/Yahoo, Aug. 28). And Great Britain’s Institute of Management has said that privacy provisions of that country’s newly enacted Human Rights Act may restrict an employer’s right to call its employees at home. “‘An employer does not have the right to demand an employee’s telephone number unless it is specified in the contract that the employee has a duty to be available outside normal working hours,’ the institute said. … The body also said employees are under no obligation to divulge their addresses except for the purpose of receiving ‘routine correspondence’ in connection with their job, such as salary slips.” (“Plagued by calls from the boss at home? Sue them”, Yahoo/Reuters, Aug. 24).
September 3-4 — Batch of reader letters. On topics such as Miniver Cheevy’s prospective wrongful-birth lawsuit, the next Cessna, slavery reparations, should doctors turn away lawyers as patients?; a 2-cent class action refund, and zero tolerance meets domestic violence. Also: we recommend a new book.
September 19-20 — Profiling, again. There’s a fairly wide consensus at the moment that airport detectives, border guards and various other kinds of security personnel are sometimes, at least, entitled to apply closer scrutiny to groups of youngish men of Middle Eastern extraction than to groups of elderly women of Scottish descent. Does that mean abandoning our longstanding ideal of equality under the law, or is there some place to draw a principled line? (Joyce Purnick, “Last Week, Profiling Was Wrong”, New York Times, Sept. 15 (reg)).
WORTH READING: Michael Brus, “Proxy War”, Slate, July 9, 1999; James Forman Jr., “Arrested Development: The Conservative Case Against Racial Profiling”, The New Republic, Sept. 10; Randall Kennedy, “Suspect Policy”, The New Republic, Sept. 13, 1999; Yahoo Full Coverage; Heather Mac Donald, “The Myth of Racial Profiling”, City Journal, Spring; George Will, “Racial profiling may be more myth than reality”, Washington Post/Detroit News, April 23; and see (linked already Sept. 14-15) Tarek E. Masoud, “American Muslims Are Americans. Let’s Act Like It”, WSJ OpinionJournal.com, Sept. 14.
September 19-20 — Welcome Insure.com, Atlanta Constitution, Houston Chronicle, Money/CNNfn, About.com readers. Plenty of press mentions lately for this site, its editor or both, including comments on the litigation likely to follow the Trade Center bombing (Vicki Lankarge, “Insurers and airlines face years of litigation over terrorist attacks”, Insure.com, Sept. 13) and in particular the possibility that major airlines could be ruined by liability actions on behalf of victims on the ground (Nancy Fonti and Dave Hirschman, Atlanta Constitution, Sept. 18 — quotes included in earlier but not current online version). Earlier, we were selected as a weekly web pick by the Houston Chronicle: “It’s written in nonlegal terms, so you’ll be able to dive right in and understand what you’re reading.” (Cay Dickson, “What’s Online”, Houston Chronicle, Sept. 10). In another article published before the attack, this one for Money magazine, Amy Feldman quotes us on lawsuits by investors against brokers (“You screwed up? Sue!” (excerpt of longer article), Money/CNNfn, Sept. 10).
We’ve also recently been linked to by several pages at Robert Longley’s U.S. Government section of About.com, including the sections on Gun Control (nominating us as “excellent” and “Best of the Net”) and Environment (“Do some environment laws go just a ‘bit too far?’ Overlawyered.com suggests they might and offers some fascinating reading to back this up.”)
September 19-20 — Washington Post on airline liability. The newspaper is properly skeptical about a generalized bailout of the airlines as such, but sees merit in the idea that they ought not to face near-infinite liability for the terrorists’ actions. “Congress should accept some liability costs, taking care that these are not costs already covered by private insurance. It should also pass legislation to ensure that liability payments are held to a reasonable level and that trial lawyers do not pocket large chunks of the money.” (“The Airline Bailout” (editorial), Washington Post, Sept. 18).
September 19-20 — Michigan tobacco fees. The $450 million award “works out to an hourly rate of $22,500, based on claims by law firms in South Carolina and Mississippi that they spent 20,000 hours on the Michigan portion of the tobacco case,” reports the Detroit Free Press‘s Dawson Bell. Arbitrators conceded that lawyers had done only a “modest” amount of work specifically on behalf of the Wolverine State, but said their efforts on the litigation on a national level deserved kudos, besides which it had been a coup for them to have recruited then-Michigan Attorney General Frank Kelley, considered influential among his fellow AGs. Sure sounds to us like it’s worth $450 million! (“Panel awards big pay in suit”, Sept. 7; Yahoo/Reuters; William McQuillen, “Michigan Tobacco Lawyers Awarded $450 Mln From Accord”, Bloomberg.com, Sept. 7).
September 18 — Settle a dispute today. A story with a moral from Texas Lawyer: “With America under attack by terrorists, lawyers involved in the trial of a bitter, highly personal fee fight agreed the dispute was trivial in the wake of the horror and tragedy of the events of Sept. 11, and they resolved their disagreement.” The $105 million battle over division of fees from tobacco and other litigation had pitted celebrated plaintiffs’ lawyer John O’Quinn against former associate Kendall Montgomery, who was represented by prominent attorneys Joseph Jamail and Ronald Krist; it had riveted the Houston legal community with a series of highly unflattering revelations about both sides. Then came the blasts in New York and Washington, which helped put a lot of other things in perspective. We hardly ever find ourselves writing favorably of Messrs. O’Quinn and Jamail, but here’s hoping their example adds a new item to our national to-do list: 1) make a donation for NYC and Washington relief; 2) book some air travel; and 3) clear the decks of some old dispute that doesn’t seem nearly as important as it used to. (Brenda Sapino Jeffreys, “Crisis Catalyst for Settlement”, Texas Lawyer, Sept. 17 and Houston Chronicle coverage typified by Bill Murphy, “Ex-partner covered for drunken O’Quinn, lawyer says”, Sept. 6; “O’Quinn reneged on agreement, jurors told”, Sept. 7). (DURABLE LINK)
September 18 — More on asbestos in WTC. Less and less seems clear about this subject, notwithstanding the reports we linked yesterday. Here’s Newsweek/MSNBC: “Reports have been conflicting about how much asbestos was installed in the twin towers, which were built between 1966 and 1973, or how much might have remained there at the time of the collapse. … Guy F. Tozzoli, the physicist-engineer who headed overall development of the World Trade Center throughout its construction and remained there until 1987, says asbestos was only used in the first 39 floors of the Tower One, the first building struck Tuesday and the second one to fall. After that, other materials were used at an additional cost of over $400,000, he says. ‘There was no asbestos used anywhere else in the buildings,’ says Tozzoli, who currently is president of the World Trade Center Association.” (David France and Erika Check, “Asbestos Alert”, Newsweek/MSNBC, Sept. 14). The reports linked yesterday from Steven Milloy and JunkScience.com, on the other hand, describe much more of the complex, including the lower 64 floors of Tower 2, as having been given asbestos insulation.
How much of the original insulation was still there as of Sept. 11? Yesterday’s linked articles seemed to proceed from the premise that it remained in place. But here’s Newsweek/MSNBC again: “Subsequently, the asbestos was encapsulated in a honeycomb of plastic, and in the early ’80s, after a ‘fastidious, painstaking process,’ it was entirely removed, he [Tozzoli] says. ‘If they are finding asbestos in the ash, it is not coming from us.'” The Port Authority, the buildings’ owner, engaged in prolonged litigation with asbestos manufacturers and its own insurers seeking to shift to them $600 million in costs of asbestos abatement. (British Asbestos Newsletter, Spring 1996, item #2; Mound, Cotton, Wollan & Greenglass, “What’s New“, “Cases”). Reader Maximo Blake writes to say: “To the best of my knowledge a majority of the asbestos coating the beams and elsewhere was removed in the 1980s. My information comes from a Port Authority employee who supervised the removal.” Just to add a bit more complication, a web search reveals a relatively recent Sept. 12, 2000 entry from the Port Authority’s Construction Advertisements Archive in which the authority solicits sealed bids for ongoing “Removal and Disposal of Vinyl Asbestos Floor Tiles and Other Incidental Asbestos-Containing Building Materials” at the WTC, with bids due October 17, 2000.
Plus: Today’s New York Times quotes specialists with a range of opinions on whether the change in materials might have made a difference. (James Glanz and Andrew C. Revkin, “Did the Ban on Asbestos Lead to Loss of Life?”, New York Times, Sept. 18 (reg)).
September 18 — “Civil liberties in wartime”. Just-started Slate dialogue between Stewart Baker (Steptoe & Johnson) and Eugene Volokh (UCLA School of Law, Center-Right) looks like it will be a good one, as we’d expect from these two (began Sept. 17).
September 17 — Renewed in alabaster. Our friend (and frequent contributor to this site) John Steele Gordon, author of The Business of America, contributed this commentary on the afternoon of the blast to National Public Radio’s Marketplace, still relevant today:
“The beating heart of world capitalism will beat again, and soon.
“The New York financial market — a potent and emotional symbol of American power — has been struck before. In 1863 the draft riots, sparked by opposition to the Civil War, engulfed the city from downtown to its northern edge, then in the east forties. Hundreds, perhaps thousands, died in the three days of looting, fire, and lynching. But as soon as order was restored — by army regiments rushed in from Gettysburg — the banks and the stock exchange reopened. Business went on.
“In 1920, a deliberate attack on Wall Street itself resulted in an explosion in front of the Morgan Bank. Hundreds of pounds of cut up iron chunks, intended as people killers, were hurled throughout the neighborhood, and awnings as high as twelve stories up burst into flame. Thirteen were killed and dozens injured. Had the bomb exploded a few minutes later, when lunch-hour crowds would have thronged the corner of Wall and Broad, the death toll would have been in the hundreds. But the next day, the Morgan bank, and the stock exchange across the street, were open for business, their shattered windows boarded up, their courage intact.
“New York City is a tough place, both when it comes to dishing out misfortune and when it comes to absorbing it. And no part of this city is tougher than its oldest part, where people have come for three hundred and fifty years to seek their fortunes. Too many hearts have been broken there, and too many dreams fulfilled, to be more than momentarily shaken even by an outrage of the magnitude of this attack.
“We New Yorkers will bury our dead — however many they may be — comfort our wounded, plan our revenge. But most of all, New York will go on.
“It will go on doing what New York does best, buying and selling, searching for opportunity, reaching for the stars.
“Two thousand years ago, St. Paul said, ‘I am a citizen of no mean city.’ On this terrible day, millions of New Yorkers know exactly what he meant.” (DURABLE LINK)
September 17 — How many lives would asbestos have saved? Don’t-miss column from FoxNews.com’s Steven Milloy, associated with the Cato Institute and known for his JunkScience.com page: “Until 30 years ago, asbestos was added to flame-retardant sprays used to insulate steel building materials, particularly floor supports. The insulation was intended to delay the steel from melting in the case of fire by up to four hours. In the case of the World Trade Center, emergency plans called for this four-hour window to be used to evacuate the building while helicopters sprayed to put out the fire and evacuated persons from the roof. … In 1971, New York City banned the use of asbestos in spray fireproofing. At that time, asbestos insulating material had only been sprayed up to the 64th floor of the World Trade Center towers.” [see addendum/correction below] Both planes struck higher floors, and the substitute material did not prove notably effective in preserving the steel, whose melting caused the towers to collapse 56 minutes in one case and 100 minutes in the other after fire broke out. Moreover, Milloy argues, by the time of the WTC’s construction, “wet-spraying” techniques of asbestos installation had been developed that made it possible to drastically lessen the danger to construction workers of breathing in harmful fibers during application. The late Herbert Levine, “who invented spray fireproofing with wet asbestos … frequently would say that ‘if a fire breaks out above the 64th floor, that building will fall down.'” (“Asbestos Could Have Saved WTC Lives”, Sept. 14).
Addendum: reader Thomas Sanderson, mechanical and aerospace engineer, writes: “Given that I read your site every day because of the quality and common sense, I was deeply disappointed to find you referring this article without appearing to recognize the problems with its argument.
“Fire insulations for buildings are designed to protect the structure against the heat from a fire fueled by the building’s contents: paper, furniture, carpet, etc. This is true of asbestos insulations and their replacements. When you add several hundred thousand pounds of jet fuel you create a fire that is far hotter than anything the designers planned for. In addition, the crash itself would have stripped most of the insulation from the steel columns, rendering the insulation useless no matter what material was used. The collapse of the towers short of the 4 hour mark specified in the article was due to the size and heat of the fire being well outside the specifications of the insulation and building codes; there is no reason to believe that asbestos insulation would have performed any better than the insulation that was used and every reason to believe that asbestos would have failed in the same way.
“By citing this column without pointing out its obvious flaws, you are encouraging the kind of unjustified lawsuits your site intends to stamp out.”
Further addendum: Milloy’s JunkScience.com (first Sept. 15-16 item) adds the following correction/amplification in response to reader emails: “Apparently, One World Trade Center was completely insulated with asbestos. But Two World Trade Center was insulated with asbestos only up to the 64th floor. One World Trade Center lasted almost 45 minutes longer than Two World Trade Center. It’s possible — no guarantees — that more people might have gotten out of Two World Trade Center had it been fully asbestos-insulated. Nothing would have prevented the buildings from collapsing eventually given the heat generated by the combustion of jet fuel.” (& see Sept. 18: MSNBC quotes an authority who contradicts the above account and says the asbestos was removed in the 1980s)
September 17 — $3 million verdict for selling gun used in suicide. Ryan Eslinger, 19, committed suicide with a gun he bought after lying on the application at Kmart to conceal his history of paranoid schizophrenia; the 17-year-old clerk, an acquaintance of his from high school, mistakenly accepted Eslinger’s passport as adequate identification, which it isn’t under federal gun laws. Now a federal court jury in Utah has told the retailer to pay $1.5 million in compensatory and $1.5 million in punitive damages to Eslinger’s family, saying it acted with “reckless indifference”. (Patty Henetz, “Kmart Pays Punitives to Utah Family Over Shotgun Sold to Suicidal Teen”, AP/Law.com, Sept. 17; “Kmart sued for wrongful death in suicide case”, AP/Nando, Sept. 5).
September 14-16– “Why they hate us”. “It was a novel thing in 1776 to treat people as ends in themselves, not as the instrument of some higher purpose. In many places, it still is. As a rule, Americans don’t subordinate individuals to grand and noble causes — we let them decide whether to subordinate themselves. … Our deference to the pursuit of happiness exasperates critics who see it as frivolous and shallow. They think life is meaningless and even wicked unless it is devoted to some cause greater than yourself.” Best column we’ve read lately on why premodern fanatics of every stripe and on every continent hate our society for its supposed decadence, materialism, and moral laxity. (Steve Chapman, Chicago Tribune/TownHall.com, Sept. 13).
September 14-16 — Security holes: to the North… December 1999’s interception of Ahmad Ressam as he crossed from British Columbia into the U.S. with bomb-making materials, and the apparent use of Nova Scotia and other parts of Canada as staging areas for this week’s outrage, points to a persistent problem: “Canada, according to David Harris, former CSIS chief of strategic planning, is ‘a big jihad aircraft carrier [terrorists use] for launching strikes against the U.S.'” While actual carrying out of terrorist schemes is against Canadian law, the country’s authorities allow surprisingly wide scope for organizing and fundraising in support of such schemes. (“With friends like us” (editorial), National Post, Sept. 13; Mark Steyn, “A very curious nation where Canada once was”, National Post, Sept. 13; Tom Arnold (& files from Reuters), “U.S. to call for tighter security at borders”, National Post, Sept. 13; Elizabeth Nickson, “Evil resides among us, in our hearts”, Sept. 13; Paul J. Smith, “The Terrorists and Crime Bosses Behind the Fake Passport Trade”, Jane’s Intelligence Review, July 1; Mary Anastasia O’Grady, “Threat from the North”, WSJ OpinionJournal.com, Sept. 14).
September 14-16 — …and at home. Often quite unfairly, organized Arab-Americans and Muslim-Americans find their loyalty to this country put in question. As the surest way of dispelling such imputations, “they should help in every way possible to smash the network within their own communities that provides money and shelter to terrorists. It’s the least they can do for their neighbors”. (Nolan Finley, “Arab-Americans can help cause by exposing terrorist sympathizers”, Detroit News, Sept. 13; Tarek E. Masoud, “American Muslims Are Americans. Let’s Act Like It”, WSJ OpinionJournal.com, Sept. 14).
September 14-16– What you knew was coming. Lawyers “say they expect an avalanche of lawsuits against the airlines, the security companies the airlines hired to screen passengers at the airports and the government agencies that run the airports.” (Joseph B. Treaster and David Cay Johnston, “Billions in Claims Expected, but Compensation Could Vary Widely”, New York Times, Sept. 13; Robert Manor and Rick Popely, “U.S. airlines face trouble in aftermath of attack”, Chicago Tribune, Sept. 13). After the earlier bombing of the World Trade Center in 1993, New York’s Port Authority unsuccessfully sued companies that made fertilizer, one of the bomb’s components (Aug. 23, 1999). The Association of Trial Lawyers of America yesterday called for a “moratorium” of unspecified length on the filing of suits over this week’s calamity (ATLA website, “A National Tragedy“). On lawsuits against the U.S. government over terrorism and their tendency to give the terrorists a second victory, see July 5, 1999 (Kenya and Tanzania embassy bombings). On the problematic nature of recently passed laws that permit victims of terrorism to sue responsible foreign states and then recover part of the resulting jury awards from U.S. taxpayers, see June 18, May 9; July 6, 2000.
Today’s Times reports that the two airlines whose planes were hijacked, American and United, are urging Congress to curtail suits against them by victims on the ground (as opposed to their own passengers and crew), a step that might be taken in conjunction with a federally legislated compensation scheme for victims in lieu of litigation; trial lawyers appear to be mobilizing to oppose such measures, even though a federal scheme of legislated compensation would be likely to get cash to survivors earlier and with more certainty than would lawsuits. “Lawyers who specialize in representing plaintiffs said the airlines were the most likely targets for negligence and wrongful death suits for victims on the ground and in the air. Potential payments could run into the hundreds of millions of dollars, the lawyers said.” For those new to this topic, this figure of “hundreds of millions” apparently represents not airlines’ aggregate liability, but of what they could pay in individual cases where high-paid businesspersons perished (such payments by airlines to families having ranged well into the tens of millions of dollars in individual cases in the past). Missing from the article is any plausible estimate of airlines’ aggregate liability should lawyers succeed in getting them held responsible for ground losses (a theory which of course the courts may not accept). Counting wrongful-death, injury, property damage and business interruption claims, it seems unlikely that the totals would stop short of many tens of billions of dollars, a prospect likely at some point to exhaust the airlines’ available insurance coverage and drive them into bankruptcy, with resulting destabilizing effects on the U.S. air transport system and economy (again, assuming courts go along, which they may not). Today’s Times coverage also cites “plaintiff’s lawyers” as having spread word in recent days that insurance companies might be preparing to deny WTC claims by resorting to war exclusions in policy coverage, a report well calculated to alarm and anger policyholders and make them more likely to consider hiring lawyers, but for which the evidence so far appears remarkably scanty; every insurer spokesperson we’ve seen quoted has contradicted the report. (Joseph B. Treaster, “Airlines Seek Restrictions on Lawsuits Over Attacks”, New York Times, Sept. 14).
September 13 — Before going to war, declare war. Formal declarations of war paradoxically help make the world a more civilized place, at least when compared with the alternative, the modern practice of waging war without declaring it: like other legal formalisms, they help put an end to self-serving guessing games among both combatants and third parties as to who owes obligations to whom. “We should seriously consider a congressional declaration of war,” writes columnist Charles Krauthammer. “That convention seems quaint, unused since World War II. But there are two virtues to declaring war: It announces our seriousness both to our people and to the enemy, and it gives us certain rights as belligerents (of blockade, for example).” (“To War, Not to Court”, Washington Post, Sept. 12). There are also various precedents Congress might consult for steps other than the conventional declaration of war against a named enemy state; among them are letters of marque and reprisal, employed in the early history of American navigation. (Washington Post, letter to the editor from Wade Hinkle, Annandale, Va., Sept. 12; scroll to near bottom) (via Instapundit).
September 13 — Self-defense for flight crews. Issuing them guns (employing ammunition of a type unlikely to pierce a metal fuselage) might be better than today’s practice of mandating their defenselessness, and a whole lot more meaningful than (to name one newly announced step) forbidding airport shops to sell plastic dinner knives. A less drastic approach “would be to give all flight crews tasers, pepper spray, and the training to use them. This approach has the added benefit of dealing with ‘air rage,’ which is still far more common than hijacking, but the airlines would probably need some legislative protection from lawsuits to adopt the practice.” (Virginia Postrel, Dynamist.com, Sept. 12; Dave Kopel, “Making the Air Safe for Terror”, National Review Online, Sept. 16).
September 13 — Non-pregnant rescuers, please. “The D.C. Fire Department and Emergency Medical Services is in all kinds of hot water for disqualifying its pregnant female applicants.” Would this be an okay time to agree that society, women included, has a compelling reason to want to hire the strongest, quickest, and hardiest prospects for jobs that may involve pulling victims from the rubble of disasters? (“The law vs. common sense” (editorial), Washington Times, Sept. 10).
September 13 — Message to the killers. “What was it you hoped we would learn? Whatever it was, please know that you failed. Did you want us to respect your cause? You just damned your cause. Did you want to make us fear? You just steeled our resolve. Did you want to tear us apart? You just brought us together.” (Leonard Pitts Jr., “The barbarians will learn what America’s all about”, Miami Herald/Seattle Times, Sept. 12) And: Mark Steyn, “West’s moral failure at root of tragedy”, National Post, Sept. 11; Dave Barry, “Just for being Americans …”, Miami Herald, Sept. 13; Jeff Jacoby, “Our enemies mean what they say”, Boston Globe/Jewish World Review, Sept. 13; eyewitness account with pictures: The Fine Line blog, Sept. 12.
September 12 — “From the dust will come justice”. “[J]ustice may not be swift. It is important, though, that it be sure.
“For those who on Tuesday took a part of America’s heart, there must be one uneasy assurance: Life is long. We are not finished. And it is they who must feel the terror.” (Chicago Tribune (editorial), Sept. 11). We also recommend the coverage on Virginia Postrel’s and Glenn Reynolds’ sites.
September 12 — Barbara Olson, 1955-2001. The attorney, commentator, author, and wife of Solicitor General Ted Olson (and no relation to this site’s editor) was on board American Airlines Flight 77 and used her cell phone to call her husband and relay details about the flight’s hijacking. A former prosecutor, Mrs. Olson rendered many services to this country, and it would be fitting if by this final act she helped assist law enforcement in the inquiries that lead to bringing the murderers to justice (John Solomon, “Barbara Olson, wife of U.S. solicitor general, dies in Pentagon attack”, AP/Boston Globe, Sept. 11).
September 12 — Transsexual passenger’s airline hassle. We were preparing a light, jolly sort of item about the lawsuit charging United Air Lines with discrimination against transsexuals because they over-hassled Richard Ward/Sarah West at boarding time: “according to the lawsuit, Ward was told he wouldn’t be able to fly until he looked more like his passport photo, which shows him as a man.” But we knew there was a serious point at the incident’s core: airline personnel aren’t just being spiteful when they insist that passengers match up fairly closely with their picture IDs. Could we agree that this is a bad moment at which to assert a new civil right to board airliners in disguise? (WJLA, “Airline Orders Man to Change Out of Women’s Clothing”, Sept. 5; AirDisaster.com thread)
September 12 — Self-defense: an American tradition. In his much-praised book ”Arming America: The Origins of a National Gun Culture”, Emory University historian Michael A. Bellesiles delivered a novel thesis many reviewers were eager to hear: that America’s identification of gun ownership with individual liberty is a recent invention, and that “gun ownership was exceptional in the seventeenth, eighteenth, and early nineteenth century, even on the frontier”. Now a front-page Boston Globe article backs up a growing furor over the book’s methods and veracity. (David Mehegan, “New doubts about gun historian”, Boston Globe, Sept. 11; Melissa Seckora, National Review, Oct. 1; Dave Kopel and Clayton Cramer, “Check the Footnotes”, National Review Online, Jan. 13-14).
September 11 — Soaring medical malpractice awards: now they tell us. We couldn’t have said it better than SmarterTimes did yesterday: “Unreformed on Tort Reform: An article on the front page of today’s [i.e. Monday’s] New York Times reports that jury awards in medical malpractice cases reached an average of $3.49 million in 1999, up from $1.95 million in 1993. The article reports that in California, ‘juries awarded more than $1 million in 39 malpractice lawsuits, up from 28 seven years earlier. … The average award rose to $2.9 million, from $2 million.’ Well, the Times looks a bit silly, in retrospect, for that largely uncritical report in its national section on August 6, 2001, which ran under the headline, ‘A Study’s Verdict: Jury Awards Are Not Out of Control’ and concluded with a quote from a law professor who asserted, ‘The evidence is that juries are not out of control.’ That August article didn’t mention any of these statistics about the increase in jury awards in malpractice cases. Today’s article, meanwhile, is flawed because it doesn’t say how many of these large jury awards are reduced by judges on appeal.” [on which, see our Sept. 7-9 entry: the National Law Journal finds that judges appearing to be leaving intact a larger share of big awards]. (Joseph B. Treaster, “Malpractice Rates Are Rising Sharply; Health Costs Follow,” New York Times, Sept. 10 (reg); Yahoo version (no reg, but shorter shelf life). Earlier Times report: William Glaberson (who else?), New York Times, Aug. 6 (fee-based archive), Googlecached at Seattle Post-Intelligencer site).
Here’s more, from the trade journal Business Insurance, on the looming crisis in med-mal insurance: “In response to losses on medical malpractice liability business, The St. Paul Cos. Inc. has raised rates and is walking away from some health care risks. … The St. Paul, Minn.- based insurer said it has raised its medical malpractice liability rates for large hospitals an average of 76% on policies that have renewed this year and has not renewed some policies. Rate increases have become steeper in recent months, with the average renewal in July up 103% from last year’s rate. … because of the serious losses recorded by large hospitals, St. Paul plans to exit some geographic regions and not renew policies with certain hospitals, [company official Michael] Miller said.” (“Updates: Med Mal Rate Hikes”, Business Insurance, Aug. 27, fee-based archive). And a report from July 2 on the crisis facing nursing homes: “In Florida, for example, nursing homes, would merely be swapping dollars for liability coverage, according to Mr. Henderson [Jim W. Henderson, vp-marketing division of insurance brokers Brown & Brown in Daytona Beach, Fla.]. ‘You can probably purchase insurance,’ he said, ‘but it would be almost dollar-for-dollar based upon exposure and premium. You’ll spend $3 million for $3 million worth of coverage.’ Buyers in Florida, Texas and Pennsylvania that can get nursing home liability coverage at increases of less than 200% to 300% will be lucky, Mr. Henderson said.” (Michael Bradford and Lee Fletcher Rosenberg, “Brokers the bearers of bad pricing news”, Business Insurance, July 2, fee-based archive).
September 11 — The view from Arsenictown. In the controversy over arsenic levels in drinking water, Chicago Tribune columnist Steve Chapman does something remarkable: he actually checks out what residents think in one of the towns (San Ysidro, N.M.) meant to benefit from the tighter rules (Sept. 6; TownHall.com version) (& see Aug. 17-19, April 18).
September 11 — P.D. James on compensation culture. Columnist George Will, in London, interviews mystery writer P.D. James: “She is mildly disdainful of what she calls ‘the climate of compensation,’ which Americans call the entitlement mentality of a therapeutic culture. ‘People,’ she says bemusedly, ‘expect to be counseled if they suffer trauma.’ Recalling the soldiers returning from two wars, she says tartly, ‘I don’t remember them all coming home expecting to be counseled about what they went through.'” (“The edge of a moral sleuth”, Washington Post, Sept. 9).
September 28-30 — Draconian hacker penalties? The counter-terrorism act (whose contents, as we have mentioned before, keep changing) was drafted to include what critics say are extraordinarily severe penalties for low-level forms of computer trespassing that bear no relation to terrorism. (Matthew Broersma, “EFF: Bill treats hackers as terrorists”, ZDNet (UK), Sept. 27; Kevin Poulsen, “Hackers face life imprisonment under ‘Anti-Terrorism’ Act”, SecurityFocus.com, Sept. 23). More on the bill’s progress: Declan McCullagh, “Congress Weighs Anti-Terror Bill”, Wired News, Sept. 25; “Wiretap Bill Gets Third Degree”, Sept. 26; Jonathan Ringel, “Surveillance Major Sticking Point in Anti-Terrorism Legislation”, American Lawyer Media, Sept. 26.
September 28-30 — Terrorists, American business execs compared. Was it a passing lapse of taste, sense and perspective in the early shock of the disaster that led New York Times columnist Thomas Friedman to compare the struggle against terrorism to the campaign against … cigarette companies? In his first column after the attacks, Friedman wrote that we need to encourage defections from within the world of Muslim extremism, just as “Americans were really only able to defeat Big Tobacco when whistleblowers within the tobacco industry went public and took on their own industry, and their own bosses, as peddlers of cancer.” A very fair analogy, that! (“Smoking or Non-Smoking?”, Sept. 14). And the way-out-there-leftist website TomPaine.com, from which we don’t really expect better, gave us this gem in January of last year: “The hype [about a terrorist threat] is unfounded, largely because there is no evidence of a world wide terrorist conspiracy against the U.S., and the few alleged terrorists that have actively targeted U.S. citizens have done so infrequently.” From stupidity the article proceeded to viciousness: “The actions of business executives — from tobacco sellers to weapons manufacturers — claim the lives of hundreds of thousands of Americans every year — 38,505 gun-related deaths in 1994, 6,112 workplace fatalities and 500,000 deaths from smoking in 1996 — many times more than the handful of terrorist incidents. These are the people we should be afraid of, and seek to restrain, rather than fictional characters that have more to do with Hollywood hype than political reality.” (Roni Krouzman, “The Terrorism Scare”, TomPaine.com, Jan. 19, 2000) (via WSJ OpinionJournal.com “Best of the Web”, Sept. 17). What is it to bomb the World Trade Center, after all, compared to the more menacing status of being the sort of business exec who would work in it? See also MichaelMoore.com, “Mike’s Message”, Sept. 19 (attributing character of Osama Bin Laden to his family’s being in the building contractor trade). (DURABLE LINK)
September 28-30 — Privacy claim by Bourbon Street celebrant. Just because she cavorted topless in New Orleans’ French Quarter during Mardi Gras doesn’t mean it was okay to videotape her and use the resulting footage in a compilation release entitled “Girls Gone Wild!”. “They’re really exploiting her, victimizing her,” says one of her lawyers; the idea that there might be cameras around doesn’t seem to have crossed her mind at the time. (James L. Rosica, “Poster girl sues makers of videos”, Tallahassee Democrat, Sept. 18)(& see update Mar. 6, 2002).
September 27 — Rush to reconcile. Different things seem important now, cont’d: “Dismissals in divorce cases have skyrocketed in the Harris County Family Law courts since the terrorist attacks of Sept. 11. Family-law attorneys have found that clients contemplating divorce, as well as those in the middle of one, now say they will try to patch things up.” (see Sept. 18) (Mary Flood, “Couples want peace at home”, Houston Chronicle, Sept. 25).
September 27 — “Shooting range sued over suicide”. “The family of a woman who shot herself in the head sues a business for renting her the gun.” She came in to the shooting range with her husband; the lawyer says the attendant should have seen that she’d been drinking (St. Petersburg Times, Sept. 25).
September 27 —Force majeure fights. Do the events of September 11 constitute a material change in circumstances, thus entitling businesses to get out of merger deals and other contractual obligations? Squabbling over that issue “should keep attorneys busy for years. ‘Unfortunately, there will be litigation, whether it’s meritorious or not,’ says James Salzman, a law professor at American University.” (“Collateral Damage”, Michael Freedman and Daniel Kruger, Forbes, Oct. 15).
September 27 — Where towers stood.
Who knows how empty the sky is
In the place of a fallen tower.
Who knows how quiet it is in the home
Where a son has not returned.
— Anna Akhmatova (1889-1966) (via Alex Beam, Boston Globe, Sept. 18, who says it’s from a cycle of poems, “Youth”)
September 25-26 — Vast new surveillance powers for state AGs? Mickey Kaus, on Kausfiles.com, expresses rightful unease about a most unpleasant little surprise in the counterterrorism package: he doesn’t “see why state attorneys general, the biggest showboaters in American politics, need to be given the power to employ the FBI’s ‘Carnivore’ email-tapping program without a court order.” He suggests they’ll “probably use it to ferret out tobacco users and sue them”. (“Hit Parade”, Sept. 22; see also Jacob Weisberg, “Microsuits: Why state attorneys general are suddenly suing everybody”, Slate, May 22, 1998). (But note that the contents of the legislative package keep changing rapidly; we couldn’t locate such a provision in the draft versions we consulted on the Electronic Frontier Foundation site.)
September 25-26 — Legal botches encouraged terrorists. “The international jihad arrived in America on the rainy night of Nov. 5, 1990, when [El Sayyid] Nosair walked into a crowded ballroom at the New York Marriott on 49th Street and shot and killed [extremist political figure] Rabbi Meir Kahane… With a room full of witnesses and a smoking gun, the case against Nosair should have been a lay-down. But the New York police bungled the evidence, and Nosair got off with a gun rap. At that moment, Nosair and [sidekick Mahmud] Abouhalima may have had an epiphany: back home in Egypt, suspected terrorists are dragged in and tortured. In America, they can hire a good lawyer and beat the system.” (Evan Thomas, Newsweek/MSNBC, Oct. 1).
September 25-26 — Third Circuit cuts class action fees. In a long-awaited ruling, the 3rd Circuit federal court of appeals last month ordered that a $262 million award of lawyers’ fees be slashed to a yet undetermined level in a $3.2 billion settlement of class action securities litigation against Cendant Corp. and its auditors, Ernst & Young. Objectors had argued that the case had been relatively easy to prove and that the award would pay lawyers at least 45 times their usual rates. The court “also criticized the use of ‘auctions’ to appoint lead plaintiffs’ counsel in securities class action cases”. (Shannon P. Duffy, “Cendant $3.2 Billion Settlement Upheld, but Attorneys’ Fee Award Must Be Reduced”, The Legal Intelligencer, Aug. 29) (see June 20 and Sept. 4, 2000).
The fee squabble had cast a spotlight on the tendency of many big class action firms to contribute heavily at campaign time to elected officials who by controlling state pension funds can put these lawyers in line for big fees by designating them to represent the state in such actions. “Milberg Weiss gave $127,125 to New York state candidates since 1999, including $16,000 to state auditor Carl McCall’s campaign for the Democratic nomination for governor,” and Barrack Rodos and Bernstein Litowitz have pumped big contributions into such states as Pennsylvania, California and Louisiana. The lawyers hired Harvard law prof Arthur Miller to defend their $262 million fee. (Tim O’Brien, “3rd Circuit Reviews Fees, Counsel Choice in Cendant Class Action Settlement, New Jersey Law Journal, June 4).
In a separate decision, involving a suit against CBS, the same appeals court ruled that “lawyers who represent shareholders in derivative actions [i.e., vicariously on behalf of the corporation] are not entitled to any fees unless the suit benefited the corporation.” It overturned a deal which would have given attorneys more than $580,000 in fees; the attorneys had claimed that the settlement of their derivative suit benefited shareholders by clearing the way for a $67 million settlement of a class action suit, but the judge said the test of benefit was whether shareholders were better off for its having been filed in the first place, not for its having been settled. (Shannon P. Duffy, “3rd Circuit Takes Back $580K in Lawyers’ Fees”, The Legal Intelligencer, Sept. 21).
September 25-26 — “Asbestos column raised awareness”. Steven Milloy of JunkScience.com fields reader reaction to his column raising the question whether asbestos insulation might have enabled the WTC towers to hold out longer before their collapse (FoxNews.com, Sept. 21) (see Sept. 17, 18).
September 24 — From mourning to resolution.
There is sobbing of the strong,
And a pall upon the land;
But the People in their weeping
Bare the iron hand;
Beware the People weeping
When they bare the iron hand.
— Herman Melville, “The Martyr”, on Lincoln’s assassination (via AndrewSullivan.com and John Ellis, FastCompany)
September 24 — “Despite Protection, Airlines Face Lawsuits for Millions in Damages”. The newly passed bill puts the federal government and its taxpayers on the hook for costs of further terrorist strikes in the near term, and assists the airlines in their quest for insurance, but does less than one might imagine to shield them (and a long list of other defendants) from lawsuits over the Sept. 11 attack. (Charles Piller, L.A. Times, Sept. 22). It does not restrict filing of mass suits on creative theories based on damage on the ground, but instead gives victims a choice of whether to apply for government compensation through a “special master” in lieu of suing. Trial lawyers have already begun volunteering to help claimants with the special master process, which could put them in a position to steer those claimants back toward court-based options, especially if the taxpayer-funded compensation packages prove less than generous. And the airline bailout, which includes billions in cash subventions, may come at a high cost of future Washington entanglement for the industry: “A last-minute addition to [the bill] will let the federal government take equity stakes in the cash-strapped carriers and may even open the door to a government role on their corporate boards, lawmakers said on Friday.” (Adam Entous, “Airline Bailout Allows US to Take Stake”, Reuters/Yahoo, Sept. 21) (Yahoo Full Coverage).
September 24 — Blame video games, again. Expect renewed scrutiny of both videogames and flight simulator software, either of which might assist bad guys as well as good guys in honing skills relevant to lawlessness in the air. (David Coursey, “How video games influenced the attack on America”, ZDNet, Sept. 21; Marc Prensky, “Video games and the attack on America”, TwitchSpeed.com, undated). On earlier rounds of agitation against game makers and entertainment companies, see Gwendolyn Mariano, “Columbine victim families sue over violent games”, ZDNet, April 24, and collected commentaries on this site.
September 24 — Miami jury to Ford: pay $15 million after beltless crash. It wasn’t one of the much-publicized Explorer/Firestone cases, but instead arose from the rollover accident of an Econoline van none of whose twelve occupants was wearing seatbelts. A Ford spokeswoman criticized the verdict: “‘No proof of a manufacturing defect was shown,’ she said. ‘This was simply a tragic accident compounded by passengers not being belted.”’ (“Ford to Pay $15 Million in Rollover Case”, Reuters/FoxNews.com, Sept. 21). And the Association of Trial Lawyers of America is showcasing on its website an $18 million jury verdict against GM in favor of an 18-year-old driver who fell asleep at the wheel at 70 mph in his Chevrolet S-10 Blazer SUV. The automaker “tried to introduce evidence that plaintiff had a blood alcohol level between .04 and .07 at the time of the accident, which was illegal given his age. [Plaintiff’s attorney Michael] Piuze successfully moved to exclude this fact on the ground that plaintiff had admitted his responsibility for the accident.” (ATLA Law Reporter, May — Lambert v. General Motors).
September 21-23 — “The high cost of cultural passivity”. “FAA’s silly rules did exactly nothing to stop the hijackers” (Mark Steyn, National Post, Sept. 17; “Making it safe to fly” (letters to the editor), Washington Post, Sept. 21). What did help was the revolt of the heroic passengers on United Flight 93 (Rick Reilly, “Four of a Kind”, Sports Illustrated, Sept. 19; Dan LeBatard, “Final heroic act not forgotten by the many saved”, Miami Herald, Sept. 20; some particularly good commentaries from Virginia Postrel on Sept. 20 and earlier days; proposal for a monument to them). Writes Lisa Snell: “I would rather be on a hijacked airplane with someone inoculated by Power Rangers than someone who believes the inherent message of every school institution: that weapons are bad and that the authorities and the government will solve all problems and protect you” (quoted by Joanne Jacobs, Sept. 14).
September 21-23 — Judge to “Sopranos” suit: Fuhgetaboutit. Free speech prevails: “A judge on Wednesday dismissed a lawsuit filed by an Italian-American organization that accused the makers of the HBO television series ‘The Sopranos’ of offending Italian-Americans by depicting them as mobsters. ….The American Italian Defense Association sued Time Warner Entertainment Co. under the ‘individual dignity’ clause of the Illinois Constitution.” (AP, link now dead; “Judge dismisses ‘Sopranos’ lawsuit”, MSNBC/Reuters, Sept. 19) (see April 6-8).
September 21-23 — “Don’t sacrifice freedom”. We can win this one without giving up what makes us Americans (Glenn Reynolds, FoxNews.com, Sept. 14; Dave Kopel, “Don’t Press the Panic Button”, National Review Online, Sept. 21; Stuart Taylor Jr., “Thinking the Unthinkable: Next Time Could Be Much Worse”, National Journal/The Atlantic, Sept. 19; E. J. Dionne, “To Go On Being Americans”, Washington Post, Sept. 14).
September 21-23 — “Lawsuits From Attacks Likely to Be in the Billions”. Trial lawyers speculate about various targets for the vast amount of litigation they intend to file; on the list are airlines, New York’s much-sued Port Authority and a great many others. (Robert Gearan, New York Daily News, Sept. 19; “In aftermath of terror attacks, lawyers holding off on lawsuits, but they’re coming”, ABCNews.com, Sept. 20; “Attorneys hold off on flurry of lawsuits”, USA Today, Sept. 21; “S&P: Airlines Need Relief From Lawsuits”, Reuters/Yahoo, Sept. 20).
August 31 — Update: Alabama campaign-tactics case. A judge has sentenced prominent Alabama trial lawyer Garve Ivey to 30 days in jail after a jury convicted him on misdemeanor charges arising out of a smear campaign against the state’s Lieutenant Governor, Steve Windom (see Sept. 1 and Aug. 26, 1999). Shortly before the 1998 election, with Windom running a hard-fought race against a trial lawyer-backed opponent, a former prostitute and heroin addict named Melissa Myers Bush stepped forward with a lawsuit dramatically charging that Windom had raped and beat her seven years earlier when she worked for an escort service. Ivey, who was serving at the time as an official of the state trial lawyers association, paid to have 300 copies made of a videotape of Bush describing her charges, “which were distributed to news outlets across the state”. But as questions arose, Bush soon recanted and said she’d been paid to tell her story and that it was false. According to later testimony at trial, Bush accepted $2,700 from Birmingham businessman Scott Nordness, money that was later reimbursed by Ivey. Nordness was granted immunity by prosecutors seeking his testimony and charges were filed against Ivey and a private investigator who’d worked with him, Wes Chappell.
On June 22 a Mobile County jury acquitted Chappell of the charges and rendered a split decision in Ivey’s case, acquitting him on the felony count of bribing Bush to give false testimony while convicting him on two misdemeanor counts of witness tampering and criminal defamation. According to AP, the witness tampering charge arose from Ivey’s having gotten Nordness to sign a sworn statement after Bush’s lawsuit which, in prosecutors’ view, seemed to suggest that no money had changed hands in the case. Windom says he feels vindicated after two years and expects an apology from the state trial lawyers’ group, which he says tried to dodge the appearance of involvement in the smear efforts when trial testimony indicated the contrary. “The evidence clearly showed that there was a great deal of involvement at every stage. They need to come clean with the public and with their own members,” he said. (The AP coverage does not include a response from the trial lawyers’ group.) Ivey’s lawyers plan an appeal; still pending as well are civil suits that Ivey and Windom have filed against each other over the affair. Update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
SOURCES: “Ivey sentenced to 30 days in jail on witness tampering”, AP, August 9, not online, available on NEXIS; Garry Mitchell, “Chappell cleared, Ivey found guilty in Windom trial”, AP/Decatur Daily, June 23; Garry Mitchell, “Windom wants apology from trial lawyers”, AP state and regional wire, June 23, not online, available on NEXIS; Gary McElroy, “Former call girl testifies”, Mobile Register, June 16; “Chuck’s Page” (page by Chuck Harrison, a witness called in the case; scroll down halfway to “Just Desserts”).
August 31 — “Diva awarded $11M for broken dream”. Last week a Little Rock, Ark. jury awarded aspiring opera singer Kristin Maddox, now 23, $11 million “for injuries she suffered when an American Airlines jet went off a runway last year while landing in a thunderstorm”. Maddox was studying opera in hopes of becoming a star but says damage to her voice box and hands in the crash ruined her professional chances. Her lawyer, “Bob Bodoin, told jurors that no amount of money would make up for her pain and the loss of a career that could have rivaled opera stars Beverly Sills or Luciano Pavarotti’s”. However, a university voice teacher who evaluated one of Maddox’s pre-crash performances on video said she had a voice that, while “lovely”, was also too light to fill an auditorium in the Sills or Pavarotti manner. (AP/Philadelphia Daily News, Aug. 25; discussion on Professional Pilots Rumour Network boards).
August 31 — “Breaking the Litigation Habit”. The business-oriented Committee for Economic Development released a report in April which “calls our litigation system ‘too intrusive, too slow, and too expensive.’ The current system does not adequately or fairly compensate people for injuries; it imposes costs that threaten to impair economic innovation; and it undermines the trust and civility among our citizens that are essential to a well-functioning, democratic society.” The report goes on to endorse “Early Offers” and “Auto Choice” reforms, both aimed at providing rapid compensation for injuries without litigation (introductory page links to executive summary and full report in PDF format).
August 29-30 — Back-to-school roundup: granola bars out, Ritalin in. The Fallingbrook Community Elementary School, in an Ottawa suburb, has “banned all snacks except fruits and vegetables in an attempt to protect children with allergies”. Children in K-4 “have been asked not to bring cheese and crackers, dips, yogurt, candy bars or homemade muffins for snacks” for fear of triggering reactions in other kids with peanut, dairy, egg or other allergies. Fallingbrook parent Theresa Holowach would like to send cereal bars or homemade muffins with her eight-year-old son and kindergartner-to-be daughter but was willing to settle for rice cakes, cheese and crackers; her requests, however, “were refused on the grounds that the school would be legally liable if actions were not taken to limit the risks for children with serious allergies. ‘To me the school is going to have serious liabilities if my child chokes on a carrot because you’ve forced me to give her raw fruit and vegetables,’ said Ms. Holowach”. (Gina Gillespie, “School bans all snacks except fruit, vegetables”, Ottawa Citizen/National Post, Aug. 26).
Meanwhile, both the New York Law Journal and USA Today say there are other cases, besides the recently reported one near Albany, N.Y. (see July 26), in which schools are resorting to legal action to compel unwilling parents to dose their children with Ritalin, the controversial psychiatric drug. (John Caher, “New York Ritalin Case Puts Parents, Courts on Collision Course”,New York Law Journal, Aug. 18; Karen Thomas, “Parents pressured to put kids on Ritalin”, USA Today, Aug. 8). The Christian Science Monitor also reports on a different kind of legal pitfall that may await the non-medicating parent: in 1995 the Wisconsin Supreme Court upheld a $170,000 jury verdict against parents whose fourth-grade special-ed student attacked his teacher after they took him off medication that had reduced his aggressive behavior. (Katherine Biele, “When students get hostile, teachers go to court”, Christian Science Monitor, Aug. 22). However, the Wisconsin court stressed in that case that it was not imposing on parents a duty to keep the child on medication, but rather a lesser duty to warn the school if they decided to discontinue the drug (summary on Spedlaw.com website of Nieuwendorp v American Family Ins Co., 22 IDELR 551 (1995)).
The Monitor reports that educators are taking kids themselves to court over an ever-wider range of misconduct, especially defamation (see Sept. 28, Nov. 15). Most students are deemed “judgment-proof” but state laws specify a limited measure of parental financial responsibility for kids’ misbehavior, usually limited to such sums as $1,000 or $2,500, which can however escalate to unlimited amounts if the parents are deemed negligent, as in the Wisconsin case. And in Rhode Island, to update an earlier story (see April 19), two years of wrangling over whether Westerly High School sophomore Robert Parker was out of line to wear a rock band T-shirt displaying the numerals 666 have ended, with the school facing a cumulative bill for the dispute of $60,000. (American Civil Liberties Union/AP, July 6).
August 29-30 — Denny’s bias charges: let’s go to the videotape. Another day, another discrimination suit demanding money from the Denny’s restaurant chain on charges of racially based denial of service. But it so happened that a security video camera was running during the alleged Cutler Ridge, Fla. incident, and the story told by its tape was so at odds with the story the complainants were telling that their lawyer, Ellis Rubin of Miami, felt obliged to withdrew from the case for fear of facing sanctions if he continued. “In 1994, Denny’s settled a $46 million class action with hundreds of black customers who had alleged that they were refused service at the chain’s restaurants”; despite the diversity training it’s instituted since then it still faces many new public-accommodations suits, but its management vows to fight those that it considers opportunistic. (David E. Rovella, “Denny’s Serves Up a Winning Video”, National Law Journal, Aug. 24) (see also Sept. 29).
August 29-30 — Welcome Yahoo Internet Life readers. Last Friday’s installment of “Ask the Surf Guru” carried this nice accolade: “*** Special to Gwendolyn: Like Cassandra said in Mighty Aphrodite, “I see disaster. I see catastrophe. Worse, I see lawyers.” But better is seeing Walter Olson’s daily odes to odious lawyering at Overlawyered.com, where he chronicles how attorneys clog the drain of American life with lawsuits that redefine the word ‘frivolous.'” Thanks! (ZDNet/Yahoo Internet Life, Aug. 24 — final item).
August 29-30 — “Lawyers want millions as cut of Holocaust settlement”. “On April 12, 1997, Arthur Bailey, one of the dozens of lawyers who helped negotiate a $1.25 billion settlement finalized last month between Swiss banks and Holocaust survivors, bought a copy of the book ‘Nazi Gold’ by Tom Bower and spent 8.6 hours reviewing it. Cost to plaintiffs: $2,365, or $275 an hour.” Lengthy telephone conversations between lawyers and a half-hour interview granted by a lawyer to the Washington Post are among other outlays of lawyers’ time for which reimbursement is being sought in the $13.5 million fee request, which Elan Steinberg, executive director of the World Jewish Congress, described as “outrageous”: “We said from the beginning that the lawyers should be acting pro bono,” i.e., without compensation. (Steve Chambers, Newhouse News Service/Cleveland Plain Dealer, Aug. 15).
August 29-30 — Imagine if she’d had a photo of a gun too. Police in Davidson, North Carolina “are defending an officer’s decision to search a woman’s car for drugs after spotting a photo of a marijuana plant on the cover of a newspaper in her car.” The driver, when stopped at 1 a.m., had a copy of an alternative weekly in her car with a cover story on police use of helicopters against marijuana growers, and consented to the search request, police said. A journalism professor says carrying such material could not possibly be probable cause for a car search. Nothing unlawful was found in the vehicle. (“Police say photo of marijuana plant sufficient cause for drug search”, AP/Raleigh News & Observer, Aug. 25) (via Progressive Review).
August 28 — “Man killed in gas explosion told to clean up rubble”. “One day after a Brooklyn couple died in a gas explosion at their home, city officials fired off a letter to the dead husband insisting that he was responsible for immediately cleaning up the rubble.” On July 11 a massive blast leveled the home of Leonard Walit, 72, and his 66-year-old wife Harriet, who were buried under the rubble of the four-story brownstone with a third victim. “The responsibility to [repair or demolish the premises] is yours, and because of the severity of the condition, the work must begin immediately,” declared the form letter from building commissioner Tarek Zeid, which warned the deceased couple that if they delayed the city would perform the necessary work and bill them for the expenses. Critics say the city should have known better given that the blast made big headlines, and a spokesman for the Buildings Department has apologized. (AP/Yahoo, Aug. 26).
August 28 — Campaign consultants for judges. At $15,000 a pop it gets expensive fast to hire professional campaign help, but elected Florida judges increasingly feel they have to shell out for two, three or four of the hotshot local consultants — especially since if they don’t put them on retainer, they might just find themselves facing a challenger who has. It’s another reason reformers are hoping to move to an appointive system. (Tony Doris, “Full-Court Press”, Miami Daily Business Review, Aug. 23).
August 28 — “Relatives find ‘proof’ they own New York”. “Descendants of an 18th-century privateer are hoping that a copy of an ancient lease discovered in an attic in South Wales may finally prove that they are the rightful owners of the world’s most valuable piece of real estate,” reports London’s Sunday Times. “For 120 years the descendants of Robert Edwards have been trying to establish their rights to 77 acres of Manhattan on which now stand Wall Street, the New York Stock Exchange, [lower] Broadway and the World Trade Center.” And who’s to say they won’t succeed, given the enthusiasm shown by American courts for hearing Indian land suits (see Feb. 1), liability claims arising from the sale of products in the first years of the Twentieth Century, and perhaps, before long, slavery reparation cases as well? (Simon de Bruxelles, Sunday Times (London), Aug. 22).
August 25-27 — Mich. high court: tough on working (arsonist) families. As the nasty race for the Michigan Supreme Court heats up (see May 15, May 9, Jan. 31), opponents have rolled out television ads assailing three Republican justices as “antifamily” and biased toward business, on the strength of 43 decisions they’ve rendered that supposedly fit that pattern. However, when the Detroit Free Press‘s Dawson Bell looked into the details, he discovered that among the rulings being flayed as “antifamily” is one from last year denying insurance coverage to “a pair of convicted arsonists who burned down a row of buildings”. A look at the rest of the cited court decisions likewise “indicates that the content provided in the ads borders on the bogus.” For example, in six cases the ad-makers counted government defendants in lawsuits — that is to say, the taxpayers — as “corporations”; they omitted a half dozen cases that obviously didn’t fit their pattern, while including “at least seven cases in which an individual won, or a corporation wasn’t a party;” and they included fourteen cases in which the court’s Democrats agreed with the outcome. Where’s the state Democratic Party getting the money for its big ad buy trashing the GOP judges? It’s hard to know for sure, but trial lawyers are said to have privately pledged millions to defeat the trio at the polls (see May 9). (Dawson Bell, “Party politics enters high court race”, Detroit Free Press, Aug. 3; Kathy Barks Hoffman, “Chamber runs ads to counter Democrats’ attacks on justices”, AP/Detroit News, Aug. 17; Charlie Cain, “High court race will be nasty, pricey”, Detroit News, June 23). Opponents of the three justices have mounted not one but two websites: AgainstMichiganFamilies.com and The Justice Caucus. But in fact “Michigan’s Supreme Court may be the nation’s best example of a court committed to interpreting the law — not manufacturing it,” contends National Review Online contributor Peter Leeson (“Michigan’s Supreme Court Is Supreme”, Aug. 22). That makes it a notable contrast with the high court in neighboring Ohio, where a narrow majority of justices last year (see Aug. 18, 1999) used activist reasoning to strike down legislated liability limits, and are now being heavily backed by trial lawyers in their re-election bids (Thomas Bray, “A Nation of Laws, or of Judges?”, Opinion Journal, Aug. 17).
August 25-27 — “Albuquerque can seize homes hosting teen drinking”. Under a bill approved by the city council of New Mexico’s largest city, you can now look forward to losing your house if the neighbors complain about repeated gatherings of tippling teens while you’re away. (Kate Nash, Albuquerque Tribune/Nando Times, Aug. 23).
August 25-27 — “How do you fit 12 people in a 1983 Honda?” Brazen, well-organized car-crash fraud rings thrive in the Big Apple, according to a series of New York Post exposés this summer. Other states are well ahead of New York in enacting legislation aimed at curbing fraud; meanwhile, the “Pataki administration is in court trying to overturn a decision in which the trial lawyers and medical profession successfully sued to have the state’s existing no-fault regulations thrown out.” June 25 (related story); June 26; June 27; July 16 (related story); August 6). Last year New York City recouped $1 million following the racketeering and fraud convictions of attorney Morris Eisen, a one-time major filer of injury claims who prosecutors say introduced fraudulent evidence in at least 18 cases, including three against the city (press release from office of Comptroller Alan Hevesi, May 18, 1999).
August 25-27 — Retroactive crash liability. Following years of lobbying by trial lawyers, Congress passed and President Clinton signed in April a new law retroactively raising the amounts payable in lawsuits to relatives of those killed in three air crashes over international waters, including the loss of TWA Flight 800. The little-publicized passage, “nestled on page 71 of a 137-page budget bill … carries an effective date of July 16, 1996” — almost four years before its signing. It abolishes old limitations on lawsuits set by the historic Death on the High Seas Act so as to expand the sums recoverable for “non-pecuniary” losses, such as the “care, comfort and companionship” of the deceased. The result is to ensure substantially higher payouts in litigation over the TWA crash, for which that airline and Boeing are being sued, as well as the Atlantic downings of Swissair Flight 111 and EgyptAir Flight 990. Sen. Slade Gorton (R-Wash.), who represents Boeing’s home state, had argued to no avail that it was unfair to expand the companies’ obligation retroactively. (Frank J. Murray, “Retroactive move allows big awards in TWA crash”, Washington Times, Aug. 24).
August 23-24 — Class actions: are we all litigants yet? If you’re a member of American Airlines’ frequent-flier plan, you may have received by now a class action settlement notice in which the airline agrees to make legal amends for the atrocity of having raised from 20,000 to 25,000 miles the point level needed to claim a free coach round-trip. After slogging through the legal jargon, St. Petersburg Times columnist Susan Taylor Martin finds that the “most that ‘class members’ in my category can expect is this: a 5,000-mile discount on a frequent-flier award or a certificate for $75 off on a ticket costing at least $220. Wow. But let’s read on. In return for negotiating this settlement, the lawyers representing me and other plaintiffs will apply for fees ‘not to exceed $25 million.’ No wonder we’re such a lawsuit-happy nation.”. She asks her newsroom colleagues if they’ve been represented in class actions, and they inundate her with responses. Then she goes on to cite this website, quote a number of comments from our editor, discuss proposed reforms that would redirect nationwide class suits to federal courts, and finally take up the much-recurring question: what’s the best way to discourage further legal excesses of this sort, to fill out and return the claims form, or toss it in the waste basket? (Susan Taylor Martin, “Is anyone not involved in a class-action lawsuit?”, St. Petersburg Times, Aug. 20). Also see Sarah Haertl, “Bill Limits Class-Action Fees for Attorneys”, Office.com, June 19.
August 23-24 — Funds that don’t protect. “Client protection funds” are supposed to reimburse persons who fall victim to thievery by their lawyers, but a National Law Journal investigation finds the funds “poorly endowed, stingy about payouts and virtually a secret, even to many lawyers, whose bar dues help finance them”. Many victims get just pennies on the dollar, or nothing at all: “cheated clients are getting twice betrayed by the legal professionals who should be protecting them”. (“Wronged Clients Face an Empty Promise in Some States”, Aug. 21).
August 23-24 — Fateful carpool. The consent of one’s spouse is no excuse for violating a restraining order obtained by her earlier, as Blaine Jeschonek has learned to his sorrow in Bedford, Pennsylvania. When Jeschonek, 44, arrived in court accompanied by his estranged wife Beth, Judge Thomas Ling promptly ordered him arrested and charged with criminal contempt for violating a court order forbidding him to have contact with her. “The Jeschoneks had traveled together to court to ask Ling to dismiss the restraining order. ‘I will not tolerate these orders being violated in my presence, under my nose, in my own courtroom,’ Ling said.” (“Pennsylvania man carpools to court and faces contempt”, AP/CNN, Aug. 14).
August 23-24 — Bankrupting Canadian churches? A remarkable legal story is unfolding in Canada, where down through the 1960s the country’s major churches, under an arrangement with the national government, administered residential schools for youths from Indian tribes. A significant share (perhaps 20 percent) of all school-age Indians attended these schools, thus being separated from native communities for much of their childhood. As ideas of multiculturalism made headway, the schools with their premise of assimilation to English culture came to be regarded as an embarrassing legacy, though at the time they had enjoyed the support of most Indian bands. In recent years adults who attended the schools in their youth have filed legal actions against the school proprietors, originally in small numbers over claims of past physical and sexual abuse, but more recently in much larger numbers, more than 7,000, with the predominant alleged injury among new cases being “cultural deprivation” years or decades earlier. Claimant recruitment by attorneys has played a major role in the expansion of the dispute; one lawyer alone, Tony Merchant of Regina, Saskatchewan, has assembled no fewer than 4,300 former school residents from across Western Canada to press claims. Although very few cases have yet reached court, early rulings suggest that the litigation may inflict money transfers and legal costs so large as to bankrupt or financially cripple some or all of the church defendants: the Anglican Church of Canada, United Church of Christ, Presbyterian Church of Canada and Roman Catholic Church of Canada (David Frum, “The dissolution of Canadian churches”, National Post, Aug. 19; “Tending the flock”, editorial, Aug. 16; Richard Foot, “Deputy PM to meet Church leader over bankruptcy crisis”, Aug. 16; Ian Hunter, “Paying for past injustice is unjust”, July 20; “Sins of the fathers”, editorial, July 17; Ferdy Baglo, “Canada’s Anglican Church Considers Possibility of Financial Ruin“, Christianity Today). (DURABLE LINK)
MORE RESOURCES: Law Commission of Canada; Anglican Church of Canada (main page; apology; in Oji-Cree syllabics (pdf)); United Church of Canada (FAQ, news); Turtle Island Native Network (resources, news); Diane Rowe for White Oppenheimer & Baker (plaintiff’s law firm); Jane O’Hara and Patricia Treble, “Abuse of Trust”, Maclean’s, June 26; “Residential Schools: An Essential Component of Genocide” (University of Victoria); Jay Charland, “St. Paul diocese part of $195M suit”, Western Catholic Reporter; Patrick Donnelly, “Scapegoating the Indian Residential Schools”, Alberta Report, Jan. 26, 1998, reprinted at Catholic Educator Resource Center.
August 23-24 — Welcome screenwriters. It’s hard to beat what goes on in courtrooms for sheer drama, which may be one reason at least two sites catering to professional screenwriters link to Overlawyered.com. CreateYourScreenplay.com gives us a nice encomium on its “Research” page (scroll down to “O”) and we also figure on the “Miscellaneous” links page of DailyScript.com.
August 21-22 — Tobacco- and gun-suit reading. National Journal columnist Stuart Taylor, Jr. pens a powerful critique of the tobacco litigation (“Tobacco Lawsuits: Taxing The Victims To Enrich Their Lawyers”, Aug. 1; quotes our editor). The American Tort Reform Foundation has published a review of the state tobacco suits, with particular attention to the questionable interrelationships between private for-profit lawyers and state attorneys general; the authors are well-known Wall Street Journal editorialist John Fund and Martin Morse Wooster (“The Dangers of Regulation Through Litigation: The Alliance of Plaintiffs’ Lawyers and State Governments,” March 30, available through ATRF). Prof. Michael Krauss, of George Mason University School of Law, has written an analysis for the Independent Institute exploring the manifold legal weaknesses of the recoupment actions filed by states and cities against both firearms and tobacco makers (“Fire and Smoke”, orderable through II). And we’ve now posted online our editor’s op-ed from last month on the Florida jury’s $145 billion punitive damage award in Engle v. R.J. Reynolds (Walter Olson, “‘The Runaway Jury’ is No Myth”, Wall Street Journal, July 18).
August 21-22 — A thin-wall problem. A suburban Chicago attorney with Tourette’s Syndrome, the neurological condition that causes its sufferers to experience tics often in the form of uncontrollable utterances or gestures, is going to collect upwards of $300,000 in settlement of a lawsuit against the condominium association of which he and his wife were members. Jeffrey Marthon, 54, agreed in exchange to move out and to drop his suit contending that the association had violated fair-housing laws by attempting to evict him; the association had filed a legal action complaining of the noise from his involuntary hooting and foot-stomping. “Several neighbors said in affidavits that they were losing sleep because of noises coming from Marthon’s third-floor condo,” and engineers said it was impossible to install soundproofing to mitigate the problem. (Dan Rozek, “Man with Tourette’s cuts deal vs. condo”, Chicago Sun-Times, Aug. 18).
August 21-22 — Fit to practice? The California Supreme Court, reversing a lower panel, has unanimously ruled against granting a law license to convicted felon Eben Gossage, a scion of an affluent San Francisco family who says he’s turned his life around and is fit to become an attorney notwithstanding an extensive record of past trouble with the law, most notably a manslaughter conviction for having brutally killed his own sister (Kevin Livingston, “Convicted Killer Denied California Bar Card”, The Recorder/CalLaw, August 16). At a June hearing, Justice Joyce Kennard “made it clear she was bothered by Gossage omitting 13 of his convictions on his Bar application.” (“How Long Is Long Enough?”, June 7). Several prominent Bay Area politicians had appeared as witnesses for Gossage, among them state senate president John Burton; after the one nonlawyer member of the lower disciplinary panel dissented from the panel’s decision that Gossage should be allowed to practice law, Burton introduced and helped secure passage of a bill which abolished that nonlawyer’s seat on the panel, sending, in the view of commentator George Kraw, an unsubtle message — “Don’t antagonize important legislators” (“Friends in High Places”, July 31; Mike McKee, “Court Sounds Leery of Bar Court Shuffle”, May 4; Mike McKee, “State Bar Court Braces for Upheaval”, June 29, reprinted at Kerr & Wagstaffe LLP site). Meanwhile, at least two lawyers implicated in California’s famous “Alliance” scandal are trying to regain their licenses to practice; the “Alliance”, a covert joint venture between plaintiffs’ and defense lawyers to manufacture and prolong legal claims for which the insurers would be obliged to employ legal counsel, bilked large insurance companies out of hundreds of millions of dollars in the 1980s (Mike McKee, “Scoundrel — or Scapegoat?”, The Recorder/CalLaw, June 13; more about Alliance (Kardos CPA site)).
August 21-22 — Watch those fwds. Last month “Dow Chemical, the No. 2 U.S. chemical company, fired about 50 workers and suspended another 200 for up to four weeks without pay, for sending or storing pornographic or violent e-mail messages. ” The “range of material” involved includes “stuff that would be in a swimsuit edition” as well as more offensive material, the company says; in a fit of mercy, it did not discipline workers who merely received such material as email and did not forward it to others. Under widely accepted interpretations of harassment law, companies that fail to take action against circulation of ribaldry in the workplace face possible liability for allowing a “hostile working environment”. (“Dow Scrubs 50 for Eyeing Porn”, Reuters/Wired News, Jul. 28). Workers who imagine that their email is private, readily deleted, and secure don’t seem to realize the current state of the law and the technology, says a risk-consulting division of law firm Littler Mendelson (Chris Oakes, “Seven Deadly Email Thoughts”, Wired News, Aug. 8). Nor are “anonymous” postings to bulletin boards really anonymous once the legal actors — including private lawyers — launch their subpoenas (Carl S. Kaplan, “In Fight Over Anonymity, John Doe Starts Slugging”, New York Times, June 2; Michael J. McCarthy, “Can Your PC Be Subpoenaed?”, ZDNet, May 24; Lauren Gard, “Yahoo Hit With Novel Privacy Suit”, The Recorder/CalLaw, May 15).
August 10 — Coffee-spill suits meet ADA. In Vallejo, California, a woman is suing McDonald’s, “saying she suffered second-degree burns when a handicapped employee at a drive-thru window dropped a large cup of hot coffee in her lap. …The suit said that the handicapped employee couldn’t grip the cardboard tray and was instead trying to balance it on top of her hands and forearms when she dumped the coffee on Aug. 25, 1999,” scalding Karen Muth, whose lawyer, Dan Ryan, told a local newspaper that she’s entitled to between $400,000 and $500,000. “We recognize that there’s an Americans with Disabilities Act, but that doesn’t give them the right to sacrifice the safety of their customers,” he said. (“Woman sues McDonald’s over spilled coffee”, AP/SFGate, Aug. 7). And British solicitors have organized 26 spill complainants into a group suit against the same chain over the overly piping nature of its beverages: “Hot coffee, hot tea and hot water are at the centre of this case. We are alleging that they are too hot,” said Malcolm Johnson of Steel and Shamash, a London law firm. (“McDonald’s faces British hot drink lawsuit”, Reuters/FindLaw, Aug. 2) (more on hot beverage suits: July 18; “Firing Squad”, Reason, May 1999 (scroll halfway down in piece); and resulting letters exchange, Aug./Sept. 1999 (scroll to last items), April 4).
August 10 — “Imperfect laws add to danger of perfect storms”. “In an ill-advised attempt to prevent overfishing in the [Gulf of Mexico], the government reduced the red snapper season to a very short nine-day opening” — a “snapper derby”. Unfortunately, menacing weather came up during that brief nine-day window, and snappermen were left with a choice of which risk to run, physical or economic. Most went to sea, “and at least two boats encountered life-threatening conditions. One boat was lost in raging seas off Louisiana.” Alaska suffered a series of avoidable accidents and fatalities under a similar “halibut derby” until it switched to a better system: the sort of individual transferable quotas often recommended by economists (Peter Emerson and Felix Cox, Dallas Morning News, July 25).
August 10 — “Justice, not plunder”. We thought we were hard-liners on the topic of excessive lawyers’ fees, but Washington Post columnist Robert Samuelson goes us one better by proposing a maximum limit of $1 million or $2 million a year as the most anyone could earn from lawyering in a year. It might sound less outlandish if we went back to the old idea of lawyers as “officers of the court” — i.e., a species of civil servants, even if more fancily dressed. (July 27).
August 10 — Welcome readers (especially Daves). Among the diverse sites we’ve noticed linking to us are: Dave Dufour’s site, from Elkhart, Indiana; gasdetection.com, website of “Interscan Corporation, manufacturer of toxic gas detection systems”, which names us “Mike’s Cool Site of the Week”; Bonehead of the Day Award (citing us for material, not naming us as the awardee!); Miss Liberty Film & TV World, Jon Osborne’s newsletter reporting on film and television events of libertarian interest; Dave’s Corner, published by a different Dave from the one above; Peter Brimelow’s vdare.org, with a line-up of authors critical of immigration and multiculturalism; Big Eye — Alternate News Center, assembling many anti-establishment links; Hittman Chronicle, by yet a third Dave, Dave Hitt, whose July number takes a caustic view of the recent Florida tobacco verdict; Adirondacks2000.com (we’re their current “Featured Internet Site”); and Wrisley.com, “An Electronic Magazine for Thinkers” out of South Carolina.
August 8-9 — Senator Lieberman: a sampler. “Miracles happen,” said the Senator on learning that he was going to be the Democratic pick for VP. (Ron Fournier, “Gore Picks Sen. Lieberman for VP”, Washington Post, Aug. 7). As far as legal reform goes, we’d have to agree — for him to be on the same ticket with Al Gore counts as nothing short of a miracle:
“In vetoing this bipartisan product liability reform, the President went against his own White House Conference on Small Business and members of his own party. … Connecticut Democrat Sen. Joseph Lieberman said, ‘the President is dead wrong about this bill.’ And no less a journalistic authority than the Washington Post called the President’s decision to veto the bill, ‘a terrible one.'” (Rep. Dave Hobson (R-Ohio) newsletter, May 3, 1996)
“In complaining about trial lawyers’ influence on the liability bill, Sen. Joseph Lieberman, D-Conn., told the Wall Street Journal: ‘This is a remarkable story of a small group of people who are deeply invested in the status quo who have worked the system very effectively and have had a disproportionate effect.'” (Dallas Morning News, March 28, 1996, available on Nexis, but not online)
“Mr. President, in my view, you can add the civil justice system to the list of fundamental institutions in our country that are broken and in need of repair. … Ultimately it is the consumers who suffer most from the status quo. …
“I did not always support a national or Federal approach to product liability reform or tort reform generally … What changed my mind was listening to people in Connecticut. …
“I would say that our current medical malpractice system is a stealth contributor to the high cost of health care. … There is a well regarded consulting firm called Lewin-VHI. They have stated that hospital charges for defensive medicine were as high as $25 billion in 1991. That is an enormous figure. Basically what they are saying is that as much as $25 billion of the costs — this is not paid by strangers out there, this is paid by each of us in our health insurance premiums — is the result not of medical necessity but because of defensive practice occasioned by the existing medical malpractice legal system.” (Lieberman floor statement, April 27, 1995, reprinted by Health Care Liability Alliance).
When the Senate (temporarily) voted by a one-vote margin to curb the gargantuan fees obtained by trial lawyers for representing states in the tobacco-Medicaid litigation, a step later blocked by opponents, Lieberman was one of four Democrats to buck the party’s trial lawyer supporters by voting yes (Action on Smoking and Health, June 17, 1998, citing New York Times and C-SPAN).
With Sen. Spence Abraham (R-Mich.), Lieberman introduced the proposed Small Business Liability Reform Act of 1999, which would limit the exposure of small businesses to punitive damages and joint liability for non-economic damages in most cases, limit the application of joint and several liability to small businesses, and make it harder to add wholesalers and retailers to lawsuits against manufacturers. The bill has had trouble attracting support from other Democrats, however (World Floor Covering Association website).
With Senator Mitch McConnell (R-Ky.) and Rep. Dick Armey (R-Tex.), Lieberman introduced the Auto Choice Reform Act, bitterly opposed by trial lawyers, which would encourage car owners to opt out from the “pain and suffering” lottery in exchange for lower rates. “According to Joseph Lieberman, a co-sponsor, ‘our auto insurance and compensation laws violate the cardinal rule I think those of us in the business legislating have a duty to follow: to draft our laws to encourage people to minimize their disputes, and to encourage those who do have disputes to resolve them as efficiently, as economically, and as quickly as possible.'” — Bionomics Institute, “Driving Them Crazy”, August 15, 1997, citing Congressional Record, April 22, 1997. Sen. Daniel Patrick Moynihan (D-N.Y.) also supports the idea (Dan Miller, “Auto Choice: Relief for Businesses & Consumers”, Joint Economic Committee).
“Jim Kennedy, press aide for Lieberman, indicated that Nader, a lawyer, is watching out for the interests of his profession. ‘What he’s left out is the trial lawyers’ lobby which is bankrolling the opposition. They have the most to lose and they are the ones making money out of the system,’ he said.” (quoted in States News Service, May 3, 1995, after Ralph Nader attacked the Senator for sponsoring liability reform; available on Nexis, but not online).
Addendum: Although a strong supporter of gun control in general, Lieberman joined Republicans and a minority of Democrats on a 1992 procedural vote in support of preventing the District of Columbia from using liability lawsuits as a means toward that end. (S. 3076, vote #152, July 27, 1992) (DURABLE LINK)
August 8-9 — Break in Florida tobacco-Medicaid fee case? Harvard professor Alan Dershowitz says he’s determined to press suit against the Florida lawyers who extracted $3.4 billion in legal fees in the state’s tobacco-Medicaid settlement, saying they promised him 1 percent, or $ 34 million (see July 17). Dershowitz says he’s acting as “a pro bono who intends to give most of the money to charities.” “Where does he get his numbers? They’re preposterous. He has an ego the size of a mountain,” said an attorney for the lawyer-defendants. “Suing me is a serious mistake,” said Pensacola lawyer Robert Kerrigan, of Dershowitz’s action; we’d call that tone intimidating, under the circumstances. “These guys have chutzpah,” Dershowitz said. “I don’t care how rich these guys are or how many judges’ campaigns [Robert] Montgomery contributes to, I’m fighting back.” And: “Now the public can finally see the inside of the cigarette lawyers industry.” We can’t wait, since the record-breaking Florida fee haul has been shrouded in much secrecy up to now (see April 12) (Cindy Krischer Goodman, “Harvard prof suing lawyers over tobacco settlement”, Miami Herald, Aug. 2).
August 4-7 — Republican convention finale. No mention of legal reform in W’s acceptance speech, but the topic did make its way into the earlier remarks from the podium by Jan Bullock, widow of Democratic Lt. Gov. Bob Bullock (gopconvention.com).
August 4-7 — Now that’s bread. A San Francisco jury has awarded $121 million in punitive damages, atop $11 million in compensatory damages, to 21 black workers at an Interstate Bakeries plant (see July 10). Among the charges were hostile work environment, being subjected to racial slurs, and lack of promotions; one worker testified that he hadn’t been allowed to take Martin Luther King Day off although white workers had been allowed time off to watch the San Francisco Giants play. The company is known for making Wonder bread and Hostess snack cakes. (“‘Wonder Bread’ Workers Get $121 Million in Lawsuit “, Reuters/Yahoo, Aug. 3; “Jury Awards Workers in Bread Case”, AP/FindLaw, July 31) Update: judge reduces award by $97 million (see Oct. 10).
August 4-7 — Update: Hirschfeld convicted, sentenced. Eccentric New York City real estate developer, politician and public figure Abe Hirschfeld has been sentenced to one to three years in prison after being convicted on charges of trying to have his business partner killed. Hirschfeld still faces separate retrial on tax fraud charges, following a jury deadlock after which a mistrial was declared; in that case, Hirschfeld created a sensation by handing each juror a check for $2,500, a step apparently not in violation of any court rule at that time (see Sept. 13, Sept. 17, 1999). The judge in the murder-for-hire case, however, explicitly barred Hirschfeld from bestowing any gratuities on jurors after the case’s conclusion. (Samuel Maull, “Real estate mogul gets sentence of 1 to 3 years”, Phila. Inquirer, Aug. 2; same, Phila. Daily News.)
August 4-7 — “Ease up on kids”. Salt Lake Tribune criticizes school safety hysteria and the resort to suspension or expulsion for behavior that once would have merited a trip to the principal’s office. “Utah’s Legislature passed a law this year requiring that secondary education students be expelled for a year if they bring even a fake weapon to school, and it allows no review process through which real threats can be separated from pranks.” (editorial, July 28)
August 4-7 — Losers should pay. Environmental groups’ use of the courts to seek delays in large-scale development projects — which can inflict huge financial losses through the costs of delay even if the challenges eventually fail on the merits — points up the case for loser-pays principles, including bonding where appropriate, as in a recent Northern California case, argues columnist and Hoover Institution scholar Thomas Sowell. “Of all the ways of making decisions, one of the most ridiculous is putting decisions in the hands of third parties who pay no price for being wrong.” (“Costs and Decisions”, TownHall.com, Aug. 2).
August 4-7 — Take that, .hk and .tw. A Chinese law firm, suing on behalf of a dissatisfied consumer, has hauled Japanese-owned cameramaker Canon into court because some of its subsidiaries’ promotional material, including CD packaging and a website, list Hong Kong and Taiwan as separate “countries” in which it does business. Although Taiwanese have lived for more than fifty years under a government different from that of mainland China, Beijing’s official posture is still that the island is part of one China. Canon (Hong Kong) has apologized in newspaper ads, but the Chongqing Hezong Law Firm says its explanation is unconvincing. (“Canon (under) fire: China sues over Web site’s calling Hong Kong, Taiwan countries”, China Online, Aug. 1)
August 3 — Jury orders “Big Chocolate” to pay $135 billion to obese consumers. Lawyers charged Hershey’s with knowingly adding nuts to lure helpless chocoholic buyers. Keep repeating to yourself: it’s just a parody. … it’s just a parody (for now). … it’s just a parody. The Onion, August 2 (via Arts & Letters Daily). Plus: recently launched legal spoof site, ScaldingCoffee.com, profiles not-quite-true courtroom controversies such as the one over “Tapster”, the new system that allows Internet sharing of dance step patterns, much to the economic detriment of Arthur Murray franchisees (July) (latest).
August 3 — Wednesday’s GOP and legal reform. How many distinct references to litigation reform have come up in the Republican convention proceedings? We counted four on Wednesday evening (all favorable): they came in speeches by California small business owner Hector Barreto, dotcom exec Christina Jones, and, of course, vice presidential nominee Dick Cheney, who praised Gov. George W. Bush for his success in passing legal reform (“Today the legal system [in Texas] serves all the people, not just the trial lawyers.”) Then there was the comment made by the representative of the state of Washington when its turn came in the roll call: in a pointed reference to the Microsoft case, she said the Evergreen State was in favor of “innovation, not litigation”. If you spotted other references, let us know.
August 3 — CSE event in Philly. Citizens for a Sound Economy, which has been calling attention on the campaign trail to legal-system excesses, will be holding an event in Philadelphia today featuring its giant-fish mascot “Sharkman,” a “Who Wants to be a Trial Lawyer Billionaire” contest and more. The purpose is to honor lawmakers and other officials from Alabama, Illinois, Texas, and Florida who’ve stood up to the litigation lobby in their states. Specifics: Thurs. Aug. 3, 2-5 p.m., Maui Entertainment Complex, Pier 53 N. Delaware Ave., Phila. (CSE website). See you there? Adds the CSE website: “On Sunday, Senator [John] McCain [R-Ariz.] invited Sharkman and CSE staff to attend a reception with all of Senator McCain’s national delegates. Senator McCain grew fond of Sharkman during the primaries, often inviting him on stage in New Hampshire and South Carolina.”
August 3 — And what were the damages? An unemployed 56-year-old Los Angeles machinist named Cornell Zachary says he was the victim of a phone-number mixup in which the British pop group Duran Duran mistakenly posted his phone number on the Internet “as the one to call for T-shirts, souvenirs and tickets.” He then was kept running to the phone day and night by a vast number of wrong-number calls from fans of the group. And what were the damages, you ask — since without damages a lawsuit isn’t much of a lawsuit? Well, Zachary’s lawsuit, filed last week, claims he suffered ‘life-threatening high blood pressure episodes,’ nerve damage, sleep disturbance, and permanent health problems … ‘They had me to the point where my doctor told me I could have a stroke.'” Notwithstanding that dire medical advisory, he didn’t ask the phone company to change his number: “I don’t think that I have to change my number,”‘ he explained. “I didn’t make the mistake. I had had the number already over a year.” His suit also asks punitive and exemplary damages and attorneys’ fees. (Sarah Tippit, “L.A. Man Sues Duran Duran for Posting Number on Web”, Yahoo/Reuters, Aug. 1).
August 2 — Tinkerbell trademark tussle. On Friday in federal court in Scranton, Penn., a company called New Tinkerbell Inc. of New York sued the Walt Disney Company for trademark infringement of the registered trademark “Tinkerbell”, of which it says it and its affiliates are the exclusive lawful owners and licensees. The gossamer-winged character, whose continued existence is made possible only by observers’ willingness to suspend their rational disbelief in her (which already gives her a lot in common with many phenomena of the legal system) dates back to J. M. Barrie’s children’s classic Peter Pan, which has now fallen out of copyright and into the public domain, but the New York company says that it obtained the rights to use her name in commerce in 1952, a year before Disney released its hugely popular movie Peter Pan. There followed a line of “Tinkerbell-emblazoned products for children,” including shampoos, glitter, hair bands, “scrunchies,” umbrellas, sunglasses, pencil kits, and many more; for a while, the complaint alleges, Disney itself bought and resold New Tinkerbell items in its stores, but then decided it wanted to enter the field itself, and has since used on its products such marks as “Tinkerbell, Tinker Bell, Tink, or a proxy for a female fairy.” The suit accuses Disney of unlawful use of “a female fairy character in interstate commerce”. (Roger Parloff, “Fairy Serious Business: Disney Accused of Misappropriating Tinkerbell”, Inside.com, July 31)
August 2 — Judge rebukes EPA enforcement tactics. “In a harsh rebuke to the federal Environmental Protection Agency‘s pursuit of criminal polluters, a judge has ruled the government unnecessarily harassed a Northbridge mill owner and pursued a case against him even though it didn’t have any credible evidence.” Following up on a tip from a former employee of the mill, which makes wire mesh used for lobster traps, a “virtual ‘SWAT team’ consisting of 21 EPA law enforcement officers and agents, many of whom were armed, stormed the [mill] facility to conduct pH samplings. They vigorously interrogated and videotaped employees, causing them great distress,'” wrote federal judge Nathaniel Gorton. Moreover, EPA in obtaining a search warrant apparently concealed evidence from its own testing indicating that the plant’s wastewater emissions may not have breached federal standards. “The case marks the first time in the region that a judge has ruled in favor of an application of the Hyde Amendment, a three-year-old federal law that allows an exonerated defendant to seek legal fees from the government if the criminal prosecution was ‘frivolous, in bad faith or vexatious.'” (David Armstrong, “US judge rules EPA harassed mill owner”, Boston Globe, Aug. 1).
August 2 — Clinton before trial lawyers: a footnote. Press reports had been contradictory about whether or not prospective disbaree Bill Clinton in his Sunday speech became the first sitting president ever to address the Association of Trial Lawyers of America (see July 31, Aug. 1). Molly McDonough of American Lawyer Media appears to clear up the discrepancy: the only other president to visit the organization was Lyndon Johnson in 1964, but he spoke to ATLA’s board of directors, which leaves Clinton as the first to appear before the organization’s general membership (“Clinton Addresses Trial Lawyers at Annual Bash”, Aug. 1).
August 2 — “Mugging victim ‘stupid,’ judge says”. A judge in Winnipeg, Canada, has caused an outcry by acquitting an alleged mugger and then lambasting the complainant for openly carrying money in a dangerous neighborhood. “‘What I am satisfied is that we have a very stupid civilian, who admits that he was stupid,’ said [Judge Charles] Rubin, who interrupted the Crown’s closing submission Tuesday to deliver his verdict. ‘If you walk around jingling money in your hand . . . it’s like walking in the wolf enclosure at the city zoo with a pound of ground beef in your hand. And it’s almost the same type of predators you’re going to find out there.'” The judge also advised the complainant to walk in future in the middle of the street for safety, rather than on the sidewalk. (Mike McIntyre, Winnipeg Free Press, July 20).
August 1 — Clinton’s trial-lawyer speech, cont’d. In his partisan-fangs-bared speech Sunday to the Association of Trial Lawyers of America, the president brought up the topic of vacant seats on the Fourth Circuit U.S. Court of Appeals, and accused Republican senators of deliberately not confirming black judicial nominees he’s proposed to that court simply because those nominees are black — which is to say, accused them of engaging in racism. (Neil A. Lewis, “President Criticizes G.O.P. for Delaying Judicial Votes”, New York Times, July 31). As Smarter Times points out (July 31), yesterday’s New York Times reported these rather incendiary charges and yet omitted to include any sort of response to them from Republican senators or anyone else, simply allowing Clinton to make them uncontradicted. For those interested in the issue on other than a demagogic basis, Ramesh Ponnuru at National Review Online wrote a piece July 17 adducing a sufficiency of non-racist reasons why senators might be leaving the seats vacant (other coverage in USA Today, New York Post).
However, the Times partially redeems itself by some original reporting on the exact nature of the differences between Democratic candidate Al Gore and Green Party candidate Ralph Nader. It reported that Nader, “who has been closely allied with trial lawyers on the issue of civil litigation rules, said Mr. Gore was allowing the president to take the heat of associating with the lawyers while he was reaping the benefits. ‘He’s just slinking around taking money like crazy from these guys, and at the same time he’s not really standing up for the civil justice system,'” said Ralph, who himself has steered a different course from Gore at least as to the latter course of conduct, since he’s known for his vocal defense of virtually every trial lawyer depredation yet invented.
As AP reports: “Common Cause, a non-partisan group that advocates campaign finance reform, calculates that trial lawyers gave $2.7 million to Democrats in 1999. That is about 1,000 times more than trial lawyers donated to Republicans last year, and twice the amount donated in the same period during the last election cycle.” (Anne Gearan, “GOP keeping minority judges off bench, Clinton says”, AP/Bergen County (N.J.) Record, July 31). However, you would be wrong if you imagine that Common Cause, as “a non-partisan group that advocates campaign finance reform”, might see cause for concern that those donations might not entirely further the public interest. After all, Common Cause recently named as its president Scott Harshbarger, former Democratic attorney general of Massachusetts, who in that office worked closely with trial lawyers and in fact bestowed on them a tobacco representation agreement which brought them an unprecedented fee bonanza. And now Mr. Harshbarger, newly speaking for Common Cause and quoted in the Times piece, ardently defends the particular special interest he has reason to know best, saying massive trial lawyer donations are no more than an appropriate way of leveling the playing field given that those whom the lawyers sue — which includes pretty much every other group in the economy — also donate a lot to politicians. In the new Common Cause universe, it seems, some special-interest influences on politicians are a lot more objectionable than others.
August 1 — “Lawsuits to fit any occasion”. According to the L.A. Times, a 43-year-old local attorney has been involved in 82 lawsuits on his own behalf since 1982. Robe rt W. Hirsh “sued the single mother he hired to stain the woodwork in his Hancock Park Tudor-style home, claiming she left some streaks on the wood. He sued his stockbroker for not getting him into Microsoft stock.” He sued a dissatisfied client to demand his fee, and then, when an arbitration panel instead awarded the client $25,000 against him, sued the lawyers who had represented him in the arbitration. “Hirsh even sued the synagogue where he was married, claiming that the religious elders had botched the catering of his wedding by, among other things, serving his guests cold vegetables and not giving his family all the leftovers. ‘Either he has the worst luck in the world, or he likes to sue,'” said Loyola law prof Laurie Levenson. Many of the suits have succeeded in bringing him settlements, but Hirsh (who also disputes the number of cases in which his critics say he has been involved) now faces a proceeding under California’s rarely used court rules against vexatious litigants, which could curb his activities in future. (“Davan Maharaj, “Lawsuits to Fit Any Occasion”. Los Angeles Times, July 29).
August 1 — Movie caption trial begins. Trial set to begin this week in a closely watched lawsuit in which Portland, Oregon, deaf activists have charged movie theater proprietors with violating the Americans with Disabilities Act because they haven’t installed elaborate captioning systems throughout the theaters (Kendra Mayfield, “Films Look to Captioned Audience”, Wired News, July 28). Meanwhile, the recording industry is concerned that a system installed to help the hearing-impaired at live concerts has become a prime vehicle for bootleggers to obtain concert tapes of unusually high quality for pirate sale; the ADA requires arenas to offer the assistive listening devices (Larry McShane, “Bootleggers Use Hear Aid to Record”, Yahoo/AP, July 30). And given the ADA’s many unintended consequences, outrageous results and manifest failures, Chicago Tribune columnist Steve Chapman wonders why tenth-anniversary press coverage of the act’s passage took such an overwhelmingly celebratory tone; his column quotes our editor (“The Other Side of the Disabled Rights Law”, July 30).
August 18-20 — Why the bad guys can’t stand John Stossel. The ABC News correspondent is the one TV reporter who again and again has exposed and ridiculed in devastating style the abuses of litigation and misconduct of lawyers, the excesses of scare-environmentalism, and countless instances of over- and mis-government (his hourlong special “The Trouble With Lawyers” a couple of years back is just one of many highlights; Stossel’s website at ABC). You can bet he’s made a long list of enemies in the course of doing this, and now, after a flub by his staff in a report on organic foods (for which he apologized last Friday on camera) there’s a well-organized campaign under way to take his journalistic scalp. That would reduce from one to zero the number of prominent contrarian TV voices on many of these issues, leaving in place, of course, the large amount of vigorous advocacy journalism from the point of view opposite to his. A recent New York Times roundup on the controversy quotes our editor (Jim Rutenberg and Felicity Barringer, “Apology Highlights ABC Reporter’s Contrarian Image”, Aug. 14); if you wonder what sorts of grossly misleading stories the network newsmagazines have run over the years without anyone’s feeling obliged to apologize for them, check out our article “It Didn’t Start With NBC Dateline“.
Now the Competitive Enterprise Institute has launched a website project devoted to documenting and exposing the campaign to get John fired, and to collecting letters, petition signatures, and other signs of support so that ABC will know how big a fan base he has rooting for him. (SaveJohnStossel.org, temporarily hosted at counterprotest.net/stossel).
August 18-20 — “Caffeine added to sodas aims to addict — study”. Because most consumers in a small study could not tell by taste whether a soda had caffeine in it or not, some researchers at Johns Hopkins arrived at the conclusion that the substance appears in sodas for the sole purpose of “addicting” consumers. (Most of the biggest mass-market sodas offer a choice of caffeinated and non-caffeinated versions; typically the latter is considerably less popular with consumers, who are presumably helpless to choose between the products, enslaved as they are by their addiction.) “The study appeared in Archives of Family Medicine, which is published by the American Medical Association”. (“Pop made to hook drinkers”, Reuters/Detroit News, Aug. 15; “Cola makers rip study on caffeine addiction”, AP/Spokane Spokesman-Review, Aug. 15). Advocates who have participated in the demonization of the tobacco industry and other businesses have frequently denied that the food industry is next on the list. It’s certainly on some folks’ list, however. Last year Yale University researcher Kelly Brownell said: “I have called the food environment in the United States toxic … The food companies and their advertisers are, in fact, luring our children into deadly behavioral patterns … Sooner or later, the food companies will be considered in the same way we regard the tobacco industry.” (“Regulation by Litigation: The New Wave of Government-Sponsored Litigation”, sponsored by Manhattan Institute, Chamber of Commerce of the U.S., and Federalist Society, June 22, 1999, conference proceedings)
August 18-20 — Weekend reading: Macaulay’s bicentenary. Your editor being a longtime admirer of the great classical liberal Thomas Babington Macaulay, his latest Reason column is devoted to appreciating the Whig historian’s written legacy on the 200th anniversary of his birth (Walter Olson, “Confessions of a Macaulay Fan”, Reason, August/September). An outfit called Electric Book is generous enough to webpost downloadable versions of many of his essays, free for individual use (zip files of PDF documents).
August 18-20 — Snakes’ rights not always paramount. Notwithstanding endangered species law, New York environmental authorities have decided not to press charges against 72-year-old Phillip Wheaton for killing a protected rattlesnake that had bitten him. Wheaton had just stepped from his car on a rural road in Cameron, N.Y. when the timber rattler bit him on the leg. Wheaton proceeded to hit the snake with his cane, injuring it; it was taken to a veterinary hospital where it later died. “I had a fight with that snake and I won,” Wheaton said later. “I didn’t cause no fight with that rattlesnake but he caused it with me.” (“Slain serpent”, AP/Fox News, Aug. 16). Last year (Oct. 12) we reported on a court’s ruling, also in New York, that a private landowner was obliged to host rattlers on its property; it ordered the tearing down of a “snake-proof” fence that had prevented the venomous creatures from approaching an area where humans were at work.
August 16-17 —Fortune on Lerach. Don’t miss this long but grippingly reported account of the rise, prosperity and current woes of the world’s most widely feared plaintiff’s securities lawyer, Bill Lerach of the west coast office of Milberg, Weiss. Full of remarkable material new to us (Peter Elkind, “The King of Pain Is Hurting”, Fortune, Sept. 4). Earlier this summer the same magazine published a colorfully detailed account of infighting among the troop of plaintiff’s lawyers angling to bring down the HMO industry (John Helyar, “They’re Ba-a-ack!”, Fortune, June 26).
August 16-17 — Okay to make lemonade. In Eustis, Fla., the city government has backed down from an inspector’s attempt to close down the lemonade stand that nine-year-old Rachel Caine runs across the street from her home. (Stephanie Erickson, “Eustis officials back down from order to make girl, 9, close lemonade stand”, Orlando Sentinel/Ft. Lauderdale Sun-Sentinel, Aug. 9). And in Longmont, Colo., 11-year-old “Soda Girl” Caitlin Rezac is back in business with her fizzy-refreshment stand after a run-in with the Boulder County health department, which had busted her for operating without a hand sink and $110 license; a local business donated the sink (search Denver Post archives on “Caitlin Rezac” (excerpts free, fee for full story); letter to the editor from county official Ann Walters, Boulder Daily Camera, Aug. 12 (scroll) (via Liberzine)).
August 16-17 — Olympics website’s accessibility complaint. The United States isn’t the only place where controversy is simmering over websites that “exclude” blind and other disabled users (by not adopting design and syntax that cater to them). At a recent hearing of the Human Rights and Equal Opportunity Commission in Australia, organizers of the Sydney Olympics defended themselves against charges that they hadn’t made their website usable by the vision-impaired. (Rachel Lebihan, “Olympics web site riddled with blind spots”, ZDNet, Aug. 9). America Online has reached a provisional settlement of the complaint filed against it by the National Federation of the Blind (see Nov. 5); the online service pledges to alter its software to bring it into fuller compatibility with screen reader technology and says it will train its employees to be sensitive to disabled users’ needs, in exchange for which NFB agrees to postpone suing for a year (Oscar S. Cisneros, “AOL Settles Accessibility Suit”, Wired News, July 28). Also: a clip we missed earlier on Congress’s February hearing on this topic: “Do Web Sites Violate the Americans with Disabilities Act?”, TechLawJournal, Feb. 10.
August 16-17 — “City gun suit shot down on appeal”. An appeals court has unanimously upheld a lower court’s dismissal of the city of Cincinnati’s lawsuit against the gun industry, likening that suit “to the ‘absurdity’ of suing the makers of matches because of losses from arson.” Prominent tort attorney Stanley Chesley (see June 1, March 30), representing the city, says he will appeal to the Ohio Supreme Court, which, ominously for the gunmakers, is currently controlled by a majority of justices well disposed to trial-lawyer arguments (see May 8, 2000; Aug. 17 and Aug. 18, 1999). (Dan Horn, Cincinnati Enquirer, Aug. 12; “Cincinnati can’t sue gunmakers for damages, court rules”, Reuters/FindLaw; text of decision (Cincinnati v. Beretta; retrievable Word document, not website).
August 16-17 — Web-copyright update: “Dialectizer” back up, “MS-Monopoly” down. The “Dialectizer“, a website that will translate another page of your choice into a variety of stagey dialects including Redneck, Cockney, Elmer Fudd and Pig Latin, is back up and running; we reported May 18 that the site had closed itself down for fear of being sued by businesses that might view such automated translation of their websites’ contents to be an infringement on their copyright. However, the “MS-Monopoly” parody site, which adapted elements from the popular board game Monopoly to comment on the Microsoft case (see Dec. 3) has been pulled down at the behest of lawyers for toymaker Hasbro, which puts out the real game: “MS-Monopoly.com ‘Cease and Desist’ed by Hasbro Lawyers“. In Forbes, Virginia Postrel says big companies are being shortsighted when they sic lawyers on fan sites that happen to use copyrighted material; News Corp.’s Fox properties, for example, have issued rumbling letters to online enthusiasts of cult shows such as The X-Files and Buffy the Vampire Slayer. (“The Shortsighted Site Busters”, Forbes/Reason Online, July 24).
August 15 — Plastic surgeons must weigh patients’ state of mind, court says. By a 3-2 margin, a New York court has allowed a claim to proceed against a cosmetic surgeon for conducting liposuction and abdominoplasty procedures on a patient while “fail[ing] to take into account that she suffered from Body Dysmorphic Disorder, or a preoccupation with a minor or imaginary physical flaw,” which meant that her consent to the procedures might not really count as informed. The patient made at least fifty visits to the doctor’s office. (Michael A. Riccardi, “Doctor Must Weigh Patient’s Mental State”, New York Law Journal, June 29; Renee Kaplan, “What Should Plastic Surgeons Do When Crazy Patients Demand Work?”, New York Observer, July 31). (Update June 11, 2001: she loses in New York’s highest court). The American Life League, an anti-abortion group, plans to take a leaf from its counterparts on the left and launch a systematic litigation campaign based on malpractice, consumer protection and other theories to shut down abortion clinics, while a conservative writer suggests approaching sympathetic state attorneys general and getting them to file a tobacco-style megasuit against abortion providers (Julia Duin, “Pro-life advocates aim to hit clinics in the pocketbook”, Washington Times, Aug. 10; Chuck Morse, “Big Tobacco and the Abortion Industry”, EtherZone, June 12). In Erie, Pennsylvania, a judge has declared a mistrial in a medical malpractice trial after a juror fainted during the trial and the defendant physicians revived him; the judge thought it necessary, lest this act of kindness be thought to have improperly prejudiced the proceedings, to restart the whole ordeal from scratch (“Doctors accused of malpractice aid juror who fainted”, AP/CNN, Aug. 11). And Overlawyered.com‘s page on law and medicine has been selected as a resource by the MedExplorer medical search site.
August 15 — The Veep that got away. It’s been widely reported that the other finalist in the process by which Al Gore picked his running mate was youthful Sen. John Edwards of North Carolina, who’d have been an equally noteworthy pick from litigation reformers’ perspective but for opposite reasons: after briefly representing record companies Edwards “moved to Raleigh, N.C., in 1981 and became a plaintiffs’ lawyer. That made him a millionaire. His fortune has been estimated at $20 million to $50 million.” Edwards proceeded to sink an estimated $10 million from his own pocket into his first and only political campaign, knocking off incumbent Republican Lauch Faircloth by 4 points. The Gore camp saw Edwards as telegenic, a skillful speaker and from an important state, but worried that his past could backfire among voters unhappy with trial lawyers for “doing things like suing doctors and winning big verdicts, which then drive up health care costs — and Edwards has been an incredibly successful one of that breed.'” (Michael Kramer, “Aides: Al Leaning Toward Edwards”, New York Daily News, Aug. 6).
August 15 — “Teams liable for fans’ safety”. A Colorado court of appeals has ruled that “sports teams must protect fans from known dangers — such as flying hockey pucks — unless lawmakers specifically exempt the teams from such liability.” Diane Smith, a lawyer for the now-defunct Denver DareDevils roller hockey team, said fans sit in the more hazardous area near the goal because they want the best view and “if you are going to sit where the action is, there are risks that go along with that”; appeal to the state’s high court is planned (Howard Pankratz, Denver Post, Aug. 4).
August 14 — Bush-Lieberman vs. Gore-Nader? Our editor contributes a guest column today (pinch-hitting for the vacationing Holman Jenkins) for Opinion Journal, the Wall Street Journal editorial page’s new online venture. The column discusses the strong record Sen. Joe Lieberman has compiled on litigation reform, the dilemma this poses for Vice President Gore, the wrath it calls down on his head from fellow Connecticut resident Ralph Nader, and the reasons why America is unusual in treating the pro-litigation position as “progressive” when it isn’t deemed to be such in much of the rest of the world (“Not All Liberals Love Lawsuits”, Aug. 14).
August 14 — “Disney must pay $240 million in sports park lawsuit”. A jury in Orlando “ruled Friday that the Walt Disney Co. stole the idea for a sports theme park from a former baseball umpire and his architect partner and must pay $240 million in damages,” a sum that the judge has discretion to increase because the jury found Disney acted with malice. “The notion that we had to steal the idea from the plaintiffs, an idea as old as ancient Greece, is preposterous,” said Disney general counsel Lou Meisinger, who said “the plaintiffs lawyers had tried to frame the case as ‘little people against big business’ and attempted to ‘inflame their prejudice.’ Plaintiffs’ lawyer Willie Gary”, well known for his work on the Loewen and Coke cases, “called Disney’s reaction ‘sour grapes.’ ‘We beat ’em and quite frankly we’ll beat ’em again if we need to,’ Gary said. ‘They’re crying like little babies.'” Another member of the team of plaintiff’s attorneys was Johnnie Cochran of O.J. Simpson case fame (CNN, Aug. 11; Beth Piskora, “Ump and architect sue Disney for $1.5 B”, New York Post, Aug. 10; “The Mouse Stole Idea”, Aug. 12; Yahoo Full Coverage).
August 14 — “Airbag chemical on trial”. Because of the airbag in her $30,000 Mercedes, Edith Krauss and her husband walked away from a 1997 crash that otherwise might have killed them. But Krauss is suing the luxury automaker anyway: she “contends that she has been plagued by throat ailments since the crash and they stem from her inhaling sodium azide, the chemical that allows for the forceful deployment of airbags.” The company says the concentration of the chemical in an airbag is too low to cause harm. Trial began last week in Elizabeth, N.J. (MaryAnn Spoto, Newark Star-Ledger, Aug. 8).
August 14 — Embarrassing Lawsuit Hall of Fame. Among recent lawsuits with details so embarrassing it’s a wonder anyone would file them: a Barberton, Ohio woman is suing an acquaintance in small claims court, saying he reneged on a promise to let her pay in sexual favors for part of the sale price for a truck (Stephanie Warsmith, “An unusual ‘contract’ is in court”, Akron Beacon Journal, Aug. 10); the Massachusetts Commission Against Discrimination has recommended dismissal of a complaint by an employee of the town of Plymouth, who had charged that a town official inflicted a hostile working environment on her by (among other things) subjecting her to flatulence, the commission reasoning that the passing of gas is not sexual in nature (Aug. 27, 1999; not online, case referred by UCLA law prof Eugene Volokh); and an Ottawa man has sued a city hospital, saying it misdiagnosed a very intimate injury committed to his person after he got on stage at a club and allowed an exotic dancer to sit on his chest (Glen McGregor, “Man sues hospital over testicle removal”, Ottawa Citizen/National Post, Aug. 8; more exotic dancer litigation: July 26, May 23 (also from Canada), Jan. 28).
August 11-13 — Litigation reform: the Texas experience. Citizens for a Sound Economy releases a report evaluating the results of the 1995 package of litigation reforms enacted in Texas under Gov. George W. Bush (more about package, from Governor’s office). Prepared by the Perryman Group of Waco, Tex., the report estimates that the reforms contributed significantly to reducing prices, raising personal incomes and stimulating economic development in the Lone Star State, with resulting benefits to the average Texas household of $1,078 a year. (“The Impact of Judicial Reforms on Economic Activity in Texas”, Aug. 9; executive summary links to PDF document).
Earlier, Texas insurance commissioner Jose Montemayor estimated that insurance buyers in the state would save a cumulative $2.9 billion by 2000 through mandated rate reductions linked to the lawsuit reforms: “Tort reform has been a tremendous success.” (“Commissioner says tort reform saves Texans $2.9 billion”, AP/Abilene Reporter-News, Oct. 2, 1999). Trial-lawyer-allied groups soon attacked the figures (Terrence Stutz, “Tort Reform Savings on Insurance Overstated”, Dallas Morning News, Dec. 21, 1999, reprinted at Kraft Law Firm site), and have gone to considerable lengths to publicize their case since then (see Richard A. Oppel Jr. and Jim Yardley, “Bush Calls Himself Reformer; the Record Shows the Label May Be a Stretch”, New York Times, March 26, 2000, excerpted at Democratic National Committee site; now 404 Not Found, but GoogleCache has preserved a version). For a riposte from the reform side, see Tom Beaty, “Legal reform has brought benefits to business”, Houston Business Journal, Feb. 21, 2000.
And see: Constance Parten, “Texas Holds Its Own in Insurance Rates”, Insurance Journal, June 26, 2000 (reform package wasn’t expected to bring major savings in auto insurance, as opposed to commercial and medical lines, but did so anyway); Lone Star Report, Aug. 27, 1999 (scroll halfway down for item); and Texans for Lawsuit Reform. Citizens Against Lawsuit Abuse, Houston, has posted a variety of materials on the controversy at its website, including a summary of reforms; Jon Opelt, “$3 Billion Hardly Chump Change“; and Cora Sue Mach, “Governor Bushwhacked over Lawsuit Savings“. (DURABLE LINK)
August 11-13 — “Ohio cracks down on keggers”. Under a new Ohio law, people who want to give parties for which they’ll buy five or more kegs of beer must register the location of the party in advance, wait five days to take possession of the kegs, and “allow liquor agents and police to enter the property to enforce state liquor laws, a requirement that bothers the American Civil Liberties Union and others.” Several states have or are considering similar laws. “Maryland has required keg registration since 1994 to allow the containers to be traced to the buyer and the seller, both of whom are held accountable if minors are caught drinking the alcohol.” (Liz Sidoti, AP/St. Louis Post-Dispatch, Aug. 8).
August 11-13 — Stay away, I’ve got a court order. Last year Maryland passed a new law allowing residents to apply for a civil restraining order to keep away people who they say have frightened or harassed them, a type of protection long available in matrimonial cases. Now the law is being used more than proponents expected, and not just by unmarried paramours and other intimates but as a way to settle — or escalate — spats among schoolmates, neighbors, co-workers and virtual strangers. (Donna St. George, “Residents Seeking ‘Peace’ Invade Md. Courts”, Washington Post, Aug. 7).
August 11-13 — “Not even thinking about” fees. With appeals and other legal maneuvering expected to last quite a while after a Miami jury’s $145 billion punitive damage award against tobacco companies, Knight-Ridder asked plaintiff’s attorney Stanley Rosenblatt about fees he might reap from the action. “It’s so far down the road that we’re not even thinking about it,” he claimed. (Uh-huh.) “Generally lawyers’ fees in class-action suits are about 25 to 30 percent of the award or settlement,” the news service reports, though it speculates that trial judge Robert Kaye might approve a smaller fee award than that, perhaps a mere $1 billion. Rounded off in the overall context, that would count as almost nothing, right? (“Smokers’ lawyers could get $1B — or zilch”, Knight Ridder/Norwalk (Ct.) Hour, July 26, not online). Plus: commentary by the Cato Institute’s Robert Levy (“Litigation Lunacy in Florida”, Cato Daily, July 31).
August 31 — Update: Alabama campaign-tactics case. A judge has sentenced prominent Alabama trial lawyer Garve Ivey to 30 days in jail after a jury convicted him on misdemeanor charges arising out of a smear campaign against the state’s Lieutenant Governor, Steve Windom (see Sept. 1 and Aug. 26, 1999). Shortly before the 1998 election, with Windom running a hard-fought race against a trial lawyer-backed opponent, a former prostitute and heroin addict named Melissa Myers Bush stepped forward with a lawsuit dramatically charging that Windom had raped and beat her seven years earlier when she worked for an escort service. Ivey, who was serving at the time as an official of the state trial lawyers association, paid to have 300 copies made of a videotape of Bush describing her charges, “which were distributed to news outlets across the state”. But as questions arose, Bush soon recanted and said she’d been paid to tell her story and that it was false. According to later testimony at trial, Bush accepted $2,700 from Birmingham businessman Scott Nordness, money that was later reimbursed by Ivey. Nordness was granted immunity by prosecutors seeking his testimony and charges were filed against Ivey and a private investigator who’d worked with him, Wes Chappell.
On June 22 a Mobile County jury acquitted Chappell of the charges and rendered a split decision in Ivey’s case, acquitting him on the felony count of bribing Bush to give false testimony while convicting him on two misdemeanor counts of witness tampering and criminal defamation. According to AP, the witness tampering charge arose from Ivey’s having gotten Nordness to sign a sworn statement after Bush’s lawsuit which, in prosecutors’ view, seemed to suggest that no money had changed hands in the case. Windom says he feels vindicated after two years and expects an apology from the state trial lawyers’ group, which he says tried to dodge the appearance of involvement in the smear efforts when trial testimony indicated the contrary. “The evidence clearly showed that there was a great deal of involvement at every stage. They need to come clean with the public and with their own members,” he said. (The AP coverage does not include a response from the trial lawyers’ group.) Ivey’s lawyers plan an appeal; still pending as well are civil suits that Ivey and Windom have filed against each other over the affair. Update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
SOURCES: “Ivey sentenced to 30 days in jail on witness tampering”, AP, August 9, not online, available on NEXIS; Garry Mitchell, “Chappell cleared, Ivey found guilty in Windom trial”, AP/Decatur Daily, June 23; Garry Mitchell, “Windom wants apology from trial lawyers”, AP state and regional wire, June 23, not online, available on NEXIS; Gary McElroy, “Former call girl testifies”, Mobile Register, June 16; “Chuck’s Page” (page by Chuck Harrison, a witness called in the case; scroll down halfway to “Just Desserts”).
August 31 — “Diva awarded $11M for broken dream”. Last week a Little Rock, Ark. jury awarded aspiring opera singer Kristin Maddox, now 23, $11 million “for injuries she suffered when an American Airlines jet went off a runway last year while landing in a thunderstorm”. Maddox was studying opera in hopes of becoming a star but says damage to her voice box and hands in the crash ruined her professional chances. Her lawyer, “Bob Bodoin, told jurors that no amount of money would make up for her pain and the loss of a career that could have rivaled opera stars Beverly Sills or Luciano Pavarotti’s”. However, a university voice teacher who evaluated one of Maddox’s pre-crash performances on video said she had a voice that, while “lovely”, was also too light to fill an auditorium in the Sills or Pavarotti manner. (AP/Philadelphia Daily News, Aug. 25; discussion on Professional Pilots Rumour Network boards).
August 31 — “Breaking the Litigation Habit”. The business-oriented Committee for Economic Development released a report in April which “calls our litigation system ‘too intrusive, too slow, and too expensive.’ The current system does not adequately or fairly compensate people for injuries; it imposes costs that threaten to impair economic innovation; and it undermines the trust and civility among our citizens that are essential to a well-functioning, democratic society.” The report goes on to endorse “Early Offers” and “Auto Choice” reforms, both aimed at providing rapid compensation for injuries without litigation (introductory page links to executive summary and full report in PDF format).
August 29-30 — Back-to-school roundup: granola bars out, Ritalin in. The Fallingbrook Community Elementary School, in an Ottawa suburb, has “banned all snacks except fruits and vegetables in an attempt to protect children with allergies”. Children in K-4 “have been asked not to bring cheese and crackers, dips, yogurt, candy bars or homemade muffins for snacks” for fear of triggering reactions in other kids with peanut, dairy, egg or other allergies. Fallingbrook parent Theresa Holowach would like to send cereal bars or homemade muffins with her eight-year-old son and kindergartner-to-be daughter but was willing to settle for rice cakes, cheese and crackers; her requests, however, “were refused on the grounds that the school would be legally liable if actions were not taken to limit the risks for children with serious allergies. ‘To me the school is going to have serious liabilities if my child chokes on a carrot because you’ve forced me to give her raw fruit and vegetables,’ said Ms. Holowach”. (Gina Gillespie, “School bans all snacks except fruit, vegetables”, Ottawa Citizen/National Post, Aug. 26).
Meanwhile, both the New York Law Journal and USA Today say there are other cases, besides the recently reported one near Albany, N.Y. (see July 26), in which schools are resorting to legal action to compel unwilling parents to dose their children with Ritalin, the controversial psychiatric drug. (John Caher, “New York Ritalin Case Puts Parents, Courts on Collision Course”,New York Law Journal, Aug. 18; Karen Thomas, “Parents pressured to put kids on Ritalin”, USA Today, Aug. 8). The Christian Science Monitor also reports on a different kind of legal pitfall that may await the non-medicating parent: in 1995 the Wisconsin Supreme Court upheld a $170,000 jury verdict against parents whose fourth-grade special-ed student attacked his teacher after they took him off medication that had reduced his aggressive behavior. (Katherine Biele, “When students get hostile, teachers go to court”, Christian Science Monitor, Aug. 22). However, the Wisconsin court stressed in that case that it was not imposing on parents a duty to keep the child on medication, but rather a lesser duty to warn the school if they decided to discontinue the drug (summary on Spedlaw.com website of Nieuwendorp v American Family Ins Co., 22 IDELR 551 (1995)).
The Monitor reports that educators are taking kids themselves to court over an ever-wider range of misconduct, especially defamation (see Sept. 28, Nov. 15). Most students are deemed “judgment-proof” but state laws specify a limited measure of parental financial responsibility for kids’ misbehavior, usually limited to such sums as $1,000 or $2,500, which can however escalate to unlimited amounts if the parents are deemed negligent, as in the Wisconsin case. And in Rhode Island, to update an earlier story (see April 19), two years of wrangling over whether Westerly High School sophomore Robert Parker was out of line to wear a rock band T-shirt displaying the numerals 666 have ended, with the school facing a cumulative bill for the dispute of $60,000. (American Civil Liberties Union/AP, July 6).
August 29-30 — Denny’s bias charges: let’s go to the videotape. Another day, another discrimination suit demanding money from the Denny’s restaurant chain on charges of racially based denial of service. But it so happened that a security video camera was running during the alleged Cutler Ridge, Fla. incident, and the story told by its tape was so at odds with the story the complainants were telling that their lawyer, Ellis Rubin of Miami, felt obliged to withdrew from the case for fear of facing sanctions if he continued. “In 1994, Denny’s settled a $46 million class action with hundreds of black customers who had alleged that they were refused service at the chain’s restaurants”; despite the diversity training it’s instituted since then it still faces many new public-accommodations suits, but its management vows to fight those that it considers opportunistic. (David E. Rovella, “Denny’s Serves Up a Winning Video”, National Law Journal, Aug. 24) (see also Sept. 29).
August 29-30 — Welcome Yahoo Internet Life readers. Last Friday’s installment of “Ask the Surf Guru” carried this nice accolade: “*** Special to Gwendolyn: Like Cassandra said in Mighty Aphrodite, “I see disaster. I see catastrophe. Worse, I see lawyers.” But better is seeing Walter Olson’s daily odes to odious lawyering at Overlawyered.com, where he chronicles how attorneys clog the drain of American life with lawsuits that redefine the word ‘frivolous.'” Thanks! (ZDNet/Yahoo Internet Life, Aug. 24 — final item).
August 29-30 — “Lawyers want millions as cut of Holocaust settlement”. “On April 12, 1997, Arthur Bailey, one of the dozens of lawyers who helped negotiate a $1.25 billion settlement finalized last month between Swiss banks and Holocaust survivors, bought a copy of the book ‘Nazi Gold’ by Tom Bower and spent 8.6 hours reviewing it. Cost to plaintiffs: $2,365, or $275 an hour.” Lengthy telephone conversations between lawyers and a half-hour interview granted by a lawyer to the Washington Post are among other outlays of lawyers’ time for which reimbursement is being sought in the $13.5 million fee request, which Elan Steinberg, executive director of the World Jewish Congress, described as “outrageous”: “We said from the beginning that the lawyers should be acting pro bono,” i.e., without compensation. (Steve Chambers, Newhouse News Service/Cleveland Plain Dealer, Aug. 15).
August 29-30 — Imagine if she’d had a photo of a gun too. Police in Davidson, North Carolina “are defending an officer’s decision to search a woman’s car for drugs after spotting a photo of a marijuana plant on the cover of a newspaper in her car.” The driver, when stopped at 1 a.m., had a copy of an alternative weekly in her car with a cover story on police use of helicopters against marijuana growers, and consented to the search request, police said. A journalism professor says carrying such material could not possibly be probable cause for a car search. Nothing unlawful was found in the vehicle. (“Police say photo of marijuana plant sufficient cause for drug search”, AP/Raleigh News & Observer, Aug. 25) (via Progressive Review).
August 28 — “Man killed in gas explosion told to clean up rubble”. “One day after a Brooklyn couple died in a gas explosion at their home, city officials fired off a letter to the dead husband insisting that he was responsible for immediately cleaning up the rubble.” On July 11 a massive blast leveled the home of Leonard Walit, 72, and his 66-year-old wife Harriet, who were buried under the rubble of the four-story brownstone with a third victim. “The responsibility to [repair or demolish the premises] is yours, and because of the severity of the condition, the work must begin immediately,” declared the form letter from building commissioner Tarek Zeid, which warned the deceased couple that if they delayed the city would perform the necessary work and bill them for the expenses. Critics say the city should have known better given that the blast made big headlines, and a spokesman for the Buildings Department has apologized. (AP/Yahoo, Aug. 26).
August 28 — Campaign consultants for judges. At $15,000 a pop it gets expensive fast to hire professional campaign help, but elected Florida judges increasingly feel they have to shell out for two, three or four of the hotshot local consultants — especially since if they don’t put them on retainer, they might just find themselves facing a challenger who has. It’s another reason reformers are hoping to move to an appointive system. (Tony Doris, “Full-Court Press”, Miami Daily Business Review, Aug. 23).
August 28 — “Relatives find ‘proof’ they own New York”. “Descendants of an 18th-century privateer are hoping that a copy of an ancient lease discovered in an attic in South Wales may finally prove that they are the rightful owners of the world’s most valuable piece of real estate,” reports London’s Sunday Times. “For 120 years the descendants of Robert Edwards have been trying to establish their rights to 77 acres of Manhattan on which now stand Wall Street, the New York Stock Exchange, [lower] Broadway and the World Trade Center.” And who’s to say they won’t succeed, given the enthusiasm shown by American courts for hearing Indian land suits (see Feb. 1), liability claims arising from the sale of products in the first years of the Twentieth Century, and perhaps, before long, slavery reparation cases as well? (Simon de Bruxelles, Sunday Times (London), Aug. 22).
August 25-27 — Mich. high court: tough on working (arsonist) families. As the nasty race for the Michigan Supreme Court heats up (see May 15, May 9, Jan. 31), opponents have rolled out television ads assailing three Republican justices as “antifamily” and biased toward business, on the strength of 43 decisions they’ve rendered that supposedly fit that pattern. However, when the Detroit Free Press‘s Dawson Bell looked into the details, he discovered that among the rulings being flayed as “antifamily” is one from last year denying insurance coverage to “a pair of convicted arsonists who burned down a row of buildings”. A look at the rest of the cited court decisions likewise “indicates that the content provided in the ads borders on the bogus.” For example, in six cases the ad-makers counted government defendants in lawsuits — that is to say, the taxpayers — as “corporations”; they omitted a half dozen cases that obviously didn’t fit their pattern, while including “at least seven cases in which an individual won, or a corporation wasn’t a party;” and they included fourteen cases in which the court’s Democrats agreed with the outcome. Where’s the state Democratic Party getting the money for its big ad buy trashing the GOP judges? It’s hard to know for sure, but trial lawyers are said to have privately pledged millions to defeat the trio at the polls (see May 9). (Dawson Bell, “Party politics enters high court race”, Detroit Free Press, Aug. 3; Kathy Barks Hoffman, “Chamber runs ads to counter Democrats’ attacks on justices”, AP/Detroit News, Aug. 17; Charlie Cain, “High court race will be nasty, pricey”, Detroit News, June 23). Opponents of the three justices have mounted not one but two websites: AgainstMichiganFamilies.com and The Justice Caucus. But in fact “Michigan’s Supreme Court may be the nation’s best example of a court committed to interpreting the law — not manufacturing it,” contends National Review Online contributor Peter Leeson (“Michigan’s Supreme Court Is Supreme”, Aug. 22). That makes it a notable contrast with the high court in neighboring Ohio, where a narrow majority of justices last year (see Aug. 18, 1999) used activist reasoning to strike down legislated liability limits, and are now being heavily backed by trial lawyers in their re-election bids (Thomas Bray, “A Nation of Laws, or of Judges?”, Opinion Journal, Aug. 17).
August 25-27 — “Albuquerque can seize homes hosting teen drinking”. Under a bill approved by the city council of New Mexico’s largest city, you can now look forward to losing your house if the neighbors complain about repeated gatherings of tippling teens while you’re away. (Kate Nash, Albuquerque Tribune/Nando Times, Aug. 23).
August 25-27 — “How do you fit 12 people in a 1983 Honda?” Brazen, well-organized car-crash fraud rings thrive in the Big Apple, according to a series of New York Post exposés this summer. Other states are well ahead of New York in enacting legislation aimed at curbing fraud; meanwhile, the “Pataki administration is in court trying to overturn a decision in which the trial lawyers and medical profession successfully sued to have the state’s existing no-fault regulations thrown out.” June 25 (related story); June 26; June 27; July 16 (related story); August 6). Last year New York City recouped $1 million following the racketeering and fraud convictions of attorney Morris Eisen, a one-time major filer of injury claims who prosecutors say introduced fraudulent evidence in at least 18 cases, including three against the city (press release from office of Comptroller Alan Hevesi, May 18, 1999).
August 25-27 — Retroactive crash liability. Following years of lobbying by trial lawyers, Congress passed and President Clinton signed in April a new law retroactively raising the amounts payable in lawsuits to relatives of those killed in three air crashes over international waters, including the loss of TWA Flight 800. The little-publicized passage, “nestled on page 71 of a 137-page budget bill … carries an effective date of July 16, 1996” — almost four years before its signing. It abolishes old limitations on lawsuits set by the historic Death on the High Seas Act so as to expand the sums recoverable for “non-pecuniary” losses, such as the “care, comfort and companionship” of the deceased. The result is to ensure substantially higher payouts in litigation over the TWA crash, for which that airline and Boeing are being sued, as well as the Atlantic downings of Swissair Flight 111 and EgyptAir Flight 990. Sen. Slade Gorton (R-Wash.), who represents Boeing’s home state, had argued to no avail that it was unfair to expand the companies’ obligation retroactively. (Frank J. Murray, “Retroactive move allows big awards in TWA crash”, Washington Times, Aug. 24).
August 23-24 — Class actions: are we all litigants yet? If you’re a member of American Airlines’ frequent-flier plan, you may have received by now a class action settlement notice in which the airline agrees to make legal amends for the atrocity of having raised from 20,000 to 25,000 miles the point level needed to claim a free coach round-trip. After slogging through the legal jargon, St. Petersburg Times columnist Susan Taylor Martin finds that the “most that ‘class members’ in my category can expect is this: a 5,000-mile discount on a frequent-flier award or a certificate for $75 off on a ticket costing at least $220. Wow. But let’s read on. In return for negotiating this settlement, the lawyers representing me and other plaintiffs will apply for fees ‘not to exceed $25 million.’ No wonder we’re such a lawsuit-happy nation.”. She asks her newsroom colleagues if they’ve been represented in class actions, and they inundate her with responses. Then she goes on to cite this website, quote a number of comments from our editor, discuss proposed reforms that would redirect nationwide class suits to federal courts, and finally take up the much-recurring question: what’s the best way to discourage further legal excesses of this sort, to fill out and return the claims form, or toss it in the waste basket? (Susan Taylor Martin, “Is anyone not involved in a class-action lawsuit?”, St. Petersburg Times, Aug. 20). Also see Sarah Haertl, “Bill Limits Class-Action Fees for Attorneys”, Office.com, June 19.
August 23-24 — Funds that don’t protect. “Client protection funds” are supposed to reimburse persons who fall victim to thievery by their lawyers, but a National Law Journal investigation finds the funds “poorly endowed, stingy about payouts and virtually a secret, even to many lawyers, whose bar dues help finance them”. Many victims get just pennies on the dollar, or nothing at all: “cheated clients are getting twice betrayed by the legal professionals who should be protecting them”. (“Wronged Clients Face an Empty Promise in Some States”, Aug. 21).
August 23-24 — Fateful carpool. The consent of one’s spouse is no excuse for violating a restraining order obtained by her earlier, as Blaine Jeschonek has learned to his sorrow in Bedford, Pennsylvania. When Jeschonek, 44, arrived in court accompanied by his estranged wife Beth, Judge Thomas Ling promptly ordered him arrested and charged with criminal contempt for violating a court order forbidding him to have contact with her. “The Jeschoneks had traveled together to court to ask Ling to dismiss the restraining order. ‘I will not tolerate these orders being violated in my presence, under my nose, in my own courtroom,’ Ling said.” (“Pennsylvania man carpools to court and faces contempt”, AP/CNN, Aug. 14).
August 23-24 — Bankrupting Canadian churches? A remarkable legal story is unfolding in Canada, where down through the 1960s the country’s major churches, under an arrangement with the national government, administered residential schools for youths from Indian tribes. A significant share (perhaps 20 percent) of all school-age Indians attended these schools, thus being separated from native communities for much of their childhood. As ideas of multiculturalism made headway, the schools with their premise of assimilation to English culture came to be regarded as an embarrassing legacy, though at the time they had enjoyed the support of most Indian bands. In recent years adults who attended the schools in their youth have filed legal actions against the school proprietors, originally in small numbers over claims of past physical and sexual abuse, but more recently in much larger numbers, more than 7,000, with the predominant alleged injury among new cases being “cultural deprivation” years or decades earlier. Claimant recruitment by attorneys has played a major role in the expansion of the dispute; one lawyer alone, Tony Merchant of Regina, Saskatchewan, has assembled no fewer than 4,300 former school residents from across Western Canada to press claims. Although very few cases have yet reached court, early rulings suggest that the litigation may inflict money transfers and legal costs so large as to bankrupt or financially cripple some or all of the church defendants: the Anglican Church of Canada, United Church of Christ, Presbyterian Church of Canada and Roman Catholic Church of Canada (David Frum, “The dissolution of Canadian churches”, National Post, Aug. 19; “Tending the flock”, editorial, Aug. 16; Richard Foot, “Deputy PM to meet Church leader over bankruptcy crisis”, Aug. 16; Ian Hunter, “Paying for past injustice is unjust”, July 20; “Sins of the fathers”, editorial, July 17; Ferdy Baglo, “Canada’s Anglican Church Considers Possibility of Financial Ruin“, Christianity Today). (DURABLE LINK)
MORE RESOURCES: Law Commission of Canada; Anglican Church of Canada (main page; apology; in Oji-Cree syllabics (pdf)); United Church of Canada (FAQ, news); Turtle Island Native Network (resources, news); Diane Rowe for White Oppenheimer & Baker (plaintiff’s law firm); Jane O’Hara and Patricia Treble, “Abuse of Trust”, Maclean’s, June 26; “Residential Schools: An Essential Component of Genocide” (University of Victoria); Jay Charland, “St. Paul diocese part of $195M suit”, Western Catholic Reporter; Patrick Donnelly, “Scapegoating the Indian Residential Schools”, Alberta Report, Jan. 26, 1998, reprinted at Catholic Educator Resource Center.
August 23-24 — Welcome screenwriters. It’s hard to beat what goes on in courtrooms for sheer drama, which may be one reason at least two sites catering to professional screenwriters link to Overlawyered.com. CreateYourScreenplay.com gives us a nice encomium on its “Research” page (scroll down to “O”) and we also figure on the “Miscellaneous” links page of DailyScript.com.
August 21-22 — Tobacco- and gun-suit reading. National Journal columnist Stuart Taylor, Jr. pens a powerful critique of the tobacco litigation (“Tobacco Lawsuits: Taxing The Victims To Enrich Their Lawyers”, Aug. 1; quotes our editor). The American Tort Reform Foundation has published a review of the state tobacco suits, with particular attention to the questionable interrelationships between private for-profit lawyers and state attorneys general; the authors are well-known Wall Street Journal editorialist John Fund and Martin Morse Wooster (“The Dangers of Regulation Through Litigation: The Alliance of Plaintiffs’ Lawyers and State Governments,” March 30, available through ATRF). Prof. Michael Krauss, of George Mason University School of Law, has written an analysis for the Independent Institute exploring the manifold legal weaknesses of the recoupment actions filed by states and cities against both firearms and tobacco makers (“Fire and Smoke”, orderable through II). And we’ve now posted online our editor’s op-ed from last month on the Florida jury’s $145 billion punitive damage award in Engle v. R.J. Reynolds (Walter Olson, “‘The Runaway Jury’ is No Myth”, Wall Street Journal, July 18).
August 21-22 — A thin-wall problem. A suburban Chicago attorney with Tourette’s Syndrome, the neurological condition that causes its sufferers to experience tics often in the form of uncontrollable utterances or gestures, is going to collect upwards of $300,000 in settlement of a lawsuit against the condominium association of which he and his wife were members. Jeffrey Marthon, 54, agreed in exchange to move out and to drop his suit contending that the association had violated fair-housing laws by attempting to evict him; the association had filed a legal action complaining of the noise from his involuntary hooting and foot-stomping. “Several neighbors said in affidavits that they were losing sleep because of noises coming from Marthon’s third-floor condo,” and engineers said it was impossible to install soundproofing to mitigate the problem. (Dan Rozek, “Man with Tourette’s cuts deal vs. condo”, Chicago Sun-Times, Aug. 18).
August 21-22 — Fit to practice? The California Supreme Court, reversing a lower panel, has unanimously ruled against granting a law license to convicted felon Eben Gossage, a scion of an affluent San Francisco family who says he’s turned his life around and is fit to become an attorney notwithstanding an extensive record of past trouble with the law, most notably a manslaughter conviction for having brutally killed his own sister (Kevin Livingston, “Convicted Killer Denied California Bar Card”, The Recorder/CalLaw, August 16). At a June hearing, Justice Joyce Kennard “made it clear she was bothered by Gossage omitting 13 of his convictions on his Bar application.” (“How Long Is Long Enough?”, June 7). Several prominent Bay Area politicians had appeared as witnesses for Gossage, among them state senate president John Burton; after the one nonlawyer member of the lower disciplinary panel dissented from the panel’s decision that Gossage should be allowed to practice law, Burton introduced and helped secure passage of a bill which abolished that nonlawyer’s seat on the panel, sending, in the view of commentator George Kraw, an unsubtle message — “Don’t antagonize important legislators” (“Friends in High Places”, July 31; Mike McKee, “Court Sounds Leery of Bar Court Shuffle”, May 4; Mike McKee, “State Bar Court Braces for Upheaval”, June 29, reprinted at Kerr & Wagstaffe LLP site). Meanwhile, at least two lawyers implicated in California’s famous “Alliance” scandal are trying to regain their licenses to practice; the “Alliance”, a covert joint venture between plaintiffs’ and defense lawyers to manufacture and prolong legal claims for which the insurers would be obliged to employ legal counsel, bilked large insurance companies out of hundreds of millions of dollars in the 1980s (Mike McKee, “Scoundrel — or Scapegoat?”, The Recorder/CalLaw, June 13; more about Alliance (Kardos CPA site)).
August 21-22 — Watch those fwds. Last month “Dow Chemical, the No. 2 U.S. chemical company, fired about 50 workers and suspended another 200 for up to four weeks without pay, for sending or storing pornographic or violent e-mail messages. ” The “range of material” involved includes “stuff that would be in a swimsuit edition” as well as more offensive material, the company says; in a fit of mercy, it did not discipline workers who merely received such material as email and did not forward it to others. Under widely accepted interpretations of harassment law, companies that fail to take action against circulation of ribaldry in the workplace face possible liability for allowing a “hostile working environment”. (“Dow Scrubs 50 for Eyeing Porn”, Reuters/Wired News, Jul. 28). Workers who imagine that their email is private, readily deleted, and secure don’t seem to realize the current state of the law and the technology, says a risk-consulting division of law firm Littler Mendelson (Chris Oakes, “Seven Deadly Email Thoughts”, Wired News, Aug. 8). Nor are “anonymous” postings to bulletin boards really anonymous once the legal actors — including private lawyers — launch their subpoenas (Carl S. Kaplan, “In Fight Over Anonymity, John Doe Starts Slugging”, New York Times, June 2; Michael J. McCarthy, “Can Your PC Be Subpoenaed?”, ZDNet, May 24; Lauren Gard, “Yahoo Hit With Novel Privacy Suit”, The Recorder/CalLaw, May 15).
January 15-16 — “Blatant end-runs around the democratic process”. “If I had my way, there’d be laws restricting cigarettes and handguns,” writes former Secretary of Labor Robert Reich, a prominent liberal, in this widely noted piece in the new American Prospect. But “[f]ed up with trying to move legislation, the White House is launching lawsuits to succeed where legislation failed. The strategy may work, but at the cost of making our frail democracy even weaker.”
The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.” The federal gun case prefigures liability for the makers of such products as “alcohol and beer, fatty foods, and sharp cooking utensils.”
“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”. (Robert Reich, “Smoking, guns”, The American Prospect, Jan. 17).
January 15-16 — “Public paranoia, and other losses”. George Williams of Cut Off, Louisiana is suing the Fair Grounds Corp. and assorted other defendants over two winning trifecta bets he placed at an off-track betting parlor which paid $80.80 and $36.60 when the television monitor suggested that the actual payout should be $121.20 and $41.80 respectively. The suit charges the race track and various other defendants with wire fraud, mail fraud, theft and breach of contract, and claims damages for “mental anguish and emotional distress, loss of enjoyment of life, embarrassment, humiliation, loss of sleep, public paranoia, and other losses.” Williams’ attorney, Corey Orgeron of Cut Off, “said he simply wants to get to the bottom of the discrepancies between what Williams thought he won and what he was actually paid. ‘It very easily could be nothing more than simple negligence,’ Orgeron said. ‘I don’t think there was any criminal intent.'” Then why’d he throw in the charges of fraud, theft, and so on? (Joe Gyan Jr., “Man accuses OTB parlor of fraud”, Baton Rouge Advocate, Jan. 8) (& letter to the editor, Jan. 16, 2001).
January 15-16 — Poetry corner: Benjamin Franklin. Thanks to Tama Starr for suggesting this one:
The Benefit of Going to LAW
Two Beggars travelling along,
One blind, the other lame,
Pick’d up an Oyster on the Way
To which they both laid claim:
The matter rose so high, that they
Resolv’d to go to Law,
As often richer Fools have done,
Who quarrel for a Straw.
A Lawyer took it strait in hand,
Who know his Business was,
To mind nor one nor t’other side,
But make the best o’ th’ Cause;
As always in the Law’s the Case:
So he his Judgment gave,
And Lawyer-like he thus resolv’d
What each of them should have;
Blind Plaintiff, lame Defendant, share
The Friendly Laws’ impartial Care,
A Shell for him, a Shell for thee,
The Middle is the LAWYER’S FEE.
— Benjamin Franklin, Poor Richard’s Almanack, 1733 (& see Jan. 26-27 update).
January 15-16 — Welcome HealthScout visitors. In an article on the “Internet addiction” defense (see Jan. 13-14) and other creative legal theories, the online health news service concludes: “If you wonder whether America’s legal system is getting out of control, check out Overlawyered.com (yes, that’s its real name) to read more about the Columbine case and other questionable legal tactics.” (Serena Gordon, “‘The Web Made Me Do It!'”, HealthScout, Jan. 13). Check out our subpage on law and medicine.
January 13-14 — Latest excuse syndromes. A Florida teenager accused of making a threat of violence in an email to Columbine High School was suffering from “Internet intoxication”, his lawyer plans to argue. Michael Ian Campbell was “role-playing” when he sent a message threatening to “finish” what Eric Harris and Dylan Klebold began in their massacre last April, according to Miami attorney Ellis Rubin. In earlier cases, Rubin offered “television intoxication” as a defense for a teenager eventually convicted of murdering an elderly neighbor, and defended a woman who eventually pleaded guilty to prostitution by saying that the antidepressant Prozac had turned her into a nymphomaniac. Meanwhile, a black Pennsylvania man accused of bank robbery is offering an insanity defense, saying that he had been driven to mental derangement by the racism of the white culture around him. “Police said [Brian] Gamble dressed as a woman when he went into the bank on July 3 and robbed tellers at gunpoint.” (Steve Gutterman, “Internet Defense in Columbine Case”, Washington Post, Jan. 12; “Robbery suspect claims racism made him insane”, AP/CNN, Dec. 23).
January 13-14 — “Litigation Bug Bites Into Democracy”. “Fueled by the success of the class-action war on Big Tobacco, class-action ‘lawfare,’ if you will, is also now being waged against — among others — gun manufacturers, makers of lead paint, Microsoft, the health maintenance organization industry, makers of genetically altered seed, the vitamin industry and the airlines.” Chicago Tribune editorial also points out, regarding charges that American businesses poured too much money into averting even minor Y2K glitches, that of course they were terrified out of any reasonable cost-benefit calculation: “it wasn’t just fear of the millennium bug. It was fear of lawyers waiting to pounce. Didn’t spend enough money to fix your computers, eh? Created a public safety problem, did you? Surely you knew your negligence would disrupt us. We’ll see you in court.” (editorial, Jan. 10).
January 13-14 — Huge jump in biggest jury verdicts. Survey by Lawyers’ Weekly USA finds the ten biggest jury awards to individual plaintiffs approached an aggregate $9 billion in 1999, nearly tripling from the amount in 1998. “Something totally unparalleled in history is going on in our legal system,” says the weekly’s publisher, not without a touch of magniloquence. Besides the Anderson (Chevy Malibu) verdict against GM, set by the jury at $4.9 billion and reduced by a judge to $1.1 billion (see Dec. 16, Aug. 27, July 10 commentaries), the other billion-dollar case was an award of $1.2 billion to the family of 32-year-old Jennifer Cowart, who died of burn injuries after a go-cart accident at a Pensacola, Fla. amusement park. (AP/FindLaw, Jan. 11).
January 13-14 — Watch your speech in Laguna Beach. The use of slurs, catcalls and other “hate speech” on the street is not in itself unlawful, but police in Laguna Beach, Calif. have begun documenting episodes of such verbal nastiness anyway on the theory that perpetrators often “graduate” to physical violence later on — a sort of gateway theory, as they call it in the drug war. Police Chief James Spreine said the database of hate-speech incidents will help his department identify suspects in serious crimes — raising the danger that constitutionally protected speech, although not to be punished itself, will bring with it something akin to official suspect status when unknown parties commit bias crimes later on (Mayrav Saar and Barbara Diamond, “Laguna Beach police will document hateful speech”, Orange County Register, Jan. 12).
January 13-14 — “Americans Turn To Lawyers To Cure Nation’s Social Ills”. Uh, speak for yourself, would you mind, please? Last week’s flattering news-side Wall Street Journal profile of class-action impresario Michael Hausfeld (anti-guns, anti-HMOs, anti-biotech) got the most basic premise wrong about the class action biz when it said that “more and more frequently, they [referring to “people” or “society”] turn to courts when the traditional avenues of politics or activism seem obstructed.” But the “people” don’t hire class action lawyers; more typically those lawyers hire themselves, and if necessary go out and find a representative plaintiff to sue for. Of course these lawyers would love to establish that their activities simply coincide with what the public wants them to do, but why is the Journal‘s news side lending them a hand by assuming what is to be proven? (Paul Barrett, “Americans Turn To Lawyers To Cure Nation’s Social Ills”, Wall Street Journal, Jan. 4)
January 13-14 — Your fortune awaits in Internet law. Five years ago this Ohioan was toiling away as a computer operator for a sleep clinic, but now he’s moved on to a career in the fast-growing world of Internet law — representing a client who cybersquatted on such domain names as “dolphins.com” and “jets.com” and now wants major bucks from the football folks on the grounds that they interfered with his sale of the names. “Mr. DeGidio sees such issues as fertile ground for dispute.” (George J. Tanber, “Web challenges kindle this attorney’s interest”, Toledo Blade, Jan. 10).
January 13-14 —Overlawyered.com announcement list now hosted at ListBot. It was getting too big to be managed any other way — besides, this way you can volunteer fun demographic information about yourself. To join the list, look for the red Listbot button in the column at left and enter your email address.
January 13-14 —Correction: surname of Pennsylvania AG. Our January 10 report mistook the surname of Attorney General Mike Fisher of Pennsylvania. We’ve fixed it now. Our apologies.
January 12 — Finally! Reform may be in the wind for New York City’s patronage-ridden courts, following a burgeoning scandal in Brooklyn. Two top officials resigned last month from the law committee of the Brooklyn Democratic Party, complaining that despite their “unquestioned loyalty” to the party they’d been cut out of lucrative court assignments. The letter painted a damning picture of the operations of the city’s notoriously buddy-buddy system of fiduciary appointments, by which judges appoint clubhouse lawyers to fee-intensive positions managing the estates of decedents, orphans, failed businesses, foreclosed properties and other entities that can’t tend to their own affairs. Mayor Rudy Giuliani promptly called for reform to purge the system of its continuing machine taint, and now the state’s chief judge, Judith Kaye, has announced that she’s appointing an investigator with subpoena power to uncover improprieties and make the fiduciary appointment process worthy of public confidence. If that works, our friend Augeas has some stables that need cleaning out. Update Dec. 20, 2001: investigation results in report exposing abuses.
SOURCES: Alan Feuer, “2 Brooklyn Lawyers, Ex-Insiders, Outline a Court Patronage System”, New York Times, Jan. 5; Thomas J. Lueck, “Giuliani Urges Chief Judge to End Patronage in Courts”, New York Times, Jan. 6; Winnie Hu, “Political Favoritism by Judges Faces an Investigation”, New York Times, Jan. 11 (all Times links now dead); John Caher, “NYS Courts to Probe Judicial Appointments of Lawyers”, New York Law Journal, Jan. 11; Tracey Tully, “Judge To Probe Patronage”, New York Daily News, Jan. 11; Frederic U. Dicker and Maggie Haberman, “Top Judge Orders Probe of B’klyn Patronage Scandal”, New York Post, not dated.
January 12 — Disabled accommodation in testing. Sunday’s L.A. Times notices the trend: “The number of students who get extra time to complete the SAT because of a claimed learning disability has soared by more than 50% in recent years, with the bulk of the growth coming from exclusive private schools and public schools in mostly wealthy, white suburbs.” (Kenneth R. Weiss, “New Test-Taking Skill: Working the System”, Los Angeles Times, Jan. 9; see our editor’s “Standard Accommodations“, Reason, February 1999.) The U.S. Department of Justice has sued the Law Schools Admissions Council for allegedly following overly rigid rules in responding to physically disabled applicants’ requests for extra time on the Law School Admissions Test. “We are extremely disappointed that the Department of Justice has decided to litigate this matter and even more disappointed that they issued a press release about the lawsuit before serving us with the complaint,” says the Council’s president. (Shannon P. Duffy, “Disabled Students Denied Accommodation to Take LSAT, Suit Says”, The Legal Intelligencer (Philadelphia), Dec. 9). Columnist Robyn Blumner isn’t the only one reminded of the Kurt Vonnegut story, “Harrison Bergeron”. (“The high cost of equality: our freedom”, St. Petersburg Times, Dec. 19).
January 12 — Ontario judge okays hockey-fan lawsuit. Justice Michel Charbonneau ruled that a lawsuit by season-ticket holders against player Alexei Yashin (see Oct. 20 commentary) can proceed even though the law in the area is “relatively undeveloped”. “This is groundbreaking because this is the first time we can examine an athlete’s state of mind regarding fans,” said attorney Arthur Cogan. “Does he ever think about fans’ interests?” Next up: lawsuits by inconvenienced customers against workers who go out on unauthorized strikes? (Kevin Allen, “Yashin to face fans’ discontent”, USA Today, Jan. 6; “Judge: Fans’ lawsuit against Yashin can proceed”, CBS SportsLine, Jan. 5).
January 12 — Warn and be sued. “When Gwinnett County police officer Gordon Garner III told clinical psychologist Anthony V. Stone during a fitness-for-duty interview that he had had a vision of killing his captain, and thoughts about killing eight to 10 others including the chief and a county commissioner, Stone took it seriously.” He “consulted a lawyer for the Georgia Psychological Association, Susan Garrett, who advised him he had a duty to warn the individuals Garner had named”, according to court papers. Two weeks after the initial interview, he did warn them — walking right into a lawsuit from Garner for breach of confidentiality which culminated last month in a jury award of $280,000. Sued if you do, sued if you don’t? “In previous reported cases in Georgia, mental health professionals have been sued for failing to warn third parties that they might be in danger; Stone was sued for issuing that precise warning.” (Trisha Renaud, “Ex-Cop Wins Rare Confidentiality Case”, Fulton County Daily Record, Jan. 5).
January 11 — Health plans rebuffed in bid to sue cigarette makers. Now we find out! Helping close the door on the premise of the state Medicaid suits (after that $246 billion horse has already escaped from the barn), the Supreme Court yesterday let stand lower-court rulings denying union health plans the right to sue tobacco companies to recoup smoking-related health outlays. (“Union health plans lose round with cigarette makers”, AP/FindLaw, Jan. 10; Joan Biskupic, “Court Rejects Union Tobacco Suits”, Washington Post, Jan. 11). For a brief run-down of why these third-party payor claims have no law on their side, we recommend Judge Frank Easterbrook’s enjoyably abrasive 7th Circuit opinion, issued in November, dismissing suits filed by union funds and Blue Cross/Blue Shield plans in Illinois.
January 11 — Microsoft temps can sue for stock options. “In another victory for temporary workers at Microsoft, the Supreme Court today let stand a ruling that greatly expanded the number of employees who could sue the software giant to purchase stock options and get other benefits.” If you’re an employer who was counting on the old notion of freedom of contract to hold temps and independent-contractor employees to the benefits they bargained for, be afraid. (James V. Grimaldi, “High court rules 15,000 Microsoft temps can sue”, Seattle Times, Jan. 10; Dan Richman, “Microsoft ‘Permatemps” Win”, Seattle Post-Intelligencer, Jan. 11) (see also Aug. 19 commentary).
January 11 — “Update from the Year 2050”. The protagonist of this 1984-like tale wakes up to tepid home-brewed coffee: “Today, no house could be programmed to prepare scalding fluids. No ice cubes either: People choked on them and died. As Plaintiff in Chief Rodham Bush liked to say, ‘Extremes are unhealthy.'”. It was in the 00’s decade that the lawyers really took over: “By piling lawsuit atop lawsuit, the attorneys could bankrupt any company that tried to fight them….Politicians had discovered that by joining in the lawsuits, the government could take a cut of the settlements.” Now there was just one big company left, McNikeSoft, which efficiently settled hundreds of thousands of suits a day on the Litigation Exchange, and which the lawyers refrained from bankrupting because that would end the game. “Profits flowed efficiently from the real economy directly to the attorneys. Everybody was happy.” Hurry up and read this new satire by Jonathan Rauch before the folks he skewers find some way to sue him for writing it (National Journal, Jan. 7 — see Reason archive)
January 11 — Can they get a patent on that? “Two top executives and two high-level officers at a consulting firm that serves lawyers and insurance companies were indicted by a federal grand jury [in November] on charges of designing a computer program that automatically inflated the bills it sent to clients.” The indictment charges that a computer programmer at the firm, S.T. Hudson International Inc. of Wayne, Pa., “developed a program he called the ‘gooser’… which automatically multiplied every hour worked by a consultant by 1.15 and then added an extra half hour to the total hours,” with resulting overpayments by clients and affiliated companies totaling more than $320,000. (Shannon P. Duffy, “Consulting Firm Indicted for Inflating Bills Sent to Lawyers”, Legal Intelligencer (Philadelphia), Nov. 30).
January 11 — “Dear Abby: Please help…” “…I fell in love with a married man. He claimed he loved me. My husband caught us and now has filed for divorce. My lover called it quits and ran back to his wife.
“Can I sue my lover for breach of promise because he promised to get a divorce and marry me?” — Destroyed in the U.S.A.
“Dear Destroyed: I recommend against initiating such a lawsuit.”
— An entry, reprinted in its entirety, from “Dear Abby“, January 2.
January 11 — Welcome, Yahoo and About.com visitors. Our page on overlawyered schools has recently won listings at Yahoo “Full Coverage: Education Curriculum and Policy” and J. D. Tuccille’s popular Civil Liberties section at About.com.
January 10 — Pokémon litigation roundup. The Burger King Corporation last month recalled about 25 million pull-apart plastic balls containing the cartoon characters, which had been distributed as premiums with childrens’ meals, after a young child apparently suffocated on half of one of them. The company offered a small order of french fries in exchange for each returned ball, which did not save it from class action lawyers in Dallas who dashed at once to court, their named client a local mother whose son was entirely unharmed by the balls but who (or so the premise of the suit went) considered the french fries inadequate compensation for the toys’ return. (“Burger King Hit With Pokémon Lawsuit”, Reuters/FindLaw, Dec. 30; Jenny Burg, “Dallas Mom Sues Burger King Over Poke Balls”, Texas Lawyer, Jan. 5).
In other Pokémon litigation news, showman Uri Geller, whose act is best known for his purported ability to bend spoons by the power of remote mind control, is threatening to sue the makers of the cards over the inclusion of the character Kadabra, which is shown wielding a spoon and which boasts “special mental powers: It plagues bystanders with a mysterious pain in the brain'”, to quote the New York Post. Japanese children are said to have nicknamed the character “Uri Geller”; “There’s no way that they’re allowed to do this,” Geller says his lawyer told him. (Lisa Brownlee, “Pokémon card trick makes magic man mad”, New York Post, Dec. 30). And the American Lawyer has now given a write-up to the recent imbroglio (see Oct. 13 commentary) in which class-actioneers Milberg Weiss Bershad Hynes & Lerach filed a lawsuit charging that the trading cards are a form of unlawful gambling, without realizing that a company it represented owned the licensing rights to the characters — with the result that it sued its own client for treble damages for alleged racketeering. (Sherrie Nachman, “Cartoon Conflicts”, American Lawyer, Dec. 20) (earlier Pokémon coverage: Dec. 16, Oct. 13, Oct. 1-3).
January 10 — Pennsylvania tobacco fees: such a bargain! “One lawyer spent 12 minutes reading the Wall Street Journal and billed $62. Another charged $290 for the hour he took identifying and ordering books.” Lawyers’ bills like that might stand in need of a little revising, you might think — but in the case of the Pennsylvania tobacco fees the revision was upward, from $7.1 million to a negotiated deal of $50 million. On a per-capita basis that still ranks among the lowest tobacco fees in the country, but eyebrows have been raised by the fact that the prominent and generally business-oriented law firms that handled the work for the state, Buchanan Ingersoll of Pittsburgh and Duane, Morris & Heckscher of Philadelphia, were selected in what critics say was not an open or competitive process, and happened to be major campaign contributors of Attorney General Mike Fisher, the one doing the selecting (Fisher also made the key decisions in the eventual negotiated fee settlement). “Obviously,” says one critic, Philadelphia attorney Lawrence Hoyle, Jr., “it was a political kind of deal.”
“The $50 million that Duane, Morris and Buchanan Ingersoll will share over the next five years dwarfs the combined total of the Ridge administration’s bills for outside legal counsel last year: about $35 million to 241 law firms, with none getting more than $2.3 million.” And by the time Pennsylvania sued, other states had developed the legal theories on which the case rested. Tobacco-fee zillionaire Joseph Rice, who represented many states in the affair, agrees that the late-filing Keystone State did not face as much legal risk as states that filed earlier, but says: “I don’t think we should quibble about it.” But then, he would say that, wouldn’t he? (Glen Justice, “In tobacco suit, grumblings over legal fees”, Philadelphia Inquirer, Oct. 4)(& see Oct. 24, 2002).
January 10 — Back pay obtained for illegal aliens. Scoring an early win for its new policy of backing lawsuits by undocumented workers over the loss of jobs it was unlawful for them to hold in the first place, the federal government has extracted a $72,000 settlement from a Holiday Inn Express Hotel and Suites in Minnesota on behalf of nine illegal Mexican immigrants. The National Labor Relations Board and Equal Employment Opportunity Commission had charged the hotel with firing the workers because they were leading a union organizing drive, along with other employment and labor law infractions. The workers are still in the country and are resisting a deportation order. (“Hotel Settles Illegal Aliens Case”, AP/FindLaw, Jan. 7) (see Oct. 29, Oct. 28 commentary).
January 8-9 — OSHA at-home worker directive. No wonder the AFL-CIO spoke favorably of this abortive (see Jan. 6, Jan. 5) proposal; as recently as the 1980s it was calling for an outright ban on telecommuting. Communications Workers of America president Mort Bahr, for example, warned that allowing stay-home employment was dangerous “particularly if that worker wants to work at home”. (Quoted in James Bovard, “How Fair Are Fair Labor Standards?”, Cato Inst./Regulation mag.) “Traditionally, unions have opposed telecommuting/work-at-home programs because they fear that such programs represent a return to cottage industry piecework. A distributed workforce makes it more difficult for unions to organize, represent members, and police collective bargaining agreements”. (“Telecommuting and Unions”, Telecommute America California Style).
Curiously, the only newspaper we could find that commented favorably on the new OSHA intervention was Silicon Valley’s own San Jose Mercury News (link now dead) (cynics might point out that since at-home tech workers in Bakersfield, Boise and Bangalore directly compete with the face-to-face Valley culture, they’re not exactly the Merc‘s constituency). At other papers it was a more or less uniform hail of dead cats: the Washington Post, USA Today, Wall Street Journal, Hartford Courant (“Bureaucrats Gone Berserk”), Los Angeles Times, Dallas Morning News, Boston Globe, Chicago Tribune, Detroit News, Cincinnati Post, Denver Post, Washington Times, Arizona Republic, Birmingham News, as well as Sen. Kit Bond, the American Electronics Association (EE Times) and commentators Steve Chapman (quotes our editor), Dick Feagler, Marjie Lundstrom, Bruce Harmon (Bridge News), and Ken Smith (many of these links via Junk Science)(many links now dead).
When the OSHA letter hit the nation’s front pages, reports the Washington Post, “A number of companies immediately put on hold plans to expand telecommuting privileges to employees”. But the letter was hardly a frolic or detour on the part of some low-level Munchkin: the agency spent two years on it, and it was “considered a declaration of existing policy by OSHA officials”. Among the possible real-world effects of the letter, the Post quotes a Labor Department official as saying, is to have been “used by courts to make it easier to hold employers accountable for injuries that occur in home offices” — i.e., in litigation. And “since Labor Department officials had originally regarded the letter [as] a statement of existing policy, it is unclear whether withdrawing the letter had much practical effect.” (Frank Swoboda, “Labor Chief Retreats on Home Offices”, Washington Post, Jan. 6)
January 8-9 — Right to win unlimited carnival prizes. Florida’s Busch Gardens has put a limit of ten a year on the number of prizes — stuffed animals, football jackets and the like — that its patrons can win at its carnival games. One of the park’s frequent patrons, Herman James, is so adept at the games that he says he makes a side business of reselling the many prizes he wins. Now Mr. James is suing the park, saying the ten-prize-a-year limit is unfair to him. The park denies that its limit is directed specifically at Mr. James. (“Man sues Florida’s Busch Gardens for the right to win unlimited prizes”, AP/Court TV, Jan. 5)
January 8-9 — Shenanigans on the bayou. Someone — who was it? — posed as a staff person with the clerk of court’s office and placed calls to potential jurors’ residences, inquiring about their plans, while a multimillion-dollar asbestos case was going through its jury-selection stage this fall in Plaquemine, La. Soon ugly charges were flying back and forth between Exxon Corp. and prominent Dallas plaintiff’s firm Baron & Budd. The case has been referred to the Office of Disciplinary Counsel, which regulates the state’s lawyers, but it’s expected to be at least a year before the ODC completes its investigation. A year? They sure take their time down there (Angela Ward, “Baron & Budd’s Bayou Blues”, Texas Lawyer, Nov. 11).
January 8-9 — No warning given to cousin-spouses. 22-year-old Leslie Zambrana and her husband Alfredo are seeking millions of dollars in a lawsuit against the University of Miami School of Medicine, Jackson Memorial Hospital and a health clinic for failing to warn them that their daughter might be born with Down’s Syndrome, the genetic disorder whose effects include mental retardation. The suit contends that even though Leslie told the clinic’s physician that she and her husband, the baby’s father, are first cousins to each other, she was not administered a recommended “triple screen” blood test for high-risk mothers that might have detected the syndrome and caused her to seek an abortion. The couple’s grandparents are also first cousins to each other. (Jay Weaver, “Married cousins sue over baby’s disability”, Miami Herald, Jan. 3).
January 7 — Hire that felon, or else. Our editor’s December Reason column, now online, looks at what happened after the state of Wisconsin passed a first-of-its-kind law forbidding employers in most circumstances from discriminating against job applicants on the grounds of those applicants’ criminal records. Among the consequences: the cash settlement won by the notorious “Halloween killer” from a company that declined to hire him on his release from prison, and a case where the Milwaukee school system learned it was not free to deny a job to a man convicted of felony child endangerment. (Walter Olson, “Reasonable Doubts: Felon Protection”, Reason, Dec. 1999) (see also our Sept. 24 commentary).
January 7 — Protests just aren’t what they used to be. We reported in our November 3 installment on how flag-burning protesters in at least one sizable American city (Las Vegas) are now legally required to take out advance environmental permits — smoke emissions into the atmosphere, and all that. Now John Leo, in a U.S. News column on the way many campus newspapers have faced intimidation and thefts of their stock after printing material that offends identity groups, tells what happened after “the Ohio State Lantern [ran] a comic strip poking fun at the women’s studies department….A noisy crowd took their protest to the front porch of cartoonist Bob Hewitt and attempted to burn a bra, but thanks to consumer protection regulations, the flame-retarding brassiere failed to ignite.” (John Leo, “The 1999 Sheldon”, U.S. News, Jan. 3)
January 7 — GQ on Gov. Bush, Karl Rove and litigation reform. The new January issue of GQ profiles Karl Rove, key strategist in the George W. Bush campaign and “easily the team’s most pivotal player after W. himself.” Aside from the intrinsic interest of the following passage, it allows our editor to get away with more shameless self-promotion about how his book The Litigation Explosion (buy it now!) gets read in high places:
“Of the four issues he ran on in ’94 [education, welfare, juvenile justice, tort reform], I can honestly say I played a role in only one of them,” Rove told interviewer Robert Draper. “I’m a huge tort-reform advocate, and I said, ‘See what you’ve talked about here — a thread of responsibility runs through all of these. We have a society where people are being held responsible for their actions not to the degree of their responsibility but to the degree of their monetary worth, and someone’s life’s work can disappear overnight because he happens to have deep pockets and gets hit by junk and frivolous lawsuits.’ And I gave him Wally Olson’s book [The Litigation Explosion] and a couple of others. He had feelings about the topic, but he hadn’t thought about it. And look — that’s the way the best candidates are. They need people around them to execute the mechanics of the campaign, the tactical considerations . And the strategy is born out of their heart, soul and gut.” (Robert Draper, “W’s Brain”, GQ, Jan. 2000 — not online)
January 6 — “Accord tossed: Class members ‘got nothing'”. A panel of the Seventh Circuit U.S. Court of Appeals has thrown out a settlement in a class-action suit over the mailing by Equifax Check Services Inc. of allegedly unlawful debt collection letters. Judge Frank Easterbrook, joined by Judges Richard Posner and Ilana Diamond Rovner, said the settlement provided no tangible benefit for the 214,000 class members while funneling fees, later determined to be $78,000, to the lawyer for the class. Equifax agreed to stop using a form letter and to donate $5,500 to a law school consumer clinic; “Crawford and his attorney were paid handsomely to go away; the other class members received nothing (not even any value from the $5,500 ‘donation’) and lost the right to pursue class relief,” Judge Easterbrook wrote. (opinion, Cases Nos. 99-1973 & 99-2122, decided January 3; Patricia Manson, “Accord tossed: Class members ‘got nothing'”, Chicago Daily Law Bulletin, Jan. 4)
January 6 — Haunted house too scary. “A woman suing Universal Studios contends the theme park operator’s annual Halloween Horror Nights haunted house attraction was too scary and caused her emotional distress.” Cleanthi Brooks, 57, says that when she and her granddaughter were visiting the Florida park in 1998, an employee wielding a (chainless) chainsaw chased them toward an exit, with the result that they slipped on a wet spot and suffered unspecified physical injuries. (Tim Barker, “Universal fall leads to lawsuit”, Orlando Sentinel, Jan. 5; “Woman sues haunted house over injuries, emotional distress”, AP/FindLaw, Jan. 5)
January 6 — OSHA backs off on home office regulation. Moving quickly to nip mounting public outrage, Secretary of Labor Alexis Herman now explains that the Occupational Safety and Health Administration never intended to bring home working conditions under full-fledged federal regulation — why, the idea never even crossed their minds! The advisory letter to that effect has been withdrawn, but Republicans on the Hill are promising hearings. (“Labor Department does about-face on home office letter”, AP/CNN, Jan. 5; see yesterday’s commentary)
January 6 — Backyard trash burning. Researchers from the Environmental Protection Agency and the New York State Department of Health report that the burning of ordinary trash by households, still a common practice in many rural areas, is an unexpectedly important likely source of release into the atmosphere of polychlorinated compounds such as dioxin, long a subject of regulatory scrutiny because of their potential toxicity. A family of four burning trash in a barrel on their property “can potentially put as much dioxin and furan into the air as a well-controlled municipal waste incinerator serving tens of thousands of households”. (“Backyard Burning Identified As Potential Major Source Of Dioxins”, American Chemical Society/Science Daily, Jan. 4)
January 5 — Beyond parody: “OSHA Covers At-Home Workers”. “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site, according to a Labor Department advisory,” reports the Washington Post. The policy covers not only telecommuters but even the parent who briefly takes work home to be with a sick child. “Although the advisory does not provide specifics, in effect it means that employers are responsible for making sure an employee has ergonomically correct furniture, such as chairs and computer tables, as well as proper lighting, heating, cooling and ventilation systems in the home office.” Employers may also be responsible for identifying and repairing such hazards as, for example, rickety stairs that lead down to a basement home office. They “must also provide any needed training to comply with OSHA standards, and may have to ensure that the home work space has emergency medical plans and a first-aid kit.”
The new directive “makes sense”, says AFL-CIO health and safety director Peg Seminario: “Employers have to provide employees a workplace free from hazards.” Pat Cleary, vice president for human resources policy at the National Association of Manufacturers, takes a different view: “This is nuts”. And at Slate “Breakfast Table”, Matt Cooper is almost equally succinct: “This is one of those regulatory rulings that sets liberalism back a generation.” Washington lawyer Eugene Scalia calls the development “part of a string of recent initiatives intended to court union leaders as the presidential primaries approach.”
Sources: Frank Swoboda and Kirstin Downey Grimsley, “OSHA Covers At-Home Workers”, Washington Post, Jan. 4; Slate “Breakfast Table”, Jan. 4 (third item); “Workplace Rules Protect Home Office”, AP/FindLaw, Jan. 4; “Workplace Safety Rules Cover Telecommuters — OSHA”, Reuters/Excite, Jan. 4; Eugene Scalia, “Gore, Unions Invite OSHA to Your Home” (op-ed), Wall Street Journal, Jan. 5 (online subscription required).
Sequel: faced with mounting public outrage, the Department of Labor announced within 24 hours that it was withdrawing the new directive and rethinking its policy (see January 6 commentary)
January 5 — Calif. state funds used to compile tobacco “enemies list”. The Daily News of Los Angeles reported last month that the Americans for Nonsmokers Rights Foundation, a Berkeley advocacy group, has received $1.2 million from the state of California over the past four years to track and counter critics of “tobacco control”. Among its activities: “[m]onitoring people who attended and spoke on tobacco issues at city council meetings in cities throughout the state”, “[i]nvestigating a federal judge in North Carolina who issued a ruling in a case involving second-hand smoke,” and “[i]ncorrectly accusing John Nelson, a spokesman for former Assembly Speaker Curt Pringle, of being on the payroll of the tobacco industry. After Nelson complained, the foundation apologized.”
A state official acknowledges that the private foundation has been asked to monitor groups that have “interfered in tobacco control activities” — such “interference” taking the form, for example, of opposing municipal smoking-ban ordinances. Steve Thompson, vice president for government affairs of the California Medical Association, called the program “a political surveillance operation on people that this group perceived as unsympathetic to the anti-smoking movement.” Among those who learned that his name was on the resulting lists was Los Angeles attorney Bradley Hertz, who led the opposition to an anti-smoking ordinance in Long Beach but says he was erroneously listed in the advocacy group’s reports as a participant in pro-tobacco efforts on a statewide level; Hertz says that in his view public funds should not be used to “spy on citizens”. Jon Coupal, president of the Howard Jarvis Taxpayers Association, went further, charging that the dossier-compiling “smack[ed] of Gestapo tactics…. Taxpayers are actually financing an abuse of government power.” However, some on the other side dismissed the criticism and said they found nothing improper about the program. “To protect the public interest, there must be independent monitoring of these front groups — the job cannot be left to newspapers or public officials,” said Sen. Tom Hayden (D-Los Angeles).
In North Carolina, many attorneys “leapt to the defense” of U.S. District Judge William Osteen, who the Nonsmokers Rights group targeted with an exposé after he handed down a 1998 ruling overturning a federal report on secondhand smoke. “To me it’s just one more example of a focused interest group trying to intimidate judges,” said the recently retired chief justice of the N.C. Supreme Court, Burley Mitchell. “It’s part of the meanness that’s crept into public life at all levels.”
Sources: Terri Hardy, “Smokers’ Spy Tax; Using Tax Funds for ‘Enemies List’ Not What Public Intended, Critics Say”, Daily News (Los Angeles), Dec. 6; and “Group Assailed for Sloppy Work; Man Says Organization Hurt His Reputation When it Got Facts Wrong”, sidebar to above, same date (fee-based archive, search Daily News file on “Nonsmokers Rights Foundation”); same, reprinted as “Tax-funded group had ‘enemies list'”, Orange County Register, Dec. 6 (fee-based archive, see above); David Rice, “Lawyers back N.C. judge on anti-smoking group’s ‘hit’ list”, Winston-Salem (N.C.) Journal, Dec. 9, link now dead. See also “Tobacco industry influence and income on decline in California”, press release, Oct. 12, for an account of “research” at the Univ. of California, S.F., into constitutionally protected advocacy and campaign contributions from tobacco sources; the work was funded by the tax-supported National Cancer Institute as well as the American Cancer Society.
January 5 — New page on Overlawyered.com: cyberlaw. The legal woes of such class-action defendants as Microsoft and Toshiba, liability for improper linking and non-handicap-compliant web design, domain-name squabbles, state-of-the-art ways for your litigators to sift through your enemies’ and competitors’ internal emails, and other news of the growing inroads being made against America’s most successful business, high-tech, by its second most successful business, litigation.
January 4 — Gun-buying rush. “More than a million Americans asked for background checks so they could buy guns in December, a surge insiders say has something to do with Millennium mania, but more to do with pending litigation,” Reuters reports. “Current and pending litigation…is making many consumers rush to buy arms before any anti-gun verdicts or new laws further restrict their purchase,” in the view of a spokesman for gunmaker Sturm, Ruger & Co. Better exercise those Second Amendment rights before mayors, trial lawyers and Clinton cabinet secretaries take ’em away for good! Yet such a result is far from the outcome of any democratic decision process; indeed, senior analyst H. Sterling Burnett of the National Center for Policy Analysis) cites the results of a poll conducted by the Tarrance Group finding firearms manufacturer liability a singularly unpopular idea — “only 5 percent [of respondents] feel that manufacturers or retailers should be held responsible for firearm misuse”.
A second Reuters report, from London, suggests the havoc litigation can wreak on its targets’ businesses through its sheer uncertainty, independent of outcome. British-based conglomerate Tomkins PLC would like to sell its U.S. handgun maker Smith & Wesson, according to the Financial Mail on Sunday. But the newspaper “said the prospect of class action lawsuits against gun makers in the United States could block any sale of Smith & Wesson. ‘Tomkins will (sell Smith & Wesson) if it can, but until the lawsuits are settled, it may be difficult to sell,’ [a] source close to Tomkins was quoted as saying.”
Sources: “Century End, Lawsuit Threats Spark Gun Sales Spike”, Reuters/FindLaw, Dec. 28; H. Sterling Burnett, “Latest Gun Lawsuits Leading Us Down a Slippery Slope,” Houston Chronicle, Dec. 11, 1999; Burnett, NCPA op-ed, Dec. 12; “U.S. gun maker sale mulled”, Reuters/CNNfn, Jan. 2.
January 4 — Lawsuits over failing grades. In Bath Township, Ohio, 15-year-old Elizabeth Smith and her mother Betsy Smith have sued the Revere School District and 11 teachers over the girl’s failing grades. The suit, which seeks $6 million, says the school’s grading practices punished the girl for her frequent lateness and absences even though “Elizabeth has chronic tonsillitis that caused her to miss school, and she has had to stay home in the mornings to put her twin siblings on their elementary school bus because her mom, a single parent, had to be at work,” said her lawyer, James Childs. And Kerry Grandahl has sued the Massachusetts College of Pharmacy and Allied Health Sciences after her dismissal for poor exam scores, charging that under the Americans with Disabilities Act the school should have accommodated her “exam phobia,” which she says was triggered by depression. Because the exam room was noisy and thronged with other students, Kerry “could hardly concentrate, much less remember what she knew,” according to the suit filed by attorney Nicholas Kelley, which faults the school for not allowing her to take exams in smaller rooms with her own monitors. (Donna J. Robb, “Student fails over failing grades”, Cleveland Plain Dealer, Dec. 8; Shelley Murphy, “Ex-student sues college for ignoring ‘test phobia'”, Boston Globe, Dec. 21).
January 4 — Expert witnesses and their ghostwriters. Critics have long voiced alarm about the way American lawyers can orchestrate the testimony of expert witnesses they hire. In a recent case in Michigan a federal magistrate judge threw out the testimony of an expert hired by plaintiffs in a “vanishing-premium” case against Jackson National Life Insurance Co. The magistrate found that the report filed by actuary Philip Bieluch avowing his opinion as to the facts of the Jackson case had improperly reused verbiage from a report he had filed for the same lawyers in a separate case in Iowa, and was “substantially similar” to the language of a report filed by an entirely different expert in a Louisiana case. U.S. Magistrate Judge Joseph Scoville concluded that the lawyers themselves had furnished Bieluch with the wordings: “This is one of the most egregious cases of providing witness-for-hire testimony that I’ve ever seen, and at some point the courts have to say that enough is enough,” he said. The plaintiff’s executive committee in the Jackson National litigation included representatives of four firms, including well-known class-action powerhouse Milberg Weiss Bershad Hynes & Lerach. (Emily Heller, “An Insurance Expert Is Bounced”, National Law Journal, Oct. 28).
January 3 — Lawyers for famine and wilderness-busting? “Pitched on its environmental merits, the class-action lawsuit filed [last month] against Monsanto would be thrown out in short order,” argues Peter Huber of the Manhattan Institute. “So the lawyers dressed it up as an antitrust case instead.” Class-action high rollers such as Washington’s Michael Hausfeld have lent their assistance to longtime ludfly Jeremy Rifkin in organizing the suit. “They aren’t trying to save free markets from a monopoly, and the last thing they want is more competition in this field. What Mr. Rifkin is after is something even less competitive than a monopoly. He wants nobody in the genetic technology business at all.” If that happens, lawyers will have managed to stop today’s best hope — given the new methods’ success in boosting crop yields — for enabling the Third World to feed itself without pushing its agriculture into yet more wilderness.
“Perhaps the most ridiculous aspect of this whole farce,” writes “Moneybox” columnist James Surowiecki at Slate, “is Rifkin’s use of the word ‘populist’ to describe the suit” — which, after all, seeks to shift power away from elected officials and farming populations and into the hands of elite lawyers and activists who effectively appointed themselves. Surowiecki calls the action and its arguments “spurious”, a “publicity stunt” and “a haphazard and scattershot collection of charges that might have been designed to demonstrate the excesses to which the U.S. legal system can be driven.”
Meanwhile, the world’s most prominent environmental group, the million-donor, supposedly respectable Greenpeace, has been openly conducting property-destroying sabotage against biotech installations in the United Kingdom; the “direct action” bug has now crossed the Atlantic, and last year vandals struck more than a dozen crop sites in the United States.
Sources: Philip Brasher, “Antitrust lawsuit to fight biotech farming”, AP/Spokane Spokesman-Review, Sept. 14; “Rifkin sues Frankenfood giant”, Reuters/Wired News, Dec. 14, link now dead; Peter Huber, “Ecological Eugenics”, Wall Street Journal, Dec. 20, now reprinted at Manhattan Institute site; James Surowiecki, “Jeremy Rifkin’s Spurious Suit Against Monsanto”, Slate, Dec. 20; Michael Fumento, “Crop busters”, Reason, January; anti-biotech site Genetech.
January 3 — Overlawyered.com forums on hold for now. Over the holiday weekend we attempted to install an upgrade for this site’s bulletin board software. Bad move: we managed instead to knock out the forums entirely, and haven’t even succeeded in figuring out yet what went wrong. We’d like to keep the forums idea going, but are mulling over a number of options at this point, including the possibility of forums hosted off-site, which might lessen the demand on our already overstretched techie skills. Advice from experienced forum-managers is welcome.
January 3 — This side of parodies. Calls for a ban on lawyer jokes as hate speech? A Million Lawyer March on Washington to protest anti-attorney stereotyping? Well, maybe not yet, but it can be hard to pick out which elements of this whimsical column are based on fact and which parts are invention. (Richard Dooling, “When you prick us…”, National Law Journal, Oct. 11).
January 31 — Scorched-earth divorce tactics? Pay up. Lawyers in Massachusetts are assessing the impact of two recent cases in which, departing from usual practice, courts have penalized family-law litigants for engaging in carpet-bombing tactics by ordering them to pay attorneys’ fees to their victimized opponents. In one case, Basel v. Basel, a husband was ordered to pay $100,000 of his wife’s legal bill after he unsuccessfully accused her of being a drunk, a drug addict, and a child abuser; the judge ruled that he’d engaged in a “calculated campaign of outrageous behavior to destroy (his) wife’s credibility” and called his portrayal of his wife “nefarious” and “fraudulent”. “By the time it was over,” the Boston Globe reports, “the lengthy litigation had cost more than $600,000 in legal fees, half of which was paid by [the husband’s] parents.”
Peter Zupcofska, vice chairman of the Boston Bar Association’s family law section, said the ruling by Worcester probate judge Joseph Lian Jr. could signal a new departure in the state of matrimonial practice: “if the litigation that’s waged is clearly done to harass, harangue, and intimidate the other party, and to create a kind of economic slavery by utilizing vast amounts of marital funds in a really destructive way,” he said, “then the judge is going to do something to redress that imbalance.” In another recent Bay State case, Krock v. Krock, a probate judge awarded $81,000 in fees against a wife found to have engaged in wrongful litigation. “You can no longer assume that having money gives you the right to wage these frivolous, scorched-earth campaigns without risking paying the price for the other side,” said Boston family law practitioner Elaine Epstein. “And if you do, you do so at your own peril.” (Sacha Pfeiffer, “A warning to battling spouses”, Boston Globe, Jan. 23).
January 31 — Coils of forfeiture law. For Joe Bonilla, the good news is his acquittal three months ago on charges of drunken driving. The bad news is that New York City has no plans to give back the $46,000 Ford Expedition he was driving when cops pulled him over. Bonilla, a 34-year-old construction worker, is paying $689 a month on the vehicle, which he’d been driving for only two days when stopped last May on his way home, he says, from a late screening of the movie “Shakespeare in Love”. A Bronx judge declared him not guilty on the charge, but that doesn’t mean he can have his car back, the city says. (Tara George, “He’s Not Guilty of DWI, But Cops Still Have Car”, New York Daily News, Jan. 25) (more on forfeiture: Oct. 7, F.E.A.R., Reason, Fumento).
January 31 — Do as we say…. Serious fire code violations are threatening to snarl plans to open a $1-million public facility in Charleston, W.V. It’s kinda embarrassing since the facility is itself a fire station. “Not only is a firewall improperly installed inside the $1 million station house, but there are no smoke alarms in the sleeping quarters.” (Todd C. Frankel, “Fire station also lacking smoke alarms”, Charleston Daily Mail, Jan. 19).
January 31 — Showdown in Michigan. Battle royal shaping up this November in the Wolverine State, whose Supreme Court, since a series of appointments by Republican Gov. John Engler, has been assuming a national leadership role in rolling back litigation excesses. Trial lawyers, unionists and others are furiously plotting revenge when the judges stand for their retention elections. A Detroit News editorial provides a quick rundown on what promise to be some of this year’s most closely watched judicial races (Jeffrey Hadden, “State Supreme Court in partisan Catch-22”, Detroit News, Jan. 18).
January 29-30 — Update: OSHA in full retreat on home office issue. The Occupational Safety and Health Administration announced on Wednesday that it will not, after all, seek to regulate hazardous conditions in workers’ home offices, such as rickety stairs, ergonomically inappropriate chairs, or inadequate lighting. Accepting the agency’s spin, the New York Times‘s Steven Greenhouse reports the new stance as a “clarification” meant to dispel “confusion”. Translation: the agency has baldly reversed its earlier policy. When OSHA’s November advisory letter came to public notice earlier this month, the Washington Post summarized its contents this way: “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site.” (see Jan. 5, Jan. 6, Jan. 8-9 commentaries). Under the new policy, the word “not” will simply be inserted before the word “responsible” in that sentence. (At least as regards home offices: manufacturing activities conducted at home will still come under its jurisdiction, the agency says.)
Why did the earlier OSHA directive cause such an uproar? According to the Times‘ Greenhouse, it “alarmed thousands of corporate executives and angered many lawmakers, particularly Republicans” who began “using it” as a political issue — very naughty of them to do such a thing, we may be sure. But as most other news outlets reported, word of the policy had scared not just bosses but innumerable telecommuters themselves, who not unreasonably expected that the new policy would result in (at a minimum) more red tape for them and quite possibly a chill on their employers’ willingness to permit telecommuting at all. And while opposition from Republicans might come as scant surprise, the newsier angle was the lack of support from the measure from many elected Democrats; even a spokeswoman for Rep. Richard Gephardt said it “seemed excessive”.
OSHA director Charles N. Jeffress announced that the “bottom line” remained what it had “always been”: “OSHA will respect the privacy of the home and expects that employers will as well.” Translation: the agency was stung so badly by the public reaction to its initiative that it’s going to pretend it never proposed it in the first place (Steven Greenhouse, “Home Office Isn’t Liability For Firms, U.S. Decides”, New York Times, Jan. 28; Frank Swoboda, “OSHA Exempts White-Collar Telecommuters”, Washington Post, Jan. 27; “OSHA Exempts Home Offices”, Reuters/FindLaw, Jan. 27).
January 29-30 — Update: judge angered by obstructive SEPTA defense. After last month’s $50 million jury award against the Philadelphia transit authority over the maiming of 4-year-old Shareif Hall on an escalator, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million; Authority Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6; see Dec. 17-19 commentary).
January 28 — Law prof wants to regulate newspaper editorials. Libertarians have long warned that laws curbing private buying of campaign ads constitute a dangerous incursion on free speech and are likely to pave the way for further inroads. In last June’s Texas Law Review, Associate Professor Richard L. Hasen of Loyola University Law School (Los Angeles) proceeds to prove them correct by endorsing government regulation of newspaper editorials. He writes: “If we are truly committed to equalizing the influence of money of elections, how do we treat the press? Principles of political equality could dictate that a Bill Gates should not be permitted to spend unlimited sums in support of a candidate. But different rules [now] apply to Rupert Murdoch just because he has channeled his money through media outlets that he owns… The principle of political equality means that the press too should be regulated when it editorializes for or against candidates.”
Hasen happily looks forward to the day when the Supreme Court can be persuaded to overturn Buckley v. Valeo and the way will be clear for such regulation of the expression of opinion in newspapers: “op-ed pieces or commentaries expressly advocating the election or defeat of a candidate for federal office could no longer be directly paid for by the media corporation’s funds. Instead, they would have to be paid for either by an individual (such as the CEO of the media corporation) or by a PAC set up by the media corporation for this purpose. The media corporation should be required to charge the CEO or the PAC the same rates that other advertising customers pay for space on the op-ed page.” (Quoted by Stuart Taylor, Jr., “The Media Should Beware of What It Embraces”, National Journal, Jan. 1, no longer online; see also Richard Hasen, “Double Standard,” Brill’s Content, Feb. 1999).
January 28 — From our mail sack: unclear on the concept. To judge from the summaries of our search-engine traffic, a nontrivial number of visitors land on this website each day because they’re looking to get in on class-action lawsuits. We fear that we do not always succeed in giving full satisfaction to these visitors. For example, last week the following note arrived in our inbox, signed K.E.: “Please send me the website or address re the Toshiba settlement. I need to file. Why was this not on your site where it could readily be found?”
January 28 — Strippers in court. A group of San Francisco exotic dancers sued their employers last month, saying they’d been improperly categorized as independent contractors with the result that they were denied overtime pay and were unfairly forced to purchase their own “supplies”, in the form of expensive drinks. (National Law Journal, “The Week in Review: The Flux”, Dec. 27-Jan. 3). In Canada, a judge has ruled against Loredana Silion, 24, in her petition for a work permit to perform as an exotic dancer. While Ms. Silion had danced in a nightclub in her native Rumania, the job there involved only topless dancing, which the judge ruled was not a close enough match in skills for the task of dancing at Toronto’s Sunset Strip club, where nothing at all is worn. (Marina Jimenez, “Stripper told she’s not naked enough to work in Canada”, National Post, Jan. 14). And exotic dancer Doddie L. Smith has now sued an Arizona plastic surgeon, saying the doctor’s augmentation surgery left her breasts “too high” with the result that she is “unable to be a ‘featured dancer’ at exotic dance clubs, model as a centerfold in adult magazines, or promote her modeling career”. Estimated wage loss: $100,000. (Gretchen Schuldt, “Exotic dancer claims doctor botched breast surgery”, Milwaukee Journal Sentinel, Jan. 12) (Update: more on strippers in court: May 23, July 26-27).
January 26-27 — Florida ADA complaint binge. Invoking the Americans with Disabilities Act, “a half-dozen non-profit corporations and associated individuals [ ] have filed more than 600 federal suits in Miami, Fort Lauderdale and West Palm Beach” charging building owners and service providers with failing to make their facilities accessible to the handicapped, according to Miami’s legal publication, the Daily Business Review. Targets of the complaints, large and small, range from Kmart and Carnival Cruises down to local funeral homes and the little Coconut Court Motel in Fort Lauderdale, as well as nonprofits and public entities such as the local Baptist hospital and the city of Pompano Beach. A six-lawyer Miami Beach law firm, Fuller, Mallah & Associates, has spearheaded the assault, helping form three nonprofits that account for most of the filings. Indeed, no less than 323 of the cases name as plaintiff 72-year-old wheelchair user Ernst Rosenkrantz. “When pressed to explain how he hooked up with the law firm, Rosenkrantz said law firm partner John D. Mallah is his nephew.” However, “Mallah didn’t mention that relationship when asked about Rosenkrantz in an earlier interview,” notes reporter Dan Christiansen.
Most cases settle when the charged business agrees to make some modification to its facilities and pay the complainant’s legal fees — $275 an hour plus expenses in Mallah’s case. The ADA allows complainants to file suit without warning the target, and it displays considerable solicitude for the welfare of lawyers filing cases: “the attorney’s fees provisions are such that even if they get [nothing more than] the telephone volume controls changed, they automatically win the case,” says one defense lawyer. First Union, the large bank, says it refuses on principle to settle cases filed by the group: “The fees that are being charged seem to be way out of line to the amount of work that they do,” says one of its lawyers, besides which the bank had been moving forward on its own with an ADA compliance program. Rep. Mark Foley (R-Fla.) has asked the U.S. Department of Justice to investigate mass ADA filings in Broward County. (Dan Christiansen, “Besieged by Suits”, Miami Daily Business Review, Dec. 21). (Feb. 15 update: Congressmen introduce legislation) (DURABLE LINK)
January 26-27 — Seattle police: sued if they do… The constabulary of the northwest metropolis now faces a slew of lawsuits over its handling of the World Trade Organization protests in late November and early December. According to the Post-Intelligencer, the claims divide into two broad groups: those accusing the city of cracking down on the protesters too hard, and those accusing it of not cracking down hard enough. (Mike Barber, “Police sued for doing too little, too much”, Seattle Post-Intelligencer, Jan. 25).
January 26-27 — Feelings of nausea? Get in line. In 1997 a barge accident and chemical spill on the Mississippi sent a foul-smelling haze over much of Baton Rouge, La. A steering committee of attorneys formed to sue for compensation for local residents over symptoms such as “nausea, severe headaches and fatigue” experienced after smelling the odors. And did the claims ever start to roll in: by November of last year 13,000 forms had already been submitted, according to one lawyer, and the pace became even more frenetic as the Jan. 14 final deadline approached for filing claims. Long lines stretched around the block outside the old federal building; one woman said she waited six hours to get in the door, while more than 100 others were turned away at the end of the day, to come back the next day if at all; and many grumblings were heard about missing work. (Adrian Angelette, “Long line awaits claimants in chemical leak suit”, Baton Rouge Advocate, Jan. 14).(DURABLE LINK)
January 26-27 — From our mail sack: the lawyer’s oyster. Regarding our Jan. 15-16 “Poetry Corner” reprint of “The Benefit of Going to Law”, from Benjamin Franklin’s Poor Richard’s Almanack, 1733, New York attorney John Brewer writes: “Just a few days after noting the verse by Ben Franklin you had posted on your site, I came across an earlier and more concise exposition of the same image, viz.:
“Two find an Oyster, which they will not part,
Both will have all or none, the Lawyer’s art
Must end the strife; he fits their humour well,
Eats up the fish, and gives them each a shell.
“According to the recently published Oxford Companion to the Year (“An exploration of calendar customs and time-reckoning”), this appeared in the 1665 edition of Poor Robin’s Almanack (note possible Franklin influence of the name), as one of four such bits of doggerel marking the traditional four law terms. The oyster stanza was for Michaelmas Term.
“You might also find salient the verse for Hilary Term:
Anoint thy Lawyer, grease him in the fist,
And he will plead for thee e’en what thou list;
He’ll make thy cause strong though the same were weak,
But if thy purse be dumb, his tongue can’t speak.
“The verses for Easter and Trinity Terms are similarly on the theme of the costliness of going to law and its financial benefit to none but the bar, but have somewhat less punch and clarity of expression.”
January 25 — Feds’ tobacco hypocrisy, cont’d: Indian “smoke shops”. It seems when the Clinton Administration isn’t filing lawsuits to brand tobacco-marketing as “racketeering” (see Sept. 23 commentary), it’s quietly staking taxpayer money to help its constituents get into the business. A Senate Small Business Committee probe has found that since 1997 the Department of Housing and Urban Development has laid out $4.2 million to enable four Indian tribes to build “smoke shops” that sell discounted cigarettes free from state taxes. Why, one wonders, should subsidies be needed to facilitate an intrinsically high-profit activity that might be likened to lawful smuggling? And of course the source of this largesse is the very same HUD whose Secretary Andrew Cuomo has so loudly endorsed lawsuits against gun sellers whose wares are said to inflict spillover damage on other localities’ public health. A crowning hypocrisy is that some of the tribes that derive income from smoke shops are themselves now suing tobacco companies (see July 14 commentary).
The Senate committee uncovered six instances in which tribes obtained HUD subsidies to open smoke shops, five in Oklahoma and one in Nevada, but it is likely that the true number is larger. For example, this site’s editor, in his March Reason column (not yet in subscribers’ mailboxes, but previewing at the Reason site), identified another similar-sounding case: in 1997 HUD furnished the Reno Sparks Indian Colony with $450,000 “to build a smoke shop along Interstate 80 near the California border,” according to the Bend, Oregon, Bulletin. (Wendy Koch, “Tribes get funds to build ‘smoke shops'”, USA Today, Jan. 24; Walter Olson, “The Year in Double Takes”, Reason, March). (DURABLE LINK)
January 25 — Line forms on the right for chance to suffer this tort. A woman has won $5,135 in damages from owners for having been locked overnight in an Irish pub. “Marian Gahan fell asleep on the toilet in Searsons Pub in central Dublin, and did not wake until 2 a.m., by which time the pub was closed”. She argued that the pub managers should have checked the toilets before locking up. The trial had to be adjourned early on when Ms. Gahan’s barrister, Eileen McAuley, burst into uncontrollable fits of laughter while recounting her own client’s case. (“Woman locked in pub wins $5,135 damages”, Reuters/Excite, Jan. 18; “Tears and laughter at trauma in toilet”, Irish Times, Oct. 21).
January 25 — Recommended reading. On the unnerving ease with which charges of abuse and violence can be pulled from a hat to provide legal assistance in a divorce (Dan Lynch, “We’ll see how blind justice is”, Albany Times-Union, Jan. 19); on the war underway in legal academia over many scholars’ acceptance of the idea that the Second Amendment does indeed protect individual gun rights (Chris Mooney, “Showdown”, Lingua Franca, February); on the chill to workplace banter now that harassment law has gotten well established in Britain (Roland White, “Careless talk makes the office world go round”, The Times (London), Jan. 23).
January 25 — Latest lose-on-substance, win-on-retaliation employment claim. It’s pretty common, actually: the suit-prone worker flatly loses on his original claim of discrimination, but his claim for “retaliation” comes through to save the day because after the job relationship had turned adversarial the employer was shown to have treated him less favorably than before. Bad, bad employer! This time a Delaware jury decided that Eunice Lafate had not in fact been passed over for a promotion at Chase Manhattan because of her race, but awarded her $600,000 anyway on her retaliation charges; after filing the complaint, she said, she’d been cut out of management meetings and given less favorable evaluations. (Jim DeSouza, “Jury Wants Chase Manhattan to Pay $600,000 for Retaliating Against Employee”, Delaware Law Weekly, Dec. 9)(see also Sept. 29 commentary).
January 24 — Latest shallow-end pool-dive case. In Massachusetts, the state’s Supreme Judicial Court has agreed to hear the appeal of Joseph O’Sullivan, who was visiting his girlfriend’s grandparents in Methuen and decided to dive into the shallow end of their pool. An experienced swimmer and 21 years old at the time, O’Sullivan was not paralyzed but did crack two vertebrae and proceeded to sue the grandparents for not stopping him or providing warnings. Boston Globe columnist Derrick Z. Jackson takes a dim view of O’Sullivan’s case, and the lower court did not find it persuasive either (“A shallow case for the SJC”, Jan. 12).
January 24 — “Mormon actress sues over profanity”. Christina Axson-Flynn, 20, is suing the University of Utah, charging that the theater department insisted that she use foul language in character portrayals even though they knew it violated her religious principles to do so. The department disputes the contentions in her suit, which asks for unspecified damages. (Yahoo/AP, Jan. 14; Jim Rayburn, “U. theater department sued over language”, Deseret News (Salt Lake City), Jan. 14). Update Feb. 16, 2004: appeals court lets suit proceed.
January 24 — “Ambulance chaser” label ruled defamatory. The Second Circuit federal court of appeals has ruled that a New York attorney can sue over a printed description of him as an “ambulance chaser” given to taking only “slam dunk cases”. The American Association of University Women and its related AAUW Legal Advocacy Fund had put out a directory in 1997 which listed 275 attorneys practicing in its fields of interest. Appended to the contact information for attorney Leonard Flamm was the following description: “Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment and promotion. Note: At least one plaintiff has described Flamm as an ‘ambulance chaser’ with an interest only in ‘slam dunk cases.'” U.S. District Judge Denny Chin had dismissed Mr. Flamm’s resulting lawsuit against AAUW, ruling that the comments, although “beyond the pale” and “seriously derogatory”, were protected as expressions of opinion under the First Amendment. On appeal, however, a panel led by Judge Thomas Meskill reinstated the action, noting that the objectionable passage might be read as implying specific factual assertions relating to unethical solicitation of business, that it appeared in italics, and that the other entries in the directory were generally of a factual rather than opinion-based nature. (Mark Hamblett, New York Law Journal, Jan. 6).
January 24 — No clash between clauses. Cincinnati attorney Richard Ganulin has filed a notice of appeal after a federal court dismissed his lawsuit claiming that the government’s observing of Christmas as a public holiday violates the Bill of Rights’ Establishment Clause. Last month U.S. District Judge Susan Dlott rejected Ganulin’s action, ruling that Congress was “merely acknowledging the secular cultural aspects of Christmas by declaring Christmas to be a legal public holiday. … A government practice need not be exclusively secular to survive”. She also prefaced her opinion with a bit of free verse: “The court will uphold /Seemingly contradictory causes /Decreeing “The Establishment” and “Santa” /Both worthwhile Claus(es).” (Ben L. Kaufman, “Challenge to Christmas holiday appealed”, Cincinnati Enquirer, Jan. 10).
January 21-23 — “Tracking the trial lawyers”: a contributions database. American Tort Reform Foundation today unveils a handy interactive database for keeping track of which lawyers have been donating to which politicians and parties. You can search by lawyer, by law firm, by recipient politician or institution, and more. Hours of alarming fun (“Follow the Money“).
January 21-23 — From our mail sack. Julia Vitullo-Martin of the Vera Institute of Justice writes, regarding our Jan. 18 report on the strange-warning-labels contest:
“I can tell you were never a teenage girl that you think the advice ‘never
iron clothes while they’re being worn’ is wacky. We used to do this in high school all the time. We’d be in a big hurry — having wasted hours trying on & discarding one another’s clothes — and would finally find the right thing to wear only to notice that the sleeve, say, was wrinkled. Why take it off? Just retract your arm & iron. The occasional small burn never deterred us that I can recall.
“I do like your newsletter.”
January 21-23 — Y2K roundup: poor things! Lack of century-end catastrophes is a “calamity” of its own for lawyers who’d been set to file suits galore demanding damages for outages and data loss. “Lawyers were licking their chops,” Madelyn Flanagan of the Independent Insurance Agents of America told the Washington Post‘s David Segal. “I think the whole world is relieved.” (David Segal, “A Y2K Glitch For Lawyers: Few Lawsuits”, Washington Post, Jan. 10.) Ross & Co., a British solicitors’ firm that had been planning a big Y2K practice, still hopes for the best: “It Ain’t Over Till the Fat Lady Sues“, claims its website. (“Lawyers still gearing up for millennium bug attack”, FindLaw/Reuters, Jan. 20). Don’t count us out yet either, says Philadelphia attorney Ronald Weikers (softwarelitigation.com), who’s hoping the state of Delaware will sue manufacturers over a glitch that knocked out 800 slot machines for three days, thus preventing the state from slurping up locals’ spare coins over that period. Then there are the remediation-cost suits: thus the commonwealth of Puerto Rico, which made the transition “without a murmur”, is considering suing tech firms over the $80 million it says it spent to upgrade systems. (“Puerto Rico Government Considers Suing Over $80 Million In Y2K Work”, DowJones.com, Jan. 4) The reliable Ralph Nader has chimed in with his reasons for blaming everything on the deep pockets (“Y2Pay”, San Francisco Bay Guardian, Dec. 29.) And here come the backlash suits: the Independent of London reports that one company has sued outside consultants for exaggerating the risk from the calendar rollover (Robert Verkaik, “Y2K consultants sued by firm for exaggerating risk”, The Independent, Jan. 11). (DURABLE LINK)
January 21-23 — Cartoon that made us laugh. By Ruben Bolling, for Salon: “….We can’t take those off the market! Dangerous products are a gold mine for the government!” (Jan. 20 — full cartoon)
January 21-23 — Civil disabilities of freethinkers. Imagine letting a murderer go free because you’d excluded the crime’s only witness from testifying on the grounds that as a religious unbeliever he could not take a proper oath. Absurd? Yet such notions survive today in the constitution of the state of Arkansas: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.” Along with Arkansas, the constitutions of Maryland, North and South Carolina, Pennsylvania, Tennessee, and Texas retain historic provisions that contemplate or mandate the exclusion of unbelievers — and in some cases, minority religionists who reject the idea of a retributive afterlife — from public office, admission as witnesses in court, or both. Thus Article IX, Sec. 2, of the Tennessee constitution: “No person who denies the being of God, or a future state of rewards and punishments shall hold any office in the civil department of this state.” Widely considered unenforceable today, such provisions might at some point resume practical importance given today’s highly visible movement to re-infuse religious sentiment into government; in the meantime, they symbolically relegate to second-class citizenship those who hold one set of opinions. “The Arkansas anti-atheist provision survived a federal court challenge as recently as 1982”. (Tom Flynn, “Outlawing Unbelief”, Free Inquiry, Winter 1999). (DURABLE LINK)
January 20 — The joy of tobacco fees. In his January Reason column, this website’s editor pulls together what we now know about the $246 billion state-Medicaid tobacco settlements, including: the role of the settlement in imposing a cartel structure on the industry and chilling entry by new competitors; the happy situation of some lawyers who are in line to collect hundreds of millions of dollars when they simply “piggybacked” on others’ legal work, with little independent contribution of their own; and the often more-than-casual ties between tobacco lawyers and the state attorneys general who hired them, to say nothing of such influentials as President Bill Clinton and Senate Majority Leader Trent Lott (both of whose brothers-in-law were in on the tobacco plaintiffs’ side). Maybe it’s time to retire Credit Mobilier and Teapot Dome as synonyms for low points in American business-government interaction. (Walter Olson, “Puff, the Magic Settlement”, Reason, January).
January 20 — “The case for age discrimination”. You do it, Supreme Court justices do it, we all do it: generalize about people based on their ages. It’s clear that most age-based discrimination isn’t “invidious” in the original sense of race bias, and it’s only rational for an employer to avoid investing in costly retraining for a worker who’s likely to retire soon. So how’d we wind up with a law on the books purporting to ban this universal practice, anyway? (Dan Seligman, “The case for age discrimination”, Forbes, Dec. 13).
January 20 — Watchdogs could use watching. Beginning in 1993 Brian D. Paonessa employed an active solicitation campaign in conjunction with various Florida law firms to sign up hundreds of securities investors to pursue arbitration claims against Prudential Securities Inc. Not prominently featured in Paonessa’s marketing, apparently, was the fact that federal securities regulators were on his own tail on charges that he’d pocketed $149,500 in “ill-gotten gains” at the expense of investor clients. Since then, as the busy rainmaker has become embroiled in legal disputes over alleged fee-splitting arrangements with the law firms, some colorful charges have made it onto the public record. (Stephen Van Drake, “Florida Fee-Sharing Suit May Open Door to Direct-Solicitation Scrutiny”, Miami Daily Business Review, Oct. 11).
January 20 — Gotham’s plea-bargain mills. “Last year each judge sitting in the New York City Criminal Court, on average, handled nearly 5,000 cases. With calendars that huge, the system is reduced to a plea bargain mill, with no true trial capability offering balance to the process. It’s no secret. Everyone — including the repeat offender — knows this.” — New York chief judge Judith Kaye, State of the Judiciary Address, Jan. 10 (New York Law Journal site).
January 19 — “Private job bias lawsuits tripled in 1990s”. “Aided by new federal laws, private lawsuits alleging discrimination in the workplace more than tripled during in the 1990s, the Justice Department said.” According to the Department’s Bureau of Justice Statistics, “job bias lawsuits filed in U.S. District Courts soared from 6,936 in 1990 to 21,540 in 1998….The percentage of winning plaintiffs awarded $10 million or more rose from 1 percent in 1990 to 9 percent in 1998.” (AP/FindLaw, Jan. 17; Bureau of Justice Statistics abstract and link to full report, “Civil Rights Complaints in U.S. District Courts, 1990-98”).
January 19 — Santa came late. Faced with outages and high volume, the e-tailing operation of Toys-R-Us failed to deliver many toys by Christmas as promised. Now Seattle attorney Steve Berman has filed a lawsuit seeking class-action status to represent all customers who did not receive their shipments by Dec. 25. According to George magazine’s profile of tobacco lawyers last year (see Aug. 21-22), Berman’s firm is in line to receive roughly $2 billion from representing states in the tobacco settlement — enough to stake a very large number of bets like this one, should he see fit. The named plaintiff is Kimberly Alguard of Lynnwood, Washington. (“ToysRUs.com Sued: Santa Failed”, Reuters/WiredNews, Jan. 12).
January 19 — The costs of disclosure. In 1992 Tacoma, Wash. attorney Doug Schafer fielded what seemed a routine request from businessman-client Bill Hamilton to draw up incorporation papers for a new venture. But the details Hamilton provided convinced Schafer that his client was involved with Tacoma lawyer Grant Anderson in dishonest business dealings arising from Anderson’s milking of an estate. To make things worse — and raising the stakes considerably — Anderson shortly thereafter was elevated to a Superior Court judgeship.
What should a lawyer do in those circumstances? Schafer later decided to go public and seek an investigation of the judge and the transaction, thus beginning a struggle whose eventual results included an order by the Washington Supreme Court throwing Judge Anderson off the bench (for “egregious” misconduct) and a $500,000 recovery by a hospital in a lawsuit against the judge and others over their conduct. But in the state of Washington — as in a majority of other states — a lawyer has no right to breach his obligation of confidentiality to clients even when the result is to bolster public integrity or provide a remedy to defrauded parties. And so next month Doug Schafer will appear before a panel of the Washington State Bar Association to defend himself against disciplinary charges. Moreover, the reputation he’s picked up as a single-minded scourge of the corruption he perceives in the system has helped devastate his legal career, while Judge Anderson, though forced off the bench, has as yet faced no other consequences from bar enforcers, though an investigation is ongoing. (Bob Van Voris, “The High Cost of Disclosure”, National Law Journal, Jan. 4; Mary Lou Cooper, “The Cadillac Judge”, Washington Law & Politics, Sept. 1998; Tacoma News-Tribune coverage, 1998, 1999; Schafer’s website). Update Jul. 26, 2003: Washington Supreme Court suspends Schafer for six months.
January 19 — 175,000 pages served on Overlawyered.com. Thanks for your support!
January 18 — “Never iron clothes while they’re being worn”. That’s the winning entry in Michigan Lawsuit Abuse Watch’s third annual Wacky Warning Label Contest. Bonnie Hay of Plano, Texas, found the warning on an iron. Second place was awarded to a Traverse City, Mich. man’s discovery of “Not for highway use” on his 13-inch wheelbarrow tire, and third place went to “This product is not to be used in bathrooms” on a bathroom heater. M-LAW president Robert B. Dorigo Jones said the contest had a serious point, to illustrate manufacturers’ growing fear of lawsuits and the retreat of principles of individual responsibility. Finalists in earlier years’ contests have included sleeping pills labeled “May cause drowsiness”; a cardboard sunshield to keep sun off a car’s dashboard that warned “Do not drive with sunshield in place”; and a cartridge for a laser printer that warned the consumer not to eat the toner. (CNN/AP, Jan. 13; M-LAW; contest results).
January 18 — Courts mull qui tam constitutionality. The Civil War-era False Claims Act provides stringent civil penalties for anyone who submits inflated or false bills to government procurement officials, and the “relator” provisions of that act allow any private citizen to bring suit to enforce the law and obtain damages for the United States. The relator — who may be an employee of the defendant enterprise, or a complete stranger — can then by law collect a share of between 15 and 30 percent in any recovery obtained by the government, with no need to prove an injury to himself. Qui tam actions have soared in number in recent years, actively solicited by lawyers seeking rich contingency payouts (the law was liberalized in 1986 to provide treble damages). For their part, businesses, hospitals and universities complain that the quality of accusations filed against them is often low (see Sept. 9 commentary) and that the law can actually encourage bad behavior by bounty-hunting employees who (for example) may fail to report billing irregularities promptly to higher management finding it more lucrative to let them mount and then file a legal complaint. In Pennsylvania, eyebrows were raised when one entrepreneur pitched his services to a hospital as a consultant for the prevention of false claims, and then, having been turned down for that job, proceeded to sue that hospital and 99 others as relator based on a statistical analysis of their billing patterns.
Recently the qui tam provisions have come under heightened scrutiny. On November 15, writing for a panel of the Fifth Circuit U.S. Court of Appeals, Judge Jerry Smith struck down as unconstitutional the portions of the act that authorize actions by uninjured parties in the absence of a go-ahead from Washington, ruling that such suits encroach on the Constitutionally guaranteed separation of powers by impairing the executive branch’s right to control litigation that goes on in the name of government interests. The case will be reheard by the full Circuit. Moreover, the decision may have had immediate repercussions at the U.S. Supreme Court, which had already agreed to consider whether the state of Vermont can be sued by one of its own former staff attorneys, acting as relator, for allegedly exaggerating the proportion of its employees’ time that was allocable to federally reimburseable environmental programs. Apparently responding to the Fifth Circuit decision, the Court ordered the lawyers in the Vermont case to brief the issue of whether the relator provisions are unconstitutional. Even if the Court does not go that far, it might rule that the application of the law to states as defendants violates the Constitution. Justice Stephen Breyer called it “one thing” to allow individuals to sue private federal contractors and “quite another” to “set an army of people loose on the states.” Update: The Court later upheld the constitutionality of the act’s relator provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, reprinted at Cadwalader, Wickersham & Taft site) See also April 30, 2001, July 30, 2001.
SOURCES: Peter Aronson, “Whistleblower Breaks New Ground”, National Law Journal, Oct. 27; Susan Borreson, “5th Circuit Slams Qui Tam Suit”, Texas Lawyer, Nov. 22; Vermont Agency of Natural Resources v. United States ex rel. Stevens, Supreme Court case 98-1828; Kenneth Jost, “Qui Tam Comes To the High Court”, The Recorder/CalLaw, Nov. 30; Charles Tiefer, “Don’t Quit on Qui Tam”, Law News Network, Nov. 29. MORE BACKGROUND: Fried, Frank; Steven G. Bradbury, “The Unconstitutionality of Qui Tam Suits”, Federalist Society Federalism and Separation of Powers Working Group Newsletter, v. 1, no. 1; Mark Koehn and Donald J. Kochan, “Stand Down”, Legal Times, Dec. 6, 1999, reprinted at Federalist Society site; Dan L. Burk, “False Claims Act Can Hamper Science With ‘Bounty Hunter’ Suits”, The Scientist, Sept. 4, 1995; Ridgway W. Hall Jr. and Mark Koehn, “Countering False Claims Act Litigation Based on Environmental Noncompliance”, National Legal Center for the Public Interest, Sept. 1999 (PDF format). Pro-qui tam sites, many of which double as client intake sites for law firms, include those of Taxpayers Against Fraud; Phillips & Cohen; Ashcraft & Gerel; Miller, Alfano & Raspanti; QuiTamOnline.com; and Chamberlain & Kaufman.
January 18 — Columnist-fest. Pointed opinions on issues that aren’t going away:
* Major League Baseball, meet Soviet psychiatry? Charles Krauthammer on the John Rocker case, and why it’s dangerous to view racism and general unpleasantness of opinion as suitable candidates for mental-health treatment (“Screwball psychologizing”, Washington Post, Jan. 14)
* John Leo on how courts and legislatures often seize on ambiguous enabling language as a blank check for vast social engineering: vague provisions in state constitutions get turned into an excuse to equalize school funding or strike down tort reform, domestic violence gets federalized on the grounds that it affects interstate commerce, and more. (“By dubious means”, U.S. News & World Report, Jan. 24).
* Clarence Page asks why states fight so hard to keep convicts in prison even after newly emergent DNA evidence clears them of the original rap. Do prosecutors and wardens care more about maintaining high inmate body counts, or about doing justice? (“When Innocence Isn’t Good Enough”, Chicago Tribune, Jan. 3).
January 17 — New York court nixes market-share liability for paint. In a setback for lawyers hoping to make lead paint their next mass-tort breakthrough, a New York appeals court has rejected the plaintiffs’ request that “market-share liability” be applied to the industry. This theory allows claimants to dispense with the need to show whose products they were exposed to, in favor of simply collecting from all defendants who sold the item, in proportions based on their market share. In explaining why such methods of assigning liability would be unjust, the court observed that paint makers did not have exclusive control over risks arising from their products, that makers sold at different times and to different markets, and that the composition of paint differed substantially from one maker to the next. (Jim O’Hara, “Court Sinks Lead Poisoning Case”, Syracuse Online, Jan. 10).
January 17 — Montreal Gazette “Lawsuit of the year”. “Two bagpipers sued Swissair for lost income from tourists at Peggy’s Cove because of the plane crash that killed 229 people in September of 1998. They claim their income declined dramatically while the lighthouse area was closed to the public.” (“Technology”, Dec. 31; Richard Dooley, “Swissair responds to bagpipers’ lawsuit”, Halifax Daily News, June 22, 1999).
January 17 — Dot-coms as perfect defendants. They’re flush with venture-capitalist and IPO cash, they’re run by hormone-crazed kids who bring a party atmosphere to the office, and they haven’t developed big human resources bureaucracies to make sure nothing inappropriate goes on. Why, they’re the perfect sexual harassment defendants! New York contingency-fee attorney David Jaroslawicz, a veteran of securities class actions and now “an aspiring scourge of the Internet“, hopes to spearhead a resulting “Silicon Alley sex-suit wave”. He has filed three suits on behalf of disgruntled female employees, including two against free-access provider Juno.com, one of which has been dismissed, and a third against Internet-TV producer Pseudo.com.
Asked why he happened to ask for the same amount, $10 million, in both lawsuits against Juno, Jaroslawicz says the damage request “is ‘arbitrary, whatever the secretary types in’ — just as long as it has enough zeros”. You ‘put in some high absurd number, because you can always take less,’ Mr. Jaroslawicz explained.” (Renee Kaplan, “The Sexual Harassment Suit Comes to Silicon Alley”, New York Observer, Jan. 17).
January 17 — New improvement to the Overlawyered.com site: better search capability. This weekend we installed the PicoSearch internal search engine, which you’ll find to be a big leap forward from our previous search system: fast results displayed in context, fuzzy logic to catch near-misses, no ads, search boxes available on key pages, and so forth. In addition, the database indexed now includes our editor’s home page (with a wide selection of articles, mostly on legal themes). Give it a test run, either by visiting our search page or just by typing your search into the box in the left column and hitting “return”.