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).