Posts Tagged ‘Superfund’

April 2000 archives

April 10 — “Pilloried, broke, alone”. Canadian journalist’s probe of “deadbeat dad” issue finds some bad guys but also many who “are too impoverished to pay, have been ordered to pay unreasonable amounts, have been paying for unreasonable lengths of time, or are the victims of bureaucratic foul-ups.” (Donna LaFramboise, “Pilloried, broke, alone”, National Post, March 25, link now dead).

April 10 — Verdict on Consumer Reports: false, but not damaging. After a two-month trial, a federal jury found Thursday that the magazine had made numerous false statements in its October 1996 cover story assailing the 1995-96 Isuzu Trooper sport utility vehicle as dangerously prone to roll over, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had behaved arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but didn’t because “we couldn’t find clear and convincing evidence that Consumers Union intentionally set out to trash the Trooper”. The jury found eight statements false but in only one of the eight did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered. The magazine sees fit to interpret these findings as “a complete and total victory for Consumer’s Union” (attorney Barry West) and “a complete vindication” (CU vice president David Pittle). (DURABLE LINK)

SOURCES: Consumers Union; its reaction (link now dead); Isuzu; its reaction; Dan Whitcomb, Reuters/Yahoo, April 6, link now dead; “Jury clears Consumer Reports magazine of liability in Isuzu case”, AP/CourtTV, Apr. 7; David Rosenzweig, “Jury Finds Magazine Erred in Isuzu Critique”, Los Angeles Times, April 7, link now dead. More background: Max Boot, “Guardian of the Lawyers’ Honey Pot”, Wall Street Journal, Sept. 19, 1996, reprinted at site, link now dead; Walter Olson, “It Didn’t Start with Dateline NBC”, National Review, June 21, 1993.

April 10 — Lawyers charged with $4.7 million theft from clients. “Two Manhattan lawyers were arrested and charged Friday with stealing $4.7 million from clients, including a widower with two children and a college professor who fractured her skull in an accident.” Jay Wallman and Alan Wechsler, both 60 years of age, “used the money to keep their Madison Avenue law firm afloat and to pay personal expenses, said Assistant District Attorney Doreen Klein”; in Wechsler’s case, that included paying some of his dues at the Willow Ridge Country Club in Harrison, N.Y., where he was president. The two have pleaded not guilty; “Wallman has resigned from practicing law and Wechsler has been suspended, the prosecutor said.” About $2.7 million of the alleged theft was carried out in the handling of an estate, and the rest in the course of representing medical malpractice and other personal injury plaintiffs, some of whom never were given any of the settlements collected on their behalf, prosecutors say. (“Two NYC lawyers arrested”, AP/CNNfn, April 7, link now dead).

April 10 — Diapered wildlife? Large-scale agriculture has come under criticism for its effects on the environment, but researchers are discovering that naturally occurring fauna can be destructive in similar ways. Colonies of seabirds, for example, “are releasing large amounts of ammonia into the atmosphere through their droppings. … Very large emissions of ammonia could have a detrimental impact on the local ecology, and may be just as problematic as intensive farming. Scientists studying a seabird colony on Bass Rock off the east coast of Scotland have already measured ammonia concentrations 20 times higher than those on chicken farms.” Global warming researchers have noted that among the more important contributors to the level of “greenhouse gas” emissions is cows’ natural tendency to emit methane, and controls on bovine flatulence may be necessary in the future if countries like Ireland are to contribute proportionally to world reductions in such emissions. (“The ‘innocent’ polluters”, BBC News (Scotland), March 8; “Don’t forget methane, climate experts say”, CNN/ENN, Nov. 10, 1999; Google search on “bovine flatulence“). (DURABLE LINK)

April 10 — Courts split on disabled golfer issue. “In a 24-hour span [last month], two federal appeals courts gave opposing decisions on whether handicapped golf pros can use motorized carts during tournament play” — that is to say, whether they can do so against the wishes of tournament organizers. In the more publicized of the two cases, the 9th Circuit agreed with Casey Martin’s demand that he be allowed to use a cart in the PGA Tour; but a day later “a three-judge panel with the 7th U.S. Circuit Court of Appeals in Chicago amid much less fanfare affirmed a lower court decision denying Ford Olinger similar mechanical assistance.” Circuit splits make it more likely that an issue will eventually be heard by the U.S. Supreme Court. (Mark R. Madler, “Fed Circuits Suddenly Split on Handicapped Golfers”, American Lawyer Media, March 9). “Olinger himself may have made the most penetrating observation, bemoaning that his appeal was heard by a panel of golfers, while Martin’s was not.” (Robert S. Shwarts, “A Good Walk Spoiled”, American Lawyer Media, March 23).

April 10 — 300,000 pages served on Thanks for your support!

April 7-9 — Silicon siege. With Bill Gates down for the count, who’s next? Antitrust officials, having recently nailed old-line auction houses (“dowagers in the paddy wagon”) Sotheby’s and Christie’s, have now begun an investigation of eBay (“eBay Is Subject of Antitrust Probe, Congress Considers Underlying Issue”, E-Commerce Law Weekly, Feb. 9). Trial lawyers are pressing hard against laptop makers, hoping to repeat their nine-digit take from the Toshiba-glitch class action. (Joe Wilcox, “Data-storage suit sends shockwaves through PC industry”, CNet News, March 1). The many pending claims against AOL include those seeking to reclassify volunteers as workers entitled to back wages and those over the tendency of the 5.0 upgrade to interfere with alternative Internet access (“AOL Sued in Federal and State Court”, E-Commerce Law Weekly, Feb. 9). And privacy suits are being launched against all sorts of Internet leaders, from Yahoo on down (Susan Borreson, “Do You Yahoo?”, Texas Lawyer, Feb. 14). Cypress Semiconductor CEO T.J. Rodgers, in a piece written before the Microsoft ruling, says high-tech firms will just be asking for trouble if they cuddle up to Washington in search of official favors, and would do better to unite in resistance: “Silicon Valley is an island of capitalism in a sea of collectivism …. an island of meritocracy in a sea of power struggles.” (“Why Silicon Valley Should Not Normalize Relations With Washington, D.C.”, Cato Institute monograph (PDF format); Declan McCullagh, “Schmoozing: A Capitol Offense”, Wired News, March 20; “It’s All About Capitalism”, March 20).

April 7-9 — Trips on shoelace, demands $10 million from Nike. “A Manhattan orthopedic surgeon sued Nike Inc. on Wednesday for $10 million, saying shoes made by the athletic footwear giant tripped her and caused permanent injury.” Dr. Deborah A. Faryniarz says that while she was jogging last April “the right shoelace hooked around the back tab of the left sneaker, spilling her onto her wrists and knees” and causing a wrist injury that imperils her future career as a surgeon. Nike spokeswoman Cheryl McCants in Beaverton, Ore., said the company hadn’t yet seen the complaint but that people “sometimes don’t tie their shoes properly.” (“Nike Sued Over Shoelace”, AP/FindLaw, April 5, link now dead).

April 7-9 — School safety hysteria, institutionalized. “North Carolina has quietly launched a program that allows students to call in anonymously or fill out a Web-based form to report on classmates who might appear depressed or angry — or who just scare them,” reports Wired News. The Wave America program and website are run by the Pinkerton Corp., of security fame. On Slashdot, Jon Katz says that the site’s criteria for evaluating whether a fellow student is disturbed or depressed are alarmingly vague. The site also invites students to report anonymously about “intensely prejudiced or intolerant attitudes”, possession of weapons or alcohol on campus, or “anything else harmful to you or your school”. (Lynn Burke, “A Chilling Wave Hits Schools”, April 5; “Why call the WAVE line?“; “Early signs of violence“; Slashdot April 4 thread; our “Annals of Zero Tolerance“).

April 7-9 — L.A.’s mystifying jury summons. Think the long-form census is overkill? “The Los Angeles County court system has come up with a new jury summons form so dense that even some judges can’t make sense of it. The form, resembling a cross between a mortgage application and a deli menu, has generated a flood of complaints — including one from a Pasadena resident called to jury duty: Judge Lance Ito. He filled it out incorrectly.” (David Colker, “Jury Summons Is Guilty of Confusion”, Los Angeles Times, April 3).

April 7-9 — OSHA & telecommuters: the long view. Our editor’s April Reason column finds that this winter’s failed OSHA effort to regulate home offices was no fluke, being in many ways the logical culmination of an animus against home-based work that can be traced through decades of federal labor law (Walter Olson, “Office Managers”, Reason, April). The whole episode reminded columnist Joanne Jacobs of the manner of governance of the Emerald City: “I am OSHA, the Great and Powerful. Pay no attention to that clerk behind the curtain. The Great and Powerful OSHA has spoken. … Sorry. Never mind.” (“Work-at-home employees don’t need this kind of help from Washington”, San Jose Mercury News, Jan. 12, no longer online)

April 6 — Feds file Medicare recoupment suit over silicone implants. “The federal government wants to recover millions of dollars it spent treating thousands of women allegedly injured by silicone breast implants, and it’s trying to get in line ahead of the women for its money,” reports AP. The operative phrase above is “allegedly”, since by now it’s widely conceded that science didn’t bear out the original implant panic stoked by federal regulators and trial lawyers. But the feds undoubtedly did lay out health care moneys to treat immune disorders and other ailments “allegedly” (if not necessarily in reality) caused by the implants, so now the feds are going to demand compensation from the manufacturers. You didn’t think medical-recoupment lawsuit theories were really going to remain confined to tobacco, just because they kept saying that at the time, did you? (Michael J. Sniffen, “US Sues Over Implant Fund Recovery”, AP/Excite, April 1, link now dead; Yahoo Full Coverage; Professor David Bernstein’s breast implant litigation page; Doug Bandow, “Breast Implant Myths”, Cato Daily Commentary, Feb. 24).

April 6 — Columnist-fest. They keep writing them, and we keep linking them:

* Microsoft’s $80 billion plunge in market valuation in recent days has directly or indirectly dealt a blow to the retirement security of as many as 80 million investors, and Schroder & Co. chief economist Larry Kudlow predicts a public reaction against the kind of anti-business grandstanding exemplified by attorneys general Richard Blumenthal (Connecticut) and Eliot Spitzer (New York), whose ubiquitous appearances on cable news have been “limited only by the available volume of airtime.” Also includes some choice quotes from Gov. George W. Bush (“I’m unsympathetic to lawsuits, basically; write that down. …I have been a tort-reform governor. I’ll be a tort-reform president.”) (“Americans Vote Microsoft”, National Review, April 4; “Microsoft’s Market Value Drops $80B”, AP/Washington Post, April 3, link now dead).

* “No aspect of life is untouched by lawyers,” observes Mona Charen, citing recent cases on employer liability (Hawaiian car dealership case, see March 10-12) and personal responsibility (drunk Honda driver’s drowning, see March 28) and mentioning this website. Also quotes from an elaborate disclaimer presented to Girl Scouts before they go horseback riding (“Society is Oppressed by Litigation”, Omaha World Herald, April 5).

* Cathy Young is troubled by the recent decision of Philadelphia’s police commissioner to give outside feminist groups a big role in deciding which ambiguous incidents should be categorized as rape (“Let’s not forget the rights of accused in rape cases”, Detroit News, April 5; see March 27 commentary).

April 6 — High fee dosage. “Twenty law firms are set to share a staggering $175 million fee award for winning the settlement of a class action against drug manufacturers and wholesalers over their pricing practices.” Much of the booty will go to four veteran class action firms that filed the antitrust charges: San Francisco’s Saveri & Saveri, Chicago’s Much Shelist Freed Denenberg Ament & Rubenstein, Chicago’s Specks & Goldberg, and Philadelphia’s Berger & Montague. (Brenda Sandburg, “They’re in the Money”, The Recorder/CalLaw, Feb. 16).

April 6 — For the legal-definition file. Varying standards of proof, as defined by Slate Supreme Court correspondent Dahlia Lithwick: “The Due Process Clause of the 14th Amendment requires that each element of a crime be proved ‘beyond a reasonable doubt.’ This means that jurors must be pretty darn certain before they vote for a conviction. In contrast, the ‘preponderance of the evidence’ standard required under the New Jersey hate-crimes statute [now being reviewed by the U.S. Supreme Court] is a standard used in civil trials to mean that the facts in question are more likely true than not. This is the standard used by parents when they smell beer on your breath.” (Dahlia Lithwick, “Clarence Thomas Speaks!”, Slate, March 28).

April 5 — New Hampshire high court blowup. Yes, scandals happen even up there. Associate Justice Stephen Thayer of the New Hampshire Supreme Court resigned last Friday “after prosecutors concluded he broke the law by trying to improperly influence the assignment of judges hearing his divorce case.” Thayer maintains his innocence, but struck a deal with state Attorney General Philip McLaughlin to resign on a promise that he would not face criminal ethics charges. McLaughlin then released a report saying it was an “institutional practice” at the court for judges who’d excused themselves from cases to review and discuss draft decisions in those cases. Calls for the impeachment or resignation of other justices followed, and are being taken seriously in the state legislature.

However, Chief Justice David Brock says that, Thayer aside, judges have never been permitted to comment on draft opinions in cases where they’d recused themselves because of conflict of interest; and Justice Sherman Horton told a reporter that the sorts of occasions when judges would comment had been when they’d excused themselves for other reasons, such as illness or temporary absence. Accusing the attorney general of grandstanding, Brock said the practice went back decades and that the AG had not given the court a chance to answer the charges before taking them to the press and legislature.

SOURCES: court home page; Holly Ramer, “N.H. Supreme Court Justice Resigns”, AP/Excite, March 31, link now dead; Katharine Webster, “Three N.H. Justices May Be Removed”, AP/Excite, April 1, link now dead; “Whistleblower called hero”, Boston Globe, April 1, link now dead; Norma Love, “Legislators reeling from allegations against justices”, AP/Boston Globe, April 3, link now dead; Brock statement; Kevin Landrigan, “Judge strikes back”, Nashua Telegraph, April 4; Alec MacGillis, “He won’t resign; calls accusations ‘unfounded attack'”, Concord Monitor, April 4; Manchester Union Leader; Foster’s Daily Democrat (Dover). Updates: Brock acquitted at impeachment trial before New Hampshire Senate (Oct. 11); state disciplinary panel gives him admonishment only (May 3, 2001).

April 5 — Update: judge okays “deep linking”. In a much-watched case, Los Angeles federal judge Harry Hupp has ruled that the practice of linking to interior pages of a competitor’s web site does not by itself violate the competitor’s copyright (see our Aug. 13 commentary). The Ticketmaster Corporation had sued California-based, an online tickets service which provides links to the Ticketmaster site for tickets that it does not itself have available. The judge allowed Ticketmaster to proceed with claims that its competitor had breached its copyright in other ways, as by improperly compiling and repackaging information obtained from the Ticketmaster site. (Michelle Finley, “Attention Editors: Deep Link Away”, Wired News, March 30; Brenda Sandburg, “Copyright Not Violated by Hypertext Link”, The Recorder/CalLaw, March 31).

April 5 — Seemed a little excessive. The Pennsylvania Supreme Court has agreed to decide whether it was appropriate for a Chester County court to award $46,000 in legal fees stemming from a dispute over an original $500 legal bill. The case arose in 1988 after Maria P. Bomersbach withheld her monthly owner’s assessment at the Mountainview Condominium Owners Association because of a dispute with the association’s management over her request to inspect its budget documents. The condo association took her to court and the two sides almost settled, but were $300 apart in their offers. Ten years of intensive litigation followed, during which Mrs. Bomersbach, according to judges’ opinions, “engaged in legal ‘trench warfare’ and subjected the association to a ‘pleadings onslaught’ that would render even a competent attorney ‘shell-shocked.'” A dissenting appellate judge called the $46,548 fee “totally unreasonable, and perhaps unconscionable,” and said the condo association shared responsibility for protracting the litigation. (Lori Litchman, “Pa. Supreme Court to Decide Dispute Over $46,000 Fee to Collect $500 Legal Bill”, The Legal Intelligencer, Feb. 28).

April 5 — The booths have ears. In Canada’s National Post, John O’Sullivan writes that his “attention was caught by a small item in the British press: Police in Gloucester are cracking down on local racism by entering restaurants in disguise and listening for racist conversation. In the first week of ‘Operation Napkin,’ one man was arrested for racially aggravated harassment. Another was overheard mimicking an Indian waiter, but the police decided that his behavior did not warrant prosecution.” (John O’Sullivan, “Operation Napkin to the Rescue”, National Post, March 28, link now dead).

April 4 — Microsoft violated antitrust law, judge rules. Competitors gloat: “I think it’s fair to say that the logical conclusion is that the degree to which Microsoft is restrained, that ought to be good for everybody else in tech,” says Sun Microsystems general counsel Michael Morris, henceforth to be known as “Zero-Sum” Morris. NASDAQ investors evidently don’t agree with him, sending the index skidding 349.15 points, or 7.6 percent. “Microsoft has been kept in check by all these antitrust proceedings from doing anything too bold,” says Kevin Fong with Mayfield Fund in Menlo Park; non-boldness has its costs, Microsoft now having slipped behind Cisco in market value for the first time. And Brookings’ Robert Litan calls the ruling “manna from heaven for the private plaintiffs because it basically should eliminate a lot of their need for proof”. (Eun-Kyung Kim, “Judge Rules Against Microsoft”, AP/Yahoo, April 3, link now dead; Dick Satran, “Tech Industry Remains Guarded on Microsoft”, Reuters/Yahoo, April 3, link now dead; Yahoo Full Coverage).

April 4 — Emerging campaign issue: “brownfields” vs. Superfund lawyers. A few weeks ago (see February 26-27 commentary) a report from the U.S. Conference of Mayors found that Superfund liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Now the issue has reached the presidential campaign, with Texas Gov. George Bush yesterday calling for reforms aimed at encouraging brownfield redevelopment, including liability protections for new developers that perform responsible cleanups, an initiative that is anathema to the Superfund bar. “The old system of mandate, regulate and litigate only sends potential developers off in search of greener pastures — literally,” Bush told workers at a plant in Pennsylvania. Vice President Gore has cited the Superfund law as among his proudest legislative achievements, though others have much criticized it as a boondoggle for litigators that slows down actual cleanups. (Patricia Wilson, “Bush on Gore Turf Proposes Environmental Agenda”, Reuters/Yahoo, April 3, link now dead; Bush campaign statement).

April 4 — Progressives’ betrayal. Jonathan Rauch’s new National Journal column argues that the American Left betrayed its principles when it got into bed (much of it, at least) with trial lawyers who have lately pitched their services as ways to bypass the tiresome need for legislation. “Suddenly the American Left is on the side of fantastically wealthy private actors who are accountable to no one.”

“Who elected these lawyers to help legislatures? What will they do next, helpfully, with their billions? If lawyers file and finance lawsuits against an unpopular industry and then channel billions of dollars of booty back into government treasuries, while also channeling millions more into soft-money donations to political parties, how is that any less corrupting than when chemical companies make PAC contributions in exchange for tax breaks? … If the Left ceases to be a counterweight to huge concentrations of unaccountable private wealth and power, of what earthly use is it?” Also, don’t miss the old quote that Rauch unearths from Ralph Nader, about how undemocratic it is for governance to go on in back rooms without informed public consent and participation — this before Ralph’s friends in the trial bar realized they could govern that way. (“Triumphantly, America’s Left Betrays Itself (Again)”, National Journal, March 31).

April 4 — Now it’s hot chocolate. As if the menace of hot take-out coffee were not bad enough, Dunkin Donuts is now being sued over the temperature of the hot chocolate served at one of its outlets in Barre, Vermont. “The suit was filed in Washington County Superior Court by Diane Bradeen who claims her daughter Katrina suffered burns on her lap when the hot drink was spilled.” (“Suit filed over temperature of Dunkin Donuts’ hot chocolate”, AP/Boston Globe, April 3, link now dead).

April 3 — Book feature: “The Kinder, Gentler Military”. “So how did we get from the blood, sweat, and tears version of boot camp, to ‘Bootcamp Lite,’ … ‘battle buddies,’ ‘training time-outs,’ ‘confidence course facilitators,’ and the ‘gender-normed’ grenade throw?…

“Government nineties-style was obsessed with the self-esteem of its citizens and with avoiding injury — psychic and physical. … A doddering kind of hypochondria filled the land. Since so many new kinds of injuries were now validated by the courts and by the culture at large, new classes of victims proliferated, and activities that used to be considered a bit risky (but generally worth it) were treated like virtual minefields of danger …

“It was [also] inevitable that the personal-is-political crowd would get around to the military. They had spent much of the seventies and eighties focusing on the workplace, the home, and schools, but it had been harder to find a way into that monastery standing outside the gates, the preserve of all that was imperialistic, aggressive, violent, hierarchical, uncompromising, authoritarian. … And the military made such an exciting end-of-the-century project. In an era devoted to examining, criticizing, and rebuking masculinity, the armed forces were the last preserve where the species ran free. …

“The new broadly written and subjectively defined infraction [of “hostile environment” sexual harassment] opened up a new frontier for litigation and created a new legal language. A hostile and offensive environment is very difficult to define. … A vague definition combined with lawyers smelling money is a dangerous combination. Wherever there is a possibility for confusion (as between men and women most of the time) there is a possibility for injury, and the law gave us a crude template of victim and victimizer, hurtful act and injury, perpetrator and receiver, to fit over the most complex, the most ambivalent, the most highly charged, of our relationships: between men and women, employer and employee, teacher and student. …

“Nobody really knew where ‘sexual harassment’ began and ended and we were still struggling in the early nineties: Society and the military [are] just beginning to understand that certain behaviors constituted harassment,’ one congressman explained with great earnestness at the time. But while we tried to figure out what sexual harassment was and what it was not, the new law seemed to take on a life of its own. Our half-finished creation began to toddle around the countryside scooping up victims in its large bumbling hands. Even the president could not escape….

“[Quoting military sociologist Charles Moskos:] ‘The Tailhook convention of ’91 was the worst event for the [U.S.] Navy since Pearl Harbor.'”

— from The Kinder, Gentler Military: Can America’s Gender-Neutral Fighting Force Still Win Wars? by Stephanie Gutmann, newly published by Scribner (Review: Richard Bernstein, New York Times, March 24; Yahoo full coverage).

April 3 — Update: junk-fax lawsuit rebuffed. In Houston, Judge Harvey Brown has dismissed the lawsuit discussed in this space October 22, which demanded $7 billion from 80 area businesses that had patronized ad services that faxed coupons and other circulars to what the lawyers said were unwilling recipients. Since the suit was filed in 1995, Texas has passed a law prohibiting unsolicited commercial faxing, but the lawyers had come up with the idea of suing in state court under an earlier federal statute providing for penalties of $500 to $1500 per fax sent, which given the class action format added up to billions: one defense lawyer called it “Powerball for the clever”. (Citizens Against Lawsuit Abuse-Houston, undated; judge’s order made public March 22).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 28-30 — Degrees of intimidation. Diploma mills (self-proclaimed universities willing to mail out meaningless degrees, in exchange for what is often substantial “tuition”) have flourished lately and efforts to rein them in have foundered, writes a specialist in the field. “In 1982 the American Council on Education announced an impending, hard-hitting, and uncompromising book (I hoped) on fake schools. But by the time Diploma Mills: Degrees of Fraud finally emerged in 1988, the lawyers had marched in, and the book was, at best, soft-hitting and compromised. The authors apologized for lack of specificity (not a single currently operating fake was named) because of ‘the present litigious era.’

“Yes, schools do sue. … I’ve been sued eight times by schools …. Only one ever got to court, and that was thrown out by the judge, as frivolous, in minutes. But there is a cost in both dollars and, my wife will confirm, despondency.” (John Bear, “Diploma Mills: The $200 Million a Year Competitor You Didn’t Know You Had”, University Business, March) (via Arts & Letters Daily).

April 28-30 — Collateral damage in Drug War. Authorities earlier this month arrested Dorothy Jean Manning, 66, Ramona Ann Beck, 61, and Armitta Mae Granicy, 59, for selling iodine crystals without keeping tabs on buyers’ names and vehicle IDs as required by law. All three women work at Granicy’s Feed Store in rural Lancaster, Calif. and have been charged with repeatedly selling the crystals to undercover agents despite warnings. Ranchers use iodine crystals to treat hoof ailments in livestock, but they are also a so-called “precursor chemical” in the production of methamphetamine. (Reason Express, April 17 — third item). (Update: see letter to the editor, May 18, 2001). And Denver’s famous bookstore, the Tattered Cover, is locked in a courtroom battle with the North Metro Drug Task Force over demands that it disclose the identity of the purchaser of two books found in an Adams County residence which also contained a methamphetamine lab; the books, apparently bought from the Tattered Cover with a credit card, contained instructions for manufacturing the drug. “On April 5, five plain clothes Denver police officers showed up at the bookstore with [a] search warrant and insisted on conducting a search” but agreed to wait until a court resolved the situation. (Cheryl Arvidson, “Denver bookstore’s sales records sought in drug-lab investigation”, Freedom Forum, April 20). Update Oct. 27-29: judge orders store to hand over records.

April 28-30 —Legal Times (Washington, D.C.) “Web of the Week”. One of the nicest encomia we’ve received lately makes us anxious to live up to it. “Lawyers and litigation have been lampooned at least since Dickens. Now Walter Olson of the Manhattan Institute, a longtime critic of the excesses of litigation, has launched, a Web site that gathers daily nearly every story of this type from the media and gently skewers the profession. It remains just this side of acerbic, which actually makes the site more effective. Excessive fees, silly cases, outlandish extenuations, and my favorite, ridiculous warning labels, abound here. Read it and laugh, but take much of it to heart.” (Jonathan Groner, Legal Times, April 10).

April 28-30 — Updating Jane Austen. If the author were writing today. … “After recovering memories of childhood abuse by their father, the novel ends with the Bennet sisters awash in cash, their futures secure, and their romantic lives no longer held in thrall to the economic oppression of the patriarchy.” (Mark Lasswell, “Get real, Jane”, Women’s Quarterly, Winter 2000 (via The Occasional)).

April 27 — Sock puppet lawsuit. Internet pet supply enterprise has filed a federal lawsuit against Robert Smigel, a writer with NBC’s “Late Night With Conan O’Brien”, over Smigel’s creation of “Triumph the Insult Comic Dog”, a satirical character reminiscent of’s own highly visible sock-puppet mascot. “‘Triumph is a rubber-dog that … regularly uses vulgarity, insults both the humans and other dogs around him and often conducts physical attacks of a sexual nature on female dogs,’ the complaint says.” (“The sock that roared”, TVBarn, April 25; “ socks it to ‘Late Night’ writer”, AP/FindLaw, April 26, link now dead).

In more news from the world of doll litigation, Barbie-maker Mattel, Inc., has sued the prominent San Diego law firm of Luce, Forward, Hamilton & Scripps for slander and libel. The case arises out of a longstanding legal dispute between the giant toy company and one of Luce Forward’s clients, the Collegiate Doll Co., over sales of dolls by the latter company that allegedly infringed on “college cheerleader” versions of Barbie. Mattel now claims to have been falsely accused of illegalities and unethical conduct in an article published in Luce’s newsletter and on its website. Previously, Mattel successfully sought judicial sanctions against a Luce partner who, having weathered earlier rounds of litigation involving the curvaceous plaything, “began to tout himself as an expert in Barbie disputes,” and whose sanctionable misconduct allegedly included tossing Barbie dolls during a videotaped meeting of counsel. (Gail Diane Cox, “Barbie’s Backers Smack Firm With Slander Suit”, CalLaw, March 2).

April 27 — Let’s go to the tape. “Brian Lopina, a lobbyist for the Association of Trial Lawyers of America [recently broke] the Golden Rule of Washington Voicemail [, which] states that the only message you should ever leave on anyone’s machine is Call me …. Lopina tried to intimidate Sen. Rod Grams, the Minnesota Republican, out of backing a bill that would scrutinize asbestos suits more carefully. … [He] warned Grams that ATLA was bankrolling a set of highly effective ads against senators (like Montana Republican Conrad Burns) who weren’t dancing to the lawyers’ tune. He offered to send over a transcript of the ads, ‘so you’ll see exactly how hard-hitting this stuff is. I think you really ought to get off this bill.’ Lopina claimed to have been calling Grams as a ‘friend,’ and ATLA denied that he’d made the calls at its request. Yeah, sure — he works as a lobbyist but makes threatening calls about legislation in his spare time.” (Christopher Caldwell, “Tele-Grams”, New York Press, April 19-25). The Wall Street Journal beat us to this one with their editorial Tuesday: “The New Commissars”, April 25 (online subscribers only)). See also Dane Smith and Greg Gordon, “Grams said lobbyist tried to ‘blackmail’ him”, Minneapolis Star-Tribune, April 11 (reprinted at Coalition for Asbestos Resolution site).

April 27 — Legal Intelligencer sees Fidel’s sunny side. Whatever divergent views we may hold on the armed seizure and prospective return of Elian Gonzalez, you’d think we could all at least agree in execrating the brutal dictator whose misrule the little boy and his mother were fleeing. But no, even at this late date, the old monster has his defenders — including, it seems, some in the legal profession. Last month Philadelphia’s couldn’t-be-more-respectable Legal Intelligencer ran a kissy account of how fourteen American lawyers went to Cuba on a “fact-finding” mission sponsored by the far-left National Lawyers Guild, met the great man himself, and came back singing his praises. “There is a sense of respect for other human beings there,” effused attorney Joshua Rubinsky. “A respect you don’t see [in the United States] in terms of labor relations.”

Queasy yet? There’s much more. “Fidel Castro is a lawyer,” the account begins (which, for the record, is meaner than anything this site has ever said about lawyers). “He graduated from Cuba’s Havana University with a law degree in 1950, and, although he never practiced law, his political influence has helped shape Cuba’s legal system” — “political influence” being here a remarkable euphemism for the Communist strongman’s tendency to murder or jail opponents and critics. The story proceeds to quote attorney Gail Lopez-Henriquez, who like Mr. Rubinsky practices labor law in Philadelphia, as saying: “People we met really believe that they have a system that has some very important principles and structures that protect people’s rights, dignity and material needs.” The Legal Intelligencer never sees fit to quote even a single critic of the Cuban regime, or indeed anyone outside the admiring circle of trip-goers. (April White, “Meeting Castro Highlight of Study Trip To Cuba for Group of U.S. Labor Lawyers”, The Legal Intelligencer, March 16).

April 25-26 — New page on Free speech & media law. Newest addition to our collection of topical pages covers libel, slander and defamation suits; the use of litigation to suppress or intimidate criticism and political opposition; harassment law’s effects in curbing email jokes, cartoons and workplace banter; efforts to hold makers of shoot-’em-up movies and videogames liable for damages when their customers commit acts of violence; regulation of campaign speech; copyright, broadcast law, and other topics relating to free expression and media law. Also: we’ve updated the desktop links on the front page’s left column, dropping some less-used links, adding a half-dozen new, and creating a new section for “Science/skepticism” links, most of which had previously been found in “Diversions”.

April 25-26 — Celera stockholders vent at Milberg Weiss. Lively discussion breaks out on Motley Fool investment bulletin boards concerning suit filed by class-action filers Milberg Weiss against genome-mapping pioneer Celera after stock price drop (suit announcement). Most of the participants are decidedly unhappy about the suit’s filing, and their email protests succeeded in drawing some response from Milberg Weiss attorneys. Some jumping-off points to browse the discussion: messages #13466, 13594 (cites this site), 13775, 13806, 14041 (view threads).

April 25-26 — Preferred seating. ADA lawsuits against movie theaters proliferate, with a D.C. law firm last week seeking class-action status on behalf of millions of hearing-impaired moviegoers against two of the biggest cinema chains over their failure to install expensive captioning and other assistive technology. (“Hearing-impaired moviegoers sue Lowes [sic] and AMC”, Bloomberg/Boston Globe, April 21, link now dead). In Oregon, where activists filed a suit earlier this year seeking mandatory captioning (see February 19-21 commentary), they’ve now filed another one charging that it’s unlawful for wheelchair users to be seated in front where they may be obliged to crane their necks at an uncomfortable angle (Ashbel S. Green, “Regal Cinemas sued over seats”, The Oregonian (Portland), April 12). The Fifth Circuit, however, recently turned two thumbs down on a similar lawsuit out of El Paso. (Nathan Koppel, “Court Failed to Recognize Disabled Movie Patrons’ Difficulties, Expert Says”, Texas Lawyer, April 13).

April 25-26 — Toronto coach: ich kann nicht anders. Toronto Raptors basketball coach Butch Carter has filed a defamation lawsuit against departed player Marcus Camby, who recently described Carter as a “liar” and unpopular with the team. Camby, who alleges that Carter assured him he’d be kept on the team just before the front office traded him to the New York Knicks, said, “No one likes him and no one wants to play for him. That is the kind of guy that he is.” “I’m responding to an article of untruths in the only manner I can,” said Carter, on the question of why he was suing. “That’s through the courts.” You might think he’s overlooking at least one other manner of responding short of litigation, namely airing his side of the story in the press. Carter hasn’t been shy about doing that in the past: in an upcoming book, he alleges that one of his own former coaches back at Indiana is a “bully” and “self-serving coward” and has used racial slurs. (“Carter would withdraw suit for apology”, ESPN, April 23; “Raptors’ Carter Defends Camby Suit”, Yahoo/AP, April 24; “Carter claims Knight used racial slur”, AP/ESPN, April 14). Update: Carter soon dropped the suit (see May 4 commentary).

April 25-26 — Gray sameness of modern playgrounds. “Is there anything lamer than these new ‘safe’ playgrounds? Where is the fun in the Big Hollow Plastic Cube with Holes Cut in It? Or the Three Axles with Triangular Plastic Spinning Things for Playing Tic-Tac-Toe? … And yet overprotective surrogate mothers from the National Program for Playground Safety insist that still not enough is being done to protect the children. … Give me spinal injury inducing monkey bars over this modern plastic junk any day.” (Eigengrau weblog, April 20 entry).

April 25-26 — Thought for the day. “The history of censorship is a history of folly and cruelty” — Judge Richard Posner in Miller v. Civil City of South Bend, Seventh Circuit, 1990; quoted in the substantial new profile of him in Lingua Franca (James Ryerson, “The Outrageous Pragmatism of Richard Posner”, May).

April 25-26 — Regulation by litigation: what to do? Some ideas that might curb courts’ and trial lawyers’ penchant for acting as surrogate legislatures, including a “Model Separation of Powers Act”, a Sunshine Act requiring that governments disclose the manner in which they hire outside attorneys, and an act making clear that government can’t oust traditional defenses to liability in the course of filing third-party lawsuits over Medicaid reimbursement and the like (assuming governments should be filing such suits at all). (Victor E. Schwartz and Leah Lorber, “Regulation Through Litigation Has Just Begun: What You Can Do To Stop It”, “Briefly…” Series, National Legal Center for the Public Interest, November 1999 (PDF)).

April 24 — Scented hair gel, deodorant could mean jail time for Canadian youth. “A Halifax-area teenager may face criminal charges for wearing Dippity Do hair gel and Aqua Velva deodorant to school after his teacher complained to the RCMP [Royal Canadian Mounted Police, Mounties] about his fragrant abuse of the school’s no-scent policy. Gary Falkenham, 17, has twice been suspended from Duncan MacMillan High School in Sheet Harbour, N.S., for violating the school’s strict policy banning perfumes, aftershaves and scented hairsprays and deodorants.” (Shaune MacKinlay and Adrian Humphreys, “Student may face criminal charge for wearing smelly hair gel”, Halifax Daily News/National Post, Apr. 19. More on the “scent-free” movement, which has made Halifax its poster city: Larry M. Greenburg, “One City Turns Up Its Nose Against the Use of Perfume”, Wall Street Journal, July 28, 1999, reprinted at Junk Science; Betty Bridges, “Halifax Leads the Way With Fragrance-Free Policies”, Flipside, Sept. 1999; Dalhousie U. policy, Environmental Health Network, Fragranced Products Information Network).

April 24 — Court rejects “telephone sex slave” charge. A federal judge has dismissed Doris Ford’s lawsuit charging that Hartford businessman and power broker Arthur T. Anderson had coerced her into being his highly paid “telephone sex slave”. Ms. Ford did not allege that the couple had had physical contact since 1977, and the judge said that even if it were true that the two had more recently engaged in sexually oriented telephone conversations and that she had received sums in excess of $150,000 from Mr. Anderson, the relationship could at most be described as contractual. Anderson’s lawyer says his client had made payments to Ford for years to keep her from revealing their long-ago extramarital relationship. Ms. Ford’s lawyer, Norman A. Pattis, conceded that his claim invoking the federal Violence Against Women Act was “creatively pleaded and probably on the cutting edge.” (Mark Pazniokas, “Judge Rejects Sex Slave Suit”, Hartford Courant, Apr. 21, link now dead).

April 24 — Less suing = less suffering. New England Journal of Medicine study on crash injuries before and after Saskatchewan’s introduction of no-fault insurance finds “the elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury.” Not only did fewer people claim whiplash under the no-fault system, but no-fault’s much faster resolution of claims appeared to be strongly correlated with faster recovery, less intense pain and fewer depressive symptoms. (J. David Cassidy and other authors, “Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury”, New England Journal of Medicine, April 20). A related editorial in NEJM calls the findings “dramatic” and adds: “An obvious concern is whether this change simply forced severely injured patients to suffer in silence without appropriate compensation for ongoing impairments. Several considerations suggest that this explanation is unlikely.” The medical harm done by the fault system, the editorialist proposes, is not so much in encouraging conscious malingering as in generating excessive medical attention and overly alarmist diagnoses that can become self-fulfilling. The editorial also cites studies from Australia and Lithuania suggesting that the legal environment has a profound impact on the amount of perceived pain and disability experienced by whiplash sufferers (“Pain and Public Policy“). Update: trial lawyers’ response (see June 26).

April 24 — Maryland: knowledge, notice not needed to sue landlords over lead. By a 4-to-3 margin, the Maryland Court of Appeals has ruled that apartment owners can be made to face personal-injury claims on behalf of children who ingest lead paint in their units regardless of whether the tenant ever complained about the paint or asked that it be corrected, and regardless of whether the owner knew there was a hazardous condition. The decision overruled a Baltimore Circuit Court jury decision and is expected to open the gates to more widespread legal action against building owners. (Jim Haner, “Landlords can be liable, appellate court rules”, Baltimore Sun, Apr. 21) (more on Maryland and on lead-paint litigation: see Mar. 15, Oct. 19 commentaries).

April 21-23 — The unconflicted Prof. Daynard. On January 8 of this year the British Medical Journal published an article entitled “Tobacco litigation worldwide” by Prof. Richard Daynard of Northeastern University School of Law and two co-authors (Clive Bates of Action on Smoking and Health in London, and Australian barrister Neil Francey). Prof. Daynard is by far reporters’ favorite academic to call when they’re looking for a quote supportive of lawsuits against cigarette makers, and his BMJ article is very much in line with the drift of his previously voiced opinions: it praises such lawsuits as a “productive and promising strategy” for public health, and deplores as “unfortunate” the disapproving attitude toward such lawsuits taken by British courts. So far, so routine. But then at the end of the article appears the following notice: “Competing interests: None declared.”

No competing interests declared? Not any?

Daynard directs the Tobacco Control Resource Center & Tobacco Products Liability Project, and from the way he’s been described in countless press clips over the years (samples: coverage originating in the Washington Post, L. A. Times, AP), you might conclude that he’s contented himself with rendering whatever assistance he can to such suits as a kind of cheerleader from the sidelines, with nothing at stake beyond ideological zeal. So it might have come as a distinct surprise when it was reported in late 1998 that for some time he’d been (in his own view) the owner of an actual contingency share in moneys to be legally extracted from tobacco companies. In December of that year, arbitrators awarded a staggering $8.2 billion in fees to the small band of plaintiff’s attorneys who represented the states of Mississippi, Florida and Texas in the tobacco-Medicaid litigation. At this point we turn the narration over to the National Law Journal: “Richard A. Daynard, the Northeastern University School of Law professor who is a veteran anti-tobacco activist, asked arbitrators for fees for his work on the Florida case, represented by former brother-in-law David Boies, of Armonk, N.Y.’s Boies & Schiller L.L.P. [later famed as the Clinton Justice Department’s lawyer in the Microsoft case — ed.] The arbitrators ruled that they lacked jurisdiction over his claim, leaving him empty-handed. Professor Daynard also says Mr. [Richard] Scruggs promised him 5% of the fees earned by his firm and by the Charleston, S.C., firm Ness Motley Loadholt Richardson & Poole P.A. from the state lawsuits. [emphasis added] Taken together, the two firms represent the lion’s share of states that sued the tobacco industry. Mr. Scruggs said he never made any such promise.” (Bob Van Voris, “Tobacco Road Not Gold for All”, Dec. 28, 1998 – Jan. 4, 1999).

How much would 5 percent of the fees won by the Scruggs and Ness Motley firms amount to? Last year George estimated that the Scruggs firm was going to reap more than $1 billion from its state tobacco representation (see Aug. 21 commentary), and last fall the Dallas Morning News estimated that the Ness Motley firm was going to bag more than $3 billion (see Nov. 1 commentary). If both those estimates were borne out, the share that Prof. Daynard claimed had been privately promised to him might be reckoned at 0.05 x $4 billion, or $200 million — relying as we must on back-of-the-envelope calculations, since far less about this whole topic is a matter of public record than one would like.

Even today, after such eye-openers, most media reports go right on characterizing Prof. Daynard using such anodyne formulas as “head of an anti-tobacco clearinghouse” (AP), “director of a group that encourages lawsuits against tobacco companies” (AP again), and head of a “pressure group” (Sydney Morning Herald). Yet while relaxed standards may prevail on such matters in everyday reporting, medical journals are supposed to be different — a whole lot different. BMJ‘s policy on competing interests reaches back to require disclosure of financial entanglements at any point extending back over five years. Indeed, in recent years the once cozy world of medical journals has been convulsed by a series of controversies over whether existing standards on the disclosure of competing interests have been too lax, as when researchers have been allowed to opine in journal pages about the efficacy of drug compounds without revealing pecuniary ties they might have to drugmaking firms (“Beyond conflict of interest: Transparency is the key”, BMJ, August 1, 1998).

One of those who wondered whether BMJ‘s policy had been lived up to in the Daynard case was Martha Perske of Darien, Ct., who wrote editor Richard Smith in January to call some of the pertinent facts to his attention and ask whether a clarification would be forthcoming in the journal’s pages. Ms. Perske informs this website that Dr. Smith wrote back agreeing that the question deserved to be looked into, and promised to get back to her. That was at the end of February; since then she says she’s heard nothing. Dr. Smith’s own August 1998 editorial on the subject states: “If we learn after publication that authors had competing interests that they did not disclose then we will tell readers.” Later developments: letters, Jan. 31 and Jun. 13, 2001; posts, Aug. 2 and Dec. 17, 2001 (following a persistent campaign by Ms. Perske, and more than a year and a half after the original article, BMJ finally in Oct. 2001 semi-discloses to readers Daynard’s ties to the litigation.) (DURABLE LINK)

April 21-23 — Overlawyered schools: three views. Your chances of being murdered in an American school are almost vanishingly small, but your chances of imagining yourself living through an Orwell novel during your time there are not so remote:

* Now that the White House has turned thumbs down on a “preposterous” plan to set aside a $50 million compensation fund for Columbine victims, a lawyer for survivors says, “We have no recourse but to file suit.” Vincent Carroll of Denver’s Rocky Mountain News reacts: “‘No recourse,’ he says, as if suing people who had nothing to do with the shootings were as unavoidable as breathing. Yet the attorneys’ offer to drop their litigation for a multimillion dollar fund does have the beneficial effect of eliminating all pretense of what the Columbine lawsuits will be about. Not some noble quest to uncover the truth, it turns out, but money. The fund proposal is the proof.” Much more worth reading here too (“Lawsuits Take Therapy’s Place”, April 16)

* Slashdot’s Jon Katz pays a visit to the Pinkerton Corp. to protest the new hotline it runs for North Carolina school-informants (see April 7-9 commentary) and learns “something I hadn’t quite grasped: the anonymous reporting culture is a growing business, now deeply entrenched in the United States, a result of the victimization movement and lawsuit epidemic rampant for nearly a generation. Encouraged by federal and local governments, and many corporate and educational institutions, hotlines operate all over the country to report date rape, sexual harassment, abuse, and other forms of brutality and insensitivity. … Pinkerton itself runs more than 800 such lines. It was inevitable, said Jim, that they would move into schools, and that Pinkerton would extend its security expertise and set them up. … I was transfixed by the idea of a democratic country whose response to social problems was to create an entire new tradition of informing.” (Jon Katz, “Showdown with the Pinkertons”,, April 13)

* Meanwhile, school authorities run into obstacles in the form of numerous federal laws and court doctrines, notably the 1975 Individuals with Disabilities Education Act, when they try to discipline, suspend or transfer students who genuinely do misbehave in serious ways, according to the Manhattan Institute’s Kay Hymowitz (“Get the lawyers out of schools”, New York Daily News, Apr. 16).

February 2000 archives, part 2

February 29 — Update: Publishers Clearing House case. Turning aside objections from state attorneys general who viewed the deal as offering more prizes to lawyers than to magazine subscribers, federal judge G. Patrick Murphy approved a settlement of a class-action suit against Publishers Clearing House for allegedly misleading sweepstakes claims. He also approved as fair and reasonable the payment of $3 million in legal fees to the class lawyers, a sum criticized as excessive by objectors and by commentators such as the St. Louis Post-Dispatch‘s Bill McClellan. (“Publishers Clearing House Deal OKd”, AP/FindLaw, Feb. 22).

As readers of this space will recall (see Nov. 30, Nov. 4 commentaries) McClellan in his column on the suit jocularly compared class-action lawyers to bank robbers and then corrected himself, saying the comparison wasn’t fair to bank robbers, who don’t pretend they’re in business for our good. Class-action lawyers Judy Cates and Stephen Katz then proceeded to sue him for $1 million, charging that these sentiments had defamed them. Among the discovery demands they proceeded to make was that McClellan turn over everything he’d written in the past decade that was “in any way critical or mocking to lawyers or lawsuits.” In another of their discovery forays, McClellan advises readers in a recent column, “Cates and Katz were demanding all correspondence I have received relating to their lawsuit. In other words, if you sent me a letter or an e-mail concerning this case, they wanted it. They wanted to see who has written what about them.” Now an agreement has been reached to end the lawsuit — on what terms is not immediately apparent. (Bill McClellan, “This is a situation where even when you win, you lose”, St. Louis Post-Dispatch, Feb. 23).

February 29 — Feds’ mission: target Silicon Valley for race complaints. The federal Equal Employment Opportunity Commission has decided that Silicon Valley employers would make a suitably high-profile target for a series of race discrimination complaints, and now is “scouring” the Valley for likely defendants. A likely charge is that despite the strong representation in high-tech employment of ethnic groups from around the world, local blacks and Hispanics are underrepresented in professional and managerial slots. “We’ve been beefing up our staffing in every place that we see significant economic growth related to high technology,” says EEOC vice chairman Paul Igasaki, a long-time civil rights attorney: “this is an industry in which a message may need to be sent.” A source within the agency puts it more bluntly: “We’re busy looking under every rock we can, looking for a couple of high-profile companies we can hit with a suit.” (Gary Rivlin, “Busting the Myth of the Meritocracy”, The Industry Standard, Feb. 21).

February 29 — Tobacco lawyers’ lien leverage. While states are salivating at the vast new revenue banquet promised by the tobacco settlement — with no need to do anything unpopular, like raise taxes! — some are finding that the trial lawyers who seemed so helpful at first are now proving obstreperous, slapping the states with liens that may prevent the distribution of some or all settlement booty until the lawyers’ share is resolved. In New Jersey, Bergen County plaintiff’s attorneys Terry Bottinelli and Marc Saperstein blocked access to upwards of $92 million in funds, then relented when the state agreed to help document their case for sharing in the fee payday, though in the end it merely made short mention of their work in a press release. (Matt Ackermann, “New Jersey’s Tobacco-Suit Dividends Delayed by Hold-Out Attorneys”, New Jersey Law Journal, Jan. 11; “Holdout Tobacco Lawyers Will Relent If State Documents Their Case for Fees”, Jan. 18; “N.J. Tobacco Settlement Holdouts Drop Appeal”, Feb. 17) (more N.J. tobacco-fee coverage: Oct. 1). In Illinois, Seattle attorney Steve Berman’s Hagens & Berman, San Francisco’s Lieff, Cabraser, Heimann & Bernstein, and two other firms slapped a lien on the state’s $9.1 billion windfall; last fall a national arbitration panel ruled that while the Berman firm had been an important player in tobacco litigation on the national scene, “relatively little was done to advance the case to trial in Illinois”. Berman, quoted in the Chicago Tribune, conceded that not everyone sympathized with his position that he and the other lawyers are nonetheless entitled to as much as $910 million for their Illinois work: “Some people say lawyers have got a lot of money and are overpaid and are bad guys anyway”. (Rick Pearson, “Lawyers demand a bigger piece of tobacco cash pie”, Chicago Tribune, Nov. 23) (more Illinois tobacco-fee coverage: Oct. 16; more on Berman: Feb. 28, Aug. 21).

February 28 — “Medical errors” study. Malpractice lawyers have already seized on a recent federal study (see Feb. 22 commentary) which extrapolated from a study of hospitals in three states to the conclusion that between 44,000 and 98,000 patients die each year nationally because of mistakes in medical care. In a short paper for the Statistical Assessment Service, Iain Murray and Howard Fienberg point out a few of the study’s questionable premises. For example, the study’s definition of medication-related errors, a significant share of the total, “is based on errors that resulted ‘from acknowledged errors by patients and medical personnel'” (emphasis added). “In other words, if a patient takes an overdose or fails to inform their medical advisers of other conflicting medications they are taking, that is regarded as a medical error, rather than misadventure.” (Iain Murray and Howard Fienberg, “Doctoring the Data, Nursing the News?”, “STATS Spotlight”, Feb. 24) (via Junk Science). Plus: a Chicago Tribune editorial urges caution: “Don’t Compound Medical Errors”, Feb. 27.

February 28 — Fifteen years locked away. If you think the day-care-abuse mania of the 1980s has mostly run its course, consider the case of Bernard Baran, convicted of mass molestation in 1985 in Pittsfield, Mass. under the sorts of dubious circumstances that were later to become familiar in such cases. Katha Pollitt’s Nation account mentions in passing that the mother who initiated the accusations, a drug addict living in troubled circumstances, proceeded to file a suit against the center demanding $3.2 million (the case “was settled out of court, reputedly for a small sum”), and that one of the children, whose mother was a friend of the original accuser, “told a therapist after the trial that her mother had told her to say Baran had molested her so they could get toys and money”. Since Baran still insists on his innocence he’s ineligible for parole. (Katha Pollitt, “Subject to Debate: Justice for Bernard Baran”, The Nation, March 13) (via Arts & Letters Daily) (“The Appalling Case of Bernard Baran”, website about the case).

February 28 — Hiring talent from the opposing camp. Seattle plaintiff’s lawyer Steven Berman is among the most feared in the country; a class-action securities specialist, he went on to assume a prominent role in the tobacco litigation (see August 21; his fee from that has been estimated at $2 billion). But now the city’s best known corporate citizen, Microsoft, has quietly hired Berman to help it fend off the wave of class-action lawsuits it’s facing over its antitrust troubles. According to Forbes‘s “The Informer”, Berman and Microsoft chairman Bill Gates have become personal friends — notwithstanding a 1989 incident in which, following a sudden drop in the company’s stock price, Berman filed a lawsuit against the company and won $1.5 million. (Elizabeth Corcoran and Tomas Kellner, “The Informer”, Forbes, Feb. 7) (fourth item).

February 28 — Welcome Duke Law visitors. is the featured “site of the week” on the Duke Law School “Faculty and Staff Gateway” page.

February 26-27 — Legal ethics meet medical ethics. Two weeks ago, in preparation for his second murder trial on charges of pushing Kendra Webdale to her death on the New York subway last January, Andrew Goldstein went off his antipsychotic medication. Mr. Goldstein’s court-appointed lawyers “advised him to go off his drugs in an effort to demonstrate to the jury the debilitating effects of his mental illness”. Doctors treating the 30-year-old schizophrenic at Bellevue were strongly opposed to the tactic, and some outside observers were also skeptical, such as Columbia law professor Richard Uviller, who said “a lawyer’s first duty is to preserve his client’s health.” However, schizophrenia expert Dr. E. Fuller Torrey called the move legitimate and said he himself “had intentionally given homeless mentally ill patients less medication than they needed before court competency hearings to keep them from being released back onto the street.” Justice Carol Berkman of State Supreme Court in Manhattan “has said she would allow Mr. Goldstein to stop taking his medication for as long as he appeared competent to stand trial. If he appeared not to understand his surroundings, she ruled, he would be forcibly given his medication.” The new trial is expected to last at least a month; the first ended in a jury deadlock and mistrial. (David Rohde, “For Retrial, Subway Defendant Goes Off Medication”, New York Times, Feb. 23 — fee-based archive).

February 26-27 — “Judgment reversed in Seinfeld case”. “An appeals court on Tuesday reversed a $25 million judgment awarded to a man who was fired after a female co-worker complained that he harassed her by discussing a racy episode of ‘Seinfeld.’ … The ‘Seinfeld’ element of the case eventually became secondary and a Milwaukee County Circuit court dismissed a wrongful-firing claim.” Jerold Mackenzie had argued that his bosses at Miller Brewing Co. were already plotting to fire him from his $95,000-a-year management job at a time when they told him his position was safe. (Jenny Price, AP/Washington Post, Feb. 22, link now dead).

February 26-27 — Deep pockets blameable for denial of service attacks? PBS commentator Robert X. Cringely has posted a bunch of emails from his readers concerning the coordinated “distributed denial of service” attacks on major web sites earlier this month. Among them was the following from Jay Kangel: “At some point one of these hacking events is going to cost someone who can hire lots of lawyers with real money. At that point the victim, or the victim’s insurance company, will want to sue for damages. The actual hacker will likely have little or no money. Even if the victim wins such a suit the damages cannot be recovered. The deep pockets are the owners of the zombie machines. Is it negligence if a machine owner does not promptly install security patches and, as a result, hackers take over the machine? I don’t know….” (“The Cat is Out of the Bag”, I, Cringely: The Pulpit, Feb. 24).

February 26-27 — Mayors: liability fears stalling “brownfields” development. A report from the U.S. Conference of Mayors finds that liability fears are among major factors stalling redevelopment of “brownfields” (abandoned or underused industrial sites) in American cities. Environmentalists and urbanists consider brownfields an attractive alternative for new industrial development near the existing workforce, remedying eyesores and bolstering urban tax bases while avoiding development of peripheral vacant land around cities (“sprawl”). The open-ended liability inflicted by the Superfund program, however, menaces new developers, lenders, realtors and users with potential responsibility for the environmental sins of long-departed actors. (“Traci Watson, “Report finds more than 80,000 acres of polluted land in USA”, USA Today, Feb. 25, link now dead; report and news release).

February 25 — Music stores sue Sony. Candidate for the distinction of lamest business-vs.-business suit of the year? You be the judge. The National Association of Recording Merchandisers has filed suit against Sony for the purported offense of including hyperlinks and promotional inserts in or with its music products that enable/encourage consumers to use its online store, thus “diverting” them away from their destined role as future purchasers at the retail outlet. “Few retailers are happy about having to stock Ricky Martin CD’s with hyperlinks to [where customers can buy more CDs], but Sony hasn’t provided any alternative,” complains Pamela Horovitz of NARM. This practice amounts, says Horovitz, to “forcing retailers to steer their own customers to competitive sites”. “Forcing”? Well, it seems, the latest Ricky Martin album was just too darn popular for record stores to consider not stocking it by way of punishing Sony for its hyperlink policy.

The retailers insist that Sony has a legal obligation to make available to them CDs stripped of the capability to hyperlink to an online store, much as if newsstand distributors demanded that publishers supply magazines that were free of subscription cards (which of course tend to “divert” readers’ business from further newsstand purchases of the magazine). The complaint also charges Sony with “copyright misuse, illegal price discrimination by favoring its own record club and on-line music retailer (CDNow/ Columbia House) over other retailers, unfair competition, and false advertising.” (“Retailers Sue Sony”, Reuters/Wired News, Jan. 31; NARM press release, Jan. 31; Pamela Horovitz, commentary, Billboard, July 1999 (reprinted at NARM site, second item)).

February 25 — Not to be dismissed. Item from a recent (Jan. 27) edition of Chuck Shepherd’s News of the Weird, under the heading “Fireproof Workers“: “An arbitration panel ruled in July that Toronto Transit Commission janitor Winston Ruhle had been improperly fired and deserved about $115,000 (U.S.) in damages; he was fired in 1995 for padding his recuperation time after surgery, improperly missing 203 days during a 244-day period. And English chauffeur John Forbes, 55, won an employment tribunal ruling in September that it was unfair to fire him simply because he had twice dressed in women’s clothing on the job and flashed his underwear to passing motorists.”

February 25 — Secrets of class action defense. “Some companies facing a multitude of class actions have been accused of shopping for the cheapest settlements by choosing to deal with lawyers willing to seek less for class members, sometimes in return for a hefty legal fee,” reports the Mobile Register in its investigative series (see Feb. 7 commentary). For example, Norwest Financial was accused of overcharging for credit life insurance in a class action filed in Birmingham; it offered a settlement, which was rejected. It then struck a similar deal with a Mobile lawyer to settle the case on behalf of the same class. “‘Defendants can to some degree get different plaintiffs’ lawyers to bid against each other,’ said John Coffee, a professor at Columbia University in New York and expert on class action law. … If one plaintiffs’ lawyer drives a hard bargain and seeks a truly beneficial settlement for a class, a company may seek another lawyer and ask him to file a suit for the purpose of settling, and on terms the company dictates.

“Coffee said it’s ‘a game’ by which a defendant arranges for a plaintiffs’ attorney to agree to a ‘modest settlement for the class but very lucrative attorney’s fees. The defendant might even write up the complaint to make sure it’s competent and covers everything,’ Coffee said.” (Eddie Curran, “Judge: Mobile deal a ‘cheap ticket out of trouble'”, Dec. 27 (full series).

February 24 — Columnist-fest: liberal aims, illiberal means. Three variations on a theme, namely how progressive social goals aren’t always well served by handing ever-greater authority to those who run the legal process:

* Wendy Kaminer understands why feminists would rally behind the Violence Against Women Act, currently up before the Supreme Court in Brzonkala v. Virginia Tech, but wonders whether liberals should really be comfortable arguing for an expansive view of federal police power. “We need to combat sexual violence without making a federal case of it.” (“Sexual Congress”, American Prospect, Feb. 14).

* Stuart Taylor welcomes the idea of extending legal recognition in Vermont to same-sex relationships, but asks: should this advance really be put over by way of a unilateral assertion of power by the state’s Supreme Court? (“A Vote For Gay Marriage — But Not By Judicial Fiat”, National Journal, Feb. 21).

* William Raspberry agrees that loving relatives should be a part of kids’ lives, but still is mystified by the law under review in the Supreme Court’s pending Troxel v. Granville: “If you stipulate the mother’s parental fitness (as both sides seemed to do in last week’s questioning by the justices) then how can you insist that she bow to the grandparents’ desires — or even that she has to explain why she chooses not to?” (“Grandparents’ visitation rights case misses boat”, Detroit News, Jan. 18).

February 24 — House passes liability reforms. President Clinton is going to huff and puff and use his veto to blow down anything that looks like a shelter from the incursions of his good friends in the trial bar, which hasn’t deterred the House from passing two bills this month aimed at extending modest degrees of such protection to small businesses and manufacturers of long-lived capital goods. (“GOP makes little headway in reining in lawsuits”, AP/CNN, Feb. 22, link now dead). The small business bill would restrict punitive damages levied against enterprises with fewer than 25 employees to $250,000 or three times actual damages, whichever is less, and would require plaintiffs seeking punitive damages to show that a defendant acted with “willful misconduct and was flagrantly indifferent to the rights and safety of others.” (“House Passes Bill Shielding Small Businesses From Liability Suits”,, Feb. 16.) The durable-goods bill would bar suits against makers of factory equipment that were filed more than 18 years after the delivery of the equipment to its original user; it would not apply to workers who are ineligible for workers’ compensation. (Paul Barton, “House passes cap on makers’ liability”, Cincinnati Enquirer, Feb. 3). The two bills passed by almost identical margins — 221-193 for the small business bill, and 222-194 for the statute of repose bill — with about two dozen Democrats crossing over to join the GOP majority in favor, and about one dozen Republicans crossing the other way.

February 24 — Blaming good pilots. One of the first lawsuits arising from the Jan. 31 Alaska Airlines crash over the Pacific claims that “the pilots should have ‘immediately … land(ed) the aircraft upon first notice of difficulty in operation.’ … But the second-guessing, and the widow’s lawsuit, are wrong. The pilots did what they were supposed to: Analyze the situation, take corrective action, land as soon as practicable. Hurtling through the skies in a pressurized metal tube has its risks. Slapping the airline with a lawsuit won’t make those risks magically disappear. … The pilots were heroes, keeping their crippled plane over the ocean instead of slamming it into suburban Los Angeles.” (Phaedra Hise, “Aerial ambulance chasing”, Salon, Feb. 18) (more on overlawyered skies: Oct. 8, July 19, Dec. 1, Dec. 9, “Kingdom of the One-Eyed“, “Life, Liberty, and the Pursuit of a Good Beer)

February 23 — Crime does pay, cont’d. A federal judge last week refused to dismiss a civil rights lawsuit by family members of a bank robber killed in a spectacular televised shootout with police in North Hollywood, Calif. Emil Matasareanu and Larry Eugene Phillips Jr. “fired more than 1,200 rounds from automatic weapons during a 44-minute battle on Feb. 28, 1997. Both men died, and 11 officers and a half-dozen civilians were wounded.” Attorney Stephen Yagman, representing the family, alleges that police violated Matasareanu’s rights by deliberately “keeping paramedics away from him for an hour as he died on the street….The city has contended that paramedics were needed elsewhere and that authorities initially feared Matasareanu might be booby-trapped.” (“Judge allows lawsuit to go forward in North Hollywood shootout case”, AP/FindLaw, Feb. 16).

February 23 — “How’s the pool?” “It’s okay, but what’s amazing about it is that its construction predates massive lawsuits, so it actually has a deep end. Where most new Las Vegas pools are only three feet deep, this one goes to twelve feet. The diving board has been removed, however.” — from a review of the Frontier Hotel on the website Better hurry, though: the review advises that “The Frontier is scheduled to be demolished in the summer of 2000”.

February 23 — That Hager case. The Washington Post‘s David Segal, who covered the lawyer beat for three years and has now moved on to write about music, last month penned a valedictory column which mentioned one of his regrets: not having taken a harder look at the disciplinary process for D.C. lawyers and in particular “the tale of Mark Hager, the American University Law professor and sometime plaintiffs lawyer.

“He represented a pair of Virginia mothers who wanted to sue Warner Lambert, makers of a lice shampoo, for creating an environmental hazard and for failing to rid critters from their children’s heads. In an out-of-court deal, Warner Lambert offered refunds to the moms and some 90 other buyers of Nix shampoo, a sum that totaled less than $10,000. Hager and a partner, meanwhile, ended up splitting the $225,000 that Warner Lambert paid on condition that the lawyers not bring another, similar suit and — here’s the kicker — not tell their clients about the bargain. (Hager countered that the deal was legit, in part because it doesn’t prevent his clients from suing Warner Lambert in the future. He also said the moms’ demand for a toxic tort-style suit was unreasonable.)

“The moms filed an ethics grievance and a hearing before a committee of the D.C. Board of Professional Responsibility — which recommends disciplinary action — occurred in January. Not a peep has been heard from that committee since, even though it’s supposed to cough up a recommendation within 60 days.”

Concludes Segal: “That’s an outrage. If Washington lawyers want the trust of their clients and abiding respect from the rest of us, devising a more efficient policing mechanism might be a good start.” (Update May 3, 2001: disciplinary panel in Nov. 2000 called Hager’s conduct “shockingly outrageous” and recommended three-year suspension) (Update Jul. 19, 2003: Hager resigns AU post in April 2003).

SOURCES: David Segal, “Hearsay: Verdicts Rendered, a Beat Surrendered”, Washington Post, Jan. 17; David Segal, “Group Says Lawyer Made Secret Deal”, Washington Post, November 4, 1998, and Siobhan Roth, “American University Professor Faces Ethics Charges, Legal Times, Jan. 18, 1999, both reprinted at site; “‘Settlement’ in lice shampoo case probed”, AP, Jan. 27, 1999, reprinted at “Safe 2 Use” commercial page; Goldie H. Gider, “Law Professor Faces Ethics Charges”, The Legal Reformer (HALT), Spring 1999 (second item); Deborah Kelly, “Lice infestations on the rise”, Richmond Times-Dispatch, May 29, 1997. In addition to publishing in such outlets as Monthly Review and Z Magazine, Prof. Hager has also distinguished himself for the vehemence of his attacks on liability reformers; see, for example, “Civil Compensation and Its Discontents: A Response to [Peter] Huber,” 42 Stanford Law Review 539 (1990) (not online).

February 23 — “Quadriplegic is given 7 years in prison for selling marijuana”. In another triumph for the drug war, a federal court has sentenced Louis E. Covar Jr., 51, to prison for seven years. Covar, a wheelchair user who cannot control his muscles beneath his shoulders, says he uses marijuana for medicinal purposes but police testified that he was selling it, in violation of probation terms for a conviction for marijuana possession last March. “According to the Department of Corrections, the special care Covar will need will cost $258.33 a day — or more than $660,000 if he serves his full seven years. A typical prisoner costs taxpayers $47.63 per day.” Federal judge J. Carlisle Overstreet said he was aware of the cost-of-custody problem but said Covar had showed “blatant disregard for the law”. (AP/Deseret News, Feb. 19).

February 23 — sets new visitor record. Yesterday was our busiest day ever, thanks in large part to the Wall Street Journal‘s generous editorial mention and the live link in its interactive edition.

February 22 — Welcome Wall Street Journal readers. In an editorial (“Virtual Sanity“) hailing the anti-food-scare Guest Choice Network, the Journal says that “, a site run by Walter Olson to track the excesses of the lawsuit industry” is one of “a new breed of Websites… cropping up to keep tabs on the army of lawyers and activists”. (“Virtual Sanity”, Wall Street Journal, Feb. 22 (online subscription required)).

February 22 — Against medical advice. Ignoring the advice of both his own subordinates and the medical profession, President Clinton is expected today to unveil a package of measures aimed at combating “medical errors” among doctors, hospitals and other medical providers. The most controversial measure would subject providers to legal sanctions if they fail to report such errors. Since there’s often much doubt as to whether a particular incident constituted error and whether it contributed to a patient’s bad outcome, institutions could stay out of legal danger only by reporting as “error” many incidents that they might not be convinced are such. Despite supposed safeguards for privacy, the New York Times reports, it will often be possible for outsiders to identify the names of patients and doctors involved, and “public reports could be used to strengthen the hand of plaintiffs’ lawyers in malpractice lawsuits.”

The proposals follow a stampede set off by the release of a federally sponsored study which found high rates of avoidable injury to patients in the medical system. (For skeptical looks at the same Harvard-based researchers’ earlier allegations of an “epidemic” of medical malpractice, see Richard Anderson, 1996, and Peter Huber, 1990 and 1997). Both the American Medical Association and the American Hospital Association have warned that, to quote the Times, “if doctors and hospital employees fear being sued…they will be reluctant to discuss the lessons that could be learned from their mistakes.” Also conspicuous by its absence is any evidence that federally managed health care facilities, such as Veterans’ Administration hospitals, are presently achieving more success at avoiding errors than private hospitals, or any demonstration of why Washington should be imposing untried changes on private hospital management when it has as yet done nothing to demonstrate the workability of the proposed changes in its own facilities.

Indeed, “[e]ven Mr. Clinton’s own advisers had suggested that the administration move cautiously.” Instead, Clinton — fresh from a $500,000 trial-lawyer-hosted fund-raiser in Dallas two weeks ago — overrode their advice. He also insisted that an additional principle be part of the package: no matter how many rights doctors and hospitals are made to give up, no jot or tittle of the right to sue doctors or hospitals for malpractice may be interfered with. (Robert Pear, “Clinton to Propose a System to Reduce Medical Mistakes”, New York Times, Feb. 22 (requires registration)).

P.S.: For the past year, having abruptly reversed its earlier stance of resisting the expansion of litigation, organized American medicine has been cheerleading the trial lawyers’ assault on HMOs; the Connecticut State Medical Society, for example, recently sponsored trial lawyer bigwig Richard Scruggs to come to the state to talk up the subject. This could be seen as a kind of experiment: with the trial lawyers receiving such extraordinary and unexpected assistance from their old enemy, would they ease off on their litigation war against the doctors themselves? The Clinton initiative provides a definitive answer to that question: no, they won’t. (Edward J. Croder, “$300 million lawyer revs up to take on HMOs” (Scruggs speech at Quinnipiac College School of Law), New Haven Register, Feb. 11 — not online)

February 19-21 — “Deaf group files lawsuit against movie theaters.” Invoking the Americans with Disabilities Act, eight hearing-impaired persons in Portland, Oregon have filed what aspires to the status of a national class action seeking to force three large cinema chains, Regal, Century, and Carmike, to install closed captioning devices for films in their theaters. The technology, called MoPix, displays captions in a patron’s cupholder; the plaintiffs say it costs about $12,000 a screen to install. A spokesman for the suit, attorney Dennis Steinman, said the country’s biggest cinema chain, Cinemark, was likely to be added soon to the case as a defendant. (Ashbel Green, “Suit seeks to aid deaf moviegoers”, The Oregonian, Feb. 4).

February 19-21 — Bountiful NYC taxpayers come through again. It happened in 1989: Driver Jack Goldberg, under the influence of heroin, cocaine and methadone, lost control of his car and ran onto a Brooklyn sidewalk, gravely injuring Linda Davis, who’d been waiting with her daughter and grandson to catch a bus. Pleading guilty to assault, Goldberg was sent to prison for two years. But the blame could hardly be allowed to stop there, especially not when a far deeper pocket was on hand. Mr. Goldberg proceeded to aver that he’d swerved to avoid a city sanitation truck that was entering the intersection against the light. This theory outraged city officials, who according to the New York Law Journal “contended that Mr. Goldberg admitted at his deposition that he did not recall even seeing the truck in the area and that he had swerved to avoid striking a boy who had run into the street half a block away.” Nonetheless, on December 16 a Kings County jury proceeded to find the city 23 percent culpable for the incident and hand down a $16 million verdict in the suit brought by Ms. Davis and her relatives; joint and several liability should do the rest. (“Verdicts and Settlements”, New York Law Journal, Jan. 28, not online).

February 19-21 — Harassment-law roundup. A new product called Disappearing Email is set to launch next month which automatically “shreds” and destroys email after a certain length of time as determined by company policy; the target market is companies worried that internal emails will be used against them by lawyers in harassment or other types of litigation. (“Email’s Vanishing Act”, Wired News, Feb. 7). Meanwhile, the Industry Standard takes a look at the widely publicized sexual harassment lawsuits filed by two employees against Juno, the Internet start-up. (Susan Orenstein, “What happened at Juno”, The Standard, Feb. 7). And at Intellectual Capital, reader discussion is in progress about Joan Kennedy Taylor’s book What to Do When You Don’t Want to Call the Cops: A Non-Adversarial Approach to Sexual Harassment, excerpted briefly in this space in November. (Jaime Sneider, “Above the Law?”, Intellectual Capital, Feb. 17).

February 19-21 — Welcome, readers. Readers of, the popular news forum presided over by Zippergate stalwart Lucianne Goldberg, recently discussed our commentaries “Bill Clinton among friendly crowd” and “Thanks for the memories” (links now dead). And an influx of visitors from Australia over the last week or so owes much to our inclusion as a link on, an irreverent investigative site that covers media, government and business down under.

February 19-21 — “Motorists speed more, but fewer die”. When Congress did away with the national 55-mph highway speed limit, opponents called it a “killer bill”; Advocates for Highway and Auto Safety — a be-safe-or-else coalition backed by both insurance companies and the trial-lawyer-allied Ralph Nader complex — predicted that the move “will be the death knell for thousands of American men, women and children“. But in fact “the national crash fatality rate, determined by the number of fatalities for every 100 million vehicle miles driven, has fallen by 11 percent since the United States lifted the national 55 mph speed limit in 1995”. (Tom Greenwood, “Motorists speed more, but fewer die”, Detroit News, Jan. 4; Brock Yates, “Just when you thought bigger was better”, Car and Driver, Oct. 1999, reprinted at Steve Hartford site).

February 19-21 — Update: Cayuga land claim. A Syracuse, N.Y. jury has recommended an amount of $36.9 million as appropriate compensation to the Cayuga Indian tribe for its sale of 64,015 acres to the state of New York two centuries ago. The sum was far below the $335 million sought by the Cayugas and below even the $51 million recommended by appraisers for the state, which was the defendant in the suit. Cayuga attorney Martin Gold lashed out at the ruling as “ridiculous…Apparently nine people didn’t pay attention to the evidence.” The 1795 and 1807 sales were recently declared invalid because they were not approved by the federal government, as required by law (see Feb. 1 commentary). Jim Memmott, “Verdict saddens Cayugas”, Rochester Democrat & Chronicle, Feb. 18.)

February 18 — Bush unveils legal reform plan. On the campaign trail last week, Texas Gov. George W. Bush unveiled proposals for reforming the civil justice system if he’s elected President. (Disclosure: this site’s editor has served as an unpaid advisor to the Bush campaign on the issue.) The proposals include: tougher sanctions for meritless lawsuits and motions; a “Fair Settlement Rule” under which parties who reject a bona fide settlement offer and then do worse at trial will be liable for the reasonable legal fees their opponents expended after the offer; curbs on lawyers’ power to steer actions into courts they view as favorable (“forum-shopping”); a “Client’s Bill of Rights” prescribing more disclosure about fees to be charged and enhanced supervision by federal courts of fees charged in the cases they oversee; and controls on unreasonable fees charged by lawyers representing government bodies. (“Bush proposes higher standards for lawyers”, Reuters/FindLaw, Feb. 9; campaign news release, Feb. 9; fact sheets on tort reform and on Texas record (PDF format); Morton Kondracke, “Bush’s Trial with the Trial Lawyers”, June 28, 1999 (reprinted at Citizens Against Lawsuit Abuse Houston site)).

February 18 — I see riches in your future. ABC has confirmed that it has paid $933,992 to an employee of the Psychic Services Network who sued the network over its 1993 airing of a secretly made videotape on its newsmagazine “PrimeTime Live”. Mark Sanders charged that ABC had ruined his reputation by covertly videotaping him and his colleagues working the telephones in a show aimed at depicting the call-a-psychic business as “a scam and illegitimate”. In 1994 a jury awarded Sanders $335,000 in compensatory and $300,000 in punitive damages, and the total sum owing has mounted through the accumulation of interest as ABC has pursued unsuccessful appeals. (Yahoo/AP, “ABC Pays Damages to Psychic Network”, Feb. 15, link now dead).

February 18 — Lawsuit reform helps Michigan taxpayers. The state’s payout in judgments and settlements, which had been running around $25 to $35 million a year, declined to $12.7 million last year. Democratic state attorney general Jennifer Granholm credited skillful legal work and good economic times for the favorable trend but also, significantly, acknowledged the helpful role of 1995 reforms which bolstered sovereign immunity and curbed the application of joint and several liability, the deep-pocket doctrine by which a defendant one percent responsible for an accident can be made to pay all the damages. (“Tort reform pays off” (editorial), Detroit News, Feb. 2).

February 18 — The trouble with bounty-hunting. “Porcupines [in New England] have never enjoyed the popular status of, say, the armadillo in Texas. They were particularly unpopular earlier in this century, when they returned to reforested areas ahead of their natural predators and consequently boomed. John Barrows, a district forester with the state of Vermont, recalls that Vermont used to offer a bounty of fifty cents for a set of porcupine ears, and in 1952 paid out $90,000. Remarkably, it still had a porcupine problem in 1953 and for several decades thereafter. Barrows explains: ‘There was a time when we thought the state had a lot of money, and a trapper who knew how to use his knife could get ten or twelve sets of ears out of a single animal.'” — from Richard Conniff, Every Creeping Thing: True Tales of Faintly Repulsive Wildlife (Henry Holt & Co., 1998).

February 17 — And so now everybody’s happy. “Last month, the Supreme Court decided not to review an appeals court decision that temporary Microsoft workers must receive the same retirement benefits, including discounted stock, as regular employees…. Already, some companies have reacted to the original Microsoft decision by getting rid of temporary workers before they can be considered permanent, lawyers said.” (David Leonhardt, “Who’s the Boss? Who’s a Worker?”, New York Times, Feb. 16) (& see letters, Dec. 20).

February 17 — Barrel pointing backward. “President Clinton enthusiastically backs the current wave of municipal lawsuits against the gun industry”, yet he’s also proposed giving $10 million in taxpayer money to some of the same manufacturers for the sake of developing so-called smart guns. Some litigation advocates are upset about the inconsistency, including Kristen Rand of the Violence Policy Center, who says: “It makes the lawsuits seem like a charade.” Yes, now she’s getting the idea.

The litigation onslaught may in fact have retarded progress toward smart-gun technology. Colt’s Manufacturing Co. had been at work on a smart-gun venture but folded its effort late last year; the Wall Street Journal’s Paul Barrett quotes John Rigas, a partner in the company’s controlling owner, the New York investment group Zilkha & Co., as saying that “potential punitive damages scared away needed outside investors”. (Paul M. Barrett, “‘Smart’ Guns Trigger a Debate”, Wall Street Journal, Jan. 27 (requires online subscription).)

February 17 — Welcome readers. Mickey Kaus’s commentaries on politics, journalism and social policy, among the high points of Slate, are also collected on this freestanding website. He’s just added new features including a desktop-style assortment of columnist and policy links. Check out the ultrabrief descriptions (for this page: “Daily horror stories”.)

February 17 — The fine print. The Boston Globe has backed off at least temporarily from a short-lived effort to save money, trees and ink by reducing the type size of its articles, thus squeezing more onto a page. Readers had protested vociferously, and at least one threatened to sue under the Americans with Disabilities Act: “The Globe cannot simply refuse to serve readers with aging eyes and poor eyesight.” (Jack Thomas, “The incredible shrinking type irks Globe readers”, Boston Globe, Feb. 14, link now dead (via Romenesko, Media News)).

February 17 — Let your fingers do the suing. The Yellow Pages contain many entries for businesses like the A-ABC Locksmith Service and AAA Affordable Auto Glass, and now you can add to that list of eagerly promotional trade monickers the AAAA Legal Center, run by Detroit-area trial lawyer Robert D. Mouradian, though its website has not been updated since April 1999 and could use a spell-check.

February 16 — Welcome Fox News Channel visitors. Our editor was interviewed for a story on how the Americans with Disabilities Act may require the redesign of websites so as to provide “reasonable accommodation” to blind, deaf and other handicapped users. For more details, see his prepared statement presented to a House Judiciary Committee hearing last week; our Dec. 21 commentary, and our subpages on disabled-rights law and Internet law.

February 16 — Update: Connecticut tobacco-fee bonanza. Not long after Connecticut attorney general Richard Blumenthal said last winter he had “no idea” whether law firms were going to rake in excessive fees representing the state in the tobacco settlement (see Feb. 3 commentary), a total fee haul was announced: a handsome $65 million. As previously reported in this space, the three lucky firms selected to handle the in-state work included Blumenthal’s own former law firm of Silver, Golub & Teitell of Stamford. The other two firms? One was Carmody & Torrance of Waterbury, whose managing partner James K. Robertson is personal counsel and counselor to the state’s governor, John Rowland. And the third was Stamford’s Emmett & Glander, whose name partner, Kathryn Emmett, happens to be married to partner David S. Golub of Silver, Golub & Teitell. “I know how it [looks]”, concedes Golub.

A number of other firms that wanted to be considered for the work were cut out; Robert Reardon of New London, a former president of the Connecticut Trial Lawyers Association, couldn’t get even get in the door for a meeting. Though Attorney General Blumenthal was later to disclaim knowledge of the firms’ fee entitlements, the Connecticut Law Tribune reports that he “was extraordinarily active in the litigation and settlement — more so than any other attorney general”. (Thomas Scheffey, “Winning the $65 Million Gamble”, Connecticut Law Tribune, Dec. 8; “After the Lion’s Share”, Feb. 5).

February 16 — Disabled test-accommodation roundup. Salon is the latest to notice this issue. While the share of students getting extra time on the SAT — typically an extra hour and a half on a three-hour exam — is still only 1.9 percent nationwide, “the number jumps to nearly 10 percent in some New England prep schools and wealthy districts in California.” Michael Scott Moore, “Buying Time”, Salon, Feb. 9). AP reports that the percentage of college freshmen describing themselves as disabled more than tripled between 1978 and 1998, from less than 3 percent to 9.4 percent. Forty-one percent of the disabled freshmen in 1998 identified their impediment as a learning disability, up from 15 percent ten years earlier. More chances to attend college for kids who’d have been classified as disabled all along — or just more students being classified as disabled? (“Learning Disabled Advance in School”, AP/FindLaw, Feb. 10). In a case closely watched by college officials, a Boston College senior with attention deficit disorder and a 3.35 grade point average “has sued the Law School Admissions Council, charging the national testing giant violated her rights by denying her extra time to take the all-important exam.” (Andrea Estes, “BC student sues test firm: Wants more time for law school exam”, Boston Herald, Jan. 12).