Chronicling the high cost of our legal system
From the monthly archives:
Quoth Ernie the Attorney (Oct. 31): “Fox News will sue anyone at the drop of a hat, but it does have some standards. For example, Fox won’t sue itself. But that doesn’t mean it won’t threaten to sue itself.” (See “Fox nearly sued itself over ‘Simpsons’ parody: Matt Groening”, AFP/Yahoo, Oct. 30). Whoops! Original story turns out to have been, um, embellished at a minimum by “Simpsons” creator Matt Groening, and the show’s producers have issued an apology (Washington Post, Oct. 31)
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“The first helicopter pilot to see the patch of flames that would become the catastrophic Cedar Fire radioed for aerial water drops, but state firefighters rejected his request because it came minutes after such flights had been grounded for the night. Within hours, the flames cascaded out of control and killed 13 residents between the mountains east of San Diego and the city. It eventually became the largest wildfire in California history. …
“The problem was that under state safety guidelines, no flights can go up into waning daylight. On Saturday, the cutoff was 5:36 p.m., said California Department of Forestry Capt. Ron Serabia, who coordinates the 12 tankers and 10 helicopters now battling the 272,000-acre blaze. The sun set that day at 6:05 p.m.” (Justin Pritchard, “State firefighters rejected air drop request for Cedar Fire because of night regulations”, San Francisco Chronicle, Oct. 30). (Via Arthur Silber). More: Matt Welch at Reason “Hit and Run” (Oct. 31) has a roundup of other instances in which bad policy decisions may have worsened damage from the wildfires: “near the top of my list is the 1968 state law that specifically orders insurance companies to pool together and offer homeowner policies to people who live in high-risk brush fire zones, a non-market last resort enjoyed by 20,000 people, most of whom live in the foothills of Southern California.” Yet more: Gregg Easterbrook (Oct. 31) on forest management and wildlands.
Latest tabloid/reality TV case apparently headed for court, this time from the U.K.: “Six men who competed for the affection of an attractive brunette called Miriam for a reality television program have threatened legal action after discovering that the object of their attention was a transsexual.” The male contestants, who are said to have signed release forms before the show’s filming, “were invited to pick the most attractive woman from a line-up. They were then filmed on dates with her. All of them chose Miriam, who, unknown to them, was born a man.” To make matters worse, some of the men “are believed to have been intimate with Miriam before discovering at the end of the show that she was a pre-operative transsexual. … Lawyers for the six men have written to Sky and Brighter Pictures accusing them of conspiracy to commit a sexual assault, defamation, breach of contract and personal injury.” (Catriona Davies, “TV suitors shocked as dream girl turns out to be a man”, Daily Telegraph, Oct. 31). Update Nov. 5: more links via Curmudgeonly Clerk and May 26: cases settled.
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One of the perennial problems with class actions as a procedural device is whether and how to recognize the conflicts and divergences of interest among members of the class (for instance, in a consumer class action, class members who plan to buy the product again in the future may have very different interests from those who do not on the question of what counts as a useful remedy). Lawrence Solum on his Legal Theory Weblog has a very long and theoretical post on the topic (Oct. 30) one of whose lessons (if we are reading it correctly) is that many of the conflicts are too real and fundamental to be conjured away even by clever theoretical efforts to reinterpret class members’ interests at a higher level of abstraction.
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Our latest free newsletter, pithily summing up the past three weeks’ worth or so of items on the site, went out this afternoon to its 2000+ subscribers. If you didn’t receive it, either because you still haven’t signed up for our mailing list or because you’ve changed email addresses and lost your subscription, you can sign up here. It’s a great way to keep up with items on the site you may have missed.
When doctors are named in groundless malpractice lawsuits, they often want to fight back by filing countersuits or moving for sanctions. But, as American Medical News is the latest to learn, our legal system is elaborately structured to deny them any such recourse for the injury done them by the lawsuit. (Tanya Albert, “Fighting frivolous lawsuits: Doctors engage in an uphill battle”, American Medical News, Oct. 27). For a few of the rare instances in which countersuits or sanctions motions have been successful, see Sept. 6-8, 2002; Jun. 14-15, 2000; Sept. 14, 1999. More (rare successful countersuit by W.V. surgeon Saad Mossallati): Tanya Albert, “West Virginia physician caught in legal net hooks lawyer, lands settlement”, American Medical News (AMA), Dec. 2, 2002; Dorothy L. Pennachio, “The target of a ‘shotgun’ suit fires back”, Medical Economics, Apr. 11, 2003. More: see Point of Law, Jan. 10, 2005 (Pennsylvania Medical Society has begun assisting doctors in countersuits).
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Economics commentator Donald Luskin, who operates a website entitled The Conspiracy to Keep You Poor and Stupid, is known for his furious and unremitting attacks on New York Times op-ed columnist Paul Krugman. So furious and unremitting have these attacks been as to raise the question of whether Luskin was actually daring Krugman to sue for defamation, as when Luskin declared on “Hannity and Colmes” Oct. 27 that Krugman “masquerades as an economic scientist” (whatever one thinks of his politics, Krugman is exceptionally well credentialed as an academic economist; by comparison, columnist Robert Novak let himself in for years of hard-fought litigation when he printed an assertion that Bertell Ollman, a much less well-known economic scholar, “has no status within the profession”). And two months ago Luskin alleged (“Lights-out economics”, National Review Online, Aug. 20) that a statement by Krugman about the Northeast electrical blackout was “one of the few truthful statements I can ever recall him uttering” — inevitably recalling, for defamation-law buffs, Mary McCarthy’s talk-show gibe at Lillian Hellman, which led to one of the American literary world’s most bitter and celebrated lawsuits: “Every word she writes is a lie, including ‘and’ and ‘the.’ ”
Now, however, it seems that Luskin pictures himself appearing in court as a plaintiff rather than a defendant. Recently he was verbally savaged in the comments section of the left-wing anonyblog “Eschaton” (http://atrios.blogspot.com) and now attorney Jeffrey J. Upton, claiming to represent Luskin, has (“http://atrios.blogspot.com/2003_10_26_atrios_archive.html, scroll to Oct. 29) written to that site’s proprietor (“Atrios”) demanding that the entire comments section in question be taken down within 72 hours on pain of “further legal action”. The threat has provoked a widespread outcry in the blog world, with dozens of sites commenting since yesterday (examples: Mark A.R. Kleiman, Armed Liberal, David Neiwert, Anti-Idiotarian Rottweiler). We don’t know how much money Luskin has made on Wall Street, but we would be nervous on behalf of his prospective targets if his pockets prove deep. More: Jack Balkin points out that courts have found website proprietors not liable for hosting outsiders’ libels in their comments section, which leaves us wondering all the more about what happened to AVWeb, above. Stuart Levine discusses possible homeowner’s insurance coverage. (& welcome Curmudgeonly Clerk readers) Update Nov. 5: dispute settled. (& letter to the editor Aug. 16, 2004).
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While on the topic of alcohol, we also recommend Vice Squad’s Oct. 14 commentary on the Jamaican Ginger paralysis episode of the early 1930s, in which tens of thousands of mostly poor drinkers were afflicted with paralysis (“jake leg”) after consuming a cheap “medicinal” liquor substitute that had been adulterated with an industrial plasticizing chemical for purposes of evading scrutiny by Prohibition enforcers. A recent New Yorker article on the jake-leg episode (Dan Baum, “Jake Leg”, Sept. 15) declares it unfortunate (see final page of story) that this public health catastrophe occurred before the modern liberalization of product liability and class action law, which would presumably have led to a cathartic spasm of litigation. That’s a far from obvious conclusion, however, since even under today’s liberalized rules the only deep-pocketed entity on the scene, the company that made the plasticizing chemical, would not likely be found responsible in court unless someone could show it was aware its product was at risk of being added to the food supply. The more appropriate target for blame — aside from the shady operators who committed the adulteration — is the Prohibitionist regime itself, which ensured that the alcohol trade would fall into unscrupulous hands.
Wheaton College, a 143-year-old evangelical institution in the Chicago suburbs that may be best known as the alma mater of the Rev. Billy Graham, has “lifted a longtime ban on drinking and smoking in private for faculty. [College president Duane] Litfin said a key factor in that change, along with [the dropping of a former rule against dancing], was the 1991 Illinois Right to Privacy in the Workplace Act, which some feared left the college vulnerable to a lawsuit. The law prohibits discrimination against employees who drink or smoke off the job unless there is a strong religious belief against the practice.” The college said it wasn’t sure its policy would stand up in court given the lack of a specific passage in the Bible proscribing alcohol use. (Meg McSherry Breslin, “It’ll be dancing by the Book”, Chicago Tribune , Oct. 24)(via Vice Squad, a new site devoted to “public policy concerning alcohol, nicotine, other drugs, proxtitution, gambling, porbography”, Oct. 24). Vice Squad in turn points to an Apr. 6 Crescat Sententia commentary in which Will Baude doubts that the college would actually have lost such a suit.
“A St. Louis County judge has dismissed a lawsuit the city of St. Louis brought against the gun industry seeking reimbursement for costs associated with gun-related injuries. St. Louis County Judge Emmett O’Brien said he found no basis for the claim. O’Brien dismissed the lawsuit against gun manufacturers on Oct. 15. Then on Friday, he dismissed it against the remaining defendants: gun distributors and trade organizations. In a five-page opinion, O’Brien wrote that such lawsuits would open ‘a floodgate to additional litigation.’ He also said that ‘issues of both logic and fairness’ favored dismissing the case.” (“Judge dismisses lawsuit against gun industry”, AP/Southeast Missourian (Cape Girardeau), Oct. 29). And this from last month: “The Missouri Legislature overrode on Friday Gov. Bob Holden’s veto of a bill that bars cities, counties and other political subdivisions from suing gun dealers and manufacturers for the social costs of their products. … The legislation was prompted in part by St. Louis’ lawsuit against gun manufacturers, which [state Rep. Larry] Crawford said aimed to bankrupt gun and ammunition companies.” (Bill Bell Jr., “Gun makers get shield from suits as 3rd veto is rejected”, St. Louis Post-Dispatch, Sept. 12).
More good opinionated reads:
* Author Philip K. Howard, writing last week in the Wall Street Journal on the celebrated decision by the Appellate Committee of Britain’s House of Lords in Tomlinson v. Congleton Borough Council, discussed earlier in this space Aug. 11 and Oct. 3 (“When Judges Won’t Judge”, Oct. 22, reprinted at Common Good);
* Also in the Wall Street Journal (OpinionJournal, Oct. 27), editor Robert Bartley on the vindication of his editorial page in its criticism of hysterical media fads over supposed epidemics of sex abuse at nursery schools (see May 8, 2003, Sept. 4-6, 1999) and autoimmune disease from silicone breast implants;
* Clint Bolick, vice president of the Institute for Justice, strongly supports the nomination of the “strikingly libertarian” California Supreme Court Justice Janice Brown to the D.C. Circuit (“Good judge”, Reason Online, Oct. 27; more on the nomination from David Bernstein, Lawrence Solum).
In Philadelphia, Common Pleas Judge Norman Ackerman “has begun tossing out lawsuits by people who said they suffered strokes after taking Alka-Seltzer Plus Cold medicine, saying the claims should be dealt with in other states. … ‘Most of those cases, like this one, involve out-of-state plaintiffs who chose to file (in Philadelphia) for no apparent reason other than the fact that their attorneys have their offices here,’ Ackerman wrote in the case of Larry Hunter, of Seattle.” (Another apparent reason might be the city’s famously generous juries.) For background on suits blaming phenylpropanolamine (PPA) for strokes, see Apr. 6-8, 2001. (“Alka-Seltzer Suit Thrown Out”, WPVI.com, Oct. 1). More: May 1, 2004, Jan. 21, 2006 (further setbacks to litigation)
“If canonization of Australia’s Mary MacKillop, who died in 1909, is taking a relatively long time, compared to that of Mother Teresa, six years dead, part of the reason is that Indians are less litigious.” Among legal fears that might slow down the process at various stages: “A doctor who treated an individual might be miffed by claims that the cure had no medical explanation. There is also privacy legislation, which might be referred to by relatives objecting to church investigators nosing into the departed one’s affairs. … According to Sister Maria Casey, who is handling the processing of Mother Mackillop, ‘it is not very easy these days because of threats of litigation’”. (Malcolm Brown, “Saint? Call the lawyers”, Melbourne Age, Oct. 27; longer version, Sydney Morning Herald) (& welcome Eugene Volokh readers; he says nice things about us)(& welcome Carnival of the Capitalists readers).
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Not related to this website despite its name, Overcriminalized.com is a new site from the Heritage Foundation “devoted to challenging and ultimately reversing the harmful trend by government to criminalize more and more ordinary activities.” Among the case histories presented: Palo Alto v. Leibrand, in which a 61-year-old homeowner was fingerprinted and booked (complete with mug shot) on charges of letting the street-side xylosma bushes near her bungalow grow more than two feet high (her site); and cases of alleged federal overzealousness in enforcing the False Claims Act (U.S. v. Krizek, alleged overbilling by psychotherapist); and environmental law (Hansen v. U.S., manager of bankrupt chemical plant sentenced to 46 months despite critics’ questions as to both mens rea and his practical capability to rectify the various violations). For a sampling of similar themes aired on this site, see Aug. 6 (drowsy driving), Jul. 22 (corporation’s vicarious criminal liability for acts of employees and agents), Jul. 14 (U.K. seaweed-picking); May 14 (sexual harassment); Aug. 3-5, 2001 (cloned human cells); Dec. 8-10, 2000 (gun sale); Oct. 20-22, 2000 (product liability); May 18-21, 2000 (public morality laws) and Dec. 20 and Aug. 2, 1999 (injury to animals). Plus: Tim Sandefur (Oct. 28) has more, including pointers to an earlier Heritage memo on the subject (Paul Rosenzweig, “The Over-Criminalization of Social and Economic Conduct”, Apr. 17) and commentaries by Tyler Cowen (Oct. 21) and himself (Oct. 16).
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“Under pressure from administrators at the University of Illinois at Urbana-Champaign, [tenured physics professor George Gollin] has shut down a Web site he created to make information available about the unaccredited distance-learning institutions often referred to as ‘diploma mills.’” (Andrea L. Foster, “U. of Illinois Administrators Ask Professor to Remove Web Site About Diploma Mills”, Chronicle of Higher Education, Oct. 13; “Cracking Down on Diploma Mills”, CBS News, Jul. 25). Some of the alleged diploma mills cited by Gollin had threatened to sue the university, and Eugene Volokh (Oct. 25) finds it a fair inference that fear of litigation contributed to university administrators’ wish to be rid of the site. However, the state of Oregon accreditation office soon agreed to put up Prof. Gollin’s material on its own site (Office of Degree Authorization). On earlier suits and threatened suits by these enterprises, see our Apr. 28-20, 2000 entry.
“It was a tragedy in July when 86-year-old George Russell Weller drove his car through several barricades into a crowded farmers market in Santa Monica, killing 10 people and injuring dozens. … Since they can’t target Mr. Weller profitably, accident victims have already filed five lawsuits against the city of Santa Monica, which has much deeper pockets. … according to some of the victims, the city contributed to the crime by not erecting stronger barricades or otherwise doing more to prevent a man from driving into a crowd of people.” Mentions this site (Adam Summers, “Extracting Cash from Calamity”, Orange County Register/Reason Public Policy Institute, Oct. 23).
“Say what you like about Osama bin Laden. He’s done wonders for the defamation bar,” says a British barrister. A group of wealthy Saudi businessmen are engaging in “libel tourism,” suing in British courts to silence American critics. British libel law, unburdened by the First Amendment, puts the burden on defendants to prove that their stories are true; the threat of libel suits often acts to deter journalistic inquiries, but now suits are being aimed at American publishers. The Wall Street Journal faces two lawsuits for a February 2002 report on Saudi support for terror that was reprinted in its European edition. (Michael Isikoff & Mark Hosenball, “Libel Tourism”, Newsweek Web, Oct. 22). (via Postrel)
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As predicted in this space (Sept. 29), a California business coalition which includes the state Chamber of Commerce, auto dealers and the Civil Justice Association of California has launched an initiative drive aimed at curbing lawsuits under s. 17200, the state’s bizarrely broad consumer-protection statute. (see Oct. 2, Aug. 27 and links from there). The coalition “expects to spend $1 million to $2 million to collect signatures to put the initiative on the November 2004 ballot. … Under the initiative, private attorneys or individuals would no longer be able to file a lawsuit without a specific victim or evidence of harm or financial loss. … The right to sue on half of the public would rest with the attorney general, county district attorneys and other local prosecutors.” (Gilbert Chan, “Ballot drive targets lawsuits”, Sacramento Bee, Oct. 23). More: Law.com coverage (Jeff Chorney, “Tort Reformers Want Voters to Remake Calif. Unfair Competition Law”, The Recorder, Oct. 27)
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