From the National Post (Nicholas Kohler, “School board cautions against offending Wiccans”, Oct. 27)(via Stuttaford):
Teachers should forego traditional classroom Halloween celebrations because they are disrespectful of Wiccans and may cause some children to feel excluded, says a Toronto District School Board memo sent to principals and teachers this week.
“Many recently arrived students in our schools share absolutely none of the background cultural knowledge that is necessary to view ‘trick or treating,’ the commercialization of death, the Christian sexist demonization of pagan religious beliefs, as ‘fun,’ ” says the memo.
Showing more common sense than the school board, an actual Wiccan priestess interviewed by the newspaper, Nicole Cooper, said she didn’t feel threatened by costumes or trick-or-treating: “If I had children I wouldn’t deprive them of that — it’s a really fun thing to do. It’s engaging in the spirit of the season; it’s exciting for kids,” she said.
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Canada,
harassment law,
schools
Sen. Reid doesn’t like him (Rick Klein, “Democrats’ Reid urges Bush to oust Rove”, Boston Globe, Oct. 31)(via Kathryn Lopez)(more). For much more on nominee Samuel Alito Jr., see the ongoing blogging at Point of Law.
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politics
The Ridgeway Brewery in England brews a bitter winter ale which it calls Seriously Bad Elf, complete with a drawing of a gnomic figure on the label. Now officials in Connecticut, including Attorney General and bete-noire-of-this-site Richard Blumenthal, have banned imports of the ale on the grounds that an elf drawing might entice minors to drink the beer. (”‘Seriously Bad Elf’ Beer Banned In CT”, CBS4Boston, Oct. 28; “Connecticut looks to ban British beer with elf label”, AP/USA Today, Oct. 29).
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attorneys general,
beer and brewers,
Connecticut,
labels,
Richard Blumenthal
Tales of the expert witness biz: Australian lawyers in an copyright infringement case, acting on behalf of the makers of the Kazaa file-sharing program, ran into trouble when the expert witness they’d hired, Keith Ross of Polytechnic U. in New York, was revealed as perhaps a bit too agreeable to their interests for their own good. “Evidence tendered showed that Professor Ross admitted he had not tested propositions Clayton Utz’s solicitors had inserted in his draft report, but accepted them anyway.” A judge discounted Ross’s testimony with scathing remarks; the law firm insists it never intended to put words in his mouth. And:
[New South Wales] Legal Services Commissioner Steve Mark said solicitors often put pressure on witnesses to come up with a particular result, and his office took a firm stand on lawyers who coached witnesses or attempted to influence their findings.
“A lawyer’s primary duty is to the court,” he said.
(Garth Montgomery, “Music copyright facts fine-tuned”, The Australian, Sept. 9).
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Australia,
copyright,
expert witnesses,
technology
“A long-delayed apology from one of the accusers in the notorious McMartin Pre-School molestation case.” (”McMartin Pre-Schooler: ‘I Lied’”, Kyle Zirpolo as told to Debbie Nathan, Los Angeles Times Magazine, Oct. 30). See Mar. 22, 2004, etc. More: Cathy Young (Oct. 31) notes divisions among feminists on the affair.
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crime and punishment
On Wednesday, at a White House ceremony, President Bush signed into law the Protection of Lawful Commerce in Arms Act, setting up a likely battle as gun control advocates attempt to counter motions to dismiss various pending lawsuits (William Freebairn, “Gunmaker seeks suit dismissal”, Springfield (Mass.) Republican, Oct. 29). The Legal Talk Network is airing an audio discussion on the new law among David Kopel of the Independence Institute (more), UCLA lawprof Eugene Volokh and Josh Horwitz, executive director of the Coalition to Stop Gun Violence. I’ve been speaking in favor of a measure like this for years; see, e.g., Apr. 7 and this site’s ongoing coverage of gun litigation more generally, as well as this discussion with Michael Krauss at Point of Law. Jacob Sullum, like Krauss, continues to disagree with me on federalist grounds.
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Protection of Lawful Commerce in Arms Act
If the agency is indeed made to pay $1.8 billion for not preventing the first (1993) bombing, as suggested by this week’s jury verdict (Oct. 27), it could be forced “to reduce drastically its spending on the region’s airports, bridges and tunnels,” its leaders say. Hmmm… since security measures are among the big items in the current budget, might that not have menacing implications for future anti-terrorist preparedness all by itself? And Mark Geistfeld, a law prof at NYU, agrees that “It’s really hard to get your mind around” the jury’s finding that the terrorists themselves were only 32 percent responsible for the outrage, with the agency responsible for 68 percent. (Anemona Hartocollis and Patrick McGeehan, “Port Authority Fears Costs From Verdict”, New York Times, Oct. 28). More: the Times has a fascinating article about winning plaintiff’s lawyer David J. Dean, who bounced back from disbarment (Oct. 30). Yet more: David Bernstein, Orin Kerr and commenters. And the Washington Examiner blasts the verdict in an editorial that kindly quotes me (”Blame the terrorists, not their victims”, Oct. 31).
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personal responsibility,
Port Authority
The Blair government, encountering more resistance than it had anticipated, has agreed to soften some of the aspects of the hate-speech bill (Oct. 19, etc.) that are most menacing to freedom of expression:
After suffering a defeat in the [House of] Lords on Tuesday by 260 votes to 111, the Government chose not to oppose an amendment drafted by the Liberal Democrat lawyer Lord Lester with cross-party support. This introduces a number of safeguards.
First, prosecutors would have to prove that the defendant intended to stir up religious hatred; mere likelihood would not be enough. Second, the words or behaviour would have to be threatening rather than merely abusive or insulting. And, crucially, there would be protection for freedom of expression.
Notwithstanding the improvements, the history of such legislation in Australia (see Dec. 3, 2004) suggests that civil libertarians are right to take a stand against the whole thrust of the legislation. “Even if no prosecutions are brought, the Act will inhibit public debate on issues of great importance.” (Joshua Rozenberg, “A legal lesson from Down Under”, Daily Telegraph, Oct. 27).
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Australia,
harassment law,
United Kingdom
By a vote of 228-184 yesterday, mostly on partisan lines, the House of Representatives approved H.R. 420, the proposed Lawsuit Abuse Reduction Act (LARA). (”Tort Reform Legislation Passes House, Moves to Senate”, Insurance Journal, Oct. 28). The vote margin was about the same as last year (see Jun. 21 and Sept. 15, 2004), and, as with last year, Senate passage this session is considered a long shot. For more on the bill’s sound overall rationale, as well as its weaker aspects, see our earlier coverage. More: Stop the BS has posted a copy of the bill (Oct. 29).
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procedure
New York City viewers who tuned in to WABC-TV (channel 7) may have seen me this evening in a taped interview discussing Harriet Miers’ withdrawal and the prospects for the high court vacancy. I was also mentioned Tuesday in a New York Times article on the Manhattan Institute and its role in municipal policy debates in Gotham; the article quotes me describing Mayor Bloomberg’s bill banning smoking in bars as “nannyism” (see this and this and this for particulars). (Nicholas Confessore, “Giuliani Guide Is Bloomberg Gadfly”, New York Times, Oct. 25).
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about the site,
Manhattan Institute
The Fall 2005 issue of Delaware Lawyer, published by the Delaware Bar Foundation, is organized around the theme of juries, and includes an article by me entitled “The Art of the Runaway Jury”, adapted from the chapter of the same name in The Rule of Lawyers. My thanks to editor Gregory Inskip for commissioning the piece and for his editorial help.
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Delaware,
juries,
WO writings
Twelve years after the event, a jury finds someone to blame for the Islamist van-bomb attack that killed six, injured nearly 1,000, and caused costly business dislocation (Sept. 21, 2005, Dec. 5, 2004, Oct. 12-14, 2001). The culprit? The Port Authority, an agency whose losses are likely to be ultimately borne by New York and New Jersey taxpayers, motorists and air travelers:
The jury voted unanimously that the Port Authority [then-owner of the WTC] was negligent. It found the authority 68 percent at fault for the bombing, while the terrorists who carried it out were 32 percent at fault.
Mr. [David J.] Dean, the plaintiffs’ lawyer, said that because the jury apportioned more than half the blame to the Port Authority, the agency will have to pay 100 percent of any damages for pain and suffering, the so-called non-economic damages, that might be awarded.
Regardless of how the blame was shared, the Port Authority would have to pay 100 percent of any economic damages, like lost business, he said.
Separate legal proceedings will be used to determine actual payouts; “Lawyers for the plaintiffs said they were seeking a total of as much as $1.8 billion.” And this from Mr. Dean: “The case was never about blaming the terrorists.” Well, of course it wasn’t, from his point of view, was it? (Anemona Hartocollis, “Port Authority Found Negligent in 1993 Bombing”, New York Times, Oct. 27).
So there you have it. “What is robbing a bank compared with founding a bank?” wrote Bertolt Brecht, and now we learn that being the target of a terrorist act carries with it more than twice as much responsibility for the resulting damage as actually planting and detonating the bomb. The jury’s (and plaintiff’s lawyer’s) rationale was that security experts had warned that the use of car bombs was on the rise, and yet the PA did not take the (massively disruptive to its tenants) step of closing its enormous underground garage to the public. Inevitably, the lawyers portrayed the earlier advice as a “smoking gun”, a strategem I describe in Chapter 6 of The Litigation Explosion:
Among the favorite smoking-gun generators are memo debates or unheeded suggestions within an organization. The sought-after memo will advise the hotel to dismantle the diving board, the brokerage to go easy on the risky investment, the magazine to kill the hard-hitting investigative story, the hospital to close down the vaccination program that has attracted malpractice suits. (They knew it was wrong to go ahead!) New York City injury king Harry Lipsig’s law firm got a $1.8 million settlement for forty-six-year-old postal worker Freddie Brown, mugged and badly hurt in a housing project lobby, after they found a security specialist whose recommendations to upgrade security at the project had gone unheeded. “We couldn’t lose,” jubilated lawyer Thomas Stickel. “With that witness, we had the city by the throat.” Actually, it would be a wonder if the files of a city as intensively governed as New York did not contain unheeded recommendations by the bushelful on countless subjects.
The logic of lawyers’ search for “smoking guns” is that an organization faces one of three unattractive choices: put itself at risk for verdicts like this; implement any and all recommendations it gets from security experts, no matter that many of them will be costly and intrusive (like, say, stadium patdowns for football fans) and will guard against dangers that never would have materialized; or alternatively, arrange its affairs so that fewer safety recommendations enter its files in the first place, either by asking its experts to commit fewer ideas to paper, or just by not employing them. The New York Sun quotes me today in its coverage of the story: David Lombino, “Port Authority Is Held Liable in Bombing That Killed Six in 1993 Attack on WTC”, New York Sun, Oct. 27. More:Ann Althouse and commenters discuss the verdict, while Michael Krauss at Point of Law hopes it will be thrown out on grounds of lack of proximate cause.
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expert witnesses,
NYC,
Port Authority,
The Litigation Explosion,
third party liability for crime
We’re one of them, according to these folks. The others: Legal Theory Blog, Opinio Juris, Jurist, PrawfsBlawg, Volokh Conspiracy, Becker-Posner Blog, Law.com, How Appealing, and Legal Underground.
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accolades,
legal blogs
Class-action lawyers including Seattle’s Hagens Berman (Feb. 16, Mar. 6 and Mar. 29, 2004; Nov. 24, 2003; Sept. 9-10, 2002, etc.) sued Apple last week in the name of buyers of the popular iPod, claiming the nano screen on the device tends to scratch easily and become unreadable. They are seeking remedies including a refund of moneys paid “plus a share of the company’s profits on the music player’s sales”. (”Nano Owners Sue Apple”, Red Herring, Oct. 20; Ina Fried, “Suit filed over Nano scratches”, CNet, Oct. 21).
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Apple,
Seattle,
Steve Berman,
technology
Lawsuit impresario Michael Hausfeld, whose doings often figure in these pages, is on “a crusade to export America’s legal system around the world,” per one recent U.S. magazine profile. He claims to share case ideas regularly with a network of lawyers in countries around the world, according to a profile in the U.K. publication The Lawyer (Jon Robins, “Michael Hausfield [sic] brings class actions to the UK”, Oct. 24)(via Schaeffer). More on Hausfeld: Jan. 11, Apr. 13, Jul. 25, 2004; May 24, 2001; Mar. 2 and Aug. 13-14, 2000.
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class actions,
Michael Hausfeld,
United Kingdom
Greg Skidmore at Sports Law Blog (who has guest-blogged on this site) analyzes the ACLU-aided suit against the Tampa Sports Authority challenging the National Football League’s anti-terror measures.
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ACLU,
sports
