I’m in today’s New York Post with a second take on yesterday’s Ricci (New Haven firefighters) case. Link thanks: Instapundit, Damon Root/Reason “Hit and Run”. My first take on the decision, at Forbes.com yesterday, is linked here.
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From the monthly archives:
June 2009
Annals of bounty-hunting: “A recent ruling on an obscure, century-old statute has opened the door for people familiar with the finer points of patent law to sue companies that stamp their products with expired patent numbers.” Washington, D.C. patent attorney Matthew Pequignot “noticed the patent marks on the lid to his daily cup of coffee, did some research and found that the lid’s maker, Solo Cup Co., was continuing to claim patent protections for disposable lids that had expired nearly 20 years ago.” So he’s sued Solo and E.D. Va. federal judge Leonie Brinkema has allowed his case to go forward, ruling that the requisite harm to the government is satisfied because the government’s laws against “false markings” were violated. (A federal judge in New York, however, ruled differently on the harm-to-government issue in a recent case with similar facts.) Pequignot has offered to settle the Solo suit for $9 million and has sued Gillette on similar theories; the bounty-hunting law allows claimants to keep half of the recovery.
Pequignot, for his part, says he does not expect an avalanche of false markings lawsuits, despite the fact that [attorney Raymond] Stauffer and some others have already followed in his footsteps. He said that, even as a patent attorney, it took him many hours of research to be able to file his lawsuit.
[AP/Fort Wayne Journal Gazette via ABA Journal; Sheri Qualters, NLJ]
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Catching up with a story from a while back: a law professor at Oklahoma City University, Danne Johnson, has filed a federal lawsuit accusing the university of discrimination. Per this account six months ago in The Oklahoman, the lawsuit sounds as if it will raise issues of wider interest. It is apparently based at least in part on the handling of an October 2007 memo by four OCU law professors alleging, in The Oklahoman’s words, “sexual harassment, pay disparity and insensitivity”:
The female professors also complained the OCU law school has no regular civil rights course, criminal law classes don’t cover rape, and the landmark abortion case Roe v. Wade is only covered sporadically in constitutional law.
The memo was sparked by two incidents: the alleged sexual harassment of two female professors at Dean Lawrence Hellman’s home in July 2007 and the all-male panel chosen for a Constitution Day program in September 2007. …
The memo notes the lack of women on a faculty appointment committee, which regularly included two university professors who are “openly hostile” to the idea of giving special consideration for women and minorities.
According to The Oklahoman, Johnson’s lawsuit cites as indicative of the university’s discriminatory stance that its general counsel, William J. Conger, “indicated the issues raised by Johnson and the other professors were misunderstandings or ‘cultural’ issues, rather than legal issues” (via Secunda/Workplace Prof Blog).
Lawyer-driven entities with no manufacturing side are not the only ones making exorbitant demands for the use of marginal patents, critics charge (via). Related: Encyclopedia Britannica versus GPS systems.
Yes, the online ads are already up. Washington’s City Paper tracks down one California-based law firm marketer: “This is the only marketing I do — it’s the highest cost per click online. What else can you do, a young guy like me? I don’t want to do porn [sites].” According to one report via Twitter, “the Google ads are running on the WMATA Web site.” More: Maryland Daily Record (first suit filed); Eric Turkewitz. And Ron Miller, on the dilemma of the young man quoted above: “Dare I suggest this is a false choice? There has to be a third option after porn and train wreck chasing, right?”
Also: Overlawyered favorite Willie Gary is in the case.
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I’ve got an opinion piece up at Forbes.com on today’s Supreme Court decision in Ricci v. DiStefano, the New Haven firefighter reverse-discrimination case. The title: “Sued If You Do, Sued If You Don’t: Through the Looking Glass on Affirmative Action” (& link thanks to Ramesh Ponnuru, NRO “Corner”, Daniel Schwartz, Connecticut Employment Law Blog, Jon Hyman, Ohio Employment Law (to whom thanks for the kind comments as well), and Scott Greenfield, Simple Justice).
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Speaking of renowned Chicago law professors with reputations that cut across ideological lines: “Sen. Saxby Chambliss (R-Ga.) has blocked President Obama’s candidate for regulation czar, Harvard law professor Cass Sunstein, because Sunstein has argued that animals should have the right to sue humans in court.” [The Hill; mostly favorable coverage of Sunstein's nomination and views at my other site, Point of Law].
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Heads are still shaking over what would appear to be a non-satirical proposal from Judge Richard Posner:
…Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
More: Jeff Jarvis notices other dubious ideas on enforceable “exclusivity” floating about. And more thoughts from Carolyn Elefant at Legal Blog Watch and David Post @ Volokh.
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An elderly club that had been meeting for four years every Tuesday at the Eye Library in Eye, Cambridgeshire, were told that they could no longer have hot tea or coffee at their meetings, lest it be accidentally spilled on a toddler. They’ve retreated to holding meetings in members’ homes. [Telegraph] Hat tip to F.R.
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Last week the Supreme Court ruled 6-3 that the parents of an Oregon student diagnosed with ADHD and other problems could send him to an expensive private school and bill the government for the cost, even if he had not previously been enrolled in a public school special education program. San Francisco Chronicle columnist Debra Saunders discusses the case and quotes me on a couple of points:
Walter Olson of overlawyered.com nailed the problem with the majority ruling when he opined in an e-mail, “The impulse to get a better shake for one’s kid is universal, but it’s disproportionately wealthy and clever parents, with their hired lawyers and experts, who succeed in using these rules to obtain a private school education at public expense. In this case, the question was whether parents should at least try the public schools’ proffer of special-ed services before declaring them inadequate, which doesn’t seem to me to be too much to ask.” …
Noting that Souter’s dissent was joined by conservative Justices Antonin Scalia and Clarence Thomas, Olson noted, “I’m still trying to figure out why being progressive on this issue means siding with the private schools and affluent parents, while the conservative justices are the ones to defend the public school ideal of universal service.”
Saunders also quotes my distinguished Manhattan Institute colleague Jay Greene, who takes a different view. It’s worth noting, by the way, that parents of non-disabled students continue to have no right at all to obtain reimbursement for private alternatives should they decide the public schools are failing their kids. More: Tamar Lewin, New York Times; Zach Lowe, American Lawyer.
And: Scott Greenfield also takes a different view, and Jay Greene explains his reasoning further in comments and at his site.
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The practice seems to have been taken to an extreme in Congress with the pending “cap and trade” bill. [David Freddoso, D.C. Examiner]
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Nearly all the outcry about the Consumer Product Safety Improvement Act of 2008 has focused on its absurd and impracticable rules for products intended for kids twelve and under, such as apparel, books, toys, used items and so forth. But the law is actually a lot broader than that, imposing many new requirements and burdens that apply to wider classes of consumer products, whether or not intended for use by kids. Here’s the story of one miscellaneous provision causing major headaches for makers and distributors of specialty chemicals used in car care and maintenance (Paul Laurenza, “Product safety law imposes major burdens on auto suppliers”, Aftermarket Business, Apr. 3, via ShopFloor)
Yes, I have much to answer for. Like him I’ve forgotten the exact words of our ten-year-old conversation, but his paraphrase sounds right.
Before asking a federal judge to grant preliminary approval for a class action settlement with Ameritrade over alleged privacy breaches, make sure that your “client,” the class representative, isn’t going to tell the court he opposes the settlement. In re TD Ameritrade Account Holder Litigation, Case No. C 07-2852 VRW (N.D. Cal.) ($1.87M for the attorneys, coupons for the class.).
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Oz taxpayers spent more than $A1 million securing the conviction of murder defendant/jailhouse lawyer Hugo Rich, who employed many colorful and wearying tactics in his defense on charges of murdering a security guard during a holdup. [Melbourne Herald-Sun]
The news is on the Bloomberg wire. Beck & Herrmann have this to say: “Despite the absence of scientific evidence, juries have repeatedly awarded millions of dollars to folks who developed IBD [inflammatory bowel disease] after taking Accutane. … If you ever need another example of the cost of litigation driving a beneficial drug off the market, add Accutane to your list.” From the Bloomberg account it appears, however, that generic versions of the powerful anti-acne medication will continue to be available — for now, at least.
More: New Jersey Lawsuit Reform Alliance (”If you are reading this and currently taking Accutane, trial lawyers owe you an apology. You just lost your drug.”); a curious 2002 Accutane lawsuit.
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Influence-peddling at the University of Illinois with state politicians including now-disgraced Gov. Blagojevich, per a Chicago Tribune investigation:
What does it cost to get an unqualified student into the University of Illinois law school?
Five jobs for graduating law students, suggest internal e-mails released Thursday.
The only surprising thing about this stuff is that none of these bigwigs (including a law school dean — apparently she never learned to think like a lawyer) can ever seem to remember that government emails are subject to FOIA requests.
Also in Illinois, a furor has broken out over DePaul’s firing of its law dean, Glen Weissenberger (per Paul Caron) “for reporting truthful information to the ABA in connection with its reaccreditation site visit”. John Steele, Legal Ethics Forum:
For some time now, I’ve been arguing on this blog that the most powerful form of ethics teaching that occurs in law schools is the open and widespread gaming of numbers and statistics for rankings purposes. Students are taught that gaming the numbers and then concealing it, fibbing about it, or rationalizing it, is what grown-ups do for a living in the real world.
More: Above the Law (with emails from U. of I.); Prof. Bainbridge (recalling his days on U of I Law’s admissions committee); and see comments below on this post for views of the DePaul episode differing from those linked above.
Further: The U of I dean at the time says her email remarks were facetious and are being misinterpreted [David Hyman, Volokh]. And Brian Leiter (via Glenn Reynolds): “Attacking university officials over this scandal is like attacking the victim of a robbery for handing over his money…. And, by the way, the same story is waiting to be written about admissions at every state university in the country.”
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