- Forfeiture: “Defend the Right to Carry Cash and Travel Unmolested” [Eapen Thampy, Agitator]
- Recent Japanese racketeering law, unlike our RICO, actually focuses on organized crime [Adelstein]
- Sheriff’s flack to Fiona Apple: shut up and sing [Ken at Popehat]
- Jimenez case: 99-year sentence, “substantial likelihood defendant was not guilty of this offense” [Jacob Sullum]
- Conrad Black continues to speak out on barbarities of “prosecutocracy” [NY Sun]
- “Are whistle-blowers the new IRS business model?” [Victor Fleischer, NYT DealBook]
- “Minnesota Farmer Found ‘Not Guilty’ in Raw Milk Case” [Katherine Mangu-Ward, Reason]
- Utah man shoots neighbor he thinks “telepathically raped” his wife, is ruled mentally fit for trial [CBS]
You searched for:
"raw milk"
- Prop 37: Oakland Tribune thumbs down [editorial] “Natural” language a flashpoint [Glenn Lammi, WLF] Earlier here, here;
- “Danish government may scrap its ‘fat tax’ after only one year because it simply doesn’t work” [Mark J. Perry, AEIdeas]
- “Mouse in Mountain Dew saga comes to an end” [Madison County Record, earlier]
- Food safety and local producers: “FDA Rules Won’t Work, Will Harm Small Farmers” [Ryan Young, CEI] “How Farmers’ Markets Dodged a Regulatory Bullet in Pennsylvania” [Baylen Linnekin, Reason]
- “On the roads, on the cheese board… many Europeans now have more freedom than Americans.” [Mark Steyn]
- Mayor Bloomberg extends his healthy-beverage solicitude to the youngest consumers [Steve Chapman]
- In France, raw milk in vending machines [Mark Perry] FDA ban on interstate shipment of raw milk dates back to lawsuit by Public Citizen’s Sidney Wolfe [Linnekin]
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- Chicago city government joins Boston in threatening to use regulation to punish Chick-fil-A for its political views [Josh Barro, Eugene Volokh, earlier, Tim Carney]
- NYC hearing on Bloomberg soda ban “a pre-scripted event with a foregone conclusion” [ACSH, WLF] despite inclusion of Baylen Linnekin on witness list [Reason, Jacob Sullum] If calories are the point: “Hey, Mayor Mike, why not ban beer?” [Sullum, NYDN]
- California restaurants serving foie gras “can be fined up to $1,000…or is it a tax?” [Fox via @ReplevinforaCow]
- When nutrition labeling meets deli salads: the FDA invades Piggly Wiggly [Diane Katz, Heritage]
- “Raw Milk Advocates Lose the Battle But Win the War” [ABA Journal]
- “PLoS Medicine is Publishing An Attack On ‘Big Food’” [David Oliver]
- More signs that Mayor Bloomberg is eyeing liquor as a public health target [NYP, earlier] Oasis in the putative food desert: “In praise of the corner liquor store” [Katherine Mangu-Ward, Reason]
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- “Public pool owners struggle to meet chair-lift deadline” [Springfield, Ill. Journal-Register, earlier]
- Punitive damages aren’t vested entitlement/property, so why the surprise they’d be cut off in an administered Chrysler bankruptcy? [Adler]
- More on how Violence Against Women Act (VAWA) reauthorization would chip away rights of accused [Bader, Heritage, earlier]
- Defending sale of raw milk on libertarian principle shouldn’t mean overlooking its real risks [Greg Conko/CEI; Mark Perry on one of many heavy-handed enforcement actions against milk vendors]
- More tributes to longtime Cato Institute chairman Bill Niskanen [Regulation magazine (PDF), earlier]
- Asbestos lawyers wrangle about alleged swiping of client files [Above the Law]
- “Nathan Chapman & Michael McConnell: Due Process as Separation of Powers” [SSRN via Rappaport, Liberty & Law]
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- NYC health officials, in yet another federally funded food-denunciation ad campaign, Photoshop leg off obese guy to turn him into supposed diabetic amputee [my new Cato post, Radley Balko; more Caroline May/Daily Caller]
- Are White House advisors reading my posts? Probably not, but deregulation of dairy-farm “oil” spills still gave President an applause line in State of the Union speech [also at Cato]
- More on L.A. schools’ healthy-lunch debacle [WSJ edit, earlier] It’s an illustration of how promising pilot projects often don’t scale [Megan McArdle] New Penn State study finds no connection between child obesity and availability of “bad” foods at school [NYT, Philly Mag, study via Wajert]
- “Obesity plateau” of American population should offer chance for calm policy reflection, but probably won’t [Jacob Sullum] “Food Lawsuits Claiming ‘Addiction’ Coming To a Courtroom Near You?” [Lammi, Forbes]
- Despite lip service to “letting consumers make their own food choices,” Obama won’t legalize raw milk [Obama Foodarama]
- Coming in April from Tyler Cowen, “An Economist Gets Lunch: New Rules for Everyday Foodies” [Amazon, Freakonomics, Food and Drink category of MR, and you can follow Twitter account @AnEconomistGets;
- "2011 Brought Lots of Good News for Salt Lovers" [Greg Conko, Open Market]
Dan Charles at NPR reports on how parts of the media joined in last month to hype a report by journalist Andrew Schneider in Food Safety News raising alarms about the safety and authenticity of honey. (Similarly: Maggie Koerth-Baker, BoingBoing). “It sounded so right, plenty of people decided that it just had to be true. … But then we decided to look into it a little more closely. We talked to honey companies, academic experts, and one of the world’s top honey laboratories in Germany. The closer we looked, the more misleading the story in Food Safety News seemed.”
My Cato colleague Sallie James was among the few to take a skeptical tone about the Schneider allegations when they first hit the press. And as NPR points out, Food Safety News is part of the sprawling new media empire of Bill Marler, the very media-savvy food poisoning lawyer whose Marler Clark law firm has done much to sway press discussion of many food safety issues. On a different topic, did Marler really say the other day that raw milk farmers should count themselves lucky they’re not put to death?
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- Behind the antitrust assault on Google [Jerry Brito, Josh Wright, more]
- Rapid rise of lawsuit lenders [WSJ] And a Searle Civil Justice Institute conference on third party financing of litigation;
- More law firms muscle into class action against e-book publishers [PaidContent] Fifth Circuit questions cy pres [Trask] And a new edition of the Federalist Society’s Class Action Watch is out;
- When the house painters announce they’re not leaving: “Britain plans to tighten anti-squatter laws” [NYT]
- “Courts Call Out Copyright Trolls’ Coercive Business Model, Threaten Sanctions” [EFF] “Righthaven’s Copyright Trolling is a Bankrupt Idea” [Cit Media Law] More: Vegas Inc.
- “Twombly is the Logical Extension of the Mathews v. Eldridge Test to Discovery” [Andrew Blair-Stanek via Volokh, Frank] “Four more reasons to love TwIqbal” [Beck] “O’Scannlain says 9th Circ has adopted ‘Iqbal lite’ pleading standard, ‘Same insufficient complaints, fewer dismissals!’” [@ScottKGraham on dissent in Starr v. County of Los Angeles, PDF]
- Florida farms sell raw milk as (wink) “pet food” [Sun-Sentinel]
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Knock three times at the cheese-easy: “A yearlong sting operation involving a multitude of state and federal agencies brought to justice Wednesday a dangerous ring of raw dairy enthusiasts in California.” [C.J. Ciamarella, Daily Caller; Reason.tv]
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- Texas legalizes sale of home-baked goods; “Mom can come out of hiding” [KLTV; @JohnWaggoner] New York regulators order Greenmarket cheese vendors to stop custom-slicing wedges for customers [Baylen Linnekin]
- Children who take school lunch more likely to be obese than those who brown bag it [Freddoso] And is there still time to save chocolate milk? [Boston Herald on proposed Massachusetts school ban]
- “Obesity policy” in theory: “High-calorie food is too cheap” argument of NYT’s Leonhardt is open to doubt [Josh Wright] “Is obesity really contagious?” [Zoë Pollock, The Dish] Knives out among scientists debating food causes of obesity [Trevor Butterworth, Forbes] Feds look to regulate food similarly to tobacco in hope of saving money on health care [Munro, Daily Caller]
- …and practice: “Calorie counts don’t change most people’s dining-out habits, experts say” [WaPo, Richer/WLF] Obama nutrition campaign: eat as we say, not as we do [The Hill] Of recent USDA “recipes for healthy kids,” 12 of 15 would not have met proposed FTC ad standards [WSJ] Nanny’s comeuppance? “States rein in anti-obesity laws” [WSJ Law Blog]
- “Food safety chief defends raw milk raids” [Carolyn Lochhead, SF Chronicle, earlier]
- “It’s Time to End the War on Salt: The zealous drive by politicians to limit our salt intake has little basis in science” [Melinda Wenner Moyer, Scientific American]
- After talking with experts, NYT’s Mark Bittman walks back some assertions about the European e. coli outbreak, now blamed on Egyptian fenugreek seeds [Science Mag; related, Kolata/NYT]
- “If anything, China’s food scandals are becoming increasingly frequent and bizarre.” [LATimes]
- Public criticism of activist food policy often calls forth a barrage of letters defending government role in diet. Ever wonder why? [Prevention Institute "rapid response" talking point campaign; how taxpayers help]
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Well, then, FDA, just don’t consume any of it (h/t), rather than conducting year-long stings on Amish farmers to keep others from doing so.
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Surprisingly or otherwise, some big business groups like the Grocery Manufacturers of America have allied with consistent Big Government advocacy groups like the Consumer Federation of America and Center for Science in the Public Interest to push S. 510, the food safety bill pending before the Senate (which might win consideration in the lame-duck session). In a post at Cato at Liberty recently, I cited writer Barry Estabrook, an ardent critic of the food industry (“Politics of the Plate“), writing at The Atlantic, who says the bill could “make things worse”:
You needn’t go along completely with Estabrook’s dim view of industrialized agriculture to realize he’s right in one of his central contentions: “the proposed rules would disproportionately impose costs upon” small producers, including traditional, low-tech and organic farmers and foodmakers selling to neighbors and local markets. Even those with flawless safety records or selling low-risk types of foodstuff could be capsized by new paperwork and regulatory burdens that larger operations will be able to absorb as a cost of doing business.
It’s true that S. 510 includes language not in earlier drafts that nods toward the idea of tiering regulatory burdens. But as the Farm and Ranch Freedom Alliance notes (background), most of the small-producer-friendly changes are left to FDA discretion, so it really depends on how much you trust that process. Note also these comments (background) by Peter Kennedy for the Farm-To-Consumer Legal Defense Fund, which focuses primarily on defending raw milk, and in particular Kennedy’s discussion (as things that may be particularly burdensome to small entities) of HARPC (“hazard analysis and risk-based preventive controls”), traceability, penalties, expansion of federal jurisdiction, and produce standards, as well as the terms of S. 3767, the “Food Safety Accountability Act of 2010,” a new measure introduced by Vermont Senator Patrick Leahy. On the “pro” side, here is an advocacy sheet (anonymous on its face, but attributed in some quarters to Senate staffers) defending the measure as fair to small farmers (& welcome Professor Bainbridge readers).
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- Hilton Head dispute over pet turkeys leads to $4.25 million verdict [Island Packet via Lowering the Bar]
- “Lucasfilm lightsaber legal threat letter sells for $3,850″ [BoingBoing, earlier]
- Raw milk: “If The Government Says That It’s Not About Freedom, Then It’s Just NOT” [Ken at Popehat vs. L.A. Times]
- Dell “failed to stress” accounting disclosure. SEC: that will be $100 million [TJIC]
- Dodd-Frank dubbed “Lawyers’ and Consultants’ Full Employment Act of 2010″ [Mark Perry, WSJ Law Blog]
- “Did liberal judges invent the standing doctrine? An Empirical Study of the Evolution of Standing, 1921-2006″ [Ho/Ross, Stanford Law Review]
- Office of Connecticut AG Blumenthal doesn’t emerge with glory from fertility doctor case [Pesci]
- Massachusetts high court tosses 125-year-old rule: owners now face wider liability for snow/ice hazards [Globe]
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The panics over salmonella, E. Coli and unsafe foodstuffs from China have heightened the prospects that Congress will enact a measure known as H.R. 875, the “Food Safety Modernization Act of 2009″. 
Should the measure in its current form become law, “food establishments”, which to quote Patrick at Popehat “means anyone selling or storing food of any type for transmission to third parties via the act of commerce”*, will have to register with a new federal regulatory agency, submit to federal inspections, and, perhaps most significant, keep “copious records of sales and shipment by lot and label”. Penalties for infractions will be very, very steep.
The answer, it seems, is “plenty”. Patrick, and the other writers linked just above, warn that the law may drive out of business local farmers and artisanal, small-scale producers of berries, herbs, cheese, and countless other wares, even when there is in fact nothing unsafe in their methods of production. Many informal makers of ethnically or culturally distinctive food items will go off-books or simply fall by the wayside, overwhelmed by the reporting and batch-tracking paperwork. Many foreign producers who ship in less-than-mass quantities will give up on the U.S. market rather than try to comply with challenging standards that differ drastically from those imposed by European markets or their own countries of origin, which in turn will mean that many interesting and safe specialty foods will simply no longer be available for purchase, at least legally.
The catch-phrase one keeps hearing is “CPSIA for food”.
So now an aggressive campaign of reassurance is underway: FSMA, it’s said, really should be seen as posing no particular threat to farmer’s markets or small producers — at least those that are not sloppy or cavalier about their customers’ safety. 
At Treehugger, one finds language which with a word changed here or there is virtually identical to the reassuring language one recalls hearing from CPSIA backers:
I can’t imagine this resulting in anything more than a little paperwork and a brief headache for small farmers—they have no reason to worry about a seven figure fine. That amount is intended to account for corporate ne’er food-do-wells, and is therefore a pretty damn good incentive to keep factories and meat packing plants clean.
So even though home orchard proprietors and others operating at far less than a factory scale of production will in fact be exposed to stiff fines should they fall astray of the record-keeping obligations, this particular writer, Brian Merchant, “can’t imagine” stiff fines actually being imposed. You have to wonder whether Mr. Merchant was one of those who as recently as January couldn’t imagine CPSIA posing more than a “brief headache” for thrift stores or handmade toy crafters.
Among those prominent in this campaign of reassurance is the ubiquitous and media-friendly plaintiff’s lawyer Bill Marler, who’s carved out a thriving practice filing (and publicizing) food poisoning suits. Marler’s blog serves as a bit of a clearinghouse for articles vigorously disputing the idea that small producers have any reason, any good reason at least, to be afraid of H.R. 875.
The chief sponsor of FSMA’s Senate version is none other than Illinois Sen. Dick Durbin, and among the groups prominently backing the bill is none other than Consumers’ Union. We are now being asked to trust a legislative process in which Durbin and CU will count as insiders to ensure that the law’s provisions are shaped so as not to pose an undue or prohibitive burden on small producers far from the Washington scene. If there was ever a time when I would have trusted Sen. Durbin and Consumers’ Union with such a task, it was before the CPSIA debacle. Not only did the Durbins and CUs of the Washington scene help bring us that debacle, but — much less forgivably — they have continued blindly or mendaciously to deny that there is anything that needs fixing about that law at all, even as its damage has mounted month upon month. They do not deserve our trust on this matter.
Some other views: Slow Food, Ari LeVaux/AlterNet (noting that an alternative bill, HR 759, the “Food And Drug Administration Globalization Act,” may be more likely to pass and poses many of the same issues), Farm-to-Consumer Legal Defense Fund (oriented toward raw milk defense), Nicole Brodeur/Seattle Times (pooh-poohing concern over H.R. 875, but acknowledging the legitimacy of similar concerns that the animal-tracking program NAIS will render small animal-keeping operations uneconomic). Another source: Twitter hashtag #HR875.
More: & welcome Andrew Sullivan, Eve Tushnet, Hans Bader, Rob Wilson/Challenge and Fun, John Phipps/Incoming readers. And more from the “campaign of reassurance” camp: Hartford Courant (citing views of bill sponsor Rosa DeLauro, D-Ct.); Ryan Grim at Huffington Post (similar); Factcheck.org (criticizing untruths and hyperbole about the bill found in a widely circulated chain email, and seeming to guide readers to the Snopes-like conclusion that concern about the bill can therefore be dismissed). John Cole/Balloon Juice initially agrees in finding grounds for concern, then is convinced by commenters (who warn him against wicked, untrustworthy sites like this one) that it’s all “hysterical” and “nonsense”. More reactions: Patrick @ Popehat, Rod Dreher, Nick Gillespie @ Reason “Hit and Run”, Hans Bader and more, Vines and Cattle.
*Some reasssuring accounts of the law describe it as applying only to food in “interstate commerce”, which sounds as if it might not reach local and mom-and-pop operators at all; but the law’s definition of “interstate commerce,” as readers may remember, can include extremely localized doings, as in Wickard v. Filburn (farmer’s growing of wheat for his own consumption deemed “interstate commerce”). Section 406 of the bill reads as follows: “PRESUMPTION. In any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdiction shall be presumed to exist.”
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October 10 – Hot pickle suit. Veronica Martin of Knoxville, Tenn. has sued a local McDonald’s restaurant, alleging that last October it sold her a hamburger containing an overly hot pickle that dropped onto her chin, burning it so badly as to leave a scar. She’s asking $110,000 for medical bills, lost wages, physical and mental suffering, while her husband Darrin says he deserves $15,000 for being deprived of her services and consortium. The complaint was filed by attorney Amelia G. Crotwell, of a Knoxville law firm coincidentally known as McDonald, Levy & Taylor. (Randy Kenner, “Couple sue McDonald’s over spilled ‘hot’ pickle”, Knoxville News-Sentinel, Oct. 7; “Couple Sues Over Hot Pickle Burn”, AP/Yahoo, Oct. 7). (case settled: see April 16, 2001)
October 10 – “Gunshot wounds down almost 40 percent”. The steep decline took place between the years of 1993 and 1997, well before the unleashing of mass litigation against gunmakers by way of big-city lawsuits (AP/USA Today, Oct. 8). And despite attempts to redefine private ownership of guns as some sort of out-of-control public health epidemic, “the number of fatal gun accidents is at its lowest level since 1903, when statistics started being kept.” (Dave Kopel, “An Army of Gun Lies”, National Review, Apr. 17). The Colorado-based Independence Institute, of which Kopel is research director, maintains a Second Amendment/criminal justice page which includes a section on gun lawsuits.
October 10 – Spread of mold law. Injury and property damage claims arising from the growth of mold in buildings were “virtually unheard of a few years ago” but are now among the “hottest areas” in construction defect and toxic tort law, reports Lawyers Weekly USA. “I view these mold claims as similar to asbestos 30 years ago,” Los Angeles lawyer Alexander Robertson told the Boston-based newspaper. “Mold is everywhere,” another lawyer says. “There are no specific government guidelines and not a whole lot of medical information on it. It’s ripe for lawyers to get into and expand it.” Most commonly found when water gets into structures, mold has been blamed for a wide variety of health woes including “respiratory problems, skin rashes, headaches, lung disease, cognitive memory loss and brain damage, common everyday symptoms that could be caused by other factors. That’s where lawyers and expert witnesses come in.” (“Toxic mold a growing legal issue”, UPI/ENN, Oct. 6) (via Junk Science).
October 10 – Updates. Following up on stories covered earlier in this space:
* Amid “tense confrontations”, attempts to disrupt and block the march, and the arrest of 147 protesters, Denver’s Columbus Day parade (see Oct. 3) went on without actual bloodshed: Rocky Mountain News, Denver Post and New York Post coverage, and National Review commentary.
* At the time of our June 12 commentary, hyperactive Connecticut attorney general Richard Blumenthal was up for a Second Circuit federal judgeship; now, the window of opportunity for confirmation having slammed down on Clinton nominees, he’s angling for the Senate seat that Dems hope Joe Lieberman will soon vacate. David Plotz in Slate profiles the ambitious pol as state AG, “always trolling for power and press”. (Sept. 15).
* In the race-bias case filed by 21 workers at a northern California Wonder Bread bakery (July 10, Aug. 4), a judge has reduced the jury’s punitive damage award from $121 million to $24 million (Dennis J. Opatrny, “Dough Sliced in Wonder Bread Case as Punitives Cut by $100 Million”, The Recorder/CalLaw, Oct. 9).
* An English instructor at the City College of San Francisco has dropped his suit against the proprietor of a “course critique” Web site that posts anonymous critiques of teachers (see Nov. 15, 1999). Daniel Curzon-Brown agreed to drop his defamation suit over comments posted about him at the site and pay $10,000 in attorneys’ fees to the American Civil Liberties Union, which had represented the proprietor of the website, Teacherreview.com. An ACLU lawyer hails the outcome as a victory for free speech on the Web. (Lisa Fernandez, “Instructor at City College settles suit on Web critiques”, San Jose Mercury News, Oct. 3).
October 6-9 – Owens Corning bankrupt. The building materials giant, known for its Pink Panther fiberglass insulation mascot, has filed for Chapter 11 bankruptcy protection, thus becoming one of the biggest of the 25+ companies to be bankrupted so far by the ongoing litigation over injuries attributed to asbestos. Between 1952 and 1972 it sold a pipe insulation product trade-named Kaylo containing the mineral, which brought it total revenues of $135 million over that period; since then it’s paid or committed to pay $5 billion in resulting injury claims, with billions more still looming ahead (Oct. 5: CNNfn; AP; Reuters; company site). Over the years, Owens kept coming back to set aside one more supposedly final reserve to cover its remaining lawsuit exposure, but was proved wrong each time as claims accumulated (representative sunny-side-up profile: Thomas Stewart, “Owens Corning: Back from the Dead”, Fortune, May 26, 1997). In late 1998 it agreed to pay $1.2 billion to settle what were billed as 90 percent of the claims then in its pipeline, but that pipeline soon filled up again as lawyers filed new suits (“Owens Corning settles suits”, CNNfn, Dec. 15, 1998). Regarding the irrationality of the current asbestos litigation system as a way to compensate injured workers, its high overhead and delay, the capriciousness of its outcomes, and its burdensomeness to the thousands of businesses that by now have been pulled in as defendants, see the testimony of several witnesses at the House Judiciary Committee hearing held July 1, 1999, in particular Harvard prof Christopher Edley, former HHS secretary Louis Sullivan, and GAF’s Samuel Heyman; regarding the quality of many of the claims, the means by which many were recruited, and the techniques used to maximize the number of defendants named in each, see our “Thanks for the Memories”, Reason, June 1998.
Owens Corning at various times acquired a reputation as the asbestos defendant that would try to meet the plaintiff’s lawyers halfway rather than fight them ditch by ditch. It opposed last year’s proposal for a legislated federal system of asbestos compensation, saying that it placed more confidence in the arrangements it was negotiating with trial lawyers to resolve claims (Owens testimony and attachment). This testimony was delightedly seized on by the bill’s opponents (dissent by twelve Democratic members, see text at note 8; note the striking similarity in the dissent’s overall arguments to those in earlier ATLA testimony). Earlier, the company had even gone so far as to fund discovery by trial lawyers aimed at uncovering other asbestos defendants for them to sue in hopes of taking some of the pressure off itself, according to Michael Orey’s Assuming the Risk: The Mavericks, The Lawyers and the Whistle-Blowers Who Beat Big Tobacco (Little, Brown, 1999, p. 255). In the end, these methods seemed to work no better in saving it from ruin than the ditch by ditch style of defense worked for others.
Iin their dissenting opinion, the twelve Democratic House members also wrote as follows: “We also find little evidence to support the proponents’ claim that the legislation is needed because we will otherwise face a growing stream of bankruptcies by defendant companies. …Our review of the specific liability statements by publicly traded asbestos defendants confirms that the principal remaining asbestos defendants are not facing any significant threat of bankruptcy.” They name, as particular examples of companies for which there is no such threat, W.R. Grace and Owens Corning. “The situation is much the same with other significant asbestos defendants – U.S. Gypsum, Federal Mogul, Armstrong World Industries, and Pfizer (parent company of Quigley) all have indicated there is little likelihood that asbestos liability could lead to bankruptcy.” (see text at notes 10-15). Pfizer aside, most of these stocks were hit Thursday on Wall Street with losses of 20 to 35 percent of their value, and many have lost 75 percent or more of their value over the past year (Jonathan Stempel, “Owens Corning Woes Hit Other Firms”, Yahoo/Reuters, Oct. 5). It would be remiss of us not to name the twelve Judiciary Democrats responsible for this peer into a decidedly clouded financial crystal ball: they are John Conyers, Jr. (Mich.), Howard L. Berman (Calif.), Rick Boucher (Va.), Robert C. Scott (Va.), Melvin L. Watt (N.C.), Zoe Lofgren (Calif.), Sheila Jackson Lee (Texas), Maxine Waters (Calif.), William D. Delahunt (Mass.), Steven R. Rothman (N.J.), Tammy Baldwin (Wisc.), and Anthony D. Weiner (New York). (DURABLE LINK)
October 6-9 – Bioethicist as defendant. Arthur Caplan of the University of Pennsylvania, perhaps the nation’s most quoted medical ethicist, is now also apparently the first to face a lawsuit over his advice. “The father of Jesse Gelsinger, an 18-year-old from Arizona who died a year ago during experimental therapy for his inborn metabolic disorder, named Caplan in a lawsuit against several Penn doctors and two hospitals,” saying he should not have advised researchers to use full-grown research subjects on ethical grounds (because they could give knowing consent), as opposed to infants, in their experimental therapy. Some say that for practitioners to start getting sued represents a sign that bioethics has finally made it as a discipline. (Arthur Allen, “Bioethics comes of age”, Salon, Sept. 28).
October 6-9 – Car dealers vs. online competition. The Internet could make car buying a lot cheaper and easier; unfortunately, existing dealers have a strong lobby in state capitals and have been working hard to block online competition (Solveig Singleton, “Will the Net Turn Car Dealers Into Dinosaurs?”, Cato Briefing Papers #58, July 25 (study in PDF format); James Glassman, “Car Dealers Declare War on the New Economy”, TechCentralStation/ Reason Online, April 3; Murray Weidenbaum, “Auto dealers quash Internet competition”, Christian Science Monitor, Aug. 17; Scott Woolley, “A car dealer by any other name”, Forbes, Nov. 29, 1999).
October 6-9 – Blue-ribbon excuses. In Bucks County, Pa., Samuel Feldman has been convicted of mutilating baked goods in stores over a two-year period; merchants complained of thousands of dollars of losses including 3,087 loaves of sliced bread, 175 bags of bagels, and 227 bags of potato dinner rolls. An Archway distributor said that after the defendant visited shelves of packaged cookies, each was found to have a thumb-poke through its jelly center. Feldman’s wife Sharon told the jury that the couple are “picky shoppers” and inspect products carefully: “Freshness is important.” And his attorney, Ellis Klein, “asked the jury to be tolerant of different styles of bread selection. ‘Not everybody just takes a loaf and puts in their cart.’” (Oshrat Carmiel, “Judge clamps down on bread squisher”, Philadelphia Inquirer, Sept. 22) (see update Nov. 30).
Meanwhile, in West Palm Beach, Fla., after being found guilty of bribery, former criminal defense lawyer Philip G. Butler “decided he had done a bad job of defending himself. So Butler appealed his felony conviction, arguing that he failed to tell himself about the danger of waiving competent counsel.” An appeals court wasn’t buying. (Stephen Van Drake, A Fool for a Client”, Miami Daily Business Review, Sept. 8).
October 6-9 – “Money to burn”. American Lawyer profile of Charleston, S.C.’s Ness, Motley, Loadholt, Richardson & Poole talks about some of the ways the firm’s trial lawyers are handling their enormous income from the state tobacco settlement (156-foot yacht, new office building, hanging out with Hillary Clinton and Al Gore a lot) but doesn’t get into the question of what their aggregate take from the tobacco caper will be — elsewhere it’s been reported to be in the billions, with a “b”. (Alison Frankel, American Lawyer, Sept. 27).
October 6-9 – “Attorneys general take on Mexican food industry”. A parody we missed earlier, appearing in the online Irk Magazine (March 24). As always with these things, do as we do and keep repeating to yourself: it’s just a parody … it’s just a parody … it’s just a parody.
October 5 – For Philly, gun lawsuits just the beginning. Philadelphia’s city solicitor, Kenneth I. Trujillo, is forming a new “affirmative-litigation unit” within his department to file lawsuits against national and local businesses and recover (he hopes) millions of dollars for the city, teaming up with private lawyers who will work on contingency. “He said he hoped the city’s pending lawsuit against gun manufacturers would prove to be just the beginning. ‘It’s really about righting a wrong,’ Trujillo said about the cases he plans to pursue. ‘Not only do they have a public good, but they’re rewarding in other ways. They’re rewarding financially.’” While in private practice, Trujillo founded a firm that specialized in filing class-action suits. He declines to discuss possible targets, but other cities and states have sued lead paint and pigment makers, and San Francisco, which pioneered the idea of a municipality-as-plaintiff strike force, has gone after banks and other financial companies. (Jacqueline Soteropoulos, “City solicitor banks on lawsuits”, Philadelphia Inquirer, Sept. 26). (also see Oct. 13-15)
October 5 – New feature on Overlawyered.com: letters page. We get a lot of mail from readers and have thus far been able to fit only a very few highlights from it onto our front page. This new separate page series should give us a chance to publish a wider selection without interrupting the flow of main items. We start with two letters, from PrairieLaw columnist David Giacalone and HALT counsel Thomas Gordon, reacting to reader David Rubin’s criticism of small claims court earlier this week.
October 5 – Scarier than they bargained for. When lawyers’ promotional efforts go wrong: California law firm Quinn Emanuel Urquhart Oliver & Hedge, to call attention to its new San Francisco office, sent hundreds of potential clients brown cardboard boxes filled with realistic-looking grenades, along with a promotional note advising businesses to “arm” themselves against legal dangers. Unfortunately, two of the recipients thought the devices were real and called the bomb squad (Gail Diane Cox, “Law Firm’s Explosive Ad Campaign Draws Critics, Attention”, CalLaw/The Recorder, Sept. 22).
October 5 – Judge tells EEOC to pay employer’s fees. “Calling it ‘one of the most unjustifiable lawsuits’ he ever presided over, U.S. District Judge Robert Cleland in Bay City, Mich., ordered the Equal Employment Opportunity Commission to pay a Burger King owner more than $58,000 in his legal costs fighting discrimination charges. The judge also ordered five EEOC lawyers to present the commission with his findings that they mishandled the case,” brought against E.J. Sacco Inc. (Winston Wood, “Work Week”, Wall Street Journal/Career Journal, Aug. 8 (next to last item)).
October 5 – Sidewalk toilets nixed again. Boston is the latest city whose plans to become more Paris-like have run into trouble, as its planned $250,000 outdoor commodes fail to comply with handicap-access laws. (Steven Wilmsen, “State approval denied for city’s new ‘street furniture’”, Boston Globe, Sept. 26).
October 4 – Presidential debate. Vice President Al Gore: “I cast my lot with the people even when it means that you have to stand up to some powerful interests who are trying to turn the policies and the laws to their advantage.” He mentions HMOs, insurance, drug and oil companies, but omits an interest group that’s backed him with great enthusiasm over the years, trial lawyers. “I’ve been standing up to big Hollywood, big trial lawyers,” responds Texas Gov. George W. Bush. And later: “I think that people need to be held responsible for the actions they take in life.” (CNN transcript; scroll 3/4 and 7/8 of way down)
October 4 – Aviation: John Denver crash. Survivors of singer John Denver, who was killed three years ago in the crash of a do-it-yourself amateur airplane he was flying off the Pacific coast, have obtained a settlement in their lawsuit against Gould Electronics Inc. and Aircraft Spruce & Specialty Co., which made and sold a fuel valve on the craft. An investigation by the National Transportation Safety Board concluded that the accident happened because Denver knowingly took off with low fuel in a plane with which he was unfamiliar, the fuel lever was hard to reach, and when he reached around to grab it he lost control of the aircraft. A commentary on AvWeb describes the evidence in the manufacturers’ defense as “seemingly overwhelming”: “Everyone involved in general aviation knows that out-of-control lawsuits are the reason a flange on a car costs a quarter and the same flange for a Mooney will run you 150 bucks, and it only seems to be getting worse. …Perhaps in addition to asking the presidential candidates their stands on user fees, the aviation industry should demand to know their positions on tort reform.” The commentary goes on to discuss lawsuits filed over the Air France Concorde crash and over Northwest Airlines’ New Year’s Day 1999 customer delay fiasco at the snowbound Detroit airport (“John Denver’s relatives settle lawsuit against manufacturers”, AP/FindLaw, Sept. 29; “John Denver’s Heirs Settle Lawsuit Over His Death”, Reuters/ Yahoo, Sept. 30; “Run Out Of Fuel? Stuck In A Storm? File A Lawsuit And Win!”, AvWeb, Oct. 2; “Close-Up: The John Denver Crash”, AvWeb, May 1999; NTSB synopsis; rec.aviation.homebuilt (Usenet discussions — check recent thread on Denver crash)).
October 4 – School now says hugs not forbidden. Euless Junior High School, in suburban Dallas, now denies that it punished eighth-graders Le’Von Daugherty, 15, and Heather Culps, 14, for simply hugging each other in the hallway, as was widely reported last week. Instead it says the girls had been repeatedly insubordinate and that hugging as such is not against the rules, only “overfamiliarity”. However, last week Knight-Ridder reported that the school’s principal, David Robbins, “says such physical contact is inappropriate in school because it could lead to other things. Robbins said he stands by his rule that no students should hug in school. … [It] increases the chances of inappropriate touching and creates peer pressure for students who may not want that type of contact.” (“Texas school defends punishing girls for hug”, Reuters/ FindLaw, Oct. 2; Gina Augustini Best, “Texas junior high punishes girls for hugging in hallway”, Knight-Ridder/Miami Herald, Oct. 1; see also March 2 (Halifax, N.S.)). And in suburban Atlanta, school officials have explained why 11-year-old Ashley Smith will not be allowed to appeal her two-week suspension over the 10-inch novelty chain that hangs from her Tweety bird wallet (see Sept. 29): “They noted that students are routinely shown samples of items banned under the weapons policy at the beginning of the school year. ‘These items have been used in the past as weapons. A chain like the one in question can have any number of devices attached to it and it becomes a very dangerous weapon,’ said Jay Dillon, communications director for Cobb County school district.” (“Feathers fly over school suspension”, Reuters/ Excite, Sept. 29).
October 4 – Trial lawyers’ clout in Albany. “Albany insiders say David Dudley — a former counsel to Senate Majority Leader Joseph Bruno who now lobbies for the state trial lawyers association — was a key figure behind Senate passage of a bill to lift caps on fees lawyers earn in medical malpractice cases,” Crain’s New York Business reported this summer. The measure, long sought by trial lawyers, “had the support of the Democrat-run Assembly, but could never win backing from Mr. Bruno and the Republican-controlled Senate. Insiders believe Mr. Dudley reminded Senate Republicans that failure to give the trial lawyers at least one victory this election year could prompt the lawyers to fund Democratic opponents.” Mr. Dudley would not comment; since passing both houses, the bill has been sent to the desk of Republican Governor George Pataki. (“Bruno ex-counsel key to lawyer bill”, Crain’s New York Business, July 24, fee-based archives).
October 4 – New visitor record on Overlawyered.com. We set another weekly and daily traffic record last week. Thanks for your support!
October 3 – U.S. Department of Justice vs. Columbus Day? The Italian-American organizers of Denver’s Columbus Day parade are in hot water because they’d like the event to include some reference to the man for whom the holiday is named. Local American Indian and Hispanic groups have protested honoring someone they see as symbolizing European settlement, native displacement, slavery and even genocide; heeding their concerns, the city and federal governments pressed organizers to accept permit conditions under which the parade would avoid mentioning the explorer, according to attorney Simon Mole of the American Civil Liberties Union. “With the help of the U.S. Justice Department, Italian-Americans and American Indians reached agreement [earlier in September] to hold a ‘March for Italian Pride’ on Oct. 7 that would exclude any references to Christopher Columbus,” reports the Denver Post, but the agreement fell through after the organizers decided they had been giving away their First Amendment rights under government pressure. Menacingly, however, “LeRoy Lemos, who represents a group called Poder, a Hispanic community rebuilding program, said references to Columbus at the parade will not be tolerated. ‘After seven years of peace, our position remains that there will never be a Columbus Day parade in Denver – not this year, not next year, not ever,’ Lemos said. ‘If they violate the terms of the agreement, there will be no parade. Period.’” Who’s the Justice Department protecting, anyway?
SOURCES: J. Sebastian Sinisi, “Columbus’ name banned from ‘Italian Pride March’”, Denver Post, Sept. 21; J. Sebastian Sinisi, “Columbus parade pact fails”, Denver Post, Sept. 29; “The right to march” (editorial), Denver Post, Sept. 30; Al Knight, “Webb deaf to free speech”, Denver Post, Oct. 1; related articles; Peggy Lowe and Kevin Flynn, “Italians renege on renaming parade”, Rocky Mountain News, Sept. 29; Vince Carroll, “Let Columbus rest in peace”, Rocky Mountain News, Sept. 24; Bill Johnson, “Columbus, well, that’s not all this parade’s about”, Rocky Mountain News, Oct. 1; Columbus bio courtesy of student projects, St. Joseph’s School, Ireland. Update: parade held with disruptions and mass arrests, no bloodshed (see Oct. 10). (DURABLE LINK)
October 3 – From our mail sack: small claims court. David Rubin writes from Los Angeles: “I am a defense lawyer who generally supports the ideas which you espouse on this forum. However, I can safely say that out in Los Angeles, the small claims court (see Sept. 29) is more akin to a Kangaroo court than anything else. The reason cases can be heard so quickly in small claims is that judges spend so little time on them. The average small claims case lasts 5 minutes. I had a client who had a small claims judgment entered against him, based on a contractual debt owed to a company. This company had been shut down by the Corporations Department for fraud, based on the very contract the client had been found liable on. The client had evidence of this, but the judge wouldn’t hear of it.
“The judge simply asked ‘Did you sign this contract?’ – Client: ‘Yes’. – Judge: ‘Did you pay this debt?’ – Client: ‘Well, you see…’ – Judge: ‘Yes or no?’ – Client: ‘No’ – Judge: ‘Judgment for the plaintiff’.
“Speedy justice isn’t always justice, you know…”
October 3 – Volunteer gamers’ lawsuit. Heated discussions in progress around the Net re Fair Labor Standards Act lawsuit demanding retroactive minimum wage pay and benefits for volunteer fans who’ve helped administer online role-playing games (see Sept. 12): Nihilistic.com discussion; “GamerX”, “Money Changes Everything”, CNET GameCenter, Sept. 22; CNET discussion; complaint (Lum the Mad).
October 3 – More things you can’t have: raw-milk cheeses. “The Food and Drug Administration is considering new rules that either would ban or drastically limit the manufacture and import of raw milk, or unpasteurized, cheeses.” These include most of the interesting ones that one would go out of one’s way to eat. Safety grounds, of course, are cited: the more the compulsory assurances that we will live to a healthy old age, the fewer the reasons to want to do so. (Eric Rosenberg, “U.S. ponders ban on raw milk cheese”, San Francisco Examiner, Sept. 18; “Do dangerous organisms lurk in your favorite unpasteurized cheese?”, Reuters/CNN, Sept. 27).
October 2 – Killed his mother, now suing his psychiatrists. “Two summers ago, Alfred L. Head drove his car through the front wall of his family’s Reston[, Va.] home, then walked in with a baseball bat and beat his mother to death.” Found not guilty by reason of insanity and sent to a mental hospital, he’s now suing the psychiatrists he says should have prevented him from doing it. According to the Washington Post, “a number of experts said Head may have a strong case. They point to Wendell Williamson, a North Carolina man who went on a shooting rampage that killed two people and later won $500,000 after suing a psychiatrist who had stopped treating him eight months before the shooting….. Commonwealth’s Attorney Robert F. Horan Jr., who prosecuted Head, said he had ‘a history of manipulating the mental health community.’ Head knew the right words and behaviors to avoid hospitalization, Horan said. ‘It’s hard for me to believe,’ he said, ‘that the very guy who manipulated the system now says the system screwed up while he was manipulating them. He successfully conned all of them.’” (Tom Jackman, “Reston Family Sues in Insanity Case”, Washington Post, Oct. 1).
October 2 – No fistful of dollars. After deliberating for four hours, a San Jose jury found that Clint Eastwood does not have to pay damages to a disabled woman who said his inn/restaurant violated the Americans with Disabilities Act. The jury found him liable for two minor violations of the law but declined to assign damages. (Brian Bergstein, “Eastwood cleared in disabled case”, AP/Yahoo, Sept. 29; Reuters/Yahoo; “Clint Eastwood Explains His Beef With the ADA”, Business Week, May 17; Sept. 21 and earlier commentaries linked there).
October 2 – Judge throws out half of federal tobacco suit. In a 55-page opinion, U.S. district judge Gladys Kessler last week threw out the health-cost reimbursement portions of the Clinton Administration’s much-ballyhooed federal lawsuit against tobacco companies, while allowing to proceed, for now at least, its claims under the dangerously broad and vague RICO (racketeering) law. “Congress’ total inaction for over three decades precludes an interpretation … that would permit the government to recover Medicare” and other expenses, Kessler ruled. Both sides claimed victory, but cigarette stocks rose sharply on Wall Street.
According to Reuters, ‘Kessler expressed reservations about whether the racketeering claims would ultimately prove successful. ‘Based on the sweeping nature of the government’s allegations and the fact the parties have barely begun discovery to test the validity of these allegations, it would be premature for the court to rule (now),’ Kessler wrote. ‘At a very minimum the government has stated a claim for injunctive relief: whether the government can prove it remains to be seen.’” (Pete Yost, “Judge: 2 Claims Out in Tobacco Case”, AP/Yahoo, Sept. 28; Lyle Denniston, “Federal judge throws out half of tobacco industry lawsuit”, Baltimore Sun, Sept. 29; Reuters/FindLaw; MS/NBC; Washington Post)(U.S. v. Philip Morris — main decision in PDF format via Findlaw).
October 2 – Malpractice outlays on rise in Canada. “Damage claims arising from medical malpractice are costing Canadian doctors and taxpayers an arm and a leg, especially in Ontario,” according to estimates from the Canadian Medical Protective Association, which defends doctors in court. There are pronounced regional differences, with average settlements in closed cases running C$172,000 in Ontario, C$67,000 in Quebec, and in between elsewhere. The projected cumulative cost of all pending claims is expected to reach C$3 million per Canadian doctor by the end of 2000 — a number that seems strangely high given the reported size of claims, but which is not further elucidated in the story. (Dennis Bueckert, “Malpractice awards averaging $3 million per doctor are a major cost to taxpayers”, CP/St. Catharines (Ont.) Standard, Oct. 1) (more on regional differences).
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