April 10 --
"Pilloried, broke, alone". Canadian
journalist's probe of "deadbeat dad"
issue finds some bad guys but also many who "are too impoverished to pay,
have been ordered to pay unreasonable amounts, have been paying for unreasonable
lengths of time, or are the victims of bureaucratic foul-ups." (Donna
LaFramboise, "Pilloried, broke, alone",
National Post, March 25,
link now dead).
April 10 --
Verdict on Consumer Reports: false, but not damaging.
After a two-month trial, a federal jury found Thursday that the magazine
had made numerous false statements in its October 1996 cover story assailing
the 1995-96 Isuzu Trooper sport utility vehicle
as dangerously prone to roll over, but declined to award the Japanese carmaker
any cash damages. The jury found that CR's "testing" had put the
vehicle through unnatural steering maneuvers which, contrary to the magazine's
claims, were not the same as those to which competitors' vehicles had been
subjected. Jury foreman Don Sylvia said the trial had left many jurors
feeling that the magazine had behaved arrogantly, and that eight of ten
jurors wanted to award Isuzu as much as $25 million, but didn't because
"we couldn't find clear and convincing evidence that Consumers Union intentionally
set out to trash the Trooper". The jury found eight statements false
but in only one of the eight did it determine CR to be knowingly or recklessly
in error, which was when it said: "Isuzu ... should never have allowed
these vehicles on the road." However, it ruled that statement not
to have damaged the company, despite a sharp drop in Trooper sales from
which the vehicle later recovered. The magazine sees fit to interpret
these findings as "a complete and total victory for Consumer's Union" (attorney
Barry West) and "a complete vindication" (CU vice president David Pittle).
Union; its reaction (link now dead); Isuzu;
reaction; Dan Whitcomb, Reuters/Yahoo, April 6, link now dead; "Jury
clears Consumer Reports magazine of liability in Isuzu case", AP/CourtTV,
7; David Rosenzweig, "Jury Finds Magazine Erred in Isuzu Critique",
Los Angeles Times, April 7, link now dead. More background:
Max Boot, "Guardian of the Lawyers' Honey Pot", Wall Street Journal,
Sept. 19, 1996, reprinted at JunkScience.com site, link now dead; Walter
Olson, "It Didn't Start with Dateline NBC", National Review, June
April 10 -- Lawyers
charged with $4.7 million theft from clients. "Two Manhattan
lawyers were arrested and charged Friday with stealing $4.7 million from
clients, including a widower with two children and a college professor
who fractured her skull in an accident." Jay Wallman and Alan Wechsler,
both 60 years of age, "used the money to keep their Madison Avenue law
firm afloat and to pay personal expenses, said Assistant District Attorney
Doreen Klein"; in Wechsler's case, that included paying some of his dues
at the Willow Ridge Country Club in Harrison, N.Y., where he was president.
The two have pleaded not guilty; "Wallman has resigned from practicing
law and Wechsler has been suspended, the prosecutor said." About
$2.7 million of the alleged theft was
carried out in the handling of an estate, and the rest in the course of
representing medical malpractice and other personal injury plaintiffs,
some of whom never were given any of the settlements collected on their
behalf, prosecutors say. ("Two NYC lawyers arrested", AP/CNNfn, April
7, link now dead).
April 10 --
Diapered wildlife? Large-scale agriculture has come under
criticism for its effects on the environment,
but researchers are discovering that naturally occurring fauna can be destructive
in similar ways. Colonies of seabirds, for example, "are releasing
large amounts of ammonia into the atmosphere through their droppings. ...
Very large emissions of ammonia could have a detrimental impact on the
local ecology, and may be just as problematic as intensive farming. Scientists
studying a seabird colony on Bass Rock off the east coast of Scotland have
already measured ammonia concentrations 20 times higher than those on chicken
farms." Global warming researchers have noted that among the more
important contributors to the level of "greenhouse gas" emissions is cows'
natural tendency to emit methane, and controls on bovine flatulence may
be necessary in the future if countries like Ireland are to contribute
proportionally to world reductions in such emissions. ("The 'innocent'
polluters", BBC News (Scotland), March
8; "Don't forget methane, climate experts say", CNN/ENN, Nov.
10, 1999; Google search on "bovine
flatulence"). (DURABLE LINK)
April 10 --
Courts split on disabled golfer issue. "In a 24-hour span
[last month], two federal appeals courts gave opposing decisions on whether
golf pros can use motorized carts during tournament play" -- that is to
say, whether they can do so against the wishes of tournament organizers.
In the more publicized of the two cases, the 9th Circuit agreed with Casey
Martin's demand that he be allowed to use a cart in the PGA Tour; but a
day later "a three-judge panel with the 7th U.S. Circuit Court of Appeals
in Chicago amid much less fanfare affirmed a lower court decision denying
Ford Olinger similar mechanical assistance." Circuit splits make
it more likely that an issue will eventually be heard by the U.S. Supreme
Court. (Mark R. Madler, "Fed Circuits Suddenly Split on Handicapped
Golfers", American Lawyer Media,
9). "Olinger himself may have made the most penetrating observation,
bemoaning that his appeal was heard by a panel of golfers, while Martin's
was not." (Robert S. Shwarts, "A Good Walk Spoiled", American Lawyer Media,
April 10 --
300,000 pages served on Overlawyered.com. Thanks
for your support!
April 7-9 --
Silicon siege. With Bill Gates down for the count, who's
next? Antitrust officials, having recently nailed old-line auction
houses ("dowagers in the paddy wagon") Sotheby's and Christie's, have now
begun an investigation of eBay ("eBay Is Subject of Antitrust Probe, Congress
Considers Underlying Issue", E-Commerce Law Weekly, Feb.
9). Trial lawyers are pressing hard against laptop makers, hoping to
repeat their nine-digit take from the Toshiba-glitch
class action. (Joe Wilcox, "Data-storage suit sends shockwaves through
CNet News, March
1). The many pending claims against AOL include those seeking
to reclassify volunteers as workers entitled to back wages and those over
the tendency of the 5.0 upgrade to interfere with alternative Internet
access ("AOL Sued in Federal and State Court", E-Commerce Law Weekly,
9). And privacy suits
are being launched against all sorts of Internet leaders, from Yahoo on
down (Susan Borreson, "Do You Yahoo?",
Texas Lawyer, Feb.
14). Cypress Semiconductor CEO T.J. Rodgers, in a piece written before
the Microsoft ruling, says high-tech
firms will just be asking for trouble if they cuddle up to Washington in
search of official favors, and would do better to unite in resistance:
"Silicon Valley is an island of capitalism in a sea of collectivism ....
an island of meritocracy in a sea of power struggles." ("Why Silicon
Valley Should Not Normalize Relations With Washington, D.C.",
Institute monograph (PDF format); Declan McCullagh, "Schmoozing: A
Capitol Offense", Wired News, March
20; "It's All About Capitalism", March
April 7-9 -- Trips
on shoelace, demands $10 million from Nike. "A Manhattan
orthopedic surgeon sued Nike Inc. on Wednesday for $10 million, saying
shoes made by the athletic footwear giant tripped
her and caused permanent injury." Dr. Deborah A. Faryniarz says that
while she was jogging last April "the right shoelace hooked around the
back tab of the left sneaker, spilling her onto her wrists and knees" and
causing a wrist injury that imperils her future career as a surgeon.
Nike spokeswoman Cheryl McCants in Beaverton, Ore., said the company hadn't
yet seen the complaint but that people "sometimes don't tie their shoes
properly." ("Nike Sued Over Shoelace", AP/FindLaw, April 5, link
April 7-9 -- School
safety hysteria, institutionalized. "North Carolina has
quietly launched a program that allows students to call in anonymously
or fill out a Web-based form to report on classmates who might appear depressed
or angry -- or who just scare them," reports Wired News. The
America program and website are run by the Pinkerton Corp., of security
fame. On Slashdot, Jon Katz says that the site's criteria for evaluating
whether a fellow student is disturbed or depressed are alarmingly vague.
The site also invites students to report anonymously about "intensely prejudiced
or intolerant attitudes", possession of weapons or alcohol on campus, or
"anything else harmful to you or your school". (Lynn Burke, "A Chilling
Wave Hits Schools",
5; "Why call
the WAVE line?"; "Early
signs of violence"; Slashdot April
4 thread; our "Annals of Zero
April 7-9 -- L.A.'s
mystifying jury summons. Think the long-form census is
overkill? "The Los Angeles County court system has come up with a
new jury summons form so dense that even some judges can't make sense of
it. The form, resembling a cross between a mortgage application and
a deli menu, has generated a flood of complaints -- including one from
a Pasadena resident called to jury duty: Judge Lance Ito. He filled
it out incorrectly." (David Colker, "Jury Summons Is Guilty of Confusion",
Los Angeles Times, April
April 7-9 -- OSHA
& telecommuters: the long view. Our editor's April
column finds that this winter's failed OSHA effort to regulate home offices
was no fluke, being in many ways the logical culmination of an animus against
home-based work that can be traced through decades of federal labor law
(Walter Olson, "Office Managers", Reason, April).
The whole episode reminded columnist Joanne Jacobs of the manner of governance
of the Emerald City: "I am OSHA, the Great and Powerful. Pay no attention
to that clerk behind the curtain. The Great and Powerful OSHA has
spoken. ... Sorry. Never mind." ("Work-at-home employees don't need
this kind of help from Washington", San Jose Mercury News, Jan.
12, no longer online)
April 6 -- Feds
file Medicare recoupment suit over silicone implants.
"The federal government wants to recover millions of dollars it spent treating
thousands of women allegedly injured by silicone
breast implants, and it's trying to get in line ahead of the women
for its money," reports AP. The operative phrase above is "allegedly",
since by now it's widely conceded that science didn't bear out the original
implant panic stoked by federal regulators and trial lawyers. But
the feds undoubtedly did lay out health care moneys to treat immune disorders
and other ailments "allegedly" (if not necessarily in reality) caused by
the implants, so now the feds are going to demand compensation from the
manufacturers. You didn't think medical-recoupment lawsuit theories
were really going to remain confined to tobacco, just because they kept
saying that at the time, did you? (Michael J. Sniffen, "US Sues Over
Implant Fund Recovery", AP/Excite, April 1, link now dead; Yahoo
Full Coverage; Professor David Bernstein's breast
implant litigation page; Doug Bandow, "Breast Implant Myths", Cato
Daily Commentary, Feb.
April 6 -- Columnist-fest.
They keep writing them, and we keep linking them:
* Microsoft's $80 billion
plunge in market valuation in recent days has directly or indirectly dealt
a blow to the retirement security of as many as 80 million investors, and
Schroder & Co. chief economist Larry Kudlow predicts a public reaction
against the kind of anti-business grandstanding exemplified by attorneys
general Richard Blumenthal (Connecticut) and Eliot Spitzer (New York),
whose ubiquitous appearances on cable news have been "limited only by the
available volume of airtime." Also includes some choice quotes from
Gov. George W. Bush ("I'm unsympathetic to lawsuits, basically; write that
down. ...I have been a tort-reform governor. I'll be a tort-reform
president.") ("Americans Vote Microsoft", National Review,
4; "Microsoft's Market Value Drops $80B", AP/Washington Post,
April 3, link now dead).
* "No aspect of life is untouched by lawyers," observes Mona Charen,
citing recent cases on employer
liability (Hawaiian car dealership case, see March
10-12) and personal responsibility (drunk Honda driver's drowning,
see March 28) and mentioning this website.
Also quotes from an elaborate disclaimer
presented to Girl Scouts before they go horseback riding ("Society is Oppressed
by Litigation", Omaha World Herald, April
* Cathy Young is troubled by the recent decision of Philadelphia's
police commissioner to give outside feminist groups a big role in deciding
which ambiguous incidents should be categorized
as rape ("Let's not forget the rights of accused in rape cases", Detroit
5; see March 27 commentary).
April 6 -- High
fee dosage. "Twenty law firms are set to share a staggering
$175 million fee award for winning the settlement of a class
action against drug manufacturers and wholesalers over their pricing
practices." Much of the booty will go to four veteran class action
firms that filed the antitrust charges: San Francisco's Saveri & Saveri,
Chicago's Much Shelist Freed Denenberg Ament & Rubenstein, Chicago's
Specks & Goldberg, and Philadelphia's Berger & Montague.
(Brenda Sandburg, "They're in the Money", The Recorder/CalLaw, Feb.
April 6 -- For
the legal-definition file. Varying standards of proof,
as defined by Slate Supreme Court correspondent Dahlia Lithwick:
"The Due Process Clause of the 14th Amendment requires that each element
of a crime be proved 'beyond a reasonable doubt.' This means that
jurors must be pretty darn certain before they vote for a conviction. In
contrast, the 'preponderance of the evidence' standard required under the
New Jersey hate-crimes statute
[now being reviewed by the U.S. Supreme Court] is a standard used in civil
trials to mean that the facts in question are more likely true than not.
This is the standard used by parents when they smell beer on your breath."
(Dahlia Lithwick, "Clarence Thomas Speaks!", Slate, March
April 5 -- New
Hampshire high court blowup. Yes, scandals happen even
up there. Associate Justice Stephen Thayer of the New Hampshire Supreme
Court resigned last Friday "after prosecutors concluded he broke the law
by trying to improperly influence the assignment of judges hearing his
divorce case." Thayer maintains his innocence, but struck a deal
with state Attorney General Philip McLaughlin to resign on a promise that
he would not face criminal ethics charges. McLaughlin then released
a report saying it was an "institutional practice" at the court for judges
who'd excused themselves from cases to review and discuss draft decisions
in those cases. Calls for the impeachment or resignation of other
justices followed, and are being taken seriously in the state legislature.
However, Chief Justice David Brock says that, Thayer aside, judges have
never been permitted to comment on draft opinions in cases where they'd
recused themselves because of conflict of interest; and Justice Sherman
Horton told a reporter that the sorts of occasions when judges would comment
had been when they'd excused themselves for other reasons, such as illness
or temporary absence. Accusing the attorney general of grandstanding,
Brock said the practice went back decades and that the AG had not given
the court a chance to answer the charges before taking them to the press
home page; Holly Ramer, "N.H. Supreme Court Justice Resigns", AP/Excite,
March 31, link now dead; Katharine Webster, "Three N.H. Justices May Be
Removed", AP/Excite, April 1, link now dead; "Whistleblower called hero",
Boston Globe, April 1, link now dead; Norma Love, "Legislators reeling
from allegations against justices", AP/Boston Globe, April 3, link
now dead; Brock
statement; Kevin Landrigan, "Judge strikes back", Nashua Telegraph,
4; Alec MacGillis, "He won't resign; calls accusations 'unfounded attack'",
Concord Monitor, April
4; Manchester Union Leader;
Daily Democrat (Dover). Updates: Brock acquitted at impeachment
trial before New Hampshire Senate (Oct. 11);
state disciplinary panel gives him admonishment only (May
April 5 -- Update:
judge okays "deep linking". In a much-watched case, Los
Angeles federal judge Harry Hupp has ruled that the practice of linking
to interior pages of a competitor's web site does not by itself violate
the competitor's copyright (see our Aug.
13 commentary). The Ticketmaster Corporation had sued California-based
an online tickets service which provides links to the Ticketmaster
site for tickets that it does not itself have available. The judge
allowed Ticketmaster to proceed with claims that its competitor had breached
its copyright in other ways, as by improperly compiling and repackaging
information obtained from the Ticketmaster site. (Michelle Finley, "Attention
Editors: Deep Link Away", Wired News,
30; Brenda Sandburg, "Copyright Not Violated by Hypertext Link", The
April 5 -- Seemed
a little excessive. The Pennsylvania Supreme Court has
agreed to decide whether it was appropriate for a Chester County court
to award $46,000 in legal fees stemming from a dispute over an original
$500 legal bill. The case arose in 1988 after Maria P. Bomersbach
withheld her monthly owner's assessment at the Mountainview Condominium
Owners Association because of a dispute with the association's management
over her request to inspect its budget documents. The condo association
took her to court and the two sides almost settled, but were $300 apart
in their offers. Ten years of intensive litigation followed, during
which Mrs. Bomersbach, according to judges' opinions, "engaged in legal
'trench warfare' and subjected the association to a 'pleadings onslaught'
that would render even a competent attorney 'shell-shocked.'" A dissenting
appellate judge called the $46,548 fee "totally unreasonable, and perhaps
unconscionable," and said the condo association shared responsibility for
protracting the litigation. (Lori Litchman, "Pa. Supreme Court to
Decide Dispute Over $46,000 Fee to Collect $500 Legal Bill", The Legal
April 5 -- The
booths have ears. In Canada's National Post, John
O'Sullivan writes that his "attention was caught by a small item in the
British press: Police in Gloucester are cracking down on local racism by
entering restaurants in disguise and listening for racist conversation.
In the first week of 'Operation Napkin,' one man was arrested for racially
aggravated harassment. Another was overheard mimicking an Indian waiter,
but the police decided that his behavior did not warrant prosecution."
(John O'Sullivan, "Operation Napkin to the Rescue", National Post,
March 28, link now dead).
April 4 -- Microsoft
violated antitrust law, judge rules. Competitors gloat:
"I think it's fair to say that the logical conclusion is that the degree
to which Microsoft is restrained, that ought to be good for everybody else
in tech," says Sun Microsystems general counsel Michael Morris, henceforth
to be known as "Zero-Sum" Morris. NASDAQ investors evidently don't
agree with him, sending the index skidding 349.15 points, or 7.6 percent.
"Microsoft has been kept in check by all these antitrust proceedings from
doing anything too bold," says Kevin Fong with Mayfield Fund in Menlo Park;
non-boldness has its costs, Microsoft
now having slipped behind Cisco in market value for the first time.
And Brookings' Robert Litan calls the ruling "manna from heaven for the
private plaintiffs because it basically should eliminate a lot of their
need for proof". (Eun-Kyung Kim, "Judge Rules Against Microsoft",
AP/Yahoo, April 3, link now dead; Dick Satran, "Tech Industry Remains Guarded
on Microsoft", Reuters/Yahoo, April 3, link now dead; Yahoo
April 4 -- Emerging
campaign issue: "brownfields" vs. Superfund lawyers. A
few weeks ago (see February 26-27 commentary)
a report from the U.S. Conference of Mayors found that Superfund
liability fears are among major factors stalling redevelopment of "brownfields"
(abandoned or underused industrial sites) in American cities. Now
the issue has reached the presidential campaign, with Texas Gov. George
Bush yesterday calling for reforms aimed at encouraging brownfield redevelopment,
including liability protections for new developers that perform responsible
cleanups, an initiative that is anathema to the Superfund bar. "The
old system of mandate, regulate and litigate only sends potential developers
off in search of greener pastures -- literally," Bush told workers at a
plant in Pennsylvania. Vice President Gore has cited the Superfund
law as among his proudest legislative achievements, though others have
much criticized it as a boondoggle for litigators that slows down actual
cleanups. (Patricia Wilson, "Bush on Gore Turf Proposes Environmental
Agenda", Reuters/Yahoo, April 3, link now dead; Bush
April 4 -- Progressives'
betrayal. Jonathan Rauch's new National Journal
column argues that the American Left betrayed its principles when it got
into bed (much of it, at least) with trial lawyers who have lately pitched
their services as ways to bypass the tiresome need for legislation.
"Suddenly the American Left is on the side of fantastically wealthy private
actors who are accountable to no one."
"Who elected these lawyers to help legislatures? What will they do next,
helpfully, with their billions? If lawyers file and finance lawsuits against
an unpopular industry and then channel billions of dollars of booty back
into government treasuries, while also channeling millions more into soft-money
donations to political parties, how is that any less corrupting than when
chemical companies make PAC contributions in exchange for tax breaks? ...
If the Left ceases to be a counterweight to huge concentrations of unaccountable
private wealth and power, of what earthly use is it?" Also, don't miss
the old quote that Rauch unearths from Ralph Nader, about how undemocratic
it is for governance to go on in back rooms without informed public consent
and participation -- this before Ralph's friends in the trial bar realized
they could govern that way. ("Triumphantly, America's Left Betrays
Itself (Again)", National Journal, March
April 4 -- Now
it's hot chocolate. As if the menace of hot take-out coffee
were not bad enough, Dunkin Donuts is now being sued over the temperature
of the hot chocolate served at one of its outlets in Barre, Vermont.
"The suit was filed in Washington County Superior Court by Diane Bradeen
who claims her daughter Katrina suffered burns on her lap when the hot
drink was spilled." ("Suit filed
over temperature of Dunkin Donuts' hot chocolate", AP/Boston Globe,
April 3, link now dead).
April 3 -- Book
feature: "The Kinder, Gentler Military". "So how did we
get from the blood, sweat, and tears version of boot camp, to 'Bootcamp
Lite,' ... 'battle buddies,' 'training time-outs,' 'confidence course facilitators,'
and the 'gender-normed' grenade throw?...
"Government nineties-style was obsessed with the self-esteem of its
citizens and with avoiding injury -- psychic and physical. ... A doddering
kind of hypochondria filled the land. Since so many new kinds
of injuries were now validated by the courts and by the culture at large,
new classes of victims proliferated, and activities that used to be considered
a bit risky (but generally worth it) were treated like virtual minefields
of danger ...
"It was [also] inevitable that the personal-is-political crowd would
get around to the military. They had spent much of the seventies
and eighties focusing on the workplace, the home, and schools, but it had
been harder to find a way into that monastery standing outside the gates,
the preserve of all that was imperialistic, aggressive, violent, hierarchical,
uncompromising, authoritarian. ... And the military made such an exciting
end-of-the-century project. In an era devoted to examining, criticizing,
and rebuking masculinity, the armed forces were the last preserve where
the species ran free. ...
"The new broadly written and subjectively defined infraction [of "hostile
environment" sexual harassment] opened
up a new frontier for litigation and created a new legal language.
A hostile and offensive environment is very difficult to define. ... A
vague definition combined with lawyers smelling money is a dangerous combination.
Wherever there is a possibility for confusion (as between men and women
most of the time) there is a possibility for injury, and the law gave us
a crude template of victim and victimizer, hurtful act and injury, perpetrator
and receiver, to fit over the most complex, the most ambivalent, the most
highly charged, of our relationships: between men and women, employer and
employee, teacher and student. ...
"Nobody really knew where 'sexual harassment' began and ended and we
were still struggling in the early nineties: Society and the military [are]
just beginning to understand that certain behaviors constituted harassment,'
one congressman explained with great earnestness at the time. But
while we tried to figure out what sexual harassment was and what it was
not, the new law seemed to take on a life of its own. Our half-finished
creation began to toddle around the countryside scooping up victims in
its large bumbling hands. Even the president could not escape....
"[Quoting military sociologist Charles Moskos:] 'The Tailhook convention
of '91 was the worst event for the [U.S.] Navy since Pearl Harbor.'"
-- from The
Kinder, Gentler Military: Can America's Gender-Neutral Fighting Force Still
Win Wars? by Stephanie Gutmann, newly published by Scribner (Review:
Richard Bernstein, New York Times, March
April 3 -- Update:
junk-fax lawsuit rebuffed. In Houston, Judge Harvey Brown
has dismissed the lawsuit discussed in this space October
22, which demanded $7 billion from 80 area businesses that had patronized
ad services that faxed coupons and other circulars to what the lawyers
said were unwilling recipients. Since the suit was filed in 1995,
Texas has passed a law prohibiting unsolicited commercial faxing, but the
lawyers had come up with the idea of suing in state court under an earlier
federal statute providing for penalties of $500 to $1500 per fax sent,
which given the class action format
added up to billions: one defense lawyer called it "Powerball
for the clever". (Citizens Against Lawsuit Abuse-Houston, undated;
judge's order made public March 22).