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| ARCHIVE -- SEPT. 2000 (III) |
September 29-October 1
-- Disabled rights roundup.
The U.S. Supreme Court has agreed to decide whether the PGA golf tour must
bend its rules to allow disabled golfer
Casey Martin to ride in a golf cart ("U.S. High Court To
Decide Case of Disabled Golfer", Reuters/FindLaw, Sept.
26; see April 10, our May
1998 take). The government of Great Britain is considering legislation
that would compel its armed forces to accept disabled recruits, and pressures
are rising to accept handicapped military personnel in front-line as well
as auxiliary positions, given the principle of nondiscrimination (Michael
Smith, "Disabled want frontline jobs in 'pc' Services", Daily Telegraph
(London), Sept.
26; "Forces may have to admit disabled", Aug.
21; UK Disability Discrimination
Act). And a trend that has been well established under U.S. disabled
rights law for some time -- doctors' having to hire sign-language translators
at their own expense when a deaf patient wishes to call on them for a consultation
-- is exemplified by a consent decree negotiated by the office of New York
Attorney General Eliot Spitzer, requiring an upstate doctors' group to
provide interpreters-on-demand for "all significant medical encounters"
("Spitzer Announces Agreement With Upstate Physician's Practice To Provide
Sign Language Interpreters for Deaf Patients", press release, June
21; see also May 31).
September 29-October 1
-- Annals of zero tolerance: Tweety bird chain.
In suburban Atlanta, the Garrett Middle School has suspended 11-year-old
Ashley Smith from sixth grade for two weeks on charges of breaking its
zero-tolerance
weapons policy by bringing a chain to school.
It's a 10-inch novelty chain that dangles from her Tweety bird wallet.
"It's only a little chain, and I don't think it can really hurt anyone,"
said Ashley, a "Tweety fan who publishes her
own Web site devoted to the cartoon character." Earlier, the
ACLU successfully represented an Atlanta public school student who was
charged with criminal weapons possession after she brought African tribal
knives to school for a project ("Girl suspended for Tweety chain", AP/Salon,
Sept.
28; UPI/Virtual
New York) (Ashley Smith's guestbook)
(update Oct. 4: school's explanation).
September 29-October 1
-- French crash, German victims, American payout levels?
Air France has sued Continental Air Lines to recoup its costs from the
July Concorde disaster in Paris that killed 113 people, charging that a
strip of metal that fell off a Continental DC-10 caused the incident.
The French airline has already offered
to compensate survivor families, who are mostly German, but "German lawyers
are pushing for a settlement in the United States, where courts order higher
payouts." ("Airline files Concorde suit", Reuters/CNNfn, Sept.
27).
September 29-October 1
-- "Denny's fights back against false suits".
The restaurant chain, dogged by past charges of racial discrimination,
releases more details on how it uses videotapes and other techniques to
disprove dubious copycat claims (see Aug.
29-30). In Oakland, Calif., the lawyer son of John S. Harrison
Sr. sued Denny's claiming that a white couple had been served before his
father though they had arrived later. "Mr. Harrison conceded he had
been a customer for 20 years and ate at that Denny's counter twice a day
for 10 to 12 years with no problems in a store whose clientele was 50 percent
black." He had been happy with the meal and had left a tip.
A federal magistrate threw out the suit and gave Denny's legal
fees. (Frank Murray, Washington Times, Sept.
25).
September 29-October 1
-- "Supersize small claims". Prairielaw columnist
David A. Giacalone argues
for reviving the nearly moribund institution of small claims court
by boosting the threshold value of claims handled by such courts to $20,000,
a change also
endorsed by the HALT legal reform group. Thresholds around $3,000
are now common. Such a shift might relieve some of the docket pressure
on regular courts while allowing ordinary citizens to vindicate more claims
without lawyers' assistance, a feature that may help explain why the bar
shows little enthusiasm for the idea (undated, but appeared Aug.) (see
also Oct. 3).
September 27-28 --
Welcome UserFriendly.org readers. We're picked as the
link
of the day by the website for the cartoon strip User Friendly, by Illiad.
September 27-28 --
"Blind customers want to touch club lapdancers". In East
Sussex, England, the Brighton and Hove municipal council says it will consider
a request by the Pussycats Club that its blind patrons be permitted to
touch the exotic dancers as a form of handicap
accommodation. The club says its vision-impaired customers appreciate
the proximity of the lapdancers and their perfume but would get a better
idea of what they looked like if they were allowed a hands-on experience,
which is currently forbidden by the club's license. (David Sapsted,
Daily
Telegraph (London), Sept.
26).
September 27-28 --
Welcome Toronto Star readers. "One of my favourite
Web sites is overlawyered.com, a collection
of the most asinine stories from the admittedly ordinarily twisted universe
of American law," writes columnist Jason Brooks. He interviews our
editor about a current proposal for Ontario
to enact its own law emulating the Americans
with Disabilities Act. No one seems to have any very clear idea
what such a law would cost, but the Ontarians with Disabilities Act Committee
says "the idea of a total cost figure misses the point." Uh-oh....
(Jason Brooks, "Will new act go too far for the disabled?", Toronto Star,
Sept.
25).
September 27-28 --
"Controversial drug makes a comeback". A small Canadian
firm, Duchesnay Inc., wants to reintroduce to the U.S. market Bendectin,
the pregnancy-nausea drug driven off
the market by mass litigation claiming that it caused birth defects.
"Bendectin was the archetypical case of junk science scuttling a perfectly
safe product," Dr. Michael Greene, director of maternal-fetal medicine
at Massachusetts General Hospital, tells New York Times science
correspondent Gina Kolata. "It was a sad episode in American jurisprudence."
Although ultimately the manufacturer never paid damages, it spent $100
million in defense costs, says Prof. David Bernstein of George Mason University
(Sept.
26)(reg).
September 27-28 --
Stuart Taylor, Jr. on Gore and Vetogate. Another
scathing, must-read column on trial lawyers
and politics by the National Journal columnist, written before
Janet Reno's announcement last week that the Justice Department would not
pursue an investigation of the Umphrey call sheet affair. Did you
know that lawyers as a group have donated nearly ten times as much to the
Democrats during this election cycle as the tobacco industry has given
Republicans? ("Gore's Shameless About Posing As A Populist", National
Journal/Atlantic Unbound, Sept.
26) .
September 27-28 --
Microsoft wins one. The U.S. Supreme Court has turned
down a Justice Department request that it hear the Microsoft
case immediately, instead allowing the D.C. Circuit Court of Appeals to
review the case, which is what the company preferred; past D.C. Circuit
rulings suggest that it may be more sympathetic to Microsoft's position
than was the trial judge. ("High Court Defers to Microsoft", AP/Wired
News, Sept.
26; Declan McCullagh, "Microsoft gets what it wants", Wired News,
Sept.
26). And a number of courts have thrown out statewide consumer
class actions against Microsoft based on the sale of Windows, although
this doesn't really come as much of a surprise in the case of states that
bar indirect (end-user) antitrust claims, since cases filed in those courts
were always long shots (Jonathan Groner, "The Cases Microsoft Is Winning",
Legal
Times (Washington), Sept.
18).
September 27-28 --
Bank error in your favor. Latest coins- found- under-
the- sofa- cushions class action settlement:
Wilmington, Del.-based credit card giant MBNA Corp. agrees to pay $3.57
each to current and former customers to settle claims that its ads were
misleading in the early 1990s when they promoted a low interest rate for
balances transferred from another card, but did not warn that the low rate
did not apply to newly incurred charges. Lawyers for the plaintiff
class, meanwhile, are set to pocket $1.3 million. Major credit card
companies are frequent targets of class action litigation; Chase Manhattan
and Providian Financial have recently settled such actions, and Citibank
and Bank One/First USA face pending claims (Joseph N. DiStefano, "MBNA
settles suit over card ads", Philadelphia Inquirer, Sept.
26).
September 27-28 --
Final innings for Kennewick Man. Score stands at
archaeologists 0, multiculturalists 1, as Interior
Secretary Bruce Babbitt announces that the 9,000-year-old skeleton
found along the Columbia River four years ago will be given to local Indian
tribes, who intend to bury the remains without allowing a complete examination.
"If Babbitt's ruling stands, the loss to science is beyond comprehension,"
writes National Review Online's John Miller ("Kennewick Man's last
stand", Sept.
26; see also Oct. 11, 1999).
September 25-26 --
New data on state campaign contributions. Triallawyermoney.org,
the project of the American Tort Reform Foundation that tracks plaintiff
lawyers' political contributions, has just expanded its coverage to include
local elections in seven key states
as well as federal elections. The states include Alabama, Florida,
Illinois, Michigan, Ohio and Texas; there is also a link to similar data
collected by the Civil Justice Association of California (launched Sept.
19 -- "State Races").
September 25-26 --
"Skier to be tried for manslaughter in Colorado in fatal collision".
Although two county courts ruled that a reasonable person would not have
expected skiing too fast to result in another person's death, prosecutors
in Denver have insisted on pressing a manslaughter rap against Chico, Calif.
college student Nathan Hall, who in 1997, at the age of 18, headed down
Vail Mountain and collided with 33-year-old Denverite Alan Cobb on the
slope, killing him almost instantly. (AP/CNN, Sept.
11). Update Nov. 21:
Hall convicted of criminally negligent homicide.
September 25-26 --
Wal-Mart's tobacco exposure. Through a little-known subsidiary
named McLane Co., the Bentonville, Ark.-based retailer is the largest distributor
of cigarettes to convenience stores, which makes it the biggest handler
of that commodity aside from the tobacco
companies themselves. Despite Wal-Mart's deep pockets, plaintiff's
attorneys seem not to have noticed it yet. (Kelly Barron, "Smoking gun",
Forbes,
Aug. 21)
(see also July 7).
September 25-26 --
A job offer for the judge. Following protests from defendants,
Judge Edward Angeletti of Baltimore, Maryland Circuit Court removed himself
from a series of asbestos-injury cases over which he was presiding and
declared a mistrial after it was revealed that he had received a job offer
from plaintiff's attorney and political kingmaker Peter Angelos (see Oct.
19 and Dec. 9, 1999, March
15, 2000). According to AP/CNN, "Angelos has said that he made
a 'very substantial' offer for Angeletti to head his office's pursuit of
lawsuits against lead paint
manufacturers." Angelos, who has become immensely wealthy through
his handling of asbestos litigation, controls about three of every four
asbestos cases in the Baltimore court. ("Job offer from lawyer leads
judge to step down from asbestos trial", AP/CNN, Aug.
1; "Judge removes himself from absbestos [sic] trials", AP/Prince George's
County [Md.] Journal, Aug.
2)
September 25-26 --
Kopel on zero-tolerance policies. Dave Kopel, Paul Gallant,
& Joanne D. Eisen of the Independence Institute comment on the school
zero-tolerance policies under which possession of an obvious toy gun
-- or sometimes just making a thumb-and-first-finger "gun" gesture -- is
considered grounds for punishment. ("Gunning for the Kiddies", National
Review Online, Sept.
22).
September 25-26 --
Treaties rule. A federal judge in San Francisco has thrown
out a lawsuit against Japanese defendants over World War II atrocities.
In 1951 we signed a peace agreement with Japan which prohibited exactly
these sorts of claims. Now we have to live up to our end of the treaty
-- period. (Louis Sahagun, "Suit on WWII Slave Labor in Japan Voided",
L.A. Times, Sept.
22; Reuters/FindLaw;
see Sept. 20, 1999).
September 22-24 --
"N.Y. Lawyer Charged in Immigrant Smuggling". In a 44-count
indictment, federal prosecutors on Wednesday charged the Manhattan lawyer
who runs the country's largest political asylum practice, Harvard Law-educated
Robert Porges, with a wide range of offenses including concocting thousands
of fictitious stories of persecution by which detained aliens could avoid
deportation, advising smugglers how best to avoid detection by the Immigration
and Naturalization Service, and "helping smugglers detain illegal immigrants
until debts were paid." According to prosecutors, paralegals wrote
out longhand accounts of persecution, claiming of women clients, for example,
that they had suffered forced abortions under China's "one-child" policy,
and then coached the immigrants on how to carry off the story convincingly.
Porges is said to have "collected as much as $13 million in fees for helping
to transport as many as 7,000 illegal immigrants from mainland China to
the United States". (Hanna Rosin and Christine Haughney, Washington
Post,
Sept.
21). Update Sept.
21, 2003: Porges and wife sentenced in 2002 to about eight years.
September 22-24 --
RN's illusions. Ralph
Nader campaigns on the theme that anti-business advocates like himself
are somehow kept from circulating their message or swaying policy.
Is he really so disconnected from reality as to think that? (Sebastian
Mallaby, "Victim of His Success", Washington Post, Sept.
17). Before you get too enthusiastic about the Greens, suggests
James Lileks, take a look at their platform: "They want your money, your
job, your freedom and your car." ("A look at Nader and his merry
Greens", San Francisco Examiner, July
14). And since some Nader groups have
proposed the setting aside of a new .sucks domain to express discontent
with powerful institutions (ibm.sucks, mcdonalds.sucks, etc.) some Seattle
libertarians have turned the tables by founding the rudely named but inevitable
Nadersucks.org,
which bills itself as the largest collection of critical links about him
online, outpacing the "Nader
Skeleton Closet" feature at Realchange.org.
Other links of note from a Nader-watcher's scrapbook: Doug Henwood,
"1.75 cheers for Ralph", Left Business Observer, Oct.
1996; discussion on LBO mailing list re RN finances, Sept.
9, 1998; RN denounces tort reform in campaign press release, VoteNader.org,
Aug.
11; Robert Bryce, "Naturally Nader", Austin Chronicle, April
7; Mike Allen, "Nader: The Little Guy's Multimillionaire" (worth $3.8
million, heavily invested in tech stocks, still refuses to reveal income
tax records), Washington Post, June
18; Paul West, "Corporate gadfly turns out to be rich", Baltimore Sun,
June
17; Michael Lewis, "Campaign Journal: The Normal Person of Tomorrow",
The
New Republic, May
20, 1996.
September 22-24 --
From our mail sack: hyperactive lawyers. Reader Scott
Replogle, M.D., writes from Colorado: "I see (Sept.
18) that trial lawyer Richard Scruggs is suing psychiatrists and the
makers of the drug Ritalin, alleging
they conspired to 'create' a disease, Attention Deficit/Hyperactivity Disorder,
and then overdiagnose it for monetary gain. Which raises the question:
when can we sue the people who not too long ago 'created' the previously
unknown disorders of 'silicone disease' and 'human adjuvant disease' during
the breast-implant controversy,
and conspired to overdiagnose those diseases for monetary gain? And
does it matter that many of those people were trial lawyers?" (see also
April
13, 2001)
September 21 -- Missouri
tobacco fees. Lawyers stand to make $100 million or more
for representing the state of Missouri in the Medicaid-tobacco
litigation and the state's largest newspaper, the St. Louis Post-Dispatch,
says that sum "is out of proportion to the work performed and the risk
involved ... troubling ... grossly overpays the lawyers involved ... creates
an unholy alliance between the state and tobacco interests" It's
also "a political gravy train" since "the five law firms involved in the
case donated a total of more than $500,000 in campaign contributions over
the past eight years, mostly to Democrats"; a prominent Republican former
judge and Democratic former mayor of St. Louis were also cut in.
"An important issue of public policy -- the lawyers' fees -- will be determined
outside the public forum" given that a secret arbitration proceeding will
be employed to set the fees. "...It is private money in the public
trough. But that doesn't make the sight of the lawyers lining up to feed
any prettier." ("All aboard the gravy train" (editorial), St. Louis
Post-Dispatch,
Sept.
17).
Brent Evans, a state senate candidate in Missouri, has posted extensive
documentation on the circumstances surrounding state attorney general Jay
Nixon's hiring of outside lawyers to prosecute the suit. According
to Evans, the lawyers' campaign contributions of $561,000 included $139,000
for Nixon himself and $113,000 for Democratic Gov. Mel Carnahan ("The
Tobacco Papers"; the lawyers;
their generosity;
the work they might have done
to justify the fees; "Attorneys mum about how much they're seeking" (fee
request "confidential"), Jefferson City News-Tribune, April
26, 1999; Jack Cashill, "Warning: Tobacco Settlements May Endanger
The Integrity of Your Elected Officials" (also discusses Kansas fees),
Cashill.com, undated
1999; "Appeals court sides with Nixon on legal fees in tobacco settlement",
Jefferson City News-Tribune, May
31, 2000; James Baughn, The Cape Rock webzine (Cape Girardeau,
Mo.), June).
Last year Missouri Digital News reported that Paul Wilson, lead
attorney on the matter with AG Nixon's office, "urged lawmakers to pass
legislation that will protect the major tobacco companies from a market-share
loss once the impact of the tobacco settlement sets in. Off-brand cigarette
companies, those not participating in the settlement, could otherwise undercut
the prices of the major tobacco companies. Missouri will keep getting
its billions so long as the market share of the signatories does not dip
below 95 percent. If it were to do so and Missouri had no off-brand tobacco
law, explained Wilson, the terms of the settlement let the major tobacco
companies stop paying." (Anna Brutzman, "Legislators Bewildered By
Settlement", April
4, 1999). Update Oct.
5, 2003: Missouri Supreme Court refuses to entertain challenge to tobacco
fees.
September 21 --
Dangerous divorce opponents. It's tough enough going through
a divorce in any case, but you'd really
better watch out if your spouse is a successful lawyer, according to the
New York Post. Advice: try for a change of venue. (Laura
Williams, "Attorneys' Wives Court Disaster", Sept.
20).
September 21 --
Eastwood trial begins. Jurors will hear an Americans
with Disabilities Act complaint against the actor's Mission Ranch hotel
in Carmel. For our coverage of the Eastwood case and related Congressional
hearings, see May 18, March
7, Feb. 15 and Jan.
26. ("Eastwood to Jurors: 'Make My Day'", AP/Fox News, Sept.
20; Shannon Lafferty, "Eastwood in the Line of Fire," The Recorder/CalLaw,
Sept.
21).
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