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ARCHIVE -- FEBRUARY 2002
(II)
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February 20-21 --
Updates. Further developments in stories familiar to our
readers:
* Britain: "Five market traders -- the so-called metric martyrs
-- have lost their High Court battle for the legal right to trade in pounds
and ounces." (see Dec. 15, 2001) ("Metric
martyrs lose battle for pounds and ounces", Ananova.com, Feb.
18)
* The Taco Bell chain has settled on undisclosed terms a lawsuit charging
it with financial responsibility after several of its employees partied
on their own time and one got into a fatal car crash; the suit charged
that the employees had discussed liquor acquisition while working together
at the restaurant (see Nov. 29, 2001)
(Jeff Arnold, "Suit Against Taco Bell After Fatal Wreck Resolved", Fort
Smith (Ark.) Times-Record, Jan.
4; KTHV-TV (Little Rock), "Taco Bell Settles a Lawsuit Accusing Them
of Contributing to the Death of a Teen", Jan. 7).
* "Pacifiers, glow sticks and other paraphernalia associated with
'rave' parties cannot be banned from the gatherings," federal judge Thomas
Porteous has ruled in New Orleans, despite prosecutors' contention that
the funmakers are linked to drug use (see June
28, 2001) ("Rave Party Items Can't be Banned Says Federal Judge", WWL-TV
(New Orleans), Feb. 4).
February 20-21 --
Trial lawyer smackdown! According to Roll Call,
Pascagoula, Miss. tort tycoon Dickie Scruggs has threatened never again
to support Sen. John Edwards (D-N.C.) because of Edwards' unfair treatment
of federal appeals court nominee Charles Pickering. "If Scruggs follows
through on his stated mission, it would deal a serious financial blow to
Edwards, himself a former trial lawyer who has relied heavily on the legal
industry to underwrite his burgeoning national ambitions. ... While Scruggs
himself has not been a direct financial backer of Edwards, lawyers have
been the Senator's single largest backer, and many of Scruggs' friends
are among Edwards' supporters. In the 1998 election
cycle he received $905,280 from lawyers and law firms, the fourth most
of any candidate in that cycle, according to the Center for Responsive
Politics." (Paul Kane, "Edwards' Tactics Draw Ire", Roll Call, Feb.
18).
February 20-21 --
Firehouse blues. Near Brighton, England, "A 5ft 1in firewoman
who is too short to carry out some of her duties yesterday claimed sex
discrimination after she was taken off active duty. ... after a number
of incidents in which she was not tall enough to handle equipment."
Katie Reid, 31, complained to an industrial tribunal that the East Sussex
Fire Authority was sexually discriminatory in having "failed to accommodate
her height when designing equipment and in the operation of fire appliances."
(Thomas Penny, "Tiny firewoman sues her brigade", Daily Telegraph,
Jan.
30) (via Bonehead of the Day).
And authorities in Anchorage, Alaska have ordered the removal of girlie
magazines from firehouses, explaining that the city could be at risk of
losing a lawsuit if it lets them
stay; a former firefighters union president said he was told that even
tamer fare like Maxim has to go. ("Anchorage tells fire halls
to eliminate risqué magazines", JuneauEmpire.com, Feb.
18). (DURABLE LINK)
February 20-21 --
"Bush Budget Surprise: $25M for Tobacco Suit". Appalling:
as part of a big increase sought for the budget of the Justice Department's
Civil Division (from $170 million to $240 million), the Bush administration
has bowed to its enemies and endorsed the Clinton administration's lawless
federal expenditure recoupment
suit against tobacco companies. Who knew John Ashcroft and the
Bush White House were this easy to push around? (Vanessa Blum, Legal
Times, Feb.
15). Plus: we highly recommend political scientist Martha
Derthick's new book on the tobacco litigation, Up in Smoke: From Legislation
to Litigation in Tobacco Politics (order
it from CQ Press). Derthick, professor emerita at U.Va. and also
with the Brookings Institution for many years, assembles a truly damning
indictment of the ways tobacco lawyers and state attorneys general managed
to usurp powers constitutionally reserved to lawmakers. (DURABLE
LINK)
February 18-19 --
"The $200 Billion Miscarriage of Justice". Best article
we've seen in quite a while on the asbestos
outrage: "the ultimate mass farce ... The avalanche of new claims being
brought by ever less impaired plaintiffs alleging ever more marginal medical
conditions caused by ever more fleeting exposures to asbestos dust has
triggered a new wave of bankruptcies ... Like the employees of Enron, employees
of [newly bankrupted big companies like Owens Corning and Federal-Mogul]
have seen their retirement savings vanish in a flash. ... But those employees'
losses have thus far gone unbemoaned by Congress." (Roger Parloff,
Fortune,
March
4).
February 18-19 --
Overprotecting the kids. "A significant body of research
evidence now indicates that there has been a drastic decline in children's
outdoor activity and unsupervised play. For example, it has been
calculated that the free play range of children -- the radius around the
home to which children can roam alone -- has, for nine-year-olds in the
UK, shrunk to a ninth of what it was in 1970. Evidence also shows
that more and more of children's activities are being organised or supervised
by adults." Yet the most often cited reasons for parental anxiety,
road accidents and abduction by strangers, are rarer than ever.
"Local authorities, educational staff or outdoor activity instructors
are too often blamed for accidents -- which can only make them more cautious
about providing challenging activities for children. There have been
a rising number of litigations against providers of play facilities and
organisers of adventure pursuits. Perhaps most damaging is that a
climate has been created in which all unsupervised play is regarded as
high risk, and parents or teachers
who allow it are seen as irresponsible." (Jenny Cunningham, "Play
on", Spiked Online, Jan.
3) (via InstaPundit).
February 18-19 --
"Toyota buyers' suit yields cash -- for lawyers".
Under a newly approved class action settlement, thousands of customers
will get $1,200 coupons, rather than cash, from a Memphis Toyota dealership
charged with cheating buyers. "The lawyers who brought the suit --
Richard Fields, Saul Belz and Earle Schwarz -- get $1.3 million in legal
fees." Some customers have expressed indignation that in order to
get any of their money back they have to patronize the dealership again.
"The outcome also may provide fodder for federal lawmakers, including Rep.
Ed Bryant (R-Tenn.), who are attempting to push reforms of the class-action
system. ... 'Justice is there for the victim and the defendant and
not just for the lawyers to make money,' Bryant said Thursday." (Louis
Graham, Memphis Commercial Appeal, Feb.
15).
February 18-19 --
Lawyers swallow lion's share in estate dispute. A contest
over the A$154,000 estate
left by a 44-year-old Australian has ended with the following resolution:
the decedent's original family is to get $22,000, his live-in male partner
is to get $10,000, $10,000 will go to the cost of selling his house, and
lawyers and their expenses have swallowed up the remaining $112,000.
("Battle over gay partner's estate won by lawyers", AAP/The Age
(Melbourne), Feb. 13).
February 15-17 --
Kaiser Aluminum bankrupt. North America's third-biggest
aluminum producer "filed for Chapter 11 bankruptcy protection Tuesday,
blaming depressed prices and asbestos
litigation". ("Kaiser Aluminum: Prices, asbestos suits force Chapter
11 filing", Chicago Tribune, Feb.
13; "The Job-Eating Asbestos Blob" (editorial), Wall Street Journal/
OpinionJournal.com,
Jan.
23).
February 15-17 --
"The Enron mythos". The story of the energy company's
collapse has been propelled by the conventions of pack journalism, with
the New York Times the worst offender (see Kausfiles.com, scroll
to Jan. 25). Employee benefits expert Tom Veal, on his Stromata
site, dispels a few of the widely circulated misconceptions -- check out
for example Feb. 2, on the sinister-sounding practice of "locking down"
401(k) plans. (Jan.
15-date). The Times professes to be scandalized at the
discovery that many, many investment banks and accounting firms cooperate
with big-company clients to structure transactions in ways that dress up
their balance sheets: "Actual accounting fraud may or may not be demonstrated
in the Enron case -- although media and political hysteria makes finding
the truth difficult. ... But this much is clear: The more widespread the
Enron practices are shown to be, the more likely they were NOT malevolent."
("Robert Musil", Man Without Qualities blog, Feb.
14 (and see other entries))(& see Mar.
6).
February 15-17 --
"'Preserving' History at Bayonet Point". Yes, historic
preservation of old buildings is a worthy goal, but the owner of an 1874
home in Midland, Mich. isn't convinced it should be accomplished through
legal compulsion: "One of my neighbors is an 85-year-old woman who has
lived in her home for 35 years. She found working with the Historic
District Commission (HDC) so distressing that she decided to live with
the ongoing damage caused by roof leaks rather than seek approval for correcting
the problem. 'I will let my house fall down before I deal with those
people again,' she commonly says. Score one for the history police,
but not for history." (Paul Arends, Mackinac Institute, Dec.
3).
February 15-17 --
Omit a peripheral defendant, get sued for legal malpractice.
Here's a classic way the system feeds on itself, threatening to punish
lawyers if they hesitate before pushing lawsuits in cases of less than
clear-cut liability: "A New Jersey appeals court reinstated a legal malpractice
claim Dec. 27 against a firm whose medical negligence suit against a doctor
prescribing tetracycline failed to include a challenge to a 1963 manufacturer
warning about the drug's side effects. The court ruled the adequacy
of the warning has never been settled as a matter of law in New Jersey,
and a jury can decide whether the lawyers committed malpractice for not
raising it." (Henry Gottlieb, "Malpractice Case Reinstated Against
Lawyers for Not Suing Drug Maker", New Jersey Law Journal, Jan.
4).
February 15-17 --
Welcome bloggers. Among webloggers who link to us,
besides biggies InstaPundit,
Mickey
Kaus, Virginia Postrel, and
Andrew Sullivan,
are: MBaceron,
Breaching
the Web, Despatches
from Flyover Country, Gene
Hoffman, Libertarian Rant,
Megan
McArdle, Sean McCray,
Bob Owen, and
Kyle
Still, among others.
February 13-14 --
Didn't know cinema seats retracted. Australia: "A teacher's
aide who was unaware cinema seats retracted has won her case against Hoyts
cinemas after hurting herself at a trip to the movies. The win could
force cinemas, theatres, sports stadiums and even Sydney Opera House to
warn
the public of the possible dangers of their seating. ... While sitting
down in the cinema, the child she was caring for became rowdy. [Plaintiff
Diane] Burns got up to calm him down, unaware, she claims, that her seat
retracted after she left it." Burns was described as "not a regular
filmgoer". (Sarah Crichton, "Warning: movie seats can harm your health",
Sydney Morning Herald, Feb.
9).
February 13-14 --
British Telecom claims to own hyperlinks. Hey, this is
getting serious! "A British company claimed in federal court Monday
that it owns the patent on hyperlinks
-- the single-click conveniences that take a Web surfer from one Internet
page to another -- and should get paid for their daily use by millions
of people. But a federal judge with a laptop on her desk warned that
it may be difficult to prove that a patent filed in 1976, more than a decade
before the World Wide Web was created, somehow applies to modern computers."
(Jim Fitzgerald, "British Company Claims Patent on Hyperlinks", AP/Law.com,
Feb.
12; Michelle Delio, "Judge Dubious About Link Patent", Wired News,
Feb.
11; "Why This Link Patent Case Is Weak", Feb.
12). Update Oct. 1-2: court dismisses
case.
February 13-14 --
Blue-ribbon excuse syndromes: rough divorce predisposed him to hire hitman.
After Bryan Boyd McGann's wife filed for divorce, he "ranted and raved"
to a police informant for months about his desire to have her killed, then
met with a supposed hitman and agreed on a $10,000 murder-for-hire contract.
At trial for solicitation of capital murder, McGann attempted to introduce
the expert testimony of a psychiatrist, Dr. James Grigson, to support the
theory that the stress of the divorce had made him more susceptible
to being entrapped by police into such a scheme. Asked whether a
normal, law-abiding citizen might under some circumstances be induced to
pay money to a hitman who had promised to kill his wife, Grigson testified,
"Absolutely .... Even though you're a law abiding citizen, whenever you're
into a very nasty divorce or a very contested child custody case, your
strongest emotions are -- are going to be stimulated." The court
disallowed the doctor's testimony. (David J. Rubin, J.D., "Psychiatrist
Claims Divorce Is Deadly", Forensic Panel Letter, Aug.
20, 2001) (appellate opinion, Texas v. McGann, Sept.
14, 2000 (PDF format)).
February 13-14 --
Defend yourself in print and we'll sue. The Nike Corporation
had no sooner published advertisements defending its overseas labor practices
than it was sued by a freelance lawyer, under the state's "private attorney
general" laws, for supposed inaccuracies which violated a state law against
unfair business practices and false advertising. The case is now
pending before the California Supreme Court. Writes a reader: "Amazing!
Take out an ad arguing your own side of a public debate
and get sued by a 'private attorney general" looking for a bounty.'" (Mike
McKee, "Nike Ads Not Actionable, California Justices Hint", The Recorder,
Feb.
8).
February 11-12 --
New Yorkers officially back to normal. At least in one
way, they're suing like mad: Dana Gross of Manhattan is seeking $10 million
in compensatory and $10 million in punitive damages against Ticketmaster
and Madison Square Garden, saying that $100 tickets to a Michael Jackson
concert (she bought six) had bad locations and obstructed views.
The case seeks class action status (Dareh Gregorian, "'Tick'ed-off Jacko
Fan Sues for $20M", New York Post, Feb. 8). (Update Oct.
23, 2004: judge allows suit to move forward as class action). "A Long
Island woman who sued her former church for $4 million, claiming she suffered
serious injuries when a minister pushed her to the floor while trying to
bless her, settled her case yesterday for $80,000. ... [Her lawyer Andrew]
Siben said the woman was unavailable to discuss her case because the Almighty
told her not to comment. ... 'If God told her not to speak, she's not going
to violate that'". (Kieran Crowley, "80G from L.I. church heals pain
in the apse", New York Post, Feb. 5). And: "From rescue workers
who say they have lung problems to business owners who say their shops
were damaged, 1,300 people have given notice they may sue New York City
for a total of $7.18 billion over the aftermath of the World Trade Center
attack. ... The vast majority are from firefighters who say the city gave
them inadequate respiratory protection at the smoldering trade center site."
(Michael Weissenstein, "1,300 People Give Notice of Intent to Sue New York
City", AP/Law.com, Feb.
8).
February 11-12 --
"Congress Looks to Change Class Action System". Nationwide
class
actions, unless they are very small, belong in federal courts: "In
addition to giving judges more leeway over settlements or awards, the Class
Action Fairness Act 2001 would move all cases involving people in more
than one state seeking $2 million or more in damages into federal court
from the state courts." (Kelley Beaucar Vlahos, "Congress Looks to
Change Class Action System", FoxNews.com,
Feb.
7).
February 11-12 --
Columnist-fest. All first-timers:
* "[C]opyright protection for 'Let's roll?' If they get it, I'm going
to register 'Hurry up,' 'Pick up your socks' and 'Why didn't you go before
we left home?'" (Cory Farley, "Let's roll right into court", Reno Gazette-Journal,
Feb.
9)(see
Feb. 4).
* Upstate New York outdoors columnist J. Michael Kelly is unimpressed
with the Consumer Product Safety Commission's campaign against the Daisy
airgun,
saying that CPSC really seems to be objecting to features that are industry
standards: "Gravity-feed magazines, for example, have been used in BB guns
for more than 100 years." ("BB gun recall appears suspicious", Syracuse
Post-Standard, Dec.
30)(see Dec. 21).
* The plaintiffs in New York Times v. Tasini acted like
they were doing freelance writers some great favor by establishing that
publications could not include their work in electronic databases such
as Nexis without their explicit permission. It wasn't such a great
favor in practice: "Faced with the time-consuming and expensive chore of
tracking down everybody who might have rights to the articles in their
databases,
publishers are just taking the articles out." (Linda Seebach, "Writers
win battle and everyone loses", Minneapolis Star-Tribune, Feb. 2).
* Stop the presses, an Ellen Goodman column we agree with (on
the stacked presidential bioethics panel headed by Leon Kass): "Cure or
quest for perfection?", Boston Globe, Jan. 24. For more on
the panel, see Nick Gillespie, "Birthmarks and Bioethics", Reason,
Jan. 18; Jerome Groopman,
"Science Fiction", The New Yorker, Feb.
4; Virginia Postrel's Dynamist.com,
many entries in recent weeks; and Jonathan Rauch, "Therapeutic Cloning:
Why Congress Should Butt Out", National Journal, Dec.
15, reprinted at Reason.com.
February 11-12 --
Setback for Lemelson estate. "Hundreds of companies facing
infringement suits by inventor Jerome Lemelson's estate won a victory Thursday
when a federal appeals court ruled that unreasonable delay in prosecuting
a patent may prevent its enforcement."
The panel of the U.S. Court of Appeals for the Federal Circuit was split
2-1. Foes of Lemelson patent claims (see May
10, 2001) complain that he filed many "submarine" patent claims which
he did not pursue as inventions but which surfaced decades later in the
form of royalty demands as companies opened up new technologies (Brenda
Sandburg, "Lemelson Foes Win Key Patent Ruling", The Recorder, Jan.
29).
