ARCHIVE -- OCTOBER 2002
October 30-31 --
"Give It Back to the Indians?" Just out: our editor has
an article in the new issue of City Journal (Autumn)
on how the sad history of Indian land claim litigation in the Northeast
-- in which, over the past 25 years, the courts have allowed tribes to
revive territorial claims thought to have been resolved as long ago as
the presidency of George Washington -- may prefigure the misery in store
if our legal system gives the go-ahead to lawsuits over slavery reparations.
October 30-31 --
Deflating Spitzer's crusade. Long but incisive article
by Michael Lewis challenging the much-bruited notion that Wall Street skullduggery
was mainly responsible for the boom and bust in tech stocks, and specifically
deflating the pretensions of New York Attorney General Eliot Spitzer, who's
positioned himself at the forefront of the resulting legal crusade.
Among Lewis's key points: 1) the boom was no mere artifact of Wall Street
hype, big firms like Merrill Lynch having mostly followed the investing
public into tech mania rather than leading them there; 2) the line between
visionary rethinking of current business practice and hallucinatory speculation
was nowhere near as clear at the time as it seems in hindsight; 3) the
supposedly occult conflict of interest between research and underwriting
was hidden in such plain sight that anyone paying half-attention to the
Street should have been aware of it; 4) the boom -- even given its bust
-- did a great deal of social good; 5) the quest to clean up the stock-touting
process obscures from the public the real lesson it would do well to absorb,
which is that stock-picking advice from brokerages is generally useless
whether sincere or not; 6) it's not hard to read emails as establishing
guilt if you let lawyers cherry-pick a few of them out of thousands while
dropping their context. (Michael Lewis, "In Defense of the Boom",
York Times Magazine,
27). For a contrasting view, calling Lewis's article "nonsense",
see Peter Eavis, "The Billboard: Boom Boom", New York Press, Oct.
28. On how Spitzer came into possession of the Merrill Lynch
emails that enabled him to stage-manage much of this summer's news flow,
see Nicholas Varchaver, "Lawyers Target More Than Merrill", Fortune,
10 (a plaintiffs' lawyer evidently sent them over after settling a
suit with the brokerage; the resulting Spitzer-driven publicity brought
a bonanza of new cases to the lawyer's door). (DURABLE
October 30-31 --
Mistrial in Providence lead-paint case. "The six-member
jury sent a note to the judge shortly after 2 p.m. that it could not reach
a unanimous decision on whether the paints constituted a public nuisance."
("Mistrial declared in landmark lead paint trial", Providence Journal,
29; AP/Law.com, Oct.
30). "Four jurors [on the six-person panel] sided with the paint
companies and two voted for the state. ... About one minute after the mistrial
became public, the stock prices of several defendants began shooting up
.... The Sherwin-Williams Co. alone increased in value by nearly half a
billion dollars." (Peter B. Lord, "Trailblazing lead paint trial
ends in deadlock", Providence Journal, Oct.
30). So it's back to surface-prep work for the closely watched effort
to cover the world with litigation (see Oct. 28),
and trial lawyers can't be happy about the fact that their chief ally in
the matter, Rhode Island attorney general Sheldon Whitehouse, will be departing
office shortly. Have they painted themselves into a corner? Whitehouse
for his part blames the paint companies for being "litigious", recalling
the famous French saying: "It is a very vicious animal. When attacked,
it defends itself." Update: see also "The Hand of Providence"
(editorial), Wall Street Journal, Oct 31, reprinted
at Texans for Lawsuit Reform site. (DURABLE
October 30-31 --
"Nannies to sue for racial bias". Great Britain: "Familes
who hire nannies, cleaners and gardeners in their own homes face being
sued for racial discrimination under a major shake-up of race relations
laws. ... Under plans to be published by the Home Office in the next fortnight,
the Race Relations Act is expected to be tightened to include private householders
as part of sweeping changes expected to trigger a flood of new tribunal
cases. Householders could be taken to tribunals if they behave in a racist
manner towards domestic help, for example, by refusing to hire a black
carer for children. ... The only exemption would be if they can show a
'genuine occupational requirement' to hire someone of a particular racial
group -- such as an elderly Muslim woman who wanted a home help who was
also a Muslim. Critics will argue that the change could cause a legal
nightmare for ordinary families, who could face bills for damages running
into thousands of pounds unless they read up on the intricacies of employment
Initial opposition to the new proposals appears to be tepid at best:
thus the Conservative party's shadow industry minister merely voices doubts
about whether the measure is "likely to be effective," while a spokesman
for the Confederation of British Industry "said it would broadly welcome
the changes," though the CBI did express misgivings about another of the
proposals in the antibias package, under which "for the first time the
burden of proof in all employment
tribunals would ...be shifted so that it is effectively up to employers
to prove they are not racist, rather than workers to prove that there was
discrimination, so long as there is a prima facie case to answer."
(Gaby Hinsliff, The Observer (U.K.), Oct.
20). (DURABLE LINK)
October 30-31 --
Monday: 13,555 pages served on Overlawyered.com.
October 28 was one of our busiest days yet on the site, with traffic boosted
by reader interest in our link roundups on the Moscow hostage episode (especially
the WSJ's "Best of the Web" mention) on top of the 4,000-6,000 pages
that we're accustomed to serve on a more ordinary weekday. Thanks
for your support!
P.S. Oops! Our unfamiliarity with our new statistics program
led us to overcount: the Oct. 28 figure should have instead been 9,800
pages served, and the "regular" range 3,500-5,000. Still pretty good.
October 28-29 --
Welcome WSJ Best of the Web readers. Readers
looking for our earlier coverage of the Moscow theater siege will find
it here and here.
MORE COVERAGE: Among accounts of the theater storming
based on firsthand interviews are Alice Lagnado, "As dawn neared, a light
mist suddenly came down", Times (U.K.), Oct.
28, and Mark MacKinnon, "'All they had to do was push the button'",
and Mail (Canada), Oct.
28. The Bush White House declined to blame the Russian authorities
for the hostage toll, saying responsibility rests with the captors: "The
Russian government and the Russian people are victims of this tragedy,
and the tragedy was caused as a result of the terrorists who took hostages
and booby-trapped the building and created dire circumstances," said spokesman
Ari Fleischer. ( "White House: Blame Lies With Captors", AP/Yahoo, Oct.
27). Other commentaries: Kieran Healy (Oct.
27), Mark Kleiman (Oct.
27); Mark Riebling reader
comments. (DURABLE LINK)
October 28-29 --
Ambulances, paramedics sued more. "A growing ambulance
industry is learning that malpractice
suits are not just for doctors anymore. ... [one defense lawyer] says
there's a tough lesson to be learned in all ambulance cases. 'You can do
everything right, and you can still get sued.'" Includes a revealing
quote from a Boston plaintiff's lawyer about how he tries to get jurors
so upset at alleged bumbling by ambulance operators that they "make short
work" of the crucial question of whether that conduct was actually responsible
for the patient's injury. (Tresa Baldas, "Mean Streets", National
Law Journal, Oct.
23). (DURABLE LINK)
October 28-29 --
Anticipatory law enforcement. Following the lead of some
other jurisdictions, the city of Cincinnati has adopted new ordinances
targeting men who patronize prostitutes ("johns") by allowing the city
to seize their cars. The ordinances don't take effect until next
month, which hasn't kept the city police department's vice unit from carrying
out a significant number of car impoundments already, 13 in one week.
"Even though the ordinances haven't gone into effect yet, [Lt. John] Gallespie
said the cars were impounded 'for safekeeping.'" (Craig Garretson, "Police
seize 'johns' cars", Cincinnati Post, Oct.
21). (DURABLE LINK)
October 28-29 --
R.I. lead paint case goes to jury. Rhode Island's lawsuit
against the lead paint industry, a concoction of ambitious trial lawyers
and the politicians they love, has now gone to a jury after a two-month
trial that's been curiously underpublicized considering the case's implications
for American industry ("Jury deliberates for second day in lead paint case",
25). The state "is pursuing the novel claim that the defendant
manufacturers and distributors of lead paint or lead created a public nuisance
and should be held responsible for cleaning up what's remaining in thousands
of buildings in the state. The first phase of the trial will consider only
one question -- whether the presence of lead paint in Rhode Island buildings
constitutes a public nuisance." If the jury votes in favor of that
theory, later phases of trial will consider such issues as fault and damages.
(Margaret Cronin Fisk, "Rhode Island to Try First State Suit Over Lead
Paint", National Law Journal, Aug.
Perhaps the best journalistic treatment we've seen of this travesty
is found in a Forbes cover story from last year that is available
now in fee-based archives (Michael Freedman, "Turning Lead Into Gold",
14, 2001). The article explores how the nation's richest tort
law firm, Charleston, S.C.-based tobacco-asbestos powerhouse Ness Motley,
moved into Rhode Island and quickly made itself the state's largest political
contributor, around the same time as it was picking up a contingency fee
contract from state attorney general Sheldon Whitehouse to represent the
state in the lead paint litigation. (Whitehouse proceeded to run
for governor this year, but lost
narrowly in the Democratic primary). To date, while trial lawyers have
recruited numerous cities, counties and school districts around the country
to sue paint makers, they have not persuaded any other states to join Rhode
Island in its action (see our commentary of Jun.
7, 2001). At the same time, there are plenty of reasons to mistrust
the contention that a "lead poisoning epidemic" can somehow be blamed for
educational failure and crime among young people in inner-city neighborhoods
like South Providence, R.I. Levels of lead exposure once typical
of American children have now been retrospectively redefined as "poisoning",
thus ensuring the sense of a continuing crisis (see our commentary of Jun.
8-10, 2001). See also Steven Malanga, "Lead Paint Scam", New
York Post, Jun.
24. Update Oct. 30-31: judge declares
mistrial after jury deadlock. (DURABLE
October 28-29 --
Looking back on EEOC v. Sears. Among the
most monumental and hard-fought discrimination
lawsuits ever was the Equal Employment Opportunity Commission's years-long
courtroom crusade against Sears, Roebuck during the 1980s over the statistical
"underrepresentation" of women in some of its employment categories, such
as hardware and commission sales. (Sears won, and the case became
one of the Commission's most humiliating defeats.) In one of the
controversies spawned by the case, Barnard College historian Rosalind Rosenberg
was attacked by many colleagues in the field of women's studies for supposedly
betraying women's equality by allowing her scholarship to be used in the
retailer's defense. Now John Rosenberg, who was formerly married
to Rosalind Rosenberg and who also worked in the Sears defense, offers
a partial memoir of the episode (Oct.
25) on a new weblog titled Discriminations in which his focus
will be "on the theory and practice of discrimination, and how it is reported
and analyzed." (The piece begins with an introductory riff concerning
UC Irvine history professor Jon Weiner, one of those assailing Rosalind
Rosenberg in the mid-1980s controversy; Weiner recently caused many a jaw
to drop by stepping forward in the Nation to defend
disgraced Arming America author Michael Bellesiles.) (via InstaPundit).
October 28-29 --
Satirical-disclaimer Hall of Fame. Lawyer-driven warning
labels and disclaimer notices are easy to play for laughs, and readers
often bring funny satires to our attention (like Dave
Barry's). Few are worked out in as much detail, however, as this
splash page on the website of The Chaser, an Australian humor
magazine (scroll down): "Maintain good posture at all times while reading
... may cause paper cuts ... Please avoid mixing The Chaser with
water and glue, which could ... cause some readers to be caught in a papier
mache death trap. ... The Chaser is flammable. Do not set fire to
your copy of The Chaser, whether with a match, cigarette lighter
... [or] shining a magnifying glass on a particular little spot. ... Do
not shred The Chaser and use it as confetti. ... We make no guarantees
as to the longevity of any marital unions formed whilst using The Chaser
in any part of the ceremony ...". And a whole lot more -- give
it a look. (DURABLE LINK)
October 26-27 --
Moscow hostage crisis, updated. According to Russian authorities,
at least 118 hostages were killed and more than 700 were freed after security
forces stormed the theater; most of the 50 terrorist captors were also
killed and all or nearly all of the rest captured. After the terrorists
started executing hostages, the crowd of captives had begun to flee in
panic; security forces had also pumped a kind of sleeping gas into the
theater. ("Moscow Hostage Death Toll Up to 118", AP/ABC News, Oct.
27; "Russian forces storm siege theatre", BBC, Oct.
26; Moscow Times).
Contradicting earlier accounts from authorities, "Moscow's chief physician
said Sunday that all but one of the 117 hostages who died ... were killed
by the effects of gas used to subdue their captors." (AP/Washington
27). "If the theatre had not been stormed, all hostages would have
been killed, the Interfax journalist who was among the hostages, Olga Chernyak,
said." (Interfax/Moscow Times, Oct.
26, and scroll for more entries). More links: AP/ABC News, Oct.
26; Washington Post, Oct.
27; BBC, Oct.
Penny. Dilacerator offers a commentary (Oct.
26), as does Natalie Solent (Oct.
27). Thanks to InstaPundit
Volokh for their links to our extensive coverage below.
More: London's Telegraph reports that it "has learned
that a number of Arab fighters, believed to be of Saudi Arabian and Yemeni
origin, were among the group that seized control of the theatre.
'There were definitely Arab terrorists in the building with links to al-Qa'eda,'
said a senior Western diplomat. ... Russian officials said that the hostage-takers
had made several calls to the United Arab Emirates during the siege." (Christina
Lamb and Ben Aris, "Russians probe al-Qa'eda link as Moscow siege ends
with 150 dead", Sunday Telegraph (UK), Oct.
27). Although the Moscow terrorists (like those who carried out the
hijacking of United Flight 93) had magnified public terror by allowing
their captives to use cell phones to call their families, the tactic once
again backfired, because the resulting exchange of information made it
easier to thwart the terror plans: see Preston Mendenhall, "Cell phones
were rebels' downfall", MS/NBC, Oct.
26. And Russia's Gazeta reports that: "A 27-year-old resident
of Chechnya has been detained by Moscow law enforcers on suspicion of having
carried out the October 19 car bomb attack on a McDonald’s restaurant"
in which one was killed and seven injured. Authorities had previously
sought to blame the bombing on gangland rivalries, but "in the light of
the recent events in Moscow, the prosecutor’s office does not rule out
that the explosion may have been a terrorist attack." ("Suspect detained
in McDonald's blast inquiry", Gazeta.ru, Oct.
25). (DURABLE LINK)
October 25-27 --
Updates. New developments in cases we've followed:
* "Manhattan Supreme Court Justice Charles E. Ramos on Tuesday
froze further payments on a $625 million arbitration award to the six law
firms that represented New York state in its litigation against the tobacco
industry until he finishes reviewing the reasonableness of the sum."
(Daniel Wise, "Judge Freezes $625M Tobacco Award to Law Firms", New York
23) (see Jul. 30-31).
* "The Canadian Transportation Agency has dismissed the complaint
of an obese Calgary woman who argued her size was a disability and that
airlines shouldn't make her pay extra for a larger seat. 'Being unable
to fit in a seat should not be enough evidence of the existence of a disability
as many people experience discomfort in the seat,' the agency said in a
decision released Wednesday. Calgary law professor Linda McKay-Panos, who
described herself in documents as 'morbidly obese,' launched the process
in 1997 after having to pay Air Canada for 1.5 seats because of her size."
(Judy Monchuk, "Federal board nixes Calgary woman's bid for seat-price
break for obese flyers", Canadian Press, Oct.
23)(see Dec. 20, 2000).
And in the United Kingdom, a "woman injured while squeezed next to an obese
passenger on a trans-Atlantic flight has been given £13,000 ($20,000)"
by Virgin Atlantic Airways. ("Woman squashed by plane passenger",
* In Paris, a panel of three judges has declared French writer
Michel Houellebecq not guilty of inciting racial hatred after he was sued
by four Muslim groups for delivering remarks contemptuous of Islam ("French
author cleared of race hate", BBC, Oct.
22)(see Aug. 23-25, Sept.
* "A three-judge panel of the Michigan Court of Appeals has tossed
a $29.2 million civil court judgment against The Jenny Jones Show, after
deciding the syndicated chatfest should not be held liable for protecting
a guest who was gunned down after revealing he had a crush on another man."
(Josh Grossberg, "'Jenny Jones' Vindicated", E! Online, Oct.
23). The case is another setback for controversial Michigan attorney
Geoffrey Fieger, who promptly launched a characteristically intemperate
attack on the appeals judges (Stephen W. Huber, "Court tosses $29M award
against 'Jenny Jones Show'", Oakland (Mich.) Press, Oct.
24) (see May 31, 2001). More:
Michigan's LitiGator (Oct.
* "Voting 2-1, the 3rd U.S. Circuit Court of Appeals has ruled
that the Southeastern Pennsylvania Transit Authority's (SEPTA) physical
fitness test for job applicants of its transit police force is perfectly
legal -- even though it has a 'disparate impact' on women -- because it
serves as a true measure of 'the minimum qualifications necessary for the
successful performance of the job.' ...the plaintiffs claimed that the
test discriminates against women because it requires all applicants for
the SEPTA police force to run 1.5 miles in 12 minutes." (Shannon P. Duffy,
"3rd Circuit Rules Fitness Test for Police Force Applicants Legal", The
Legal Intelligencer, Oct.
16) (see Sept. 15, 1999, Oct.
5-7, 2001). "Interestingly, two female appellate judges joined in the
opinion rejecting this claim of sex discrimination, while a male appellate
judge dissented," notes Howard Bashman (Oct.
* In Australia, a judge has ruled against the Pentecostal worshiper
who sued claiming a "church had been negligent by not providing someone
to catch her when she was 'slain in the spirit'" during a 1996 service,
causing her to fall down and strike her head on a carpeted concrete floor.
(Kelly Burke, "Church not liable for Lord's early fallers", Sydney Morning
19)(see Oct. 1-2). (DURABLE
October 24 -- Pa.
statehouse race: either way, Big Law wins. "In a race
that will easily break Pennsylvania gubernatorial spending records, the
top givers are lawyers, by
far. ... [Republican Mike] Fisher has received $125,000 since June from
two law firms he named, as attorney general, to handle a state lawsuit
against tobacco companies." (see Jan.
10, 2000). "But the firms, which split $50 million in legal fees,
have hedged their bets by also donating $107,000 to [Democrat Ed] Rendell."
And the Pennsylvania Trial Lawyers Association has endorsed Rendell, who
is considered less likely than Fisher to support curbs on medical malpractice
lawsuits. (Tom Infield and Rose Ciotta, "Lawyers top givers to Fisher,
Rendell", Philadelphia Inquirer, Oct.
22). As mayor of Philadelphia, Rendell also made himself a booster
of the abusive campaign of municipal litigation against gun manufacturers,
though he held back from filing an actual suit given the unpopularity of
such a move with the non-urban voters needed to win a statewide race in
Pennsylvania (see Dec. 22, 2000).
October 24 -- Suit:
schoolkids shouldn't attend rodeo. Two animal
rights groups have filed suit "asking a San Francisco Superior Court
judge to keep Bay Area schoolchildren
from going to the free Grand National Rodeo day for students, which will
be held at the Cow Palace on Thursday and may be repeated next year."
As many as 9,000 students are expected to attend the event. "Gina Snow,
a spokeswoman for the San Francisco Unified School District, said children
are only allowed to attend with parental permission, and that the decisions
to participate are made by individual teachers." Attorney David Blatte
of Berkeley "focuses all his work on 'animal law'". (Dan Reed, "Suit:
Rodeo bad for kids", San Jose Mercury News, Oct.
23). And Matthew Scully's new book Dominion, a conservative's
defense of animal welfare, "asks all the right questions about animal rights,
even if it doesn't canvass all the possible answers", according to the
summary of a review by Christopher Hitchens in The Atlantic ("Political
October 24 -- "California
Court Upholds $290 Million Injury Jury Award Against Ford".
"The California Supreme Court let stand on Wednesday a $290 million personal
injury jury award levied against
Ford Motor Co. stemming from a Bronco rollover accident in 1993. The justices,
without publicly commenting, decided at their private weekly conference
to uphold what Ford, in court briefs, called the nation's largest personal
injury award ever affirmed by an appellate court." (Quicken/AP, Oct.
23; Mike McKee, "California Justices Let Stand $290M Award Against
Ford", The Recorder, Oct.
24). When the original trial verdict was reported, we looked
in some detail (Aug. 24 and Sept.
17-19, 1999; see also Aug. 27, 2002)
at the very curious influences that held sway during the jury's deliberations,
including one juror's lurid dream revealing Ford's guilt, and another's
misrecollection of a "60 Minutes" episode which purportedly proved the
company's bad faith. (DURABLE LINK)
October 24 -- Russia's
fight, and ours. "Gunmen identifying themselves as Chechens
took more than 700 people hostage inside a Moscow theater Wednesday night,
threatening to kill some of the hostages and telling police they had mined
portions of the building." ("Chechen gunmen seize Moscow theater",
23; Michael Wines, "Chechens Seize Moscow Theater, Taking as Many as
600 Hostages", New York Times, Oct.
24 (reg); AP/ABC, "Rebels Take Moscow Audience Hostage", Oct.
23). "Local media said children, Muslims and foreigners who could
show their passports were allowed to leave the building. The reports could
not be confirmed." (Natalia Yefimova, Torrey Clark and Lyuba Pronina,
"Armed Chechens Seize Moscow Theater", Moscow Times, Oct.
24). Chechen militants have repeatedly seized civilian hostages
in groups of hundreds and even thousands, as well as claiming credit for
railway-station bombings in Russia ("Chechen rebels' hostage history",
24; "Chechen rebels hold at least 1,000 hostages in hospital", CNN,
9, 1996; Adnan Malik, "Hijackers Free Women and Kids", AP, Mar.
15, 2001; "Separatists' history of hostages and horror", Sydney Morning
24). Since 9/11 U.S. officials have been less inclined to dispute
"Russia's long-standing claim that the Chechen rebellion, which spills
over into neighboring Caucasus republics, is not just a local independence
movement, but has become a full-blown subsidiary of the global Islamic
terror network headed by [Osama] bin Laden." (Fred Weir, "A new terror-war
front: the Caucasus", Christian Science Monitor, Feb.
26). Also see, on the al-Qaeda-Chechnya connection, Mark Riebling
and R. P. Eddy, "Jihad@Work", National Review Online, Oct.
24, and BBC, Oct.
23. The Moscow Times has a list of the names of the Westerners
who are being held hostage, who include three Americans, two Britons, two
Australians, and a Canadian, as well as various others (Kevin O'Flynn,
"Europeans, Americans Inside Theater", Oct.
25). Asparagirl (Oct.
23) wouldn't be surprised if it happened here.
More: In "footage aired by Qatar's al-Jazeera satellite TV",
a chador-clad woman who said she was one of the Chechen hostage-takers
said: "We have chosen to die in Moscow and we will kill hundreds of infidels."
("We'll kill hundreds of infidels: Hostage-taker", AFP/Times of India,
24). "'I swear by God we are more keen on dying than you are
keen on living,' a black-clad male said in the broadcast believed to have
been recorded on Wednesday." Another hostage-taker, while denying
that the terrorists were operating as part of al-Qaeda, told the BBC: "We
have come to die. ...we want to be in paradise." (BBC, "Hostage-takers
'ready to die'", Oct.
25). The Russian press is treating the unfolding events as "Russia's
Sept. 11". (BBC, Oct.
25). In an echo that Americans will find familiar, "Many channels
have broadcast chilling messages from the hostages themselves, calling
from their mobile phones." ("Distant war comes to Moscow", BBC, Oct.
According to London's Evening Standard, the terrorists are disinclined
to release any more of their foreign hostages because they suspect that
international interest in the episode might wane if they did so.
("Britons still held in Moscow siege", Oct.
25). Reportedly one of the American hostages, Sandy Alan Booker,
49, who was vacationing in Moscow, hails from Oklahoma City, Okla.
("Chechen Gunmen Threaten to Begin Killing Hostages at Dawn", AP/FoxNews,
25). Update: Russian security forces storm theater, ending siege,
with more than 100 hostages killed along with most of the captors: see
FURTHER: Some London, Broadway and European theater owners
have stepped up security, but Andre Ptaszynski, chief executive of Andrew
Lloyd Webber's chain of 14 London theaters, virtually boasts of not
taking such threats seriously, explaining that an outrage by the Irish
Republican Army against the West End is considered unlikely; apparently
Ptaszynski is unable to think of any other groups that might harbor terrorist
designs on London. (Matt Wolf, "Some Theaters on Alert After Siege",
25; "London theatres increase security", BBC, Oct.
25 (via Jen
Taliaferro). Riebling and Eddy, in NRO, note: "the tactics
of Chechen jihadists are regarded by the FBI as a possible indicator of
al Qaeda methods in the U.S." (DURABLE
October 23 -- Batch
of reader letters. We've been remiss in keeping up with
the inbox, but here are eight letters on subjects that include lawyers'
penchant for doing things expensively, a sane damage award in Ireland,
Enron's lawyers, lawsuits over avocados and anchovies, suitable targets
of gamblers' suits, George W. Bush's record on tort reform, whether free
speech should have a racism exception, and Western wildfires. More
letters are on deck for later, too. (DURABLE
October 23 -- Artificial
hearts experimental? Who knew? "The widow of artificial-heart
recipient James Quinn yesterday sued the maker
of the device, the hospital where
it was implanted, and the patient advocate who helped Quinn decide to have
the surgery." The 51-year-old man survived more than eight months after
receiving the mechanical heart last November, but his "initially remarkable
recovery was followed by months in the hospital." The suit says Quinn
had "no quality of life and his essential human dignity had been taken
from him." "Irene Quinn said yesterday that she and her husband did not
know what they were getting into when they joined the clinical trial. They
thought the machine would save his life, she said. She said they should
have been told more about what earlier patients had experienced and that
it should have been made more clear just how experimental the device was."
(Stacey Burling, "Widow sues artificial-heart maker", Philadelphia Inquirer,
17; "Lawsuit over artificial heart", CBS News, Oct.
17; MedRants, Oct.
18). (DURABLE LINK)
October 22 -- "Judge:
Disabilities Act doesn't cover Web". An important ruling,
but one that's unlikely to be the last word, on a controversy we've covered
extensively in the past: "A federal judge ruled Friday that Southwest
Airlines does not have to revamp its Web site to make it more accessible
to the blind. In the first case of its kind, U.S. District Judge
Patricia Seitz said the Americans with Disabilities Act (ADA) applies only
to physical spaces, such as restaurants and movie theaters, and not to
the Internet." Quotes our editor who mentions the possible headaches
the ADA could pose even to a modest site like this one, if it turns out
to apply to the web. (Declan McCullagh, CNet/News.com, Oct.
Matthew Haggman, "Judge Tosses Suit That Said ADA Applies to Business Web
Sites", Miami Daily Business Review, Oct.
25. (DURABLE LINK)
October 22 -- "Nanny
Bloomberg". This site's editor also has an op-ed in the
Street Journal today
on the New York mayor's crusade against smoking in bars. It's available
only to online subscribers of the Journal, unfortunately. (DURABLE
October 22 -- "'Penney's
prevails in shopper suit". A Tennessee Court of Appeals
judge has upheld a lower court's rejection of a $600,000 lawsuit by Carolyn
and Robert L. Wells against the retailer J.C. Penney. Mrs. Wells
had told the court that she had been shopping for collectible crystal figurines
on sale at a Penney store in Shelby County when an ill-mannered fellow
shopper wrested two crystal bears from her hands, inflicting injuries on
her shoulder, neck and back. However, Judge Holly K. Lillard said
that the confrontation, which "demonstrates the dangers of the cutthroat
arena of after-Christmas bargain shopping," was one whose particulars the
store could not have foreseen. (Tom Sharp, AP/GoMemphis.com, Oct.
12). (DURABLE LINK)
October 21 -- Rethinking
grandparent visitation. Among the litigation-encouraging
developments in family law in recent
years has been the rise of laws enabling grandparents to sue demanding
rights to visit their grandchildren even against the wishes of a fit parent.
But both courts and lawmakers are growing disenchanted with such laws.
One Seattle attorney charges that grandparents with time on their hands
engage in "recreational litigation". (Annie Hsia, "About Grandma's
Visits ...", National Law Journal, Oct.
14). (DURABLE LINK)
October 21 -- "Judicial
Hellholes". After surveying its members, the American
Tort Reform Association presents a report describing the most frequently
identified "Judicial Hellholes", localities in which litigation abuse is
common and civil defendants find it hard to get a fair trial. On
the list are Alameda, Los Angeles and San Francisco counties, California;
notorious counties in Mississippi, Illinois, and Texas; and others.
Is your hometown court on the list? ("Bringing Justice to Judicial Hellholes
in PDF format). (DURABLE
October 21 -- "Our
friends are at war, too". "The first soldier to die in
combat in Afghanistan was an Australian. ... We're not just fellow infidels,
but brothers on a field of battle that stretches from Manhattan to Bali.
If the American media don't understand that, then the American president
needs to remind them." (Mark Steyn, "Our friends are at war, too", Chicago
20). See Oct. 14; also Tom Allard
and Mark Baker, "PM's vow: we'll get the bastards", Sydney Morning Herald,
21; Tim Blair, "Killing terrorists wipes out terror", The Australian,
17; Virginia Postrel
(scroll to Oct. 17 and Oct. 16 posts). (DURABLE
October 21 -- "Demand
for more ugly people on TV". "Lecturer Trond Andresen
of the Norwegian Institute of Technology in Trondheim accuses the media
of discriminating against the ugly and emphasizing beautiful people whenever
possible. Andresen wants higher ugly quotas on television. 'Ugly
people should be spotlighted in the media
in the same way that the media wishes to emphasize persons from ethnic
minorities,' Andresen, a lecture at the Department of Engineering Cybernetics,
said to newspaper Bergens Tidende." (Aftenposten, Oct.
17). (DURABLE LINK)