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KipEsquire

Okay, it’s time for me to stomp my feet, grab my ball and storm off this playground in a huff…

Thanks to Walter for the invitation. Thanks to Ted for keeping it interesting. And thanks to all those who left feedback to my posts.

Once again, my blog is A Stitch in Haste. The RSS feed is here. You can email me here.

Thanks again.

What You’ve Been Missing

by KipEsquire on August 19, 2006

Here is a summary of the posts from my own blog, A Stitch in Haste, that I did not cross-post here at Overlawyered

Peace Corps Quotes of the Day
–Serving in the Peace Corps is an entirely selfish endeavor.

George Allen’s “My-Ca-Ca” Apology
–Allen is under the false impression that he is running for President in 2008.

“Afghan” — It’s Not Just Rugs and Dogs Anymore
–Hey U.S. Government, how that’s War on Drugs going?

NYC-TV = W-T-F-?
–Why does the City of New York own a commercial television station?

Shall We See a “Defense of Solar System Act”?
–Damn activist astronomers legislating from the telescope!

The Road to Bigotry is Paved With…
–Thomas Sowell gets pulled over for speeding down the Highway to Hell.

Terrorists, Wal-Mart, Whatever…
–Biden is under the false impression that he is running for President in 2008.

Town “Drug” Into Football “Deer Decoy” Scandal
–No wonder these kids think theft and reckless endangerment are no big deal.

Feel free to stop on by!

Regarding Walter’s post below, I’d just like to point out that the judge probably had no choice in declining to dismiss the lawsuit. Indeed, the plaintiffs may very well win.

What is often overlooked (but not by Walter) is that California has a monstrous law called the “Unruh Act” that specifically authorizes such a cause of action for what most people consider harmless, de minimis gender-based discrimination.

I’ve heard that there are California law firms that specialize in Unruh claims. I can remember back in high school watching Judge Wapner of “The People’s Court” arbitrate an Unruh claim over a “Ladies’ Night” at a California bar — the male plaintiff won.

So, we are dealing here not with a frivolous lawsuit, but with a frivolous law. Passed by frivolous politicians.

To whom, for some reason, judges are supposed to show great deference. Go figure.

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In Part One, I proposed the following heuristic regarding paternalism:

To summarize, although it is not a proper function of government to proscribe “bad” decision making, perhaps a few isolated, objectively defensible carve-outs can be allowed in which the government makes it just a little bit harder to make a bad decision. Perhaps. Stated differently, a paternalist exception that actually proves the libertarian rule should probably be embraced and not shunned.

But does this qualify as such an exception?

In a payday loan transaction, the lender makes a small advance (typically $100-$500) to its customer, agreeing to hold a personal check for the loan amount plus a fee until the customer’s next payday. … The borrower receives cash immediately. Fees charged can range from $15 to $30 on each $100 advanced, although the typical fee is at the lower end of that range.

The fee may seem modest when presented as a dollar amount, but when calculated as an annual percentage rate (APR), the cost is relatively high. A charge of $15 to borrow $100 for 14 days amounts to an APR of 391%. A survey by consumer advocates found APRs on 14-day payday loans ranging from 390% to 871%.

No fewer than five separate bills were introduced in this session of Congress to limit or even ban payday loans. No fewer than four federal financial regulatory agencies, including the Federal Reserve, have launched investigations of the practice. Not to mention the states.

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President Bush has signed H.R. 4, the Pension Protection Act of 2006, into law.

The bill is mostly sound and fury, signifying nothing. The Pension Benefit Guaranty Corporation will be “saved,” even though we were repeatedly assured until now that there was in fact nothing to “save” it from. Private employers will be required, over time, to go from 90% funding to 100% funding of their pension plans — which is nothing more than hollow accounting gimmickry. And the real volcanoes under the city — public employee pensions — are not addressed at all. Neither of course is the Social Security crisis.

But one afterthought of the bill is worth looking at:

Employers can encourage their workers to save by automatically enrolling them 401(k) retirement accounts.

This proposal has been bouncing around for years. A good primer on the subject is available from the Congressional Research Service.

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I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.

While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.

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A few quick thoughts about the massive Dell battery recall:

The relatively new Restatement (Third) of Torts: Product Liability proposes some modifications of the common law duty to warn after a sale (as opposed to a duty to warn — i.e., on the packaging — before a sale).

Of course, a manufacturer remains strictly liable for any damages proximately caused by a manufacturing defect before a post-sale warning or recall is announced. Under the Restatement (Third), Section 11, there is still never a “duty to recall,” unless imposed by the government.

Previously, the determination of whether there was a “duty to warn after the sale” was no different than any other test for duty: Did the benefits of a post-sale warning outweigh the costs?

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Which of the following was recently uttered by a Member of Congress?

“Cutting-edge research by top scientists from the United States and Israel could…”

a) discover a cure for cancer.
b) locate Noah’s Ark.
c) reduce our reliance on foreign oil.
d) prove the existence of an Intelligent Designer.
e) find a way to end world hunger.

Oh, and if you need a reason to care, is $20 million of taxpayer money annually reason enough?

My previous post on the folly of trying to “legislate discovery” here.

Via Coyote Blog.

There but for “the grace…” –

A man with an incurable brain condition has lost his final legal appeal to insist that doctors give him food and drink in the final stages of his life.

Leslie Burke, from Lancaster, feels he will be denied sustenance when his illness makes him unable to speak.

The European Court of Human Rights said it did not believe there was a real threat that his food would be stopped. The European judges refused to reverse a UK ruling that allows doctors to decide a patient’s treatment.

Mr Burke, 46, has Friedreich’s ataxia. It causes a lack of co-ordination, but does not affect mental faculties.

This is certainly not the forum to reopen the Terri Schiavo affair — my posts are the subject can be found at this chain. And I have remained on the sidelines regarding the teenaged cancer victim who was almost forced to undergo debilitating and painful chemotherapy against his will.

I’ll simply note that I consider it axiomatic that food and water are, um, food and water and not “medical care” in the strict sense. And that knowingly permitting a patient under your care for Friedreich’s ataxia to die against his wishes — not of Friedreich’s ataxia, but of dehydration — is homicide.

Discuss.

(Via Medpundit.)

Perhaps the European courts are correct and Mr. Burke’s litigation was simply not ripe, as we say in the U.S. And perhaps a properly drafted “living will” would preempt any issues or concerns.

On the other hand, a legally recognized spouse would certainly also address those concerns. Generally speaking, when there is any uncertainty, a spouse has the final say about medical decisions when the patient cannot communicate. No living will necessary. Advisable, but not strictly necessary.

Just one of the more than 1,000 ways in which gays suffer in the name of “defending traditional marriage.”

It’s absolutely barbaric.

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Where’s Ted Frank when you need him?

A bad experience at Starbucks turned into big bucks — 301,000 of them — for a Manhattan lawyer who got a painful hotfoot when a steaming cup of coffee toppled onto her at the java palace.

“I jumped back and looked down,” Alice Griffin, 42, testified. “My foot was steaming, and the puddle was steaming.”

The jury’s April verdict was upheld yesterday by [New York] Supreme Court Justice Emily Jane Goodman — even though the jurist said she was “inclined to agree” the $301,000 that Griffin won at trial “was excessive.”

Gee, absolute deference by a judge. Go figure. I guess remittitur (let alone JNOV) would be “judicial activism.”

In any event, I’m far too humble to blog about hot coffee lawsuits at this site.

Maybe Ted will make a cameo today… [Editor's note: And he did.]

Walter beat me to the punch regarding the announcement that New York City Mayor Michael Bloomberg plans to donate contribute up to $125 million to anti-smoking efforts.

Why the strikethrough?

His effort will include cash for programs that help smokers quit and educate children to prevent them from starting; funds to push for smoking bans and higher tobacco taxes in other cities, states and countries; and money for a system to track global tobacco use and the effectiveness of anti-smoking efforts.

Excuse me, but that’s not “charitable giving.” That’s lobbying.

And I would hope that this portion of Bloomberg’s “benevolence” is therefore appropriately regulated, registered, disclosed, limited, taxed, McCain-Feingolded and generally treated the same way as anyone else’s attempt to buy a law under our current schizophrenic political funding system.

My previous thoughts on campaign finance reform here. A related thread on the abuse of tax exemption by politically active religious leaders and institutions here.

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As consumers, we increasingly have ever more access to information about the enterprises that we may wish to do business with. In the beginning there was the Better Business Bureau, then Zagat Surveys, then BizRate, then online reviews from Amazon, Expedia, iTunes, etc.

In the medical field, patients had indicia such as board certifications and hospital privileges when choosing physicians. There are also services that collect data on malpractice lawsuits — you probably don’t want to retain a doctor (or a lawyer, for that matter) who has lost too many malpractice cases.

Fair enough. But what happens when the professionals turn the tables?

In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.

The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney.

Note: The urls “http://www.LitiPages.com” and “http://LitiPages.com” seem to be inactive. Go figure. I guess we now have to treat this post as a hypothetical. Walter blogged about a similar service long ago.

Let’s clearly delineate the two separate concerns here. I will leave to others (Walter?) the task of explaining why a lost lawsuit is not automatically, or even presumptively, a malpractice claim against your attorney.

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No sooner had I put the finishing touches on my subway search post, in which I analogized the Second Circuit’s abdication of responsibility in that case to the recent gay marriage defeats in New York and Washington States, than I came across this excellent CQWeekly editorial:

[T]he New York and Washington courts both said that legislators could have believed that children fare better in families with both a mother and a father as role models. Neither court had research to prove the point: There is none. Instead, as the New York court said in the main opinion, the supposed advantage was a “common sense premise” supported by “intuition and experience.”

Whatever quibbles one might raise about each of the points, both courts were guilty of an overriding lapse of logic. The issue in both cases was not whether marriage for opposite-sex couples is a good thing, but whether legislators had some reason — other than ignorance or prejudice — to deny those benefits to same-sex couples.

Precisely.

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One of the points that I often emphasize at my own blog is that there simply is no First Amendment in Europe.

Just ask Madonna:

Prosecutors plan to keep an eye on Madonna’s weekend concert in Duesseldorf to see if the pop diva repeats the mock crucifixion scene that has drawn fire from religious leaders.

Johannes Mocken, a spokesman for prosecutors in Duesseldorf, said Tuesday that a repeat of that scene during Sunday’s concert could be construed as insulting religious beliefs.

Mocken said authorities would rely on media reports rather than sending observers to the concert and that the show might be covered by laws protecting artistic freedoms.

Read that again: “might be covered.” So not only is there no blanket freedom of expression, but what partial protections do exist are so vague that even the prosecutors don’t know how they apply to whom under what circumstances.

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As I mentioned in my introductory post, I have a soft spot for the Fourth Amendment. Unfortunately, it seems that judges, up to and including the Supreme Court, have made it a hobby to poke ever more holes into the Amendment’s proscription against warrantless, suspicionless searches, purportedly in the name of “reasonableness.”

Most of the evisceration of the Fourth Amendment has been proximately caused by the War on Drugs, particularly regarding the ever-increasing “automobile exception” to the warrant requirement. But we also have a whole panoply of other exceptions: border searches, administrative searches, consent searches, health & safety inspections, exigent circumstances…

…oh, and the War on Terror:

A federal appeals court Friday upheld the constitutionality of the city’s random police inspections of subway riders’ bags.

The 2nd U.S. Circuit Court of Appeals rejected a challenge by the New York Civil Liberties Union, which argued that searches were ineffective and an unprecedented intrusion into privacy.

The appeals court ruled that a lower court judge properly concluded the program put in place in July 2005 after the deadly London subway bombings was a reasonably effective deterrent and that the intrusion on riders’ privacy was minimal.

If you’ve never ridden the New York City subway*, then it might be difficult for you to appreciate just how wrong that last sentence is. The search program has, literally, zero deterrent effect. None.

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The only thing worse than a frivolous lawsuit is a frivolous repeat of a frivolous lawsuit:

A group of Native Americans filed a new legal challenge yesterday to trademarks for the name and logo of the Washington Redskins, saying the team’s name is a racial slur that should be changed.

A petition filed at the U.S. Patent and Trademark Office by six Native Americans represents a second chance for Indians to challenge the football franchise’s name. The team prevailed in an earlier fight when a U.S. District Court judge ruled that the plaintiffs waited too long under trademark law to object. This time, the complaint was filed with a new set of plaintiffs.

“The term ‘redskin’ was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging and racist designation for a Native American person,” the complaint says.

Whatever thesaurus the plaintiffs are using, I want one. I’m surprised the complaint didn’t add “just plain icky.”

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Sometimes the problem isn’t that we are “overlawyered” but rather that we are “overregulated” –

Cromwell [Connecticut] can be a hostile environment for those looking to break into night crawler vending — particularly if they advertise with a yard sign.

A worm business that Joe [Cadieux] has operated since he was 10 was shut down two weeks ago when Cromwell’s planning and zoning commission issued a cease-and-desist order because the teenager’s sign violated local zoning regulations.

“It’s ridiculous,” said the middle school student, who made $5 to $10 a month selling worms collected from his front yard, where they are plentiful after spring rainstorms.

So on the one hand we have a disgraceful new federal law guaranteeing a homeowner’s “right” to display an American flag on his property, despite any pre-existing homeowner association rules to the contrary (i.e., abridging the ability of private parties to enter into private contracts — which is what homeowner associations are), yet we cannot seem to find a right for a kid to do what kids do in their front yards.

Lovely.

Would the quality of life of Cromwell plunge precipitously if a “de minimis” exception were crafted for small signs by minors on their own property? Are the local politicians of Cromwell so busy with the rest of their packed agenda that they can’t revise the guidelines of their planning and zoning commission so that its members stop being worms petty jerks?

And can someone explain to me why judges are supposed to “defer” to politicians and bureaucrats like these?

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Let’s start my guest-blogging with a softball, lobbed right here in my own backyard of New York City:

A woman has filed a lawsuit against a pet cremation service and a photo agency, claiming they used a photo of her posing with her dogs, Chickie and Tiny, without her permission.

Cecala, whose lawsuit seeks $3 million, said she never gave permission to have the photo used for “something of such a morbid nature[.]“

Where to begin?

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