Circus number one: The NBA.
Circus number two: A show on VH1 about the wives of NBA players called “Basketball Wives.”
The three-ring circus that encompasses all of these: A series of law suits brought by various NBA players over their depictions, or the depictions of their loves — or in some cases, their wives — by the program, including legal claims in the suit filed by Chris Bosh claiming infringement of something called “life rights.”
The latest suit, this one by Gilbert Arenas, focuses on alleged false inferences concerning a relationship between him and someone called Govan:
A significant issue Arenas raises in this lawsuit is the fact that the show uses a mix of current and ex-wives and girlfriends. In using the title Basketball Wives, it creates an inference that they’re all wives of players. Some of the promotional material mentioned below would also indicate they are still involved in the players’ lives and can comment accordingly.
However, some of these women have been through messy breakups with their respective NBA player. If Arenas were to win his lawsuit and prevent the inclusion of Govan, one has to wonder whether other players would file suit to prevent their ex’s from taking part in the show. Arenas makes the argument that the title of the show is misleading as it applies to him. In reality it’s misleading as it applies to most of the participants. As ridiculous as this whole case may seem, it could lead to the end of this show or at least a title change to accurately reflect the participants involved.
I wouldn’t count on that.
Evidently basketball players have little to do during their extremely brief off-seasons. The “Basketball Wives” claims, however, look like sloppy law but fine sport in themselves — the kind we big-boned types handle so much better than we do layups.
Yes, if God hadn’t invented the entertainment-sports industrial complex, we lawyers would have had to invent it. Or did we? Either way, what could be better summer fun? The circus is in town!
Would you like to fly in my beautiful lawsuit?
A judge refused to issue a gag order on attorneys involved in a lawsuit by the owners of a Coachella [California] olive farm aimed at preventing hot-air balloon companies from flying over their property, and also rejected a bid to have the case moved out of Indio. . . .
JCM attorney Andrew Rauch had asked Superior Court Judge Randall D. White to issue a gag order to prevent attorneys from speaking with the media. . . .
Rauch said attorneys for the balloon companies are “using the media to publicly vilify us” and are attempting to “try the case in the press.”
Defense attorney Robert Gilliland said Rauch last month withdrew a separate request to seal the court records involving the case.
White rejected the gag order request, saying such an order should only be issued if there were extreme circumstances calling for it, and he did not consider such a situation to exist in this case.
Well, that’s one way to keep a case out of the press: File a motion seeking a virtually unheard-of gag order in a routine civil case about fairly silly issues.
It’s just not a very good way.
(Younger readers may click here if they have any interest in “getting” the clever reference in the opening sentence of this post.)
If there is one universal banality about the perjury trial of Roger Clemens available on the sports pages and talk radio stations today, it’s the following, which is a composite of actual quotes and for which I am providing no link, because the sentiment is ubiquitous:
Did Clemens lie? A trial will never really answer that question. Everyone has already formed his opinion on whether Clemens is telling the truth.
Either way, we all know a huge chunk of players took PEDs in the 1990s. That era of the game is forever stained regardless of the outcome of this trial. What is this trial going to accomplish? Is this really the best use of taxpayer money?
I just hope this trial is a short one, because I’d rather focus on the games being played now.
This being Overlawyered, one might suppose the appropriate point of view here would be along those lines. Certainly, from a libertarian point of view (when in Rome…), it’s hard to be sympathetic to any investigation or prosecution whose roots are in substance abuse. If taking steroids was or is a violation of a contractual obligation running from players to Major League Baseball, that would be an entirely private matter. Evidently it wasn’t, or to the extent that it was, MLB would rather not pick at that scab. Major League Baseball keeps lawyers busy with other things.
But we all acknowledge that prosecutors do and should, to some extent anyway, concern themselves with the laws that are “on the books,” which brings us back to that Sports Guy trope: ”What difference does it make? Who cares? Why are you distracting me with those shiny objects?”
Dumb, dumb, dumb, Sports Guy!
Point One: It isn’t overlawyering to prosecute people who mislead law enforcement officials or lie under oath. Yes, people mislead police and prosecutors every day and aren’t prosecuted for it — but famous people often are, because civil disobedience by them can make for a very bad example. What better example of an example-setter is Bill Clinton, a one-man Chief Executive as sexual revolutionary, who had to turn in his law license to avoid a perjury conviction?
Clemens’s main problem was that he was put, rather unavoidably as Scott Greenfield explained at the time, in a perjury trap: [click to continue…]
Like Marc Randazza, I’m a little too close to the Righthaven litigation in Nevada — being co-counsel with him on a couple of Righthaven cases — to say much beyond what I have said about that issue here. (Overlawyered in general suffers from no such limitation, of course.) But as “Marco” notes, the following quote from a website called Righthaven Victims says plenty:
First it was a “clerical error” that caused Righthaven to sue an Ars Technica journalist for using an image that was part of a court filing, now Righthaven is blaming an undisclosed “Former In-House Counsel” for not disclosing Stephens Media as an interested party in hundreds of cases they have filed over copyright infringement.Righthaven submitted their answer to Judge Roger Hunt’s order to show cause why they should not be sanctioned for the omission. Their only answer was this unnamed rogue in-house counsel screwed up.
For the foregoing reasons, Righthaven respectfully requests that the Court find its failure to comply with Local Rule 7.1-1 through its former in house counsel does not rise to the level of sanctionable conduct given the circumstances described herein. Moreover, Righthaven has taken corrective action in response to the Court’s June 14th Order by filing amended disclosure statements in almost 120 pending cases in within this District and within the District of Colorado. Dated this 28th day of June, 2011.
See: Shawn Mangano’s response
Since so many lawyers have left Righthaven it is difficult to determine exactly who Righthaven is blaming which cannot go over well for any lawyer that has ever worked for Righthaven.
As Marc points out, Steve Green at Vegas Inc. has one possible answer to that question, which suggests one very big little problem with this throw-’em-under-the-bus strategy:
Ninety-eight. That’s the number of Righthaven LLC copyright infringement lawsuits in which Righthaven CEO Steven Gibson was one of the attorneys of record for his own company.
I’ve actually always said, in my professional life, that clients pay, in part, for the privilege of blaming you for no damned good reason. It’s like being a baseball manager: Can’t find a third starter or a decent third baseman? Fire the manager. Occupational hazard.
But this is a new one. Can you actually throw yourself under the bus? Now that would sure flatten you good. And — again — it would be Mr. Gibson who would be doing the throwing:
In fact, Righthaven is half owned by Gibson and half owned by investors who are part of the family of Arkansas investment banking billionaire Warren Stephens. He and his family also own Stephens Media.
If that’s all true, and I don’t recall anyone denying it, it could be a long, flat summer in Nevada for Righthaven and its, uh, counsel.
What better way to pick up that slow DJ business than to hitch a press release to a preposterous trademark infringement claim? Hint: It involves an utterly phenomenal battle between intellectual property and journalism in the the New York Post, which no one but the publicity-seeking plaintiff wins.
But first, our story:
“Jersey Shore” star Paul “Pauly D” DelVecchio was slapped with a $4 million trademark infringement lawsuit Thursday from a Connecticut DJ who claimed his business has been ruined by comparisons to the MTV personality.
Paul Lis of South Windsor, Conn., said he spent 40 years building up a reputation as the region’s “DJ Paulie” before DelVecchio began calling himself “DJ Pauly D” on television. . . .
“He formally trademarked [sic] the name ‘DJ Paulie’ and then came the ‘Jersey Shore’ which basically wiped him off the face of the map,” attorney Jose M. Rojas told NewsCore.
The lawsuit alleges that MTV itself flooded the internet with so much “Jersey Shore” content that it was virtually impossible to find Lis’ information or advertise on [sic] his website.
Sounds like rough going all around here — but believe me, it gets worse. And how much worse can it get? After all, how can you “ruin” someone who starts out as a “Connecticut DJ”? What exactly is the up side on that? Oh, $4 million you say? Who knew?
Of course, if you were to run a Google search for DJ PAULIE CONNECTICUT — or go crazy and use PAULY — right now… you’d have one heck of an easy time finding him, now that he’s got, not only two turntables and a microphone, but his own lawsuit!
All of which means proving damages should be a snap, right? Because this year, what with all the search-engine saturation his court filing has got him, Paulie will demonstrate that, best-case scenario, the DJ Paulie gig is a $4M proposition. And why should MTV deprive DJ Paulie of his best case? Trademark infringement-wise.
Or is it the other way around? Because now that sounds like all that infringerating is making things better, not worse. (Someone write this down: ”File lawsuit; enhance Google search results.”) Okay, we’ll let the jury sort that one out.
Well, how about the Post’s explanation of the theory of damages in the first place here? ”[I]t was virtually impossible to find Lis’ information or advertise on his website.” That makes it sound as if MTV was even flooding Lis’s website — to the point where you couldn’t even, um, advertise “on it.”
Typo, right? Well, the fine state of intellectual property journalism in New York is finally hammered home with this beaut later in the article:
Meanwhile, DelVecchio applied for a slew of US patents attempting to copyright his own moniker.
Whoa! Trademark… copyright … patents … monikers?
If indeed the test for a trademark infringement is a likelihood of confusion — and I’ve always been partial to the argument that it was — then there is definitely a trademark infringement here. Because after reading this article I, for one, am completely confused.
What a train wreck. Here the newspaper story about the lawsuit may be even worse than what reads like one pretty bad lawsuit. Good thing professional journalism is keeping that edge and saving society from that blogging stuff.
The biggest irony? The article doesn’t even mention the right of publicity — publicity being the the only thing DJ Paulie’s lawsuit definitely got right.
Tagged as:
ethics,
intellectual property,
publicity,
trademark
So on the eve of the Sabbath (for me), I end my week of guest-blogging offering conceptually loftier reporting of loftier, if heretical, overlawyering of a Central European kind (hat tip to a blog called Religion Clause).
Now, we all remember this popular number from law school — United States ex rel. Gerald Mayo v. Satan and his Staff (”Mayo“), the guy who unsuccessfully sued The Prince of Lies (instead of hiring one) in federal court. Now a court in Timisoara, Western Romania, has dismissed a lawsuit purportedly against God Himself by Mircea Pavel, 40, who is serving 20 years in prison for murder. He has some issues, only not justiciable ones, it seems. The English is Interfax’s, and their regular English-speaking guy seems to be in the Catskills this weekend, so let’s work our way through this together, with Defendant’s help:
Failing to [receive an] answer [to] his prayers, the prisoner sued the [sic] God for “fraud, betrayal of trust, corruption and influence peddling.”
Pavel brought charges against “the defendant God, who lives in the heavens and is represented in Romania by the Orthodox Church,” the Evenimentul Zilei daily reported.
According to the act [lawsuit?], during the baptismal service he “drew a conclusion with [entered into a stipulation with?] the defense” to rescue him from any disaster.
“But the contract’s terms were offended [breached], despite of [sic] my payment in different forms and numerous compellations by way of prayers,” Pavel said in his lawsuit.
Eventually the court dismissed the case, ruling that “God is not subject to law and does not have an address.”
No address?! Now that is heretical; He is, as we know, found everywhere. Well, these folks just recently got rid of Communism, so we can be charitable on the theological training.
But the subject matter jurisdiction point is well taken. There may be other problems with the alleged contract, including most of the grounds for dismissal relied on in Mayo. Also: Pavel’s capacity to enter into a contract (Orthodox baptism is done in infancy); the statute of frauds (or its Soviet-era Romanian equivalent) on several counts; and, of course, in a suit against God, there must always be recourse to the defenses in equity — the plaintiff, the murderer Pavel, comes to court with some very unclean hands.
Give Pavel credit, though, and not just for going after the deep pockets. He believes God had a role in his misfortune, even if, perhaps, he has failed to name an indispensible necessary party — namely Mircea Pavel.
–
Thanks for hosting me! It’s been a pleasure. Stay in touch at my law blog, LIKELIHOOD OF CONFUSION®, or the entirely more wide open Likelihood of Success.
Tagged as:
deep pocket,
Europe,
guestbloggers,
personal responsibility
Reuters reports on a nuvo-media catfight — and just look who the cat drags in:
Google Inc. took a swipe at media conglomerate Viacom Inc., which is suing the Internet search leader and its video sharing site YouTube for $1 billion over “massive copyright infringement.”
Google Chief Executive Eric Schmidt, speaking with reporters at a hotel bar at the 25th annual Allen & Co. moguls meeting, said litigation was the foundation of the company that owns the MTV Networks, Paramount movies studio, and video game developer Harmonix.
“Viacom is a company built from lawsuits, look at their history,” Schmidt said on early Friday.
He makes that sound like a bad thing!
Tagged as:
broadcasters,
copyright,
Google,
YouTube
Laurie Lin reports on one way to cut down on lawsuits, being mooted in Wisconsin — close down the University of Wisconsin’s law school.
It is to laugh, no? And yet, considering that it is a publicly-funded institution, the “need” for more legal education, in a situation of glut, is a reasonable factor for the legislature that does the funding to consider, isn’t it?
Tagged as:
law schools,
Wisconsin
“Ladies’ night” at the local tavern — sometimes it’s every night; sometimes it’s during certain hours — the idea is, the more females in the establishment, the better the “atmosphere” for the guys who pay for all the drinks anyway. So there’s no cover charge for women, or free drinks, or whatever. (Okay, so some of us don’t know so much about how bars work.) The point is it’s an economic calculation that no one really complains about because, after all, the guys like a nice “atmosphere.” Of course, lots of us have wondered if it’s really legal that girl elbow-benders don’t pay and boys do, but no one really thought it was something anyone was going to kvetch a court about.
Until now:
New York attorney Roy Den Hollander, a solo practitioner for more than 15 years who deals primarily with civil litigation and corporate governance, has filed a class action against certain Manhattan nightclubs for “invidious discrimination” against men in their policies for admitting patrons….
“Whether this case succeeds or fails,” says Hollander, “it will result in a much needed victory for men.”
Mm, and how would that be, exactly? Seems from here that the exact opposite is probably the case — if it fails, well, how is that a victory except in the sense that nothing happening to you, and living another day so you can drink another Sam Adams is a victory? And if the case succeeds, probably fewer women will go to bars.
Unless, perhaps, you’re like Roy Den Hollander, and prefer drinking alone, or otherwise without having to wait for the distaff-side customers to be served sooner. Or cheaper. Or less burdensomely. Maybe Roy Den Hollander just doesn’t appreciate “atmosphere.”
Not that there’s anything wrong with that.
Tagged as:
ladies' nights
More on the story Walter only teased us with earlier today: The Associated Press reports on the fall of a mighty class action plaintiffs’ lawyer — the managing partner and third name in the firm now known only as Milberg Weiss:
A former partner of a major New York law firm pleaded guilty to conspiracy Monday in connection with kickbacks the firm is accused of paying to plaintiffs in class action and shareholder lawsuits.
David J. Bershad, 67, of Montclair, N.J., pleaded guilty in federal court to one count of conspiracy that includes obstruction of justice and making false statements under oath.
…Prosecutors believe the firm, now known as Milberg Weiss, received more than $200 million in fees from such lawsuits filed over the past 20 years. Bershad was responsible for overseeing the firm’s accounting department and financial affairs….
Bershad could face up to five years in federal prison when he is sentenced on June 23, 2008.
Grisly. According to the New York Law Journal, Bershad himself made — sit down for this part — $160 million as a Milberg Weiss partner over the last twenty years, so that $8 million (why so low?) should not be all that painful, financially; but this is not the style in which to go out for a Columbia Law man.
Here is the stipulated statement of facts in support of the plea agreement, from the Law Journal. If you have trouble following what he did wrong — the rules regarding class actions and fees are fairly arcane — in short, if you represent a class, you’re not allowed to secretly share attorneys’ fees with favored class members. Such payments create conflicts of interest between the paid plaintiffs and the rest of the class members the lawyers represent. As the statement says:
By entering into such secret payment arrangements, BERSHAD and the other Conspiring Partners were able to secure a reliable source of individuals who were ready, willing, and able to serve as named plaintiffs in Class Actions that Milberg Weiss wanted to bring. In addition, some of these individuals would investigate and propose to BERSHAD and other Conspiring Partners potential Class Actions for Milberg Weiss to bring. Such payment arrangements generally enabled Milberg Weiss to file more Class Actions and to file them more quickly than would be possible absent such arrangements. Filing Class Actions more quickly than other competing plaintiffs’ law firms enhanced Milberg Weiss’s ability to obtain lead counsel status in cases, before and after the passage of the Private Securities Litigation Reform Act of 1995. Lead counsel generally obtained a larger share of the attorneys’ fees awarded in a Class Action than other counsel.
The statement of facts goes on to lay out a Byzantine arrangement of cash flow, everything short of a hollowed-out pumpkin. It describes the sort of thing that, well, crooks do. At this point, the crooks have names in the court filings such as Partner A, Partner B, down through the alphabet — and, just like Little Cats A through Z in The Cat in the Hat, they all cleaned up.
So, how long will this 67-year-old man sit in jail? I imagine he had something more like Miami in mind. But it could get even hotter — for his partners. Bershad is surely going to spill his guts even more. As the story continues:
Legal experts believe Bershad’s plea appears to be an effort to reduce his possible prison sentence in exchange for testimony.
Meanwhile, the good work of the firm goes on:
In its statement Monday, the firm said: “We remain confident that [Mr. Bershad's] actions will have no effect on the firm’s commitment to its clients and its ongoing work to protect public shareholders and consumers.”
Tagged as:
class actions,
Milberg Weiss
A Korean report says that country’s developing economy is starting to look very familiar:
It is no exaggeration to say that Korea is the “heaven of lawsuit” as the number of criminal charges and civil suits in the country is 155 times and six times higher than that of Japan, respectively.
People tend to go to court even at a slightest provocation as they institute a suit to retrieve money even if they had not signed any written contract and file for criminal charges when the case can be resolved in a civil suit.
It sounds as if the “filing” of criminal charges is a lot easier in Korea than it is here. I do civil litigation, and clients always want to know whether the fraud, or false statements under oath, or other bad acts they are positive our adversaries have done have a criminal down side. The answer, of course, is almost always “no” — prosecutors are virtually never interested in bilateral wrongdoings. That is as it should be; dragging the threat of prosecution — unspoken or otherwise — into civil litigation only makes bad situations worse (and gives your adversary a constitutional justification not to testify). Again, by all indications something very different is going on over there:
“Although over 600,000 people are being charged each year, a significant number of cases are dropped as they cannot be considered as a crime. We cannot overlook the seriousness of the current legal situation as over-issued charges are perturbing prosecutors from inspecting more crucial cases such as bribery,” said Shin Kyeong-sik, the head of planning department at the Supreme Public Prosecutor’s Office.
Perhaps the Prosecutor’s Office in South Korea should be a little more Supreme.
In today’s Journal, an article by the people behind Medical Justice:
In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. ….
Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an “expert” — usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these “experts” are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims….
Medical Justice’s second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical “witnesses having other rational explanations” — better known by their acronym.
Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in “high-risk” specialties.
…
Private law saves the day? Perhaps — but how long before the plaintiffs’ bar fights back with legislation?
Tagged as:
asbestos,
expert witnesses,
medical,
silicosis
Hierarchical government a pain? Separation of powers getting you down? Not a problem! Not if you’d rather be in Philadelphia:
Two Philadelphia City Council members plan to file suit against the state House and Senate Wednesday for preventing the city from passing more restrictive gun laws.
Council members Donna Reed Miller and Darrell Clarke called the city’s surging homicide rate in part a “state-created danger.”
Lawmakers have tied the city’s hands by not giving it the authority to limit gun purchases to one a month and require lost or stolen guns to be reported, according to Miller.
I’m sure the city does feel bad that it can’t pass more laws to make it feel good about the fact that its residents have turned America’s first capital into a shooting gallery… mm, like its present capital. But that is the fool’s perspective; for see how the state is even described — in its role in actually arrogating to itself the right to set policies for, er, the state — not as a sort accessory to crime, or, switching to civil liablity, a but-for cause or even a proximate cause. No, homicide in Brotherlovopolis are a “state-created danger”! Only a sage who merits a seat on the Philadelphia City Council can see these murders committed by carbon-based entities in Philadelphia for what they are: The product of passive, robotic mayhem-slaves of the blood-lusting Commonwealth of Pennsylvania, doing its cynically William Penn-garbed bidding and killing! Killing! Killing!
Quaker State indeed.
Tagged as:
Pennsylvania,
Philadelphia
They didn’t tell me guest-blogging at Overlawyered would be an autopilot proposition, but thanks to James Taranto, it is — complete with a law professor to do the work for me:
The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.
“Caterpillar sold this product knowing — or it should have known — it would cause exactly this harm,” one of the family’s lawyers, Duke University law professor Erwin Chemerinsky told the three judges from the 9th U.S. Circuit Court of Appeals on Monday.
Yes, a law professor is making this argument. Okay, a law professor who blogs at Huffington Post, but still? No, he’s not a new face; but he certainly remains a brazen one. For in our bizarro world, right is a very special kind of wrong — the promotion of violence (by the likes of Rachel Corrie) is peace;the sale of construction equipment (by Caterpillar) is murder; and fallacious legal argumentation is the product of one of the “the top 20 legal thinkers in America.”
This could be one even the Ninth gets right. Meanwhile,
Corrie’s parents said after the hearing that they have been carrying on their daughter’s work since she died.
“You can’t go back to the way things were before, so you determine a path forward,” Cindy Corrie said.
I thought that’s exactly what they were suing over!
Tagged as:
personal responsibility
The important issues challenging our society remain at the forefront of the class action bar:
Microsoft has been targeted by a $5m (£2.5m) lawsuit over its Xbox 360 console and the infamous yet almost forgotten scratched disc saga. There have for a long time been many rumours about the Xbox 360 scratching game and movie discs.
Count on lawyers never to forget. What’s this about?
A growing number of Xbox 360 customers are reporting having problems with their disc’s getting scratched by the DVD drive when switching the unit’s position from vertical to horizontal and vise versa.. Initially we thought this was the usual fanboy vs. hater propaganda that swirls around the launch of any new console like this. It didn’t take long until the seriousness of the situation…
… which is explained at some length. Not everyone is sympathetic to the victims in this dog-eat-dog world. But most of the discussion of this burning issues seems to go back, indeed a couple of years.
On the other hand, there’s always the Old World, ever eager to distract from its own coming demographic obsolescence by beating up on that most American of companies, Microsoft. Yes, less than a month ago word got out that the EU lean was on Microsoft to address the problem — which Microsoft seems grudgingly to admit to.
One month: That’s about long enough to read the story, do some research, find a lead plaintiff, and file the lawsuit. So foes of the class action can thank the European Union for this one. Considering the “popularity” of Microsoft on either side of the pond (right up there with plaintifs’ lawyers), not much sympathy is to be expected. But this is an interesting exercise in how the once-forgotten can, in the new global economy, still be resurrected, as long as the statute hasn’t run.
Tagged as:
class actions,
Europe
You can make these things up — economists do it all the time — but it’s a lot more compelling when they really happen (link added):
An influx of doctors lured to Texas by new limits on malpractice lawsuits has overwhelmed the state board that screens candidates for medical licenses, creating a backlog that forces many applicants to wait months before they can start seeing patients.
Officials said many of the relocating physicians are filling shortages in areas such as Beaumont, where trauma patients previously had to be flown other cities because there weren’t enough surgeons to treat them.
(Italicized part added:)This sounds like great news — more doctors coming back into the system. But who knows? Chances are the plaintiffs’ bar can find a way to spin this as an ominous development — the return of the malpracticers. Now it’s entirely possible that this represents an influx of marginally competent doctors who can’t afford to practice elsewhere because their malpractice premiums are justifiably sky-high. As it is, the article in the Houston Chronicle quoted above says that a simple background check takes 41 days — hence the huge bottleneck — and that more complex histories such as those of veteran or out-of-state doctors will take correspondingly more time. So it doesn’t seem as if the Texas regulatory authorities are lowering the bar too too low.
Indeed, any supply-and-demand interplay where the market is allowed to be distorted by an industry like the insurance business, whose operations seem to defy normal ways of doing business and which is itself hopelessly regulated, is going to be hard to predict.
But in fact, one thing that happened shortly after Texas’s Proposition 12 was passed is that malpractice insurance rates started dropping almost immediately. That’s consistent with reduced financial exposure, but certainly not with an influx of incompetent physicians coming to the “market” (i.e., seeking medical malpractice insurance). The pushmepullyou of the interplay between these things is the sort of thing that makes insurance underwriters such exciting company at a weenie roast, so I won’t even try to have at it.
Again, in any event, this is a stunning example of the invisible hand at work. But surely there is a down side, and not only to med-mal plaintiffs’ lawyers? Of course: Med-mal plaintiffs themselves, who no longer can play in the Texas state court injury lottery. That doesn’t mean other personal injury plaintiffs can’t, unfortunately. But one step at a time.
God forbid anyone reading this or their loved one should be in a position to be seeking damages, economic or otherwise, for medical malpractice. But short of the argument that, well, higher non-economic damages should be available just because they should — or proof, in ten years, that there’s more malpractice in Texas than there was before because of the influx of quack doctors attracted to the free bread crumbs of “easy” med-mal limits — this quacks like a policy that works.
Tagged as:
Beaumont,
Houston
But first, a greeting, and a thank you to the Overlawyered boys for inviting me to guest-blog this week. I’m Ron Coleman, proprietor of the LIKELIHOOD OF CONFUSION® blog on trademark, copyright and free speech law, and a contributor to Dean’s World and other things. In short, I love practicing law so much that I spend most of the day blogging.
So much for self-promotion (if you can call it that) — now to the promotion of animal cruelty — it’s all the rage, after all:
A new state law against fighting roosters violates a treaty that ended the Mexican-American War, a cockfighting association claims in a lawsuit.
The New Mexico Gamefowl Breeders Association and six businessmen argued that the law infringes on rights protected under the 1848 Treaty of Guadalupe Hidalgo, which made New Mexico a U.S. territory.
The lawsuit contends the treaty guarantees civil, political and religious rights, privileges and immunities to the people of New Mexico.
Many of the association’s 2,000 members “are devoted to rural lifestyles, of which gamefowl breeding and-or participating in gamefowl shows and fights are, in New Mexico, long-standing, culturally bound and significant activities,” the lawsuit said.
Wow, some treaty! It guarantees the right to — well, to do what, exactly? Let’s ask the Humane Society:
Cockfighting is a centuries-old blood sport in which two or more specially bred birds, known as gamecocks, are placed in an enclosure to fight, for the primary purposes of gambling and entertainment. A cockfight usually results in the death of one of the birds; sometimes it ends in the death of both. A typical cockfight can last anywhere from several minutes to more than half an hour.
The birds, even those who do not die, suffer in cockfights. The birds cannot escape from the fight, regardless of how exhausted or injured they become. Common injuries include punctured lungs, broken bones, and pierced eyes. Such severe injuries occur because the birds’ legs are usually fitted with razor-sharp steel blades or with gaffs, which resemble three-inch-long, curved ice picks. These artificial spurs are designed to puncture and mutilate.
Nice. And, best of all, tanto auténtico! What judge could resist such a rootsy appeal to heartless blood lust? Plus there’s dinero at stake, too.
Okay, so what’s the legal theory again? Oh, yeah, that’s right: This novel civil right — the right to engage in any “long-standing, culturally bound and significant activities” — is enshrined in the Treaty of Guadalupe Hidalgo. Well, here’s the Treaty: You see the clause guaranteeing the inalienable right to “long-standing, culturally bound and significant activities”?
No? Okay, well how about just the piece about roosters? Any specifications for ice picks?
Me neither. The only thing I remember about the unlikely juxtaposition of ice picks and Mexico is a certain unpleasantness involving some murderous Bolsheviks. Now, we saw then that “breaking a few eggs” can be unpleasant, but these poor chickens deserve better. Plaintiffs in this lawsuit, however, don’t.
UPDATE: Wow. There’s more to this civil right than I thought!
Tagged as:
copyright,
free speech,
New Mexico,
trademarks
