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SSFC

Microblog 2008-12-23

by SSFC on December 23, 2008

A few odds and ends:

While I’ll be blogging tomorrow, I suspect that many of you won’t be reading.  Have a Merry Christmas, Happy Chanukah, Ecstatic Eid, Joyous Kwanzaa, a very late Merry Diwali for Hindu readers, and for the secular among us, Happy Holidays.

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Best Christmas Present Ever

by SSFC on December 23, 2008

From a good friend in law school, who works for the Federal Reserve and probably considers it an ironic gift:

A Federalist Society sweatshirt.  Just arrived by UPS.

Peter Reiner of the Neuroethics & Law Blog points to the impending arrival of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, or as it will be commonly known, the DSM-V.  DSM, in its various editions, is generally treated as the bible of psychiatry, providing diagnostic criteria for a host of mental maladies from the common, such as depression, to the bizarre, such as trichotillomania.

Readers of this site may know that the DSM is relevant to a number of fields of legal practice, including criminal law, tort practice, workers compensation, and increasingly employment law.  If nothing else DSM often provides fodder for cross examination of experts, but in some cases it interacts with the law more directly.  For instance, whether a person is psychiatrically “disabled” within the meaning of the Americans With Disabilities Act, or an insurance policy, may turn on whether that person’s problems can be summarized through a DSM diagnosis.  Revisions to past editions of DSM have even had social and political ramifications in the culture at large.  Arguably the removal of “homosexuality” as a form of mental illness in the 1970s contributed, in its small way, to greater acceptance of gay people in American culture.

Like Dr. Reiner, I find one aspect of the revision process troubling.  It’s being conducted in secret, and the revisionists are being held by the American Psychiatric Association to confidentiality agreements.  The APA has justified this a couple of grounds: first that it allows the committee to work undistracted by public comment from fellow scientists; and second that it prevents members from accepting outside work, such as casebook writing and other assignments, with an eye toward money.  After all, “The Doctor Who Wrote the Book On Binge Eating” could make a killing on the Oprah Winfrey Show.

While I’m not a scientist, the secrecy does strike me as bad science, and bad policy.  I’d never argue that laypeople, for instance lawyers, should have their comments considered by the APA, but there are many, many psychiatrists, non-psychiatrist MDs, scientists from other disciplines, and psychologists who could provide valuable criticism or validation of the work before it’s plopped onto the public.  While I’m also sure that the drafters are ethical, experts of the highest order, and would never commit misconduct, stranger things have happened.  And there may even be a few laypeople who have thoughts that might be helpful.  Taking homosexuality as an example, there are many people who have non-disabling, non-criminal sexual hangups who might have useful opinions about the fact that “sexual fetishes” are still classified as a form of mental illness.

Make no mistake, the DSM-V will change more than the practice of psychiatry, in ways subtle and profound.  Whether the secrecy with which it’s being drafted will contribute to that change is something we won’t know, until the cat is already out of the bag.

Edit: 12/24/2008 Adam Kolber was kind enough to point out that I had attributed the Neuroethics post to him, when in fact its author is Peter Reiner.  I have edited this post to reflect that.

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Cheerleading: Serious Business

by SSFC on December 23, 2008

Making a federal case out of petty politics in high school cheerleading:  Where else but Texas?

The mother of a former Creekview High School cheerleader has filed a federal lawsuit against Carrollton-Farmers Branch schools, arguing the district did not sufficiently discipline cheerleaders who she says bullied her daughter.

The lawsuit, brought by Liz Laningham, argues that the district discriminated against her daughter and “turned a blind eye” to the harassment. The lawsuit could result in a jury trial.

So far as I can tell from the linked story, the main element of damages appears to be that Liz Laningham’s daughter did not make the cheerleading squad in her senior year, after being a member in her junior year.  And there are the usual allegations of Facebook frippery, rumors and innuendos within the team, biased judging during senior year tryouts, etc. etc.

What I can’t tell from this Dallas Morning News story is what possible basis Liz Laningham’s lawyer could have for bringing this action in federal court.  While various civil rights acts prohibit discrimination on the basis of race, religion, disability, etc., none of those are named as putative grounds for the suit.  As for sex and age discrimination, presumably the victim and her harassers are all young women.  Does Title IX prohibit girls from being girls?

And does any girl, no matter how spoiled and entitled her mother has made her, have a right to lead cheers?

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Asleep at the Scalpel?

by SSFC on December 22, 2008

Readers interested in medical liability issues, or health care in general, may find Kevin MD’s thoughts on the issue of medical residents and sleep to be of interest.  His thoughts are particularly useful because they’re counterintuitive.

Anyone who attended medical school before 2003 (when real restrictions on resident working hours were put in place), or just hung out with medical students and young doctors as I did (the nurses who attended their parties were far more, ahem, interesting than whatshername from Criminal Procedure) can tell stories about the brutal, seemingly insane hours that students and most especially residents were forced to work in order to move on in the world.  20 hour shifts weren’t unheard of, nor were possibly exaggerated tales of shifts in excess of 36 hours.  Truck drivers aren’t allowed to work the hours that residents used to and still do work, for good reason.  The hour restrictions, we were told, would or might result in a marked improvement in patient care.

Moreover, anyone who has brought or defended medical malpractice cases can tell anecdotal horror stories of the resident who added a zero to the prescription dosage, or cut a few millimeters too deep.  Some lawyers have gotten very rich spinning such stories for juries.

And yet, and yet … There’s no empirical evidence (to date) that the restrictions on resident hours have produced significant improvement in patient outcomes.  Nor is there empirical evidence that patient care suffers as a result of more frequent “doctor turnover” as one resident passes care to another who is unfamiliar with the patient’s history, but Kevin MD makes a persuasive case that it has.  As for the impact on medical costs of employing additional doctors to cover patients, that’s indisputable, at least if one doesn’t take litigation expenses into account.

Note that I don’t agree with Kevin MD, though my evidence, like his, is mostly anecdotal.  My longest experience without sleep was DJ’ing at a college radio station for 40 consecutive hours, and I had to call a friend (oddly enough, a medical resident) to drive me home and pour me into bed.  On the other hand, I’m pretty sure my second longest experience without sleep was just before my first argument before an appellate court.  I won the argument handily, but I slept well the night afterward.

Anecdotal, non-empirical comments from doctors and nurses who read Overlawyered would be particularly welcome here.

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Microblog 2008-12-22

by SSFC on December 22, 2008

Found here and there on the web, some matters on topic, some not:

This will have to be a short microblog, due to impending depositions, but it’s better than no microblog at all.

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Aspiring Jedi in the United Kingdom are out of luck this holiday season (assuming that Jedi have an analogue to Christmas), as the Woolworth’s retail chain, still a going concern over there, has restricted light sabers for purchase by adults only.  The store’s fear?  The Star Wars themed toys might be mistaken for firearms.

“A toy”                                                                     “An automatic pistol”

While even firearms opponents in the UK concede this decision is over the top, is it more appropriate to blame retailers, who may suffer liability in the event that a child was, I don’t know, injured because some fool mistook a light saber for a real firearm, or the activists and Labour government who have created laws that make such liability a real worry?  After all, the chain, like most merchants, presumably weighed its own risks, and found profits from sale of toy light sabers wanting in the balance.

You’re on your own, kid.

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Overlawyered readers may well recall the travails of disgraced former Ohio Attorney General Marc Dann.  Dann dropped off the radar earlier this year after he was driven from office amid allegations of sexual harassment and workplace affairs within his office.  Before stepping down, Dann touched off a brief constitutional crisis in Ohio, similar to what Illinois is now experiencing thanks to Rod Blagojevich.

Now Dann is back in the news, with a less sexy scandal involving campaign finance expenditures:

Former Ohio Attorney General Marc Dann used his campaign account to bankroll home repairs and family vacations, according to a newspaper review of state investigative reports.

Interestingly, beyond the expected “lies all lies!” defense, Dann responds that while he didn’t do it, if he did do it, he did it on the advice of counsel:

“The allegations that have been made in these complaints are either false or they lack a basis in law,” Dann said. “We operated the campaign committee lawfully, and all the expenditures were made with the advice of counsel and were appropriate.”

It would be nice to know which counsel advised the former attorney general that home repairs and family vacations were appropriate campaign expenditures.  Assuming that the counsel wasn’t Marc Dann.

Via Instapundit, who observes that the AP’s treatment of this story leaves the reader puzzled as to Dann’s party identity.  Perhaps Marc Dann was an independent.

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A New Category for Mark T. Sandoval?

by SSFC on December 21, 2008

An update to last week’s post on the case of the Texas judge’s drunk driving daughter: Mark Bennett of Defending People, who has already dug deeply into this matter, has evidently replaced his shovel with an oil drill.  He’s struck a gusher of facts about Mark T. Sandoval, the lawyer who brought this frivolous case.

Among other things, Defending People has found multiple sanctions for serious ethical violations, multiple suspensions, a jailing for lying to a judge, garnishment of fees for unpaid federal tax liens, and other lapses for which Sandoval has not (yet?) been sanctioned.

Perhaps the most bothersome aspect of this case is that Sandoval appears to earn a substantial portion of his fees from representing indigent children as a court-appointed attorney.  Is this what Texas taxpayers want for their most troubled children?

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Not surprisingly, given that the office is occupied by former “Governor Moonbeam” Jerry Brown, he feels that the amendment barring same sex marriage should be invalidated.  Also not surprisingly, given that it’s Governor Moonbeam, he takes a novel approach to the argument, one that libertarians may like: that same sex marriage is an inalienable right which cannot be taken away even by constitutional amendment.  (The fighting Ninth Amendment to the United States Constitution does not appear to be cited, as it’s a matter of state law).

Kip Esquire, who is a libertarian and who strongly favors same sex marriage rights, has given Brown’s arguments a thorough review, and seems unimpressed.  Key criticism:

If I were Kenneth Starr (in the sense of, “if I were as insolent and snarky as Kenneth Starr is”), then I would simply respond with something like this: “What the Attorney General is apparently suggesting is that the California Constitution — is unconstitutional. That simply cannot be right.”

More analysis of the Brown brief may be found at Mr. Esquire’s site.

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The Iowa Supreme Court has held that a wife can suffer an invasion of privacy in her home, even from her husband, according to this Associated Press story.  Inconsiderate husbands and wives in the Hawkeye State shouldn’t make too much of this holding, which can probably be limited to its bizarre facts.  Upholding a trial court’s award of $22,500 in damages, Iowa’s high court held that Cathy Tigges had a cause of action for invasion of privacy against her husband, Jeffrey Tigges, who placed multiple hidden cameras in the couple’s bedroom.  Necessarily, the Court held that Mrs. Tigges did have a reasonable expectation of privacy from her husband in her marital bedroom, particularly when she thought she was alone.

For the nosey among us, neither the story nor the Court’s opinion reveals Mr. Tigges’ reason for placing the cameras, but one assumes he feared he was being cuckolded.  Whether that was true or not, the Tiggses, who appear to have been a pair of amateur spymasters (each secretly recorded the other’s telephone conversations as well), have also been granted what sounds like a long overdue divorce.

Despite their concerns about privacy, the Tiggeses have succeeded in making their unhappy marriage a worldwide public spectacle, which I am doing my part to promote.  That’s the funny thing about defamation and privacy lawsuits; in a society that values open courts, one often broadcasts the injury to a far larger audience by taking it to litigation.  Thanks to How Appealing for the pointer.

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Reuters:  No deluge of lawsuits – yet- in Madoff case.  Reuters is surprised that an army of plaintiffs hasn’t sprung from the ground to destroy whatever is left of Madoff Securities and anything else in its vicinity.  Reuters reports this as though it’s news.

This story is a classic example of why journalists shouldn’t report on serious legal matters without some training, perhaps to 2L, or at least long experience as a crime beat reporter.  Of course Madoff hasn’t been sued.  Most of the likely law firms that could sue it are wondering whether they’re potential defendants, or which of the potential defendants they already represent.

Madoff was a heavily capitalized hedge fund with sophisticated investors, perhaps fifty billion dollars worth of investors.  Each and every one of those sophisticated investors had, or has, heavy legal talent among the New York, Chicago, London, and Los Angeles bigfoot law firms that would be best qualified to bring a suit against Madoff, its auditors or accountants, and the brokers who steered business its way.  The investors themselves, and the auditors, accountants, and brokers, who were generally investing other people’s money, are looking at their lawyers asking, “How did I let myself do this?”  For that matter, some of the law firms are looking at themselves and asking, “Why did I let my client do this?”  Or they’re reaching out to their banking and hedge fund clients and asking, “Wouldn’t you like to know that you’re not responsible for doing this?  I can tell you why.”  Or they’re so conflicted among their various clients that they’re asking themselves, “What do we do?”

And then there are the insurers.  And the reinsurers.  And their lawyers.  Finally, don’t forget that most of these firms have a few very sharp white collar criminal defense attorneys, who are also getting calls.  The white collar crime-only boutique firms will have a field day.

The conflict checking alone among the bigfirms probably isn’t finished.  As for firms specializing in class actions and securities litigation for plaintiffs, well, some of their best, such as Dreier and Associates and what’s left of Milberg Weiss, have been having troubles of their own.

The Madoff lawsuits will come, and the schadenfreude will flow.  As a wise man once said, “Patience, grasshopper.”

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Before and After

by SSFC on December 19, 2008

While I don’t plan to promote my own blog here, because there’s not much to promote, this is a story that I think needs wider circulation.  Police and prosecutorial abuse is a problem that’s gotten more attention in the past year thanks to a certain District Attorney, but it hasn’t gotten enough to suit me.

Suppose we have a jailhouse lawyer, who sues the local sheriff and district attorney for alleged civil rights violations.  Suppose, just after filing that suit, the jailhouse lawyer gets into a fight with deputy sheriff jailers, and comes out on the losing end.  As in, “a trip to the hospital for broken bones” losing end.  Then suppose he’s charged as a felon for assaulting his jailers, and, in the office of the District Attorney who charged him, the same District Attorney he sued, a poster appears with photos of the inmate’s face before and after the trip to the emergency room, along the lines of a certain well known anti-drug commercial involving a frying egg.

Suppose the inmate’s attorney requests the poster as Brady material, but the poster somehow vanishes:  This Is Your Face After Inconveniencing The Stanly County District Attorney. Any Questions?

Before your weekend begins, though this may be old news to some, I wanted to share this shocking story of waste, fraud, and abuse committed by staff at the United States Attorney’s office for the Central District of California, all on the taxpayer’s dime: Remembering The Greatest Prosecutor Practical Joke Ever.

Fortunately no one’s life, liberty, or property was lost in the perpetration of this act.

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A jury in Vermont has awarded a former altar boy $192,500 in compensatory damages, and $3.4 million in punitive damages, for suffering alleged molestation at the hands of a priest in 1977.  According to the Times Argus of Vermont, this is the third trial this year involving the same priest, who, amazingly, still retains his collar though he’s retired from active service.  As a result, the diocese of Vermont appears to be teetering on the edge of bankruptcy.  The diocese has announced it will appeal the verdict.

The ratio of punitive to compensatory damages appears to violate the  Supreme Court’s suggestion in Exxon Shipping v. Baker (an admiralty case decided on statutory grounds) that a punitive ratio in excess of single digits, or even 1:1, is unconstitutional.  But as Cal Punitives points out, is this the case with which to put that suggestion to the test?

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The Consumer Product Safety Act of 2008, sponsored by Illinois Congressman Bobby Rush and quickly signed into law by President Bush, soon goes into effect.  Sold as a measure to protect children from the perils of Chinese and other foreign-made toys which may contain lead paint, the law was written with good intentions. Unfortunately, good intentions sometimes produce bad consequences.  While this law may never save a child, it will certainly have consequences for small businesses which produce toys, as well as other products intended primarily for children under 12.

As always, the devil is in the details, and Publius Endures has given the details careful scrutiny.  Among other little details, this law may require toy manufacturers and importers to perform costly outside testing, at a cost of over $4000, on each lot of toys shipped.  If the law is so interpreted by the people who draft its enabling regulations, that will simply put small manufacturers out of business, leaving the American toy market to giants such as Mattel or driving more of the business to overseas competitors who produce on a larger scale and can absorb the cost.  The result, probably not intended at all by lawmakers, may be monopoly or oligopoly in the American toy market, accomplished through regulation rather than market forces.

For more on this example of unintended consequences of hasty lawmaking in response to a panic, see Upturned Earth, which suggests that congress or regulators might be persuaded to amend or sensibly interpret the law, if only they understood what a potential monster they’ve created.

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Guest Blogging, and an Introduction

by SSFC on December 19, 2008

Due to deadlines and other real life commitments, Walter Olson has graciously invited me to guest blog here through the holidays, which I shall begin in earnest on Sunday.  I am your lump of coal from Overlawyered.  I regularly blog at my own site, Social Services for Feral Children, to which Overlawyered has linked on several occasions, for which I am deeply thankful.  I am an attorney with a civil defense practice in a medium southern state, and enjoy writing about bizarre or abusive lawsuits among other topics.  You may notice that at my own site I write with a rather more acerbic style (meaning I cuss and call people names) than prevails at Overlawyered.  In keeping with the conventions established here, I shall attempt to maintain a dignified presence in order to avoid spoiling Walter’s holiday.

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