April 2000 archives, part 3


April 28-30 – Degrees of intimidation. Diploma mills (self-proclaimed universities willing to mail out meaningless degrees, in exchange for what is often substantial “tuition”) have flourished lately and efforts to rein them in have foundered, writes a specialist in the field. “In 1982 the American Council on Education announced an impending, hard-hitting, and uncompromising book (I hoped) on fake schools. But by the time Diploma Mills: Degrees of Fraud finally emerged in 1988, the lawyers had marched in, and the book was, at best, soft-hitting and compromised. The authors apologized for lack of specificity (not a single currently operating fake was named) because of ‘the present litigious era.’

“Yes, schools do sue. … I’ve been sued eight times by schools …. Only one ever got to court, and that was thrown out by the judge, as frivolous, in minutes. But there is a cost in both dollars and, my wife will confirm, despondency.” (John Bear, “Diploma Mills: The $200 Million a Year Competitor You Didn’t Know You Had”, University Business, March) (via Arts & Letters Daily).

April 28-30 – Collateral damage in Drug War. Authorities earlier this month arrested Dorothy Jean Manning, 66, Ramona Ann Beck, 61, and Armitta Mae Granicy, 59, for selling iodine crystals without keeping tabs on buyers’ names and vehicle IDs as required by law. All three women work at Granicy’s Feed Store in rural Lancaster, Calif. and have been charged with repeatedly selling the crystals to undercover agents despite warnings. Ranchers use iodine crystals to treat hoof ailments in livestock, but they are also a so-called “precursor chemical” in the production of methamphetamine. (Reason Express, April 17 — third item). (Update: see letter to the editor, May 18, 2001). And Denver’s famous bookstore, the Tattered Cover, is locked in a courtroom battle with the North Metro Drug Task Force over demands that it disclose the identity of the purchaser of two books found in an Adams County residence which also contained a methamphetamine lab; the books, apparently bought from the Tattered Cover with a credit card, contained instructions for manufacturing the drug. “On April 5, five plain clothes Denver police officers showed up at the bookstore with [a] search warrant and insisted on conducting a search” but agreed to wait until a court resolved the situation. (Cheryl Arvidson, “Denver bookstore’s sales records sought in drug-lab investigation”, Freedom Forum, April 20). Update Oct. 27-29: judge orders store to hand over records.

April 28-30 –Legal Times (Washington, D.C.) “Web of the Week”. One of the nicest encomia we’ve received lately makes us anxious to live up to it. “Lawyers and litigation have been lampooned at least since Dickens. Now Walter Olson of the Manhattan Institute, a longtime critic of the excesses of litigation, has launched overlawyered.com, a Web site that gathers daily nearly every story of this type from the media and gently skewers the profession. It remains just this side of acerbic, which actually makes the site more effective. Excessive fees, silly cases, outlandish extenuations, and my favorite, ridiculous warning labels, abound here. Read it and laugh, but take much of it to heart.” (Jonathan Groner, Legal Times, April 10).

April 28-30 – Updating Jane Austen. If the author were writing today. … “After recovering memories of childhood abuse by their father, the novel ends with the Bennet sisters awash in cash, their futures secure, and their romantic lives no longer held in thrall to the economic oppression of the patriarchy.” (Mark Lasswell, “Get real, Jane”, Women’s Quarterly, Winter 2000 (via The Occasional)).

April 27 – Sock puppet lawsuit. Internet pet supply enterprise Pets.com has filed a federal lawsuit against Robert Smigel, a writer with NBC’s “Late Night With Conan O’Brien”, over Smigel’s creation of “Triumph the Insult Comic Dog”, a satirical character reminiscent of Pets.com’s own highly visible sock-puppet mascot. “‘Triumph is a rubber-dog that … regularly uses vulgarity, insults both the humans and other dogs around him and often conducts physical attacks of a sexual nature on female dogs,’ the complaint says.” (“The sock that roared”, TVBarn, April 25; “Pets.com socks it to ‘Late Night’ writer”, AP/FindLaw, April 26, link now dead).

In more news from the world of doll litigation, Barbie-maker Mattel, Inc., has sued the prominent San Diego law firm of Luce, Forward, Hamilton & Scripps for slander and libel. The case arises out of a longstanding legal dispute between the giant toy company and one of Luce Forward’s clients, the Collegiate Doll Co., over sales of dolls by the latter company that allegedly infringed on “college cheerleader” versions of Barbie. Mattel now claims to have been falsely accused of illegalities and unethical conduct in an article published in Luce’s newsletter and on its website. Previously, Mattel successfully sought judicial sanctions against a Luce partner who, having weathered earlier rounds of litigation involving the curvaceous plaything, “began to tout himself as an expert in Barbie disputes,” and whose sanctionable misconduct allegedly included tossing Barbie dolls during a videotaped meeting of counsel. (Gail Diane Cox, “Barbie’s Backers Smack Firm With Slander Suit”, CalLaw, March 2).

April 27 – Let’s go to the tape. “Brian Lopina, a lobbyist for the Association of Trial Lawyers of America [recently broke] the Golden Rule of Washington Voicemail [, which] states that the only message you should ever leave on anyone’s machine is Call me …. Lopina tried to intimidate Sen. Rod Grams, the Minnesota Republican, out of backing a bill that would scrutinize asbestos suits more carefully. … [He] warned Grams that ATLA was bankrolling a set of highly effective ads against senators (like Montana Republican Conrad Burns) who weren’t dancing to the lawyers’ tune. He offered to send over a transcript of the ads, ‘so you’ll see exactly how hard-hitting this stuff is. I think you really ought to get off this bill.’ Lopina claimed to have been calling Grams as a ‘friend,’ and ATLA denied that he’d made the calls at its request. Yeah, sure — he works as a lobbyist but makes threatening calls about legislation in his spare time.” (Christopher Caldwell, “Tele-Grams”, New York Press, April 19-25). The Wall Street Journal beat us to this one with their editorial Tuesday: “The New Commissars”, April 25 (online subscribers only)). See also Dane Smith and Greg Gordon, “Grams said lobbyist tried to ‘blackmail’ him”, Minneapolis Star-Tribune, April 11 (reprinted at Coalition for Asbestos Resolution site).

April 27 – Legal Intelligencer sees Fidel’s sunny side. Whatever divergent views we may hold on the armed seizure and prospective return of Elian Gonzalez, you’d think we could all at least agree in execrating the brutal dictator whose misrule the little boy and his mother were fleeing. But no, even at this late date, the old monster has his defenders — including, it seems, some in the legal profession. Last month Philadelphia’s couldn’t-be-more-respectable Legal Intelligencer ran a kissy account of how fourteen American lawyers went to Cuba on a “fact-finding” mission sponsored by the far-left National Lawyers Guild, met the great man himself, and came back singing his praises. “There is a sense of respect for other human beings there,” effused attorney Joshua Rubinsky. “A respect you don’t see [in the United States] in terms of labor relations.”

Queasy yet? There’s much more. “Fidel Castro is a lawyer,” the account begins (which, for the record, is meaner than anything this site has ever said about lawyers). “He graduated from Cuba’s Havana University with a law degree in 1950, and, although he never practiced law, his political influence has helped shape Cuba’s legal system” — “political influence” being here a remarkable euphemism for the Communist strongman’s tendency to murder or jail opponents and critics. The story proceeds to quote attorney Gail Lopez-Henriquez, who like Mr. Rubinsky practices labor law in Philadelphia, as saying: “People we met really believe that they have a system that has some very important principles and structures that protect people’s rights, dignity and material needs.” The Legal Intelligencer never sees fit to quote even a single critic of the Cuban regime, or indeed anyone outside the admiring circle of trip-goers. (April White, “Meeting Castro Highlight of Study Trip To Cuba for Group of U.S. Labor Lawyers”, The Legal Intelligencer, March 16).

April 25-26 – New page on Overlawyered.com: Free speech & media law. Newest addition to our collection of topical pages covers libel, slander and defamation suits; the use of litigation to suppress or intimidate criticism and political opposition; harassment law’s effects in curbing email jokes, cartoons and workplace banter; efforts to hold makers of shoot-‘em-up movies and videogames liable for damages when their customers commit acts of violence; regulation of campaign speech; copyright, broadcast law, and other topics relating to free expression and media law. Also: we’ve updated the desktop links on the front page’s left column, dropping some less-used links, adding a half-dozen new, and creating a new section for “Science/skepticism” links, most of which had previously been found in “Diversions”.

April 25-26 – Celera stockholders vent at Milberg Weiss. Lively discussion breaks out on Motley Fool investment bulletin boards concerning suit filed by class-action filers Milberg Weiss against genome-mapping pioneer Celera after stock price drop (suit announcement). Most of the participants are decidedly unhappy about the suit’s filing, and their email protests succeeded in drawing some response from Milberg Weiss attorneys. Some jumping-off points to browse the discussion: messages #13466, 13594 (cites this site), 13775, 13806, 14041 (view threads).

April 25-26 – Preferred seating. ADA lawsuits against movie theaters proliferate, with a D.C. law firm last week seeking class-action status on behalf of millions of hearing-impaired moviegoers against two of the biggest cinema chains over their failure to install expensive captioning and other assistive technology. (“Hearing-impaired moviegoers sue Lowes [sic] and AMC”, Bloomberg/Boston Globe, April 21, link now dead). In Oregon, where activists filed a suit earlier this year seeking mandatory captioning (see February 19-21 commentary), they’ve now filed another one charging that it’s unlawful for wheelchair users to be seated in front where they may be obliged to crane their necks at an uncomfortable angle (Ashbel S. Green, “Regal Cinemas sued over seats”, The Oregonian (Portland), April 12). The Fifth Circuit, however, recently turned two thumbs down on a similar lawsuit out of El Paso. (Nathan Koppel, “Court Failed to Recognize Disabled Movie Patrons’ Difficulties, Expert Says”, Texas Lawyer, April 13).

April 25-26 – Toronto coach: ich kann nicht anders. Toronto Raptors basketball coach Butch Carter has filed a defamation lawsuit against departed player Marcus Camby, who recently described Carter as a “liar” and unpopular with the team. Camby, who alleges that Carter assured him he’d be kept on the team just before the front office traded him to the New York Knicks, said, “No one likes him and no one wants to play for him. That is the kind of guy that he is.” “I’m responding to an article of untruths in the only manner I can,” said Carter, on the question of why he was suing. “That’s through the courts.” You might think he’s overlooking at least one other manner of responding short of litigation, namely airing his side of the story in the press. Carter hasn’t been shy about doing that in the past: in an upcoming book, he alleges that one of his own former coaches back at Indiana is a “bully” and “self-serving coward” and has used racial slurs. (“Carter would withdraw suit for apology”, ESPN, April 23; “Raptors’ Carter Defends Camby Suit”, Yahoo/AP, April 24; “Carter claims Knight used racial slur”, AP/ESPN, April 14). Update: Carter soon dropped the suit (see May 4 commentary).

April 25-26 – Gray sameness of modern playgrounds. “Is there anything lamer than these new ‘safe’ playgrounds? Where is the fun in the Big Hollow Plastic Cube with Holes Cut in It? Or the Three Axles with Triangular Plastic Spinning Things for Playing Tic-Tac-Toe? … And yet overprotective surrogate mothers from the National Program for Playground Safety insist that still not enough is being done to protect the children. … Give me spinal injury inducing monkey bars over this modern plastic junk any day.” (Eigengrau weblog, April 20 entry).

April 25-26 – Thought for the day. “The history of censorship is a history of folly and cruelty” — Judge Richard Posner in Miller v. Civil City of South Bend, Seventh Circuit, 1990; quoted in the substantial new profile of him in Lingua Franca (James Ryerson, “The Outrageous Pragmatism of Richard Posner”, May).

April 25-26 – Regulation by litigation: what to do? Some ideas that might curb courts’ and trial lawyers’ penchant for acting as surrogate legislatures, including a “Model Separation of Powers Act”, a Sunshine Act requiring that governments disclose the manner in which they hire outside attorneys, and an act making clear that government can’t oust traditional defenses to liability in the course of filing third-party lawsuits over Medicaid reimbursement and the like (assuming governments should be filing such suits at all). (Victor E. Schwartz and Leah Lorber, “Regulation Through Litigation Has Just Begun: What You Can Do To Stop It”, “Briefly…” Series, National Legal Center for the Public Interest, November 1999 (PDF)).

April 24 – Scented hair gel, deodorant could mean jail time for Canadian youth. “A Halifax-area teenager may face criminal charges for wearing Dippity Do hair gel and Aqua Velva deodorant to school after his teacher complained to the RCMP [Royal Canadian Mounted Police, Mounties] about his fragrant abuse of the school’s no-scent policy. Gary Falkenham, 17, has twice been suspended from Duncan MacMillan High School in Sheet Harbour, N.S., for violating the school’s strict policy banning perfumes, aftershaves and scented hairsprays and deodorants.” (Shaune MacKinlay and Adrian Humphreys, “Student may face criminal charge for wearing smelly hair gel”, Halifax Daily News/National Post, Apr. 19. More on the “scent-free” movement, which has made Halifax its poster city: Larry M. Greenburg, “One City Turns Up Its Nose Against the Use of Perfume”, Wall Street Journal, July 28, 1999, reprinted at Junk Science; Betty Bridges, “Halifax Leads the Way With Fragrance-Free Policies”, Flipside, Sept. 1999; Dalhousie U. policy, Environmental Health Network, Fragranced Products Information Network).

April 24 – Court rejects “telephone sex slave” charge. A federal judge has dismissed Doris Ford’s lawsuit charging that Hartford businessman and power broker Arthur T. Anderson had coerced her into being his highly paid “telephone sex slave”. Ms. Ford did not allege that the couple had had physical contact since 1977, and the judge said that even if it were true that the two had more recently engaged in sexually oriented telephone conversations and that she had received sums in excess of $150,000 from Mr. Anderson, the relationship could at most be described as contractual. Anderson’s lawyer says his client had made payments to Ford for years to keep her from revealing their long-ago extramarital relationship. Ms. Ford’s lawyer, Norman A. Pattis, conceded that his claim invoking the federal Violence Against Women Act was “creatively pleaded and probably on the cutting edge.” (Mark Pazniokas, “Judge Rejects Sex Slave Suit”, Hartford Courant, Apr. 21, link now dead).

April 24 – Less suing = less suffering. New England Journal of Medicine study on crash injuries before and after Saskatchewan’s introduction of no-fault insurance finds “the elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury.” Not only did fewer people claim whiplash under the no-fault system, but no-fault’s much faster resolution of claims appeared to be strongly correlated with faster recovery, less intense pain and fewer depressive symptoms. (J. David Cassidy and other authors, “Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury”, New England Journal of Medicine, April 20). A related editorial in NEJM calls the findings “dramatic” and adds: “An obvious concern is whether this change simply forced severely injured patients to suffer in silence without appropriate compensation for ongoing impairments. Several considerations suggest that this explanation is unlikely.” The medical harm done by the fault system, the editorialist proposes, is not so much in encouraging conscious malingering as in generating excessive medical attention and overly alarmist diagnoses that can become self-fulfilling. The editorial also cites studies from Australia and Lithuania suggesting that the legal environment has a profound impact on the amount of perceived pain and disability experienced by whiplash sufferers (“Pain and Public Policy“). Update: trial lawyers’ response (see June 26).

April 24 – Maryland: knowledge, notice not needed to sue landlords over lead. By a 4-to-3 margin, the Maryland Court of Appeals has ruled that apartment owners can be made to face personal-injury claims on behalf of children who ingest lead paint in their units regardless of whether the tenant ever complained about the paint or asked that it be corrected, and regardless of whether the owner knew there was a hazardous condition. The decision overruled a Baltimore Circuit Court jury decision and is expected to open the gates to more widespread legal action against building owners. (Jim Haner, “Landlords can be liable, appellate court rules”, Baltimore Sun, Apr. 21) (more on Maryland and on lead-paint litigation: see Mar. 15, Oct. 19 commentaries).

April 21-23 – The unconflicted Prof. Daynard. On January 8 of this year the British Medical Journal published an article entitled “Tobacco litigation worldwide” by Prof. Richard Daynard of Northeastern University School of Law and two co-authors (Clive Bates of Action on Smoking and Health in London, and Australian barrister Neil Francey). Prof. Daynard is by far reporters’ favorite academic to call when they’re looking for a quote supportive of lawsuits against cigarette makers, and his BMJ article is very much in line with the drift of his previously voiced opinions: it praises such lawsuits as a “productive and promising strategy” for public health, and deplores as “unfortunate” the disapproving attitude toward such lawsuits taken by British courts. So far, so routine. But then at the end of the article appears the following notice: “Competing interests: None declared.”

No competing interests declared? Not any?

Daynard directs the Tobacco Control Resource Center & Tobacco Products Liability Project, and from the way he’s been described in countless press clips over the years (samples: coverage originating in the Washington Post, L. A. Times, AP), you might conclude that he’s contented himself with rendering whatever assistance he can to such suits as a kind of cheerleader from the sidelines, with nothing at stake beyond ideological zeal. So it might have come as a distinct surprise when it was reported in late 1998 that for some time he’d been (in his own view) the owner of an actual contingency share in moneys to be legally extracted from tobacco companies. In December of that year, arbitrators awarded a staggering $8.2 billion in fees to the small band of plaintiff’s attorneys who represented the states of Mississippi, Florida and Texas in the tobacco-Medicaid litigation. At this point we turn the narration over to the National Law Journal: “Richard A. Daynard, the Northeastern University School of Law professor who is a veteran anti-tobacco activist, asked arbitrators for fees for his work on the Florida case, represented by former brother-in-law David Boies, of Armonk, N.Y.’s Boies & Schiller L.L.P. [later famed as the Clinton Justice Department's lawyer in the Microsoft case -- ed.] The arbitrators ruled that they lacked jurisdiction over his claim, leaving him empty-handed. Professor Daynard also says Mr. [Richard] Scruggs promised him 5% of the fees earned by his firm and by the Charleston, S.C., firm Ness Motley Loadholt Richardson & Poole P.A. from the state lawsuits. [emphasis added] Taken together, the two firms represent the lion’s share of states that sued the tobacco industry. Mr. Scruggs said he never made any such promise.” (Bob Van Voris, “Tobacco Road Not Gold for All”, Dec. 28, 1998 – Jan. 4, 1999).

How much would 5 percent of the fees won by the Scruggs and Ness Motley firms amount to? Last year George estimated that the Scruggs firm was going to reap more than $1 billion from its state tobacco representation (see Aug. 21 commentary), and last fall the Dallas Morning News estimated that the Ness Motley firm was going to bag more than $3 billion (see Nov. 1 commentary). If both those estimates were borne out, the share that Prof. Daynard claimed had been privately promised to him might be reckoned at 0.05 x $4 billion, or $200 million — relying as we must on back-of-the-envelope calculations, since far less about this whole topic is a matter of public record than one would like.

Even today, after such eye-openers, most media reports go right on characterizing Prof. Daynard using such anodyne formulas as “head of an anti-tobacco clearinghouse” (AP), “director of a group that encourages lawsuits against tobacco companies” (AP again), and head of a “pressure group” (Sydney Morning Herald). Yet while relaxed standards may prevail on such matters in everyday reporting, medical journals are supposed to be different — a whole lot different. BMJ‘s policy on competing interests reaches back to require disclosure of financial entanglements at any point extending back over five years. Indeed, in recent years the once cozy world of medical journals has been convulsed by a series of controversies over whether existing standards on the disclosure of competing interests have been too lax, as when researchers have been allowed to opine in journal pages about the efficacy of drug compounds without revealing pecuniary ties they might have to drugmaking firms (“Beyond conflict of interest: Transparency is the key”, BMJ, August 1, 1998).

One of those who wondered whether BMJ‘s policy had been lived up to in the Daynard case was Martha Perske of Darien, Ct., who wrote editor Richard Smith in January to call some of the pertinent facts to his attention and ask whether a clarification would be forthcoming in the journal’s pages. Ms. Perske informs this website that Dr. Smith wrote back agreeing that the question deserved to be looked into, and promised to get back to her. That was at the end of February; since then she says she’s heard nothing. Dr. Smith’s own August 1998 editorial on the subject states: “If we learn after publication that authors had competing interests that they did not disclose then we will tell readers.” Later developments: letters, Jan. 31 and Jun. 13, 2001; posts, Aug. 2 and Dec. 17, 2001 (following a persistent campaign by Ms. Perske, and more than a year and a half after the original article, BMJ finally in Oct. 2001 semi-discloses to readers Daynard’s ties to the litigation.) (DURABLE LINK)

April 21-23 – Overlawyered schools: three views. Your chances of being murdered in an American school are almost vanishingly small, but your chances of imagining yourself living through an Orwell novel during your time there are not so remote:

* Now that the White House has turned thumbs down on a “preposterous” plan to set aside a $50 million compensation fund for Columbine victims, a lawyer for survivors says, “We have no recourse but to file suit.” Vincent Carroll of Denver’s Rocky Mountain News reacts: “‘No recourse,’ he says, as if suing people who had nothing to do with the shootings were as unavoidable as breathing. Yet the attorneys’ offer to drop their litigation for a multimillion dollar fund does have the beneficial effect of eliminating all pretense of what the Columbine lawsuits will be about. Not some noble quest to uncover the truth, it turns out, but money. The fund proposal is the proof.” Much more worth reading here too (“Lawsuits Take Therapy’s Place”, April 16)

* Slashdot’s Jon Katz pays a visit to the Pinkerton Corp. to protest the new hotline it runs for North Carolina school-informants (see April 7-9 commentary) and learns “something I hadn’t quite grasped: the anonymous reporting culture is a growing business, now deeply entrenched in the United States, a result of the victimization movement and lawsuit epidemic rampant for nearly a generation. Encouraged by federal and local governments, and many corporate and educational institutions, hotlines operate all over the country to report date rape, sexual harassment, abuse, and other forms of brutality and insensitivity. … Pinkerton itself runs more than 800 such lines. It was inevitable, said Jim, that they would move into schools, and that Pinkerton would extend its security expertise and set them up. … I was transfixed by the idea of a democratic country whose response to social problems was to create an entire new tradition of informing.” (Jon Katz, “Showdown with the Pinkertons”, Slashdot.org, April 13)

* Meanwhile, school authorities run into obstacles in the form of numerous federal laws and court doctrines, notably the 1975 Individuals with Disabilities Education Act, when they try to discipline, suspend or transfer students who genuinely do misbehave in serious ways, according to the Manhattan Institute’s Kay Hymowitz (“Get the lawyers out of schools”, New York Daily News, Apr. 16).