…in the sonar-marine mammal litigation before the Supreme Court, which we’ve covered a lot over the years. (Althouse, WSJ law blog).

Someone in the Obama campaign seems to be floating the name of America’s Most Irresponsible Public Figure® as a possible Secretary of the Interior. (Mike Allen, “Dems sketch Obama staff, cabinet”, Politico, Oct. 31). More: Stuttaford, NRO; and a new Politico piece quotes “Democratic officials” as saying the president-Elect is “strongly considering” the wayward scion to head the Environmental Protection Agency (EPA).

P.S. And now it seems by running this item I’ve killed the whole election buzz for Orac. Sorry!

• The Brokers with Hands on Their Faces Blog [via Radley Balko] #
• Still undecided on Calif.’s anti-gay Prop 8? Here’s why every paper of note in the state advises voting no [Box Turtle Bulletin] # Also radio’s John & Ken [same] #
• Ben Stein 2007, meet Ben Stein 2008 [Felix Salmon] #
• Everyone was glad to see Anchorage, Alaska restored as a salmon habitat but then… [Anchorage Daily News via Ted] #

Does this mean we’re not even supposed to sue about them? (”10 Things to Scratch From Your Worry List”, New York Times, Jul. 29).

Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.

The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:

In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …

In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.

Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.

The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.

Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.

Here’s the full February 28 interview:

Continue Reading »

• Significant if true: Ninth Circuit may have finally decided that judges should stop micromanaging Forest Service timber sales [Lands Council v. McNair, Adler @ Volokh]
• GMU lawprof/former Specter aide whose law review output grabbed big chunks of others’ work without attribution doesn’t belong on the federal bench, though he may have a future at Harvard Law [Liptak, NYT; WSJ law blog]
• Update on gift card class actions (earlier) filed by Madison County, Ill.’s mother-daughter team of Armettia Peach and Ashley Peach [MC Record; more background here and here]
• If you regard demand letters from attorneys as menacing and aggressive, maybe you’re one of those “lawyer-haters” with cockamamie notions of loser-pays [Greenfield, and again]
• Just wait till Public Citizen goes after those “charities” that spend more on telemarketing than they raise by it — oh, wait a minute [LA Times via Postrel]
• U.K.: nursery schools urged to report as “racist” incidents in which pre-schoolers say “yuk” about spicy foreign foods [BBC, Telegraph, Taranto; the author speaks, via Michael Winter, USA Today]
• Blawg Review #167 creatively assigns each of 50+ blog posts to its own “state”, though it took some doing to associate us with “Maryland” [Jonathan Frieden, E-Commerce Law]
• I will NOT go around saying Miami-Dade judges are being paid off… I will NOT go around saying Miami-Dade judges are being paid off… [Daily Business Review, earlier]
• “‘I’m thinking of getting disability.’ … This individual figured that [it] was tantamount to a career choice”. [physician blogger Edwin Leap]

• Monday’s polar bear panel at AEI is a panel about the law of polar bears and the effect of the FWS decision to list them as threatened, rather than a panel featuring polar bears. So no fish will be served. Volokh’s Jonathan Adler will be there, though. [Volokh; AEI]
• Limiting lawsuit abuses lowers costs from litigation, creates jobs in long run. [Engler & McQuillan @ Detroit News]
• HBO to small businesses: prepositions are okay, but conjunctions will lead to injunctions. [Baltimore Sun]
• A one-sided love letter to Cozen O’Connor in the Philadelphia Inquirer over its September 11 litigation is a bit too revealing about its deep-pocket searches: “Cozen lawyers also had to be sure that such a defendant made financial sense, for the firm and its clients.” Culpability, of course, isn’t in the equation; and the newspaper story fails to account for the public-policy implications of having trial lawyers stepping on foreign policy. [Philadelphia Inquirer]
• Life imitates “The Office”: law firm offers “love contracts” for dating workers. [ABA Journal]
• More evidence of FDA overwarning, even when the science and law does not justify it. [Kyle Sampson @ Product Liability Law 360]
• Business tries to bully small website with litigation; small website successfully fights back. [CL&P Blog]
• “[Ron] Paul accomplished the one thing he’s always been good at: using political appeals to get people to send money. I don’t feel freer.” [Henley via Kirkendall]
• “It’s infuriating how all three presidential candidates prattle on about the need to fight global warming while also complaining about the high price of gasoline.” [Postrel]
• Story on Vioxx settlement and Merck winning reversals heavily quotes me. [Product Liability Law 360 ($)]

• “I believe it’s frivolous; I believe it’s ridiculous, and I believe it’s asinine”: Little Rock police union votes lopsidedly not to join federal “don/doff” wage-hour lawsuit asking pay for time spent on uniform changes [Arkansas Democrat Gazette courtesy U.S. Chamber]
• Must-read Roger Parloff piece on furor over law professors’ selling of ethics opinions [Fortune; background links @ PoL]
• Too rough on judge-bribing Mississippi lawyers? Like Rep. Conyers at House Judiciary, but maybe not for same reasons, we welcome renewed attention to Paul Minor case [Clarion-Ledger]
• American Airlines backs off its plan to put Logan skycaps on salary-only following loss in tip litigation [Boston Globe; earlier]
• U.K.: Infamous Yorkshire Ripper makes legal bid for freedom, civil liberties lawyer says his human rights have been breached [Independent]
• In long-running campaign to overturn Feres immunity for Army docs, latest claim is that military knowingly withholds needed therapy so as to return soldiers to front faster [New York Rep. Maurice Hinchey on CBS; a different view from Happy Hospitalist via KevinMD]
• Profs. Alan Dershowitz and Robert Blakey hired to back claim that Russian government can invoke U.S. RICO law in its own courts to sue Bank of New York for $22 billion [WSJ law blog, earlier @ PoL]
• Minnesota Supreme Court declines to ban spanking by parents [Star-Tribune, Pioneer Press]
• Following that very odd $112 million award (knocked down from $1 billion) to Louisiana family in Exxon v. Grefer, it’s the oil firm’s turn to offer payouts to local neighbors suffering common ailments [Times-Picayune, UPI]
• AG Jerry Brown “has been suing, or threatening to sue, just about anyone who doesn’t immediately adhere” to his vision of building California cities up rather than out [Dan Walters/syndicated]
• Virginia high school principal ruled entitled to disability for his compulsion to sexually harass women [eight years ago on Overlawyered]

• More on that New Mexico claim of “electro-sensitive” Wi-Fi allergy: quoted complainant is a longtime activist who’s written an anti-microwave book [VNUNet, USA Today "On Deadline" via ABA Journal]
• Your wisecracks belong to us: “Giant Wall of Legal Disclaimers” at Monsters Inc. Laugh Floor at Disneyland [Lileks; h/t Carter Wood]
• New at Point of Law: AAJ commissions a poll on arbitration and gets the results it wants; carbon nanotubes, tomorrow’s asbestos? California will require lawyers operating without professional liability insurance to inform clients of that fact (earlier here and here); and much more.
• Actuaries being sued for underestimating funding woes of public pension plans [NY Times via ABA Journal]
• City of Santa Monica and other defendants will pay $21 million to wrap up lawsuits from elderly driver’s 2003 rampage through downtown farmers’ market [L.A. Times; earlier]
• Sequel to Giants Stadium/Aramark dramshop case, which won a gigantic award later set aside, is fee claim by fired lawyer for plaintiff [NJLJ; Rosemarie Arnold site]
• Privacy law with an asterisk: federal law curbing access to drivers license databases has exemption that lets lawyers purchase personal data to help in litigation [Daily Business Review]
• Terror of FEMA: formaldehyde in Katrina trailers looks to emerge as mass toxic injury claim, and maybe we’ll find out fifteen years hence whether there was anything to it [AP/NOCB]
• Suit by “ABC” firm alleges that Yellow Book let other advertisers improperly sneak in with earlier alphabetical entries [Madison County Record]
• Gun law compliance, something for the little people? A tale from Chicago’s Board of Aldermen [Sun-Times, Ald. Richard Mell]
• Think twice about commissioning a mural for your building since federal law may restrain you from reclaiming the wall at a later date [four years ago on Overlawyered]

“A group in Santa Fe says the city is discriminating against them because they say that they’re allergic to the wireless Internet signal. And now they want Wi-Fi banned from public buildings. … [Arthur] Firstenberg and dozens of other electro-sensitive people in Santa Fe claim that putting up Wi-Fi in public places is a violation of the Americans with Disabilities Act. The city attorney is now checking to see if putting up Wi-Fi could be considered discrimination. But City Councilor Ron Trujillo says the areas are already saturated with wireless Internet.” (Gadi Schwartz, KOB, May 20).

Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:

Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.

More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.

Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

In Alaska; Chevron; climate change; environment; Exxon; global warming; Kivalina; Seattle; stephen susman; Steve Berman; tobacco

We’re requiring you to do it, but we’re also forbidding you to do it, explain the nice folks at Town Hall (Maggie’s Farm, May 4, via Never Yet Melted).

This website is mentioned in an article on allergies and chemical sensitivities in the workplace, specifically on the case of Susan McBride, who’s suing her employer, the city of Detroit, for not preventing a co-worker from wearing perfume to the office (see Jul. 6 and Jul. 18, 2007; earlier Detroit case, May 25, 2005). (Lisa Belkin, “Sickened by the Office (Really)”, May 1).

Another case, this time from Brooklyn, about how it’s terribly discriminatory and wrong and just plain mean for a landlord not to want to rent to a family with small kids on the grounds that old lead paint, dangerous to small kids, can be found on the premises. (Andy Newman, “Couple’s Suit Accuses Real Estate Firm of Bias Against Children”, New York Times, Apr. 25). For a similar case from Baltimore, see Nov. 30, 2000.

To borrow the summary from the highly recommended Arts & Letters Daily: “The British love their trees, but across the land beautiful old trees are being chopped down in their thousands. The reason? Safety rules and hungry lawyers… ” (Michael McCarthy, “Green giants: Our love affair with trees”, Independent (U.K.), Apr. 25). Earlier: Dec. 3, 2006, etc. More: Scott Greenfield says don’t blame the lawyers, blame the towns and other authorities for overreacting.

Longtime Overlawyered readers may remember my tut-tutting the original proprietor of the Bizarro-Overlawyered site for misrepresenting a Southern District of New York opinion by claiming that its disposition of a Rule 12(b)(6) motion was an affirmative finding of fact that Christine Todd Whitman had acted improperly in the wake of the September 11 attacks. (In fact, all the court did was rule that the case could go forward on the allegations of the plaintiffs’ complaint.) The Second Circuit has now spanked the district court for going even that far, and tossed the entire case, ruling that this was not an appropriate inquiry for the judicial branch, given the risk that officials will be deterred from making public statements if they could be held liable for allegedly making a mistake. Good analysis of Benzman v. Whitman by Stephen Bergstein via Bashman.

Whatever the failings of the Army Corps of Engineers, the Flood Control Act of 1928 makes clear that federal taxpayers cannot be forced to pay through litigation for the catastrophic collapse of the levees, so there goes the multi-trillion-dollar class action. (Cain Burdeau and Michael Kunzelman, AP/Forbes, Jan. 30).

Richard Treanor and Carolynn Bissett face criminal charges for not cutting redwoods that have grown to block a neighbor’s panels. (Paul Rogers, “Sunnyvale homeowners told to cut redwoods that block solar panels”, San Jose Mercury News, Jan. 24)(h/t: Karen Myers).

More: Kevin at Truck and Barter thinks the local statute, which includes elements of first-in-time first-in-right, does a relatively good job at drawing bright-line rules to protect the competing legitimate interests of the property owners. For arguably relevant history, check out the old English doctrine of “ancient lights“.