“The Juneau-Douglas (Alaska) School District and former student Joseph Frederick have reached a settlement in the ‘Bong Hits 4 Jesus’ case …. The school district will pay Frederick $45,000, [and] it is ‘required to hire a neutral constitutional law expert to chair a forum on student speech’ at its high school at a cost of up to $5,000.” (DRJ @ Patterico, Nov. 6; earlier).

P.S. And, yes, to clarify in response to commenter Melvin, the student lost his high-profile case last year before the U.S. Supreme Court. Imagine what the school would have had to pay if he’d won.

Manhattan Institute fellow Marie Gryphon, in National Review, on the state’s loser-pays rule:

Alaska’s unique rule is a product of its history. When the United States purchased Alaska from Russia in 1867, the icy wilderness had so few inhabitants that the U.S. neglected to establish immediately any civil law there at all. Congress instituted a civil legal system for Alaska in 1884 through an Act that borrowed from Oregon’s civil code and applied it to the new territory virtually wholesale. At that time, an Oregon statute allowed the prevailing party in a civil suit to recover attorney’s fees from the loser. While Oregon unwisely dumped its loser-pays rule eventually, Alaska embraced loser pays and stuck with it. …

The Alaska Judicial Council conducted a review of Alaska’s loser-pays rule in 1989 and found that, while the law could not deter filings by irrational plaintiffs, it did reduce the number of low-merit lawsuits in Alaskan courts. The Council also found that a majority of Alaskan attorneys liked the system and believed that it functioned well.

(cross-posted from Point of Law).

• 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] #

• High-profile trial lawyer and Hillary fundraiser John Coale now backing McCain, believes plaintiff-friendly Sen. Lindsey Graham, a confidant of the GOP candidate, will sway him on liability issues [Gerstein, NY Sun, Tapper/ABC, Haddad/Newsweek] More on McCain-Graham friendship [New Republic]
• Reasonably neutral evaluation of contrasting McCain and Obama positions [Chris Nichols, NC Trial Law Blog]
• No Naderite he? Sen. Biden has generally taken a “protect the golden goose” approach toward his state’s niche as provider of corporate law [Pileggi, Bainbridge]
• Palin’s views on legal reform mostly unknown; Alaska (like Delaware) has one of the most highly regarded state legal systems, and wouldn’t it be fun if the state’s distinctive and longstanding (if somewhat attenuated) loser-pays rule got mentioned in the campaign?
• Lending spice to campaign: prospect that victorious Dems might criminally prosecute Bush officials [Guardian (U.K.), Memeorandum, OpenLeft ("we'll put people in prison" vows whistleblower trial lawyer/Democratic Florida Congressional candidate Alan Grayson)] Some differences of opinion among Obama backers on war crimes trials [Turley (Cass Sunstein flayed for go-slow approach); Kerr @ Volokh (Dahlia Lithwick doesn't think it has to be Nuremberg or nothing); earlier]
• If anyone’s keeping track of these things, co-blogger Ted is much involved with the McCain campaign this fall, I am not involved with anyone’s, so discount (or don’t discount) accordingly.

Perhaps a candidate for the “Damned if you do, damned if you don’t” files? From Gov. Sarah Palin’s ethics disclosure form to the Attorney General of Alaska concerning allegations that she improperly sought the removal of Alaska state trooper Mike Wooten, an estranged brother-in-law who’d made threats against her family:

It was a matter of public importance that some Alaska State Troopers seemed to feel themselves above the law. Beyond the governor’s own personal experience, the state was sued for troopers’ violations of constitutional rights, occasionally losing jury trials that would cost the taxpayers substantial money. And, of course, such abuses of power by troopers are exactly the kind of corruption that the governor has long opposed. On occasion, Governor Palin would let Monegan know that she felt this was a problem within the Department of Public Safety; Monegan has told the press that at least once the Governor included mention of Wooten as a prime example of someone who was a problem within the department. Monegan himself told the Washington Post about an e-mail Governor Palin sent him after he informed the governor about one such jury trial loss.

(courtesy Anchorage Daily News, PDF — see p. 9, paragraph 45)(background: WaPo, CNN). More: Beldar.

Jeralyn Merritt @ TalkLeft and Jonathan Adler @ Volokh identify one data point.

P.S.: via comments, Robert Ambrogi at Legal Blog Watch has more.

“Find out where he lives, find out where his kids go to school,” said former (two-term) Alaska Sen. Mike Gravel, according to FoxNews.com’s report of a tape of remarks made by Gravel to a Washington, D.C. crowd last week. (”Former Presidential Candidate Urges Crowd to Stalk Federal Prosecutor”, Aug. 5)(via Taranto).

Selling a dozen or two t-shirts and onesies with that slogan was enough to get Alaska artist Barbara Holmes a cease and desist letter from the milk marketing people (the supermarket cow kind of milk). Holmes explains that the commodities underlying the two slogans are unlikely to be confused with each other in the marketplace: “They’re two different kind of jugs.” (Elefant, Legal Blog Watch, Jul. 25; Roger Shuy, Language Log, Jul. 28). More: David Giacalone, who also has some very kind words for us toward the end.

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

• Judge allows lawsuit to go forward as class action claiming consumers defrauded because gasoline expands in summer heat and so there’s less in a “gallon” [KC Star, TodaysTrucking.com; earlier at PoL]
• Online speech: when a lawprof says it silences someone not to let them sue for defamation, it’s time to check definitions [Reynolds, Bainbridge, Volokh]
• Should a law school invite Lerach of all people to teach legal ethics? [Massey/Faculty Lounge; earlier] Plus: Congress should investigate how widespread Lerach-style abuses were at other law firms [Columbus Dispatch editorial]
• Usually no one gets hurt when a physician dodges having to deal with a litigious patient, but then there are those emergencies [Brain Blogger]
• A lesson for Canada: judged by results in places like Kansas, the American approach to hate speech (i.e., not banning it) seems to work pretty well [Gardner/Ottawa Citizen]
• “Way way too egocentric”: a marketing expert’s critique of injury law firm websites [Rotbart/LFOMA via ABA Journal]
• More students are winding up in court after parodying their teachers on the Internet [Christian Science Monitor]
• Money in the air? It happens the quiet little Alaskan Native village suing over global warming is being represented by some lawyers involved in the great tobacco heist [NY Times]
• Ninth Circuit panel hands Navy partial defeat in enviro whale sonar suit; ditto federal court in Hawaii [Examiner; earlier]
• Le Canard Noir “Quackometer” flays pseudo-science, some of its targets complain to ISP which then yanks the site: “We do not wish to be in a position where we could be taken to court” [Orac; earlier]
• Hans Bader guestblogged at Point of Law last week, on such subjects as: courts that decide punishment before damages; presumed guilty of child abuse? inconsistent straight/gay treatment in sexual harassment law; and signs that today’s Supreme Court doesn’t exactly show a pro-business bias in discrimination cases.

• Protection of ugly garage views? Garrison Keillor vs. neighbors in St. Paul, Minn. [NYTimes]
• If you’re a lawyer who practices before the south Florida bench, it’s not a recommended career move to use a blog to call one of its judges an “evil, unfair witch” [WSJ Law Blog]
• Nonprofit sleep-off center that takes in drunks sued after rescuing man who then succeeds in laying his hands on more liquor and drinking himself to death [Anchorage Daily News]
• New Starbucks offering of “skinny” drinks “could easily be considered a form of size discrimination” and lead to litigation, complains ticked-off barista [StarbucksGossip]
• Appearance of impartiality? West Virginia high court judge cavorted on Riviera with coal exec whose big case was pending before his court [Liptak/NYT] Update: Now recused, per WV Record.
• Retired drug enforcement officers sue Universal Studios, saying they were defamed as a group by “American Gangster” [MSNBC]
• Not much likelihood of confusion: shirtmaker Lacoste can’t keep two dentists in Cheltenham, England from using toothy crocodile as logo for their practice [Reuters]
• People seized randomly off street for compulsory jury duty in St. Johnsbury, Vt. and Greeley, Colo. [AP/Findlaw via KipEsquire, Greeley Tribune]
• Federal judge orders attorney Robert Arledge of Vicksburg, Miss. to pay $5.8 million in restitution after conviction for organizing bogus fen-phen claims [Clarion-Ledger; earlier]
• Canada: abuser of crystal meth successfully sues her drug dealer [BBC]
• Animal rights group tries to shut down “happy cows” ad campaign [three years ago on Overlawyered]

• Can’t possibly be true: Tampa man sentenced to 25 years for possession of pills for which he had a legal prescription [Balko, Hit and Run]


• Plaintiff’s lawyers “viewed [Sen. Fred Thompson] as someone we could work with” and gave to his campaigns, but they can’t be pleased by his kind words for Texas malpractice-suit curbs [Washington Post, Lattman; disclaimer]


• Pace U. student arrested on hate crime charges after desecrating Koran stolen from college [Newsday; Volokh, more; Hitchens]


• Little-used Rhode Island law allows married person to act as spouse’s attorney, which certainly has brought complications to the divorce of Daniel and Denise Chaput from Pawtucket [Providence Journal]


• Lott v. Levitt defamation suit kinda-sorta settles, it looks like [Adler @ Volokh]


• Trial lawyer Mikal Watts not bowling ‘em over yet in expected challenge to Texas Sen. Cornyn [Rothenberg, Roll Call, sub-only via Lopez @ NRO]


• Frankly collusive: after Minnesota car crash, parents arrange to have their injured son sue them for negligence [OnPoint News]


• Canadian bar hot and bothered over Maclean’s cover story slamming profession’s ethics [Macleans blog]


• Five Democratic candidates (Clinton, Obama, Edwards, Biden, Richardson) auditioned at the trial lawyers’ convention earlier this month in Chicago [NYSun]


• Donald Boudreaux’s theory as to why Prohibition ended when it did [Pittsburgh Trib-Rev via Murray @ NRO]


• Speaker of Alaska house discusses recent strengthening of that state’s longstanding loser-pays law [new at Point of Law]

Among the nightmare scenarios of global warming, there’s one only now coming into view – and it’s definitely manmade: As predictable as the rising seas, we can expect a flood of class-action lawsuits trying to cash in on the issue.

Climate change promises to be “a lucrative new field” for the tort bar reports the Newark Star-Ledger. A Rutgers law professor predicts that global warming will make for “one of the biggest legal practices in the next 20 years.” (The Star-Ledger, 7/8/07)

The opinion is shared by the president of the World Resources Institute: “Companies that generate significant carbon emissions,” he warns, “face the threat of lawsuits similar to those common in the tobacco, pharmaceutical and asbestos industries.” (The Toronto Star, 4/29/07)

And if you thought asbestos and tobacco litigation were profitable, try to imagine all the “mass tort” cases that global warming will inspire. Energy companies, coal mines, any firm at all that generates carbon dioxide – these industries and many more can expect to find themselves accused of causing climate change.

Some law firms already have “climate-change groups” studying the possibilities. Another hint of things to come was a class action suit was filed on behalf of Mississippi residents against oil and coal companies after Hurricane Katrina – arguing that company emissions caused the climate change that caused the hurricane. (Star-Ledger, 7/8/07).

In Alaska, the Inuits claim that their island is sinking because of global warming. The aggrieved islanders haven’t decided who to sue yet – but they’ve got a Houston trial lawyer working on it. (Star-Ledger, 7/8/07)

All of which proves nothing at all about the actual causes or dangers of global warming. It’s just more evidence of a climate of greed and opportunism in the trial bar. And that’s one climate that never changes.

Steve Hantler

The exotic dancers’ lawsuit against Anchorage strip clubs Fantasies on 5th Avenue and Crazy Horse cites the Alaska Wage and Hour Act and seeks class-action status. Key quote: “This isn’t about how much money I make in tips,” said dancer Jennifer Prater. “This is about wage and hour laws.” A 1987 Alaska Supreme Court ruling rejected clubs’ contention that the dancers were independent contractors as opposed to employees. (Megan Holland, Anchorage Daily News, Sept. 6).

We’re lucky the internet is going to be regulated by lawmakers with such a profound understanding of how it works. (Wired.com/27B Stroke 6, Jun. 29)(via Nobody’s Business who got it from Boing Boing).

Reacting to the recent Philip Morris decision (PoL Dec. 15, etc.), the columnist is in righteous form:

The Illinois Supreme Court’s ruling stimulated the market for “tobacco-revenue munis.” Those are municipal bonds backed by tobacco revenue streams resulting from a real fraud — the Master Settlement Agreement. In 1998, 46 states conspired to seize $246 billion from companies that sell products made from a commodity — tobacco — the cultivation of which was then subsidized by the federal government….

The MSA is a deal struck between the state attorneys general and trial lawyers. For the latter, it was a financial windfall, netting about $13 billion in fees that sometimes amounted to tens of thousands of dollars per hour of work. For the former, it was a political windfall, enabling their states to finance this and that with billions paid by smokers, who are disproportionately low-income people….

The states’ ability to continue treating the tobacco industry as a “budgetary Alaska” — the last frontier for exploitation — depends on brisk sales of cigarettes far into the future. So all 50 states, which in 2004 reaped $12.3 billion in cigarette taxes, have an incentive to carefully calibrate these taxes so as to maximize revenue. They want high taxes, but not high enough to cause large numbers of smokers to quit the habit that is so lucrative to states.

(”The States’ Tobacco Addiction”, syndicated/Washington Post, Jan. 1)(more on tobacco litigation).

Many physicians in Alaska sighed with relief this summer when a jury for the second time ruled in favor of Anchorage general surgeon James O’Malley, finding that O’Malley “had given enough information to patient Vicki Marsingill over the phone for her to make an informed decision about whether to go to the hospital emergency department. Marsingill experienced complications after she decided not to follow Dr. O’Malley’s advice.” An initial verdict in Dr. O’Malley’s favor was thrown out because of improper jury instructions. The case raised questions about how forcefully doctors are expected to respond when counseling a potentially noncompliant patient to seek treatment. In Alaska, a state where consultation-by-phone is common given the great geographical distances, the case also “sparked debate …over how much information doctors should give patients over the phone and how much responsibility falls to patients. Some physicians have stopped taking phone calls after hours and instead instruct patients to go to an emergency department or call 911.” (Tanya Albert, “Alaska physician wins case on ignored medical advice”, American Medical News (AMA), Jun. 7; “Alaska bill offers immunity when advice is ignored”, Mar. 22-29; more on case).

Updating our reports of last Dec. 14 and Jul. 30: a judge in Alaska has approved a plan to divide $40 million in settlement proceeds from a lawsuit charging price-fixing in purchases of Alaskan sockeye salmon. Plaintiff’s lawyers will get $16.4 million in fees and expenses, defendants who prevailed in court will get $13.8 million to pay their lawyers and legal costs, and plaintiff fisherman will share less than $10 million. (”Court approves salmon lawsuit settlement”, AP/Anchorage Daily News, Feb. 6)