Dahlia Lithwick

November 9-11 – “Politically Incorrect Profiling: A Matter of Life or Death”. Stuart Taylor, Jr. returns to the subject of air passenger profiling in a must-read sequel to his September column: “Political pressure from Arab-American and liberal groups spurred the Clinton and Bush Administrations to bar use of national origin as a profiling component before September 11. … [This] achieved its goal of minimizing complaints, which plunged from 78 in 1997 to 11 in 1998, 13 in 1999, and 10 last year, according to Transportation Department data. It did not work so well at preventing mass murder. On September 11, the CAPS [Computer-Assisted Passenger Screening] system flagged only six of the 19 Middle Eastern hijackers for extra scrutiny, which was apparently confined to the bags of the two who checked luggage. None of the 19 men or their carry-ons appear to have been individually searched. And the FAA’s 1999 decision to seal CAPS off from all law enforcement databases — after complaints from liberal groups that criminal records were error-prone — may help explain why the FBI had not told the FAA that two of the 19 were on its watch list of suspected terrorists.” Incredibly, the Bush Administration has signaled that it’s sticking to the current ban on letting airlines do national-origin passenger profiling. (National Journal/The Atlantic, Nov. 6) See Oct. 3-4; also Richard Cohen, “Profiles in Evasiveness”, Washington Post, Oct. 11).

MORE: This makes a good time to catch up on Taylor’s columns since the attacks, all recommended: index; “The Bill to Combat Terrorism Doesn’t Go Far Enough”, Oct. 31; “The Media, the Military, and Striking the Right Balance”, Oct. 23; “The Rage of Genocidal Masses Must Not Restrain Us”, Oct. 16; “Wiretaps Are An Overblown Threat To Privacy”, Oct. 10; “How To Minimize the Risks of Overreacting to Terrorism”, Oct. 2; “Thinking the Unthinkable: Next Time Could Be Much Worse”, Sept. 19.

November 9-11 – Must be the Ninth Circuit, right? Yep, it is: in a September ruling, the much-reversed West Coast federal appeals court “discovered that male inmates in prisons have a ‘fundamental’ right to procreate by artificial insemination,” and thus to become daddies via FedEx delivery (George Will, “Inmates and Proud Parents”, Washington Post, Nov. 8).

November 9-11 – Infectious disease conquered, CDC now chases sprawl. The Centers for Disease Control were established to combat outbreaks of infectious disease, but have been steadily expanded and politicized to the point where the agency has recently crusaded against “epidemics” of gun ownership, tobacco use and domestic violence. The newest initiative of agency officials? A joint effort with the Sierra Club to put over the notion that housing sprawl is a public health risk, in part because suburbanites don’t get exercise walking to shops or work the way many city dwellers do — though you’d think their bigger yards and easier access to outlying recreational areas might give them more chance to exercise in other ways. Vincent Carroll pokes several holes in this theory, noting for example that Colorado, an archetypal suburban-sprawl state, has the country’s lowest rate of obesity (”Once more into the big, bad suburbs”, Rocky Mountain News, Nov. 3; Richard J. Jackson, M.D. (director of CDC’s National Center for Environmental Health), and Chris Kochtitzky (associate director for policy and planning at NCEH’s Division of Emergency and Environmental Health Services), “Creating A Healthy Environment: The Impact of the Built Environment on Public Health”, SprawlWatch Clearinghouse Monograph Series, report in PDF format; Washington Times, “Sprawl alert” (editorial), Nov. 8). Then there’s the CDC’s own recent finding, which goes unmentioned on the Sierra Club’s page, that suburban areas boast better public health indicators than either cities or rural areas (”HHS Issues Report On Community Health in Rural, Urban Areas”, CDC press release, Sept. 10). Given the agency’s performance in the anthrax affair, where it has been left playing desperate catchup to close the gaps in its knowledge base and capabilities, we hope budgeters realize that it can ill afford to squander its resources and credibility on this kind of thing. (See InstaPundit, Oct. 24). (DURABLE LINK)

November 9-11 – Welcome JerryPournelle.com readers. On his “Computing at Chaos Manor” website, the famous science fiction writer and polymath recommends: “If you have any extra time, take a look at Overlawyered.com to see just what our legal system is capable of…” (Thursday’s entry — after this week an archive search will be required, look for Nov. 8). Not only is Pournelle a Macaulay fan, but he’s completely sound on the proposition that wars should be declared (our takes on the former, latter). We’ve also recently been linked by Robert Longley in his About.com sites on U.S. Government Info — specifically, in the environment and gun control subsections. Longley cites our environment page as offering “some fascinating reading” and gives a “Best of the Net” designation to our gun page: “an excellent resource to important gun-related cases”, he calls it.

November 7-8 – Vaccine industry perennially in court. Why are drug companies so chary about participating in the vaccine business? As a medical intervention administered to otherwise healthy persons, vaccination is easy to blame when recipients are later struck by otherwise inexplicable medical problems, and it’s not easy to distinguish genuine (often rare) side effects from unexplained maladies that would have struck just as frequently in the absence of vaccination. Although an Oct. 1 report from the National Academy of Sciences’ Institute of Medicine found no evidence that children have suffered autism or other brain damage from vaccines employing trace amounts of mercury-containing thimerosal as a preservative (as well as no disproof of that scary proposition), a consortium of plaintiff’s law firms was undeterred from piling on a day or two later with mass lawsuits against Merck, Lilly, Abbott, Glaxo SmithKline, and numerous other firms (IOM press release, study; American Medical Association; William McCall, “Drug Companies Sued Over Vaccines Containing Traces of Mercury”, AP/law.com, Oct. 3; “Immune to Reason” (editorial), Wall Street Journal, Oct. 23 (online subscribers only)). For the history of lawsuits charging that the diphtheria- tetanus- pertussis (DTP) and measles, mumps, and rubella (MMR) childhood vaccines cause autism and brain damage, see Aug. 31; American Medical Association; Howard Fienberg, “This Vaccine Won’t Hurt at All”, National Post (Canada), March 22; Howard Fienberg, “There’s No Vaccine Against Irrational Fears”, San Francisco Chronicle, July 5, 2000 (both reprinted at STATS site with long list of links appended).

The troubled recent production history of the anthrax vaccine administered to members of the U.S. military has been matched by an equally troubled legal history (Vanessa Blum, “At War Over Anthrax”, Legal Times, Oct. 23; Matt Fleischer-Black and Bob Van Voris, “Anthrax Vaccine’s Liability Issue”, National Law Journal, Oct. 23). On a personal level all this has tended to hit home for us with the word that our friend Mark Cunningham of the New York Post editorial page has been diagnosed as victim #18 in the anthrax attacks, and the third employee at the paper to contract the illness; it’s just a skin case and he’s doing fine (”really no big deal,” he says). “Fight Terror; Buy the Post” is his new slogan.

November 7-8 – Sued if you do dept.: co-worker’s claim of rape. For years now, HR compliance manuals have been warning that employers face liability if they fail to launch prompt and vigorous investigations when female employees charge male colleagues with sexual harassment, and the more serious the alleged harassment, the more trouble the company is in if it fails to investigate. But now a Philadelphia jury has awarded $150,000 to a male employee against his employer, chemical company Rohm & Haas, which he said invaded his privacy by subjecting him to an embarrassing police-style interrogation after a female co-worker wrongly accused him of rape. The employee’s attorney, Richard Silverberg, “said he believes the company had no business investigating the incident at all. ‘Rape is a police matter. An employer shouldn’t be undertaking to investigate whether a rape occurred,’ Silverberg said.” The jury also found the woman had defamed the man by making false accusations, but declined to order her to pay him any money. (Shannon P. Duffy, “Employee Awarded $150,000 After Co-Worker Falsely Accuses Him of Rape”, The Legal Intelligencer, Oct. 24).

November 7-8 – Byways of intellectual property law. They include this 1993 patent, called to our attention by one of our readers, for a laser-assisted cat-exerciser (US5443036: Method of exercising a cat — issued Aug. 22, 1995, filed Nov. 2, 1993) (Delphion.com).

November 7-8 – “They’re Making a Federal Case Out of It . . . In State Court”. Everything you wanted to know about why big class actions of nationwide scope belong in federal, not state court, from John H. Beisner and Jessica Davidson Miller of O’Melveny & Myers, in a paper for a forthcoming Harvard Journal of Law and Public Policy and the Manhattan Institute’s Center for Legal Policy (with which this site’s editor is affiliated). (No. 3, Sept. 2001: html, PDF formats). For frequent updates on new publications from the Manhattan Institute, whose areas of special focus include not only legal policy but education, urban policy (including New York’s recovery), taxation, crime and many other subjects, many of them covered in the acclaimed publication City Journal, we recommend signing up for the Institute’s free announcement list.

November 6 – NBC mulls Brockovich talk show. “NBC said this week it will feature Erin Brockovich in a pilot for a one-hour syndicated talk show that could begin airing as soon as early next year.” Writing for TechCentralStation.com, Sallie Baliunas and Nick Schulz are not impressed, calling Brockovich “the poster figure for trial lawyer excess and the assault on sound science”. (”Trial Lawyer TV: NBC Announces New Erin Brockovich Program”, Oct. 24; our take, “All About Erin”).

November 6 – In the mean time, let them breathe spores. “The U.S. Postal Service has bought millions of protective masks to guard its 700,000 workers who handle mail against inhaling anthrax spores, but postal workers are not allowed to use the masks until they are trained under Occupational Safety and Health Administration (OSHA) rules. On the advice of health officials at the federal Centers for Disease Control and Prevention (CDC) in Atlanta, the Postal Service bought 4.8 million of the spore-proof masks for its workers who handle mail and began offering workers the masks last week. But according to OSHA officials and regulations, the workers must undergo hours of training and pass a ‘fit test’ before they can be allowed to use the protective masks, which are like those worn by construction workers who install drywall and can be purchased at hardware stores.” (Daniel F. Drummond, “OSHA halts mask use in Postal Service”, Washington Times, Nov. 2).

November 6 – Gun controllers on the defensive. “Though gun-control groups have tried to capitalize on the Sept. 11 attacks, those attempts have misfired.” Indeed, the recent events have pointed up the questionable nature of several of the gun control movement’s underlying tenets: “that violence – even against a criminal – is always bad, that ordinary people are not to be trusted, and that it is best to let the authorities look out for you. … Americans have learned that being harmless does not guarantee that they will not be harmed”. (Glenn Harlan Reynolds, “Terrorists Attacked Gun Control Movement”, FoxNews.com, Nov. 4; George Will, “Armed Against Terrorism”, Washington Post, Nov. 4). Another major setback to the gun-confiscation cause came last month with the Fifth Circuit’s important decision in U.S. v. Emerson making clear that the Second Amendment protects an individual right to gun ownership (David Kopel and Glenn Reynolds, “A Right of the People”, National Review Online, Oct. 25; Michael Barone, “A decision of historic importance”, U.S. News, Oct. 19; Jacob Sullum, “Second Sight”, Reason Online, Oct. 23). For the Taliban’s version of gun control, see Reynolds’s Instapundit (Oct. 24). Go into the kitchen, said Winston Churchill, and get a carving knife: Michael Barone, “Time to stand and fight”, U.S. News, Nov. 11.

November 5 – Talk of torture. “It’s the sort of question that, way back in spring semester, would have made for a good late-night bull session in a college dorm room: If an atomic bomb were about to be detonated in Manhattan, would police be justified in torturing the terrorist who planted it to learn its location and save the city? But today, the debates are starting up in the higher reaches of the federal government. And this time, the answers really matter.” (Steve Chapman, “Should we use torture to stop terrorism?”, Chicago Tribune, Nov. 1; Dahlia Lithwick, “Tortured Justice”, Slate, Oct. 24).

November 5 – Judge may revive “Millionaire” ADA case. Citing the U.S. Supreme Court’s ruling in favor of golfer Casey Martin, a federal judge has indicated that he may revive a dismissed suit, now on appeal, in which disabled plaintiffs charged that the qualifying rounds of ABC’s “Who Wants To Be a Millionaire” unlawfully fail to provide accommodations that would allow deaf or paralyzed applicants to answer questions over the telephone. (Susan R. Miller, “Federal Judge Seeks Rerun of ‘Millionaire’ ADA Case”, Miami Daily Business Review, Nov. 1). And in what promises to be a much-watched case, the U.S. Supreme Court has agreed to review the Ninth Circuit’s ruling in favor of Mario Echazabal in his ADA suit against Chevron Corp. over a refinery job, “contending that he should have gotten the job despite a chronic case of hepatitis C. Doctors who examined Mr. Echazabal said exposure to chemicals at the refinery would speed the deterioration of Mr. Echazabal’s liver and that a large exposure from a plant fire or other emergency could kill him.” (”Justices to decide if ADA protects hepatitis patient”, AP/Dallas Morning News, Oct. 31). Dissenting judge Stephen Trott called the result “unconscionable” and noted that it “would require employers knowingly to endanger workers” in pursuit of the nondiscrimination ideal. (”Needlessly endangering workers” (editorial), Las Vegas Review-Journal, Oct. 30).

November 5 – “Teen sex offenders face years of stigma”. “He was 16, wanting to be one of the guys, playing truth or dare. The dare: touch a girl’s breast during a football game at Hazel Park High School last year [outside Detroit]. He did. As a result, the boy will be branded as a sex criminal until the year 2024.” (L.L. Brasier, Detroit Free Press, Oct. 15) (via iFeminists.com).

November 2-4 – Opponents of profiling, still in the driver’s seat. Hiring for a job that involves, say, transporting petroleum, caustic chemicals or other hazardous materials? Don’t you dare apply any extra scrutiny to driver-applicants of Mideast origin, experts warn. Federal anti-discrimination law bans employer policies or interview questions that relate in any way to religion, ethnicity, or national origin and the Equal Employment Opportunity Commission has put out word that its commitment to this policy is in no way altered by the events of Sept. 11. “Experts say that companies must be careful to apply equally to all job applicants any beefed up prejob screening. Companies can’t, for example, run criminal background checks only on their Middle Eastern job applicants.” It’s also extremely hazardous as a legal matter to contact law enforcement about any unusual pattern of behavior involving one or more employees of Mideast origin unless one is prepared to show in court that one would have acted just as quickly to report the same unusual pattern in employees of Welsh or Korean or West Indian extraction. Hey, we may be sitting ducks, but at least we’re non-discriminatory sitting ducks, right? And of course if someone uses one of your trucks to cause harm you can expect to be sued for every dime you’re worth to compensate the survivors (Deirdre Davidson, “Rethinking the Workplace After Sept. 11″, Legal Times, Oct. 17).

Fourteen Syrian men arrived at Dallas/Fort Worth Airport last month to enroll in U.S. flight schools; although “their country is one of seven on the State Department’s ‘watch list’ of nations that sponsor terrorism,” they were waved through, there still being no official policy that would pose the slightest impediment to their obtaining such training here (Ruben Navarrette, “Flight training for Syrians should raise red flags”, Dallas Morning News, Oct. 19). The Associated Press, describing reports of extra scrutiny given to air passengers of Middle Eastern descent, quotes a parade of sources who deplore such scrutiny but not a single source willing to say there might be good reasons for it, although majorities of both blacks and Arab Americans have supported passenger profiling in post-Sept. 11 polls. (”Some travelers suspect profiling”, AP/CNN, Oct. 21). “A traveler, no less a potential immigrant, with a passport from Yemen and visas from Lebanon and Qatar should receive greater scrutiny — not harassment, but careful scrutiny — than a traveler with a passport from Chile and a visa from Spain. That is not racism; it is prudence — an objective assessment of where the threat resides. To do otherwise after September 11 would constitute extraordinary negligence,” writes Martin Peretz (”Entry Level”, The New Republic, Oct. 15). Before jumping into any proposal to apply heightened scrutiny to residents of Arab descent in this country, however, it should be recalled that the vast majority of Arab-Americans are in fact of Christian, not Muslim, descent, which makes them especially unlikely targets of recruitment efforts by bin Laden cell organizers. (Smart — and Stupid — Profiling”, Chris Mooney, The American Prospect, Oct. 23). (DURABLE LINK)

MORE: Air Canada has assured the Canadian Arab Federation that it has no policy of coordinating with police about passengers with Arabic-sounding names who check in on its flights (Jamie Glazov, “Discrimination a Must For Protection Against Islamic Terrorism”, FrontPage, Sept. 24). On Sept. 22 a United Air Lines flight crew prevented M. Ahsan Baig, a Pakistani man who works for a California high-tech company, from boarding a flight bound from the West Coast to Philadelphia. “A customer service manager repeatedly apologized to Baig for the incident and immediately got him on another flight,” but he’s suing the airline anyway (Harriet Chiang, “Man barred from flight sues airline”, San Francisco Chronicle, Oct. 30). Also see Jason L. Riley, “‘Racial Profiling’ and Terrorism”, OpinionJournal.com, Oct. 24; Jonah Goldberg, “In current context, racial profiling makes sense”, TownHall, Oct. 26; Allison Sherry, “Profile protest ignites debate”, Denver Post, Oct. 21 (sensitivity training demanded after incident at a Radio Shack). See Sept. 19-20, Oct. 3-4, Oct. 9.

November 2-4 – Updates. Digging deep into our backlog in search of items we can call good news:

* Gov. Bob Taft has signed a bill reversing some of the most extreme aspects of the Ohio Supreme Court’s recent jurisprudence expanding the bounds of employer-provided auto insurance. The new law went into effect Oct. 29 on a prospective basis, but judicially mandated retroactive liability will still cost employers more than $1.5 billion in estimated claims currently in the pipeline. (Ohio Chamber of Commerce, summary, “Uninsured/ Underinsured Motorists Availability Act of 2001“; see June 29 and David J. Owsiany, “Judicial tyranny in Ohio”, Buckeye Institute, 2000).

* Following urgings in this space (do you think we had an effect?), the U.S. Department of Justice has reversed its previous position and asked federal judges “to drop thousands of upstate property owners as defendants in lawsuits by Indian tribes to recover land they contend New York State took from them illegally in the 19th century.” (see Nov. 3, 2000 and commentaries linked there) (Richard Perez-Peña, “Justice Dept. Moves to Drop Homeowners In Tribes’ Suits”, New York Times, Aug. 4, not online)

* Courts have generally been frowning on the idea of letting companies milk their insurance policies for the cost of fixing Y2K computer problems, which was the goal of an attempt by creative policyholder lawyers to reinterpret an old marine insurance doctrine known as “sue and labor”. (Celia Cohen, “Y2KO’d: Unisys Damage Suit Voluntarily Dismissed”, Delaware Law Weekly, Aug. 30; Sept. 16, 1999).

November 2-4 – Ambulance driver who broke for doughnuts entitled to sue. “A federal judge has denied the city of Houston’s request to throw out a lawsuit filed by a former ambulance driver fired after he stopped for doughnuts while transporting a patient to a hospital.” On July 10, 2000 Larry Wesley made a snack stop while transporting an injured youth to Ben Taub Hospital; the boy’s mother filed a complaint, and Wesley subsequently lost his job. But U.S. District Judge Lee Rosenthal said Wesley could proceed with his suit charging that had he been white rather than black he would not have been disciplined as severely for the lapse. (Rosanna Ruiz, “Judge refuses to toss suit by ambulance driver fired after doughnut stop”, Houston Chronicle, Oct. 31)(& update Jun. 28-30, 2002: Wesley loses case). (DURABLE LINK)

November 1 – Cipro side effects? Sue! In a welcome if somewhat belated move, public health authorities have advised the public that the normally indicated treatment for suspected exposure to the current round of anthrax attacks should be older antibiotics such as doxycycline rather than the extremely potent antibiotic Cipro, which is best reserved for infections that do not yield to conventional germ-killers. The German drug and chemical company Bayer, having been whipped up one side of the street for its perceived reluctance to hand out Cipro to everyone among the worried well who feels they would like some, might end up getting whipped down the other because it failed to dissuade consumers from using the drug, given the side effects some will likely suffer from it. “Cipro, or ciprofloxacin, is one of several fluoroquinolones, a controversial class of antibiotics that can cause a range of bizarre side effects: from psychological problems and seizures to ruptured Achilles tendons. … Fluoroquinolone users who have suffered severe side effects call themselves ‘floxies’ and have created their own Web site ["Quinolone Antibiotics Adverse Reaction Forum"]. … The Philadelphia law firm Sheller Ludwig Badey has been involved in about two dozen cases of severe quinolone side effects.” (Tara Parker-Pope, “Health Journal: Surge in Use of Cipro Spurs Concerns About Side Effects”, Wall Street Journal, Oct. 26 (online subscribers only)) Lawyers have already jumped all over Bayer over claimed side effects from its cholesterol-lowering drug, Baycol (Ruth Bryna Cohen, “More Locals Jump on Baycol Bandwagon”, The Legal Intelligencer (Philadelphia), Aug. 31).

November 1 – Swiss banks vindicated. A four-year investigation has concluded that “[m]ost dormant Swiss bank accounts thought to have belonged to Holocaust survivors were opened by wealthy, non-Jewish people who then forgot about their money.” Although officials at first assumed that a large share of the 10,000 older dormant accounts would turn out to be those of Nazi victims, only about 200 were, accounting for around $10 million. A public relations and litigation campaign led by American trial lawyers forced Swiss banks into a $1.5 billion settlement of claims that they withheld money from Holocaust victims’ families. (Adam Sage and Roger Boyes, “Swiss Holocaust cash revealed to be myth”, The Times (London), Oct. 13; see Aug. 29, 2000; May 31, 2000 (second item); Feb. 5, 2000 (second item); Aug. 25, 1999).

November 1 – Words as property: “entrepreneur”. How common does a common English word have to be before it’s okay to use it as a domain name without fear of being sued? The magazine named Entrepreneur has made legal rumblings suggesting that it violates its trademark rights for an unrelated entity to run a website entitled Entrepreneurs.com. The latter site does not plan to fold its tent quietly, however, and has mounted a vigorous defense of its position.

Tagged as: ACLU, Atlanta, Canada, Chevron, Colorado, Dahlia Lithwick, Dallas, Delaware, Denver, Detroit, domestic violence, Erin Brockovich, Germany, hospitals, Houston, Manhattan Institute, Ohio, Philadelphia, Spain, Switzerland, tobacco, trademark, vaccines