Jurists behaving badly dept.:

According to the commission report, [Niagara Falls, N.Y. city court judge Robert] Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.

About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. … After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.

The New York state Commission on Judicial Conduct removed Restaino from office Tuesday, calling his action “a gross deviation from the proper role of a judge.” (Janine Brady, “Panel gives judge a ringing rebuke”, CNN, Nov. 28; Elefant, Nov. 28).

Something unusual in the Yale Law Journal: an article that takes a not entirely enthusiastic view of the continued spread of domestic restraining orders. Under such orders (some earlier posts) allegations of spousal abuse, whether or not eventually proven at trial and whether or not withdrawn by the accuser, can trigger highly burdensome sanctions against the accused spouse, including a prohibition on entering his or her own home. Harvard Law assistant professor Jeannie Suk says the process can amount to “de facto state-imposed divorce” and greatly increases the power of the state to reach into and reorder family life, sometimes against the will of both parties. (”Criminal Law Comes Home”, Oct., abstract leads to PDF of full version)(via Pattis). In response, a second law professor argues that current legal trends appropriately treat alleged domestic violence as a crime against the state and not just against the nominal victim, and that it is wrong to place too much emphasis on accusers’ supposed right to forgive abusive conduct (Cheryl Hanna, “Because Breaking Up Is Hard To Do”, The Pocket Part, Oct. 12)(& welcome Ron Coleman/Dean Esmay readers).

• Tennie Pierce update: only 6 out of 15 members vote to override mayor’s veto of $2.7M dog-food settlement (Nov. 11). [LA Times]
• Reforming consumer class actions. [Point of Law]
• Judicial activism in Katrina insurance litigation in Louisiana. [Point of Law; Rossmiller; AEI]
• What will and won’t the Seventh Circuit find sanctionable? Judge Posner’s opinion gets a lot of attention for snapping at the lawyers, but I’m more fascinated about the parts where the dog didn’t bark, which isn’t getting any commentary. [Point of Law; Smoot v. Mazda; Volokh; Above the Law]
• Montgomery County doesn’t get to create a trio-banking system. [Zywicki @ Volokh and followup]
• “The Hidden Danger of Seat Belts”: an article on the Peltzman Effect that doesn’t mention Peltzman. [Time; see also Cafe Hayek]
• Pending Michigan “domestic violence” bill (opposed by domestic violence groups) criminalizes ending a relationship with a pregnant woman for improper purposes. [Detroit News via Bashman; House Bill 5882]
• Did Griggs causes distortion in higher education? I’m not sure I’m persuaded, though Griggs is certainly problematic for other reasons (e.g., POL Aug. 12, 2004). [Pope Center via Newmark]
• The Kramer cash settlement. [Evanier]
• Jonathan Wilson gives Justinian Lane a solid fisking on loser pays. [Wilson]
• Speaking of Justinian Lane, for someone who says he was “silenced” because I didn’t post a troll of a comment on Overlawyered, he’s sure making a lot of whiny noise. Hasn’t corrected his honesty problem, though. [Lane]
• The stuff Gore found too inconvenient to tell you in “An Inconvenient Truth.” [CEI]
• Islam: the religion of peace and mercy, for sufficiently broad definitions of peace and mercy. [Volokh]
• One year ago in Overlawyered: photographing exhibitionist students at Penn. Jordan Koko doesn’t seem to have gone through with the threatened lawsuit. [Overlawyered]

Via R.J. Lehmann (Mar. 27), here are some figures indicating that the sum total of the alleged costs of other people’s bad behavior may well exceed the total sum of money in existence. To be more specific: start by adding up the claimed health expenses, productivity losses and other social costs of such indulgences as alcohol ($185 billion a year, it’s said with spurious precision), overeating ($115 billion), gambling ($54 billion), and so forth. Then throw in categories such as the costs of crime, time wasted by employees visiting web sites and watching sports events, and so forth. By the time you’re done, Lehmann says, you can “come up with a grand total of $7.39 trillion - well in excess of the $6.70 trillion that actually exists” — at least if you’re willing to include a few dodgy entries in the catalog, such as taxes. (Thomas C. Greene, The Register (UK), Mar. 16).

It’s not hard to see the relevance of this line of logic to themes often dealt with in this space. In the utopia of the litigators we would succeed in charging the social costs of our overeating to the food business, the costs of our gambling to the casinos and lotteries that led us on, the costs of 9/11 to assorted banks, airlines, building owners and Saudi nabobs, the costs of street crime to deep-pocketed entities guilty of negligent security, and so on and so forth for the costs of auto accidents, pharmaceutical side effects, failure to learn in school, domestic violence, etc. It would not be surprising if the sum total of all the different injuries, insults and indignities dealt out to the human race, if monetized at the rates prescribed by advocates, handily exceeded the sum total of wealth on hand to pay, even were the whole wealth of the world placed at the courts’ disposal.

The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (”Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).

Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman’s property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer’s lawyers are now attempting to get lifted. Ms. Nestler’s application for the order

requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.

Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter….

When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.

(Jason Auslander, “Letterman lawyers: End Santa Fe claim”, Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges’ over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).

In San Mateo, Calif., Katina Britt was nearly jailed a few days ago for her refusal to testify against the ex-boyfriend who allegedly battered her. (He was convicted anyway and the charges were dropped.) Under present California law, sexual assault victims cannot be jailed for refusing to testify against their attackers, but domestic violence victims can. Chief Deputy District Attorney Steve Wagstaffe said the court order compelling Britt to testify was “for her own protection”. (Malaika Fraley, “Ultimatum in abuse case: Testify or go to jail”, San Mateo County Times, Dec. 10; Michelle Durand, “Assemblyman to back abuse testimony bill”, San Mateo Daily Journal, Dec. 20; more coverage via Google News). Wendy McElroy wonders: “How has the issue of DV drifted from its early roots of empowering ‘victims’ and encouraging their voices toward imprisoning them and coercing their testimony?” (”Don’t jail domestic violence victims”, Enter Stage Right, Dec. 19).

Welcome news from New York’s highest court: “A battered woman’s failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child, the New York Court of Appeals ruled Tuesday in a groundbreaking opinion.” (John Caher, New York Law Journal, Oct. 27). Four years ago (see “Battered? hand over your kids”, Jul. 12, 2000) the New York Times reported that city child protection authorities were removing children from homes in which one parent was found to have committed an act of domestic violence on the other, including such actions as slaps and shoving. “The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers.” Update Dec. 19: New York City agrees to change policy.

Britain: “One of the country’s most senior family judges launched a blistering attack on the legal system yesterday for failing divorced and separated fathers. Mr Justice Munby said he felt ‘ashamed’ after dealing with a man who had fought unsuccessfully for five years to see his daughter,” the mother having ignored contact arrangements and groundlessly accused him of abuse and domestic violence. (Sarah Womack and Yolanda Copes-Stepney, Daily Telegraph, Apr. 2).

In recent decades, influenced by feminist views, the law’s treatment of domestic violence has swung toward a “mandatory arrest, mandatory prosecution” model in which the full weight of criminal law is brought to bear on alleged batterers even if the victim would prefer not to press charges; reinforcing this model are mandatory-reporting laws requiring medical and other professionals to report on cases of likely battering. In Insult to Injury: Rethinking our Responses to Intimate Abuse, however, NYU social work and law professor Linda Mills argues that in practice this model often works against the interests of actual victims of domestic violence, undermining their power to improve their situations and discouraging them from seeking medical attention or other forms of assistance. Description and prologue from Princeton Univ. Press; reviews by Cathy Young (Reason), Clay Evans (Scripps Howard), Trish Oberweis (Law and Politics Book Review)(see Mar. 16 and Mar. 29, 2000; Mar. 4, 2002).

March 8-10 – Will EU silence the pipes? Some Scottish members of the European parliament are warning that new noise regulations could make it unlawful to play their nation’s musical instrument: lowering maximum noise levels to 87 decibels, as is being proposed, could “silence the bagpipes for the first time since Culloden”. “If this goes through then the Queen will have to be without her piper every morning who wakes her up at Buckingham Palace,” said Jim Banks, the head of the Piping Centre in Glasgow. “It is just daft.” An EU spokeswoman denied that the authorities in Brussels wished to suppress bagpipes, but a Tory MEP said the application of the rules to employment contexts could result in the end of professional pipe bands. Two years ago the British defense ministry announced that the din of military brass bands was in violation of job-safety noise limits (see Dec. 22, 2000) (Hamish Macdonell, “EU threat to noisy bagpipes”, The Scotsman, Mar. 6)(more on bagpipers in trouble: June 21, 2001).

March 8-10 – Inability to get along with co-workers. An assembly worker with bipolar disorder “fired in 1996 following a series of conflicts with her fellow employees and what court papers termed ‘her confrontational and irrational behavior’ with her supervisor” is entitled to sue her employer under the Americans with Disabilities Act since the ability to interact or get along with others is “a major life activity”, a federal judge ruled in New York. The employer had responded to the woman’s lawsuit with a counterclaim against her, charging that her erratic and hostile behavior had cost it $500,000 in losses to its operations, but Judge Frederic Block suggested that its counterclaim was “in terrorem tactics” and “a naked form of retaliation” against “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit,” and suggested that he might impose sanctions on the company for so foolishly imagining that the accusation game might work in both directions. (Mark Hamblett, “Plaintiff With Bipolar Disorder Protected Under ADA”, New York Law Journal, March 4).

March 8-10 – Near and dear to their hearts. Florida trial lawyers are up in arms over the merest suggestion, from a committee on jury innovations, that it might be time to start rethinking their cherished right to kick prospective jurors off panels without offering reasons or explanations. Thomas Scarritt, chair of the Florida bar’s trial lawyers section, “called any discussion of eliminating peremptory challenges ‘a dangerous move.’ Scarritt told the [state supreme] court ‘that is a subject that is near and dear to the hearts of trial lawyers and we do not think there should be any change whatsoever.’” (Susan R. Miller, “Juror Power?”, Miami Daily Business Review, Feb. 6).

March 8-10 – Crestfallen at the news. “Obviously, we’re disappointed.” — Len Selfon, director of benefits programs for the Vietnam Veterans of America, on word that the Institute of Medicine had found no evidence that the herbicide Agent Orange, to which many veterans were exposed, has contributed to the risk of a form of leukemia in children (”Washington in Brief: Science Panel Retreats On Agent Orange Risks”, Washington Post, Feb. 28) (via Health Facts and Fears (American Council on Science and Health), March 5).

March 6-7 – Updates. Stories that kept on developing:

* “A judge dismissed a lawsuit Monday that claimed several video game and movie makers shared blame for the 1999 Columbine High School massacre. … [Federal judge Lewis] Babcock said there was no way the makers of violent games and movies could have reasonably foreseen that their products would cause the Columbine shooting or any other violent acts. ‘Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence,’ Babcock wrote.” (”Columbine Family’s Lawsuit Against Video Game Makers Dismissed”, AP/Tampa Bay Online, Mar. 5)(see April 24, 2001).

* A Southwest Texas University student who bared her breasts at a wet T-shirt contest in Mexico over spring break 2000 has won a $5 million default judgment against the makers of a Wild Party Girls video who used the resulting topless picture of her in their promotions. She continues to pursue a lawsuit against the E! cable network for airing the “Too Hot for TV” ads with her image. (”Woman in ‘too hot for TV’ suit gets $5 million”, Cox/AZCentral, Feb. 27) (Update Apr. 15: default judgment thrown out). And the quest for a very private Mardi Gras continues as a Florida State University business major “has sued producers of the ‘Girls Gone Wild’ videos, claiming they invaded her privacy and used her image without permission. … [She] admits in her lawsuit that she was among the women on the streets and balconies of the French Quarter last year who removed their tops in exchange for Mardi Gras beads and trinkets.” (Janet McConnaughey, “Coed files suit over nude video”, AP/Polk County Online, Jan. 23)(see Sept. 28, 2001). At Metafilter, user “Mikewas” has some advice (Oct. 1) for how a defense lawyer might try such cases after first determining whether the local jury is of liberal or conservative leaning.

* ” In what is being described as a major victory for the so-called ‘visitability’ movement, two cities in disparate parts of the country [last month] started requiring all new homes to be accessible to the handicapped.” Besides the expected passage of such an ordinance in Naperville, Ill. (see Feb. 6), a new ordinance in Pima County, Arizona “includes the significant additional requirement of a zero-step entrance.” “I thought homes were for the owners,” says University of Chicago law professor Richard Epstein. A suburban Chicago homebuilder says the added expense could run as high as $3,000 a house: “it’s real easy to spend somebody else’s money,” adds J. Mark Harrison, executive director of the Home Builders Association of Illinois. (”Activists Win New Rules Requiring Handicapped-Accessible Private Homes”, FoxNews.com, Feb. 10).

March 6-7 – Quest for deep pockets in Ga. crematory scandal. “But while relatives focus their anger on the Marshes, their lawyers have deeper pockets in mind — the funeral homes that sent bodies to Tri-State. The reason is simple: Funeral homes have more insurance. Lawyers know the Marshes’ assets are likely to be eaten up in criminal court defending Ray Brent Marsh, the man charged with theft by deception in the Tri-State case. That leaves the funeral homes, who carry multimillion-dollar liability policies.” (Duane D. Stanford, “Big bucks at stake as lawsuits hit funeral homes that sent bodies to Tri-State Crematory”, Atlanta Journal-Constitution, Mar. 3).

March 6-7 – Washington eyes your 401(k). At Reason Online, Mike Lynch explains why the Enron collapse doesn’t prove what members of Congress keep saying it does about the supposed laxity of pension regulation (”Political Returns”, April) (see Feb. 15).

March 6-7 – Dewey deserve that much? Dig deeper into your pockets, smokers: federal judge Jack Weinstein of the Eastern District of New York “has awarded nearly $38 million in legal fees to New York-based Dewey Ballantine for representing Blue Cross and Blue Shield in a suit against the tobacco industry — more than twice the amount of a jury verdict in the case last year.” (Tom Perrotta, “Dewey Ballantine Given $38 Million Fee Award”, New York Law Journal, Mar. 1). (Update Oct. 23, 2004: New York high court derails award and underlying case.) And Loyola University law professor Dane Ciolino has dropped his challenge of the $575 million in legal fees private lawyers got for representing the state of Louisiana in the national tobacco settlement. Terms were confidential; Ciolino said he is not receiving personal benefit from the deal. “When they signed on to represent the state, the lawyers from 13 different firms became Louisiana assistant attorneys general. The lawyers claimed they acted as independent contractors, not government employees.” (Marsha Shuler, “Tobacco fee challenge dropped”, Baton Rouge Advocate, Feb. 15).

March 5 – Scenes from a malpractice crisis. “In Las Vegas, more than 10% of the doctors are expected by summer to quit or relocate, plunging the city toward crisis. … In California — where juries hearing malpractice lawsuits are limited to maximum awards of $250,000 for pain and suffering — [ob/gyn Dr. Cheryl] Edwards’ insurance premium this year is $17,000 [it had been $150,000 when she practiced in Nevada]. Because of 1975 tort reform, doctors in California are largely unaffected by increasing insurance rates. But the situation is dire in states such as Nevada where there is no monetary cap.”

“Doctors in Oregon have been told to brace for ‘breathtaking’ increases in malpractice insurance premiums in coming weeks. … When the Oregon Supreme Court in 1999 rejected as unconstitutional a $500,000 lid on pain- and- suffering awards in malpractice cases, jury awards of $8 million, $10 million and $17 million swiftly followed. … The Arizona border town of Bisbee has lost its hospital maternity ward because four of the town’s six obstetricians can no longer afford to practice. … Both trauma centers in Wheeling, W.Va., have closed because their neurosurgeons couldn’t pay their new malpractice premiums. The trauma center at Abington Memorial Hospital outside Philadelphia faces closure next month as its doctors scramble to find affordable insurance.” (Tom Gorman, “Physicians Fold Under Malpractice Fee Burden”, Los Angeles Times, Mar. 4; also (same story) Boston Globe; Joelle Babula, “Malpractice Crisis: Trauma unit faces cuts”, Las Vegas Review-Journal, Feb. 7). In Mississippi, where trial lawyers hold great sway in many courts and recently blocked tort reform in the state legislature, an 18-doctor group of emergency physicians in Hattiesburg two years ago “paid $140,000 for malpractice insurance. Last year, the premium went to $250,000. The next annual premium would be $437,500 or $475,000…” (”Cost to cover errors in ER to rise for doctors”, Hattiesburg American, Jan. 26). See also Geekemglory blog, Dec. 13. (DURABLE LINK)

March 5 – Case for declaring wars, cont’d. “The framers had good reason to separate the dangerous power to declare (and finance) war from the power to command the armed forces.” Unfortunately, Congress nowadays tends to abdicate its responsibility by delegating to the White House discretion on whether to institute hostilities. (Sheldon Richman, “Anything to declare?”, Foundation for Economic Education, Feb. 16) (see Sept. 13, 2001) (via Free-Market.Net).

March 5 – “Man awarded $60,000 for falling over barrier”. Australia: “A surfer who fell and injured his back when he stepped over a guard rail to urinate has been awarded more than [A]$60,000 in compensation. Paul Andrew Jackson was aged 35 when he crossed a bicycle bridge on the Pacific Highway at Kanahooka, in Wollongong South, and stepped over a barrier to relieve himself in what he thought was ground level bush.” (The Age (Melbourne), Mar. 4). Update Mar. 8-9, 2003: award overturned.

March 4 – 9/11: grab for the gems. Lawyers have sued large Manhattan jewel dealer STS Jewels Inc., the Tanzanian Mineral Dealers Association and other defendants, seeking to attach proceeds from the sale of the popular gemstone tanzanite on behalf of victims of Sept. 11 terror. Muslim radicals with links to Al-Qaeda are widely believed to have engaged in trading in the gem, which is extensively smuggled out of Tanzania, the East African country where it is mined. “Yesterday, representatives of STS and the Tanzanian Mineral Dealers Association vehemently denied any connection between their industry and al Qaeda. ‘My sympathies to the victims, but this is ridiculous,’ said STS owner Sunil Agrawal.” Among lawyers involved in filing the action are Texas asbestos lawyer Mark Lanier, corporate defense lawyer Paul Hanly and celebrity lawyer Ed Hayes. (Jerry Markon, “Tanzanite Dealers Named in Suit Brought by the Families of Victims”, Wall Street Journal, Feb. 15 (online subscribers only)). See also Ralph R. Reiland, “Lawyers Lust for 9-11 Gold” (The American Enterprise, Feb. 18). And a great Stuart Taylor, Jr. column from January that we somehow missed back then: “How 9/11 Shines a Spotlight on Litigation Lottery”, (National Journal/The Atlantic, Jan. 8).

March 4 – No reply. Lawyers from Jacoby & Meyers have filed a class action suit against online payments firm PayPal alleging all manner of atrocities in its customer service. “PayPal’s spokesman said he could not comment on the suit because his company is in the midst of a [legally mandated] post-IPO [initial public offering] quiet period.” You get to accuse them, and they can’t answer back — isn’t it fun being a lawyer? (Cheryl Meyer, “Class Action Filed Against PayPal”, The Deal, Feb. 25).

March 4 – A menace in principle. Under a law that took effect in New Hampshire last year, police are required to arrest and hold until arraignment anyone accused of violating a domestic protective order. So when a woman in the town of Farmington charged her estranged husband with placing harassing phone calls, they had to haul him in, even after a visit to his house revealed that he is blind, uses a wheelchair, and is on dialysis, leaving him not much of a credible threat to anybody. “Police had to wait three hours for an ambulance to bring [him] to the jail, but the jail wouldn’t hold him because of potential liability.” (”State domestic violence law puts police in bind”, AP/Manchester Union-Leader, Feb. 25) (via Free-Market.Net).

March 1-3 – Should have arrested him faster. “A convicted sex offender wanted in Florida who fled into the Maine woods from police is complaining that he got frostbite and lost a few toes because he wasn’t arrested fast enough. Harvey Taylor, 48, who spent at least three nights in the woods in Mattawamkeag after running from a Penobscot County Sheriff’s detective a few weeks ago, is threatening to sue the detective for not arresting him promptly.” (Mary Anne Lagasse, Flight from law leads to frostbite, threat of lawsuit”, Bangor Daily News, Feb. 27).

March 1-3 – Too much Nintendo. “A Louisiana woman is suing Nintendo, alleging her 30-year-old son suffered seizures after playing video games for eight hours a day, six days a week.” (AP/Minneapolis Star Tribune, Feb. 24; Brett Barrouquere, “Woman sues Nintendo in death of her son, 30″, Baton Rouge Advocate, Feb. 23).

March 1-3 – Batch of reader letters. We’ve fallen far behind both on posting reader letters and in answering our mail (and unfortunately we can’t answer all of it). Still, we’ve managed to put up a batch of letters from the closing weeks of last year. Topics include safe deposit boxes at the WTC, a federal judge’s decision striking down high school sports schedules that put boys’ and girls’ sports in different seasons, and discrimination against motorcyclists.

March 1-3 – Entitled to jobs that kill? On Wednesday the Supreme Court heard argument on the case of Echabazal vs. Chevron, which poses the question: “Does the Americans with Disabilities Act force employers to hire disabled workers for a job, even when the position could cause injury or death to the worker?” The Bush administration and business groups are trying to advance what turns out to be the controversial proposition that “employers have an interest in keeping their employees from being hurt or killed.” (Michael Kirkland, “Are disabled entitled to jobs that kill?”, UPI, Feb. 27; Warren Richey, “Can a disabled worker put himself at risk?”, Christian Science Monitor, Feb. 27; Marcia Coyle, “Rejecting a Worker”, National Law Journal, Feb. 26)(see Nov. 5, 2001). Update: Court unanimously rules for defense (see Jun. 19-20, 2002).

March 1-3 – Launder mania. Rushed through Congress in the weeks after Sept. 11, the USA Patriot Act “requires every financial institution — not just traditional banks — to monitor and to report suspicious customers to federal officials.” The paperwork and compliance burdens will be enormous, but there is little assurance that the program will make much difference in preventing terrorism, which tends to be accomplished on relatively small budgets. (Krysten Crawford, “On the Home Front”, Corporate Counsel, Jan. 22) (see Nov. 29, 2001).

March 1-3 – Welcome Boortz.com listeners. Popular Atlanta-based broadcaster Neal Boortz calls this site “one of my frequent stops” in researching his show (Feb. 27). He sure does have a lot of listeners — our traffic on Wednesday, when he did a segment paying us this tribute and endorsing loser-pays, was among the best ever.

Another noteworthy bit from his commentary: “Day after day people file lawsuits just to ’see if we can get the other side to pay something.’ I’ve been there, folks. I’ve seen it. I was a member of the Georgia Trial Lawyers Association and the American Association of Trial Lawyers. I went to the conventions. I sat in the meetings. I participated in those discussions where lawyers would say ‘I know we don’t have a case — but maybe they would rather fork over a hundred thousand or so rather than taking the chance of going to trial. Hell, their expenses alone would be more than we’re asking!’”.

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.

September 10 – “Group Sues Starbucks Over Tea Ingredient”. A newly formed group in Berkeley, Calif. by the name of Council for Education and Research on Toxics charges that the Tazo Chai tea sold by the Seattle-based coffee chain contains some quantity of ephedrine, a stimulant found in the Chinese herb ephedra or ma huang whose use poses hazards to health. (”Starbucks sued in LA court over alleged tea additive”, AP/KING-5 Seattle, Sept. 8; “Group Sues Starbucks Over Tea Ingredient”, Channel 2000, Sept. 6). Starbucks says that while it does not comment on litigation, “Starbucks and Tazo believe it is important to confirm for our customers that ephedrine has never been used as an ingredient in Tazo’s Chai Tea or any other Tazo product”. Lawyers have recently been making a big business suing over alleged health effects of ephedra consumed as a dietary supplement: searching on terms like ephedra and ma huang results in a bountiful harvest of lawyer advertising and client-recruitment pages. Ephedra has long been used in herbal teas and nutritional supplements, sometimes in trace quantities, other times in high dosages sought by dieters and athletes deliberately for its medicinal effects, which are related to those of phenylpropanolamine (PPA), a stimulant long ubiquitous in over-the-counter remedies until pulled off the market last fall (see April 6).

“The only purpose of the suit is to get Starbucks to get the ephedrine out of the product, not to get any money,” claims attorney Raphael Metzger, who filed the suit. While CERT is previously unknown, the same is not true of attorney Metzger, based in Long Beach, who runs a large “toxic-tort” practice whose website is publicizing the Starbucks action (leads to complaint in long PDF document). “The constitutional right of Californians to pursue and obtain safety could be an untapped source of riches that plaintiffs’ attorneys should consider on behalf of their clients and the public,” Metzger wrote a while back in the San Francisco Daily Journal regarding the prospect of tort claims based on the California Constitution’s “inalienable rights” provision. (Civil Justice Association of California “Balance”, Q4 1997 — scroll to “Deep Pocket Dreaming” near bottom).

September 10 – Japan sued for $1 trillion in reparations. We only thought there was a postwar treaty settling all claims against the Japanese — law prof Anthony D’Amato of Northwestern U. claims to have found a loophole that would let him reopen the whole thing. “I think we’re being conservative,” he says of his $1 trillion monetary demand. “This isn’t the first unusual legal action by D’Amato, who specializes in international law,” reports the Chicago Tribune. “In 1999 he filed suit seeking unsuccessfully to halt U.S. bombing of the former Yugoslavia to prevent damage to churches, shrines, monasteries and sacred relics.” (Matt O’Connor, “Suit seeks $1 trillion from Japan for war”, Chicago Tribune, Sept. 6 (reg); complaint in PDF format; “Japan sued for $1 trillion in reparations”, UPI/InfoSpace, Sept. 6).

September 10 – Employment class actions: EEOC to the rescue. For trial lawyers pressing job bias cases, the key to getting a big employer to offer a jumbo-sized settlement is to get the case certified as a class action on behalf of minority or female workers as a group: “Once it’s certified, it’s difficult for an employer to suck it up and go to trial. The [financial] risk is too high,” says management-side attorney C. Geoffrey Weirich of the Atlanta office of Paul, Hastings, Janofsky & Walker. But if plaintiff’s lawyers are falling short on the certification issue they can get a second bite at the apple by persuading the federal Equal Employment Opportunity Commission to intervene in the case; the EEOC is held to looser standards in class representation. “[S]howing up to bail out a plaintiffs’ lawyer who ran off the road doesn’t seem like a proper use of the process”, according to Fred Alvarez, a former EEOC commissioner who now represents employers at Palo Alto, Calif.’s Wilson Sonsini. Plaintiff’s lawyers counter that intervention on behalf of groups of workers is an intended part of the agency’s function and occurs only occasionally, despite a 1996 Forbes article in which an official of the EEOC’s Chicago office endorsed class actions as offering the agency “a much bigger bang for the buck”. (Mike McKee, “Employment Bar at War Over EEOC Intervention in Workplace Complaints”, The Recorder, Aug. 30). Sample case: Matt Gove, “Harris Teeter sued by black employees”, Atlanta Business Chronicle, Sept. 7.

September 7-9 – Judges overturning fewer huge verdicts. The litigation lobby is always insisting that alarm about excessive damage awards is misplaced because judges can be relied on to reduce or overturn anything really out of line. But is that so? A new survey by the National Law Journal of 100 jury awards exceeding $1 million dating back to 1997 that came under review by trial and appellate courts found that “the rate of outright reversal has fallen, and the bar has been raised considerably on what judges find offensive. “Federal and state judges are accepting numbers that would have been rejected as excessive only a few years ago,” notes the NLJ. “Jury awards that ‘used to make you gag and choke are being upheld,’ says defense counsel Frank Daily of Milwaukee’s Quarles & Brady.” Personal injury awards were least likely to be reversed, while large awards won by businesses against other businesses fared somewhat less well after trial. Somehow we doubt the folks at ATLA are going to be ringing their friends in the press about this one (Margaret Cronin Fisk, “Hard to Shock”, “After the Jurors Go Home”, National Law Journal, Aug. 29).

September 7-9 – Managed care bill: Do as we say…. Notable fact: “the Patients’ Bill of Rights just passed by the House exempts the 9 million federal workers, retirees and dependents covered by the federal health plan, including Congressional employees. … Tellingly, the House bill also exempts the 41 million people insured through Medicaid and the more than 50 million covered through Medicare and other federal programs from the potentially expensive new mandates and protections.” Proponents claim the new scope for litigation won’t drive up costs — but they sure don’t act as if they believe that (Ira Carnahan, “Do As We Say …”, Forbes, Sept. 3) (see also Dec. 6, 1999). And: “Liberals are right: a patients’ bill of rights is just a baby step. But it’s a step in the wrong direction,” expanding access to pricey experimental treatments for the middle class while pushing more poorer persons down into the ranks of the uninsured. (Noam Scheiber, “Daily Express: Stand Still”, The New Republic Online, July 13).

September 7-9 – Mosh pit mayhem. The mosh pit down front at the rock concert is a great place to get yourself injured (but you probably knew that). And it’s an equally great place for briefcase-toting lawyers to descend afterward filing “personal injury lawsuits with promoters, producers, arenas and sometimes even the musicians themselves as defendants”. Concert promoters say part of the crowd is always eager to enter the mosh area despite the known risks, but one plaintiff’s lawyer dismisses such talk: “The guy who controls the microphone controls the crowd,” he says. Among rock groups that have reached confidential settlements after being sued in such cases is the frenetically anti-capitalist group Rage Against the Machine, which distributes Noam Chomsky tracts to its fans. (Robert Wiener, “Rock And Roll Lawsuits”, LexisOne, July 31; Anthony DeBarros, “Injuries surge to high levels”, USA Today, Aug. 8, 2000).

September 7-9 – Watch what you say about lawyers (part XI). Aviation trial lawyer Arthur Alan Wolk, after winning a record-breaking $480 million jury verdict against Cessna last month, came in for heated criticism from readers of AVweb and other general aviation enthusiast websites (see Aug. 24-26, Aug. 20-21). Now, reports AVweb, Wolk “has filed a lawsuit against AVweb, two of its editors and four subscribers. Wolk’s suit, filed in a Pennsylvania court, is critical of statements made on AVweb. The lawsuit seeks in excess of $100,000 in compensatory and punitive damages.” AVweb says it is evaluating the merits of the suit. (AVweb Newswire, Sept. 6 (scroll to “On the Fly”, near bottom of page)). Update Oct. 12-14 (more on suit). Further update Sept. 16-17, 2002: in July 2002 AVweb capitulated and published on its website an extensive apology to Wolk, along with an apology from one of the individually sued posters.

September 6 – Red-light cameras. A San Diego judge has dismissed 300 traffic tickets issued under a system that “snaps a photo of a red-light runner and mails a $271 citation to the registered owner of the vehicle,” $70 of which is kept by a former Lockheed Martin subsidiary that operates the enforcement system. Such systems have already spread to fifty cities; critics charge that errors are common and very difficult for the motorist to fight, and that the company running the computerized cameras has no financial incentive to reduce the rate of erroneously issued tickets — quite the contrary, since it collects a share of the ill-gotten gains. According to Rep. Dick Armey (R-Tex.), since red-light cameras became a major source of municipal revenue, many cities have significantly shortened the duration of yellow lights, a practice that profitably increases the number of violations for the cameras to catch but worsens the risk of traffic accidents themselves. It’s another wrinkle on the bad old practice of contingency-fee law enforcement — a sure recipe for injustice whether inflicted by public authorities, private contractors, or the two in combination. (”Judge Dismisses 300 Tickets Spawned by Red-Light Cameras, FoxNews.com, Sept. 5; Alex Roth, “Ex-worker says firm puts profits over safety; Man testifies that revenue is main purpose of red-light cameras at intersections”, San Diego Union-Tribune, July 6; Ray Huard and Alex Roth, “Doubt focuses on red-light cameras”, San Diego Union-Tribune, Aug. 17; RedLightLawyers.com; Eric Peters, “Rigging traffic lights hurts safety”, Detroit News, Aug. 12; OpinionJournal.com, “Big Brother’s Camera” (editorial), July 3) (see also Apr. 8-9, 2002).

September 6 – Judge Kent: another helping. A Philadelphia environmental litigator who asks to remain anonymous writes: “I love your stuff on Judge Kent [the Hon. Samuel Kent, federal judge, S.D. Texas; see Aug. 2, Aug. 3]. I have in my grubby lawyer hands a Judge Kent order dated June 7, 2001 (entered June 8, 2001) in Labor Force, Inc. v. Jacintoport Corp. & James McPherson, Civ. Action No. G-01-058 (opinion in PDF form courtesy Green Bag). In that opinion, the judge, among other things, calls the lawyer’s motion ‘obnoxiously ancient, boilerplate, [and] inane.’ He also refers to it as asinine. … No URL as yet, and I don’t think it’s on Westlaw.

“There are 38 uses of ‘asinine’ in the allfeds database in Westlaw. Judge Kent has the vast majority of them. Thank God I’m in PA and not Texas.” (Corrected Aug. 15, 2004: fixed earlier erroneous spelling of case name).

September 6 – Reparations talk. “Reparations, so popular a topic in black-radio discussions and in black newspapers, masquerade as a bonus check for being black. They are a Trojan horse full of devastating consequences for the future of black America. Reparations are a dangerous, evil idea that has to be derailed now before emotions and momentum take American race relations on a crash course”. (Juan Williams, “Get a Check? No, Thanks”, GQ/FrontPage, Sept.) East Indians, recently arrived, made themselves a power in small business and science “with organization and planning. They certainly didn’t do it with reparations checks. Blacks could have done it, if for years we hadn’t been following leaders whose motto should be ‘Ain’t Too Proud to Beg.’” (Gregory Kane, “Slavery reparations no fix for ‘community in disarray’”, Baltimore Sun, Aug. 18). “Europe has indeed played a unique role in the history of slavery. Slavery has been a universal feature of all societies throughout most of history. … What makes Europe unique is that it ended slavery.” (Andrew Kenny, “White is Right”, The Spectator (UK), Aug. 25). And the King of Senegal has weighed in, pointing out that the guilt for slavery as an institution in his part of Africa long antedated Europeans’ arrival (Ellen Knickmeyer, “Senegal’s leader blasts idea of slave reparations”, AP/Nando, Aug. 29) (see Aug. 22 and links from there).

September 5 – “New law would stem abuses in Disabilities Act”. H.R. 914, the ADA Notification Act, is a bill introduced by Rep. Mark Foley (R-Fla.); Sen. Daniel Inouye (D-Haw.) is sponsoring a Senate counterpart. It would give businesses 90 days to make renovations to their facilities demanded under the Americans with Disabilities Act, thus putting a crimp (it’s hoped) in the complaint mills by which lawyers file accessibility complaints by the dozen and then collect legal fees from target businesses (see Jan. 26, 2000). (Hector Florin, Miami Herald, Aug. 31).

Among South Florida lawyers who have filed many near-identical complaints, collecting thousands of dollars per defendant in legal fees on settlement, are William Tucker and Lawrence McGuinness. The Fort Lauderdale Sun-Sentinel notes, however, that “Tucker works out of a Fort Lauderdale building that has no disabled parking, a ramp steeper than the law allows, no landing and a door with a round doorknob. McGuinness’ office in Coral Gables has a curb with no ramp to the front door.” (Aug. 26). The same paper editorializes: “The Americans with Disabilities Act has been hijacked by trial lawyers who are using it to drum up legal fees.” (editorial, Aug. 28) (via OpinionJournal.com “Best of the Web“).

September 5 – New York’s crazy homeless program. It’s the result of litigation by advocacy groups that have been tying the city in courtroom knots for years (Heather Mac Donald, “Forbidden Facts”, New York Post, Aug. 21).

September 5 – Target: trade associations. Two appeals courts in Washington state have upheld a verdict holding the National Spa and Pool Institute liable for $6.6 million in damages to a man who broke his neck diving into a below-ground pool and sued, saying the institute’s voluntary safety standards for pool design should have been stricter. “To protect its assets, the pool group was forced to file for bankruptcy (it’s now out of it) and sell off its $3 million (net income) trade show. Until this decision virtually all courts declined to extend product liability to associations that develop voluntary safety standards in good faith.” (Matthew Swibel, “On the Docket: In Hot Water”, Forbes, July 9 (reg)).

September 3-4 – “Lawsuit demands AOL stop anti-Islamic chat”. “A Muslim subscriber sued America Online yesterday, claiming that anti-Islamic insults in AOL’s chat rooms violate his civil rights. If successful, the suit could force the world’s largest Internet company to strictly limit what 30 million members can say in 14,000 chat rooms. … The suit alleges that by not kicking out the disrupters, AOL violated its contract with users. But it also claims that under the 1964 Civil Rights Act, an AOL chat room is a ‘public accommodation,’ as is a restaurant or a hotel.” (Hiawatha Bray, Boston Globe, Aug. 31; AP/Yahoo, Aug. 30; Leef Smith, “Suit Says AOL Permits Insults”, Washington Post, Aug. 31; BBC; Robyn Weisman, “AOL Stung by Hate Speech Lawsuit”, NewsFactor.com, Aug. 31) (& see Dec. 5-6).

September 3-4 – Not discriminatory to kick sleeping worker’s chair. A Pittsburgh federal jury has decided that it did not constitute race or sex discrimination for a supervisor to kick the chair of a sleeping 911 emergency dispatcher to wake her up. The supervisor had said that he had jostled the chairs of other workers who snoozed on the job. (”911 Boss Cleared In Woman’s Kicking Lawsuit”, WTAE/Yahoo, Aug. 28). And Great Britain’s Institute of Management has said that privacy provisions of that country’s newly enacted Human Rights Act may restrict an employer’s right to call its employees at home. “‘An employer does not have the right to demand an employee’s telephone number unless it is specified in the contract that the employee has a duty to be available outside normal working hours,’ the institute said. … The body also said employees are under no obligation to divulge their addresses except for the purpose of receiving ‘routine correspondence’ in connection with their job, such as salary slips.” (”Plagued by calls from the boss at home? Sue them”, Yahoo/Reuters, Aug. 24).

September 3-4 – Batch of reader letters. On topics such as Miniver Cheevy’s prospective wrongful-birth lawsuit, the next Cessna, slavery reparations, should doctors turn away lawyers as patients?; a 2-cent class action refund, and zero tolerance meets domestic violence. Also: we recommend a new book.

July 19-20 – “Coke Plaintiff Eavesdrops on Lawyers; Case Unravels”. After lawyers suing Coca-Cola on discrimination charges hold a conference call with their clients and with Jesse Jackson, one of the clients, a Coke security guard named Gregory Clark, quietly decides to stay on the line, rather than hang up as the others and Jackson do, and listen to what the lawyers say among themselves. The sensational results are aired in this remarkable article in the Atlanta legal paper, which just might blow the tightly screwed cap off the whole issue of lawyers’ management of litigation in their own interest — don’t even think of missing it (R. Robin McDonald, Fulton County Daily Report (Atlanta), July 18) (Atlanta Journal-Constitution special page on Coke discrimination litigation).

July 19-20 – Editorial roundup: “The wrong verdict on tobacco”. By a wide margin, the American people believe that though cigarettes are harmful, it should be lawful to sell them. “Last week’s verdict by a Florida jury, however, suggests that what the American people want is no longer terribly important when it comes to tobacco.” (Chicago Tribune, editorial, July 18). “[T]he judge prohibited any testimony relating to choice and personal responsibility,” contends the New York Post. In plain English, the fix was in.” (”Milking the Tobacco Cow”, July 18). Jury foreman Leighton Finegan said he was “insulted” when tobacco company lawyers raised the possibility that the throat cancer of one of the plaintiffs might have been caused by occupational dust exposure, but it’s perfectly legitimate for defendants to point out that health problems arise from multiple origins, which sheds light on the unmanageable nature of the supposed “class” (Hickory (N.C.) Record, “$145,000,000,000!”, July 17). “It says something about the class-action lawsuit Florida smokers filed against the industry that two of the lead plaintiffs in the case were medical officials who bragged of their own ignorance,” comments the Washington Times. “Said one, a 44-year-old nurse, ‘I had no idea there was anything wrong with cigarettes at all.” (”That will be $145 billion, please”, July 17). And Smarter Times, the new online venture edited by Ira Stoll that keeps a watchful journalistic eye on the New York Times, notes that the newspaper’s July 15 editorial “basically comes out in favor of using class action lawsuits to put companies out of business, even when the Congress or state legislatures are unwilling to declare the products illegal.” (Issue #28).

July 19-20 – Disabled accessibility for campaign websites: the gotcha game. The Washington Post’s online edition plays gotcha with political campaign websites, most of which fail to heed disabled-accessibility guidelines of the sort that may already be legally binding on a wide range of private sites. The Al Gore (D) and Rick Lazio (R-N.Y.) websites are among the minority that comply with “Bobby“, the most widely used program for evaluating a site’s disabled accessibility. Sites that fall short on “Bobby” include those of George W. Bush (R), Hillary Clinton (D-N.Y.), Ralph Nader (Green) and Patrick Buchanan (Reform). (Ryan Thornburg, Mark Stencel and Ben White, “Political Graffiti Goes Online” (third item), WashingtonPost.com, July 17).

However, running the Thornburg-Stencel-White article itself through a “Bobby” check discloses that as of Tuesday evening it itself suffered from at least fifteen violations of disabled accessibility rules: lack of alternative text for images (12 instances), lack of redundant text links for server-side image map hot-spots (2 instances), and lack of alt text for image-type buttons in forms (1 instance) (full “Bo