Chronicling the high cost of our legal system
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Such is the contention of Yoichi and Ayisha Shimamoto, who are suing UAL “for ‘negligently’ overserving alcohol during a flight from Osaka, Japan, to San Francisco, saying the carrier’s drinks fueled the domestic violence involving the two shortly after their plane landed.” (Julie Johnsson, “Couple accuse United Airlines of overserving husband, causing him to beat wife”, Chicago Tribune, Dec. 17).
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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).
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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orders (some earlier posts) allegations of spousal abuse, whether or not eventually proven at trial and whether or not withdrawn by the accuser, can trigger highly burdensome sanctions against the accused spouse, including a prohibition on entering his or her own home.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).
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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).
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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).
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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).
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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.
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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 “Bobby” evaluation of Post article). The article is also reprinted on Slate, where as of Tuesday evening it suffered from at least 19 Bobby infractions, including lack of alt text (18 instances) and lack of button text (once) (evaluation). Numbers are subject to change if and as the pages change, of course.
July 19-20 – Target Detroit. “Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause,” writes the Detroit News‘ Jon Pepper, since the state’s leading industry, automaking, could face assault from some of the same litigation forces. (”Auto industry could follow guns, tobacco into courtroom”, June 4). Many lawyers are eager to pin liability on the design of sport utility vehicles because of their tendency to inflict higher than usual damage on other motorists and pedestrians, but they’ve had trouble so far finding a theory that will stick (Keith Bradsher, “S.U.V. Suits Still Face Long Odds”, New York Times, May 30). And a federal judge has refused to dismiss a defamation countersuit by Philadelphia class action firm Greitzer & Locks against DaimlerChrysler and its associate general counsel, Lew Goldfarb, arising from charges DaimlerChrysler filed last fall (see Nov. 12) charging the Greitzer firm and another attorney with the filing of abusive class action litigation. The Greitzer firm is now suing Mr. Goldfarb personally for defamation and interference with contractual advantage and cites, as evidence of malice, his description of the cases filed by Greitzer & Locks as “a form of legalized blackmail” and of one such suit as one that “belongs in the class action hall of shame.” How many times do we have to warn you to watch very carefully what you say when you criticize lawyers? (Shannon P. Duffy, “DaimlerChrysler GC Can Be Sued in Pennsylvania”, The Legal Intelligencer (Philadelphia), June 30; “Greitzer & Locks Takes a Swing Of Its Own at DaimlerChrysler”, Jan. 14).
July 18 – Florida tobacco verdict. Our editor has an op-ed piece in today’s Wall Street Journal discussing last week’s punitive award in the Florida tobacco class action: Walter Olson, “‘The Runaway Jury’ is No Myth”, Jul. 18. For more on the Engle case, see July 10; our editor’s Wall Street Journal op-ed from Jul. 12, 1999; the related commentaries on our tobacco-litigation page; and the press clips at Yahoo Full Coverage. Also check our numerous commentaries, from yesterday and earlier, on the multistate tobacco settlement, which counts as trial lawyers’ bird-in-the-hand compared with Engle’s bird-in-the-bush. Later developments in case: see May 15, 2004 and links from there.
July 18 – “Court says warning about hot coffee unnecessary”. It makes a contrast to the famed McDonald’s case: the Nevada Supreme Court, upholding a lower court’s decision, has dismissed a lawsuit against a restaurant and its suppliers alleging negligent failure to warn about the dangers of hot coffee. Lane Burns had sued the Turtle Stop restaurant after spilling coffee on his leg and suffering burns, but District Judge Gene Porter ruled that the “danger is open and obvious.” That differs from the sentiments of the judge and jury in Albuquerque, New Mexico, where octogenarian Stella Liebeck won a $2.9 million judgment against the fast-food chain, which was later reduced to $480,000 and settled for an undisclosed sum. (Cy Ryan, “Court says warning about hot coffee unnecessary”, Las Vegas Sun, July 11).
July 18 – “Chutzpah is. . .” Eugene Volokh of UCLA law school writes as follows: “Chutzpah is . . . when you get a job working for your wife’s parents because you are their son-in-law, and then when you and she get divorced and her parents fire you, you sue them for marital status discrimination.
“This is exactly what happened in Matteson v. Prince, Inc., Montana Dep’t of Lab. & Indus. No. 9901008658 (1999) (pdf document). Amazingly, the agency held that the employer’s behavior was illegal discrimination, but Matteson wasn’t entitled to any damages because in this particular case the ex-son-in-law would have been fired in any event because he had gotten into a shouting match with his employers at work.”
July 18 – Breakthrough for plaintiffs on latex gloves? Last Thursday an Alameda County, Calif. jury returned an $800,000 award to a health care worker against Baxter Health Care, which formerly made latex gloves for hospital use. Naturally occurring substances in the gloves sometimes trigger virulent allergies in health care workers which prevent them from continuing in medical work, and lawyers have argued that had Baxter instituted a practice of washing the gloves before sale to remove surface proteins, it would have reduced their allergy-stimulating potential. Hundreds more latex allergy lawsuits are pending, and lawyers are hoping the new case, McGinnis v. Baxter Health Care, will serve as a model for others. (Sonia Giordani, “California Latex Glove Verdict Sets Tone”, The Recorder (San Francisco), July 17) (more about latex allergies) (see also Oct. 26).
July 17 – Dershowitz’s Florida frolic? Alan Dershowitz is demanding $34 million for putting in 118 hours of work on the state of Florida’s Medicaid-reimbursement tobacco suit, according to two of the lawyers who helped mastermind that suit, Robert Montgomery and Sheldon Schlesinger. The two filed suit against the famed Harvard law prof last week, asking a judge to determine whether he’s entitled to a bonus they say they never promised him. Through their attorney they allege that Dershowitz is asserting an entitlement to 1 percent of the gargantuan $3.4 billion fee award made to the attorneys who represented the state, which would amount to $34 million, but they say he hasn’t submitted any hourly time sheets to back up that claim. “He wants a lot of money, and he’s not entitled to it,” said J. Michael Burman, attorney for Montgomery and Schlesinger. If the lawyers’ figures are accurate, $34 million divided by 118 hours would work out to $288,000 an hour. (Jon Burstein, “Lawyer wants $34 million for working 118 hours on Florida’s case against tobacco companies”, Fort Lauderdale Sun-Sentinel, July 14; more on Florida tobacco fees: April 12, December 27-28).
July 17 – Ness Motley’s aide-Grégoire. In a single day, December 8, 1999, Christine Gregoire, the attorney general from the state of Washington who’s been mentioned as a possible AG in a Gore administration, saw her re-election campaign kitty more than double. The benefactors, who sent nearly $23,000, weren’t Washington residents at all, but rather two dozen lawyers and their relatives associated with the Charleston, S.C. law firm of Ness, Motley, which is expected to pocket a billion dollars or more in fees from the multistate tobacco settlement that Gregoire was instrumental in brokering. An aide to Gregoire, who engaged Ness Motley to represent Washington along with the many other states it represented, dismisses talk of payoffs and calls the contributions “a reflection that someone has a high regard for an elected official.” “I only wish we had given her more,” says Ness superlawyer Joe Rice, quoted in this article in Mother Jones spotlighting the sluicing of tobacco-fee money to friendly Democratic pols. (Rick Anderson, “Tobacco money flows both ways”, Mother Jones, July 6).
July 17 – Challenging the multistate settlement. In a Cato Institute paper, Thomas C. O’Brien argues that the anticompetitive provisions of the multistate tobacco settlement, such as those curbing entry by newly formed cigarette companies, should rightly be seen as themselves an antitrust violation and as going beyond the duly constituted power of the fifty states, which would open up the possibility of injunctive relief and treble damage remedies “available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies.” (Thomas C. O’Brien, “Constitutional and Antitrust Violations of the Multistate Tobacco Settlement”, Cato Policy Analysis No. 371, May 18 (summary links to PDF document)). Also from Cato, Richard E. Wagner of George Mason University offers another critique of the multistate settlement (”Understanding the Tobacco Settlement: The State as Partisan Plaintiff”, Regulation, vol. 22, no. 4 (table of contents; follow links to PDF document). Cato, the Competitive Enterprise Institute and the National Smokers Alliance filed an amicus brief last week urging the Third Circuit to invalidate the nationwide tobacco settlement agreement on constitutional grounds. (”Public Interest Groups Urge Court to Invalidate Tobacco Agreement ” CEI press release, July 13). On collusive aspects of the multistate settlement, see our commentary for July 29 of last year; Rinat Fried, “Distributors Challenging Tobacco Deal”, The Recorder/CalLaw, June 30, 1999; and “Puff, the Magic Settlement” (Reason, January).
July 14-16 – “Are lawyers running America?”. Time’s feature story this week on the Fourth Branch leads with the tale of tobacco/HMO nemesis Dickie Scruggs’ recent appearance before the Connecticut State Medical Society (see Feb. 22, “P.S.”), where he “was introduced so gushingly that even he was embarrassed. ‘You forgot to mention,’ he chided the society’s head, ‘that I rested on the seventh day.’” Among bits of new-to-us info about the great legal magnates, we learned that “Wayne Reaud (pronounced Ree-oh) has used his hundreds of millions of dollars in fees from asbestos and other ‘toxic tort’ litigation to buy the local newspaper and a chunk of downtown real estate in his hometown of Beaumont, Texas,” while Florida’s Frederic Levin “concedes his firm’s $300 million take [from tobacco] was ‘totally obscene’ and says he’s giving much of it to charity,” having already had the University of Florida Law School named after him following a big gift. Who’s to be sued next? All sorts of targets, but the magazine reports that some lawyers “are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same ‘negligent marketing’ allegations that have been lodged against gunmakers.” Quotes our editor twice, too. Most memorable line: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it. ‘Somebody’s got to do it,’ he says, laughing.” (Adam Cohen, “Are lawyers running America?”, Time, July 17)
July 14-16 – “‘Whiplash!’ America’s most frivolous lawsuits”. Michigan Lawsuit Abuse Watch is promoting this new book by comedy writer James Percelay and Jeremy Deutchman (Andrews & McMeel). Five of the cases from the book are retold at the M-LAW site, including ones involving a woman who sued a guide-dog service because the dog it provided did not keep its blind human master from stepping on her foot and breaking her toe; a man who cut off his hand, believing it Satanically possessed, refused a doctor’s pleas to let him reattach it, and then sued the doctor later for complying with his instructions; a college student who tried to “moon” friends from a third-floor window, fell out and sued for his injuries; a criminal who filed an excessive-force suit against police after being apprehended for a particularly brutal crime, and won a $184,000 jury verdict, later thrown out; and a man who spilled a cold chocolate milkshake on himself, was so startled that he crashed his car, and sued McDonald’s. (All five cases were sooner or later unsuccessful in the courts.) We haven’t seen the actual book yet (or fact-checked the five cases, although we remember most of them from when they originally happened) but it seems to be selling pretty well on Amazon. Also check out M-LAW’s “obligatory disclaimer“.
July 14-16 – Never too stale a claim. Asbestos, lead paint, small-plane and machine-tool liability cases have all demonstrated that American lawyers are willing to trace responsibility back at least as far as the first decades of the twentieth century if that’s what it takes to find a deep pocket chargeable with injury. So it shouldn’t really have come as much of a surprise when a Texas court entered a $234 million default judgment against the government of Russia on behalf of a man whose grandfather’s property was confiscated during the 1917 Bolshevik Revolution. Dan Nelson, attorney for claimant Lee Magness, “says he will start trying to collect by seizing any Russian art exhibits on tour in this country”, and preliminary maneuvers to that effect led to a temporary delay in two art tours. The Russian government has filed a protest with our State Department (for more on the foreign-policy repercussions of the American way of suing, see July 6). The extreme willingness of our current legal system to revisit very old transactions in search of grist for litigation — much in contrast with an earlier law’s concern for repose and finality — probably made it inevitable that we’d see the current boomlet of discussion regarding reparations claims over slavery: if we’re already willing to go back 83 years to 1917, why not a further 52 years to 1865? Besides, some of us have our eye on the British, who’ve enjoyed virtual impunity for much too long over their burning of American homes during the Revolutionary War and War of 1812. (Susan Borreson, “Texans’ Default Judgment Against Russians Stands”, Texas Lawyer, Feb. 1).
July 13 – Class-action assault on eBay. It’s doubtful whether eBay, the massively popular electronic flea market, would ever have gotten off the ground had its proprietors been required to warrant the goods being sold. In April, however, attorney James Krause of the San Diego-based class-action firm of Krause & Kalfayan filed a lawsuit on behalf of six California residents who had bought sports memorabilia, the subject of widely reported fakery, over the online marketplace. An eight-year-old provision of California law stipulates that dealers in autographed sports memorabilia must provide a certificate of authenticity. Krause is seeking class-action status on behalf of all California buyers, and is asking for the penalties laid out in the statute, which according to AuctionWatch “entitles the buyer to ten times the purchase amount and other damages should an autograph prove to be forged or come without this certificate”. EBay contends that it is not a dealer or auctioneer but simply provides the modern equivalent of newspaper classified ads, so that only the individual sellers could properly be held liable. “If successful, the suit could undermine eBay’s business model,” reports the Industry Standard. “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Krause & Kalfayan has also filed suits on unrelated theories against such firms as Microsoft (see Dec. 23), Federal Express, Atlantic Richfield, Nine West and Charles Schwab (complaint and related news story at Krause & Kalfayan site; Victoria Slind-Flor, “EBay Denies Auctioneer Status”, National Law Journal, July 10; Miguel Helft, “EBay: We’re Not Auctioneers”, Industry Standard, May 1; “The Class Action Suit”, AuctionWatch, undated). Bonus:Weird eBay Auctions (WhatTheHeck.com) (& update Nov. 22-23: judge certifies class action)
July 13 – Nader on the Corvair. The litigation advocate’s presidential candidacy makes a good occasion to revisit his original claim to fame, the Corvair episode. The car’s safety record turned out in hindsight far better than you’d have guessed reading Unsafe at Any Speed, but “being wrong on the Corvair hasn’t hurt Nader’s career one bit,” writes Ronald Bailey, science correspondent for Reason. (”‘Saint Ralph’s’ Original Sin”, National Review Online, June 28).
MORE LINKS: Bill Vance, CanadianDriver.com (”The Corvair’s handling would later be exonerated, but the damage had been done”); Corvair Society of America (CORSA); Brock Yates, Car & Driver, reprinted in CORSA’sThe Windmill, Nov./Dec. 1971, and Charles B. Camp, “Popularity of Nader Declines to Its Nadir Among Corvair Owners”, Wall Street Journal, July 23, 1971, reprinted at Rick’s Corvair Scrapbook; Thomas Sowell, “Lawsuits and Legal Visions”, 1987 speech at Shavano Institute Seminar, reprinted at tsowell.com; Andrew Gurudata, “Great Car At Any Speed“, Corvair Webring; Corvair Project.
July 13 – Access to something. Federal prosecutors are investigating claims that attorney Denice Patrick of Lynnwood, Washington, outside of Seattle, violated ethics and conflict-of-interest rules. Specifically, they’re looking into allegations that while employed to write legal decisions for the federal Social Security Administration, she also “moonlighted for more than a year as a private lawyer who devoted much of her practice to bringing claims against the agency.” Ms. Patrick, whose attorney denies the charges and says they’re being brought against her in retaliation for whistleblowing about agency wrongdoing, has been active on a Washington State Bar Association panel promoting “access to justice“. (Sam Skolnik, “Lawyer allegedly violated ethics”, Seattle Post-Intelligencer, May 22).
July 12 – Battered? Hand over your kids. Latest advance in child protection: seizing and placing in foster care children whose moms are abused by their husbands or boyfriends or vice versa. New York City can remove kids from their homes if either parent is believed to “engage in acts of domestic violence,” such as slaps, kicks, shoves, or more serious violence, whether or not these acts are directed at the children. “Often,” reports the New York Times’s Somini Sengupta, the parent who loses children this way “may have done nothing wrong or negligent, but simply lacked the financial or emotional resources to leave an abusive partner.” The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers. And while it’s clearly not good for a child to observe parents engaged in domestic battles, advocates say the city underestimates the trauma to kids of being yanked out of the home they know and sent to live among strangers. (Somini Sengupta, “Tough Justice: Taking a Child When One Parent Is Battered”, New York Times, July 8 (reg)). Update Oct. 31, 2004: New York high court ruling favorable to mothers; Dec. 19, 2004 city agrees to change policy.
July 12 – Forum-shopping in South Carolina. Last year, AP reports, the big railroad CSX paid out about $5 million in five accident lawsuits filed in Hampton County, S.C., and it faces another 15 cases pending in the county, all represented by the Hampton law firm of Peters, Murdaugh, Parker, Eltzroth & Detrick. However, none of the five accidents being sued over had actually taken place in Hampton County; all had been taken there from elsewhere in search of the plaintiff-friendly brand of justice handed out in the impoverished county, where 40 percent of residents have not graduated high school. “They are poor people who don’t like big corporations,” said Dick Harpootlian, a prominent plaintiff’s lawyer in the state capital, Columbia, as well as chairman of the state’s Democratic Party. “We don’t mind being there if we belong there, but these cases are being valued at between two and three times what they would elsewhere,” said Jim Lady, a lawyer for the railroad, who adds that it would be equally unfair if the law permitted his client to remove all cases to Lexington County, where jurors are known as being as conservative as those in Hampton are liberal. Now a move is afoot in the state legislature to curb forum-shopping by giving plaintiffs a choice of at most three venues: the one where the accident took place, the one where they live, or the one where the railroad is headquartered. Trial lawyers are upset: “If they are paying us more than what they are paying elsewhere, it’s because they are not paying fairly in other counties,” says Johnny Parker, a lawyer with the Peters firm in Hampton. State Sen. Brad Hutto (D-Orangeburg), whose district includes Hampton County and who also happens to be a trial attorney, says that the move “smacks of special-interest legislation … Every courthouse in this state is presided over by a judge. If CSX doesn’t like the result of a court case, they have the right to appeal. It’s not the law firm that’s being punished, it’s the person bringing the suit.” The Virginia legislature some years back enacted similar legislation curbing the ability of lawyers from around the state to file railroad suits in the city of Portsmouth, where juries had a reputation for big-ticket verdicts. (Associated Press, “Bill would make generous Hampton County juries unavilable in many railroad suits,” South Carolina state/regional wire, June 12).
July 12 – Suing Nike for getting hacked. Some Web-watchers have been predicting (see Feb. 26) that lawsuits may be forthcoming attempting to lay the costs of hacker attacks on deep-pocket entities that, it’s argued, should have done more to prevent them. Now a Web entrepreneur named Greg Lloyd Smith says his lawyers are drawing up a complaint against Nike. “His beef: When Nike’s website was hijacked [last month], whoever hijacked the domain re-directed Nike.com’s traffic through Smith’s Web servers in the U.K., bogging them down and costing Smith’s Web hosting company time and money.” (Craig Bicknell, “Whom to Sue for Nike.com Hack?”, Wired News, June 29; “Webjackers Do It To Nike”, Wired News, June 21).
July 11 – Australia: antibias laws curb speech. An official civil-rights tribunal in New South Wales, the most populous state in Australia, has ruled that the Australian Financial Review committed an unlawful act of bias when it published an article on its opinion page making slighting comments about Palestinians. The offending piece, a short item by journalist Tom Switzer, had suggested that Palestinians had engaged in acts of terrorism, could not be trusted in Mideast peace talks, and remained “vicious thugs who show no serious willingness to comply with agreements”. The tribunal “found it was irrelevant whether the author intended to incite racial hatred or whether anyone had in fact been incited”, and dismissed a free-comment defense as irrelevant. It has yet to decide on a “remedy” for the speech; among its powers are to order a retraction and apology, and to order the paper, which is owned by the John Fairfax Group, to “implement a program or policy aimed at eliminating unlawful discrimination”. (Mike Seccombe, “Finding ‘restricts’ freedom of speech”, Sydney Morning Herald, Jul. 10) (via Freedom News Daily).
July 11 – “Report on medical errors called erroneous”. You read it here first (see Feb. 22, Feb. 28, March 7 commentaries): more critics are stepping forward to find fault with that highly publicized study alleging that “medical errors” kill between 44,000 and 98,000 patients a year. In the Journal of the American Medical Association, three doctors associated with the University of Indiana’s Regenstreif Institute explain why they believe the study is so constructed as to exaggerate the avoidable damage done by medical mistakes, and study author Lucian Leape, of Harvard’s School of Public Health, responds with a defense. (Rick Weiss, “Report on Medical Errors Called Erroneous”, Washington Post, July 5; Clement J. McDonald; Michael Weiner; Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report” (text) (pdf); Lucian L. Leape, “Institute of Medicine Medical Error Figures Are Not Exaggerated” (text) (pdf), JAMA, July 5 (table of contents))
July 11 – ADA’s unintended consequences. The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied. Thomas DeLeire, assistant professor at the University of Chicago, Harris Graduate School of Public Policy Studies, analyzed data for a sample of men aged 18 to 65 and found that labor force participation fell after the act for virtually every identifiable subgroup of disabled men, but that the relative slippage was worst for those with lower levels of job experience and education, and those with mental impairments. DeLeire believes the law has imposed on employers perverse incentives not to hire and retain disabled workers, since they now risk the possibility of costly and uncertain disputes should they differ with the worker about what constitutes “reasonable” (and thus obligatory) accommodation. (”The Unintended Consequences of the Americans with Disabilities Act”, Regulation, v. 23, no. 1 — table of contents links to pdf document).
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March 31-April 2 – Punished for resistance. Gun-suit organizers were hoping Smith & Wesson’s capitulation would bring about a race among other firearms makers to settle; instead, manufacturers, dealers and buyers are racing to dissociate themselves from the hapless company, formerly the market leader. Now — in a move that counts as heavy-handed even by the standards of activist attorneys general — Connecticut AG Richard Blumenthal and New York’s Eliot Spitzer are readying antitrust action against companies in the gun industry for the offense of shunning S&W. Connecticut reportedly issued subpoenas yesterday; among possible grievances bruited in the New York Times‘ account are that some organizers of shooting matches have told S&W that it is no longer welcome, that dealers are dropping its wares, and that other gun companies are unwilling to go on coordinating their legal defense efforts with S&W, which means it will have to find a new law firm. Blumenthal’s and Spitzer’s message to those in the gun business could hardly be clearer: better go quietly, because we’ll crush you if you resist in any organized way. (Fox Butterfield and Raymond Hernandez, “Gun Maker’s Accord on Curbs Brings Industry Pressure”, New York Times, March 30; Peter Slevin and Sharon Walsh, “Conn. Subpoenas Firms in Gun Antitrust Probe”, Washington Post, March 31).
March 31-April 2 – Terminix vs. consumer critic’s website. Pest control company Terminix retreats from courtroom efforts to swat dissatisfied consumer Carla Virga, who put up a website to publicize her unhappiness with its services. After its defamation suit was dismissed, the company tried again on the theory that Ms. Virga was infringing its rights by using the word Terminix itself in “metatags” directed at search engine listings. This succeeded in infuriating many in the Web community, and now the company has backed off that second action as well. Other companies that have gone to court against angry-consumer websites include Bally Total Fitness, Circuit City, and U-Haul. (Craig Bicknell, “Site No Longer Bugs Terminix”, Wired News, Mar. 11; Robyn Blumner, “Welcome to the world of free-speech exterminators”, St. Petersburg Times, Mar. 19).
March 31-April 2 – Employer-based health coverage in retreat? Report in the news-side Wall Street Journal last month suggests more big employers are beginning to “look for an exit strategy from the health-benefits business”, especially since “it’s possible that Congress or a court ruling will expose employers to legal liability in malpractice cases“. Under “defined contribution” models pioneered at Xerox Corp. and elsewhere, employees are given lump-sum health vouchers and told to find the plan that’s best for them. Sanford C. Bernstein analyst Kenneth Abramowitz sees the benefits of giving workers choice, but points out the danger that employees will be cut loose with a “Yellow Pages” outcome: “Here’s $5,000 and the Yellow Pages. You figure it out.” “Adding new liability for companies could prompt some to scuttle their health-benefits programs and send employees into the market to fend for themselves. Says Margaret O’Kane, head of a managed-care accrediting organization called the National Committee for Quality Assurance: ‘If employers find themselves in the path of the trial lawyers, I think you can expect a massive bailout’”. (Ron Winslow and Carol Gentry, “Health-Benefits Trend: Give Workers Money, Let Them Buy a Plan”, Wall Street Journal, Feb. 8, fee-based library).
March 31-April 2 – Welcome Milwaukee Journal Sentinel readers. Overlawyered.com was a featured website earlier this month in Bob Schwabach’s “On Computers” column, which runs in Wisconsin’s leading paper and many others nationwide (March 9).
March 30 – Hollywood special: “Erin Brockovich”. The words “babelicious” and “toxic tort” had probably never been used in the same sentence before, but Julia Roberts’ new flick is finally showing that with the right costume design a litigation movie can ace the box office. Now the Hudson Institute’s Mike Fumento, in an op-ed in Tuesday’s Wall Street Journal expanded considerably into a piece in yesterday’s National Post (Canada), challenges the premise, taken for granted among most reviewers of the film, that Pacific Gas & Electric was guilty as charged of poisoning the populace of a small California desert town with chromium-6 in the water. Fumento says the levels of contamination found were orders of magnitude lower than those needed to induce health effects in experimental animals; that the lawyers sought to blame on the water a wide assortment of ailments among local residents that science has not linked to chromium exposure; and that health studies found that the plant’s own workers, who were likely exposed to at least as much pollution as neighbors, had a life expectancy comfortably exceeding the California average. (Michael Fumento, “The dark side of Erin Brockovich”, National Post, March 29; Michael Fumento, “‘Erin Brockovich’, exposed”, Wall Street Journal, March 28; official film site; Mr. Showbiz review; Christine Hanley, “Brockovich’s Work Is Just Beginning”, AP/ABC News, March 27).
March 30 – Hollywood special: “The Insider”. Though nominated for numerous Oscars, last season’s portentous litigation epic The Insider got shut out in the actual naming of awards. Were Academy voters bothered by the film’s unacknowledged fictionalizations, or did they just share the views of Adam Heimlich of the New York Press, who last week called the film “preposterously overheated … The title character’s big revelation in this interminable movie — which treats the looting of tobacco companies by trial lawyers with enough gravitas to make Judgment at Nuremberg feel like Oklahoma! by comparison — is that ‘cigarettes are nothing but a delivery system for nicotine.’ … God forbid someone in Hollywood or on the Upper West Side speaks out against the selective demonization, for purposes of state and oligarchic power, of the drugs they don’t happen to use. Philip Morris should fight back with a drama exposing that Starbucks lattes are nothing but a delivery system for caffeine and martinis are nothing but a delivery system for alcohol. If Insider wins Best Picture … it’ll prove that Hollywood is nothing but a delivery system for the propagandistic justification of top-down class warfare.” But it didn’t win. (Adam Heimlich, “Heimytown”, New York Press, Mar. 22).
March 30 – Al Gore among friendly crowd. Last Thursday Vice President Gore attended a $500,000 luncheon fund-raiser at the Cincinnati home of Stanley Chesley, sometimes nicknamed the “Master of Disaster”, one of the country’s most prominent plaintiff’s trial lawyers. The Cincinnati Post says that Chesley, known for air-crash, tobacco and Microsoft suits, “has been a dependable fund-raiser for the vice president and President Clinton.” (Bill Straub, “Gore next to visit Cincinnati to raise funds”, Cincinnati Post, March 22; Sharon Moloney, “Gore bashes Bush tax plan”, Cincinnati Post, March 24); Christopher Palmeri and James Samuelson, “The Golden Leaf”, Forbes, July 7, 1997). For recent fund-raising by Bill Clinton among trial lawyers, see our Feb. 14 commentary.
Forbes Online columnist James Freeman recently took a hard look at Gore’s in-depth support from trial lawyers (”Who’s funding Gore?”, Feb. 28). Gore’s financial backers over the years have included most of the biggest names in the litigation business, including Wayne Reaud (asbestos, Toshiba laptops), John O’Quinn (breast implants, many others), Joe Rice (asbestos, tobacco), Bill Lerach (shareholder lawsuits), etc. Gore hosted Lerach at the White House for coffee in February 1995, Freeman writes, and Chesley was there for coffee that same day.
March 29 — Litigator’s bliss: finding opponent’s disgruntled former employee. “Assume the legal lotus position and imagine a happy place. What greater nirvana could there be than [finding] the disgruntled former employee of an opposing party? Gruntled or not, a high priority of any good discovery plan should be to identify and interview former employees as quickly as possible, before the other side can neutralize or co-opt them.” (Jerold S. Solovy and Robert L. Byman, “Discovery: Ex parte, Brutus?” (practitioners’ advice column), National Law Journal, March 27, not online).
March 29 – Why rush that software project, anyway? California adds to its reputation as a high-hassle state for tech employers with a law taking effect this year, backed by unions and plaintiff’s employment lawyers, requiring that many computer consultants be paid overtime rates if they put in more than eight hours in a day. Many such consultants bill at rates that exceed $50, $100 or even $200 an hour, before the overtime premium is added in. One Bay Area staffing exec says most of his employer clients are unwilling to trigger the overtime entitlement and are instead sending home specialists after eight hours who would previously have worked longer (Margaret Steen, “New overtime law spurs change in tech firms”, San Jose Mercury News, March 22, link now dead; “Hi, OT Law; Bye, Tech Boom?”, Reuters/Wired News, March 2; Margaret Steen, “New law means overtime pay for computer consultants”, San Jose Mercury News, Feb. 29; Kirby C. Wilcox, Leslie L. Abbott and Caroline A. Zuk, “The 8-Hour Day Returns”, CalLaw, Jan. 24).
March 29 – The bold cosmetologists of law enforcement. The New York Times took note this Sunday of efforts in Nevada and Connecticut to enlist beauty-parlor personnel in the task of identifying possible victims of domestic violence for referral to battered women’s shelters and other social service agencies (see our March 16 commentary). Its report adds a remarkable new detail regarding the sorts of indicators that Nevada cosmetologists are being officially encouraged to watch for as signs of household violence (being licensed by the state, they have reason to listen with care to what’s expected of them). “Torn-out hair or a bruised eye may signal abuse, but more subtle warning signs may come out in conversation. One Nevada hairdresser, [state official Veronica] Boyd-Frenkel said, told of a client who said: ‘My husband doesn’t want me to see my friend anymore. He says she is putting bad ideas in my head.’
“‘Emotional abuse, intimidation, control, jealousy, overpossessiveness and constant monitoring,’ she said, can be as sure signs of domestic violence as physical injuries.” Does Ms. Boyd-Frenkel, who holds the title of “domestic violence ombudsman” for the attorney general of Nevada, really deem it “emotional abuse” and potential domestic violence when a husband seeks to warn a wife (or vice versa) away from a friend who’s considered a bad influence? Is such spousal behavior really to trigger the notice of the official social-service apparatus, and its new deputies in the hair and nail salons of Nevada? (Jeff Stryker, “Those Who Stand and Coif Might Also Protect”, New York Times, March 26).
March 29 – Update: advice to drop medication unavailing. As reported earlier, subway-push defendant Andrew Goldstein went off his antipsychotic medication before his recent murder trial on advice of his lawyers, in order to demonstrate to the jury how deranged he was (see Feb. 26-27 and March 2 commentaries). Whatever the ethical status of this tactic, it was apparently unavailing in practice: a New York City jury convicted Goldstein of murder last week. He will probably serve his sentence in a state prison outfitted to give him psychiatric care. (Samuel Maull, “Man Convicted in Subway Shove Case”, AP/Excite, Mar. 22).
March 28 – $65 million Texas verdict: driver at twice the legal blood limit. “A Galveston, Texas, jury has awarded $65 million to the parents and estate of a woman who drowned after her car plunged off a boat ramp and she couldn’t disengage her seat belt.
“The jury found defendants Honda of America Manufacturing Co. Inc. and Honda R & D Co. Ltd. 75 percent responsible for the death of Karen Norman — even though after her death, Norman’s blood-alcohol level measured at nearly twice the Texas legal limit. …
“After the accident, [Honda attorney Brad] Safon noted, Norman’s blood-alcohol level was measured at 0.17. The Texas drunk driving limit at the time of the accident was 0.10; it is now 0.08.” Plaintiff’s lawyers said the salt water in which Norman drowned might have thrown off the blood level reading. (Margaret Cronin Fisk, “Fatal Grip of Seat Belt Results in $65M Verdict”, National Law Journal, Mar. 27)(& update Oct. 13, 2003: appeals court throws out award, which trial judge has previously reduced to $43 million).
March 28 – Call me a fraud, will you? Why, I’ll…I’ll hire you! Last year Big Five accountants Ernst & Young paid $185 million to settle a bankruptcy trustee’s charges that it had mishandled the affairs of the now-defunct Merry-Go-Round apparel chain. Now Ernst has sued its former law firm, D.C.-based Swidler Berlin Shereff Friedman, which it says should share the blame. And to prosecute the new suit Ernst has hired none other than the law firm that sued it in the first round, Snyder, Weiner, Weltchek & Vogelstein of Pikesville, Md. “Swidler noted that Snyder Weiner in the earlier suit had accused Ernst of fraud, and now Snyder Weiner in ‘this complaint asserts “E&Y’s innocence of the fraud”‘”. An Ernst executive shrugs off criticism: “Who knows about the case more than the firm that argued the other side?” (Elizabeth MacDonald, “Ernst & Young Sues Law Firm Over Settlement”, Wall Street Journal, March 14 (online subscribers only); James V. Grimaldi, “Accounting Firm Sues Lawyers”, Washington Post, March 14).
March 28 – Annals of zero tolerance: don’t play James Bond. A fifth-grade “model student” at Sutton Elementary School in Tecumseh, Michigan faces expulsion for up to a half year for bringing a plastic toy gun to school because he wanted to “play James Bond”. “You could see it was plastic,” said school superintendent Rich Fauble. “If you looked at it, you could tell it wasn’t a gun.” “I just wanted to play with it at recess,” said the boy, in Fauble’s account. “I didn’t want to hurt anybody. I play with it at home.” Sutton principal Debra Langmeyer said the board’s recommendation of expulsion “might seem extreme” but is intended to “send a message” about guns. (”Toy gun may cause student’s expulsion”, Toledo Blade, Mar. 16).
March 28 – From the labor arbitration front. The Connecticut Supreme Court, over dissents from two of its members, has upheld an arbitrator’s order that David Warren be reinstated to his municipal job in the town of Groton, from which he was dismissed in 1997 after pleading no contest to charges of larceny. Warren was accused of stealing money from the town by selling dumping permits and pocketing the proceeds himself, but the court saw no reason to disturb an arbitrator’s reasoning that his no contest plea might have reflected a wish to avoid the cost and inconvenience of trial, rather than actual guilt. (”‘No-contest’ not guilty, Supreme Court says”, New Haven Register, March 21). And the U.S. Supreme Court has agreed to review an arbitrator’s order that a West Virginia mining company rehire a heavy machinery operator fired after he twice tested positive for marijuana use. The Fourth Circuit upheld the reinstatement, noting that courts “overwhelmingly” defer to the results of arbitration in the unionized workplace. (AP/FindLaw, “Supreme Court to clarify when lower courts can overrule arbitrators”, Mar. 20; Eastern Associated Coal Corp. vs. United Mine Workers, 99-1038).
March 28 – Another visitor record set. Last week was the busiest yet for visitors since Overlawyered.com was launched nine months ago … thanks for your support!
March 27 – Welcome Arts & Letters Daily readers. The best weblog in the world for coverage of essays and history, biography and belles-lettres, is put out for a worldwide audience by philosophy professor Denis Dutton of the University of Christchurch in New Zealand. We get a featured link today (see right-hand column after link to Sullivan piece, for which itself see below).
March 27 – Another S&W thing. “We want to do a Smith & Wesson-like thing with DoubleClick,” Michigan attorney general Jennifer Granholm said Thursday, referring to restrictions on Web data collection that she and attorneys general from New York, Connecticut, and Vermont have been negotiating with the biggest online ad-placement company. We suppose this means that she and her colleagues want to invent far-fetched legal theories to attack business practices that have long been regarded as lawful; file a great flurry of suits in multiple courts so as to overwhelm the designated opponent; use the threat of bankrupting legal expense to muscle it into submission with no need to reach a decision on the merits; and instill fear into other businesses that the same thing could happen to them unless they cooperate with the dictates of ambitious AGs. After all, that’s what was done to S&W. (”AGs Eye Privacy”, Reuters/Wired News, March 23; “DoubleClick in settlement discussions”, Bloomberg News/CNet, March 23).
March 27 – Philadelphia: feminist groups to be consulted on whether to classify incidents as rape. As several high-profile cases in recent years demonstrate, authorities sometimes charge men with rape or sexual abuse in cases where there’s conflicting or ambiguous evidence as to whether there was nonconsensual sexual contact (see, for example, the case of Columbia University grad student Oliver Jovanovic, whose conviction was overturned by a New York appeals court in December). Now Philadelphia police commissioner John Timoney has announced that “he will let women’s organizations help police decide when to believe sexual-assault complaints and how to classify them.” Barbara DiTullio, who heads the Pennsylvania chapter of the National Organization for Women, called the plan “wonderful” and said it could become a model for police departments across the country. “We’re putting together a committee of women . . . and [will] actually, quite literally, let this women’s group be the final say on our classification [of cases]” said Timoney in an interview, though the women’s groups themselves expressed doubt as to whether their say would be final. (Mark Fazlollah, Craig McCoy, and Robert Moran, “Timoney to allow sex-case oversight”, Philadelphia Inquirer, Mar. 21) (via Freedom News).
March 27 – Microsoft Windows downgrade. Be prepared for the Justice Department’s anticipated “remedies” in Reno v. Gates by visiting this parody site (Bob Rivers, KISW, Seattle).
March 27 – Social engineering by lawsuit. Yale law professor Peter Schuck “doubts [that Smith & Wesson] would have lost a court case,” according to this New York Times “Week in Review” piece, which also quotes the editor of this website concerning the evils of litigation as an end run around democratic process (Barry Meier, “Bringing Lawsuits to Do What Congress Won’t”, New York Times, March 26). Cato Institute fellow Doug Bandow wonders why undemocratic lawmaking-by-lawsuit hasn’t become a bigger election issue: “Politics is a bad way to make policy. Litigation is worse.” (”Litigative vs. Legislative Democracy”, Cato Daily Commentary, March 20). And Andrew Sullivan warns Britons that unless they watch out, their country’s trend toward “empowerment of lawyers” will lead them to the state of “hyper-litigation” typified by the U.S. (”A brief warning: soon lawyers will have Britain by the throat”, Sunday Times (London), March 26).
Also: we’ve now put online our editor’s op-ed from last Tuesday on the Smith & Wesson settlement, which expanded on the arguments made earlier in this space (Walter Olson, “Plaintiff’s lawyers take aim at democracy”, Wall Street Journal, March 21).
March 27 – Kessler rebuked. Last week the Supreme Court ruled that former Food and Drug Administration chief David Kessler had made an improper power grab when he claimed for his agency “broad powers that had somehow gone unnoticed for more than half a century” to regulate tobacco, writes Chicago Tribune columnist Steve Chapman: “This was a startling revelation indeed. In 1964, the FDA said it had no authority to regulate tobacco. In 1965, it said it had no authority to regulate tobacco. In 1972, it said it had no authority to regulate tobacco. Ditto in 1977, 1980, 1988, and so on — until four years ago, when Kessler checked the attic and was pleasantly surprised to find this prerogative stashed in a box crammed with eight-track tapes and copies of Look.” (”On Target: A Setback for the Anti-Tobacco Jihad”, March 23; Tony Mauro, “For ‘Better or Worse’ FDA Can’t Regulate Tobacco”, American Lawyer Media, March 22).
March 24-26 – “Trial Lawyers Pour Money Into Democrats’ Chests”. The article everyone’s talking about: yesterday’s New York Times shines some overdue light on the trial lawyers’ frantic shoveling of vast sums into this year’s federal election races. “‘It would be very, very horrifying to trial lawyers if Bush were elected,’ said John P. Coale, a Washington lawyer involved in the tobacco litigation, who has given over $70,000 to the Democrats. ‘To combat that, we want to make sure we have a Democratic president, House and Senate. There is some serious tobacco money being spread around.’” “What’s different this time around,” said Michael Hotra, vice president of the American Tort Reform Foundation, “is that everyone recognizes that the stakes are higher. We have a candidate who is making legal reform a core issue and we certainly applaud Bush for that.” Also discusses the website ATRF has set up to monitor trial lawyer campaign spending (Leslie Wayne, “Trial Lawyers Pour Money Into Democrats’ Chests”, New York Times, March 23).
March 24-26 – Who wants to sue for a million? A group of disabled Miami residents has filed a federal lawsuit against Disney and ABC under the Americans with Disabilities Act, claiming that the screening process for the hit TV show “Who Wants To Be a Millionaire” requires the use of a touch-tone telephone and does not make alternative provision for deaf applicants. “The group is seeking class-action status for themselves and others who are deaf, blind or paralyzed and have problems using the phone or hearing the instructions.” (Jay Weaver, “Disabled 4 sue to try for TV million”, Miami Herald, March 17). Update Nov. 7: federal judge dismisses case.
March 24-26 – Next: gender-blind stage casting? A federal jury in Nashville has returned a sex discrimination verdict against a pair of historical theme restaurants that hired only male food servers as a part of attempting to convey the atmosphere of 1800s-era riverboats. The Equal Employment Opportunity Commission sued Cock of the Walk restaurants in 1996 after a woman named Susan Mathis carried a secret tape recorder in her purse while applying for a server’s job (more on the curious lack of outrage over this practice). “The servers had to represent the legendary fighters who brawled for the privilege of steering the riverboats, which netted them the best-of-the-best title: ‘Cock of the Walk’,” a group that historically did not include women.
In 1997 the EEOC came under criticism for its crusade against the “Hooters” sexy-waitress chain, which paid $3.75 million in a settlement in hopes of not having to hire “Hooters Boys”. However, the agency’s contention that entertainment value is an improper basis for sex-casting in the hiring of food servers “has never been applied [by a court] to a more mainstream restaurant such as this, which does not have sexual titillation as part of its theme,” said a lawyer for the restaurants. (Stacey Hartmann, “Restaurants’ male-server policy loses in court”, The Tennessean (Nashville), March 16).
March 24-26 – Slip, fall, head for court. Roundup of recent Chicago gravity mishaps, as reported in the Sun-Times and relayed in Jim Romenesko’s irresistible Obscure Store: “Debbie Jacques was forced to wear paper booties when she tumbled. Monica Beeks walked in deep, loose grass, and fell. John Incisi tripped on a Kleenex box left on the stairs. They’re all hanging out in civil court, hoping to get some cash.” (Tim Novak, “Health worker blames paper booties for slip”, Chicago Sun-Times, Mar. 21).
March 24-26 – Welcome visitors. A sampling of the websites that have linked to Overlawyered.com recently: the distinguished literary and arts monthly, the New Criterion; ABC News correspondent John Stossel’s site; the Capital Research Center, which keeps an eye on politicized philanthopy; Pat Fish’s Luckyfish.com; the Nebraska Taxpayers for Freedom; Pickaway County (Ohio) Sportsmen, known for their shooting competitions; and Turkey’s Association for Liberal Thinking (Liberal Düsünce Toplulugu).
March 23 – Baron’s judge grudge. Dallas asbestos-suit czar Fred Baron may or may not have added another notch to his belt with the GOP primary defeat this month of Texas 14th District Court judge John Marshall. In 1998 Judge Marshall was presiding over asbestos litigation filed by Baron & Budd when evidence surfaced that the firm had engaged in extensive witness-coaching (see “Thanks for the Memories“); Judge Marshall referred the matter to a grand jury for possible prosecution, but the charges were eventually quietly buried without indictments. Baron, who now claims vindication, “made no secret of the fact he wants Marshall’s head,” according to alt-weekly Dallas Observer in a report just before the primary. “As early as last spring, Baron was casting about, looking for a candidate to back. ‘I talked to half a dozen people. We were looking for any candidate we could get who would be qualified to run against John Marshall’”. It had to be in the Republican primary, though, which is nowadays tantamount to election in Dallas County. First-time candidate Mary Murphy of Jenkins & Gilchrest, the one who eventually stepped forward to challenge Marshall, “insists she’ll be a fine Republican judge even though she wrote a $1,000 check to the Democratic party four years ago” among other past Democratic ties. “I had nothing to do with getting Mary Murphy to run. That’s a lie, a complete and absolute lie,” Baron told the Observer. Murphy says Baron did try to talk her into running but that it was others who convinced her. Promptly assembling an ample campaign chest, she went on to defeat the incumbent Marshall, obtaining 52 percent of the vote. (Thomas Korosec, “Bench Press”, Dallas Observer, March 9; Todd J. Gillman, “Republican judge questions challenger’s party loyalty”, Dallas Morning News, Feb. 19; Holly Becka, “Voters sent message by ousting three judges, experts say”, Dallas Morning News, March 16 (links now dead)).
Baron, whom we believe holds the title of president-elect of the Association of Trial Lawyers of America (we apparently jumped the gun recently in awarding him the title of president), has in the past been touchy about criticism. In 1998, when the Dallas Observer ran a cover-story exposé on his firm, columnist Julie Lyons said Baron had “bullie[d] the Observer’s every effort to investigate his firm’s practices, even taking the newspaper to court to discover sources, in a pattern of intimidation and paranoia such as the Observer has never experienced before.” (Patrick Williams, Christine Biederman, Thomas Korosec, Julie Lyons, “Toxic Justice”, August 18, 1998; Julie Lyons, “The Control Freak”, August 12, 1998. See also earlier Baron coverage on this website: Feb. 14, Jan. 8).
March 23 – Update: mistrial in bank robber’s suit, more litigation expected. By a vote of 9 to 3, jurors in their deliberations were of the view “that the civil rights of Emil Matasareanu, armed criminal, shooter of cops, were not violated on Feb. 27, 1998, by officers who didn’t get an ambulance to poor Emil quickly enough” after his bloody shootout with police following a North Hollywood bank robbery (see Feb. 23 commentary). A federal judge declared a mistrial, and an L.A. Times columnist writes that “the attorney for Matasareanu’s survivors is expected to bring the case against the city and two retired LAPD officers to court again. By survivors, I mean the dead man’s family, not the people he didn’t kill.” (Mike Downey, “A World With No Bad Guys, Just Topsy-Turvy Juries”, Los Angeles Times, March 17, link now dead).
March 23 – Let them sue us! In the recent media boomlet over “medical mistakes”, it’s been easy to forget that hospitals currently must anticipate years of expensive litigation if they move aggressively to withdraw practice privileges from perceived “problem doctors”. Consider the now-celebrated “Dr. Zorro” case, in which Dr. Allan Zarkin is alleged to have carved his initials into a patient’s body at New York’s Beth Israel Hospital. The hospital’s chairman, Morton P. Hyman, “vowed he would make it harder for doctors to maintain their privileges at Beth Israel and would see that hospital procedures were tightened further. … Doctors disciplined by the state will be automatically dismissed from the hospital, he announced, even if their firings leave the hospital liable. ‘Let them sue us,’ he said, pounding the table.” (Jennifer Steinhauer, “At Beth Israel, Lapses in Care Mar Gains in Technology”, New York Times, Feb. 15, not online).
March 22 – Next on the class-action agenda: liquor? Public Citizen, whose campaigns against American business often closely parallel those of the organized plaintiff’s bar, has for a while been grouping alcohol and gambling companies with tobacco and gun makers as “killer industries” in its distinctively shrill propaganda. (”Killer Industries Fund Congressional Champions of “Family Values’”, press release, Dec. 28, 1998, “Family Values, Killer Industries”, undated; both on Public Citizen website). And the pro-hospitality-business Guest Choice Network thinks it has evidence that the previously long-shot idea of mass litigation against alcoholic beverage makers may be getting to be less of a long shot:
“* The Minnesota DWI Task Force called upon their state’s criminal justice system to initiate class action litigation against makers of adult beverages.
“* MADD’s [Mothers Against Drunk Driving's] year-end press conference closed with a comment from president Karolyn Nunnallee that initiating litigation against alcohol and hospitality companies ‘will be an issue of discussion’ at an upcoming meeting. Although MADD did not have plans to sue ‘at this time,’ she added, ‘but never say never!’” (”They’re Bellying Up to the Bar!”, Guest Choice Network, undated). Martin Morse Wooster examines the evolution of MADD’s views in a new paper for Capital Research Center (”Mothers Against Drunk Driving: Has Its Vision Become Blurred?”, Feb. 2000).
March 22 – Rise of the high school sleepover disclaimer. Before having some of his daughter’s tenth-grade classmates out for the weekend to the family home in East Hampton, a parent at Manhattan’s tony Brearley School had his attorney draft a 765-word “liability waiver and indemnification agreement” for the other parents to sign and return. It describes the students’ impending visit to the “house and surrounding property at the above address (the ‘premises’) without charge on or about Saturday, November 20, 1999 and Sunday, November 21, 1999 during their weekend trip to East Hampton, NY (such use of the premises, the ‘visit’).” Several dense sentences later, it gets to the point: “Student and parent hereby waive any and all present and future claims related to or arising out of or in connection with the visit or any losses they, any other family member or any third party may suffer in connection therewith…” Apparently enough parents signed and the trip came off with no problem. (”Gotham: In Loco Parentis”, New York, Dec. 6; portions of disclaimer appear in printed magazine but not online).
March 22 – Newest disabled right: audio TV captioning. Decision expected this summer on Federal Communications Commission proposal that TV networks be compelled to provide at least four hours of programming a week with “secondary audio” descriptions of filmed action (“…Rhett takes Melanie in his arms and carries her to safety as Atlanta burns around them”) in hopes of giving blind viewers an “equivalent experience” to what sighted viewers are getting. Hollywood types “say descriptions will stifle creativity and jack up programming costs by about $4,000 for an hour of airtime”; audio captioning is considerably more expensive than closed-captioning for the deaf, mandated since 1998, because descriptions of filmed action call for a modicum of editorial judgment as opposed to mere transcription. And the National Federation of the Blind reports that many of its constituents have mixed feelings about the technique, finding it “irritating, overdone, and full of irrelevant information” and switching it off after a trial. (FCC captioning page; Nat’l Fed. Blind comments; Jonathan Aiken, “FCC proposes descriptive audio to help blind enjoy TV”, CNN, Feb. 24). See also our Feb. 19-21 commentary, on the ADA suit filed by deaf moviegoers in Oregon seeking to compel theaters to install closed captioning for films.
March 21 – Smith & Wesson’s “voluntary” capitulation. Today’s Wall Street Journal carries our editor’s op-ed on the Smith & Wesson settlement, adapted and expanded from yesterday’s commentary on this site. The piece asks: why aren’t Republican members of Congress and business people expressing more outrage? “It would surely make a symbolic difference if a few CEOs of companies outside the gun industry chipped in personal checks to start a legal defense fund for small gun makers being bulldozed by the cost of litigation, to give them at least a hope of surviving to fight the suits on the merits. Or if they let it be known that mayors who’ve signed on to the gun-suit jihad should stop passing themselves off as ‘pro-business.’ Not long ago the mayor of Bridgeport, Conn., Joseph Ganim, a gun-suit mastermind who’s considered ambitious for statewide office, was feted by a Chamber of Commerce in his local Fairfield County. Hey — it’s someone else’s industry he’s working to destroy, right?” (Walter Olson, “Plaintiffs Lawyers Take Aim at Democracy”, Wall Street Journal, March 21 (requires online subscription)).
March 21 – Ability to remain conscious not obligatory for train dispatcher, EEOC argues. “In the case of a former Consolidated Rail Corp. employee with a heart condition that can cause him to lose consciousness, the Equal Employment Opportunity Commission told a federal appeals court in Philadelphia that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.’” The worker had sued Conrail under the Americans with Disabilities Act and lost in federal court; on appeal, the EEOC argued that the railroad could have accommodated his condition and that he was not a ‘direct threat’ to others, which is the standard employers must meet under the ADA if they wish to exclude disabled employees from jobs on safety grounds. “The employee was denied a dispatcher’s job that involves directing trains and taking emergency action to prevent crashes.” (”Employment Briefs: Worker denied promotion sues”, Detroit News, March 18).
March 21 – Furor just one click away. Outcry over Amazon.com’s patent of “one-click” shopping method rumbles on. Founder/CEO Jeff Bezos says the company did it in self-defense; he’s now proposed an across-the-board reduction in the length of patent protection for software and business-method patents. Some veteran intellectual-property lawyers take issue with that scheme and are also upset at a New York Times Magazine article by science writer James Gleick questioning some of the patent system’s fundamental assumptions. Until recently it was widely assumed that business methods — the discovery of a superior method for laying out the aisles of a supermarket, for example — couldn’t be patented at all. What would stores be like today if the idea of a “checkout counter” had been locked up for twenty years by the first company to file for it?
SOURCES: Victoria Slind-Flor, “The Biz-Method Patent Rush”, National Law Journal, Feb. 28; Chris Oakes, “Another Amazon Patent Furor”, Wired News, March 2; Boycott Amazon site (Free Software Foundation); Chris Oakes, “Bezos: Patents Were Self-Defense”, Wired News, Mar. 3; Chris Oakes, “Patently Absurd”, Wired News, Mar. 3; Bezos open letter, Amazon site; Dugie Standeford, “Book Publisher Launches Cybercampaign Against Amazon.com”, E-Commerce Law Weekly, March 8; James Gleick, “Patently Absurd,” New York Times Magazine, March 12; “The Harm of Patents”, O’Reilly Network, March 13; Omar Perez, “Amazon.com Patents Cast Giant Shadow Over Affiliates”, March 20; Miami Daily Business Review, March Victoria Slind-Flor, “Bar Reacts To Bezos Patent Reform Plan”, National Law Journal, March 20.
March 21 – Whether they meant to hurt anyone or not. How harsh can the legal environment become for drunk drivers? North Carolina seems to have pushed things to the ultimate extreme: its prosecutors seek to execute them when they cause fatal accidents. (Paula Christian, “Supreme Court to decide if drunk drivers get death penalty”, Greensboro News & Record, Mar. 12).
March 21 – New subpage on Overlawyered.com: Canadian corner. Finally! A page for our many readers north of the border who’ve noticed the nuggets of Canadian content we periodically slip in and would like them gathered in one spot for convenience. As befits the differences between the two legal systems, there isn’t so much “overlawyering” apparent in most of the stories we relay from Canada; but with regard to most other types and varieties of human folly, the two nations seem to be are in a neck-and-neck race.
March 20 – Liberty no longer insured by Smith & Wesson. In an ominous triumph for brute litigation force — and a setback for both democratic governance and Second Amendment liberties — the Clinton Administration and lawyers representing city governments on Friday bullied the nation’s largest gun maker into agreeing to a variety of controls on the distribution of its products, controls that the Administration had not been able to obtain through the normal legislative process. The company said its capitulation would preserve the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” As the New York Times reports, the deal has “opened a new avenue for regulating the firearms industry without action from Congress, where partisan gridlock has stalled even modest gun-control legislation in recent months” — “partisan gridlock” being here employed by the Times as a pejorative synonym for the normal democratic process, which when working properly does not result in the speedy enactment of measures passionately opposed by a large constituency within the majority legislative party.
At this point it would make sense for the Republican Congressional leadership to rise up in unmistakable disapproval of the Clintonites’ invasion of their legislative prerogatives, and announce that –whatever one’s personal position on the details of gun control proposals — the use of litigation as an undemocratic end run around the legislative process is categorically wrong and must be fought with appropriate means at Congress’s disposal, such as funding cutoffs. And yet the first round of wire service stories quotes only one GOP Congressional leader, J.C. Watts of Oklahoma, as reacting to the news, and his quoted words, incredibly, are favorable: “we hail Smith & Wesson for taking a pro-active approach to the problem of violence”.
Advocates of gun-control-through-litigation — not to mention trial lawyers looking for an eventual payday from gun suits — view Smith & Wesson’s surrender as a harbinger of more victories ahead. “The legal fees alone are enough to bankrupt the industry,” boasts John Coale, one of the lawyers masterminding the city suits. “The pressure is going to be on”. Why are so few elected officials standing up to say that what’s going on is wrong?
SOURCES: Agreement text at HUD website; Smith & Wesson statement; Clinton Administration press release; “U.S. Drops Legal Threat Against Smith & Wesson”, Reuters/Excite, Mar. 17; Knut Engelmann, “U.S. Drops Legal Action Against Gun Maker”, Reuters/Excite, Mar. 17; David Ho, “Officials Praise Smith & Wesson”, AP/Excite, Mar. 17; Amy Paulson, “Smith & Wesson agrees to landmark gun safety settlement”, CNN, Mar. 17; Brigitte Greenberg, “Smith & Wesson Gets Preference”, AP/Excite, Mar. 18; Edward Walsh and David A. Vise, “U.S., Gunmaker Strike a Deal”, Washington Post, March 18; James Dao, “Gun Maker Agrees to Curbs in Exchange for Ending Suits”, New York Times, March 18 (requires free registration).
March 20 – “Study Shows Breast Implants Pose Little Risk”. “An analysis appearing in Thursday’s New England Journal of Medicine suggests silicone breast implants are safe, despite widespread perception that the controversial devices cause health problems” — not to mention a trial-lawyer-led campaign that drove the devices off the market and reaped a settlement totaling billions of dollars from manufacturers. Researchers at the University of North Carolina, Chapel Hill, performed a combined analysis of 20 earlier studies and concluded that “‘the elimination of implants would not be likely to reduce the incidence of connective-tissue diseases’ such as rheumatoid arthritis, lupus, or other illnesses caused by the misfiring of the immune system”. (Reuters/ FindLaw, Mar. 15).
March 20 – Do as we say, cont’d. Disabled-rights laws are feared by many private business owners who face the prospect of heavy fines and lawsuit settlements for noncompliance. As for the judicial branch, charged with enforcing these selfsame laws? Well, they’re often a wee bit less mindful of ‘em. Howard County, Maryland Circuit Judge James B. Dudley, who isn’t disabled, concedes that his desire to stick close to the courthouse so he could answer jurors’ questions during a trial was “probably not a justification” for his having chosen to park in a clearly marked handicapped space, a practice also engaged in by local sheriff’s deputies. (Del Quentin Wilber, “Judge parks in hot water”, Baltimore Sun, Mar. 11). And in Massachusetts, following on the revelation that Boston’s opulent new courthouse lacks wheelchair access to its jury boxes and witness stands (see July 17-18, 1999 commentary), the Cape Organization for Rights of the Disabled sued over the disabled-unfriendly state of the Plymouth County courthouse; Barry Sumner couldn’t get over the threshold to divorce his wife and had to ask her to help lift his chair. (Paul Sullivan, “Suit seeks access for disabled at Plymouth court”, Boston Herald, Sept. 10, 1999). Aren’t these courts lucky they’re not private businesses?
March 20 – Costs of veggie-libel laws. Talk show hostess Oprah Winfrey keeps winning in round after round of litigation filed by cattlemen after a February 1998 show she did on mad-cow disease. “Ironically, the more she wins, the more she loses,” observes First Amendment specialist Paul McMasters. Aside from our lack of a loser-pays rule, the culprit is “agricultural-disparagement” laws enacted in 13 states, which menace media producers if they knowingly broadcast false and disparaging statements that harm the salability of perishable farm products. (”Shut up and eat everything on your plate”, Freedom Forum Online, Feb. 21; Ronald K.L. Collins and Paul McMasters, “Veggie Libel Laws Still Out to Muzzle Free Speech”, Texas Lawyer, March 30, 1998). Last year the Texas legislature turned back an attempt to repeal that state’s ag-disparagement law, though the Abilene Reporter-News pointed out that the law is hard to square with the state’s successful efforts under Governor Bush to curb excessive litigation. (”‘Veggie libel’ law Texas can live without” (editorial), April 13, 1999; “House lets ‘veggie libel’ law stand; Bill seeking repeal voted down 80-57″, AP/Dallas Morning News, May 8, 1999).
March 20 – 250,000 pages served on Overlawyered.com. Thanks for your support!
March 17-19 – Holiday literary selection: Irish squire’s litigious ways.“Then there was a bleach yard near us, and the tenant dare refuse my lady nothing, for fear of a law-suit Sir Murtagh kept hanging over him about the water course. With these ways of managing, ’tis surprising how cheap my lady got things done, and how proud she was of it. … [The tenants] 
knew her way, and what with fear of driving for rent and Sir Murtagh’s law-suits, they were kept in such good order, they never thought of coming near Castle Stopgap without a present of something or other nothing too much or too little for my lady eggs honey butter meal fish game, grouse, and herrings, fresh or salt all went for something. … [H]e made a good living of trespassing cattle there was always some tenant’s pig, or horse, or cow, or calf, or goose, trespassing, which was so great a gain to Sir Murtagh, that he did not like to hear me talk of repairing fences….
“As for law, I believe no man, dead or alive, ever loved it so well as Sir Murtagh. He had once sixteen suits pending at a time, and I never saw him so much himself roads lanes bogs wells ponds eel-wires orchards trees tythes vagrants gravel-pits sandpits dung-hills and nuisances every thing upon the face of the earth furnished him good matter for a suit. He used to boast that he had a law-suit for every letter in the alphabet. How I used to wonder to see Sir Murtagh in the midst of the papers in his office why he could hardly turn about for them. I made bold to shrug my shoulders once in his presence, and thanked my stars I was not born a gentleman to so much toil and trouble but Sir Murtagh took me up short with his old proverb, ‘learning is better than house or land.’ Out of forty-nine suits which he had, he never lost one but seventeen; the rest he gained with costs, double costs, treble costs sometimes but even that did not pay. He was a very learned man in the law, and had the character of it; but how it was I can’t tell, these suits that he carried cost him a power of money in the end he sold some hundreds a year of the family estate but he was a very learned man in the law, and I know nothing of the matter except having a great regard for the family. I could not help grieving when he sent me to post up notices of the sale of the fee simple of the lands and appurtenances of Timoleague. ‘I know, honest Thady,’ says he to comfort me, ‘what I’m about better than you do; I’m only selling to get the ready money wanting, to carry on my suit with spirit with the Nugents of Carrickashaughlin.’” — from Chapter 1, Castle Rackrent, subtitled An Hibernian Tale Taken from Facts, and from the Manners of the Irish Squires, Before the Year 1782, by Maria Edgeworth (1800) (biographies: Edgeworth family site, E-Search Ireland, WritePage, Morley’s) (e-text at Carnegie-Mellon; alternate e-text location, Creighton U.) (passage is from fourth long paragraph of text).
March 17-19 – Letterman sign suit. Anna Soares, 79, who lives near the Manhattan studio where David Letterman tapes his show, filed a lawsuit last month demanding $12 million from CBS because the network has declined to remove a giant illuminated sign of Letterman’s likeness which shines into her apartment’s window. Network officials say they believe they have the proper permits for the sign. Reader Gregory Kohs of American Cynic comments: “what I find preposterous is the $12 million sum the lady decided would be fair.” If the sign does not violate code, how about asking for the costs of relocating to a less-commercial neighborhood? “I think a wee bit less than $12 million would be sufficient to get her belongings into a moving truck.” (”People in the news: Woman files lawsuit over Letterman sign”, Boulder Daily Camera, Feb. 19) (second item).
March 17-19 – Go ahead and comment — if it’ll do much good. The Occupational Safety and Health Administration’s proposals on ergonomics “may be the single most costly employment policy regulation in U.S. history,” according to the Employment Policy Foundation. Now OSHA has thrown open a period for public comment on the rules, but the Clinton Administration has already signaled that the option favored by most organized employers — not proceeding with the rules at all — is unlikely to be considered, no matter what volume of critical comments may come in. (Alice Ann Love, “Public dialog opens on new workplace safety rules”, AP/Fox News, March 14; Michael D. Towle, “OSHA pushing for new regulations aimed at preventing repetitive motion injuries”, CNN, March 9).
SOURCES: OSHA proposed standard; Yahoo Full Coverage; Ron Bird and Jill Jenkins, “Ergonomics Regulation: Vague, Broad and Costly”, EPF Backgrounder, Jan. 12; National Coalition on Ergonomics (employer alliance); Matt Labash, “Hooked on Ergonomics”, Weekly Standard, Feb. 28; “OSHA Unveils Ergonomics Standard To Ire of Congress, Employer Groups”, Employment Law Weekly, Nov. 29; comments of Mercatus Center, George Mason U., National Association of Manufacturers; (via Junk Science 
Robert Hahn, “Bad Economics, Not Good Ergonomics,” Wall Street Journal, Nov. 24; David Saito-Chung, “What Price Workplace Safety? New Rules Spark Debate Over Science, Business Costs”, Investor’s Business Daily, Nov. 30; “New OSHA regs need rethinking” (editorial), Boston Herald, Nov. 26; “OSHAme on them!” (editorial), New York Post Nov. 24; “Repetitive Bureaucracy Syndrome” (editorial), Chicago Tribune, Nov. 24.
March 16 – Dave Barry on tobacco suits, round II. The humorist, who wrote a priceless column on the federal tobacco suit last fall (see Oct. 26) now offers an update reflecting on the news that “so far the states are spending more than 90 percent of the tobacco-settlement money on programs unrelated to smoking, such as building highways. … This is good, because we need quality highways to handle the sharp increase in the number of Mercedes automobiles purchased by lawyers enriched by the tobacco settlement.” Then there’s the new round of class-action suits contending that smokers themselves deserve money from the states, which if successful will establish the following cycle:
“1. SMOKERS would give money to THE TOBACCO COMPANIES in exchange for cigarettes.
“2. THE TOBACCO COMPANIES would then give the money to THE STATES (and their lawyers).
“3. THE STATES would then give the money to SMOKERS (and their lawyers).
“4. THE SMOKERS would then presumably give the money to THE TOBACCO COMPANIES in exchange for more cigarettes.”
But isn’t this inefficient, you may ask? Wouldn’t it be easier to order the tobacco companies to give smokers free cigarettes directly? “The trouble with that idea is that it would defeat the two main purposes of the War on Smoking, which are (1) to provide the states with money; and (2) to provide lawyers with, well, money.” Don’t miss this one (”War on Smoking always has room for another lawyer”, Miami Herald, Feb. 18).
March 16 – Judges can’t charge cost of corruption defense to insurer. “Three former San Diego Superior Court judges convicted of corruption charges can’t parlay judicial liability insurance into coverage for their criminal defense, the 9th U.S. Circuit Court of Appeals ruled.” In one of the biggest judicial scandals in California history (see our editor’s 1996 piece on the case), Michael Greer, James Malkus and G. Dennis Adams were found to have accepted gifts from prominent trial lawyer Patrick Frega in exchange for favorable rulings in cases. (Jason Hoppin, “No Coverage for Judges Convicted of Corruption”, The Recorder/ CalLaw, March 2).
March 16 – Your hairdresser — and informant? Hairdressers “are often confidantes for many people,” says Veronica Boyd-Frenkel, who holds the post of “domestic violence ombudsman” in the state of Nevada. All this is by way of explaining why her office, working with the state attorney general’s office, has launched a program to train cosmetologists to recognize signs of domestic abuse, the better to steer suspected victims to approved anti-domestic-violence groups. “They may hear things even someone’s best friend may not hear,” says Ms. Boyd-Frenkel, of the hair stylists. The Las Vegas Review-Journal, in an editorial, thinks it all rather smacks of the enlistment of ever wider circles of the citizenry as official informants (Angie Wagner, “State asks hairdressers to help domestic abuse victims”, AP/Las Vegas Review-Journal, Feb. 28; “Down the wrong path” (editorial), Feb. 29; Vin Suprynowicz, “The Libertarian: Watch what you tell your hairdresser” (expanded version of editorial), March 1; “Training would not make informants of cosmetologists” (letter to the editor from Ms. Boyd-Frenkel), March 5).
March 16 – Prof sues for right to flunk students. The University of Michigan describes as “utterly without merit” a lawsuit filed by Dental School associate professor Keith Yohn challenging the university’s refusal to fail two sophomore dental students. Yohn charges that the school bent its academic rules to allow the two to remain, and that an assistant dean sent him a belligerent email informing him that poor grades he and three other professors had given the students would be disregarded. Acting as his own attorney, Yohn went to federal court to charge the university with “deprivation of ‘freedom of speech’” and disregard of the ‘health care interest’ of the public and their children”; he also asks $125,000 for emotional distress. (David Shepardson, “U-M sued over dental grades”, Detroit News, Dec. 30; Hanna Lopatin, “Dental Prof. Sues U. Michigan for Refusing to Fail Students”, Michigan Daily/ StudentAdvantage.com, Jan. 5).
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January 31 – Scorched-earth divorce tactics? Pay up. Lawyers in Massachusetts are assessing the impact of two recent cases in which, departing from usual practice, courts have penalized family-law litigants for engaging in carpet-bombing tactics by ordering them to pay attorneys’ fees to their victimized opponents. In one case, Basel v. Basel, a husband was ordered to pay $100,000 of his wife’s legal bill after he unsuccessfully accused her of being a drunk, a drug addict, and a child abuser; the judge ruled that he’d engaged in a “calculated campaign of outrageous behavior to destroy (his) wife’s credibility” and called his portrayal of his wife “nefarious” and “fraudulent”. “By the time it was over,” the Boston Globe reports, “the lengthy litigation had cost more than $600,000 in legal fees, half of which was paid by [the husband's] parents.”
Peter Zupcofska, vice chairman of the Boston Bar Association’s family law section, said the ruling by Worcester probate judge Joseph Lian Jr. could signal a new departure in the state of matrimonial practice: “if the litigation that’s waged is clearly done to harass, harangue, and intimidate the other party, and to create a kind of economic slavery by utilizing vast amounts of marital funds in a really destructive way,” he said, “then the judge is going to do something to redress that imbalance.” In another recent Bay State case, Krock v. Krock, a probate judge awarded $81,000 in fees against a wife found to have engaged in wrongful litigation. “You can no longer assume that having money gives you the right to wage these frivolous, scorched-earth campaigns without risking paying the price for the other side,” said Boston family law practitioner Elaine Epstein. “And if you do, you do so at your own peril.” (Sacha Pfeiffer, “A warning to battling spouses”, Boston Globe, Jan. 23).
January 31 – Coils of forfeiture law. For Joe Bonilla, the good news is his acquittal three months ago on charges of drunken driving. The bad news is that New York City has no plans to give back the $46,000 Ford Expedition he was driving when cops pulled him over. Bonilla, a 34-year-old construction worker, is paying $689 a month on the vehicle, which he’d been driving for only two days when stopped last May on his way home, he says, from a late screening of the movie “Shakespeare in Love”. A Bronx judge declared him not guilty on the charge, but that doesn’t mean he can have his car back, the city says. (Tara George, “He’s Not Guilty of DWI, But Cops Still Have Car”, New York Daily News, Jan. 25) (more on forfeiture: Oct. 7, F.E.A.R., Reason, Fumento).
January 31 – Do as we say…. Serious fire code violations are threatening to snarl plans to open a $1-million public facility in Charleston, W.V. It’s kinda embarrassing since the facility is itself a fire station. “Not only is a firewall improperly installed inside the $1 million station house, but there are no smoke alarms in the sleeping quarters.” (Todd C. Frankel, “Fire station also lacking smoke alarms”, Charleston Daily Mail, Jan. 19).
January 31 – Showdown in Michigan. Battle royal shaping up this November in the Wolverine State, whose Supreme Court, since a series of appointments by Republican Gov. John Engler, has been assuming a national leadership role in rolling back litigation excesses. Trial lawyers, unionists and others are furiously plotting revenge when the judges stand for their retention elections. A Detroit News editorial provides a quick rundown on what promise to be some of this year’s most closely watched judicial races (Jeffrey Hadden, “State Supreme Court in partisan Catch-22″, Detroit News, Jan. 18).
January 29-30 – Update: OSHA in full retreat on home office issue. The Occupational Safety and Health Administration announced on Wednesday that it will not, after all, seek to regulate hazardous conditions in workers’ home offices, such as rickety stairs, ergonomically inappropriate chairs, or inadequate lighting. Accepting the agency’s spin, the New York Times’s Steven Greenhouse reports the new stance as a “clarification” meant to dispel “confusion”. Translation: the agency has baldly reversed its earlier policy. When OSHA’s November advisory letter came to public notice earlier this month, the Washington Post summarized its contents this way: “Companies that allow employees to work at home are responsible for federal health and safety violations that occur at the home work site.” (see Jan. 5, Jan. 6, Jan. 8-9 commentaries). Under the new policy, the word “not” will simply be inserted before the word “responsible” in that sentence. (At least as regards home offices: manufacturing activities conducted at home will still come under its jurisdiction, the agency says.)
Why did the earlier OSHA directive cause such an uproar? According to the Times‘ Greenhouse, it “alarmed thousands of corporate executives and angered many lawmakers, particularly Republicans” who began “using it” as a political issue — very naughty of them to do such a thing, we may be sure. But as most other news outlets reported, word of the policy had scared not just bosses but innumerable telecommuters themselves, who not unreasonably expected that the new policy would result in (at a minimum) more red tape for them and quite possibly a chill on their employers’ willingness to permit telecommuting at all. And while opposition from Republicans might come as scant surprise, the newsier angle was the lack of support from the measure from many elected Democrats; even a spokeswoman for Rep. Richard Gephardt said it “seemed excessive”.
OSHA director Charles N. Jeffress announced that the “bottom line” remained what it had “always been”: “OSHA will respect the privacy of the home and expects that employers will as well.” Translation: the agency was stung so badly by the public reaction to its initiative that it’s going to pretend it never proposed it in the first place (Steven Greenhouse, “Home Office Isn’t Liability For Firms, U.S. Decides”, New York Times, Jan. 28; Frank Swoboda, “OSHA Exempts White-Collar Telecommuters”, Washington Post, Jan. 27; “OSHA Exempts Home Offices”, Reuters/FindLaw, Jan. 27).
January 29-30 – Update: judge angered by obstructive SEPTA defense. After last month’s $50 million jury award against the Philadelphia transit authority over the maiming of 4-year-old Shareif Hall on an escalator, Judge Frederica Massiah-Jackson expressed anger over SEPTA’s mishandling of physical evidence and failure to provide relevant documents requested by the plaintiffs. The agency settled the case for $7.4 million and pledged to improve both its escalators and its litigation behavior in the future. (Claudia Ginanni, “Judge Fines SEPTA $1 Million; Authority Held in Contempt for Withholding Evidence”, The Legal Intelligencer, Dec. 23; “SEPTA Settles Escalator Suit for $7.4 Million”, Jan. 6; see Dec. 17-19 commentary).
January 28 – Law prof wants to regulate newspaper editorials. Libertarians have long warned that laws curbing private buying of campaign ads constitute a dangerous incursion on free speech and are likely to pave the way for further inroads. In last June’s Texas Law Review, Associate Professor Richard L. Hasen of Loyola University Law School (Los Angeles) proceeds to prove them correct by endorsing government regulation of newspaper editorials. He writes: “If we are truly committed to equalizing the influence of money of elections, how do we treat the press? Principles of political equality could dictate that a Bill Gates should not be permitted to spend unlimited sums in support of a candidate. But different rules [now] apply to Rupert Murdoch just because he has channeled his money through media outlets that he owns… The principle of political equality means that the press too should be regulated when it editorializes for or against candidates.”
Hasen happily looks forward to the day when the Supreme Court can be persuaded to overturn Buckley v. Valeo and the way will be clear for such regulation of the expression of opinion in newspapers: “op-ed pieces or commentaries expressly advocating the election or defeat of a candidate for federal office could no longer be directly paid for by the media corporation’s funds. Instead, they would have to be paid for either by an individual (such as the CEO of the media corporation) or by a PAC set up by the media corporation for this purpose. The media corporation should be required to charge the CEO or the PAC the same rates that other advertising customers pay for space on the op-ed page.” (Quoted by Stuart Taylor, Jr., “The Media Should Beware of What It Embraces”, National Journal, Jan. 1, no longer online; see also Richard Hasen, “Double Standard,” Brill’s Content, Feb. 1999).
January 28 — From our mail sack: unclear on the concept. To judge from the summaries of our search-engine traffic, a nontrivial number of visitors land on this website each day because they’re looking to get in on class-action lawsuits. We fear that we do not always succeed in giving full satisfaction to these visitors. For example, last week the following note arrived in our inbox, signed K.E.: “Please send me the website or address re the Toshiba settlement. I need to file. Why was this not on your site where it could readily be found?”
January 28 – Strippers in court. A group of San Francisco exotic dancers sued their employers last month, saying they’d been improperly categorized as independent contractors with the result that they were denied overtime pay and were unfairly forced to purchase their own “supplies”, in the form of expensive drinks. (National Law Journal, “The Week in Review: The Flux”, Dec. 27-Jan. 3). In Canada, a judge has ruled against Loredana Silion, 24, in her petition for a work permit to perform as an exotic dancer. While Ms. Silion had danced in a nightclub in her native Rumania, the job there involved only topless dancing, which the judge ruled was not a close enough match in skills for the task of dancing at Toronto’s Sunset Strip club, where nothing at all is worn. (Marina Jimenez, “Stripper told she’s not naked enough to work in Canada”, National Post, Jan. 14). And exotic dancer Doddie L. Smith has now sued an Arizona plastic surgeon, saying the doctor’s augmentation surgery left her breasts “too high” with the result that she is “unable to be a ‘featured dancer’ at exotic dance clubs, model as a centerfold in adult magazines, or promote her modeling career”. Estimated wage loss: $100,000. (Gretchen Schuldt, “Exotic dancer claims doctor botched breast surgery”, Milwaukee Journal Sentinel, Jan. 12) (Update: more on strippers in court: May 23, July 26-27).
January 26-27 – Florida ADA complaint binge. Invoking the Americans with Disabilities Act, “a half-dozen non-profit corporations and associated individuals [ ] have filed more than 600 federal suits in Miami, Fort Lauderdale and West Palm Beach” charging building owners and service providers with failing to make their facilities accessible to the handicapped, according to Miami’s legal publication, the Daily Business Review. Targets of the complaints, large and small, range from Kmart and Carnival Cruises down to local funeral homes and the little Coconut Court Motel in Fort Lauderdale, as well as nonprofits and public entities such as the local Baptist hospital and the city of Pompano Beach. A six-lawyer Miami Beach law firm, Fuller, Mallah & Associates, has spearheaded the assault, helping form three nonprofits that account for most of the filings. Indeed, no less than 323 of the cases name as plaintiff 72-year-old wheelchair user Ernst Rosenkrantz. “When pressed to explain how he hooked up with the law firm, Rosenkrantz said law firm partner John D. Mallah is his nephew.” However, “Mallah didn’t mention that relationship when asked about Rosenkrantz in an earlier interview,” notes reporter Dan Christiansen.
Most cases settle when the charged business agrees to make some modification to its facilities and pay the complainant’s legal fees — $275 an hour plus expenses in Mallah’s case. The ADA allows complainants to file suit without warning the target, and it displays considerable solicitude for the welfare of lawyers filing cases: “the attorney’s fees provisions are such that even if they get [nothing more than] the telephone volume controls changed, they automatically win the case,” says one defense lawyer. First Union, the large bank, says it refuses on principle to settle cases filed by the group: “The fees that are being charged seem to be way out of line to the amount of work that they do,” says one of its lawyers, besides which the bank had been moving forward on its own with an ADA compliance program. Rep. Mark Foley (R-Fla.) has asked the U.S. Department of Justice to investigate mass ADA filings in Broward County. (Dan Christiansen, “Besieged by Suits”, Miami Daily Business Review, Dec. 21). (Feb. 15 update: Congressmen introduce legislation) (DURABLE LINK)
January 26-27 – Seattle police: sued if they do… The constabulary of the northwest metropolis now faces a slew of lawsuits over its handling of the World Trade Organization protests in late November and early December. According to the Post-Intelligencer, the claims divide into two broad groups: those accusing the city of cracking down on the protesters too hard, and those accusing it of not cracking down hard enough. (Mike Barber, “Police sued for doing too little, too much”, Seattle Post-Intelligencer, Jan. 25).
January 26-27 – Feelings of nausea? Get in line. In 1997 a barge accident and chemical spill on the Mississippi sent a foul-smelling haze over much of Baton Rouge, La. A steering committee of attorneys formed to sue for compensation for local residents over symptoms such as “nausea, severe headaches and fatigue” experienced after smelling the odors. And did the claims ever start to roll in: by November of last year 13,000 forms had already been submitted, according to one lawyer, and the pace became even more frenetic as the Jan. 14 final deadline approached for filing claims. Long lines stretched around the block outside the old federal building; one woman said she waited six hours to get in the door, while more than 100 others were turned away at the end of the day, to come back the next day if at all; and many grumblings were heard about missing work. (Adrian Angelette, “Long line awaits claimants in chemical leak suit”, Baton Rouge Advocate, Jan. 14).(DURABLE LINK)
January 26-27 – From our mail sack: the lawyer’s oyster. Regarding our Jan. 15-16 “Poetry Corner” reprint of “The Benefit of Going to Law”, from Benjamin Franklin’s Poor Richard’s Almanack, 1733, New York attorney John Brewer writes: “Just a few days after noting the verse by Ben Franklin you had posted on your site, I came across an earlier and more concise exposition of the same image, viz.:
“Two find an Oyster, which they will not part,
Both will have all or none, the Lawyer’s art
Must end the strife; he fits their humour well,
Eats up the fish, and gives them each a shell.
“According to the recently published Oxford Companion to the Year (”An exploration of calendar customs and time-reckoning”), this appeared in the 1665 edition of Poor Robin’s Almanack (note possible Franklin influence of the name), as one of four such bits of doggerel marking the traditional four law terms. The oyster stanza was for Michaelmas Term.
“You might also find salient the verse for Hilary Term:
Anoint thy Lawyer, grease him in the fist,
And he will plead for thee e’en what thou list;
He’ll make thy cause strong though the same were weak,
But if thy purse be dumb, his tongue can’t speak.
“The verses for Easter and Trinity Terms are similarly on the theme of the costliness of going to law and its financial benefit to none but the bar, but have somewhat less punch and clarity of expression.”
January 25 – Feds’ tobacco hypocrisy, cont’d: Indian “smoke shops”. It seems when the Clinton Administration isn’t filing lawsuits to brand tobacco-marketing as “racketeering” (see Sept. 23 commentary), it’s quietly staking taxpayer money to help its constituents get into the business. A Senate Small Business Committee probe has found that since 1997 the Department of Housing and Urban Development has laid out $4.2 million to enable four Indian tribes to build “smoke shops” that sell discounted cigarettes free from state taxes. Why, one wonders, should subsidies be needed to facilitate an intrinsically high-profit activity that might be likened to lawful smuggling? And of course the source of this largesse is the very same HUD whose Secretary Andrew Cuomo has so loudly endorsed lawsuits against gun sellers whose wares are said to inflict spillover damage on other localities’ public health. A crowning hypocrisy is that some of the tribes that derive income from smoke shops are themselves now suing tobacco companies (see July 14 commentary).
The Senate committee uncovered six instances in which tribes obtained HUD subsidies to open smoke shops, five in Oklahoma and one in Nevada, but it is likely that the true number is larger. For example, this site’s editor, in his March Reason column (not yet in subscribers’ mailboxes, but previewing at the Reason site), identified another similar-sounding case: in 1997 HUD furnished the Reno Sparks Indian Colony with $450,000 “to build a smoke shop along Interstate 80 near the California border,” according to the Bend, Oregon, Bulletin. (Wendy Koch, “Tribes get funds to build ’smoke shops’”, USA Today, Jan. 24; Walter Olson, “The Year in Double Takes”, Reason, March). (DURABLE LINK)
January 25 – Line forms on the right for chance to suffer this tort. A woman has won $5,135 in damages from owners for having been locked overnight in an Irish pub. “Marian Gahan fell asleep on the toilet in Searsons Pub in central Dublin, and did not wake until 2 a.m., by which time the pub was closed”. She argued that the pub managers should have checked the toilets before locking up. The trial had to be adjourned early on when Ms. Gahan’s barrister, Eileen McAuley, burst into uncontrollable fits of laughter while recounting her own client’s case. (”Woman locked in pub wins $5,135 damages”, Reuters/Excite, Jan. 18; “Tears and laughter at trauma in toilet”, Irish Times, Oct. 21).
January 25 – Recommended reading. On the unnerving ease with which charges of abuse and violence can be pulled from a hat to provide legal assistance in a divorce (Dan Lynch, “We’ll see how blind justice is”, Albany Times-Union, Jan. 19); on the war underway in legal academia over many scholars’ acceptance of the idea that the Second Amendment does indeed protect individual gun rights (Chris Mooney, “Showdown”, Lingua Franca, February); on the chill to workplace banter now that harassment law has gotten well established in Britain (Roland White, “Careless talk makes the office world go round”, The Times (London), Jan. 23).
January 25 – Latest lose-on-substance, win-on-retaliation employment claim. It’s pretty common, actually: the suit-prone worker flatly loses on his original claim of discrimination, but his claim for “retaliation” comes through to save the day because after the job relationship had turned adversarial the employer was shown to have treated him less favorably than before. Bad, bad employer! This time a Delaware jury decided that Eunice Lafate had not in fact been passed over for a promotion at Chase Manhattan because of her race, but awarded her $600,000 anyway on her retaliation charges; after filing the complaint, she said, she’d been cut out of management meetings and given less favorable evaluations. (Jim DeSouza, “Jury Wants Chase Manhattan to Pay $600,000 for Retaliating Against Employee”, Delaware Law Weekly, Dec. 9)(see also Sept. 29 commentary).
January 24 – Latest shallow-end pool-dive case. In Massachusetts, the state’s Supreme Judicial Court has agreed to hear the appeal of Joseph O’Sullivan, who was visiting his girlfriend’s grandparents in Methuen and decided to dive into the shallow end of their pool. An experienced swimmer and 21 years old at the time, O’Sullivan was not paralyzed but did crack two vertebrae and proceeded to sue the grandparents for not stopping him or providing warnings. Boston Globe columnist Derrick Z. Jackson takes a dim view of O’Sullivan’s case, and the lower court did not find it persuasive either (”A shallow case for the SJC”, Jan. 12).
January 24 – “Mormon actress sues over profanity”. Christina Axson-Flynn, 20, is suing the University of Utah, charging that the theater department insisted that she use foul language in character portrayals even though they knew it violated her religious principles to do so. The department disputes the contentions in her suit, which asks for unspecified damages. (Yahoo/AP, Jan. 14; Jim Rayburn, “U. theater department sued over language”, Deseret News (Salt Lake City), Jan. 14). Update Feb. 16, 2004: appeals court lets suit proceed.
January 24 – “Ambulance chaser” label ruled defamatory. The Second Circuit federal court of appeals has ruled that a New York attorney can sue over a printed description of him as an “ambulance chaser” given to taking only “slam dunk cases”. The American Association of University Women and its related AAUW Legal Advocacy Fund had put out a directory in 1997 which listed 275 attorneys practicing in its fields of interest. Appended to the contact information for attorney Leonard Flamm was the following description: “Mr. Flamm handles sex discrimination cases in the area of pay equity, harassment and promotion. Note: At least one plaintiff has described Flamm as an ‘ambulance chaser’ with an interest only in ’slam dunk cases.’” U.S. District Judge Denny Chin had dismissed Mr. Flamm’s resulting lawsuit against AAUW, ruling that the comments, although “beyond the pale” and “seriously derogatory”, were protected as expressions of opinion under the First Amendment. On appeal, however, a panel led by Judge Thomas Meskill reinstated the action, noting that the objectionable passage might be read as implying specific factual assertions relating to unethical solicitation of business, that it appeared in italics, and that the other entries in the directory were generally of a factual rather than opinion-based nature. (Mark Hamblett, New York Law Journal, Jan. 6).
January 24 – No clash between clauses. Cincinnati attorney Richard Ganulin has filed a notice of appeal after a federal court dismissed his lawsuit claiming that the government’s observing of Christmas as a public holiday violates the Bill of Rights’ Establishment Clause. Last month U.S. District Judge Susan Dlott rejected Ganulin’s action, ruling that Congress was “merely acknowledging the secular cultural aspects of Christmas by declaring Christmas to be a legal public holiday. … A government practice need not be exclusively secular to survive”. She also prefaced her opinion with a bit of free verse: “The court will uphold /Seemingly contradictory causes /Decreeing “The Establishment” and “Santa” /Both worthwhile Claus(es).” (Ben L. Kaufman, “Challenge to Christmas holiday appealed”, Cincinnati Enquirer, Jan. 10).
January 21-23 — “Tracking the trial lawyers”: a contributions database. American Tort Reform Foundation today unveils a handy interactive database for keeping track of which lawyers have been donating to which politicians and parties. You can search by lawyer, by law firm, by recipient politician or institution, and more. Hours of alarming fun (”Follow the Money“).
January 21-23 — From our mail sack. Julia Vitullo-Martin of the Vera Institute of Justice writes, regarding our Jan. 18 report on the strange-warning-labels contest:
“I can tell you were never a teenage girl that you think the advice ‘never
iron clothes while they’re being worn’ is wacky. We used to do this in high school all the time. We’d be in a big hurry — having wasted hours trying on & discarding one another’s clothes — and would finally find the right thing to wear only to notice that the sleeve, say, was wrinkled. Why take it off? Just retract your arm & iron. The occasional small burn never deterred us that I can recall.
“I do like your newsletter.”
January 21-23 – Y2K roundup: poor things! Lack of century-end catastrophes is a “calamity” of its own for lawyers who’d been set to file suits galore demanding damages for outages and data loss. “Lawyers were licking their chops,” Madelyn Flanagan of the Independent Insurance Agents of America told the Washington Post’s David Segal. “I think the whole world is relieved.” (David Segal, “A Y2K Glitch For Lawyers: Few Lawsuits”, Washington Post, Jan. 10.) Ross & Co., a British solicitors’ firm that had been planning a big Y2K practice, still hopes for the best: “It Ain’t Over Till the Fat Lady Sues“, claims its website. (”Lawyers still gearing up for millennium bug attack”, FindLaw/Reuters, Jan. 20). Don’t count us out yet either, says Philadelphia attorney Ronald Weikers (softwarelitigation.com), who’s hoping the state of Delaware will sue manufacturers over a glitch that knocked out 800 slot machines for three days, thus preventing the state from slurping up locals’ spare coins over that period. Then there are the remediation-cost suits: thus the commonwealth of Puerto Rico, which made the transition “without a murmur”, is considering suing tech firms over the $80 million it says it spent to upgrade systems. (”Puerto Rico Government Considers Suing Over $80 Million In Y2K Work”, DowJones.com, Jan. 4) The reliable Ralph Nader has chimed in with his reasons for blaming everything on the deep pockets (”Y2Pay”, San Francisco Bay Guardian, Dec. 29.) And here come the backlash suits: the Independent of London reports that one company has sued outside consultants for exaggerating the risk from the calendar rollover (Robert Verkaik, “Y2K consultants sued by firm for exaggerating risk”, The Independent, Jan. 11). (DURABLE LINK)
January 21-23 — Cartoon that made us laugh. By Ruben Bolling, for Salon: “….We can’t take those off the market! Dangerous products are a gold mine for the government!” (Jan. 20 — full cartoon)
January 21-23 – Civil disabilities of freethinkers. Imagine letting a murderer go free because you’d excluded the crime’s only witness from testifying on the grounds that as a religious unbeliever he could not take a proper oath. Absurd? Yet such notions survive today in the constitution of the state of Arkansas: “No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.” Along with Arkansas, the constitutions of Maryland, North and South Carolina, Pennsylvania, Tennessee, and Texas retain historic provisions that contemplate or mandate the exclusion of unbelievers — and in some cases, minority religionists who reject the idea of a retributive afterlife — from public office, admission as witnesses in court, or both. Thus Article IX, Sec. 2, of the Tennessee constitution: “No person who denies the being of God, or a future state of rewards and punishments shall hold any office in the civil department of this state.” Widely considered unenforceable today, such provisions might at some point resume practical importance given today’s highly visible movement to re-infuse religious sentiment into government; in the meantime, they symbolically relegate to second-class citizenship those who hold one set of opinions. “The Arkansas anti-atheist provision survived a federal court challenge as recently as 1982″. (Tom Flynn, “Outlawing Unbelief”, Free Inquiry, Winter 1999). (DURABLE LINK)
January 20 — The joy of tobacco fees. In his January Reason column, this website’s editor pulls together what we now know about the $246 billion state-Medicaid tobacco settlements, including: the role of the settlement in imposing a cartel structure on the industry and chilling entry by new competitors; the happy situation of some lawyers who are in line to collect hundreds of millions of dollars when they simply “piggybacked” on others’ legal work, with little independent contribution of their own; and the often more-than-casual ties between tobacco lawyers and the state attorneys general who hired them, to say nothing of such influentials as President Bill Clinton and Senate Majority Leader Trent Lott (both of whose brothers-in-law were in on the tobacco plaintiffs’ side). Maybe it’s time to retire Credit Mobilier and Teapot Dome as synonyms for low points in American business-government interaction. (Walter Olson, “Puff, the Magic Settlement”, Reason, January).
January 20 — “The case for age discrimination”. You do it, Supreme Court justices do it, we all do it: generalize about people based on their ages. It’s clear that most age-based discrimination isn’t “invidious” in the original sense of race bias, and it’s only rational for an employer to avoid investing in costly retraining for a worker who’s likely to retire soon. So how’d we wind up with a law on the books purporting to ban this universal practice, anyway? (Dan Seligman, “The case for age discrimination”, Forbes, Dec. 13).
January 20 — Watchdogs could use watching. Beginning in 1993 Brian D. Paonessa employed an active solicitation campaign in conjunction with various Florida law firms to sign up hundreds of securities investors to pursue arbitration claims against Prudential Securities Inc. Not prominently featured in Paonessa’s marketing, apparently, was the fact that federal securities regulators were on his own tail on charges that he’d pocketed $149,500 in “ill-gotten gains” at the expense of investor clients. Since then, as the busy rainmaker has become embroiled in legal disputes over alleged fee-splitting arrangements with the law firms, some colorful charges have made it onto the public record. (Stephen Van Drake, “Florida Fee-Sharing Suit May Open Door to Direct-Solicitation Scrutiny”, Miami Daily Business Review, Oct. 11).
January 20 – Gotham’s plea-bargain mills. “Last year each judge sitting in the New York City Criminal Court, on average, handled nearly 5,000 cases. With calendars that huge, the system is reduced to a plea bargain mill, with no true trial capability offering balance to the process. It’s no secret. Everyone — including the repeat offender — knows this.” — New York chief judge Judith Kaye, State of the Judiciary Address, Jan. 10 (New York Law Journal site).
January 19 — “Private job bias lawsuits tripled in 1990s”. “Aided by new federal laws, private lawsuits alleging discrimination in the workplace more than tripled during in the 1990s, the Justice Department said.” According to the Department’s Bureau of Justice Statistics, “job bias lawsuits filed in U.S. District Courts soared from 6,936 in 1990 to 21,540 in 1998….The percentage of winning plaintiffs awarded $10 million or more rose from 1 percent in 1990 to 9 percent in 1998.” (AP/FindLaw, Jan. 17; Bureau of Justice Statistics abstract and link to full report, “Civil Rights Complaints in U.S. District Courts, 1990-98″).
January 19 — Santa came late. Faced with outages and high volume, the e-tailing operation of Toys-R-Us failed to deliver many toys by Christmas as promised. Now Seattle attorney Steve Berman has filed a lawsuit seeking class-action status to represent all customers who did not receive their shipments by Dec. 25. According to George magazine’s profile of tobacco lawyers last year (see Aug. 21-22), Berman’s firm is in line to receive roughly $2 billion from representing states in the tobacco settlement — enough to stake a very large number of bets like this one, should he see fit. The named plaintiff is Kimberly Alguard of Lynnwood, Washington. (”ToysRUs.com Sued: Santa Failed”, Reuters/WiredNews, Jan. 12).
January 19 – The costs of disclosure. In 1992 Tacoma, Wash. attorney Doug Schafer fielded what seemed a routine request from businessman-client Bill Hamilton to draw up incorporation papers for a new venture. But the details Hamilton provided convinced Schafer that his client was involved with Tacoma lawyer Grant Anderson in dishonest business dealings arising from Anderson’s milking of an estate. To make things worse — and raising the stakes considerably — Anderson shortly thereafter was elevated to a Superior Court judgeship.
What should a lawyer do in those circumstances? Schafer later decided to go public and seek an investigation of the judge and the transaction, thus beginning a struggle whose eventual results included an order by the Washington Supreme Court throwing Judge Anderson off the bench (for “egregious” misconduct) and a $500,000 recovery by a hospital in a lawsuit against the judge and others over their conduct. But in the state of Washington — as in a majority of other states — a lawyer has no right to breach his obligation of confidentiality to clients even when the result is to bolster public integrity or provide a remedy to defrauded parties. And so next month Doug Schafer will appear before a panel of the Washington State Bar Association to defend himself against disciplinary charges. Moreover, the reputation he’s picked up as a single-minded scourge of the corruption he perceives in the system has helped devastate his legal career, while Judge Anderson, though forced off the bench, has as yet faced no other consequences from bar enforcers, though an investigation is ongoing. (Bob Van Voris, “The High Cost of Disclosure”, National Law Journal, Jan. 4; Mary Lou Cooper, “The Cadillac Judge”, Washington Law & Politics, Sept. 1998; Tacoma News-Tribune coverage, 1998, 1999; Schafer’s website). Update Jul. 26, 2003: Washington Supreme Court suspends Schafer for six months.
January 19 — 175,000 pages served on Overlawyered.com. Thanks for your support!
January 18 – “Never iron clothes while they’re being worn”. That’s the winning entry in Michigan Lawsuit Abuse Watch’s third annual Wacky Warning Label Contest. Bonnie Hay of Plano, Texas, found the warning on an iron. Second place was awarded to a Traverse City, Mich. man’s discovery of “Not for highway use” on his 13-inch wheelbarrow tire, and third place went to “This product is not to be used in bathrooms” on a bathroom heater. M-LAW president Robert B. Dorigo Jones said the contest had a serious point, to illustrate manufacturers’ growing fear of lawsuits and the retreat of principles of individual responsibility. Finalists in earlier years’ contests have included sleeping pills labeled “May cause drowsiness”; a cardboard sunshield to keep sun off a car’s dashboard that warned “Do not drive with sunshield in place”; and a cartridge for a laser printer that warned the consumer not to eat the toner. (CNN/AP, Jan. 13; M-LAW; contest results).
January 18 — Courts mull qui tam constitutionality. The Civil War-era False Claims Act provides stringent civil penalties for anyone who submits inflated or false bills to government procurement officials, and the “relator” provisions of that act allow any private citizen to bring suit to enforce the law and obtain damages for the United States. The relator — who may be an employee of the defendant enterprise, or a complete stranger — can then by law collect a share of between 15 and 30 percent in any recovery obtained by the government, with no need to prove an injury to himself. Qui tam actions have soared in number in recent years, actively solicited by lawyers seeking rich contingency payouts (the law was liberalized in 1986 to provide treble damages). For their part, businesses, hospitals and universities complain that the quality of accusations filed against them is often low (see Sept. 9 commentary) and that the law can actually encourage bad behavior by bounty-hunting employees who (for example) may fail to report billing irregularities promptly to higher management finding it more lucrative to let them mount and then file a legal complaint. In Pennsylvania, eyebrows were raised when one entrepreneur pitched his services to a hospital as a consultant for the prevention of false claims, and then, having been turned down for that job, proceeded to sue that hospital and 99 others as relator based on a statistical analysis of their billing patterns.
Recently the qui tam provisions have come under heightened scrutiny. On November 15, writing for a panel of the Fifth Circuit U.S. Court of Appeals, Judge Jerry Smith struck down as unconstitutional the portions of the act that authorize actions by uninjured parties in the absence of a go-ahead from Washington, ruling that such suits encroach on the Constitutionally guaranteed separation of powers by impairing the executive branch’s right to control litigation that goes on in the name of government interests. The case will be reheard by the full Circuit. Moreover, the decision may have had immediate repercussions at the U.S. Supreme Court, which had already agreed to consider whether the state of Vermont can be sued by one of its own former staff attorneys, acting as relator, for allegedly exaggerating the proportion of its employees’ time that was allocable to federally reimburseable environmental programs. Apparently responding to the Fifth Circuit decision, the Court ordered the lawyers in the Vermont case to brief the issue of whether the relator provisions are unconstitutional. Even if the Court does not go that far, it might rule that the application of the law to states as defendants violates the Constitution. Justice Stephen Breyer called it “one thing” to allow individuals to sue private federal contractors and “quite another” to “set an army of people loose on the states.” Update: The Court later upheld the constitutionality of the act’s relator provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, reprinted at Cadwalader, Wickersham & Taft site) See also April 30, 2001, July 30, 2001.
SOURCES: Peter Aronson, “Whistleblower Breaks New Ground”, National Law Journal, Oct. 27; Susan Borreson, “5th Circuit Slams Qui Tam Suit”, Texas Lawyer, Nov. 22; Vermont Agency of Natural Resources v. United States ex rel. Stevens, Supreme Court case 98-1828; Kenneth Jost, “Qui Tam Comes To the High Court”, The Recorder/CalLaw, Nov. 30; Charles Tiefer, “Don’t Quit on Qui Tam”, Law News Network, Nov. 29. MORE BACKGROUND: Fried, Frank; Steven G. Bradbury, “The Unconstitutionality of Qui Tam Suits”, Federalist Society Federalism and Separation of Powers Working Group Newsletter, v. 1, no. 1; Mark Koehn and Donald J. Kochan, “Stand Down”, Legal Times, Dec. 6, 1999, reprinted at Federalist Society site; Dan L. Burk, “False Claims Act Can Hamper Science With ‘Bounty Hunter’ Suits”, The Scientist, Sept. 4, 1995; Ridgway W. Hall Jr. and Mark Koehn, “Countering False Claims Act Litigation Based on Environmental Noncompliance”, National Legal Center for the Public Interest, Sept. 1999 (PDF format). Pro-qui tam sites, many of which double as client intake sites for law firms, include those of Taxpayers Against Fraud; Phillips & Cohen; Ashcraft & Gerel; Miller, Alfano & Raspanti; QuiTamOnline.com; and Chamberlain & Kaufman.
January 18 – Columnist-fest. Pointed opinions on issues that aren’t going away:
* Major League Baseball, meet Soviet psychiatry? Charles Krauthammer on the John Rocker case, and why it’s dangerous to view racism and general unpleasantness of opinion as suitable candidates for mental-health treatment (”Screwball psychologizing”, Washington Post, Jan. 14)
* John Leo on how courts and legislatures often seize on ambiguous enabling language as a blank check for vast social engineering: vague provisions in state constitutions get turned into an excuse to equalize school funding or strike down tort reform, domestic violence gets federalized on the grounds that it affects interstate commerce, and more. (”By dubious means”, U.S. News & World Report, Jan. 24).
* Clarence Page asks why states fight so hard to keep convicts in prison even after newly emergent DNA evidence clears them of the original rap. Do prosecutors and wardens care more about maintaining high inmate body counts, or about doing justice? (”When Innocence Isn’t Good Enough”, Chicago Tribune, Jan. 3).
January 17 – New York court nixes market-share liability for paint. In a setback for lawyers hoping to make lead paint their next mass-tort breakthrough, a New York appeals court has rejected the plaintiffs’ request that “market-share liability” be applied to the industry. This theory allows claimants to dispense with the need to show whose products they were exposed to, in favor of simply collecting from all defendants who sold the item, in proportions based on their market share. In explaining why such methods of assigning liability would be unjust, the court observed that paint makers did not have exclusive control over risks arising from their products, that makers sold at different times and to different markets, and that the composition of paint differed substantially from one maker to the next. (Jim O’Hara, “Court Sinks Lead Poisoning Case”, Syracuse Online, Jan. 10).
January 17 – Montreal Gazette “Lawsuit of the year”. “Two bagpipers sued Swissair for lost income from tourists at Peggy’s Cove because of the plane crash that killed 229 people in September of 1998. They claim their income declined dramatically while the lighthouse area was closed to the public.” (”Technology”, Dec. 31; Richard Dooley, “Swissair responds to bagpipers’ lawsuit”, Halifax Daily News, June 22, 1999).
January 17 – Dot-coms as perfect defendants. They’re flush with venture-capitalist and IPO cash, they’re run by hormone-crazed kids who bring a party atmosphere to the office, and they haven’t developed big human resources bureaucracies to make sure nothing inappropriate goes on. Why, they’re the perfect sexual harassment defendants! New York contingency-fee attorney David Jaroslawicz, a veteran of securities class actions and now “an aspiring scourge of the Internet“, hopes to spearhead a resulting “Silicon Alley sex-suit wave”. He has filed three suits on behalf of disgruntled female employees, including two against free-access provider Juno.com, one of which has been dismissed, and a third against Internet-TV producer Pseudo.com.
Asked why he happened to ask for the same amount, $10 million, in both lawsuits against Juno, Jaroslawicz says the damage request “is ‘arbitrary, whatever the secretary types in’ — just as long as it has enough zeros”. You ‘put in some high absurd number, because you can always take less,’ Mr. Jaroslawicz explained.” (Renee Kaplan, “The Sexual Harassment Suit Comes to Silicon Alley”, New York Observer, Jan. 17).
January 17 – New improvement to the Overlawyered.com site: better search capability. This weekend we installed the PicoSearch internal search engine, which you’ll find to be a big leap forward from our previous search system: fast results displayed in context, fuzzy logic to catch near-misses, no ads, search boxes available on key pages, and so forth. In addition, the database indexed now includes our editor’s home page (with a wide selection of articles, mostly on legal themes). Give it a test run, either by visiting our search page or just by typing your search into the box in the left column and hitting “return”.
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October 30-31 – Bad tee times figure in $2 million award. A Boston jury of seven men and seven women has awarded nearly $2 million to nine female golfers who said the Haverhill Country Club had discriminated against them by depriving them of desirable tee times and other club benefits. They also contended that the club had allowed only a few women to move up to a more exclusive, and expensive, premium membership. (”Women awarded almost $2 million in Boston club discrimination case”, AP/Court TV, Oct. 28) (& update June 7, 2000)
October 30-31 – Sue as a hobby. Sad portrait from Chicopee, Mass. of that familiar figure in many American courtrooms, the perennial pro se litigant. This one’s been at it for 21 years, suing over union and town issues, utility bills and medical insurance, devoting about 20 hours a week to the truculent pastime. Some snicker, but “the tortured souls on the other end of Brown’s lawsuits take him very, very seriously — or risk a legal thumping.” One neighbor, a former mayor, stops to chat: “I think we got a good relationship, considering he’s sued me numerous times.” (Jeff Donn, “An American Portrait: Amateur lawyer hooked on suing habit”, AP/Fox News, Oct. 25)
October 30-31 – Annals of zero tolerance: cannon shots banned. Officials at Nevis High School in west-central Minnesota, citing a zero-tolerance policy, have refused to permit the school yearbook to publish a picture showing senior Samantha Jones perched on a cannon. The school’s policy bans not only weapons themselves from school grounds — including squirt guns — but even depictions of weapons, in the interpretation of school board members. “We don’t recognize weapons to be of any importance to the functions of the district,” said superintendent Dick Magaard. “Whether it’s in military, recreational or sporting form, anything shaped like a gun or knife is banned.” Ms. Jones is planning to enter the army on graduation, and the photo shows her sitting on a howitzer outside a nearby Veterans of Foreign Wars post. (”Senior upset that school won’t allow her yearbook photograph”, Minneapolis Star-Tribune, Oct. 29, link now dead) (update Nov. 26-28: school relents on policy, provided cannon is draped by U.S. flag)
October 30-31 – Those naughty Cook County judges. Another one is in trouble, this time over allegations of “handling cases involving a friend and a relative, forging a former law associate’s name on his tax returns and violating disclosure laws.” (Charles Nicodemus, “Judge faces misconduct charges”, Chicago Sun-Times, Oct. 27 — link now dead).
October 30-31 – Abuses of restraining orders. Interesting discussion has developed on Overlawyered.com’s discussion forums since author Cathy Young joined to discuss her new Salon article on how restraining orders in domestic relations cases can become a tactical weapon.
October 29 – 52 green-card pickup. The Equal Employment Opportunity Commission has just announced that it will start pursuing discrimination claims for back pay on behalf of illegal alien workers who had no lawful right to take or hold the jobs in the first place (see yesterday’s commentary) That turns out to be only one of the legal headaches for employers considering noncitizen job applicants. As the newsletter of the National Legal Center for the Public Interest points out, managers also are in big trouble if they insist on particular methods of documenting job eligibility. “A Boston restaurant paid a $5,000 penalty for insisting that a job applicant provide a green card when it should have accepted his passport, which had an Immigration and Naturalization Service (INS) stamp, as proof of eligibility. A meatpacking company paid $8,500 for insisting that an applicant get INS documentation that his alien registration card was legitimate. It is illegal to insist on any particular form of documentation or to reject documents that appear to be genuine, says DOJ [the U.S. Department of Justice].” (NLCPI July 1999 newsletter, about 4/5 of way down page)
And more recently: “The Office of Special Counsel (OSC) of the Civil Rights Division of DOJ continues its offensive against ‘immigration discrimination,’ assessing a Maryland food processor $380,000.” It seems the company had been asking noncitizens to show INS documents when it “should have been content with any acceptable documents. The company’s view: Since most applicants already had their INS ID in hand (to fill out the mandatory INS I-9 form), hirers might say, ‘Let me see your Green Card,’ but would readily accept other documents if no Green Card were available. OSC calls this ‘document abuse,’ and fined the company for ‘discriminating’ against people that it actually hired.” (NLCPI Sept. 1999 newsletter, about 2/3 of way down page). Moral: be careful you don’t hire illegals, but don’t be too careful.
October 29 – Urge to mangle. Sometimes you’re better off disregarding the “care labels” on garments you buy that prescribe pricey dry cleaning or tedious hand washing, according to Cheryl Mendelson’s newly published encyclopedia of housekeeping, Home Comforts. For example, observes a reviewer, “a blouse labeled ‘dry clean’ might be equally tolerant of the washing machine”, while lingerie may survive perfectly well even if you don’t set aside an evening to “handwash separately, dry flat, do not wring or squeeze.” Why are labels so overcautious? They’re put on by “manufacturers whose primary goal is to avoid lawsuits”. (Cynthia Crossen, “The Dirt on Domesticity”, Weekend section book review, Wall Street Journal, Oct. 15, requires online subscription.)
October 29 – Founders’ view of encryption. To hear some officials tell it, only drug lords and terrorists should object to the government’s efforts to control encryption. Yet historians say James Madison, Thomas Jefferson and James Monroe all wrote letters to each other “in code – that is, they encrypted their letters — in order to preserve the privacy of their political discussion….What would Thomas Jefferson have said about [the current encryption controversy]? I suspect he would have said it in code.” (Wendy McElroy, “Thomas Jefferson: Crypto Rebel?”, The American Partisan, Oct. 23).
October 28 – EEOC okays discrimination claims for illegal aliens. Back pay! Punitive damages! And — if amnesty and a green card can be obtained in the mean time — even reinstatement! In a “major policy turnaround”, the Equal Employment Opportunity Commission throws its full backing behind damage claims for lost pay by workers who knew quite well they had no legal right to take a job in the first place. The agency promises that it “will not inform other government agencies if an immigrant is here illegally” — thus turning its role from that of a law enforcement agency to one committed to foiling law enforcement when that helps generate a caseload. Remarkably, a public statement by Immigration and Naturalization Service spokesman Don Mueller says the agency is “going to support” the new policy of keeping it in the dark about violations of the laws it’s supposed to enforce. Why? Because its role as scourge of employers is more important. “Our public enemy are the smugglers and employers who exploit these people.”
Rep. Lamar Smith (R-Texas), who chairs the House Judiciary Committee’s subcommittee on immigration, called the new policy “absurd”: “These rules would, for example, require employers to hire back individuals who had been fired when it is illegal to have hired them in the first place.” “To me it should be a nonstarter because an illegal alien by definition is in the country unlawfully,” said attorney John Findley of the conservative Pacific Legal Foundation. “That individual has no right to the job in question. To force an employer to rehire an individual with back pay and subject the employers to sanctions seems to me ridiculous.” An editorial in yesterday’s Chicago Tribune says that if the agency “was looking for a way to make itself seem ridiculous — even pernicious — it could hardly have found a better one….[EEOC chairwoman Ida Castro] has all but invited Congress to step up and clip the wings of an arrogant, overreaching government agency”.
Rep. Smith and some others predicted that the new rules would encourage illegal immigration, but the more accurate view would seem to be that of the AFL-CIO, which lobbied tirelessly for the new rules based on the expectation that giving this group more lawsuit-filing rights will discourage, not promote, its hiring. (A prominent element in the labor group’s tender concern for undocumented workers has been the desire to make sure they don’t get hired in the first place.) Backers of expansive employment law have often been reluctant to admit that giving a group of workers wider rights to sue — disabled or older workers, for example — can discourage employers from hiring that group. Update Apr. 3-4, 2002: Supreme Court rules that back pay for illegal is in violation of immigration law.
Sources: Stephen Franklin, “EEOC Seeks To Protect Undocumented”, Chicago Tribune, Oct. 26; Andrew Buchanan, “EEOC Helps Undocumented Workers”, AP/Washington Post, Oct. 27; “This EEOC Policy Goes Out of Bounds”, editorial, Chicago Tribune, Oct. 27; Steven Greenhouse, “U.S. to Expand Labor Rights to Cover Illegal Immigrants”, New York Times, Oct. 28.
October 28 – We’re outta here. The weekend was fast approaching, and after a long Friday of deliberations some of the jurors really wanted to finish the case, a negligence suit against a hospital, so as not to have to come back Monday. How badly did they want that? Badly enough to switch their votes to the defense side, according to the plaintiff’s lawyer who wound up losing, and one of the jurors backs up his complaint. (Jeff Blumenthal, “Did Civic Duty Go Awry?”, The Legal Intelligencer (Philadelphia), Sept. 15)
October 28 – Lost in translation. Lawsuit by entertainment guide WhatsHappenin.com against Hispanic portal QuePasa.com, on grounds that latter’s name roughly coincides with Spanish translation of the former, greeted disrespectfully by Suck.com (”Frivolous lawsuits don’t come much more frivolous…we think there is a possibility, however remote, that que pasa might just be a familiar and usable phrase in the Spanish language.” (”Hit and Run”, Oct. 14 — also see Wired News, Oct. 18).
October 28 – Virtual discussion continues. On Overlawyered.com’s discussion forums, conversation continues with author Cathy Young about her Salon article on abuses of restraining orders in domestic relations cases (see yesterday’s announcement).
October 28 – Welcome National Post (Canada) readers and About.com Legal News readers. For our reports on Pokémon-card class actions, click here (Oct. 13) and here (Oct. 1-3). For our report on Houston litigation over “blast-faxing”, click here (Oct. 22)
October 27 – “Virtual interview guest” at Overlawyered.com discussion forums: author Cathy Young. As we mentioned yesterday, the Detroit News columnist and author of Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality has a provocative article in the new Salon about the ways restraining orders in domestic disputes can sometimes trample the rights of their targets. Several participants in our recently launched discussion forums expressed interest in the issue, and the author herself has now agreed to drop by the forums, beginning this afternoon, to field comments, reactions and questions and generally get a conversation going. Remember that it’s not live chat, so comments may not get an immediate response. The main discussion will be in the Divorce Law forum, but there may be spillover to other topics such as Harassment Law. Everyone can read what gets posted, but if you want to join in with your own reactions you’ll need to register, an easy step to take. [forums now closed]
October 27 – “This is all about power”. The Albany Times-Union furnishes more details about the little-publicized legal action (see Oct. 5-6 commentary) in which Indian tribes have sued to dispossess tens of thousands of private landowners in upstate New York; it seems that generations ago the state purchased reservation lands without obtaining federal approval as required by law, and the U. S. Supreme Court ruled in 1985 that proper title therefore never passed. The value of the innocent owners’ homes and farms has of course plunged drastically, and tribal spokesmen want the state government to step in with an offer on their behalf. “You have to get the state to get serious about negotiation”, explains Oneida leader Ray Halbritter. “The pain of not settling has to be greater than the pain of settling….This is all about power.” Very wealthy from its tax-free casino operations, the Oneida tribe donates abundantly to politicians, many of whom tread gingerly around its interests. To the fury of the local landowners, the U.S. Department of Justice has joined the Indians and is assisting their legal claim. (James M. Odato, “Tribe plays high-stakes game with landowners”, Oct. 25; plus sidebars on Mr. Halbritter and orchard owner/protest leader Tony Burnett; via Empire Page.) (see also Feb. 1 commentary).
October 27 – Why doesn’t Windows cost more? During the trial “the government’s economic expert got up on the stand and said that if Microsoft was charging all the market would bear, it would be charging about three or four times what it does today for an operating system. That’s kind of curious.” Why would Bill Gates leave that much money on the table? ‘Cause he’s a charitable kind of guy? No, the fact “probably suggests that Microsoft is facing a form of competition that keeps its prices low. And, in fact…what the evidence proved is that that competition comes in the form of platform competition — the desire to be the next generation of technology in an area where technology turns over in a matter of months, not a matter of years. And that competition … keeps prices down, keeps Microsoft on its toes, keeps innovation going.” — former Assistant Attorney General for Antitrust Charles Rule, now of Covington & Burling, speaking at “What Are We Learning from the Microsoft Case?”, a Federalist Society conference held in Washington Sept. 30 (full transcript)
October 27 – Zone of blame. Two years ago a former mental patient slew New Jersey state trooper Scott Gonzalez, first ramming his cruiser head-on, then killing him with two shotgun blasts through the car’s windshield. So who’s his widow suing? The killer’s parents; the makers of her husband’s police gun, because it briefly jammed after he’d fired seven shots from it; and the Ford Motor Co., because the deployment of its airbags on collision allegedly delayed his exit from the car. (Eric D. Lawrence, “Widow’s suit blames auto, gun makers for cop’s death”, Easton, Pa. Express-Times/Lehigh Valley Live, Oct. 26 — full story). Update Jan. 3, 2004: jury finds for Ford.
October 27 – Welcome Progressive Review readers. Looking for the cow items mentioned there? Click here (foam-rubber cow recall) and here (Canadian brouhaha over insensitive cow-naming).
October 26 – Rhode Island A.G.: let’s do latex gloves next. Rhode Island Attorney General Sheldon Whitehouse just made headlines by enlisting his state as the first to sue lead paint and pigment makers in partnership with trial lawyers. But that’s not all he’s been up to, according to a report in Business Insurance: “In an August letter to another attorney general, Rhode Island’s Whitehouse proposed ‘going after’ the latex rubber industry over health problems possibly caused by latex allergies, a copy of the letter shows. The states could seek ‘a couple of billion dollars’ to fund latex allergy education and research programs, Mr. Whitehouse suggested.” (more about latex allergies)
With tobacco fees beginning to flow, the article also reports renewed interest in an old trial lawyer project that now may attract co-sponsorship from state or city officials: getting courts to hold automakers liable for not installing “speed governors” on passenger cars that would cut off added acceleration if the driver tried to take the vehicle above a certain set miles-per-hour. If courts accept such a theory, Detroit could potentially be on the financial hook for most or all high-speed crashes that take place in cars now on the road. (Douglas McLeod, “Suits by public entities expected to increase,” Business Insurance, Oct. 18)
October 26 – Dave Barry on federal tobacco suit. “As a result of [companies'] clever deception, the Justice Department contends, smokers did not realize that cigarettes were hazardous. This is undoubtedly true of a certain type of smoker; namely, the type of smoker whose brain has been removed with a melon scoop. Everybody else has known for decades that cigarettes are unhealthy….
“Cigarette companies are already selling cigarettes like crazy to pay for the $206 billion anti-tobacco settlement won by the states, which are distributing the money as follows: (1) legal fees; (2) money for attorneys; (3) a whole bunch of new programs that have absolutely nothing to do with helping smokers stop smoking; and (4) payments to law firms. Of course, not all the anti-tobacco settlement is being spent this way. A lot of it also goes to lawyers…” (Dave Barry, “Few — Hack! — Thought Their Habit Safe,” Spokane Spokesman-Review, Oct. 24. Plus: novelist Tom Clancy’s critical take on the feds’ tobacco suit (”Curing the Smoking Habit”, Baltimore Sun, Oct. 17, reprinted from Los Angeles Times).
October 26 – “Hitting below the belt”. Readers of this website were alerted twelve days ago to Cathy Young’s powerful Detroit News critique of abuses of restraining orders in divorce and custody cases. Now the author of Ceasefire appears in the October 25 Salon with a much-expanded version, including more on the Harry Stewart case (he’s serving a six-month sentence for violating a restraining order by seeing his son to the front door instead of waiting in the car), new detail on traps (conduct violative of an order “includes contact that is clearly accidental, or even initiated by the purported victim: Even if you came over to the house at your ex-spouse’s invitation, you don’t have a legal excuse”) and on tactics (”There are stories of attorneys explicitly offering to have restraining orders dropped in exchange for financial concessions”).
One startling quote comes from a New Jersey judge addressing his peers at a 1995 conference: “Your job is not to become concerned about the constitutional rights of the man that you’re violating as you grant a restraining order,” said the Hon. Richard Russell. “Throw him out on the street, give him the clothes on his back and tell him, see ya around …The woman needs this protection because the statute granted her that protection … They have declared domestic violence to be an evil in our society. So we don’t have to worry about the rights.” But a growing number in the field are worried about the rights, and don’t think protecting the rights of potential abuse victims should have to mean sacrificing those of the accused. “I don’t think there’s a lawyer in domestic relations in this state who doesn’t feel there has been abuse of restraining orders,” says Needham, Mass. attorney Sheara Friend. “It’s not politically correct — lawyers don’t want to be pegged as being anti-abused women, but privately they agree.” (full story)
October 26 – “The Reign of the Tort Kings”. Trial lawyers now wield political clout “unthinkable” four years ago, and have nearly doubled their contributions to federal candidates over that period, report Marianne Lavalle and Angie Cannon in a big spread on the emergent Fourth Branch in the new U.S. News & World Report (Nov. 1)
October 25 – Gun litigation: a helpful in-law. Time magazine, in its issue out today, reports that Hugh Rodham, brother of Hillary Rodham Clinton and brother-in-law of President Clinton, has now popped up to assist lawyers suing the gun industry in brokering a settlement. Earlier, lawyers suing the tobacco industry cut in Rodham — despite his glaring lack of experience in mass-tort litigation — as a participant in their activities; he proceeded to use the occasion of a Thanksgiving dinner at the White House to approach his sister’s husband directly, which helped lead to the settlement that’s shaken loose billions in fees for those lawyers. Rodham told Time, “It was totally unforeseen, when we joined…that there would be any connection with politics.” (full story)
October 25 – From the Spin-to-English Guide, a service of Chris Chichester’s Empire Page. Phrase: “It’s important to preserve and enhance access to justice.” Translation: “We’ve come up with a great way to allow the trial lawyers to file more lawsuits, win more big settlements, and give us more campaign contributions.” Among others in the series — Phrase: “The only poll that counts is the one on Election Day. Translation: We’re a bunch of losers headed for a trouncing on Election Day.” And — Phrase: “We’re not going to dignify that with a comment. Translation: We really got slammed and can’t think of a response.” (page now removed) The Empire Page, started last year by former legislative and gubernatorial staffer Christopher Chichester, has quickly become the one-stop Web jumping-off point for news of New York politics and government; it’s alerted us to several items used on this page (item no longer online).
October 25 – Better than reading a lunchtime novel. Sylvia Johnson was fired from her job with the IRS after it was discovered she’d improperly accessed taxpayers’ personal returns some 476 times. Now she’s suing the U.S. Treasury to get her job back and for punitive as well as compensatory damages. A Merit Systems Protection Board administrative judge previously rejected her discrimination and due process claims, saying that while other employees caught peeking in files had been given a second chance, the agency regarded her misuse of the system as far more extensive. (Gretchen Schuldt, “Ex-IRS employee sues to regain job”, Milwaukee Journal Sentinel, Oct. 14 — full story)
October 25 – Guest column in Forbes by Overlawyered.com’s editor. The column blasts the Clinton Justice Department’s recent suit against tobacco companies (see Sept. 23 commentary), in particular the suit’s premise that it was legally wrongful for the companies to send out press releases and commission research in an effort to defend their position. “If partisan science is racketeering, whole echelons of the Environmental Protection Agency should be behind bars. But the novel legal doctrines being advanced in the suit can’t — and won’t — be applied evenhandedly.” (”Reno’s Racket”, Forbes, Nov. 1 — full column).
Plus: op-ed in today’s Wall Street Journal by Jonathan Rauch, adapted from his earlier National Journal column, assesses the suit’s threat to free speech by business and quotes this site’s editor (requires online subscription).
October 23-24 – Inmates’ suit cites old videos. A federal judge considers a suit by inmates complaining of inhumane conditions in Philadelphia’s antiquated House of Corrections. The report makes it sound difficult for the inmates’ lawyer to elevate their gripes to the level of a Constitutional violation, however: “Very few toilets have seats, and the video movies they get are outdated, the inmates told the judge.” (Jim Smith, “Inmates: Prison chow’s bad, videos are old”, Philadelphia Daily News, Oct. 
October 23-24 – Zero tolerance strikes again. “Student suspended after cutting cake with pocket knife”, reads the headline over this AP story datelined Monroe, N.C., where a 14-year-old boy in the Union County schools was given a five-day suspension. “When a student is in possession of a knife, it’s a clear-cut violation,” said assistant principal David Clarke. “We can’t have weapons in our schools”. The incident occurred at the end of a school day when a teacher shared a leftover cake with students and needed something to cut it with. (Raleigh News & Observer, Oct. 22; “Cake-Cutting Ends in Suspension”, Excite/Reuters, Oct. 22)
October 23-24 – Weekend reading: evergreens. Pixels to catch up with on the raft or schooner, if you missed them the first time around:
* Prescient (3 1/2 years ago) op-ed by Bruce Kobayashi, of George Mason University Law School, argues that holding gunmakers liable for shootings “would create new injustices…ensnare the morally innocent and erode the crucial distinction between responsible and irresponsible behavior.” Besides, why “place the financial burden on law-abiding firearms owners who have not misused firearms? If the litigation explosion has taught us anything, it is that using the tort system to provide social insurance entails large (and largely hidden) premiums — usually in the form of less output and less justice.” (Orange County Register, April 21, 1996, reprinted by Independent Institute — full column)
* Melrose Place (1997, 5th season) plot lines revolving around staged-accident fraud — you may have to know the characters for the synopses to make sense (Ken Hart: 3/10/97, 3/17, 3/31, 4/7, 4/14, 4/21, 4/28, 5/5/97; EPGuides/Pam Mitchelmore: 3/17/97, 3/31, 4/7, 4/14, 4/28, 5/5/97; Peter Goldmacher: 3/10/97, 3/17, 4/7, 4/14, 4/21/97)
* Denver probate-court nightmare: tangle of guardianship proceedings leaves 83-year-old Letty Milstein “virtually a prisoner in her own home” as she struggles against efforts to have her declared incompetent. By the time an appeals court steps in, court-appointed lawyers, health-care personnel and others have consumed most of her $650,000 estate. One lawyer, Michael Dice, later pleaded guilty to stealing money from numerous clients. Alternative weekly Westword covered the story tenaciously (Steve Jackson, “Mommy Dearest”, May 22, 1997; Steve Jackson, “Letty Wins”, Feb. 12, 1998; other coverage, all links now dead).
October 22 – In Houston, expensive menus. “Junk” (unsolicited) faxes are a widely loathed medium of advertising, tying up a target’s machine and using his own paper to do it. In 1995 some Houston lawyers filed suit against more than seventy local defendants which they said had patronized blast-fax ad services despite a 1991 federal ban. Though filing in state court, they sought to invoke a penalty specified in federal law of $500 for each unwanted fax sent, and triple that if the offense was willful. They also asked for certification as a class action, entitled (they said) to recover the $500 or $1500 figure for every fax sent on behalf of any defendant during the period in question — a sum estimated at $7 billion.
The list of named defendants is heavy on restaurants (many of them presumably sending menus or coupons) but also includes car dealers and some national businesses like GTE Mobile and Pearle Vision Centers. Defendants’ lawyers variously argue that no laws were broken, that their clients should not be held liable for the sins of ad agencies, that ad sponsors had been assured that all recipients had opted in to a tell-me-about-discount-offers arrangement, and that there is no evidence that the named plaintiffs received faxes from their clients or complained at the time; plaintiffs, however, point to records from the agencies as providing a paper trail of how many were sent on whose behalf. Thus a local Mexican restaurant which advertised in more than 50,000 faxes is potentially on the hook for $25 million dollars and change — three times that if deliberate defiance of the law can be shown.
One larger defendant, Houston Cellular, paid a reported $400,000 this spring to be let out of the case; plaintiff’s attorneys requested one-third of that amount as their fee. Last month another eight defendants reportedly chipped in a collective $125,000 to get out. Steven Zager, an attorney at Brobeck, Pfleger and Harrison who’s representing some defendants, said the federal statute provided the $500/$1,500 fines so as to allow individual grievants an economic means to vindicate their interests in a small-claims format and never contemplated aggregation into one grand class action: “This statute was not meant to be Powerball for the clever.” (Ron Nissimov, “Company settles over ‘junk faxes’; Houston Cellular to pay $400,000; others to fight”, Houston Chronicle, April 29; Mark Ballard, “Junk fax ban taken seriously”, National Law Journal, May 17; Ron Nissimov, “Some firms settle in ‘junk faxes’ case”, Houston Chronicle, Sept. 4; “That Blasted $7 Billion Fax“, Citizens Against Lawsuit Abuse — Houston) (update April 3, 2000: judge dismisses case).
October 22 – Foam-rubber cow recall. Computer maker Gateway used to distribute cute foam-rubber squeezable “Stress Cows” as a corporate promo, but now…well, you just can’t be too careful in today’s climate. “A few conscientious parents have alerted us that small children can tear or bite off parts of the stress cow, creating a potential choking hazard. In response to that concern, and in cooperation with the Consumer Product Safety Commission, Gateway has voluntarily stopped distributing this product and is recalling all Stress Cows previously given to clients.” (”Important Safety Notice“, Gateway Corp. website; the picture alone is worth the click).
October 22 – Canadian cow-naming update. See below entry (Oct. 21) for further developments in the brouhaha about whether Ottawa’s Central Experimental Farm may assign its bovine wards human names like “Bessie” and “Elsie”.
October 21 – Deal with us or we’ll tank your stock. With trial lawyers now launching a high-profile attack on managed care, HMO stocks have fallen by one-half or more from this year’s highs. Lawyers are seizing on this development in itself to “prod” the industry into “a swift settlement” of the actions, reports Owen Ullmann in yesterday’s USA Today. Trial lawyer potentate Richard Scruggs, tobacco-fee billionaire and brother-in-law of Senate Majority Leader Trent Lott (R-Miss.), “said Tuesday that economic pressure from investors” could force the companies to the table. “Trial lawyers have been telling Wall Street analysts that if the lawsuits are upheld, ‘they would put them (companies) out of business’” — and making such a pitch to those analysts, of course, helps along the process of getting the stocks to drop. Karen Ignagni, president of the American Association of Health Plans, said the situation “borders on extortion”, while Washington lawyer and veteran tort reformer Victor Schwartz said companies could wind up settling based not on the legal merits but on concern for stock price. (Owen Ullmann, “Wall Street may play part in HMO suits”, USA Today, Oct. 20 — fee-based archive).
Meanwhile, yesterday’s Boston Globe quotes experts who say the continuing onslaught of new trial lawyer initiatives, fueled by tobacco fees, could have a major depressing effect on the market more generally. “Many analysts think the lawyers will have trouble making the [HMO] suits stick. Still, no one can say for sure what will happen, and on Wall Street, uncertainty is trouble. ‘Until we get some clarity, I think the attitude of some investors will be, ‘I don’t need to own these stocks,’” says Linda Miller, manager of John Hancock’s Global Health Sciences Fund.” Shares in several paint and chemical companies also dropped sharply after trial lawyers launched a new wave of lead-paint litigation with Rhode Island as their first state-government client. (Steven Syre and Charles Stein, “Market’s new worry: lawsuits; Analysts believe wave of litigation just beginning”, Boston Globe, Oct. 20)
October 21 – Minnesota to auction seized cigarettes. State officials seized several thousand dollars’ worth of cigarettes, cigars and other tobacco items from the Smoke Shoppe and Book Nook in Brainerd, Minn. for nonpayment of taxes. On Saturday they’re scheduled to auction off that inventory for the state’s benefit, though Minnesota took the lead in suing cigarette makers and in hand-wringing generally over the continued legal sale of such products. Lynn Willenbring of the state Department of Revenue said the sale was required by state law but admitted the matter was “kind of a sticky wicket”. (Conrad DeFiebre, “State to sell smokes at delinquent-taxes auction”, Minneapolis Star-Tribune, Oct. 16).
October 21 – New Jersey court system faces employment complaint. The various branches of government that have taken on the mission of riding legal herd on private employers have themselves long faced an above-average rate of complaint from their own employees. Latest instance: the New Jersey courts, which along with California’s have won renown as the nation’s most inventive in finding new ways to let employees sue their bosses, face a complaint from their own clerks’ union alleging misclassification of workers, retaliation for collective bargaining activity and other sins. (Padraic Cassidy, “Judiciary Workers’ Union Files Unfair Labor Practices Charges”, New Jersey Law Journal, Sept. 20)
October 21 – Sensitivity in cow-naming. In a temporary advance for Canadian feminism, higher-ups last year ordered the Central Experimental Farm, an agricultural museum and research center in Ottawa, to stop giving cows human-female names like Elsie and Bessie because such names “might give offense to women,” the Boston Globe reports. “Some people are … sensitive to finding their name on an animal. I am, for example,” said Genevieve Ste.-Marie, who issued the order as director of the National Museum of Science and Technology. “Let’s say you came in and found your name on a cow, and you thought the cow was old and ugly.” Names like Clover, Rhubarb and Buttercup were still deemed okay, with borderline cases such as Daisy being decided on a “cow-by-cow basis”. Also cited as acceptable was “Bossy”. (Oct. 16 Sydney (Australia) Morning Herald, reprinting Colin Nickerson, “Canadian bureaucrats get bossy over Bessie”, Boston Globe, Oct. 13).
Sequel: on Oct. 15 the museum announced it would reverse its policy and go back to letting cows have human names, after having received a torrent of public comment, with “not one letter” favoring its sensitivity policy. (Kate Jaimet, “She’s no lady; Stephani’s a cow”, Montreal Gazette, Oct. 16).
October 20 – For this we gave up three months of our lives? No wonder the jurors’ eyes looked glazed — the patent infringement dispute between Honeywell and Litton Industries required them to master the numbing intricacies of ring laser gyro mirror coatings, “an optical film used to reflect laser beams in aircraft and missile guidance systems”. After a three-month trial they voted a mammoth verdict of $1.2 billion against Honeywell, a record for a patent infringement case, but that award later got thrown out. The U.S. is the only country that uses juries to decide complex patent cases; in 1980 the Third Circuit expressed the opinion that “the Seventh Amendment does not guarantee the right to jury trial when the lawsuit is so complex that jury will not be able to perform its task of rational decision making with a reasonable understanding of the evidence and the relevant legal rules.” (Kevin Livingston, “Junking the Jury?”, The Recorder/Cal Law, Oct. 19).
October 20 – The art of blame. A three-year-old is left unattended and forgotten in a van in 95-degree heat, and the van’s interior grows hotter and hotter until at last he dies of hyperthermia. Who deserves the blame? You may be a suitable candidate for practicing law if you guess the Ford Motor Co., for not designing and installing systems that would cool the air in parked cars. (Ben Schmitt, “Suit Demands Ford Add Safety Device to Cool Cars”, Fulton County Daily Report, Oct. 4).
October 20 – Spreading to Canada? A disgruntled fan has sued Ottawa Senators hockey captain Alexei Yashin and Yashin’s agent, Mark Gandler, over the Russian-born player’s refusal to show up at training camp to play with the team. Retired commercial real estate magnate Leonard Potechin is demanding a combined $27.5 million dollars (Canadian) of the two for having spoiled the season, to which Potechin held season tickets. (Ken Warren, “Fan files $27.5M suit against Yashin, agent”, Ottawa Citizen, Oct. 5) (update, Jan. 12: judge allows case to proceed).
October 19 – Maryland’s kingmaker. According to Peter Angelos, the state of Maryland owes him a cool billion dollars for representing it in the tobacco settlement, and it seems a distinct possibility that he’ll get it. The state legislature has gestured toward cutting in half his contracted 25 percent contingency fee, but that move is uncertain to stand up in court. In the mean time, Angelos’s refusal to recede from his fee means that tobacco booty which otherwise would flow into state coffers will sit in an escrow account over which he’ll exert partial control until the state resolves his claim.
In a March 28 profile, Washington Post reporters Daniel LeDuc and Michael E. Ruane write that Angelos is “viewed by many political insiders as the most powerful private citizen in Maryland.” Immensely wealthy from asbestos plaintiffs’ work — a 1997 National Law Journal list of influential lawyers (link now dead) describes him as “a perennial candidate for any list of the best-paid attorneys in the nation” — he branched out to buy the beloved hometown Baltimore Orioles and to become one of the most munificent donors to Democrats nationally as well as in Maryland. He now sports his own private lobbyist; glove-close relations with the governor and labor leaders; and a host of statehouse connections, such as with the state senate president pro tem, who happens to be a lawyer at Angelos’s firm.
Among the marks of his success has been the ability to steer “Angelos bills” through each year’s legislature whose effect is to enable him to extract more money from the defendants he sues. When a state appellate court ruled to limit damages on some of his asbestos cases earlier this year, for example, the Post reports, Angelos personally drafted a bill overturning the opinion and had two of his allies in Annapolis introduce it. (Those allies happened to be the Senate finance committee chairman and the House majority leader.) The bill reinstated higher damages for asbestos cases and for those cases only — most of which happen to be under Angelos’s control in the state. “Every time, it’s a bill that lines Peter Angelos’s pocket,” grumbles House Minority Whip Robert Flanagan (R-Howard). In the most remarkable episode, Maryland lawmakers (like Florida’s) agreed to change the rules retroactively to extinguish tobacco company legal defenses. We’ll all be living with that precedent for a long time: once legislators get a taste of the power to declare their opponents’ actions unlawful after the fact, it’s unlikely tobacco companies will be the last target. For his part, Angelos presents his statehouse efforts as essentially conservative and restorative: “The legislation I introduce is meant to reinstitute the litigation rights our citizens once had,” he told the Post of this year’s asbestos bill.
Angelos’s legislator-allies say the bills should be seen not as special interest legislation benefiting one person, but as a boon to an entire sector of the Maryland economy, which is what the lawyer’s far-flung operations have come to be. “Peter Angelos in and of himself is a major economic interest in the state,” explains one enthusiastic ally, House Majority Leader John Hurson (D-Montgomery). “His empire has grown so large, his benevolence so vast, they say, that to help Angelos is to help the whole state.” Daniel LeDuc and Michael E. Ruane, “Orioles Owner Masters Political Clout”, Washington Post, March 28; Daniel LeDuc, “Angelos, Md. Feud Over Tobacco Fee”, Washington Post, Oct. 15.
October 19 – Change your county’s name or I’ll sue. In 1820, an Ohio county was named after Revolutionary War hero Isaac Van Wart, but there’d been a spelling slip-up along the way, and the county’s name was rendered “Van Wert”. A few years ago a descendant of the original Van Wart family discovered the link and began writing letters to Ohio officials high and low asking that the error in the place name be corrected and the a replaced with an e. County officials demurred, saying the cost of changing title deeds and other documents would be far too high (aside from which, one presumes, after 170-odd years people had grown attached to the new name). Now Jeff Van Wart has begun approaching legal assistance groups in hopes they will help him launch a court action to force a name change: “I’m not going to let it drop.” (William Claiborne, “A War of Van Warts”, Washington Post, Oct. 12).
October 18 – Nominated by reader acclamation. Six months after their son barged into the Columbine High School cafeteria with guns and bombs and began killing people, Thomas and Susan Klebold have filed a lawsuit arguing that their neighbors should pay them. They say the school district and Jefferson County sheriff’s department mishandled warning signs about the behavior of their son Dylan and his pal Eric Harris before the massacre. Widely greeted as a memorable contribution to the annals of chutzpah, the Klebolds’ action could alternatively be construed as an effort to save themselves from ruin, since they’re being sued themselves by victim families; their statements imply that their suit is aimed at shifting those bills to public authorities, as opposed to actually making money from the slaughter. Either way they’ve helped establish a new record for this website, since never before have so many readers written in to suggest we take note of a case. Incidentally, the family of Cassie Bernall, best-known of the Columbine victims and a heroine to many Christians, has declined to press lawsuits: “We just made a family decision,” said father Brad Bernall. (Kevin Vaughan, “Klebold family plans to sue Jeffco“, Rocky Mountain News, Oct. 16; Tracy Connor, “Columbine HS Killer’s Parents Stun School with Lawsuit”, New York Post; Steve Dunleavy, “I Mean, Talk About Chutzpah!”, New York Post).
October 18 – Couple ordered to pay $57,000 for campaign ads criticizing judge. Robert and Olga Osterberg of El Paso, Texas, were dissatisfied with how litigation of theirs had been handled by state judge Peter Peca, so they bought TV ads advocating his defeat in a Democratic primary. But Texas law allows candidates to file private lawsuits against ordinary citizens charging them with campaign-law violations, and Judge Peca (who won the primary despite the ads) proceeded to sue the Osterbergs, charging them with having missed a disclosure deadline. On July 29 the Texas Supreme Court by a 7-2 margin ruled in the judge’s favor, and ordered the Osterbergs to pay him $57,390 — twice what they’d spent on the commercials. Dissenting justice Craig Enoch said the decision left the couple unfairly open to penalties for expenditures they may not have realized were illegal. Another justice expressed concern that the disclosure requirements of Texas election law “may be so cumbersome for ordinary citizens that they unduly burden free speech”, but voted to uphold the award anyway. (”Texas judge gets revenge, couple ordered to pay $50,390 [sic] in damages for missing report deadline”, Political Finance and Lobby Reporter, Aug. 25 — link now dead (PDF document, Adobe Acrobat needed to view; scroll down to p. 7)).
October 18 – Format changes at this site. We installed a number of format improvements to Overlawyered.com over the weekend, mostly inconspicuous ones relating to how the site’s archives work. Items will now be archived the same day they appear, which eases life for anyone wishing to cite or link to a recent commentary (we recommend pointing to the archives address rather than this front page). The front page will now maintain only a few days’ worth of items, down from eight, which will mean faster loading for readers with slow connections. Table widths have been tinkered with to provide better display for readers with small usable screen sizes. You’ll also notice a new tell-a-friend-about-this-site service, which appears on more pages than before.
October 18 – Times’s so-called objectivity. Sent this morning: “Letters to the Editor, The New York Times, To the Editor: A quick computer survey of the last three years’ worth of the Times’s national coverage indicates that your editors have generally taken care to restrict the pejorative formula ’so-called…reform’ to the editorial portions of the paper, and that it has been employed there almost exclusively by letter-writers and columnists frankly hostile to the measures under discussion (’so-called campaign finance reform’, ’so-called welfare reform’, etc.). But there’s one glaring exception: twice now in recent months your reporters (’How a Company Lets Its Cash Talk’, Stephen Labaton, October 17, and ‘State Courts Sweeping Away Laws Curbing Suits For Injuries’, William Glaberson, July 16) have employed the phrase ’so-called tort reform’ in prominent news stories. No other national domestic issue has been accorded this slighting treatment. What is it about the movement to rein in trial-lawyer excesses that causes the Times to forget its usual journalistic standards? Very truly yours, etc.” — our editor. [Never ran.]
October 18 – Trop d’avocats.com. Belated thanks to the English-language Montreal Gazette, which recommended this site September 18 in its “Quick Clicks” column: “Students of the excesses of the litigious United States should check out this site, recently launched by Manhattan Institute senior fellow Walter Olson. He said he wanted to document ‘the need for reform of the American civil justice system.’ The page is updated regularly with legal horror stories and links.”
October 16-17 – Illinois tobacco fees. Chicago’s Freeborn & Peters and Seattle’s Hagens & Berman complain bitterly at an arbitration panel’s decision to give them a mere $121 million for representing the state of Illinois in its tobacco-Medicaid suit when they felt they deserved closer to $400 million. The arbitrators pointed out that the firms hadn’t submitted any time records of hours spent on the state’s case and had done “relatively little” to advance the Illinois claims toward trial, not even having taken any depositions. The state’s attorney general, Jim Ryan, had signed the pact with the two firms and later was the one who agreed to settle the state’s case, thus triggering their fee entitlement; his “close ties to Freeborn & Peters had come under earlier scrutiny”, reports the Chicago Sun-Times’s Dave McKinney (”Law firms decry cut in tobacco fees”, Oct. 12 — link now dead; John McCarron, “Fee Frenzy”, Chicago Tribune, July 26) (see also tobacco-fee coverage for Kansas (Oct. 11, below), New Jersey, Wisconsin).
October 16-17 – Hey, what is this place, anyway? The term “weblog” refers to a running diary of interesting stuff found around the Web, usually with some degree of annotation. Overlawyered.com, for all its fancy policy pretensions, basically follows this format. There are now hundreds if not thousands of weblogs being published and a site called jjg.net has pulled together most of the ones you’ll want to know about. We immediately spotted a bunch of our favorites like the elegant Arts & Letters Daily, the Junk Science Page, Jim Romanesko’s Media Gossip and Obscure Store, Bifurcated Rivets and leftish Robot Wisdom before going on to check out fun unfamiliars like postsecondary.net (higher education) and Deduct Box (Louisiana politics).
jjg.net is put out by a Southern Californian named Jesse James Garnett who inevitably has his own weblog Infosift, a good one. We quote in its entirety an entry for October 11, hyperlinks and all: “According to the Pez people, my use of the word Pez in this sentence is a violation of Pez trademarks and makes me subject to prosecution by Pez Candy in defense of the Pez name. Pez Pez Pez. Pez.”
October 16-17 – Wide world of federal law enforcement. The National Journal news service is reporting (not online) that the House Judiciary Committee on Wednesday gave its approval to H.R. 1887, which would impose federal prison sentences of up to five years and fines on anyone who distributes depictions of animal cruelty unlawful under state law. The bill is aimed at “purveyors of so-called ‘crush videos’ who cater to foot fetishists by selling videos of women crushing small animals with high-heeled shoes.” Insect-crushing is also featured in some videos. The bill would, however, apparently ban a much wider array of films and printed matter, raising the possibility that it might become illegal to broadcast news programs on bullfighting in Spain or elephant poaching in Africa, so lawmakers hastily added an amendment exempting depictions with “journalistic, religious, political, educational, historic or artistic value”. (Not mentioned in reporting was whether home videos of pet snakes being given their daily feeding of live mice would remain legal.) A succession of legal authorities from Chief Justice Rehnquist on down have warned that too many crimes are being federalized, but after testimony that included a plea from Hollywood animal lover Loretta Swit, legislators decided the crush-video crisis demanded national action (”Ban Sought on Animal ‘Crush Videos’”, AP/APB News, Aug. 24; “Bill Cracks Down on Animal-Torture Videos”, AP/APB News, Oct. 1).
October 16-17 – “Health care horror stories are compelling but one-sided”. They call us anecdotal, but when it comes time to press for new rights to sue you can bet boosters of litigation don’t linger for long over dry statistics about how the health care system is performing as a whole; instead we get wrenching stories of how when Mrs. Jones got cancer she couldn’t get her HMO to cover experimental treatment, or how the Children’s Hospital of San Diego sent little Steve home when they should have known he was very sick. Fair enough, you figure, both sides can play. But Tuesday’s New York Times reports a problem in checking many of the HMO horror stories: “The health plans and providers cannot discuss individual cases because of patient confidentiality laws. And although patients can waive such restrictions, they generally do not.” So only the one side makes it onto the public record. A Ralph Nader group has been vigorously circulating the little Steve story for four years but concedes it can’t insure its veracity.
It’s not always that the Times does this good a job of shedding light on a major litigation issue. So why’d they bury this piece without a byline on page A29 — especially when a few months back they devoted a big front-page spread to reporter Bill Glaberson’s charges that the case for tort reform was merely anecdotal? (”Health Care Horror Stories Are Compelling But One-Sided”, unbylined, New York Times, Oct. 12)
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