• Another compilation of the hundred best law blogs, with a familiar name among the nine “general” picks, so thanks for that ["Criminal Justice Degrees Guide" via ABA Journal]
• Europe has a transnational association of personal injury lawyers, funded by the EU, but with no wheeler-dealer, masters-of-the-universe vibe in evidence [PoL]
• Delta wasn’t liable in Kentucky Comair crash, but some plaintiffs sued it anyway in what their lawyer describes as an “abundance of caution” — that’s a diplomatic way to put it [Aero-News Net; link fixed now]
• U.K.: Mom told she’d need to pass criminal record check before being allowed to take her own son to school [Telegraph]
• Regular coverage of the litigious exploits of delusional inmate Jonathan Lee Riches, if you’ve got the stomach for them [Dreadnaught blog]
• Federal Circuit reverses $85 million infringement verdict won by Raymond Niro, blasted by critics as original “patent troll” [AmLaw Daily]
• “Determined to defeat lawsuits over addiction, the casino industry is funding research at a Harvard-affiliated lab.” [Salon]
• Hired through nepotism by in-laws, then fired after divorce, sues on grounds of “marital status discrimination” [eight years ago on Overlawyered]

Why does the idea of cultural property have so many advocates? “It seems to establish a bulwark against the plunder of antiquities.” And yet how quickly it’s turned into a way of looting premodern artifacts from Western owners whose claim of title is stronger than that of foreign governments or indigenous/Indian tribes. “But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.” (Edward Rothstein, “Antiquities, the World Is Your Homeland”, New York Times, May 27).

The newly composed work tested at 97.4 decibels, so the performance by the Bavarian Radio Symphony Orchestra was called off. “The cancellation is, so far, probably the most extreme consequence of the new law, which requires employers in Europe to limit workers’ exposure to potentially damaging noise and which took effect for the entertainment industry this month.” (Sarah Lyall, “No Fortissimo? Symphony Told to Keep It Down”, New York Times, Apr. 20). For more on British and EU workplace-noise rules and their application to Scottish bagpipes, barking police dogs, gunfire during infantry training, military brass bands, and so forth, see Nov. 19, 2005.

• Plenty of reaction to our Tuesday post questioning the NYT school-bullying story, including reader comments and discussion at other blogs; one lawprof passes along a response by the Wolfe family to the Northwest Arkansas Times’s reporting [updated post]
• Geoffrey Fieger, of jury-swaying fame, says holding his forthcoming criminal trial in Detroit would be unfair because juries there hate his guts [Detroit News]
• Another Borat suit down as Judge Preska says movie may be vulgar but has social value, and thus falls into “newsworthiness” exception to NY law barring commercial use of persons’ images [ABA Journal]
• Employer found mostly responsible for accident that occurred after its functionaries overrode a safety device, but a heavy-equipment dealer also named as defendant will have to pay more than 90 percent of resulting $14.6 million award [Bloomington, Ill. Pantagraph]
• New Mexico Human Rights Commission fines photographer $6600 for refusing a job photographing same-sex commitment ceremony [Volokh, Bader]
• “Virginia reaches settlement with families of VA Tech shooting victims” [Jurist]
• Roger Parloff on downfall of Dickie Scruggs [Fortune]
• Judge in Spain fined heavily and disbarred for letting innocent man spend more than a year in jail [AP/IHT, Guardian]
• Hard to know whether all those emergency airplane groundings actually improved safety, they might even have impaired it [Murray/NRO "Corner", WSJ edit]
• “Freedom of speech is an American concept, so I don’t give it any value” — tracking down the context of that now-celebrated quote from a Canadian Human Rights Commission investigator [Volokh]
• Who was it that said that lawyers “need to be held accountable for frivolous lawsuits that help drive up the cost of malpractice insurance”? Hint: initials are J.E. [three years ago on Overlawyered]

Inconceivably beyond my frame of reference as an American: self-operated rides in a Denmark amusement park (as part of a larger travelogue on a very strange park, Bon Bon Land). Instructions are provided on signs: customers seat themselves, and the next person on line is supposed to press the appropriate button at the appropriate time to send a customer hurtling down a zip line.

It fascinates me how other cultures tolerate risk and reject idiot-proofing so much differently than the US. I wonder which way the causal arrow goes with the general litigiousness of American culture: are we litigious because we’re risk-averse, or are we risk-averse because we’re litigious? If the former, perhaps the European example actually reflects the moral hazard of social insurance. (Of course, other photos on the travelogue pages demonstrate other important differences between Denmark and the US.)

Related: Subcontinental Drift on zoos in Southeast Asia.

Update: Amusement-park-loving torts prof Bill Childs comments, which is appropriate, because the post was originally just going to be an email to Childs and a handful of other people before I realized there was no reason not to just expand it into a post.

Continue Reading »

• Examiner newspaper begins series on how Milberg Weiss used nonprofit foundation to project its clout among judges, academics, influentials [Institute for Law & Economic Policy, three-parter]
• Judge Canute, or just reporter’s awkward wording? Australian jurist with great eyeglasses bans screening of TV drama in state of Victoria; “Under the order, all internet material relating to the series is also banned.” [Herald Sun] (More explanation on the court order: The Australian).
• Times Square’s Naked Cowboy sues over M & M candy ad playing off his image [NY Post]
• Bite mark testimony makes another chapter in catalogue of dubious prosecutorial forensics [Folo's NMC on two Mississippi Innocence Project cases]
• Update: Pennsylvania court upholds disputed fees in Kia-brake class action [Legal Intelligencer; earlier]
• Best not take McCain too literally when he says he’d demand that judicial nominees have a proven record on Constitutional interpretation [Beldar]
• Expert witness coaching …. by the Royal Society for the Prevention of Cruelty to Animals? [Nordberg; earlier]
• For some reason many Boston residents feel menaced by city’s plan for police to go door to door asking “voluntary,” “friendly” permission to search premises for guns [Globe]
• Lots and lots of publications print Mohammed cartoon in solidarity with Danish cartoonist and assassination-plot target Kurt Westergaard [CNN; Malkin]
• Calgary Muslim leader withdraws official complaint against Ezra Levant over his publication of Mohammed cartoons [National Post; earlier]
• Steyn, relatedly: critics dragging my book before Canadian tribunals wish not to “start a debate”, but to cut one off [National Post]

• Following public outrage, Spanish businessman drops plans to sue parents of boy he killed in road crash [UK Independent; earlier]
• Scruggs to take Fifth in State Farm case against Hood [Clarion-Ledger] And how much “home cooking” was the Mississippi titan dished out in the Medicaid-tobacco case that made his fortune? [Folo]
• More critics assail ABC “Eli Stone” vaccine-autism fiction, with American Academy of Pediatrics calling for episode’s cancellation [AAP press release; Stier, NY Post; earlier]
• Special ethics counsel recommends disbarment of Edward Fagan, lawyer of Swiss-bank-suit fame whose ethical missteps have been chronicled on this site over the years [Star-Ledger]. As recently as fourteen months ago the L.A. Times was still according Fagan good publicity;
• In past bail-bond scandals, private bond agencies have been caught colluding “with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them.” [Liptak, NYT]
• Archbishop of Canterbury calls for new laws to punish “thoughtless or cruel” comments on religion [Times Online, Volokh]
• Another disturbing case from Massachusetts of a citizen getting charged with privacy violation for recording police activity [also Volokh]
• Abuse of open-records law? Convicted arsonist files numerous requests for pictures and personal information of public employees who sent him to prison; they charge intimidation [AP/Seattle Post-Intelligencer]
• It resembles a news program on Connecticut public-access cable, but look more closely: it’s law firm marketing [Ambrogi]
• Judge says Alfred Rava’s suit can proceed charging sex bias over Oakland A’s stadium distribution of Mother’s Day hats [Metropolitan News-Enterprise; earlier on Angels in Anaheim]
• Crack down on docs with multiple med-mal payouts? Well, there go lots of your neurosurgeons [three years ago on Overlawyered]

The action was “in protest at a possible reform that could cut them out of many divorce cases.” Notaries public would be authorized to handle many divorces involving mutual consent, at a large likely savings to divorcing couples. (AP/IHT, Dec. 19).

• This tale of a class-action settlement over male, uh, enhancement products sure looks like a parody, and yet…. Please let it be a parody [Magill/DirectMag, Levine/CircleID, LEMSettlement.com]
• Big law firm partners say million a year really isn’t enough to keep up social status in Manhattan or Silicon Valley [ABA Journal]
• Clerical error results in Disney characters’ getting subpoenaed in Italian criminal case [USA Today]
• We’ve slipped to second place in this Blawg 100 contest thing, don’t you like us? [vote here]
• Update on Miami’s fire-fee scandal (Sept. 19): law firm of Adorno & Yoss, which once sought $2 million fee, will now pay taxpayers $1.6 million; bar probe continues [Miami Herald, Florida Masochist]
• Wife had begged him not to go kite-surfing in Long Island Sound in winter, but still sues town over its failure to warn against taking such risks [Conn. Post]
• “I don’t do any medmal,” lawyer hastens to make known as he’s being stitched up in ER [GruntDoc]
• Very expensive speech: “beyond cruel” shock-jock comments ridiculing Albany, N.Y. burn victim end in $1 million settlement, spoliation also raised as issue [ABA Journal]
• Hassle of dealing with regs in charming Old Town Alexandria is one that only chain outlets may be up to shouldering [Balko, Reason]
• Turkish lawyer sues Italian soccer team, deems its “Crusader-style” red crosses “offensive to Muslim sensibilities” [Times Online, UK]
• Plaintiff’s lawyers tend to throw the most opulent holiday parties in Texas, but our readers knew that already [Houston Chronicle via Lat]
• Two men shot in suspected drug deal win $1.7 million in negligent-security suit against hotel [eight years ago on Overlawyered]

• “I’ve always thought that promoting yourself as a ‘Super Lawyer’ or ‘Best Lawyer’ was pathetic, self-aggrandizing and meaningless.” [Larry Bodine; Karen Donovan, Portfolio ("cheesiest"); ABA Journal]
• That big campaign by bossy public health groups and tobacco-suit veterans for legal restrictions on fat in the American diet is still with us, even as its scientific credibility falters [Tierney, NYT]
• “1,700 Connecticut Attorneys Suspended Over $110 Bill” — now that sounds like a bargain [ABA Journal]
• Blackwater meets Elmer Gantry? John O’Sullivan shouldn’t plan on being invited to the Edwards inaugural [NRO Corner]
• Nor would it be prudent to invite Felix Salmon and Ben Stein to the same dinner party [Portfolio; more]
• Truly dreadful idea from feminist Northwestern lawprof Kimberly Yuracko: constitution obliges states to ban sexist homeschooling [SSRN via Prawfsblawg; Serious Learning, Ragamuffin Studies, TalkToAction, Marcy Muser]
• New at Point of Law: some results of Tuesday’s election; employers whipsawed on risk of fetal injury; signs of exhaustion at long jury trials; wanna become a law professor?; 9/11 dust injury, or ground-up pills in his bloodstream?; more on Chevron/Texaco and the Ecuador Indians; dept. of New York Times self-parody; and more;
• Lawyer who sued McDonald’s over cheese-allergic client served cheeseburger (Aug. 10, Sept. 1) asks to be released from case, says he’s quitting law practice [LegalNewsLine]
• Of seven leading White House aspirants, all but McCain have law degrees, and all the other six but Romney practiced as lawyers [Liptak, NYT]
• UK: “A lorry driver sentenced to 150 hours’ community service for a drunken racist assault has been let off after probation chiefs claimed the punishment could breach EU working hours limits.” [Daily Mail]
• Notation on Scruggs’s court file: to be “kept away from the press” [five years ago on Overlawyered]

Ted is on vacation in Europe, and sends the following:

So Slim and I went paragliding in Interlaken, Switzerland, today. As the van takes a group of five customers up to the top of the hill, the leader explains that we’ll each get to pick our tandem pilot.

I consulted my inner economist. “I want the one with the gray hair,” I said.

The pilot, Robi, gave me a form. “Regulations. Just like any air flight, we need to have the name and destination recorded. The liability is just like Continental Airlines,” handing me a ticket to sign. I read the back, expressly disclaiming that Air Transport laws applied, and stating maximum liability would be 72,500 francs. And since it’s Switzerland, the law of contract is probably respected, so that’s a real waiver. Fair enough — if I do not fly, so much as plummet, my ability to recover in civil court is perhaps the last thing on my mind. My pilot has plenty of economic incentive to land safely such that civil liability does not add much at the margin. And Coase teaches us that the limited liability permits the price to be as low as it is. I accept the benefit of the bargain, and assume good faith that the professional paraglider is just unfamiliar with the nature of the forms rather than trying to snow me.

The fact that I’m writing suggested that I survived. But I’m pretty confident that one is not supposed to bounce on the side of the hill during takeoff. (Slim, whose launch was after mine, reports that one of the other pilots crossed himself at the time.) And, hey, fun.

In Europe; sports; Switzerland

Glenn Reynolds quotes (AEI visiting scholar) Jack Goldsmith:

In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn’t. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers’ fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one’s career, even if you emerge “innocent.”

Reynolds: “As I’ve said before, this war has been overlawyered, which is not to say it has been well-lawyered. … Law and lawyers are swell in their place. The extent of that place, however, is not unlimited.” And a Reynolds commenter says:

Welcome to the post-SarBox, [Eliot] Spitzer world. We in business face this on a regular basis. I can’t decide whether I’m glad public servants experience the same headaches we do or concerned because an intelligence/military failure costs lives, while a business failure costs only money (though when Spitzer was around, it also sometimes cost freedom).

In business, not only has bad judgment become a crime, so has a good decision made on the basis of incomplete information, which later turns out to have been the wrong call. This is not good for America, where innovation and risk are what we do better than Europe, China, or India.

In the words of the master blogger himself, Read the whole thing.

“A German court has awarded 3,000 euros ($4,100) in damages to a man who had to have the top of his skull replaced with plastic because of a faulty hospital fridge.” The plaintiff had sought 20,000 euros. [Reuters/MSNBC]

Hoover Institution’s Henry I. Miller:

Moreover, because Prop 65 is enforced entirely through litigation, it has created a system of legalized extortion. To initiate a lawsuit, a plaintiff need only show that a listed chemical is present in a consumer product and that the defendant business “knowingly” exposes Californians to that product without posting the warnings. Prior to filing the suit, the plaintiff must send the defendant a notice describing the exposure; 60 days thereafter, the plaintiff may sue. That notice may be the first inkling a retailer has that his products are exposing consumers to listed chemicals.

The latest chemical to run afoul of Prop 65 is di-isodecyl phthalate, or DIDP, an important and extremely useful additive used to soften hard vinyl plastic and found in dozens of common items, including shower curtains. It is also used to insulate the wires in the walls of homes across America. Safely used for more than 50 years, it is one of the most thoroughly tested products in the world and has been closely examined by numerous regulatory agencies throughout the United States and Europe. Through all that evaluation, no credible scientific review has found DIDP to be dangerous in normal use.

However, those favorable conclusions didn’t faze regulators at California’s Office of Environmental Health Hazard Assessment (OEHHA), who recently decided that DIDP may pose a risk of developmental harm in humans and, therefore, should be listed under Prop 65.

But the mere presence of something does not imply that it’s dangerous; one needs to know the dose, length of exposure, how the body disposes of it, and so forth. Prop 65 standards only look at the potential for risk as criteria for listing. Using that logic, since people regularly suffocate from a chunk of meat blocking their windpipe, maybe steaks should be listed too. (One hates to give the regulators ideas, however.)

So on the eve of the Sabbath (for me), I end my week of guest-blogging offering conceptually loftier reporting of loftier, if heretical, overlawyering of a Central European kind (hat tip to a blog called Religion Clause).

Now, we all remember this popular number from law school — United States ex rel. Gerald Mayo v. Satan and his Staff (”Mayo“), the guy who unsuccessfully sued The Prince of Lies (instead of hiring one) in federal court. Now a court in Timisoara, Western Romania, has dismissed a lawsuit purportedly against God Himself by Mircea Pavel, 40, who is serving 20 years in prison for murder. He has some issues, only not justiciable ones, it seems. The English is Interfax’s, and their regular English-speaking guy seems to be in the Catskills this weekend, so let’s work our way through this together, with Defendant’s help:

Failing to [receive an] answer [to] his prayers, the prisoner sued the [sic] God for “fraud, betrayal of trust, corruption and influence peddling.”

Pavel brought charges against “the defendant God, who lives in the heavens and is represented in Romania by the Orthodox Church,” the Evenimentul Zilei daily reported.

According to the act [lawsuit?], during the baptismal service he “drew a conclusion with [entered into a stipulation with?] the defense” to rescue him from any disaster.

“But the contract’s terms were offended [breached], despite of [sic] my payment in different forms and numerous compellations by way of prayers,” Pavel said in his lawsuit.

Eventually the court dismissed the case, ruling that “God is not subject to law and does not have an address.”

No address?! Now that is heretical; He is, as we know, found everywhere. Well, these folks just recently got rid of Communism, so we can be charitable on the theological training.

But the subject matter jurisdiction point is well taken. There may be other problems with the alleged contract, including most of the grounds for dismissal relied on in Mayo. Also: Pavel’s capacity to enter into a contract (Orthodox baptism is done in infancy); the statute of frauds (or its Soviet-era Romanian equivalent) on several counts; and, of course, in a suit against God, there must always be recourse to the defenses in equity — the plaintiff, the murderer Pavel, comes to court with some very unclean hands.

Give Pavel credit, though, and not just for going after the deep pockets. He believes God had a role in his misfortune, even if, perhaps, he has failed to name an indispensible necessary party — namely Mircea Pavel.

–

Thanks for hosting me! It’s been a pleasure. Stay in touch at my law blog, LIKELIHOOD OF CONFUSION®, or the entirely more wide open Likelihood of Success.

The important issues challenging our society remain at the forefront of the class action bar:

Microsoft has been targeted by a $5m (£2.5m) lawsuit over its Xbox 360 console and the infamous yet almost forgotten scratched disc saga. There have for a long time been many rumours about the Xbox 360 scratching game and movie discs.

Count on lawyers never to forget. What’s this about?

A growing number of Xbox 360 customers are reporting having problems with their disc’s getting scratched by the DVD drive when switching the unit’s position from vertical to horizontal and vise versa.. Initially we thought this was the usual fanboy vs. hater propaganda that swirls around the launch of any new console like this. It didn’t take long until the seriousness of the situation…

… which is explained at some length. Not everyone is sympathetic to the victims in this dog-eat-dog world. But most of the discussion of this burning issues seems to go back, indeed a couple of years.

On the other hand, there’s always the Old World, ever eager to distract from its own coming demographic obsolescence by beating up on that most American of companies, Microsoft. Yes, less than a month ago word got out that the EU lean was on Microsoft to address the problem — which Microsoft seems grudgingly to admit to.

One month: That’s about long enough to read the story, do some research, find a lead plaintiff, and file the lawsuit. So foes of the class action can thank the European Union for this one. Considering the “popularity” of Microsoft on either side of the pond (right up there with plaintifs’ lawyers), not much sympathy is to be expected. But this is an interesting exercise in how the once-forgotten can, in the new global economy, still be resurrected, as long as the statute hasn’t run.

You can’t win if you don’t play: “A Dutch woman who claimed she suffered emotional damages due to not winning the lottery missed the jackpot in court too. Amsterdam District Court judges Wednesday rejected the claim of Helene de Gier, who said she was traumatized by not winning the country’s National Postcode Lottery, which she didn’t enter, while her neighbors did.” DeGier said one lucky neighbor had rubbed in his good luck by showing off a new Porsche, and claimed lottery ads had engaged in “emotional blackmail” by suggesting that non-entrants like herself might be sorry afterward. (AP/IHT, Reuters).

“Dog breeders have warned that some of Britain’s best-loved breeds including dachshunds, bulldogs and basset hounds could disappear because of new and potentially far-reaching government animal-welfare measures.” Animal welfare groups have campaigned against the breeding of pedigreed animals, saying the pursuit of distinctive characteristics such as head size in bulldogs often comes at the expense of the animal’s health. A controversial Europe-wide treaty on animal breeding would translate the idea into law. “Dog breeders fear that the treaty’s terms are so broad that it would effectively forbid the breeding of distinctive types of dog because their defining characteristics could be seen as risking their welfare. According to the Scottish Kennel Club, ratifying the treaty would mean that anywhere between 30 and 40 breeds would effectively be outlawed.” The director of Edinburgh-based Advocates for Animals calls the argument “scaremongering nonsense”. (James Kirkup, “Euro rules ‘could outlaw 40 dog breeds’”, The Scotsman, Apr. 30).