Massachusetts Attorney General Martha Coakley nails twenty property owners and real estate agents over “no kids”, “no Section 8″ language in Craigslist ads [Legal NewsLine]
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Posts tagged as:
housing discrimination
Dan Bader came to be “embroiled in a messy dispute with the state Department of Fair Employment and Housing and the Fair Housing Council of Orange County” when he used Craigslist to advertise a rental unit in his Newport Beach home as “Well suited for professional adults” and “Perfect for 1 or 2 professionals.” As the Orange County Register relates, it never resulted in an actual courtroom loss; the process was the punishment. Bader has a website on the experience: StateGoneCrazy.com (more on Craigslist and the wording of housing ads here, here, etc.).
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Progressive members of the City Council of Binghamton New York have expanded the boundaries of civil rights in their fair city to include protection for citizens on the basis of sexual orientation, nothing shocking in a university town. What is surprising is that the law also protects Binghamton citizens from discrimination in employment, housing, education, and public accommodation on the basis of height and weight. Presumably in the future, Binghamton bean poles will have to yield to their shorter peers for slots on basketball teams, and the horizontally expansive will be able to demand wider doors and sturdier seats in restaurants and shops.
According to the law’s chief proponent, Binghamton Council member Sean Massey, it is a “sad fact” that a law protecting the undertall or the overweight is necessary, and even if it isn’t, “It’s simply the right thing to do. … It is the human thing to do.”
While it’s not at all clear to me, from a simple google search, that Binghamton was experiencing a tide of discrimination against the short, the tall, the fat, or the cadaverous before the passage of this law, it’s also unclear how this law will in fact promote its author’s vision of Harrison Bergeronlike equality of outcome for people of nonstandard body configuration. Will morbidly obese firemen be able to sue the city for discrimination if they are not provided assistance in climbing ladders and carrying victims? Will students whose body mass makes them unappealing by conventional standards of good looks now demand appointment as homecoming kings and queens on the ground that they are denied a fair shot in student elections? And how, exactly, will the city determine that someone was denied housing on the basis of height or weight? While one assumes that signs reading “Fat people need not apply” are being removed from apartments all over Binghamton, apart from that what does this accomplish, other than making the Binghamton City Council feel good? Gannett: “Council Passes Rights Law”, Weekly Standard: “The Politics of Fat”, thanks to dispatches from TJICistan for the pointer.
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Stan Liebowitz writes in the New York Post:
Perhaps the greatest scandal of the mortgage crisis is that it is a direct result of an intentional loosening of underwriting standards – done in the name of ending discrimination, despite warnings that it could lead to wide-scale defaults. …
In an earlier newspaper story extolling the virtues of relaxed underwriting standards, Countrywide’s chief executive bragged that, to approve minority applications that would otherwise be rejected “lenders have had to stretch the rules a bit.” He’s not bragging now.
I’m not sure I entirely agree, but it’s an element we should be considering as we look at the new complaints of “racial discrimination” through excessive sub-prime loans.
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Cross-posted from Point of Law.
Says the NAACP complaint: “In 2004, African-American homeowners who received subprime mortgage loans from Defendants were over 30% more likely to be issued a higher-rate loan than Caucasian borrowers with the same qualifications.” (¶ 1.) Thus, it concludes, the disparity “result[s] from a systematic and predatory targeting of African-Americans.” (¶ 6.)
Similarly, Baltimore’s suit argues that Wells Fargo is more likely to foreclose in African-American neighborhoods—and that suit does not even attempt to adjust for similar qualifications or finances, just alleging racial disparity.
Of course, there is a difference between being targeted for a subprime mortgage loan and accepting a subprime mortgage loan. And I don’t believe that African-American homeowners were targeted for subprime mortgage loans because they were African-American. They were targeted because they were homeowners.
Between 2001 and 2005, I was a law-firm associate, high-income, making multiples of what I make today at a thinktank. And, like I am today, I was also white. And the minute my adjustable-rate mortgage was registered in the title books in 2001, I got several solicitations a week in the mail from fly-by-night mortgage brokers offering to refinance my mortgage with ludicrous financial products. (And when I made the mistake of investigating on-line options for switching to a fixed-rate mortgage in 2004, I also got several e-mails a day and phone-calls a month on the same basis to the point that I switched e-mail providers.)
Somehow, I resisted refinancing with a mortgage that was not favorable to me in the long run—I took a 5.25% fixed-rate instead. But I sure was targeted with subprime opportunities, especially as the real-estate prices in my neighborhood skyrocketed about 10% a year. And if, with my skin-color, income, education-level, and impeccable credit-score, I was targeted, so was every homeowner and their grandmother.
To the extent a statistical study says minorities were, ceteris paribus, more likely to receive unfavorable mortgages than whites, the study reflects a specification error, perhaps in failing to account for different levels of consumer education. Another possibility: there is a lot of state-by-state regulation of the mortgage industry. Are subprime mortgages more likely in states with high minority populations, for example? Are subprime mortgage brokers more likely to be aggressive in urban areas in states on the coasts where real estate prices were increasing faster than average, and those states correspond to states with high minority populations?
Note that the CRL study that has been driving the debate and highlighted in the NAACP suit finds that for many types of loans, whites were “disadvantaged” relative to Hispanics, which would seem to count against a racial explanation (unless one believes that bankers hold a racial animus against whites and towards Hispanics) and more towards a geographic explanation.
Note also the irony that these same defendants were accused of failing to offer loans to African-Americans just a few years ago. (See also Apr. 1.)
Finally, note that the NAACP complaint is legally frivolous in at least one respect because of the lack of standing in a federal court. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) (no § 1981 standing for third parties). (Baltimore brings no § 1981 claim.) Fair Housing Act standing is questionable, too, given the lack of allegation of injury to NAACP in particular, though that could be fairly easily rectified by an amended complaint, especially in the Ninth Circuit. Cf. Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) (”[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit”) (R. Bader Ginsburg, J.); Fair Housing of Marin v. Combs, 285 F.3d 899, 902 (9th Cir. 2002). N.B. that there is an amended version of the NAACP complaint that may already fix these issues. NAACP v. Ameriquest Mortgage Co., No. 8:07-cv-00794-AG-AN (C.D. Cal.). For some reason, this is not available on PACER, so I haven’t seen it.
Related: Jan. 8 (Krauss on Baltimore suit); Apr. 25 (me on third-party liability for subprime lending).
(Disclosure: I own less than $15,000 in stock in Citigroup, one of the defendants in the case.)
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They’re doing it again in California: “State and federal authorities have opened an investigation into a Norco housewife, alleging that her vitriolic protests against a high-risk group home in her neighborhood may constitute housing discrimination.” Federal officials asked state fair housing regulators to investigate Julie Waltz, 61, who had protested plans to open a group house next to her home for developmentally disabled residents; among those eligible to reside there under state law would be persons deemed not competent to stand trial on sex crime charges. In 2000, the Ninth Circuit ruled that three Berkeley, Calif. neighbors’ rights had been violated by an “extraordinarily intrusive and chilling” investigation of whether their protests had been contrary to housing discrimination law. In that episode, as in the latest one, housing advocates had set the investigation in motion by filing complaints against the neighbors.
A spokesman for the federal Department of Housing and Urban Development acknowledged that in order to recommend the inquiry, it had to push aside internal guidelines that prohibit such an investigation because it infringes on the 1st Amendment.The rules require that complaints of housing discrimination be investigated only in cases in which the alleged victim’s safety has been threatened.
No such allegation has been made against Waltz, but HUD opened an investigation into her and state investigators ordered her to respond to the complaint in detail because a preliminary review showed that someone else in the neighborhood may have made a violent threat, said HUD spokesman Larry Bush.
(Garrett Therolf, “Protester of group home is targeted”, Los Angeles Times, Mar. 20).
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Google, Amazon, AOL and Yahoo are all defending Craigslist in the suit demanding that it censor its housing ads so as to prevent users from requesting “gay Latino sought for roomshare” and the like (Lynne Marek, “Online Peers Stand Up for Craigslist in Lawsuit”, National Law Journal, Jun. 28). Earlier coverage: Aug. 10, 2005; Feb. 9, Feb. 20, Mar. 6, 2006. Craigslist’s defense, by CEO Jim Buckmaster, is here.
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The federal taxpayer, by way of the Department of Housing and Urban Development, funnels substantial sums to private “fair housing” advocacy groups for purposes of suing landlords, newspapers, and other likely suspects over alleged housing discrimination; raising consciousness among potential claimants and others; and generally promoting expansive readings of housing-bias law. For example, in this listing of $20 million worth of fiscal 2002 grants, HUD boasts of bestowing $242,339 on the Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. for something called its Private Enforcement Initiative (PEI), described as follows:
While addressing the needs of minorities in the metropolitan Chicago area, the Chicago Lawyers’ Committee for Civil Rights will increase awareness of fair housing rights; empower victims to report incidents of discrimination; develop credible, legitimate evidence to support discrimination complaints; increase the number of complaints referred to HUD for enforcement; and provide relief to discrimination victims. Utilizing access to pro bono attorneys from Chicago’s most prominent law firms, as well as their resources, the Chicago Lawyers’ Committee will receive, document, and investigate individual complaints of discrimination.
If the Chicago Lawyers’ Committee sounds vaguely familiar, it’s probably because it’s the group that last month filed a widely criticized lawsuit against Craigslist (Feb. 9, Feb. 20) seeking to force the online service to pre-censor users’ postings of roommate and other housing classifieds (rather than just pull them off after complaints, as now).
Even if the Chicago Lawyers’ Committee suit fails in court — as is widely expected — the controversy is likely to continue. In yesterday’s New York Times, Adam Liptak says the activists are likely to push for federal legislation stripping website operators of their current protection against being held liable for users’ postings. (”The Ads Discriminate, but Does the Web?”, Mar. 5). Don’t assume that “fair housing” advocates are powerless on Capitol Hill these days, either: at one set of hearings last week, all the witnesses called (including this one (PDF), quoted in the Times piece) were there to speak up for expansive enforcement of the law, with nary a dissenting word about any possible competing values at stake. More: Maggie’s Farm.
“The Chicago Lawyers’ Committee for Civil Rights Under Law sued San Francisco-based Craigslist, claiming that during a six-month period beginning in July, the site ran more than 100 ads in Chicago that violated the federal Fair Housing Act. The committee, a public interest consortium of the city’s leading law firms, said in a federal suit that those ads discriminated on race, religion, sex, family status or national origin.” Craigslist does not screen ads in advance, although it gives readers a way to flag unlawful or inappropriate content for possible removal. According to the complaint (Chicago Lawyers Committee v. Craigslist, PDF format), some of the rental ads carried such damning indicators of putative bigotry as “Perfect place for city single” (unfair to families of eight!) and “very quiet street opposite church” (trying to screen out atheists, are you?), and many are plainly for roommate shares or other live-in situations. Paging David Bernstein! (Mike Hughlett, “Craigslist sued over housing ad bias”, Chicago Tribune/Fort Lauderdale Sun-Sentinel, Feb. 8)(via Reynolds). Eric Goldman says a similar earlier suit against Roommate.com did not fare well (Feb. 8). For more on the issue of “discrimination” in roommate selection, see Jul. 10-11, 2002; for more on such complaints against Craigslist, see Aug. 10, 2005. (& welcome Instapundit readers).
P.S. As requested, David Bernstein weighs in (Feb. 9), as does Eugene Volokh.
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Roommate preferences, improper mention that a listed property is near churches or synagogues, hints about age or family status: it’s easy to step on a legal land mine when listing your apartment rental. “The Internet is like the Wild, Wild West. People just speak their minds,” tut-tuts D.C. civil rights attorney John Relman (Sarah Lesher, “Online housing ads spur concern over bias”, Washington Times, Aug. 9)(via David Bernstein, who comments). Update: Feb. 9, 2006 (suit filed).
July 19-21 – Disabled lap dancing just the start. Our recent item (Jul. 16-17) on demands for accessibility in lap-dancing facilities reminded an alert Australian reader of a recent case from his country in which a disabled complainant filed charges against the proprietors of a “swinging house party”, which was found in unrelated proceedings to be operating as an unlicensed brothel, for excluding her because of her status as a wheelchair user. (Ball v Morgan & Anor [2001] FMCA 127)(adult content warning, though it’s a court opinion). (DURABLE LINK)
July 19-21 – Stolen silence? Via WSJ OpinionJournal Best of the Web Today: “The London Sun reports that Nicholas Riddle, who heads a firm that owns the copyright to the late John Cage’s composition ‘4′ 33″ ‘–which consists of four minutes, 33 seconds of silence–is suing ‘pop guru’ Mike Batt, whose new band, the Plantes, has just released an album with a track called ‘A One Minute Silence.’ Riddle alleges that Batt violated Cage’s copyright. ‘John always said the duration of his piece may be changed, so the Planets’ piece doesn’t escape by virtue of its shorter length,’ Riddle tells the paper. ‘We want our royalties.’” Oh please, let this be a Monty Python skit and not an actual lawsuit (Thomas Whitaker, “Silence is old ‘un”, The Sun (London), Jul. 18). (DURABLE LINK)
July 19-21 – Enron’s other helpers. If Arthur Andersen & Co. is going to get run out of business for approving Enron’s dubious financial deals, why is its outside law firm, Vinson & Elkins, unlikely to face similarly devastating consequences for approving and helping structure the same deals? Well, one reason is that accountants are conceived of as having broad obligations to the general public, while lawyers mostly aren’t. Rather convenient for the lawyers, don’t you think? Julie Hilden makes a valiant effort to defend the double standard as a principled one (”Scummery Judgment”, Slate, Jun. 21). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 18 – “Family of boy injured by leopard may sue”. “In April, Eric River, 11, sneaked into the Rosamond Gifford Zoo at Burnet Park with friends, tried to feed and pet a snow leopard, got 10 deep lashes to his face, arm and back, and received 500 stitches. Now, three months later, his mother, Terry Wells, is threatening to sue the zoo’s owner, Onondaga County, for failing to properly secure and police the zoo after hours.” River and three friends managed to get into the zoo by scaling one 8-foot fence, squeezing through a gap in another, and scaling a 4-foot fence before finally approaching the leopard in its cage. (Teri Weaver, Syracuse Post-Standard, Jul. 17) (see Sept. 21, 1999). (DURABLE LINK)
July 18 – “Trauma center reopens doors”. The only trauma center in southern Nevada has reopened, “ten days after a state malpractice insurance crisis forced its closure”. (Las Vegas Review-Journal, Jul. 14; Joelle Babula, “University Medical Center: Trauma center closing”, Las Vegas Review-Journal, Jul. 2; Steve Kanigher, “Trauma cases to shift to nearest hospital”, Las Vegas Sun, Jul. 2; William Booth, “Las Vegas Trauma Center Closes as Doctors Quit”, Washington Post, Jul. 4; Las Vegas Review-Journal, coverage at a glance). Crisis continues in Mississippi: Reed Branson, “Doctors shutting practices amid epidemic of lawsuits”, GoMemphis.com, Jul. 11; John Porretto, “Exodus of doctors causing crisis for moms-to-be in Mississippi”, AP, Jul. 11. Texas: Mary Ann Roser, “Doctors at a crossroads”, Austin American-Statesman, Jun. 17. (DURABLE LINK)
July 18 – “Edwards’ fund raising a strong suit”. Why are we not surprised that he’s vaulted ahead of some better-known Democrats on the money-raising front? “Reports released Monday show that two fund-raising committees controlled by Edwards raised a combined $2.6 million in the second quarter of this year and that the North Carolina Democrat now has more than $4.4 million in the bank. … A News & Observer analysis of Edwards’ PAC money showed that more than 77 percent of it came from lawyers or law firms.” (John Wagner, Raleigh News & Observer, Jul. 16). All five of the top contributors to the Edwards campaign are plaintiff’s law firms, the list topped by Girardi & Keese of Los Angeles and Baron & Budd of Dallas, both familiar to longtime readers of this site. (David Brown, “The Candidate”, The Recorder, Jun. 14). (DURABLE LINK)
July 16-17 – By reader acclaim: quadriplegic sues strip club over wheelchair access. Edward Law of Orlando, Fla., who is quadriplegic, “has sued a strip club, charging that it violates the Americans with Disabilities Act because the lap dance room does not have wheelchair access.” In addition to suing the Wildside Adult Sports Cabaret of West Palm Beach, Law has also recently sued a second strip clup, “an Orlando restaurant and a Daytona Beach Harley-Davidson motorcycle shop”; we don’t know yet whether to assign his filing activities to this category. (”Orlando quadriplegic sues strip club over wheelchair access”, AP/Palm Beach Post, Jul. 15)(for more on lap-dance handicap accommodation, see Sept. 27-28, 2000). (DURABLE LINK)
July 16-17 – Mercury in dental fillings. For well over a century dentists have used a mixture of metals including mercury in standard tooth fillings, and both the U.S. Public Health Service and Consumers Union have declared that patients have no grounds for alarm that the fillings pose a risk to health. That hasn’t convinced a small if longstanding body of dissenters who hold that exposure to even trace amounts of the heavy metal must be having toxic effects on users’ bodies. The dispute has lately turned litigious, with Van Nuys, Calif. personal injury and environmental attorney Shawn Khorrami spearheading several suits which accuse the American Dental Association and dentists of wrongly promoting the material, and the ADA striking back with a defamation suit. (Doug Bandow, “Killer teeth?”, Cato Institute Dailies, Jun. 28; Raymond J. Keating, “Lawsuits and Legislation Causing Pain for Dentists”, Small Business Survival Committee, Jun. 7; AltCorp (anti-mercury testing firm); Stephen Barrett, “The Mercury Amalgam Scam”, QuackWatch.com, last revised Apr. 23; search QuackWatch on “amalgam”; American Dental Association on ADA v. Khorrami). (DURABLE LINK)
July 16-17 – Hizzoner’s divorce, settled at last. “Anyone who’s been appalled at the depths to which the parties stooped in this Hanover/Giuliani split just hasn’t been divorced from a millionaire often enough. As big splashy divorces go, this was no uglier than most.” (Dahlia Lithwick, “Hats Off to Rudy”, Slate, Jul. 12). (DURABLE LINK)
July 16-17 – “Spanking Client Not Legitimate Trial Prep Tactic”. Just plain bizarre: U.S. District Judge Robert N. Chatigny has ruled that an attorney’s malpractice insurer is not obliged to pay out in a case in which Derby, Ct. attorney Milo J. Altschuler allegedly took a client across his lap and spanked her before a court appearance. “The woman claimed Altschuler, before removing her panties and stockings, told her he needed to spank her so the judge didn’t think she was lying.” Judge Chatigny ruled that the spanking did not constitute the rendering of professional services, although Altschuler “acknowledged that he used [threats of spanking] in representing more than a dozen other clients to make them ‘more afraid of him than they would be of the prosecutor.’” (Scott Brede, Connecticut Law Tribune, Jul. 15). (DURABLE LINK)
July 15 – “Morales’ $1 Million Tobacco Fee Under Fire”. “Former Attorney General Dan Morales told lawyers that a $1 million contribution to his political campaign fund was a condition for joining his anti-tobacco legal team, a Houston lawyer testified in a newly released document.” In a 1999 interview that has only now been made public in court proceedings, an assistant to Texas Attorney General John Cornyn questioned Houston attorney Wayne Fisher, a former president of the State Bar and a former president of the Texas Trial Lawyers Association, under oath. Fisher “said Morales outlined two separate requirements during a meeting he had with the then-attorney general in 1995. Fisher said one condition of employment was to ‘front’ the legal expenses and a second was to ‘commit to contribute $1 million to (Morales’) political campaign — to (Morales’) political campaign fund, as I recall it.’” Fisher “chose not to join Morales’ legal team”; he also “recalled wondering later if the meeting was a ’sting operation.’” Fisher’s account seems to buttress earlier recollections by noted plaintiff’s attorney Joe Jamail, who also did not join the state’s team (see Sept. 1-3, 2000, May 22, 2000, June 21, 2001, Aug. 29-30, 2001, Nov. 12, 2001).
The five law firms eventually hired by Morales are all “major contributors to Democratic candidates and causes”. Michael Tigar, attorney for the five, denies that any of their tobacco fees or expenses went to Morales but concedes that “some was paid to Austin political consultant George Shipley. Tigar said all the payments to Shipley were first reviewed by University of Texas law professor Charles Silver, who was retained by the lawyers as an ethics adviser.” (Clay Robison, Houston Chronicle, Jul. 12). (DURABLE LINK)
July 15 – Paper currency should accommodate blind, suit argues. “The American Council of the Blind, which seeks to improve conditions for the visually impaired, has sued the Treasury Department to force its way into the currency revamping process. …The group is not promoting a specific change that would help blind and sight-impaired Americans sift through their money, but hopes the government will study an array of options that would be helpful. A major step could be offering denominations in different colors or sizes with large-print features, like many other countries, [Ralph] Brunson said. Braille and textures also are possibilities, although the markings are prone to wearing off. ‘We did not specify a particular option because, primarily, at this point we’re trying to get the dialogue going,’ Brunson said.” (Mark Babineck, “Blind Group Sues U.S. over Currency”, AP/FindLaw, Jul. 1). (DURABLE LINK)
July 15 – New civil rights target: “linguistic profiling”. With assistance from a Ford Foundation grant, the National Fair Housing Alliance and Stanford education and linguistics professor Dr. John Baugh have launched a project “to study the impact of linguistic profiling on housing discrimination. This summer, Baugh will track the instances of bias that the housing markets show toward speakers of non-standard English over the telephone. Baugh says speakers who do not ’sound white’ often are discriminated against over the telephone. ‘Even though the courts are reasonably well equipped to prosecute cases of face-to-face discrimination,’ says Dr. Baugh, ‘they have a hard time understanding and applying the law to linguistic profiling, and that’s where this research will help.’” “National Study on Linguistic Profiling in Housing Announced”, Jun. 26)(via Scott Norvell, FoxNews.com, Jul. 1). (DURABLE LINK)
July 12-14 – Welcome Salon.com readers, Bill O’Reilly listeners. We’re cited in Janelle Brown’s excellent article on parental lawsuits against teachers (”L is for Lawsuit”, Jul. 12) which mentions our subpage on overlawyered schools. And our editor is appearing today (Fri.) on Bill O’Reilly’s popular radio show to discuss the case of a New York City jury’s award to a woman who lay down on the subway tracks (see Jun. 26-27), along with other cases featured on our personal- responsibility subpage. Update: and welcome BBC-5 listeners, for whom our editor taped an interview arising from the Salon piece (DURABLE LINK)
July 12-14 – Credibility up in smoke? Environmentalist groups have strenuously denied that their use of litigation to stall road building, logging and the construction of firebreaks worsened this year’s raging wildfires out West (see Jul. 1-2). But it turns out that a recent General Accounting Office report, much cited by the enviro groups to show that they don’t sue often, actually may show nothing of the sort. “Environmental appeals delayed 48 percent of the [Forest Service]’s fire-suppression projects in fiscal 2001 and 2002, thereby stalling efforts to clear the brush and small trees that fuel the catastrophic wildfires plaguing the West, according to an internal Forest Service report obtained by The Washington Times. The report, slated for release [Thursday], found that 155 of the agency’s 326 plans to log overgrown, high-risk national forests were stymied by appeals. In Arizona and New Mexico, sites of some of this summer’s worst wildfires, that figure rose to 73 percent, and climbed to 100 percent in the Pacific Northwest”. (Valeria Richardson, “Forest Service Says Activists Played Role in Fires,” Washington Times, Jul. 11; Kimberley A. Strassel, “Truth Under Fire “, Wall Street Journal/ OpinionJournal.com, Jul. 11). (& see letter to the editor, Oct. 23) (DURABLE LINK)
July 12-14 – Read the label, then ignore it if you like. “Two carpet installers who admit they read the label of an adhesive they used, admit they understood the adhesive was flammable and should not be used inside, used it inside anyway, caused an explosion, were burned badly, sued, and won $8 million dollars.” (Phil Trexler, “2 installers get millions in blast suit”, Akron Beacon Journal, Jul. 10) (link and description via MedPundit, Jul. 10). (DURABLE LINK)
July 12-14 – Financial scandals: legislate in haste. The “chief sponsor of the House [financial-reform] legislation, Republican Michael G. Oxley of Ohio … complained that some aspects of the Sarbanes bill appeared to be turning into ‘a gravy train’ for trial lawyers.” (Richard A. Oppel Jr., “Senate Backs Tough Measures to Punish Corporate Misdeeds”, New York Times, Jul. 11). House Republicans are particularly critical of provisions which, in line with a long-term goal of the plaintiff’s bar, increase the time permitted to bring securities fraud lawsuits. The Mobile Register editorially warns that a number of ideas emanating from the Senate “would be a huge boon to voracious plaintiffs’ attorneys. And the last thing the nervous stock market needs, now or ever, is to worry about companies being ruined by ever-more creative lawsuits whose practical effect would do far more to enrich the lawyers than to protect the interests of individual investors.” (”Bush right, Shelby not, on business reform” (editorial), Mobile Register, Jul. 10). “Robert Musil” has some thoughts on the newly popular idea of requiring CEOs to certify their company’s financial filings on penalty of perjury (Jul. 7). And before assuming that it was management malfeasance alone that destroyed the market value of such companies as WorldCom and Adelphia, it would be wise to note that Europe, without benefit of major scandal, has managed to see most of the value of its telecom stocks evaporate since the sectoral bubble burst, with historic enterprises like Deutsche Telekom, France Télécom and Royal KPN of the Netherlands losing 80 or 90 percent of their value, and Britain’s BT doing not much better (Edmund L. Andrews, “Europe Shares Pain of the Fall in Phone Stocks”, New York Times, Jul. 11). And see Steve Chapman, “Real and phony fixes for corporate corruption”, Chicago Tribune, Jul. 11). (DURABLE LINK)
July 12-14 – “Court Tosses ‘Sopranos’ Suit”. Following an appellate court’s ruling against them, the Italian-American Defense Association has dropped its suit against HBO charging that “The Sopranos” offends the dignity of Italian Americans in supposed violation of the Illinois Constitution’s “individual dignity” clause. Score one for free speech (N.Y. Daily News, Jul. 2)(see Apr. 6-8, 2001). (DURABLE LINK)
July 10-11 – Convicted, but still on their teaching jobs. How hard is it to fire a bad teacher in New York City? “Daniel LaBianca, chief of outside funding for School District 14 in Brooklyn, pleaded guilty in 1999 to helping private school officials embezzle millions in federal aid for poor children. Three years later, he still holds his New York public school job — and has a $10,000 raise to boot. A Daily News review of the seven cases since 1999 in which the Board of Education filed to terminate tenured school teachers or administrators with criminal convictions found that in every case, the crooks stayed in the school system.” The state education probe requires that attempts to oust educators be sent to arbitration, where the teacher’s union has an impressive record of defending its members against ouster. (Alison Gendar and Bob Port, “Cons in Classroom: Crooked teachers, officials cling to jobs”, New York Daily News, Jun. 26) (& welcome Joanne Jacobs readers; she describes three appalling teacher-ouster cases that she covered years ago). (DURABLE LINK)
July 10-11 – Memo to bar associations: save your P.R. bucks. The new president of the Florida Bar “is asking Florida lawyers to chip in as part of a $750,000 campaign to improve the image of lawyers. He’s even hired a public-relations firm.” Back in 1993 “the American Bar Association tried this same sort of thing …. The ABA paid a consultant $170,000 to improve the image of lawyers. It didn’t do any good then, either.” The way to salvage the profession’s reputation is precisely what the bar associations are not about to do, namely to police the profession’s excesses, writes columnist Howard Troxler. (”Mere PR campaign won’t change public’s low view of lawyers”, St. Petersburg Times, Jul. 8). Read the whole thing, which is full of observations like: “People tell lawyer jokes as a defense mechanism, because a certain percentage of lawyers exist for the sole purpose of finding a new victim from whom to extract money. Every small business owner dreads the lawsuit that will destroy all their efforts.” And see fuller report, Oct. 3. (DURABLE LINK)
July 10-11 – The legal price for roommate discrimination. “Do you have the right to say whom you want for a roommate? In California, you apparently don’t”, notes Eugene Volokh. “On May 7, the California Fair Employment & Housing Commission penalized Melissa DeSantis $500 for inflicting ‘emotional distress’ on a would-be roommate by allegedly telling him that ‘I don’t really like black guys. I try to be fair and all, but they scare me.’ It also required her to pay him $240 in expenses — and take ‘four hours of training on housing discrimination.’” The case is Department of Fair Employment & Housing v. DeSantis (Cal. FEHC May 7, 2002).) Volokh thinks that if the issue were litigated far enough the courts would probably wind up finding there to be a constitutional right to “intimate association” that would protect people like DeSantis from being forced to room with people they didn’t want to room with, but writes, “To my knowledge there’s no caselaw on the matter.” (Volokh brothers blog, Jul. 8). In the reasonably well-publicized “lesbian roommate” case of 1996, however, Ann Hacklander-Ready and another respondent were made to pay several hundred dollars plus thousands of dollars in plaintiff’s attorney fees after deciding that they didn’t want to be co-tenants with a lesbian applicant, in violation of the fair housing laws of Madison, Wisconsin. The case reached the state’s appellate courts (Court of Appeals, Sept. 26, 1996) and the U.S. Supreme Court eventually denied certiorari (Hacklander-Ready v. Wisconsin, 117 S.Ct. 1696 (May 12, 1997)). So it would be natural for the California authorities to assume that, no, there is no remaining individual liberty left in this country to decide with whom one wants to live in a shared tenancy (& see Volokh updates, Jul. 12 -1-, -2-). More: Aug. 10, 2005 and Feb. 9, 2006 (Craigslist) (DURABLE LINK)
July 10-11 – They thought we’d just sue. “The fifth element that made Bin Ladenism possible was the West’s, especially America’s, perceived weakness if not actual cowardice. A joke going round the militant Islamist circles until last year was that the only thing the Americans would do if attacked was to sue the attackers in court. That element no longer exists. The Americans, supported by the largest coalition in history, have shown that they are prepared to use force against their enemies even if that means a long war with no easy victory in sight.” (Amir Taheri, “Bin Laden no longer exists: Here is why”, Arab News, Jul. 9) (via Instapundit, Jul. 7). (DURABLE LINK)
July 3-9 – Now we are three. We launched Overlawyered.com on July 1, 1999, which means we’re now beginning the site’s fourth year of commentary. Tell your friends! (DURABLE LINK)
July 3-9 – Law blogs. While we’re on a week-long hiatus, check out some of these weblogs on law and law-related topics, a category that barely existed a year ago. Aside from InstaPundit and the Volokhii, which if you’re like us you already visit daily or more often, there are the pseudonymous “Max Power” and pioneering Breaching the Web; Rick Klau; Bag and Baggage; Ernie the Attorney; zem; and Held in Contempt. (All the above-mentioned also display an excellent sense of taste by linking to this site). Most have link lists that will lead you to other law blogs and sites. Two others that are deservedly popular: Howard Bashman’s How Appealing and the pseudonymous “Robert Musil“. Not surprisingly, blogs are especially well established in the world of IP law and copyright, with such entries as Yale Law’s LawMeme; Donna Wentworth’s blog at Corante, and EFF’s wonderfully named Consensus at LawyerPoint. (DURABLE LINK)
July 3-9 – “Tampa Judge Tosses Out Class-Action Suit Against Hog Company”. “A judge dismissed a federal class-action lawsuit against the nation’s largest hog producer, ordering the plaintiffs’ attorneys, including Robert Kennedy Jr., to pay the company’s legal expenses.” (We’ve been covering this case since it was farrowed in late 2000, not excluding Kennedy’s embarrassing public forays into the controversy). Chief U.S. District Judge Elizabeth A. Kovachevich granted Smithfield Foods’ motions to dismiss the case, “saying the plaintiffs did not succeed in establishing how the company’s actions damaged their property. The judge also said the plaintiffs’ attorneys filed ‘frivolous motions,’ and ordered the dozen or so law firms representing the plaintiffs, including Kennedy’s, to pay Smithfield’s legal costs.” Sometimes the system does work as it ought to — happy Fourth of July! (AP/Tampa Bay Online, Jul. 2). (DURABLE LINK)
July 3-9 – Drunk pilots. It’s apparently happened again, this time with an America West flight stopped before taking off at Miami. We covered the legal aftermath the last time around. (DURABLE LINK)
July 1-2 – Going to blazes. Raging wildfires are what you get if you suppress smaller burns and forbid deliberate thinning of forests through logging, but both logging and “controlled burns” out West have run into community opposition and litigation. “The uncertainty caused by [anti-logging] lawsuits has decimated the logging industry in Arizona, and that has contributed heavily to the situation we find ourselves in today,” writes Republican Rep. Jeff Flake of Arizona. “… If we want to save what remains of our forests in Arizona, we’ve got to get a handle on the frivolous lawsuits that prevent us from doing so.” (Rep. Jeff Flake, “Costly lawsuits provide kindling for forest blazes”, Arizona Republic, Jun. 25). In an article promoting the use of controlled burns, the New York Times cites prominent Westerners who seem to feel much as Flake does (”Gov. Jane Dee Hull of Arizona said it was ‘policies from the East Coast’ that kept the Forest Service from pruning overgrown forests. Gov. Judy Martz of Montana said environmental groups ‘played a great role in the fires,’ by blocking some efforts to log trees.”) while also quoting environmentalists who point to a General Accounting Office study which they say proves that they have seldom challenged fuel-reduction projects (Timothy Egan, “Idea of Fighting Fire With Fire Wins Converts”, New York Times, Jun. 30). Update: “Plans to cut fire danger by thinning trees in an Arizona forest now being destroyed by the nation’s largest active wildfire were blocked for three years by a Tucson environmental group, a Tribune investigation has found. The U.S. Forest Service approved a plan to thin trees and remove volatile debris in parts of the Apache-Sitgreaves National Forest on the Mogollon Rim in September 1999, according to court records. The plan was halted after the Center for Biological Diversity appealed the decision, then sued in May 2000, claiming the Forest Service had not followed regulations. The matter is still pending in federal court.” Mark Flatten and Dan Nowicki, “Green group lawsuit blocked forest thinning”, East Valley Tribune, Jul. 1). Further update Jul. 12-14: new Forest Service report indicates that fire-prevention projects have been frequently litigated, throwing doubt on the environmentalists’ case. (DURABLE LINK)
July 1-2 – Updates. The other shoe drops on various stories:
* Well, that didn’t last long: “Home Depot Changes Mind, Will Sell to Uncle Sam” reads the headline (AP/Tampa Bay Online, Jun. 28)(see Jun. 17-18).
* Former Minnesota court of appeals judge Roland Amundson has been sentenced to 69 months in prison for stealing more than $300,000 from the trust fund of a mentally retarded client (see Mar. 19) (Minneapolis Star-Tribune, Jun. 
(via Burt Hanson’s Law and Everything Else, Jun. 8; Hanson argues that the sentence is too stiff).
* Another wrongful birth case for your list: “The family of a child born with a disabling chromosomal defect that went undetected during pregnancy has settled a wrongful-birth lawsuit against the mother’s obstetrician for $1.65 million, according to court papers and attorneys.” Cynthia Fields argued that she would have had an abortion “in the blink of an eye” had she been given an amniocentesis that revealed that her daughter Jade, now 7, would be born severely disabled, requiring round the clock care (Lindy Washburn, “Family of disabled child settles for $1.65M”, NorthJersey.com, May 23). On the crisis in obstetrics law generally, see Rita Rubin, “Fed-up obstetricians look for a way out”, USA Today, Jun. 30. (DURABLE LINK)
July 1-2 – Mississippi’s other disaster. As if the collapse of locally based WorldCom weren’t bad enough, state lawmakers still haven’t done anything about the litigation climate (Tim Lemke, “Best place to sue?”, Washington Times, Jun. 30). But at least Judge Lamar Pickard says his court in Jefferson County has enough out-of-town litigants for now and has told plaintiffs with no local connection to start taking their business elsewhere. (DURABLE LINK)
July 1-2 – Moving to new host. We’re in the process of moving this site to a new host (Verio); we moved our editor’s home site there a couple of weeks ago, as a trial run. It’ll be a little more expensive, but we can afford it thanks to our generous readers whose Amazon Honor System donations (more than $1,000 in all) put the site in the black last year. We expect the new service to be more reliable, especially on email, which had been a chronic problem with our previous service (we had a miserable time trying to get email to AOL users, for example). Thanks for your support! (DURABLE LINK)
August 20-21 – “Man suing after drunken driving crash”. Nashua, N.H.: “Three years ago, a Merrimack man crashed his Jeep in a Londonderry sand pit, killing a friend. Now, he’s suing the pit’s owner and the couple who threw the party where he was drinking before the crash. Albert Gordon, 36, charges Jay and Susan Barrett of Londonderry were negligent in letting him get drunk at a company party and didn’t warn him and other guests of the dangers of four-wheeling in the sand pit next door. He alleges the pit owner, Continental Paving Inc., should have done something to keep people off its property or warn them of the danger.” Gordon was convicted of aggravated driving while intoxicated; prosecutors said his “blood alcohol level after the accident was more than twice the legal limit for driving.” (AP/Boston Globe, Aug. 16)
August 20-21 – Jury orders Cessna to pay $480 million after crash. Sure, go ahead and let trial lawyers swallow the light aircraft industry — no doubt they’ll do a better job running it. Tobacco-fee angle: one of the plaintiff’s firms in the case is that of Fred Levin, who hauled in an estimated $300 million representing Florida in the tobacco suit, gave enough to the University of Florida’s law school to get it named after himself, and clearly knows how to reinvest his winnings. (Bill Kaczor, “Pensacola Jury Returns $480 Million Verdict in Plane Crash”, AP/TBO.com, Aug. 16; Molly McMillin, “Jury says Cessna is at fault in crash”, Wichita Eagle, Aug. 17; Shannon P. Duffy, “Florida Jury Sets $480 Million Verdict in Crash of Defective Plane”, The Legal Intelligencer, Aug. 17).
August 20-21 – Welcome LinkyDinky, FluffyBunny visitors. The popular best-of-the-web service LinkyDinky gives us a nod, describing Overlawyered.com as a site that “chronicles the sad (and scary) state of affairs due to our litigious attitudes, including bizarre examples of greed overcoming logic” (Aug. 15). We’ve also newly won mention on FluffyBunny.com, which says of us: “Sites like this are always a good read when you’re tired of the dozen shark stories, recaps of Chandra Levy timelines and discussions of the obvious” (first Aug. 16 item). LinkyDinky, FluffyBunny — could a pattern be developing here? Also: Australia’s Blackstump (Aug. 8) and HalluciNETting; Pop-o-ganda.com (”control- trademark – delete”), RidersForJustice.com (”links of interest to bikers”/”Freedom Fighter” section), Daily Frank weblog (July 26), Teri O’Brien (”speaker, author, motivator”), Laipple family of Tulsa, Okla., GentleWolf.com.
August 20-21 – Updates. More new developments in familiar stories:
* By a 9-5 vote, the Fifth Circuit has paved the way for a new trial for Texas death row inmate Calvin Burdine on the grounds that his lawyer was asleep during parts of his trial. The dissenting judges argued that Burdine’s guilt was clear from his confession and other evidence and that his lawyer’s alleged propensity to snooze off made no difference in the case’s outcome. The dissent “also noted that Mr. Burdine waited 11 years before raising the ’sleeping lawyer’ claim and even praised [his lawyer's] performance after the trial.” (see Feb. 12) (Diane Jennings & Ed Timms, “Court sides with inmate in sleeping-lawyer case”, Dallas Morning News, Aug. 14).
* In California, a state panel has ordered Judge Patrick Couwenberg off the bench for lying extensively about his background during the process that led to his appointment, despite his lawyer’s plea that Couwenberg “is a victim of a mental condition called ‘pseudologia fantastica’ for which he is undergoing treatment” and which causes him to fib in a compulsive way (see June 7). (Erica Werner, “Los Angeles Superior Court judge removed from bench for lying”, Sacramento Bee, Aug. 16; Sonia Giordani, “L.A. Judge Removed From Bench for Lies About Past”, The Recorder, Aug. 17).
* “A federal judge has rejected a proposed settlement of an antitrust suit against the National Football League and its member teams over the pricing structure of the ‘Sunday Ticket’ on satellite television after finding that consumers weren’t getting enough money and that the plaintiffs’ lawyers were getting too much. … [The judge said] courts have a duty to reject such settlements so that plaintiffs’ lawyers will be discouraged in the future from bringing weak cases.” (see June 5). (Shannon P. Duffy, “Judge Rejects NFL Antitrust Settlement That Pays Lawyers Too Much, Consumers Too Little”, The Legal Intelligencer, Aug. 20).
* In the eight-year-long saga that has pitted Marilyn Bartlett’s demands for handicap accommodation against the resistance of the New York State board of bar examiners, federal judge Sonia Sotomayor has ruled that the board must allow Bartlett four days, rather than two, to complete the bar exam because of her dyslexia and learning disability (see our editor’s column in Reason, Feb. 1999) (Mark Hamblett, “Learning-Disabled Woman Wins Added Time for New York Bar Exam”, New York Law Journal, Aug. 17; Daniel Wise, “Review of Dyslexic’s Bar Exam Ordered by 2nd Circuit”, New York Law Journal, Aug. 31, 2000).
August 17-19 – Contrarian view on PBR. “The managed care industry is not complaining that loudly about the latest legislation.” (George M. Kraw, “The Patients’ Bill of Rights” (commentary), The Recorder, Aug. 10). Also: Philip K. Howard, “A Cure for the Patient’s Bill of Rights,” AEI-Brookings Joint Center for Regulatory Studies Policy Matters #01-18 June; Karlyn H. Bowman, “Public Favors Patients’ Bill of Rights, but It’s Not a Top Priority,” Roll Call, June 28.
August 17-19 – “The arithmetic of arsenic”. U. of Chicago law prof Cass Sunstein, a frequent contributor to the New Republic and mentioned as a possible Supreme Court pick in a future Democratic administration, examines the role of cost-benefit analysis in the recent EPA arsenic controversy, and concludes that reasonable assumptions could have tipped the decision either way: there is “no obvious, correct decision for government agencies to make”. (AEI/Brookings Joint Center for Regulatory Studies, Working Paper 01-10, Aug. — abstract/full paper (PDF) (see also Apr. 18))
August 17-19 – From the evergreen file: humiliation for dollars. How much embarrassment would you be willing to put up with on the witness stand just to nab a few thousand dollars more in damages after a fender-bender in which “not even a taillight was broken”? As much as this Connecticut couple? (Colleen Van Tassell, “Good Thing It Wasn’t A Tow Job”, New Haven Advocate, March 11, 1999).
August 16 – Bias suits can tap personal assets of innocent higher-ups. “Victims of housing discrimination have a direct claim on the personal assets of business owners and officers whose employees were at fault and need not go through the usual hurdles to pierce the corporate veil, the 9th U.S. Circuit Court of Appeals ruled on July 31.” The court ruled that a mixed-race couple and homebuilder could file suit against David Meyer, the founder of Triad Realty in Twenty-Nine Palms, Calif., over the discriminatory failure of one of the realty firm’s agents to present the couple’s bid on a house, and that Meyer’s personal assets could be proceeded against if he were the owner or proprietor whether or not it could be shown that he knew anything about the discrimination. (Gary Young, “Realtor Liable for Agent Bias, 9th Circuit Rules”, National Law Journal, Aug. 14).
August 16 – “Deputies Sue Diabetic Driver They Beat After Traffic Stop”. Maryland: “Two Frederick County sheriff’s deputies are suing a diabetic man they beat after a traffic stop, contending his complaints about the incident hurt their careers. Eric J. Winer and Jeffrey A. Norris are seeking more than $68,000 from Frederick T. ‘Tom’ Moore IV of Virginia.” In 1998 officers Winer and Norris chased and blocked Moore’s erratic truck on the assumption he was drunk, then beat and doused him with pepper spray and let their dog into his vehicle when he failed to respond to their commands. It turned out, however, that he had been slipping into a diabetic coma. “Moore spent four days in the hospital for dog bites and other wounds from the beating.” In their lawsuit, “the officers say the inquiries and publicity portrayed them unfairly. They contend Moore’s criticism of them in media interviews was ‘highly offensive,’ considering they had ‘prevented serious harm, injury and/or death’ to Moore.” (WJLA/Yahoo, Aug. 10).
August 16 – How Germans see American injury law. “In Germany, lawyers and the media look upon the American tort system with a mixture of fascination, envy, and horror.” Perhaps surprisingly, the difference between the two systems is not so much in the substantive scope of liability; in fact, German law in some respects is more liberal than American, imposing a “duty to rescue” that American courts have rejected, for example. Instead, the differences have more to do with damages: ours are both far higher and far more unpredictable. “It is well documented that the scale of damages resulting from successful tort litigation in Germany is at least one order of magnitude lower than in the US. Thus, where a broken leg in a car accident in New York City might produce a jury award of $300,000, in Berlin it would produce an award of around $30,000.” At the same time, “in comparison with the German tort system the American system is wildly more unpredictable at every level”: many cases result in low compensation or none even though they seem as deserving as the jackpot cases.
“The Germans find the variation in our damages awards totally unacceptable. … [They feel] we should give the same amount to people for the same kind of injury. The Germans enforce a semblance of order with respect to pain and suffering damages by collecting together all the damage awards produced in every trial court in Germany in a given year. This book, called the Tabellen, is published and used by judges and lawyers to estimate what a damage award in a new case should be.” The American system is “actively opposed” to any such approach (more on “scheduled compensation” abroad: Aug. 10). (Anthony J. Sebok (professor, Brooklyn Law School), “How Germany Views U.S. Tort Law”, FindLaw.com, July 23) (via Arts & Letters Daily).
August 16 – New daily traffic record on Overlawyered.com. Upwards of 11,700 pages served on Tuesday, helped along by that excellent John Leo column and by our first announcement mailing since we moved the list to Topica (though we bunglingly forgot to include in it a link to this site’s front page, an omission we’ll rectify in the future). Thanks for your support!
August 15 – John Leo on Overlawyered.com. The columnist pulls together a fresh batch of “news from the annals of zero tolerance and the continuing campaign to make the culture ever more deranged”. He gives generous credit to the website you are perusing at this very moment, which “reports brightly on the amazing excesses of the litigious society” (”It’s a mad, mad world”, U.S. News/TownHall.com, Aug. 14). Some recent zero-tolerance cases he describes, which hadn’t made it onto this site yet: “A New Jersey student made a baseball bat in shop class, then was expelled for refusing to hand it over to a teacher as a dangerous weapon. A National Merit scholar in Fort Myers, Fla., missed her graduation ceremony and was sent to jail after a kitchen knife was found on the floor of her car. She said the knife had fallen there when she moved some possessions over the weekend. At a Halifax, Nova Scotia, school, a ban against throwing snowballs also prohibited all arm motions that can be interpreted as possible attempts to throw something at anyone.”
August 15 – Navegar not nailed. Pundit/law prof Erwin Chemerinsky was sure that Navegar’s sued-over TEC-DC9 weapon, though it sold by the hundreds of thousands, had no legitimate uses whatsoever. Notes Reason Online’s Jacob Sullum: “it was galling how readily anti-gun activists and politicians leaped from the premise that thugs liked a given gun to the conclusion that no one else did”. (”The Evil Gun”, Aug. 14; see also “California Dreamin’”, WSJ/OpinionJournal.com, Aug. 10; “Gun makers’ liability (editorial), Las Vegas Review-Journal, Aug. 7). And given voter trends in last November’s election, many national Democrats are racing to distance themselves from the agenda of the litigate-and-confiscate antigun groups. “More than any other issue, some analysts say, unease about gun control helped defeat presidential candidate Al Gore in several traditionally Democratic Southern and border states — any one of which would have been enough to put him in the White House.” (Susan Page, “Democrats back off on firearms”, USA Today, Aug. 14). Similarly: James Dao, “New Gun Control Politics: A Whimper, Not a Bang”, New York Times, March 11; Juliet Eilperin and Thomas B. Edsall, “For Democrats, Gun Issue Losing Its Fire”, Washington Post, Oct. 20, 2000.
August 15 – “Girl from Ipanema is sued over the song she inspired”. “It was as a sultry 18-year-old that Heloise Pinheiro inspired Brazil’s best-known tune. Now aged 57, she is being threatened with legal action by the songwriters’ heirs, who claim that her boutique, ‘The Girl From Ipanema’, infringes their copyright.” (Philip Delves Broughton, Daily Telegraph (U.K.), Aug. 13; “The churls from Ipanema” (editorial), Aug. 13).
August 13-14 – Why she’s quitting law practice. Karen Selick, a libertarian attorney who writes a column for Canadian Lawyer and practices in a small community in Ontario, is getting out of the business and explains why on her website. To begin with, there’s the aggravation and emotional wear and tear of matrimonial law, the bulk of her practice. “Then there’s the state of the law itself. When I started in this field in 1985, there was at least a modicum of cohesiveness to the case law. That has now vanished completely. Not only is the law different from what it was in 1985 — it’s different from what it was last month or last week. Once upon a time, you could give your clients a pretty good idea of the outcome they might expect if they went to court. Now all you can tell them is that every case is a crapshoot.” And then there’s the law’s tilt against husbands and fathers, “to the point where representing women in a manner that protects you from negligence suits requires a lawyer to make claims that I consider to be unethical, while representing men means you are perpetually on the losing side.” (”A Twist on Gresham — Bad Laws Drive Out Good Lawyers”, undated, late July).
August 13-14 – “Shark-bite victim turns to Cochran”. By reader acclaim: “The family of a highly publicized shark-attack victim mauled while swimming at a Bahamian resort has consulted a famous legal barracuda to represent them in a possible suit against the hotel: Johnnie Cochran.” The family of 36-year-old Krishna Thompson “has accused lifeguards at the Our Lucaya Beach & Golf Resort on Grand Bahama of lingering on the beach during the attack. … The resort has insisted that lifeguards acted swiftly in pulling Thompson out of the water. The resort’s statements were backed by a Bahamian doctor who interrupted his morning stroll to help.” (Tere Figueras, Miami Herald, Aug. 10).
August 13-14 – “We often turn irresponsibility into legal actions against others”. Two events in the Tampa Bay area caught the eye of St. Petersburg Times columnist Robyn Blumner: the criticism that greeted the city of St. Petersburg for declining to cancel a free fireworks display in the face of an approaching lightning storm, even though it might tempt residents to go outside; and “a sexual harassment lawsuit filed by Nicole Ferry against the University of South Florida, in which the state of Florida agreed to give her $25,000″ for having subjected the student to a sexually explicit photograph (warned of in advance) as part of her university art class. The two news reports suggest to Blumner that our sense of personal responsibility and resilience is slipping fast, and remind her of a certain website which (among other functions) “documents the way predatory lawyers help people turn their personal failings into lawsuit fodder.” Which cases on this site does Blumner “find most appalling?” Read the column and find out. (July 15).
August 13-14 – Tobacco: judge cuts Boeken award. In Los Angeles, Superior Court Judge Charles McCoy has upheld $105 million worth of a jury’s $3 billion award to smoker Richard Boeken against Philip Morris (more). The company has vowed to appeal, citing among other reasons the judge’s refusal to admit evidence that would have shed light on Boeken’s credibility, in particular his record of criminal convictions on fraud and other charges. (Anna Gorman, “Huge Award to Smoker Cut by Judge”, L.A. Times, Aug. 10; Cadonna M. Peyton, AP/Daily Southtown, Aug. 10). On the evidence exclusion issue, see “Tobacco Giant Cites Plaintiff’s Credibility; Courts: Philip Morris Says Smoker’s Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion,” Los Angeles Times, July 29, summarized in Columbia Law School Faculty In the News, Summer 2001 (scroll to “Prof. Richard Uviller”). See also Paul Campos, “Outrageous verdicts are genteel theft”, Rocky Mountain News (Denver)/Jewish World Review, June 9).
August 13-14 – Tobacco: Boston Globe on state-settlement aftermath. Meanwhile, a report from the National Conference of State Legislatures confirms what is already well known, namely that states are spending only a small fraction of their $246-billion tobacco windfall on programs to hector smokers into quitting, propagandize youngsters against the habit, and vilify tobacco-company execs in mass-media ads. The Boston Globe’s coverage strings together many quotes from anti-tobacco activists flaying the settlement as not tough enough, but seems unable to find anyone willing to blast the settlement from the other direction, as an extortive deal premised on bad law, nor anyone who will point out the cozy nature of the alliance between many AGs and trial lawyers with whose firms they often had personal and campaign-finance links. The story also misses the reason why tobacco companies have found it so easy to recover the settlement’s costs in higher prices, namely the settlement’s provisions cartelizing the industry and hobbling new entrants (see July 29, 1999) — but then, none of the groups quoted in the article (anti-tobacco activists, state governments, trial lawyers, tobacco companies themselves) have any interest in shining light in that particular dark corner. Incredibly, even Mississippi AG Michael Moore and his good friend trial lawyer Dickie Scruggs, who led the whole crusade, now have the nerve to criticize the outcome as “perverse”, ineffective and so on. Is Scruggs saying he was outnegotiated or that he didn’t get his clients that great a deal, and if so is he going to give back some of his estimated billion in fees? (Thomas Farragher, “Little of $246b deal fights tobacco”, Boston Globe, Aug. 9). The same paper reports on the ugly feud over what Massachusetts owes to the law firm Brown Rudnick, which represented the state in the settlement and now says $178 million in fees aren’t enough. “‘If you divide what we’re getting, which is $178 million over 25 years, and then divide that by [about 50] partners, you’ll see that it’s certainly significant. But on an annual basis, it’s not something that anybody can retire on,’ said M. Frederick Pritzker, chairman of Brown Rudnick’s litigation department.” (Thomas Farragher, “State, lawyers fight over settlement fees”, Boston Globe, Aug. 10). Daynard-cite dishonor roll: both the Globe’s Aug. 9 entry and the L.A. Times’s Aug. 10 (see above) quote Northeastern U.’s Richard Daynard on tobacco suits without mentioning his interest as a contingent-fee claimant to state settlement booty (the Globe’s Aug. 10 article does mention this in passing, however).
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August 31 — Death by mainstreaming. Had safety been the primary concern, Joshua Smurphat of Sunnyvale, Calif., 12 years old and mentally retarded, would probably not have been allowed onto the Drop Zone Stunt Tower ride from which he fell to his death August 22 at the Great America amusement park in Santa Clara. Mechanical failure has been ruled out, and ride designers say that once patrons have been strapped in, it’s physically impossible for them to fall out — provided they obey instructions to remain in their original posture. Even if Joshua’s harness was insecurely fastened, a possibility investigators are still checking into, an ordinary 12-year-old would be apt to notice the problem, but as Jeffrey Lewis, a director of the local United Cerebral Palsy organization, cautions: “in many cases, a consequence of mental retardation is the lack of danger awareness.”
However, both the federal Americans with Disabilities Act (ADA) and California disabled-rights law prohibit amusement parks from “discriminating” against persons with mental incapacities by turning them away from rides, or attaching special preconditions to their participation, so long as they meet otherwise applicable requirements such as height and chronological age. “Certainly they couldn’t say that somebody who had a cognitive disability couldn’t participate in a ride,” Sacramento disabled-rights attorney Eric Gelber told the San Jose Mercury-News, apparently well pleased with that result. “We take our obligation to accommodate all of our guests, regardless of disability, very seriously,” said a park spokesman, in what might serve as an epitaph for the unfortunate young man. (Aug. 26; related follow-up, Aug. 28; links now dead).
August 31 — New Overlawyered.com page: Unsafe on any docket. “Crashworthiness” cases have made big headlines this summer, with two California juries voting awards of $5 billion against GM (Chevy Malibu) and $290 million against Ford (Bronco) and the Massachusetts high court upholding a $19.2 million verdict against Chrysler for a Plymouth minivan accident that the plaintiffs blamed on brake locking. We’ve accordingly devoted the ninth in our series of topical surveys to the area, assembling some historical background and links about the Audi 5000 and its supposed penchant for sudden acceleration, the 1993 episode in which Dateline NBC producers got caught practicing what you might call sure-fire journalism, and similar controversies, not neglecting the case that litigation advocates would much prefer to talk about, that of the Ford Pinto.
August 31 — The “we sue Microsoft” business plan. A Bridgeport, Connecticut jury on July 17 returned a verdict in favor of Microsoft in a private antitrust suit brought by a small company named Bristol Technologies. Interviews afterward indicated that jurors had been angered by internal Bristol emails and memos revealing the smaller company’s not-exactly-reluctant attitude toward litigation. A May 1998 message from a company director to Bristol chief executive Keith Blackwell referred to the approaching lawsuit as “the ‘We sue Microsoft for money’ business plan.” Meanwhile, “[a] memo from a Manhattan public relations firm hired by Bristol described a $75,000-plus ‘David v. Goliath Strategic Communications Game Plan’ to attack Microsoft in the press,” reports Karen Donovan in the August 2 National Law Journal. “Then came an e-mail from Keith’s wife, Jean, days after the suit was filed in August. Its subject: ‘Extend the Story, Increase the Pain.’” “The whole scenario was kind of disgusting,” said juror Robert LaBella of Stamford (followup — Thomas Scheffey, “Microsoft, Bristol and Money”, Connecticut Law Tribune, Aug. 23). Update Nov. 30, 2000: judge increases verdict to $1 million, Bristol requests new trial.
August 30 — Do as we say (I). Latest employer to face a big class action under the antediluvian Fair Labor Standards Act for not paying overtime to some of its highly responsible employees (lawyers, in this case): the U.S. Department of Justice. (San Jose Mercury-News, Aug. 25; AP/Mpls. Star-Tribune, Aug. 26). Don’t miss the Detroit News editorial (Aug. 28). Update Jul. 18, 2004: court rejects case.
August 30 — Do as we say (II): gun-suit hypocrisy in Detroit. The Motor City’s police chief confirmed last week that just before suing private gun makers for allegedly not doing enough to curb distribution of their wares, the city itself sold an astounding 13-plus tons of used police weapons to a private dealer. That puts Detroit ahead of even New Orleans and Boston (see Aug. 25 entry, below), in the tonnage and perhaps also the hypocrisy competition when it comes to weapons distribution. Should the city be liable each time one of those surplus guns gets used for a criminal or suicidal purpose? (Detroit Free Press, Aug. 25).
Since its filing, letters to the editor from local residents have flayed Detroit’s gun suit for “holding an innocent party responsible for someone else’s criminal activity” and have suggested that, if the city is going to endorse that sort of logic, “victims of crime in the city of Detroit should file suit against the city for its failure to protect those in the city” (Free Press letters, Jan. 8, May 1). More than one letter-writer has suggested, by way of trying to come up with a reduction to absurdity, that the logical culmination would be to hold Detroit’s own hometown industry, the automakers, liable for the activities of drunk drivers. But as July’s Chevy Malibu verdict shows (see August 27, below, and July 10) that’s exactly what the trial lawyers are already doing with considerable success. It’s not easy to think up a reduction to absurdity of our litigation system that isn’t already well on its way to being implemented in all seriousness.
August 30 — “Tort reform spurs lawsuit filings”. Alabama courthouses work overtime as lawyers file suits in droves to beat the deadline for the application of legislated limits to punitive damages and forum-shopping (Huntsville Times, Aug. 24).
August 30 — Taco Bell not liable for Ganges purification pilgrimage. A judge in Lancaster County, Nebraska has declined to order the Taco Bell restaurant chain to pay for trips to India for Siva Rama Krishna Valluru and his wife, Sailaja. Devout vegetarians as part of their practice of Hinduism, the couple was dismayed to discover that a rice side dish they had been eating contained meat. They had argued that swallowing flesh constituted a sin the expiation of which required them to bathe in the Ganges River as part of a purification ritual, but Judge Jean Lovell said such expenses did not count as reasonably foreseeable (Lincoln, Neb. Journal-Star, Aug. 27; AP/Bergen County, N.J. Record, Aug. 28).
August 30 — “Scholar’s shift in thinking angers liberals”. Harvard’s Laurence Tribe upsets colleagues by concluding that the Constitution’s Second Amendment may not, after all, be a meaningless inkblot. Instead he “posits that it includes an individual right, ‘admittedly of uncertain scope,’ to ‘possess and use firearms in the defense of themselves and their homes.” Heresy! (Tony Mauro, USA Today, Aug. 27).
August 28-29 — Speech police go after opinion articles, editorial cartoons. Columnist Stephen Chapman writes that the faculty union at Daley College was recently hauled before the city of Chicago’s Commission on Human Relations, which has the power to levy fines and issue injunctions. Its sin? Publishing an article critical of affirmative action in its newsletter. The college’s Board of Trustees, which filed the complaint, accused the author of the offending piece, Prof. James Bell, of jeopardizing “the rights of students and staff at Daley to equal access” by “mak[ing] students uncomfortable in an institution where comfort is essential for learning.” In June, after two years, the commission finally dismissed the complaint on the grounds that Daley College was not a “public accommodation”. Also in June, however, Chapman reports, the Department of Human Rights in St. Paul, Minn., filed a complaint against the local newspaper accusing it of racial discrimination for having run an editorial cartoon on college athletics that offended many local blacks. After a public outcry, it backed off (St. Paul Pioneer Press, June 10; AP/Freedom Forum, Jun. 23). Chapman quotes UCLA law professor Eugene Volokh warning that such complaints are only too logical a consequence of today’s “hostile-environment” law, a topic on which Volokh maintains a highly informative website. (column link now dead)
August 28-29 — Weekend reading. Pixels to take out on the canoe or Airstream:
* What goes around comes around: the estate of the famously litigious inventor Jerome Lemelson gets hit with a suit from his former employer saying that it actually owns the rights to many of his patents. Critics accused the late Mr. Lemelson of specializing in “submarine” patents whose applications would lie dormant in the Patent Office for years, then suddenly surface when other companies had made progress on the technology in question. (Victoria Slind-Flor, National Law Journal, August 24; see also lemelsonpatents.com, a website put up by lawyers who’ve tangled with the Lemelson estate.)
* “Why, why, would the American Bar Association honor a scandalous leader who has just been found in contempt of court, and whose disbarment is being considered even now?” Or Webster Hubbell, convicted of stealing from his clients? “What kind of advertisement for the profession of law is that?…[Y]ou can’t embarrass an honest profession. Seduced by the glitz of high office and maybe its own partisan prejudices, the bar got what it deserved” — Paul Greenberg, Arkansas Democrat-Gazette (full column). Meanwhile, Judge Richard Posner’s An Affair of State: The Investigation, Impeachment, and Trial of President Clinton sounds like the book to read in the coming month, to judge from reviews by Stuart Taylor Jr. (National Journal) and James Stewart (New York Observer).
* Time for social conservatives to get off their coercive, government-infatuated Culture War kick: “The problem with cultural conservatism is that it despairs not of culture, but humanity. Its votaries consider us all a bunch of suggestible imbeciles, and they view capitalism as a scam…As it turns out, though, people are pretty reasonable….We’re not in danger of ‘an accelerating descent into barbarism and the destruction, sooner or later, of free society itself.’ …Censorship merely would bollix things up by inviting censors to abuse power and everyone else to become dependent and lazy.” — columnist and Fox News host Tony Snow (link now dead).
August 27 — L.A. judge cuts award against GM to $1.2 billion. From the automaker’s motion for a new trial, we finally learn what the other driver’s name was (Moreno), how drunk he was (”.20 several hours later”), and what happened after the plaintiff’s lawyers succeeded in getting the judge to exclude from the trial any mention of Moreno’s intoxication or the fact that he’d been convicted and imprisoned for felony drunk driving over this crash (”Having moved to exclude it, plaintiffs told the jury, falsely, that his guilt consisted of ‘five seconds of bad judgment’,” whereupon the jury allocated to Moreno only 5 percent of the guilt for the injuries) (GM statement) (earlier Overlawyered.com commentary)(auto-safety litigation generally).
Plaintiffs also successfully fought to exclude evidence that the federal government’s real-world highway statistics show the Malibu among the safest cars of its time in crashes, and that testing had raised safety concerns about the alternate placement of the gas tank sought by the plaintiffs. Reuters now quotes GM as saying that 98 percent of American cars in the 1970s had their gas tanks in the same position as the Malibu’s. (”Judge Tells GM To Pay Record $1.2 Bln Liability”, link now dead). The company also says (Wall Street Journal news report today by Frederic Biddle, online subscribers only) that “there was absolutely no difference in cost” between the two designs.
While Reuters (link now dead) fairly summarizes many of the above facts, you’re in trouble if your local paper relies on the Associated Press. AP correspondent David Germain’s dispatches make it hard to figure out why GM thinks it has a case, merely depicting the automaker as trying to “be let off the hook” (link now dead) and quoting plaintiff’s attorney Brian Panish as saying, of the gas tanks, that “[t]he only people in the whole world who think they’re safe are General Motors and their lawyers” (link now dead), a temptingly checkable assertion left unchecked. Incidentally, Yahoo features Overlawyered.com’s July 10 commentary as a resource in its Full Coverage feature on the case.
August 27 — Best little forum-shopping in Texas. Two more stories illustrate why lawyers appreciate the Lone Star State for a kind of shopping not found at Neiman-Marcus. Mark Ballard in the National Law Journal relates how plaintiffs have brought a long succession of high-stakes cases to sleepy Texarkana, Texas “for only one reason: Judge David Folsom. The 52-year-old Clinton appointee is the only federal judge in Texarkana. Thus, every suit filed here goes before him.” Find a local resident or institution to stand in as your named plaintiff, and you’re home free: Folsom says he can’t recall ever granting a change of venue, though they’re often requested by defendants who wonder why they’ve been dragged to rural northeast Texas when neither they nor the subject matter of the litigation have any particular connection to that part of the world. An old pal of Bill Clinton’s from Arkansas days, Folsom presided over the $17.3 billion settlement of Texas’s Medicaid class action against the tobacco industry. That case certainly pepped up the local economy: the Texarkana Chamber of Commerce estimates that tobacco lawyers and their staffs spent $6.1 million during the proceedings. (Aug. 26).
Meanwhile, lawyers have obtained a $30 million settlement in a Mexican bus-crash case, much more than what such a case would have brought if filed in Mexico, because they were able to find a Texas judge willing to impose not only a Texas forum but also Texas law. (To get some idea of the asymmetries involved, imagine a Mexican court applying that country’s law to a Texas accident.) AP quotes the plaintiff’s lawyer as openly boasting of having foiled the Mexican legal system’s duly considered policy of not handing out money as readily as ours does. The presumption of those other countries, thinking they can apply their law to accidents on their roads! (AP/Washington Post, Aug. 16; Texas Lawyer, Aug. 23).
August 27 — Company to settle 36,000-plus Norplant suits. The Dallas Morning News reports that American Home Products has agreed to pay what could exceed $50 million to buy partial repose (some suits will remain) from lawyers suing it over the silicone-implant contraceptive. The per-claimant sums aren’t very large ($1,500), but nuisance value multiplied by 36,000 gets into substantial money. For more details, see our August 11 commentary and today’s lead editorial in the Wall Street Journal (online to subscribers only). (Dallas Morning News, Aug. 26; Yahoo/Reuters).
August 26 — Playing rough in Alabama. Last week a Mobile grand jury indicted former Alabama Trial Lawyers Association president Garve Ivey Jr., of Jasper, and a private investigator who has worked with Ivey, Wes Chappell, on charges of bribery, witness tampering and criminal defamation. The charges arise from an episode last year in which a former prostitute named Melissa Myers stepped forward to accuse Republican lieutenant governor candidate Steve Windom of raping her. Windom was elected anyway, Myers’s story soon fell apart, and she began cooperating with authorities looking into the question of whether she had been backed by others in making the allegations. Windom had come under heavy fire from organized trial lawyers for having taken a leading role in support of tort reform; in Alabama, as in other Southern states, the lieutenant governor’s position is a powerful one in blocking or approving legislation. Ivey and Chappell deny the charges and say they look forward to their day in court, and Ivey has sued Windom personally as well: “We are filing our lawsuit in Walker County, my home, not Mobile.” (”Ivey refuses to testify before grand jury”, AP/Daily Mountain Eagle (Jasper, Al.), Oct. 21, 1998; John M. Sandlin, “Ivey sues Windom, indictment reported in Mobile”, Daily Mountain Eagle, Aug. 17; AP/Washington Post, Aug. 19) (see update Sept. 1). Update: a jury in June 2000 acquitted Chappell, acquitted Ivey of the felony bribery charge, and convicted Ivey of the two misdemeanor counts of witness tampering and criminal defamation; appeal planned (see Aug. 31, 2000). Further update: in July 2001 the Alabama Supreme Court reversed these convictions and ordered Ivey acquitted of the charges (see July 7, 2001).
August 26 — Rolling the dice. With Ralph Nader on the warpath against the gambling industry, can the lawsuits be far behind? Wait a minute — here they are! David Rovella in the August 2 National Law Journal reports that class action lawyers in Alabama and Wisconsin have filed suit against credit card companies for allowing their customers to run up debts at offshore Internet casinos. David T. Maple of Birmingham, Ala. lost $49.95 at one such game site but stands to recover a lot more than that as “name plaintiff”, which might mean he is off to a profitable betting career after all. Lawyers say they are hoping to recover billions of dollars in refunds, interest “and even damages” (full story). In a policy analysis for the Cato Institute, Chapman University School of Law assistant professor Tom W. Bell calls Internet gambling “Popular, Inexorable, and (Eventually) Legal“.
August 26 — New feature debuts on Overlawyered.com site. Today marks the launch of our fledgling library of online articles, originally published elsewhere and now reprinted by permission of their authors, discussing some of the problems of the U.S. legal system. The opening line-up includes 28 articles by Michael Fumento, Peter Huber, Jonathan Rauch and Overlawyered.com editor Walter Olson on topics ranging from employment law to medical malpractice litigation, from toxic-tort scares to free speech. We expect to add more authors and articles in the weeks ahead.
August 25 — Gun-suit hypocrisy, Boston style. Last week officials admitted that they failed to follow their own procedures when they disposed of surplus police guns with no strings attached, which leaves the city resembling a Rum-denouncing cleric caught bootlegging on the side, given that it’s suing gun makers for not making an effort to control what happened after guns left their hands (see July 14). “Somebody dropped the ball,” acknowledged Police Commissioner Paul Evans. Why not just end the embarrassment by dropping the suit? (Boston Globe, Aug. 17; link now dead)
August 25 — Calif. state bar improperly spent dues on politicking. The Pacific Legal Foundation had brought suit on behalf of 40 members of the bar in the Golden State. In the 1990 case of Keller v. State Bar, the U.S. Supreme Court unanimously ruled that state bars with compulsory membership must offer a refund to members of moneys spent on politicking to which they object. The California bar proceeded to announce that of the $450.00 dues it charged in 1989, a bare $3.00 was spent on ideological and political activities, a figure it arrived at by designating much of its Washington and Sacramento legislative effort as merely one of “advising” lawmakers which bills to pass. We don’t think so, rules Sacramento County superior court judge Morrison England Jr. after eight years of litigation (AP/Freedom Forum; Aug. 20).
August 25 — Lawyers grabbing too much of Swiss bank settlement, charge Holocaust survivors. Yes, it’s one of the sadder headlines of 1999, and no, it’s not one of the more surprising to many who’ve followed the issue. “Gizella Weisshaus, one of the first to sue the banks, said she no longer wanted to be associated with the lawsuit because it would leave too little money for survivors.” (AP: Washington Post, CNN (links now dead)).
August 25 — “Employee lawsuits increasing”. Survey of 353 companies by Society for Human Resource Management and law firm of Jackson Lewis finds slightly more than half have faced employment-related lawsuits, with nine of ten suits coming from former employees. “Another 37 percent of the companies responding to the survey were sued by a current employee, while 8 percent were sued by unsuccessful candidates for employment.” Partner George Wilkins of Cincinnati’s Dinsmore & Shohl says labor and employment is the fastest growing area at his firm. (John Eckberg, Cincinnati Enquirer, August 22; SHRM June 27 press release)
August 24 — The dream verdict. On July 12, three days after a Los Angeles jury voted $5 billion against GM in the Malibu case, a jury in Ceres, Ca. voted $290 million against Ford in a case where several members of Juan Romo’s family had been killed in a rollover accident in their Ford Bronco. Ford’s motion for a new trial, filed last week, sheds light on how such cases are tried in today’s American courtroom.
Plaintiff’s counsel had railed against the “giant,” “wealthy” Ford with its “lawyers back east in Dearborn.” (“I talked about this case was about…corporate greed and arrogance…It’s also about this. It’s about Mrs. Romo’s purse….She didn’t have furniture for crying out loud, and she’s giving money to the church and she’s putting it [in her purse] to provide for the education of her children.” Damages? “You’ve got to say a number that gets on the front page of every newspaper in the country.”
How to deal with the inconvenient circumstance that the Bronco design more than exceeded the standards set by the National Highway Traffic Safety Administration? Keep hammering away at the idea that federal standard-setting (presumably in contrast to jury persuasion) is a “political” process (“that political report called the Federal Register”; “NHTSA has…political appointees”; “You got a reading from a Federal Register as it goes out to the politicians.”)
California law allows affidavits to be taken from jurors after a verdict. According to Ford’s motion, these affidavits revealed that one of the jurors acknowledged she had prejudged the case and told fellow jurors they did not have to follow legal instructions because the case allowed them to “save the babies”. Of one attorney, she said he “really was trying to do something good, and that what he said should be considered as evidence.” And, several jurors testified, the same juror told them at great length about a gruesomely detailed dream she’d had — which she described, not without mystical overtones, as an “omen” — in which a Bronco repeatedly rolled over and killed all the jurors’ children, while the company’s line-up of attorneys and witnesses — armed with guns, no less — “stood by taunting the jurors by chanting ‘Where’s the proof, where’s the proof?’”
The juror affidavits also suggested that the panel was strongly influenced by crash exposés that had aired on “60 Minutes” and similar programs, attacking other Ford models that trial lawyers were suing over, which a second juror saw as proving that Ford had acted in bad faith in such cases. One of these shows, watched by more than one juror, was aired by CBS on May 19, only weeks before the verdict, and included material prejudicial to Ford that the court had excluded from evidence in the Romo case. The apparent influence of the TV coverage helps explain why trial lawyers have gone to such extraordinary lengths over the years, behind the scenes, to shape the coverage on such shows.
After the trial, Ford says, while it was in the process of interviewing jurors to gather affidavits in connection with this new trial motion, plaintiff’s lawyer Larry Drivon was thoughtful enough to send the jurors a free gift, consisting of his own book inveighing against big business (”The Civil War on Consumer Rights“), which happened to feature a whole chapter devoted to attacking none other than the Ford Motor Company. Included was a note and personal inscription to the jurors: “for all us who care.” Update Aug. 27, 2002: appeals court reinstates verdict, Ford seeks review by California high court. More developments; further update Nov. 26, 2003 (appeals court reduces verdict in light of U.S. Supreme Court guidance).
August 24 — Beyond the hired-gun syndrome. Good op-ed in Sunday’s (8/22) Washington Post by David L. Faigman of Hastings College of the Law discussing the Court Appointed Scientific Experts project of the American Association for the Advancement of Science (AAAS). Faigman’s book “Legal Alchemy: The Use and Misuse of Science in the Law” will be published in October by W.H. Freeman & Co.
August 23 — Fertilizer manufacturers not liable for World Trade Center bombing. The Third Circuit U.S. Court of Appeals has upheld the dismissal of a suit by the Port Authority of New York and New Jersey, which had demanded that manufacturers be made to pay damages for the 1993 terrorist bombing of the twin Manhattan towers on the grounds that the misuse of their wares to make fertilizer-and-fuel-oil bombs was “objectively foreseeable”. The appeals court found the lower court had correctly ruled that the manufacturers’ conduct could never be the “proximate cause” of the bombing: “The terrorists’ actions were superseding and intervening events breaking the chain of causation,” writes Judge Jane Roth. If applied consistently, such logic could be helpful to other manufacturers sued over criminal misuse of their products, such as gun makers. Also rejected was a theory that the fertilizer companies were negligent for not having instituted “know-your-customer” controls on buyers of their product — again, an issue that finds its parallel in the gun litigation. (Legal Intelligencer, Aug. 19) A press communiqué (link now dead) from the clearly bewildered government of Norway describes how two of that country’s leading industrial companies became defendants in the World Trade Center litigation, referring to “the Americans’ so-called product liability law”.
August 23 — You may already not be a winner. A Canadian court has turned away prisoner Allen Crawshaw’s lawsuit asking $10,000 of Corrections Canada for failing to mail his entry last year to the Reader’s Digest sweepstakes, which had a first prize of $1.4 million. Prison officials conceded they should have mailed the entry but denied that the loss of a chance of winning should entitle him to damages: “Did you ever see the odds of those?” said spokesman Dennis Finlay. Crawshaw, a former shop steward for the United Food and Commercial Workers at a British Columbia food plant, was convicted in 1994 of killing his boss after being angered by a one-day suspension over heated comments he’d made criticizing management; Crawshaw was “known [locally] as a peace activist”. (National Post, Aug. 11)
August 23 — Political Site of the Day. We’re pleased to announce that Overlawyered.com is today’s Political Site of the Day, an award service that has been picking 
daily sites for more than four years, practically as long as there’s been an Internet. A stroll through PSoD’s library of past sites is a good way to appreciate the spectacular diversity of the Net: within the space of two weeks we ran into the home sites of the Serbian/Yugoslavian royal family, PostalWatch (a watchdog group on behalf of those regulated by the Postal Service), How To Win a High School Election (”It doesn’t matter whether you’re popular or not…”), and Libertarian Rock, which will send you free stickers to protest curfew laws.
August 23 — “Beating up on ‘deadbeat dads’.” “Those who decry judicial tyranny and family destruction should pay more attention to family courts, for they are the arm of the state that routinely reaches farthest into the private lives of individuals and families,” notes Howard University political scientist Stephen Baskerville in an American Spectator article sharply correcting the usual let’s-lynch-’em view of “deadbeat dads”. The night after Bobby Sherrill came home from spending five months as an Iraqi hostage, the Washington Times reported, the sheriff was there to arrest him for not paying child support during his captivity. A Texas janitor wrongfully convicted of murder and then exonerated after ten years on death row was presented on release with a $50,000 bill for child support he didn’t pay while in prison.
Officials push through ever-more-punitive regulations against delinquent pops, then hop over to for-profit private collection firms, hired by their former agencies, that grow fat on the resulting business. It’s hard to go along with Baskerville in dubbing the deadbeat-dads problem a mere “myth”, but hard not to join him in worrying about “mass incarcerations without trial, charge, or counsel; an apparat that has systematized the invasion of private homes and the confiscation of children to a bureaucratic routine; [and] political leaders [who use] their public office as a platform to vilify private citizens who have been convicted of nothing and who have no opportunity to reply” (full story).
August 21-22 — The Marie Antoinette school of public relations. The June issue of George featured a lavish photo spread (”Puff Daddies”) of six lawyers who “have raked in more than $5 billion for their firms from tobacco litigation“. The backdrops weren’t the usual stuffy law libraries, either. They included the racing boat, conspicuously labeled “Gunsmoke”, of Pascagoula’s Richard Scruggs, brother-in-law of Senate majority leader Trent Lott (more than $1 billion in fees for representing Mississippi and other states); the twenty-horse equestrian estate of Charleston’s Joseph Rice (somewhere between $1 billion and $10 billion); the private putting green on the Pensacola estate of Fred Levin ($325 million); a foundation endowed by politically ambitious Michael Ciresi of Minnesota ($440 million; “some of the fees are excessive”, he cheerfully agrees); and the opulent bathtub where South Florida’s Robert Montgomery ($678 million), posed, fully clothed, under what the Palm Beach Post called “English artist David Jagger’s painting of a naked woman”. (Montgomery describes as “outrageous” Florida’s move to accept an $11.3 billion settlement without forking over a full one-quarter of it to lawyers as agreed). An ostensibly less material note was struck by Seattle’s Steve Berman (roughly $2 billion), who previously made it big filing shareholder class actions, and who says, “I got the notion in the ’60s that you can protest by growing your hair long or you can get trained in the methods of the establishment and use their own tools to beat them. There’s nothing better than beating them at their own game.”
Addressing an Americans for Tax Reform audience earlier this summer, Wall Street Journal editorialist John Fund said he marveled at the willingness of the legal tycoons to rub their critics’ noses in their taxpayer-leveraged success by cooperating in such displays. “Even the robber barons in the Nineteenth Century knew better than to do it that way. Is it that they don’t have anyone giving them p.r. advice? Or do they just think at this point they’re invulnerable?”
August 21-22 — Weekend reading. Pixels to take to the cabin or island:
* Next on the identity-politics agenda: “Partly due to the flurry of judicial and legislative activity pursuant to the Americans With Disabilities Act of 1990, disability studies, once an arcane field of literary theory, has begun to attract attention from both the media and the academy,” reports Norah Vincent in the August 18 Salon. Brown University professor Carol Poore asserts that “disability is actually preferable to ability in that able-bodiedness ‘is the precondition for being a tool of the ruling class.’” Some in the disabilities movement “maintain that, even if they were presented with a cure for their disabilities, they wouldn’t take it” (full story).
* Overlawyered.com’s editor devotes his latest Reason column to the legal background of the Supreme Court’s Davis v. Monroe decision in May, the one that allowed schools and universities to be sued for not remedying “student-on-student” harassment. No federal law in fact creates a right to sue over sexual harassment in education; it’s an “implied private right of action”, which means basically that the courts get to make it up as they go along. (”Title IX’s Invisible Ink“, August/September).
* From the north comes word that the Canadian Broadcasting Standards Council has declined to take action against Global Television for its July 1998 broadcast of a 45-year-old Bugs Bunny cartoon. A feminist complainant had hauled Global before the tribunal over an episode of the “Bugs Bunny and Tweety” show, alleging that the wascally wabbit had uttered remarks demeaning to women (National Post, Fox News/Reuters, Boston Globe (links now dead))
August 20 — The long march through the courtrooms. From Counterpunch.org, the webzine of left-wingers Alexander Cockburn and Jeffrey St. Clair: “Hardly had she [Hillary Rodham] raised her foot to step over the threshold of radicalism than she turned back. She declined to go with the SNCC [Student Non-Violent Coordinating Committee], turned down an offer to work with Saul Alinsky as a community organizer in Chicago. Anderson quotes her political science prof at Wellesley, Alan Schecter, as saying that by the late 1960s his pupil had decided that the best radical strategy was to ‘”use the legal system” as an agent of change.’ She wasn’t alone in that calculation. The long march of the left through the courtrooms was under way: the world would become a better place, courtesy of courtroom briefs, complaints and class action suits.
“And so what we have seen, across the last three decades, is the left vanishing into the quicksands of regulation. All society’s problems could be fixed by a statute, a rule, a waiver, a program. Much of the antiwar left vanished into the consumer movement, the environmental movement and legal fixitry. The mass movement died and litigation — often successful — flourished amid the ruins” (”The First Lady Syndrome”, August 11 — full story)
August 20 — “Three insurers sued for $100 million”. $300 million, actually, since a Prince George’s County, Maryland court is being asked to mulct Allstate, GEICO and State Farm nine digits’ worth apiece for the offense of applying managed-care-style guidelines to limit policyholders’ personal medical claims after auto mishaps. This AP story commits a few of the usual journalistic sins: 1) it signals no awareness that the dollar demands in such cases can be arbitrarily picked for shock/news value, our legal system putting no price tag on exaggeration; 2) it ignores the probable role of the lawyers as parties-in-interest (though it does report that many of the individual policyholders’ claims are for less than $100); 3) it finesses the purely circular process by which anyone deems such filings newsworthy (the seven named customers would normally have had trouble getting even back-page local coverage, but instead scored big national headlines. Why? Because their lawyers asserted a right to speak for a large class of policyholders nationwide. Why would a court accord these particular lawyers that right? Well, they did get all this national publicity…) Best detail: “All of the plaintiffs have maintained their coverage with the companies despite the disputes.” Mad enough to sue, in other words, but not mad enough to switch companies (Yahoo/AP; link now dead).
August 20 — New Overlawyered.com pages: tobacco tycoons, litigation in the workplace. Two more newsworthy topics get their own subpages, bringing the number of topical pages to eight. Seven weeks old, this site has now served more than 15,000 pages, with our traffic rate nearly doubling this month from last. Thanks!
August 19 — Plus extra damages for having argued with us. In yesterday’s Washington Post, David Ignatius calls global warming a potential “plaintiff’s lawyer’s dream”, quoting former deputy energy secretary Lynn Coleman as saying that if doomsayers’ predictions prove accurate, lawyers could file trillions of dollars in claims against utilities, oil companies and others for weather-related effects. Significantly, Ignatius suggests (”the best analogy may be tobacco”) that future juries will be angered by some companies’ current boldness in debating the issue by way of counter-studies and newspaper ads. Apparently one “lesson of tobacco” is that it’s henceforth going to count as an independently punishable offense to defend one’s business in public controversy (link now dead).
August 19 — Click here to sue! Seattle-based Bendich, Stobaugh and Strong, P.C. specializes in employee class actions arguing that temp, freelance and independent-contractor employees were really “misclassified” and deserve retroactive raises and benefits, no matter what the two sides may have thought they were bargaining for at the time. Taking advantage of the Web, the firm makes it really easy to join its suits against Microsoft (see also Jan. 11, 2000 commentary), Arco, King County (Seattle) and Los Angeles County.
August 19 — NAACP’s “ludicrous” anti-gun suit. Ninety percent of murders of blacks are committed by other blacks, David Horowitz observes, but now litigation offers a handy way to blame the toll on distant white-owned gunmakers, advancing “a fantasy in which African-Americans are no longer responsible for anything negative they do, even to themselves”. (Salon, August 16 — full column).
August 19 — Another scare starts to fizzle. “For three years now, organizations ranging from environmental groups to Consumer Reports have been proclaiming the existence of a deadly wave of endocrine disrupters that cause cancer, infertility, and personality abnormalities,” writes Gregg Easterbrook in the August 30 New Republic. Now the National Academy of Sciences has studied the issue of environmental residues of these synthetic hormones and found much less than meets the eye in the scare reports. (full article). Score another one for skeptics Mike Fumento and Ron Bailey, as well as for the New York Times’s much-hatcheted Gina Kolata, whose refusal to hype the endocrine-disrupter scare was a chief count in the campaign against her typified by Mark Dowie’s article in the July 6, 1998 Nation.
August 18 — Undislodgeable educators. Tenure laws make it hard in many states to remove even a badly underperforming teacher from the classroom, but hopes for reform rose when Bob Chase became president of the National Education Association with an agenda that included “peer review” methods like those pioneered by NEA’s Columbus, Ohio affiliate. “The goal of peer review is to help people succeed,” Chase has said. “But it could also speed up the process of dismissing a teacher who is not successful….We know that it sometimes takes five or six years to get rid of a teacher, and that is too long.”
But can peer review work if it’s just an overlay onto, rather than a substitute for, the laggard teacher’s right to challenge a dismissal by every current legal means? That question is posed by the case of Ivy Featherstone, a 25-year-veteran teacher in the Columbus schools whom administrators often observed reading the paper in class with his feet up on the desk while students snoozed. Two years of intensively applied peer review, followed by 16 days of hearings, led to the conclusion that Featherstone should be given a “negative release”, and he was suspended without pay. Duration of the process up to that point: three years, and it turned out things were just getting started. Featherstone was soon off to federal court to charge that the dismissal was racially discriminatory, and it’s taken four more years for a judge to dismiss that case — not on the merits, but on the grounds that Featherstone failed to take the procedural steps needed to preserve his rights to sue. (If he had, presumably, the case might still be in progress). The case gets written up in this week’s communiqué (week of August 16) from Mike Antonucci’s invaluable Education Intelligence Agency; subscriptions are free, and highly recommended to anyone with an interest in how schools work.
August 18 — Ohio case fallout. In a blistering editorial (no longer online), the Columbus Dispatch calls the state high court’s striking down of tort reform (see item for August 17, below) “an act of arrogance and an affront to the doctrine of separation of powers”. Meanwhile, furious business groups vow to make the next set of judicial elections a referendum on the court’s activism. Though with a nominal Republican majority, “the current seven-member tribunal has gained a reputation as a ‘plaintiffs’ court.’ Two Republican justices, Andrew Douglas and Paul E. Pfeifer, have become frequent swing voters with decisions endearing them to labor unions and trial lawyers.” (Joe Hallett, Columbus Dispatch, Aug. 17).
August 18 — “Dieters still want fen-phen”. The hazards of the drug are frightening; so are those of obesity, and Cincinnati Enquirer reporter Susan Vela found many local residents wishing the system still permitted them a choice. “It calmed the monster in my body,” said one woman who was able to get down to 136 on fen-phen but has gone up to 210 without it. “Who do I sue to get it back on the market? I’m suffering without it.” (Aug. 16; full story). An August 14 Washington Post editorial calls the recent Texas $23 million award against the drug’s manufacturer “a terrible signal, almost guaranteed to bring thousands more plaintiffs to court on flimsy evidence”.
August 17 — Ohio high court says forget tort reform; should unionists be cheering? By a one-vote margin, the Ohio Supreme Court basically notifies the state’s lawmakers that it won’t tolerate any attempts by them to say how the state’s liability law should operate. “Ohio legislators might as well shut up shop and go home,” said Linda Woggon of the Ohio Chamber of Commerce. The decision is the 90th in which a state court has invalidated efforts to curb litigation, according to sources at the American Tort Reform Association, which keeps the dismal count. (Columbus Dispatch (link now dead), Cleveland Plain Dealer, Cincinnati Enquirer coverage). Overlawyered.com intended to give the Ohio constitution a look-through to see whether it in fact contained a provision prohibiting legislatures from legislating, but found that as of this morning the state’s engine for searching the Ohio constitution was broken and returning error messages, which seemed kind of appropriate, actually.
The statute had been challenged not only by the Ohio Academy of Trial Lawyers (which argued its members would lose business) but also by the state AFL-CIO, whose president William A. Burga, quoted in the Columbus Dispatch, said “anyone who has been harmed or injured” deserves “their day in court and…a fair decision from a jury”. That’s kind of ironic, since unions themselves long ago procured for themselves a series of tort reforms far more favorable than anything being asked for by the business community, insulating them from the risk of unbounded jury awards at the hands of complainants who’ve been (say) roughed up by union pickets. In California, for example, state law already pointedly says that citizens’ “right to be free from any violence, or intimidation by threat of violence” does not apply in a context of “otherwise lawful labor picketing” (gee, thanks, guys!) and AB 1268 (Kuehl), now moving toward enactment in the labor/trial-lawyer-friendly state legislature, would curtail unions’ civil liability yet further, curbing the application of exemplary (punitive) damages and vicarious liability even if acts of violence are committed by unionists for the organization’s benefit.
So here’s the net effect: it’s just dandy and highly constitutional for legislators to immunize unions from the danger of adverse jury verdicts for acts of deliberate violence, but it suddenly becomes an unconstitutional invasion of jury prerogatives when they try to set any limits at all on the award of “noneconomic” damages, for categories like pain and suffering and emotional distress, in cases where businesses are charged with responsibility for accidental injuries. What do you think Mr. Burga of the Ohio AFL-CIO would say if someone “harmed or injured” crossing a picket line in Akron or Youngstown decided to claim a constitutional right to “their day in court and…a fair decision from a jury”? Would he still insist that legislatures have no constitutional power to limit liability?
August 17 — New Overlawyered.com page: The case for loser-pays. Despite continuing strong Main Street interest in the loser-pays idea, there’s been precious little in the way of Web resources on it, so we’ve made it the subject of the sixth and latest in our series of topical links pages. It’s the most basic, the most indispensable, and the most overdue of all legal reforms; if we can bring it even a little closer to enactment, our time will have been well spent.
August 17 — Correction. In the August 6 item, “Courts actually begin to define harassment“, summarizing a recent Chicago Tribune report on the ripple effects of last year’s Oncale decision, we erroneously reported that the Tribune article did not mention the Oncale Court’s unanimity. In fact, it did mention it. Our apologies.
August 16 — Think I’m too litigious? I’ll sue! (I). In Bakersfield, Calif., the developer of the Fairway Oaks community won’t sell new houses to attorneys because it considers them too likely to get into disputes. Attorney Timothy Liebaert said he was “shocked” and “very mad” to be turned away on the basis of such a generalization, so — how better to disprove it? — he’s suing them. However, occupation is not among the list of categories covered by California housing discrimination laws, and a Kern County judge proceeded to rule that there are legitimate business reasons for a developer to prefer non-lawyer customers. Fairway’s sponsors had previously sold to two attorneys among 500 home buyers and had gotten into a protracted dispute with one, though it had not gone to litigation. Liebaert has filed an appeal and plans to keep the case going on new theories, such as a claim that a developer, if it wants to pursue a policy of not selling to lawyers, is legally obliged to announce that policy in its ads. (Reuters/Fox News; Los Angeles Times, July 25)
In 1986 it was reported that two medical groups practicing obstetrics and gynecology in Brunswick, Ga., had refused to accept as patients attorney Amanda Williams, who had filed what the doctors considered meritless malpractice suits against some of their number, or her law clerk Sheryl Jolly. Williams said she found the policy “offensive” but said “they no doubt take it personally when I file a suit on behalf of a client”.
August 16 — Think I’m too litigious? I’ll sue! (II). Remind us to stay on the good side of attorney Michael Bidart of Claremont, Calif.’s Shernoff, Bidart, Darras & Arkin, who garnered big headlines in January when he convinced a San Bernardino County jury to vote $120.5 million against Aetna U.S. Healthcare for delaying approval of a bone-marrow transplant that he argued might have saved the life of patient David Goodrich. Aetna CEO Richard Huber, angered by the verdict, blamed it in part on the efforts of “a skillful ambulance-chasing lawyer”. And Bidart responded to this dastardly insult by…suing Huber last month for defamation in Los Angeles Superior Court. Legal correspondent Reynolds Holding comments in the San Francisco Chronicle (August 8) that Bidart is “apparently more adept at dishing publicity than taking it”.
August 16 — To restore individual responsibility, bring back contract principles. In this recent Policy Analysis from the Cato Institute, Professor Michael Krauss of George Mason U. School of Law says one major reason liability law has fallen into disrepute is that courts have supplanted contract with tort principles; it doesn’t matter whether you foresaw a risk and agreed to bear it, they’ll let you sue anyway. Formerly, the law sought to secure parties’ rights to shape their own relationships, the role of tort law being to secure persons against unconsensual invasion. Now reliable law has given way to “a general social insurance scheme”, particularly in areas like product liability and medical malpractice, with lamentable consequences: “our rights have been given increasingly less respect by government”. (Full paper)
