Regarding our recent post, David Giacalone takes issue with our “recycling of stale pro se cases.” If I may defend our site:
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Montana
The Surgeon General of the United States last week claimed that “breathing secondhand smoke for even a short time” can “potentially increas[e] the risk of heart attack”. How much evidence is there for that proposition? Michael Siegel inquires (Jun. 28; Jacob Sullum, Reason “Hit and Run”, Jun. 28 and Jun. 29). According to Brooke Oberwetter of the Competitive Enterprise Institute, the same new report from the Surgeon General uncritically passes along the much-ballyhooed “miracle of Helena” study purporting to find a correlation between a ban on smoking in bars and an immediate 40 percent drop in heart attacks in that Montana community — really more like a miracle of small sample sizes (Jun. 27; see Oct. 6, 2003). Finally, a spokeswoman for the bossyboots American Heart Association is quoted praising a new Colorado law that forbids smoking in most restaurants and bars statewide no matter what the owners and patrons happen to prefer:
“We know from research that we’ve done that over 80 percent of Colorado residents don’t smoke,” said Erin Bertoli with the American Heart Association.“The majority of them really look forward to going out to new restaurants and new bars and taking their families and experiencing new venues that have technically been closed to 80 percent of Colorado residents up until this point.”
thus demonstrating a Pickwickian understanding of such words as “technically” and “closed”. (Jeffrey Wolf, “Effort to stop statewide smoking ban underway “, KUSA-TV, Jun. 15). Plus: Radley Balko weighs in.
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Animal rights activists on the march against owners and breeders of dogs and other animals in Bozeman, Montana, and Albuquerque, New Mexico (Stephen Bodio’s Querencia, May 24).
My company is in the business of managing recreation sites, many of which are located in the National Forest. I deal with local Forest Service rangers all the time, and I’ll tell you they have an almost impossible job. They all joined the Forest Service because they wanted to be close to trees, but many of them find that the closest they get to trees every day is via the reams of paper they must generate in environmental impact studies and motions in lawsuits. Everything they try to do in the forest tends to be blocked legally by somebody, the most common opposition coming from environmental groups.
One federal judge may be raising the costs of filing such suits against everything….
While this is not really a true loser-pay system, and appeal bonds are fairly normal, they seldom cover the true costs of the delay and extra litigation. Apparently this bond is getting attention for being 10x larger than is typical. (Brett Wilkison, “Judge orders litigating enviros to pony up”, High Country News, Feb 6).
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On Thursday the Baltimore Sun quoted me saying unflattering things about Stephen L. Snyder, the successful local attorney who’s taken out very costly ads ostensibly aimed at attracting a $1 billion case (see Feb. 16). I said Snyder has probably has made it onto the Top Ten list of tasteless lawyer-advertisers, having particularly in mind the cheesy way his website flips off would-be clients whose cases, however meritorious, lack a big enough payoff (Jennifer McMenamin, “In search of a $1 billion case, fielding 100 calls”, Baltimore Sun, Feb. 16)(reg). A week earlier the same paper quoted me commenting on the likely impact on civil litigation of a federal grand jury’s indictment of the W.R. Grace Co. and seven of its current or former executives; the charges arise from the widely publicized exposure of townspeople and others to asbestos hazards from the company’s vermiculite mine at Libby, Montana. (William Patalon III, “Grace’s plight made worse”, Feb. 9).
And: Rob Asghar of the Ashland (Ore.) Daily Tidings devoted two recent columns to the problem of overlawyering and was kind enough to quote my opinions (“Law and disorder”, part 1 (Feb. 7) and part 2 (Feb. 14)). NYC councilman David Yassky, sponsor of the let’s-sue-over-guns ordinance that I criticized in the New York Times two weeks ago (see Feb. 6), responds today with a letter to the editor defending the legislation (Feb. 20). My Manhattan Institute colleague Jim Copland, writing in the Washington Times on the passage of the Class Action Fairness Act, quotes my Feb. 11 post on the subject (“Tort tax cut”, Feb. 15). Finally, the New York Sun covers a recent Institute luncheon at which I introduced ABC’s John Stossel (Robert E. Sullivan, “John Stossel Chides the ‘Liberal’ Press for Spinelessness”, Feb. 9)(sub-$).
Steve Morton, heir to the salt fortune, asked Steve Seltzer to evaluate the early 20th-century painting “Lassoing a Longhorn”, thought to be a C.M. Russell; Seltzer instead identified it as the work of a less famous artist, his own grandfather, the Russell contemporary O.C. Seltzer. This meant the painting’s value was not about $650-800 thousand, but perhaps a tenth of that. So Morton hired the big law firm Gibson Dunn & Crutcher, and sued Seltzer in federal court for the difference plus punitive damages. Unfortunately, though Morton did have evidence the Russell signature wasn’t altered, he couldn’t find any experts who backed his theory of the painting’s provenance, while Seltzer lined up nine affidavits that supported his conclusion. Morton dropped the lawsuit, and Seltzer then sued Morton, the law firm, and the apparently-now-retired lawyer, Dennis Gladwell. A Montana state court jury found malicious prosecution, and awarded $21 million in damages, based in part on Gibson Dunn’s earnings. The damages award seems improper (it’s punishing the law firm for being large, rather than for wrongdoing); one hopes it is reduced to something in line with the actual damages to Seltzer–legal fees, any economic damages from the brief loss in reputation (though Seltzer doesn’t charge for his authentications), plus perhaps some reasonable non-economic damages for the stress of litigation.
But one would have more sympathy for the defendants if they hadn’t been the first to be using litigation to make unreasonable demands; if all Morton and his attorneys wanted, as they claimed, was to clear the painting’s title, he didn’t need to seek punitive damages against Seltzer. The defendants will appeal. (Kathleen Schultz, “Jury awards artist $21 million”, Great Falls Tribune, Feb. 8; Kathleen A. Schultz, “Seltzer jury may receive case today”, Great Falls Tribune, Feb. 4; Kathleen A. Schultz, “Art collector defends position in malicious prosecution trial”, Great Falls Tribune, Feb. 3; Kathleen A. Schultz, “Seltzer outlines personal suffering in civil suit”, Great Falls Tribune, Feb. 2; David Hewett, “Owners Sue Art Expert, Art Expert Sues Owners”, Maine Antique Digest, Oct. 2003).
Montana:
The parents of two 11-year-old boys who died of exposure and alcohol poisoning last winter after cutting class to go drink have sued Ronan Public Schools for $4 million.They allege the school district failed in its duty “to follow its policy and protect and safeguard children that were entrusted to their care.”
The lawsuit also alleges that [the school district] has discriminated against American Indians by “failing to properly select, train and implement Native American staff who are sensitive to the disability of alcoholism,” thus making Pablo School District partially responsible “for the actions of children who were allowed to leave school and die of alcohol and hypothermia.”
(John Stromnes, “Parents sue Ronan school over deaths of their sons”, The Missoulian, Nov. 6). Update Mar. 2, 2006: jury renders defense verdict.
In 1955, there was a gasoline pipeline leak at the Sunburst Works Refinery that caused minor contamination of a 19-acre underground site. Texaco cleaned the spill at the time, and did further millions of dollars of cleanup starting in 1993. State regulators determined that there was no health effects, and that benzene levels in Sunburst, Montana were no different than in areas unaffected by the spill. The state Department of Environmental Quality ruled that nothing more needed to be done beyond additional monitoring, not least because the groundwater at issue isn’t used for anything–even livestock find it “naturally too briny” to drink.
Not good enough, say some residents and their lawyers, who blame the half-century-old spill for a variety of illnesses from arthritis to mononucleosis. They sued to require additional multi-million dollar cleanup. The plaintiffs originally sought damages for decreased property values, though townpeople who refused to join the lawsuit say that the main cause of the decreased property values is bad publicity from the 2001 lawsuit. (There are only 82 plaintiffs in a town of about 400.) Texaco acknowledges responsibility for the spill, but disputed the need to spend millions more on a clean-up methodology of little efficacy. The judge refused to allow Texaco to introduce evidence that they did exactly what the Montana regulators asked them to do, and a jury awarded a $41 million verdict, including $25 million in punitive damages. Texaco will appeal. The case is important because the verdict could encourage other “double-whammy” lawsuits on companies who have already been spending millions to comply with the extensive state and federal environmental regulations. (Kathleen A. Schultz, “Texaco to appeal Sunburst ruling”, Great Falls Tribune, Aug. 20; “Jury Rules Against ChevronTexaco In Cleanup Suit”, Wall Street Journal, Aug. 20 (sub – $); Reuters, Aug. 20; Kathleen A. Schultz, “Texaco must pay Sunburst $41M”, Aug. 19; Kathleen A. Schultz, “Texaco-Sunburst trial gets under way”, Jul. 26).
Jacob Sullum eviscerates an embarrassingly bad op-ed that the New York Times chose to run yesterday (Rosemary Ellis, “The Secondhand Smoking Gun”, Oct. 15) on the issue of smoking in public places, based on the supposed “Helena miracle” — heart attacks in the Montana capital (population 26,000) are said to have dropped suddenly by 58 percent when smoking in public buildings was banned. The claim, he says, is based on a single unpublished study “involving tiny, highly volatile numbers”. Had the Times been interested in whether the asserted result would hold up as a matter of epidemiology, it could easily have checked out the experience of other jurisdictions which could offer much, much larger sample sizes than wee Helena: “why have we not heard about a dramatic drop in heart attacks [in New York City itself] since the city’s smoking ban took effect in April”? A few phone calls to Columbia-Presbyterian, St. Lukes-Roosevelt and the city’s other big hospitals should suffice to establish whether there had been any massive effect of this sort on New Yorkers’ proneness to cardiac arrest. (Reason Hit & Run, Oct. 16; Jacob Sullum, “Heartstopping Discovery”, Reason, Apr. 4). More: Cato’s Steven Milloy weighs in (“Secondhand smoke scam”, FoxNews.com, Oct. 17).
“Theodore J. Kaczynski, the onetime UC Berkeley math professor better known as the Unabomber, wants the federal government to return all his stuff — including one of his bombs — that the FBI confiscated when he was arrested in his tiny Montana cabin seven years ago.” (Michael Taylor, San Francisco Chronicle, Aug. 11).
January 10-12 – Tobacco fees, cont’d: “Not a pretty picture”. What with our hiatus, we’ve been remiss in updating readers about it, but the neglected story of how lawyers carted off billions from the 1998 tobacco heist has been breaking into the news in increasingly noisy fashion. In November, former Texas Attorney General Dan Morales, who’d previously stonewalled efforts to investigate the private lawyers who worked under contract with his office, surprised observers by approaching his successor’s office with word that he has information about how at least one of those lawyers (unnamed thus far) may have breached his fiduciary duty to the state and may be subject to a potential forfeiture of fees. (Brenda Sapino Jeffreys, “Former Texas AG Offers Info on Tobacco Lawyers’ Conduct”, Texas Lawyer, Nov. 18). The Dallas Morning News calls for the private lawyers to stop dodging the state’s efforts to put them under oath about the fee affair, as they have been doing for years now (“Clearing the air: Abbott should examine new tobacco claims” (editorial), Dallas Morning News, Nov. 15)(reg).
Last month, American Lawyer published what seems to be the first major journalistic account of one of the most secretive aspects of the whole scandal: the unaccountable arbitration panel that has repeatedly awarded unheard-of sums to the trial lawyers. We’ve covered the doings of this panel many times on this site, and our editor discusses its rulings at some length in his new book The Rule of Lawyers, but we’re delighted to see a professional news organization finally devote its resources to scrutinizing the arbitration panel’s role in the fee scandal. Reporter Susan Beck digs up a large trove of material previously unknown to us in what the magazine terms “a behind-the-scenes account of the controversial awards. Warning: It’s not a pretty picture.”
“The proceedings were private, and only the awards were made public. According to transcripts and interviews with more than 20 participants, the hearings were loosely run events. A labor mediator, Wells had never conducted an arbitration. Testimony was not taken under oath. Celebrity witnesses — some paid, others with personal ties to the parties — offered testimonials in person and on professionally produced videotapes. The hearings were punctuated with folksy aphorisms and down-home appeals to [arbitrator John Calhoun] Wells, whose swing vote determined the outcome every time.” The whole article (and its sidebars) deserve close study. (Susan Beck, “Trophy Fees”, The American Lawyer, Dec. 2; “As Murky as a Clay Hole”, Dec. 2; “And the Winners Are…”, Dec. 2). And this month, the same reporter details the internecine strife that has gone far to tear apart the firm that made off with the greatest share of the ill-gotten gains from tobacco, Charleston, S.C.’s Ness Motley Loadholt Richardson & Poole, as the formerly cordial partners spar about … well, it basically seems to come down to money. “So maybe a couple billion dollars can’t buy happiness after all.” (Susan Beck, “Jet Blues”, The American Lawyer, Jan. 9). (DURABLE LINK)
January 10-12 – China: lawyer sues over 4-minute cinema delay. Emulating the American way of doing things, with a vengeance? “A disgruntled cinema-goer who went to watch the hit Chinese film Hero is suing the picture house and a movie production company because the movie started four minutes late. Zhang Yang, a lawyer, took action after being forced to watch four minutes of advertisements, which delayed the start of the film until 9.34pm when his ticket said it was due to commence at 9.30pm, according to the weekly Beijing Today.” However, Zhang does not appear to have adopted American lawyers’ ideas of suitable compensation: he appears to be asking for a mere $17, “a refund of his 40 yuan ($8.50) ticket and 40 yuan ($8.50) in compensation.” (“Chinese man sues after adverts delay movie by four minutes”, Sydney Morning Herald, Jan. 6)(& see Feb. 20). (DURABLE LINK)
January 9 – “Drunk Driving Victim Sues Designated Driver”. New frontiers of liability dept.: in Boulder, Colo., a lawyer for car-crash victim Doris Gray is suing not just the drunken driver whose vehicle hit her car but also “the driver’s friend, who reportedly failed to keep her promise to be a designated driver”. Although none of the participants could think of any earlier cases in which persons have been held liable for shirking a designated-driver role, a former head of the Colorado Trial Lawyers Association claims the new theory is “pretty solid”. (TheDenverChannel.com, Jan. 7). (DURABLE LINK)
January 9 – Playing chicken on malpractice reform. New Jersey’s Democratic pols propose dealing with their state’s medical liability crisis by enacting a cap on insurance rates while doing nothing to reduce the spiraling cost of judgments, settlements and defense costs. Columnist Paul Mulshine of the Newark Star-Ledger isn’t impressed. (“MDs will fly the coop rather than play chicken”, Jan. 7). (DURABLE LINK)
January 9 – “The Lawyers Are Lurking Over S.U.V.’s”. “The beginning of a new year is a good time for predictions, so here’s mine: S.U.V.’s are next on the agenda for the plaintiff’s bar. … [Suits of this kind] have less to do with the law or the facts than with the social climate… Don’t be surprised if some ambitious state attorneys general get into the act, too.” (Daniel Akst, New York Times, Jan. 5)(reg). (DURABLE LINK)
January 7-8 – Disabled-access suit could stop Super Bowl. “Super Bowl XXXVII may have to move from Qualcomm Stadium unless the city expands access for the disabled at the stadium. Attorney Amy Vandeveld filed an application for an injunction Friday in U.S. District Court in an attempt to get the city to comply with the terms of a 2001 a settlement aimed at expanding access for disabled people at the stadium.” (“Super Bowl XXXVII may be blocked in San Diego”, The Sports Network, Jan. 3). In the March 2001 settlement, San Diego officials agreed to spend more than $6.5 million in taxpayer funds to improve access to the stadium; attorney Vandeveld “received $1.3 million in attorney fees and other payments”. Linda Woodbury, the city’s disability services coordinator, estimated that the city’s overall “to-do” list of accessibility projects would cost at least $175 million. (Caitlin Rother, “Disabled activists threaten suit on Padres’ new ballpark”, SignOnSanDiego, Feb. 11, 2002). And ABC correspondent John Stossel recently devoted a segment to lawyers’ use of the ADA to extract settlements from retailers and other defendants (“Equal Access to the ‘Wild Side’”, 20/20, Nov. 9). (DURABLE LINK)
January 7-8 – Trial lawyer’s purchase of Alabama governor’s house said to be “arm’s-length”. “Wray Pearce, the Birmingham accountant who bought Gov. Don Siegelman’s Montgomery home for twice its appraised value, was acting as an intermediary for trial lawyer Lanny Vines, who subsequently bought the house from Pearce, according to court records filed last month in a lawsuit involving the two men. … The governor and his representatives have described the house sale as an arm’s-length transaction, with the governor and his wife placing the property on the market, and a buyer coming along and paying the asking price. … None of the records in the court file specifically state why Vines used his longtime accountant as an apparent straw buyer for the home. Nor do they explain why Vines was willing to pay a sum that a county appraisal and a Register review showed was about twice the home’s value.” Vines is considered one of the most politically influential plaintiff’s lawyers in Alabama. (Eddie Curran, “Papers show trial lawyer paid accountant for Siegelman house”, Mobile Register, Nov. 11). Also catch the editor’s note at the end of the article: “The governor’s office has a stated policy of refusing to comment to Register Reporter Eddie Curran.” (DURABLE LINK)
January 7-8 – “The Politics of Family Destruction”. Scorching indictment of the divorce industry by Howard University professor and fathers’ rights advocate Stephen Baskerville (Crisis, Nov.). And civil liberties advocates are uneasy about a developing trend in which courts in Ohio and Wisconsin have ordered men behind in their child support payments not to father any more children. (Dee McAree, “Deadbeat Dads Told to Stop Having Kids”, National Law Journal, Sept. 26; see Nov. 28, 2001). (DURABLE LINK)
January 3-6 – “Courting stupidity: why smart lawyers pick dumb jurors”. If you’d like an advance peek at our editor’s forthcoming bookThe Rule of Lawyers, this is your chance: the chapter on jury excesses is excerpted in January’s Reason. (DURABLE LINK)
January 3-6 – “Doctors strike over malpractice costs”. “More than two dozen orthopedic, general and heart surgeons in West Virginia’s Northern Panhandle began 30-day leaves of absence Wednesday or planned to begin leaves in the next few days.” Doctors in Pennsylvania are also on the brink of a job action to protest the legal system, despite a letter from a state official menacing them with having their licenses revoked for patient “abandonment”. (MSNBC, Jan. 2; Josh Goldstein, “Pa. warns doctors not to quit”, Philadelphia Inquirer, Dec. 28; Google news; see Jan. 21, 2002) (DURABLE LINK)
January 3-6 – U.K.: “Killer claims over loss of interest”. “A murderer is demanding thousands of dollars in lost interest because his prison savings were not invested wisely.” John Duggan, 53, jailed for life in 1984 after he admitted battering his girlfriend to death, says officials of the British Prison Service wrongfully left his money “in a zero-interest prison account designed for spending in jail on phonecards and toiletries” and says they had a duty to invest his earnings in an interest-bearing account. (Melbourne Herald Sun, Dec. 29). (DURABLE LINK)
January 3-6 – “Jack Ass blasts ‘Jackass’”. “A Montana man who legally changed his name to Jack Ass in 1997 (to raise awareness of the perils of drunk driving) says Jackass, the controversial MTV stunt-fest and subsequent film, has besmirched his sterling reputation, and … has filed a $10 million lawsuit against Viacom.” (Julie Keller, E! Online, Jan. 2; Michael Rosenwald, “The Appellative Court: The Real Jack Ass”, The New Yorker, Jan. 6). (& letter to the editor). (DURABLE LINK)
January 3-6 – Milberg copyrights its complaints. The leading class-action law firm has sent cease-and-desist letters to about ten other law firms, informing them that they are in violation of its rights when they swipe large amounts of language from Milberg Weiss suits — sometimes pretty much the entire complaint — for purposes of filing their own copycat lawsuits against the same defendants. Annoyed by the free riders, star litigator Bill Lerach “started putting copyright notices on some of his complaints, and registering those notices with the U.S. Copyright Office last September.” (Janet L. Conley, “Milberg Weiss Tries to Nail Class Action Imitators”, Fulton County Daily Report, Nov. 20). (DURABLE LINK)
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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. ![](http://wac.0873.edgecastcdn.net/800873/overlawyered/wp-includes/images/smilies/icon_cool.gif" alt=){kind=icon}
(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)
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August 31-September 2 – Study: DPT and MMR vaccines not linked to brain injury. Some children experience fever and febrile (fever-related) seizures after being given the diphtheria- tetanus- pertussis (DTP) vaccine and measles, mumps, and rubella (MMR) vaccine and it has long been feared, to quote the New York Times‘s summary of a massive new study, “that those rare fever-related seizures may be linked to later autism and developmental problems. The fears are unfounded, the [new] study concluded.” The study, which appears in the New England Journal of Medicine, was of medical data for 639,000 children and was conducted with the assistance of the Centers for Disease Control and Prevention. “There are significantly elevated risks of febrile seizures after receipt of DTP vaccine or MMR vaccine, but these risks do not appear to be associated with any long-term, adverse consequences,” concludes the abstract.
All of which comes too late to prevent the legal devastation of much of the childhood vaccine industry at the hands of trial lawyers, an episode that climaxed in 1986 when Congress stepped in and established a no-fault childhood vaccine compensation program (see Nov. 13, 2000). According to the Washington Post, one Milwaukee lawyer alone “has won million-dollar judgments or settlements in nearly a dozen DPT cases.” “The jury hated the drug companies so bad when we got through with them that they would have awarded money no matter what,” boasts the lawyer, Victor Harding. (Arthur Allen, “Exposed: Shots in the Dark”, Washington Post Magazine, Aug. 30, 1998). If the new study is correct, however, the vaccines may not have been responsible for the occurrences of permanent developmental disability that so often led to high awards. Worldwide alarm over the vaccines’ feared side effects, stoked in no small part by the litigation, contributed to a decline in immunization rates that resulted in a resurgence of the diseases in several countries, killing many children. (DURABLE LINK)
SOURCES: William E. Barlow, Robert L. Davis et al, “The Risk of Seizures after Receipt of Whole-Cell Pertussis or Measles, Mumps, and Rubella Vaccine”, New England Journal of Medicine, Aug. 30 (abstract); Philip J. Hilts, “Study Clears Two Vaccines of Any Long-Lasting Harm”, New York Times, Aug. 30 (reg); and dueling headlines: Daniel Q. Haney, “Two Vaccines Linked to Seizures”, AP/Yahoo, Aug. 29, and Gene Emery, “Researchers: Vaccines Carry Little Risk of Seizures”, Reuters/Yahoo, Aug. 29. Adds AP: “In April, an Institute of Medicine committee issued a report saying there is no evidence that MMR causes autism, as some have speculated.” (more)
August 31-September 2 – Radio daze. The nation’s largest radio chain, Clear Channel, is known for hardball lawyering — as when it sued Z104, a rival station in Washington, D.C., for having the temerity to hold a listener contest in which the prize was tickets to an outdoor concert in Los Angeles staged by a Clear Channel subsidiary. Violated their client’s “service mark”, the lawyers said (Frank Ahrens, “Making Radio Waves”, Washington Post, Aug. 22).
August 31-September 2 – “Man Pleads Guilty to Use of Three Stooges’ Firm in Fraud Scheme”. In Lubbock, Texas, Patrick Michael Penker has admitted bilking banks and other institutions out of $1 million in a scheme in which he “used the name of the slapstick comedy trio’s fictional law firm Dewey, Cheatham and Howe to obtain cashier’s checks” (more on that illustrious firm: Google search). “It did seem just a bit unusual for a company name,” said a bank officer who alerted the FBI (AP/FoxNews, Aug. 27).
August 29-30 – Washington Post on class action reform. “No portion of the American civil justice system is more of a mess than the world of class actions. None is in more desperate need of policymakers’ attention.” Excellent Post editorial which should help fuel reform efforts (“Actions Without Class” (editorial), Washington Post, Aug. 27).
August 29-30 – Firefighter’s demand: back pay for time facing criminal rap. David Griffith, a Hispanic firefighter in Des Moines, Iowa, “has sued city officials, alleging racial bias in their refusal to give him back pay for a leave of absence after he was arrested.” Griffith went on a six-month unpaid leave after he “was arrested in December 1999 on three counts of third-degree sexual abuse involving a then-22-year-old woman. The charges were dropped in May 2000 after Griffith pleaded guilty of assault with intent to inflict injury and harassment. … In his lawsuit, Griffith said he ‘was treated less favorably than non-Hispanic employees and believed such treatment was based on race’. … City attorney Carol Moser said Des Moines officials never forced Griffith to take a leave of absence but simply granted his request.” (Jeff Eckhoff, “D.M. firefighter sues for back pay after arrest, alleges discrimination”, Des Moines Register, Aug. 24).
August 29-30 – “Trolling for Dollars”. Lawyers are turning aggressive patent enforcement into a billion-dollar business, and companies on the receiving end aren’t happy about it (Brenda Sandburg, “Trolling for Dollars”, The Recorder, July 31).
August 29-30 – Negligent to lack employee spouse-abuse policy? The husband of a Wal-Mart employee in Pottstown, Pa., came to the store and shot her, then killed himself. Now her lawyer is suing the retailer, arguing (among other theories) that it should have had a policy to protect its employees from spousal abuse. (Shannon P. Duffy, “Employee Sues Wal-Mart Because Store Didn’t Protect Her From Husband’s Attack”, The Legal Intelligencer, Aug. 24).
August 29-30 – Updates. Further developments in perhaps-familiar cases:
* Extremist animal-rights group PETA, which not long ago cybersquatted on the domain ringlingbrothers.com where it posted anti-circus material, has prevailed in its legal battle (see July 3, 2000) to wrest the domain peta.org away from a critic which had used it for his contrarian “People Eating Tasty Animals” site (more/yet more). (Declan McCullagh, “Ethical Treatment of PETA Domain”, Wired News, Aug. 25).
* The Big Five Texas tobacco lawyers have enjoyed an almost perfect record of success so far in dodging investigation of their $3.3 billion-fee deal to represent the Lone Star State in the national tobacco litigation, but Texas Attorney General John Cornyn should not be counted out yet (see Sept. 1, 2000, May 22, 2000, June 21, 2001): last month he scored an advance for his long-stymied ethics probe when the Fifth Circuit ruled he should be given a chance to pursue state court proceedings aimed at putting the Five under oath about the lucrative arrangements (Brenda Sapino Jeffreys, “Texas Attorney General May Depose Tobacco Lawyers in State Court”, Texas Lawyer, July 30).
* Conceding that one of its execs did indeed use a disrespectful nickname for its Denver stadium (“the Diaphragm”, referring to its shape), the Invesco financial group agreed to drop its threatened defamation lawsuit (see July 5) against the Denver Post for reporting the remark (“Invesco won’t sue Post”, Denver Post, July 6).
August 27-28 – Clinical trials besieged. Since the Jesse Gelsinger case, where survivors of an 18-year-old who died in a gene-therapy experiment brought a successful lawsuit against the University of Pennsylvania, lawsuits have been burgeoning against universities, private health-research foundations and other sponsors of clinical trials and experimental medical treatments; one recent high-profile case targets the Fred Hutchinson Cancer Research Center in Seattle. The “suits have sent shudders through the biomedical community. … Some experts in the biomedical field believe the litigation will have a chilling effect on research that benefits humankind through scientific advancement. They also worry that volunteers will dry up.” A lawyer who specializes in the new suits makes a practice of suing not only researchers and deep-pocket institutions but also “bioethicists as well as members of institutional review boards, the volunteers charged with reviewing and approving clinical trials.” (on bioethicists, see also Oct. 6, 2000) (Vida Fousbister, “Lawsuits over clinical trials have doctors wary, but not quitting research yet”, American Medical News, April 16; Maureen Milford, “Lawsuits Attack Medical Trials”, National Law Journal, Aug. 21; Kate Fodor, “Insurance Companies Get Stricter on Clinical Trials “, Reuters/CancerPage.com, June 27; Christy Oglesby, “Volunteers sustain clinical trials”, WebMD/CNN, July 23).
August 27-28 – Recommended new weblog. Launched a few weeks ago, Instapundit by U. of Tennessee law prof Glenn Reynolds has already made it onto our must-read list with frequently updated commentary on such topics as gun laws, patients’ bill of rights legislation, abusive prosecution, the tobacco settlement, and stem-cell research. Also new among our “dailies” links (left column of front page) are Joshua Micah Marshall’s and Marshall Wittmann’s weblogs, both oriented toward political matters.
August 27-28 – “Jailed under a bad law”. “The arrest by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date — one that shows the need to revisit the rules Congress created to prevent the theft of intellectual property using electronic media,” contends the Washington Post in an editorial. Sklyarov wrote a program, legal in Russia, that enables users to defeat the copy-protection on Adobe’s eBook Reader system; the DMCA bans such programs even though they have uses unrelated to unlawful copying, and it does not require the government to prove in prosecution that facilitating piracy was part of a defendant’s intent. (Washington Post, Aug. 21; Julie Hilden, “The First Amendment Issues Raised by the Troubling Prosecution of e-Book Hacker Dmitry Sklyarov”, FindLaw, Aug. 10; Declan McCullagh, “Hacker Arrest Stirs Protest”, Wired News, July 19; Glenn Reynolds (see also other items in his weblog). More ammunition for anti-DMCA sentiment: Amita Guha, “Fingered by the movie cops”, Salon, Aug. 23.
August 27-28 – Urban legend alert: six “irresponsibility” lawsuits. Much in our inbox recently: a fast-circulating email that lists six awful-sounding damage awards (to a hubcap thief injured when the car drives off, a burglar trapped in a house who had to eat dog food, etc.). Circumstantial details such as dates, names, and places make the cases sound more real, but all signs indicate that the list is fictitious from beginning to end, reports the urban-legends site Snopes.com (Barbara Mikkelson, “Inboxer rebellion: tortuous torts“). Snopes also has posted detailed discussions of two of the other urban legends we get sent often, the “contraceptive jelly” yarn, which originated with a tabloid (“A woman sued a pharmacy from which she bought contraceptive jelly because she became pregnant even after eating the jelly (with toast).” — “Jelly babied“) and the cigar-arson fable (“A cigar aficionado insures his stogies against fire, then tries to collect from his insurance company after he smokes them.” — “Cigarson“). What we wonder is, why would people want to compile lists of made-up legal bizarreries when they can find a vast stockpile of all-too-real ones just by visiting this website? (DURABLE LINK)
NAMES IN STORIES: The never-happened stories include tales about “Kathleen Robertson of Austin Texas” (trips on her toddler in furniture store); “Carl Truman of Los Angeles” (hubcap theft) “Terrence Dickson of Bristol Pennsylvania” (trapped in house), “Jerry Williams of Little Rock Arkansas” (bit by dog after shooting it with pellet gun), “Amber Carson of Lancaster, Pennsylvania” (slips on drink she threw), and “Kara Walton of Claymont, Delaware” (breaks teeth while sneaking through window into club). All these incidents, to repeat, appear to be completely fictitious and unrelated to any actual persons with these names.
August 27-28 – “Incense link to cancer”. Just when you thought it was safe to go back to the Sixties (BBC, Aug. 2). But not to worry, since it seems everything else in the world has also been linked to the dread disease: Brad Evenson, “Everything causes cancer — so relax”, National Post (Canada), Aug. 4.
August 24-26 – “Delta passenger wins $1.25 mln for landing trauma”. Outwardly uninjured after a terrifying emergency landing en route to Cincinnati in 1996, Kathy Weaver has nonetheless won $1.25 million from Delta Air Lines after her lawyer persuaded a Montana jury that the episode had caused her to suffer post-traumatic stress syndrome and an aggravation of her pre-existing depression. The judge ruled that “her terror during the landing led to physical changes within the brain that could be defined as injury”. (Reuters/Yahoo, Aug. 23; PPrune thread) (more on white-knuckle lotto: Oct. 19, 2000, Oct. 8, 1999).
August 24-26 – “Cessna pilots association does some research…” “Last week’s decision by a Florida jury to ding Cessna to the tune of $480 million for allegedly faulty chair railings in a Cessna 185 has raised more than a few eyebrows,” reports AvWeb. “Cessna’s lawyers blamed the crash on pilot error — as did the NTSB final report — but the plaintiffs’ attorneys argued that the seat-latching mechanism was defective, and the seat slipped back suddenly as the pilot was trying to land. A plaintiff’s attorney was quoted in the Wall Street Journal last week as saying that Cessna ‘knew the seats could slip, but they never told the pilots that.’” On the contrary, says the Cessna pilots association: the company issued a service advisory in 1983, a Pilot Safety and Warning Supplement in 1985, and in 1989 offered all owners a free secondary seat-stop kit “that would provide positive retention of the seat in the event that the primary system failed. Owners had to pay for about three hours’ labor at a Cessna Service Center to install the free kit.” In 1987, the FAA issued its own Airworthiness Directive “with detailed instructions for inspecting the seat-latching system for wear, pin engagement and cracks”. (AvWeb, undated). More of what general aviation folks have to say about that jury award (much of it highly uncomplimentary): AvWeb reader mail; Pprune threads #1, #2.
August 24-26 – Can I supersize that class action for you? The FBI has charged eight persons in the conspiracy, allegedly dating back to 1995, to steal the winning pieces in McDonald’s promotional Monopoly game. Although the fast-food chain was among the victims of the scheme and has already promised a make-it-up sweepstakes promo, can we doubt that the class action lawyers will soon descend? “And never mind those gloomy folk who say the lawyers will win millions while the rest of us each gets a coupon for a packet of fries.” (“They Knew It” (editorial), Washington Post, Aug. 23); Yahoo Full Coverage).
August 24-26 – The document-shredding facility at Pooh Corner. “A family-owned company that receives royalties from the sale of Pooh merchandise says that Walt Disney Co. has cheated it out of $US 35 million … by failing to report at least $US 3 billion in Pooh-related revenue since 1983. … the case has been entangled in Los Angeles Superior Court for a decade …. Last year a Superior Court judge sanctioned Disney for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems’”. (“Claimants call Pooh a bear of very little gain”, L.A. Times/Sydney Morning Herald, Aug. 17). Update Mar. 30, 2004: court dismisses suit after finding misconduct on plaintiffs’ side. (DURABLE LINK)
August 24-26 – More traffic records at Overlawyered.com. What summer slowdown? Last week set a new record for pages served, and so did last month … thanks for your support!
August 22-23 – Meet the “wrongful-birth” bar. “BIRTH DEFECTS — When did your doctor know? … You may be entitled to monetary damages,” according to an advertisement by the law firm of Blume Goldfaden Berkowitz Donnelly Fried & Fortea of Chatham, N.J. The theory behind “wrongful-life” and “wrongful-birth” suits? “If the health team had done its job, the [parents] would have known of the defect — and could have chosen not to have the baby. … Lawyers file the cases if — and only if — the parents are prepared to testify that they would have aborted the pregnancy.” Many disabled persons, joined by others, are not exactly happy about the premise that it might be better for some of the physically imperfect among us never to have been born. Attorneys believe such cases “will become more common as prenatal sonograms, blood tests, and genetic counseling become routine, and the public learns of the potential for large financial awards when genetically defective babies are born.” “Any child born with a birth defect has a potential wrongful birth or wrongful life claim,” says one optimistic lawyer. (Lindy Washburn, “Families of disabled kids seek peace of mind in court”, Bergen Record, Aug. 19; “N.J. has taken lead in allowing parents, children to sue”, Aug. 19). Note the bizarre headline on the first of the two stories: just how likely is it that “peace of mind” will be found by having the parents swear out a permanent public record to the effect that they wish their child had never been born? (more on wrongful birth/life: Nov. 22-23, Sept. 8-10; June 8, May 9, Jan. 8-9, 2000). (DURABLE LINK)
August 22-23 – Pricing out the human species. According to Idaho governor Dirk Kempthorne, the federal government’s proposal to reintroduce grizzly bears into Idaho “assumed injury or death to people and even calculated the value of human life. A human killed by a grizzly bear in Idaho would cost the federal Treasury between $4 million and $10 million, and the plan even amortized the annual costs at $80,000-$200,000. As far as we know, this is the first time that death or injury to humans has been factored into a program proposed by the federal government under the [Endangered Species Act].” (“Risk to humans too great”, USA Today, Aug. 17). And did reluctance to draw water from a river containing threatened fish contribute to the deaths of four firefighters during a big wildfire in Okanogan County, Wash. last month? (Chris Solomon, “Why Thirty Mile Fire raged without water”, Seattle Times, Aug. 1; “Endangered Fish Policy May Have Cost Firefighters’ Lives”, FoxNews.com, Aug. 2).
MORE: “NWFP [Northwest Forest Plan] standards and guidelines and other agency policies such as PACFISH set streamside buffers with virtually zero risk to fish species, regardless of the effects of large buffers to other management objectives. Managing risks requires value-based decisions. We understand that the zero-risk [to fish -- ed.] approach is largely a result of lawsuits….” (James E. Brown of the Oregon Department of Forestry at a House Agriculture Committee oversight hearing, June 21, 1999 — scroll to near end of document). (DURABLE LINK)
August 22-23 – Slavery reparations suits: on your mark, get set… “By year-end, an all-star team of lawyers calling themselves the ‘Reparations Coordinating Committee’ plans to file a suit seeking reparations for slavery. … Multiple cases in multiple forums are likely. The defendants will come from both the public and private sectors”; among businesses likely to be named as defendants is J.P. Morgan Chase. (Paul Braverman, “Slavery Strategy: Inside The Reparations Suit”, American Lawyer, July 6). Harvard Law prof Charles Ogletree said “‘an amazing series of possible actions’ is slated for early next year.” (Emily Newburger, “Breaking the Chain”, Harvard Law Bulletin, Summer). Some of the reasons it’ll be a terrible idea: John McWhorter, “Against reparations”, The New Republic, July 23 (more on reparations: July 6-8, April 17, Dec. 22-25, 2000 and links from there). (DURABLE LINK)
August 22-23 – “New York State’s Gun Suit Must Be Dismissed”. No, bad lawsuits don’t always prosper: “The New York state attorney general’s novel lawsuit to find the gun industry liable under a nuisance theory must be dismissed,” Justice Louis B. York has ruled in Manhattan. New York was the only state to have joined 32 municipalities in suits against the gun industry that aim to extract money from gunmakers as well as arm-twist them into adopting various gun controls that legislatures have declined to enact. New York AG Eliot Spitzer is said to be “dismayed” by the decision. Good! (Daniel Wise, New York Law Journal, Aug. 15).
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November 30 – The right to be poisoned. Large numbers of urban apartments continue to have old lead-based interior paint on their walls, and you might think it makes obvious sense from a public health standpoint to take precautions to keep children who already show dangerous levels of lead in their blood from moving into such units. At least, you might think so if you weren’t among the “public interest” lawyers who’ve now successfully sued Northern Brokerage, a Baltimore landlord, over its policy of not letting lead-affected kids move into apartments where they might be exposed to more of the same. It’s a discrimination issue, you see: Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, said it’s “hugely discriminatory” to turn families away from such housing just because their kids already display high lead levels. In a settlement earlier this month, “Northern Brokerage agreed to no longer require testing for children under 6 and to pay a total of $13,000 in damages to the plaintiffs and their attorneys.” Of course, if the kids’ blood-lead levels keep rising after they move in, other lawyers might very well step forward to sue the same landlords for every last dime they possess. But that’s only fair, too, right? (John Biemer, “Landlord settles lawsuit for refusing to rent to lead-poisoned families”, AP/FindLaw, Nov. 16).
November 30 – Welcome Mother Jones readers. MoJoWire’s “Alternative Election News Coverage” summarized one of our commentaries about a Gore lawyer’s dimple flip-flop (see Nov. 24). “Not everyone is happy that it appears the next president will be chosen by what some have called a tournament of lawyers. America’s litigation explosion was itself a subtext of the campaign, critics point out. Mr. Bush has called for tort reform to limit the ability of class-action lawyers to win big judgments. Mr. Gore has adopted the traditional Democratic Party position of trial-lawyer defense.” (Peter Grier, Justin Brown and Francine Kiefer, “All Florida becomes a stage for lawyers”, Christian Science Monitor, Nov. 30 — quotes our editor). And we evidently spoke too soon when we praised a New York Times editorial on the Florida mess immediately after the election (see Nov. 10), since within days the paper had reversed its editorial line almost completely on the relevant issues (Elizabeth Arens, “Times falls back into line”, National Review Online, Nov. 28).
November 30 – Updates. Further developments in stories previously covered in this space:
* “Samuel Feldman, convicted in September for a two-year spree of bread and cookie destruction in a Yardley supermarket (see Oct. 6), was sentenced [Nov. 20] to 180 days’ probation and ordered to make $1,000 in restitution payment.” He also got a severe scolding from the judge (Oshrat Carmiel, “Bucks bread squeezer sentenced to probation”, Philadelphia Inquirer, Nov. 21).
* Falling upward in Washington state: “An assistant attorney general who lost one of the state’s largest civil cases and later shared blame for missing the deadline to appeal the case has been promoted to a new job in state government.” As we reported Sept. 13, state attorney general Christine Gregoire missed a deadline to appeal a $17.8 million verdict against the state, a goof that aroused widespread consternation in Evergreen State legal circles. Now assistant attorney general Loretta Lamb, whom an investigation saddled with some of the responsibility for the mix-up, has been appointed assistant vice president of Washington State University for personnel and business administration. (Eric Nalder, “Attorney in missed deadline case gets new job”, Seattle Times, Sept. 29).
* Although a Bridgeport jury last year gave Microsoft an almost complete victory in an antitrust suit filed by competitor Bristol Technologies (see Aug. 31, 1999), awarding only a token dollar, federal judge Janet Hall upped the award under a Connecticut trade statute to $1 million and Bristol is now asking for a new trial (Thomas Scheffey, “Connecticut Judge Socks Microsoft with $1 Million in Punitives”, Connecticut Law Tribune, Sept. 11; “What was the Microsoft Jury Thinking?”, Nov. 27).
November 29 – After an air crash, many Latin “survivors”. “Three of the 88 passengers and crew who died when Alaska Airlines Flight 261 crashed into the Pacific Ocean on Jan. 31 allegedly had something in common apart from their tragic deaths: They cheated on their partners, led secret lives and fathered secret illegitimate children, all of whom were growing up in Guatemala.” Or at least that’s the story being told by Coral Gables, Fla. lawyer Robert Parks, who’s filed wrongful-death suits against the airline, Boeing and other defendants on behalf of the alleged secret survivors. “The crash victims’ undisputed relatives and close friends say the stories have been fabricated in an effort to capitalize on the tragedy.” In one case, a 53-year-old San Francisco man who perished on the doomed flight is alleged to have recently fathered two Latin American children who deserved to collect for his decease, a story that ran into trouble when his outraged gay partner of twenty years, Dale Rettinger, 63, stepped forward to challenge it.
David Lietz, a Washington, D.C. lawyer hired by Rettinger to investigate the case, said: “We do this kind of work all the time and in the course of doing it, we’ve seen people who make their living lining up victims. It’s not uncommon to find people in Mexico or Central America who try to craft these stories and shop them around to lawyers,’ Lietz said. ‘It’s the aviation equivalent of ‘bus jumping,’ which is a bunch of people seeing a bus accident and running up to it so they can claim whiplash or something.” Many such claims come from Latin America, where “records are very bad and (false claimants) will swear under oath but say anything they want,” he added.
Families of two other victims also named as supposed secret fathers of Latin American children also reacted with indignation or incredulity. However, Parks, the Florida lawyer pressing the cases, says criticism is misplaced. “We wouldn’t have filed the lawsuits if we didn’t feel these people had claims. I don’t deal in coincidences … I’ve been involved in aviation litigation over 30 years, a lot in Central America and South America,” he said. “Sometimes in these areas, truth is stranger than fiction. … The process is going to sort this out. No one is trying to get something that isn’t there”. Parks is also preparing a claim on behalf of alleged secret offspring of yet a fourth Alaska Air crash victim, this time from a still unnamed Latin American country. (Scott Winokur, “Capitalizing On a Crash? Suits allege secret lives for some on fated Alaska Airlines flight”, San Francisco Chronicle, Nov. 26) (via Aero News Network)(and see April 10, 2001, Aug. 3, 2001) (DURABLE LINK)
November 29 – “Clinton readies avalanche of regulations” “The Clinton administration is striving mightily to pour forth regulations on the environment, labor, health care and other controversial topics before Jan. 20 brings a new occupant to the White House.” So-called midnight regulations are especially common in cases where a new party is coming in: “The Jimmy Carter administration became renowned for stuffing the Federal Register with 23,000 pages of regulations during the three months before Ronald Reagan took office in 1981.” The Mercatus Center at George Mason University has launched a website, RegRadar.com, to monitor the last-minute onslaught (Robert A. Rosenblatt and Elizabeth Shogren, L.A. Times/Chicago Tribune, Nov. 26).
November 29 – “Hush — good news on silicone”. More details on the release of that new study (see Oct. 23) exonerating breast implants of a once-feared link to cancer, which the National Cancer Institute commissioned at great expense but whose results it quietly buried: “NCI press representative Brian Vastag says he was ‘forbidden’ by his superiors from touting the impending release of this study the way he normally does with other public health research. … So Mr. Vastag, who had already announced he was leaving NCI, defied his bosses and e-mailed names in his media Rolodex. ‘It drives me crazy when tax-funded public health research doesn’t make it to the public,’ he said.” (John Meroney, Washington Times, Nov. 22).
November 28 – Highway responsibility. A Fort Lauderdale jury has awarded $7 million to Diana Mancuso, 43, who was badly hurt when her car was hit broadside by a drunk driver six years ago. The drunk driver, Shane Peter Leanna, who was 23 at the time, served nearly two years in prison. However, the ones being ordered to pay the bill are McFadden Leasing Inc., which owned the sport utility vehicle Leanna was driving, and Next Generation Inc., which leased it to him. (“Woman gets $7 million in DUI case”, AP/New York Times, Nov. 23). And last month the mother of late National Football League star Derrick Thomas went to court to blame various organizations for his death following a crash in which he had been speeding on an icy road without wearing a seat belt. The lawsuit names General Motors Corp. as a defendant as well as local ambulance service Emergency Providers Inc. and Liberty Hospital, both of which tried to save Thomas after the accident and may now have reason to be sorry they got near him. (Cindy Lin, “Derrick Thomas (1967-2000)”, ChannelOne.com, Feb. 9; Kenny Morse, editorial, MrTraffic.com, Feb. 10; “Derrick Thomas’ mother sues GM”, Jefferson City News-Tribune, Oct. 11). Update Aug. 18, 2004: jury rejects suit against GM. (DURABLE LINK)
November 28 – “NCAA Can Be Sued Under ADA, Federal District Judge Rules”. “In a major defeat for the National Collegiate Athletic Association, a federal judge has ruled that it qualifies as a “place of public accommodation” under the Americans with Disabilities Act and can therefore be sued by a learning-disabled student who says its discriminatory rules barred him from getting an athletic scholarship.” (Shannon P. Duffy, Legal Intelligencer (Philadelphia), Nov. 14).
November 28 – Federal power over mud puddles? The Supreme Court is expected to resolve this term whether the federal Clean Water Act applies to “isolated wetlands that have no connection to major rivers or drainage systems flowing from state to state.” Environmental groups favor wide federal authority over “prairie potholes” and the like, which they say are important to migratory waterfowl. A brief supporting property owners, however, counters: “Under the Corps’ [of Engineers] interpretation of the [Act], its regulatory authority stretches to virtually every body of water in the country — including seasonally wet areas in homeowners’ backyards — because virtually any water body is or could be used as a feeding or resting place by some of the 5 billion birds that migrate over the continental United States each year.” The brief also warns: “The Corps’ rationale would justify federal regulation not just of all waters but of virtually all human activity.” (Warren Richey, “Wetlands and federal power”, Christian Science Monitor, Oct. 31).
November 27 – Follow instructions, please. Well before Election Day, the Gore campaign was ready for a massive recount campaign based on a 1994 manual called The Recount Primer, whose tactical advice presciently foreshadows many recent developments (Ryan Lizza, “Overtime: How the Gore campaign came back from the dead”, The New Republic Online, Nov. 16).
“Note: If you make a mistake, return your ballot card and obtain another. AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. –Voting instructions, Palm Beach County, Florida”
“The capitalized words appeared on the voting guide clearly posted in every Florida polling station that used Votomatic machines and in leaflets mailed to many voters in Palm Beach. They are the only instructions on the flyer in bold capitals. … The [Gore] position, so far as I can glean, is that … [a] vote should be counted … even if the voter blithely ignores clear voting instructions” … A Gore victory through judicially imposed, loosely interpreted hand counts in South Florida will resonate across the country as the triumph of a liberalism that has replaced responsibility with victimhood, law with legalism, character with partisanship. Rather than challenging voters to a new civic responsibility, the Democrats are defining down democracy to include those who cannot even be held responsible for following a simple ballot instruction.” (Andrew Sullivan, “TRB from Washington: Bad Intent”, The New Republic Online, Nov. 22; see also commentaries on andrewsullivan.com, and Charles Krauthammer, “There is a good reason that casting a ballot is a precise act”, Dallas Morning News, Nov. 24). “[I]t is the voter’s duty to take reasonable care to record a vote. To correct that judgment after the fact is unfair.” (“Dimples aren’t votes” (editorial), Miami Herald, Nov. 24).
November 27 – Asbestos litigation destroying more companies. The lawsuits’ relentless logic is devouring more leading industrial companies. Armstrong World Industries, the nation’s pre-eminent manufacturer of flooring, failed to repay $50 million in commercial paper that came due Wednesday (Reuters/Yahoo, Nov. 22), and a Nov. 16 Bloomberg story said its parent, Armstrong Holdings Inc., may seek Chapter 11 bankruptcy protection. The company’s stock, which stood at $36 in January, on Friday closed at 1 3/16 (stock chart). In early October (see Oct. 6-9) Owens-Corning, the number one maker of insulation, filed for bankruptcy protection (asbestos product makers list, law firm of Patten, Wornom, Hatten & Diamonstein).
Many of these concerns’ involvement with asbestos was both remote in time and tangential to their main operations. Of Crown Cork & Seal, the large packaging concern that closed Friday at 4 5/8, down from 24 in January and 50 in 1997, Yahoo/Reuters reported as follows: “Its only ties to asbestos-related products stem from an acquisition more than 40 years ago of a company that had a subsidiary that made insulation products, said Andrew O’Conor, an analyst with Merrill Lynch. It sold the insulation business three months after acquiring it, he said. ‘They’re more of a peripheral player,’ O’Conor said. ‘It was a tiny thing.’” (stock chart; “Crown Cork jumps on reevaluation of asbestos claims”, Yahoo/Reuters, Nov. 20). For trial lawyers’ ingenuity in identifying new defendants to name in suits, see June 1 and “Thanks for the Memories“.
Each removal of another solvent defendant shifts more litigation pressure onto remaining defendants. Owens-Illinois, the prominent glass and packaging concern, closed Friday at 3 13/16, down from 25 in January and 48 in 1998 (stock chart). Federal-Mogul (brakes, auto parts) closed at 2, down from 24 in January and 70 in 1998 (stock chart). W.R. Grace, the giant chemicals manufacturer much in the news lately because of the contamination of its Montana vermiculite mining operations with naturally occurring asbestos, closed Friday at 2 1/2, down from 15 in January and more than 20 earlier. (stock chart). Investment analyst Jim Cramer wrote last month that Armstrong, Federal-Mogul, and Grace, all longtime mainstays of industrial portfolios, now find themselves “on a death march to zero … I am combing through this embattled trio looking for signs that they won’t meet Owens’ fate. I haven’t found any yet.” (James J. Cramer, “The Death of the Value Stalwarts”, TheStreet.com, Oct. 25). Of the billions sunk in the litigation, a very high percentage goes toward the process itself, or other purposes other than actual compensation of workers for injuries. Meanwhile, intensive advertising and recruitment campaigns by law firms continue to attract thousands of new asymptomatic claimants into the system, while asbestos plaintiff’s lawyers are numbered prominently among instigators of the “tobacco round” as well as among the most prominent financial supporters of the Democratic Party and the Al Gore campaign. (DURABLE LINK)
November 26 – Sunday election special: votes only lawyers can see. “He squinted and stared, but Bob Kerrey was blind to the party line.” The Nebraska senator was making the South Florida rounds to talk up the Democratic line on the virtues of hand recounts and patience, but when he squinted at a ballot allegedly sporting an actual “dimpled chad” of the sort his fellow Democrats want to count, Kerrey admitted he couldn’t see it. “‘I better get out of here before I get you guys in trouble,’ Kerrey reportedly joked to his party’s team. But senator, isn’t it a little scary to decide an election with votes that only lawyers can see?” (Brad Hahn, “Nebraska senator sees sights — but can’t see chads”, South Florida Sun-Sentinel, Nov. 25; Drudge Report transcript of Broward dimple-asserting). “On my local television station, the latest update was followed by the reassuringly familiar commercial for personal-injury lawyers Welch, Graham and Manby — ‘where winning is no accident’. That’s the spirit!” (Mark Steyn, “Even Al’s friends are sick of his dimples”, Sunday Telegraph (UK), Nov. 26).
On Saturday, the Broward County Election Canvassing Board conveniently decided to go looking for dimpled chads on 500 previously disqualified absentee ballots, even though on an absentee ballot the “voter can clearly see how he voted and whether the chad fell out, unlike the Votamatic machines used at polling places in Broward.” Did demonstrators, as Democrats claim, “intimidate[ ] the Miami-Dade canvassing board into canceling its planned recount [?]. Nonsense, say board members. ‘I was not intimidated,’ David Leahy told CNN. ‘My vote had nothing to do with the protests. It simply had to do with not enough time.’” (John Fund, “Gore’s Electoral ‘Lock Box’”, Opinion Journal (WSJ), Nov. 25).
“Vice President Gore’s effort to convince Florida election officials to count indented or ‘dimpled’ ballots as votes for him runs contrary to the practice in almost all jurisdictions that use the punch card system, with the notable exception of Texas, the home state of George W. Bush, his rival for the presidency. In the 38-year history of punch card voting, only a small number of communities have counted these ballots as valid, voting experts said. R. Doug Lewis, executive director of the Election Center, a nonpartisan group that trains and certifies election supervisors, said that to his knowledge, with the exception of Texas, ‘no election official has counted a dimpled chad as a vote. Instead they tend to turn the question over to a judge, and historically courts around the country have said dimpled chads aren’t clear enough for them,’ Lewis said, stressing that he is not referring to Florida.” (John Mintz, “Most states don’t count dimples”, Washington Post, Nov. 24). Despite the Florida Supreme Court’s wholesale rewrite of the state’s election law after the fact, “it is still possible that the will of the people will prevail. … Broward County has for 10 years refused to count ‘dimpled chad’ as a vote. Now, it has changed that rule. … It may become necessary for [the Florida legislature] to exercise its responsibility and ensure a fair outcome to the presidential election of 2000.” (“Elections: A grand larceny” (editorial), Florida Times-Union (Jacksonville), Nov. 24).
“Today, the courts — that is, the lawyers – run nearly every aspect of American life. … They tell us how much tobacco is appropriate. Who may buy and sell guns — and how. What level of care governments must provide the needy. They set taxes and school curricula. Now they mean to pick a president.” (“Government by lawyers” (editorial), New York Post, Nov. 24 — cites our editor). “Where has abandoning law and tradition left us? Courts have put the fate of the election in the hands of Democratic partisans reviewing pregnant chads only in Gore’s strongholds. … Is it any wonder that the rest of the world is laughing at us?” (“Comedy of errors of the lowest sort” (editorial), Chicago Sun-Times, Nov. 24).
November 24-26 – Gore lawyers mishandled Illinois precedent. Lawyers for Vice President Al Gore repeatedly cited, and the Florida Supreme Court obligingly quoted at length and with approval, an Illinois Supreme Court opinion from 1990 which directed election officials to consider voters’ intent, which the Gore team suggested provided a rationale for counting punchcard ballots with the now-fabled “dimpled chad”. But in fact “the Illinois court actually affirmed a trial judge’s order to exclude dented ballots,” and a Cook County attorney who provided the Gore effort with an affidavit to the contrary last week now concedes that his recollection was mistaken (Jan Crawford Greenburg and Dan Mihalopoulos, “Illinois case offers shaky precedent”, Chicago Tribune, Nov. 23). “Doesn’t [Gore attorney David] Boies now have a professional obligation to inform the courts and others of his error?,” asks Mickey Kaus (“Hit Parade”, Kausfiles.com)
The generally liberal Miami Herald, which endorsed Gore in the election, editorializes that the Florida high court “made hash of Florida’s election law” and agrees with Gov. George W. Bush’s charge that the court “has changed the rules after the election”. It cites “the court’s unseemly willingness to stand in for the Legislature and create a new election scheme … by deciding that the counts could continue until as late as Monday morning, the justices have substituted their own deadlines for those that have long existed in state law and that Secretary [of State Katherine] Harris was sworn to uphold.” (“A muddled ruling raises questions of fairness” (editorial), Miami Herald, Nov. 23). On the New York Times op-ed page, New Republic legal affairs correspondent Jeffrey Rosen calls the Florida court’s rewrite of state election law “a bold example of judicial activism” in which the court “vastly overplayed its hand” and which “has made the justices appear to be partisans rather than neutral arbiters”. Rosen says the ruling allows Republicans to “argue plausibly that activist Democratic judges changed the counting rules in the middle of the game, only after it was obvious that the Democratic candidate needed dimpled ballots to win”. (“Florida’s Justices Pushed Too Far”, Nov. 23).
November 24-26 – “Qwest ordered to pay AT&T $350 million”. A Travis County, Texas jury has voted $1.2 million in actual damages and $350 million in punitive damages against telecommunications carrier Qwest for negligently cutting an AT&T fiber-optic phone line on several occasions in 1997. “It’s not unique that a fiber line gets cut. It’s unique it gets to [a] jury and gets this far down the road,” an investment analyst told the Austin American-Statesman. “We tried to send a message,” said a juror, as usual. “The only way to do that was to make the stockholders feel it in the bottom line.” (AP/CNet, Nov. 15).
November 24-26 – “Company Is Told to Stay and Face New Union”. A Los Angeles federal judge, “acting on a union’s complaint, has … issued a preliminary injunction preventing Quadrtech, a small manufacturer of earrings and ear-piercing machines, from laying off 118 newly unionized workers and moving its manufacturing operations to Tijuana until labor complaints against it are resolved. … Lawyers at the National Labor Relations Board, which petitioned the court on behalf of the workers, said this was the first time an American company trying to keep out a union had been prevented from leaving the United States.” (Anthony DePalma, New York Times, Nov. 23).
November 22-23 – “Gore’s point man argued against dimples in 1996″. Attorney Dennis Newman of Boston is now the point man in charge of putting Al Gore in the White House by insisting that “dimples show the true intent of the voter. Voters caused those dimples. Dimples should count. Four years ago, in a similar election spat, Newman took a much different stand. Employing his best legal tactics on behalf of a Democrat holding a slight lead in a primary race for Congress, Newman scoffed at the idea of counting the tiny indentations as votes.” Back in that case, Newman endorsed the series of propositions now urged by Republicans about the tiny indentations: that they could have been inflicted by later handling, that they could represent hesitation marks (the kind coroners find on suicides — ed.), and so forth. (Joel Engelhardt, Palm Beach Post, Nov. 22). Although the press has widely echoed the assertion of Gore attorneys that federal courts stay out of state electoral disputes — even, purportedly, when the elections are for federal offices such as president — Alabama Attorney General Bill Pryor argues that there is squarely opposed precedent to the contrary in the Eleventh Circuit, which includes both Alabama and Florida. In Roe v. Alabama (1995), the Eleventh Circuit found a federal constitutional violation in state balloting irregularities that accompanied a very close race, including a court order which appeared to change the rules after the election as to which votes would count. Moreover, the federal court intervened in Roe even though the election was for Alabama state office, not federal office (“Attorney General Bill Pryor and Secretary of State Jim Bennett File Friend of the Court Brief in Presidential Election Dispute”, Office of the Alabama Attorney General, Nov. 20, links to PDF document). (DURABLE LINK)
November 22-23 – “Descent into the lawyerclysm”. Humorix, the Linux-oriented parody site, takes off from the Florida election mess to imagine the lawsuit-ridden dystopia of the not too distant future: “Nuclear weapons are scrapped and replaced by subpoenas. … While most forms of physical violence ceases, the ensuing legal violence is far, far worse — a fleet of lawyers can bring poverty and bankruptcy to billions of innocent civilians within a matter of hours. Stage 6. World economy collapses under the weight of overlawyering.” (Jon Splatz, Nov. 19).
November 22-23 – Don’t do it, Tillie! Tillie Tooter, 84, gained national attention in August when she survived for three days trapped in her wrecked car, which had gone over a Florida interstate highway abutment; she “survived by capturing rainwater in a steering wheel cover and divvying up a stick of gum, a cough drop and a mint.” Now a lawyer is representing her and has “put her rescuers on notice that she intends to sue them for not finding her sooner”. Jim Romenesko at Obscure Store has some advice for her: you’re an old lady, you really don’t want to spend your remaining days hanging around lawyers and courtrooms. (Jodie Needle, “Tillie Tooter to sue Lauderdale, FHP for not finding her sooner in wreck”, Fort Lauderdale Sun-Sentinel, Nov. 16).
November 22-23 – France OKs wrongful-birth suit. “A severely disabled French boy has won a landmark case against medical authorities for allowing him to be born rather than aborted.” Josette and Christian Perruche sued doctors for negligently failing to realize that Josette had contracted rubella (German measles) during her pregnancy; their son Nicolas was born deaf, part-blind and with mental disabilities as a result. “Would my son really have wanted to live if he’d known he had all these disabilities?” asked Christian. “That’s the question I’m posing.” (“Boy compensated for being born”, BBC, Nov. 17).
November 22-23 – “eBay suit wins class-action status”. San Diego Superior Court Judge Linda B. Quinn has granted class-action status to a suit against eBay that “alleges the largest Internet auction company is liable for facilitating the sale of fake sports memorabilia”. (“eBay suit wins class-action status”, Bloomberg News/CNet, Nov. 19) “If successful, the suit could undermine eBay’s business model,” the Industry Standard reported earlier this year (see July 13). “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Also earlier this year four New Jersey teens “were treated for vomiting and disorientation after taking a substance called dextromethorphan, or DXM”, which one of them had bought on the online flea market. (Mylene Mangalindan, “Is eBay Liable in Drug Sale?”, WSJ Interactive/ZDNet, May 31)(see letter, Jan. 16).
November 22-23 – Canada reins in expert witnesses. “The Supreme Court of Canada accelerated its campaign against doubtful expert witnesses [Nov. 9], ruling that ‘novel scientific evidence’ from a Quebec sexologist had no place in a criminal trial.” Like the U.S. Supreme Court in its landmark 1994 Daubert decision, the Canadian high court urges judges to take responsibility as “gatekeepers” to exclude dubious testimony. (Kirk Makin, “Top court reins in use of experts”, The Globe and Mail (Toronto), Nov. 10).
November 21 – The O.J. trial of politics. By early in the morning after the long election night, “the phones began ringing at the 16-lawyer West Palm Beach personal injury firm Lytal, Reiter, Clark, Fountain & Williams, which claims credit for 22 multimillion-dollar verdicts and settlements. Local Democratic staffers had used the firm’s conference room to make get-out-the-vote calls on Election Day, and the phones were still there.” (Peter Aronson, “Lawyers take center stage”, National Law Journal, Nov. 20). “This is the O.J. trial of politics,” the Boston Globe quotes GOP lawyer Tom Rath as saying, while the Wall Street Journal reports that clients in high-profile cases turn to attorney David Boies “as much to signal a declaration of war as anything else.” (Both quoted in Deborah Asbrand, “David Boies Rides Again”, Industry Standard/Law.com, Nov. 17). It’s a class action suit with the presidency rather than the coffers of the tobacco or gun industries as the target, argues the Wall Street Journal‘s editorial side (“Al Gore’s Class-Action”, Nov. 17). When Gore brings out the lawyers by the hundreds to help him, he’s bringing out his base (Rich Lowry, “Lawyers: The Gore Hard Core”, New York Post/National Review Online, Nov. 20).
November 21 – Burglar sues for compensation. In Australia, “[a] man who broke into a house and attacked the home owner when he was discovered has launched a civil action against his victim for compensation.” Shane Colburn says he is still suffering “physically and emotionally” from the aftermath of the 1997 incident, in which he scuffled with Peter Vucetic and Giavanna Grah and was attacked by the couple’s dogs. (“The thief who sued his victim”, Daily Telegraph (NSW, Australia), Nov. 17).
November 21 –Behind “Boston Public”. “[David E.] Kelley, an ex-lawyer [and creator of hit TV show Ally McBeal and the new Boston Public], has made this subject [overregulation] the obsession of every TV show he has written. Whenever teachers or administrators try to help or discipline students, they immediately butt up against their or their bosses’ anxiety about litigation. The worst, in Kelley’s book, are sexual harassment laws, which he started railing about in Ally McBeal long before Monica Lewinsky got down on her knees. But there are also digs at anti-discrimination laws and an episode about a degrading school board regulation that requires all teachers to submit to thumb printing since they work with children. . . . people who should be looked up to and supported are met instead by automatic suspicion.
“So what’s the parallel between Boston Public and the current crisis? That you can’t educate children, just as you can’t run a country, in an atmosphere of rancor and litigiousness, when the people who are supposed to be in charge are dismissed in a knee-jerk fashion as corrupt and illegitimate by the people they’re supposed to be governing.” (Judith Shulevitz, “Culturebox: The Ungovernable Boston Public”, Slate, Nov. 10; “Public-School Teachers, Those Ink-Stained Wretches”, Nov. 14 (more on teacher fingerprinting)).
November 21 – Reckless skier convicted. Nathan Hall has been convicted of criminally negligent homicide in the case arising from his fatal collision with another skier three years ago on the slopes at Vail, Colo. (see Sept. 25-26) (Steve Lipsher, “Skier verdict closes chapter”, Denver Post, Nov. 18; “Ski Racer Convicted in Homicide”, AP/FindLaw, Nov. 17).
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July 19-20 – “Coke Plaintiff Eavesdrops on Lawyers; Case Unravels”. After lawyers suing Coca-Cola on discrimination charges hold a conference call with their clients and with Jesse Jackson, one of the clients, a Coke security guard named Gregory Clark, quietly decides to stay on the line, rather than hang up as the others and Jackson do, and listen to what the lawyers say among themselves. The sensational results are aired in this remarkable article in the Atlanta legal paper, which just might blow the tightly screwed cap off the whole issue of lawyers’ management of litigation in their own interest — don’t even think of missing it (R. Robin McDonald, Fulton County Daily Report (Atlanta), July 18) (Atlanta Journal-Constitution special page on Coke discrimination litigation).
July 19-20 – Editorial roundup: “The wrong verdict on tobacco”. By a wide margin, the American people believe that though cigarettes are harmful, it should be lawful to sell them. “Last week’s verdict by a Florida jury, however, suggests that what the American people want is no longer terribly important when it comes to tobacco.” (Chicago Tribune, editorial, July 18). “[T]he judge prohibited any testimony relating to choice and personal responsibility,” contends the New York Post. In plain English, the fix was in.” (“Milking the Tobacco Cow”, July 18). Jury foreman Leighton Finegan said he was “insulted” when tobacco company lawyers raised the possibility that the throat cancer of one of the plaintiffs might have been caused by occupational dust exposure, but it’s perfectly legitimate for defendants to point out that health problems arise from multiple origins, which sheds light on the unmanageable nature of the supposed “class” (Hickory (N.C.) Record, “$145,000,000,000!”, July 17). “It says something about the class-action lawsuit Florida smokers filed against the industry that two of the lead plaintiffs in the case were medical officials who bragged of their own ignorance,” comments the Washington Times. “Said one, a 44-year-old nurse, ‘I had no idea there was anything wrong with cigarettes at all.” (“That will be $145 billion, please”, July 17). And Smarter Times, the new online venture edited by Ira Stoll that keeps a watchful journalistic eye on the New York Times, notes that the newspaper’s July 15 editorial “basically comes out in favor of using class action lawsuits to put companies out of business, even when the Congress or state legislatures are unwilling to declare the products illegal.” (Issue #28).
July 19-20 – Disabled accessibility for campaign websites: the gotcha game. The Washington Post‘s online edition plays gotcha with political campaign websites, most of which fail to heed disabled-accessibility guidelines of the sort that may already be legally binding on a wide range of private sites. The Al Gore (D) and Rick Lazio (R-N.Y.) websites are among the minority that comply with “Bobby“, the most widely used program for evaluating a site’s disabled accessibility. Sites that fall short on “Bobby” include those of George W. Bush (R), Hillary Clinton (D-N.Y.), Ralph Nader (Green) and Patrick Buchanan (Reform). (Ryan Thornburg, Mark Stencel and Ben White, “Political Graffiti Goes Online” (third item), WashingtonPost.com, July 17).
However, running the Thornburg-Stencel-White article itself through a “Bobby” check discloses that as of Tuesday evening it itself suffered from at least fifteen violations of disabled accessibility rules: lack of alternative text for images (12 instances), lack of redundant text links for server-side image map hot-spots (2 instances), and lack of alt text for image-type buttons in forms (1 instance) (full “Bobby” evaluation of Post article). The article is also reprinted on Slate, where as of Tuesday evening it suffered from at least 19 Bobby infractions, including lack of alt text (18 instances) and lack of button text (once) (evaluation). Numbers are subject to change if and as the pages change, of course.
July 19-20 – Target Detroit. “Those in Michigan cheering state assaults on the tobacco industry and gun manufacturers may want to hold their applause,” writes the Detroit News‘ Jon Pepper, since the state’s leading industry, automaking, could face assault from some of the same litigation forces. (“Auto industry could follow guns, tobacco into courtroom”, June 4). Many lawyers are eager to pin liability on the design of sport utility vehicles because of their tendency to inflict higher than usual damage on other motorists and pedestrians, but they’ve had trouble so far finding a theory that will stick (Keith Bradsher, “S.U.V. Suits Still Face Long Odds”, New York Times, May 30). And a federal judge has refused to dismiss a defamation countersuit by Philadelphia class action firm Greitzer & Locks against DaimlerChrysler and its associate general counsel, Lew Goldfarb, arising from charges DaimlerChrysler filed last fall (see Nov. 12) charging the Greitzer firm and another attorney with the filing of abusive class action litigation. The Greitzer firm is now suing Mr. Goldfarb personally for defamation and interference with contractual advantage and cites, as evidence of malice, his description of the cases filed by Greitzer & Locks as “a form of legalized blackmail” and of one such suit as one that “belongs in the class action hall of shame.” How many times do we have to warn you to watch very carefully what you say when you criticize lawyers? (Shannon P. Duffy, “DaimlerChrysler GC Can Be Sued in Pennsylvania”, The Legal Intelligencer (Philadelphia), June 30; “Greitzer & Locks Takes a Swing Of Its Own at DaimlerChrysler”, Jan. 14).
July 18 – Florida tobacco verdict. Our editor has an op-ed piece in today’s Wall Street Journal discussing last week’s punitive award in the Florida tobacco class action: Walter Olson, “‘The Runaway Jury’ is No Myth”, Jul. 18. For more on the Engle case, see July 10; our editor’s Wall Street Journal op-ed from Jul. 12, 1999; the related commentaries on our tobacco-litigation page; and the press clips at Yahoo Full Coverage. Also check our numerous commentaries, from yesterday and earlier, on the multistate tobacco settlement, which counts as trial lawyers’ bird-in-the-hand compared with Engle‘s bird-in-the-bush. Later developments in case: see May 15, 2004 and links from there.
July 18 – “Court says warning about hot coffee unnecessary”. It makes a contrast to the famed McDonald’s case: the Nevada Supreme Court, upholding a lower court’s decision, has dismissed a lawsuit against a restaurant and its suppliers alleging negligent failure to warn about the dangers of hot coffee. Lane Burns had sued the Turtle Stop restaurant after spilling coffee on his leg and suffering burns, but District Judge Gene Porter ruled that the “danger is open and obvious.” That differs from the sentiments of the judge and jury in Albuquerque, New Mexico, where octogenarian Stella Liebeck won a $2.9 million judgment against the fast-food chain, which was later reduced to $480,000 and settled for an undisclosed sum. (Cy Ryan, “Court says warning about hot coffee unnecessary”, Las Vegas Sun, July 11).
July 18 – “Chutzpah is. . .” Eugene Volokh of UCLA law school writes as follows: “Chutzpah is . . . when you get a job working for your wife’s parents because you are their son-in-law, and then when you and she get divorced and her parents fire you, you sue them for marital status discrimination.
“This is exactly what happened in Matteson v. Prince, Inc., Montana Dep’t of Lab. & Indus. No. 9901008658 (1999) (pdf document). Amazingly, the agency held that the employer’s behavior was illegal discrimination, but Matteson wasn’t entitled to any damages because in this particular case the ex-son-in-law would have been fired in any event because he had gotten into a shouting match with his employers at work.”
July 18 – Breakthrough for plaintiffs on latex gloves? Last Thursday an Alameda County, Calif. jury returned an $800,000 award to a health care worker against Baxter Health Care, which formerly made latex gloves for hospital use. Naturally occurring substances in the gloves sometimes trigger virulent allergies in health care workers which prevent them from continuing in medical work, and lawyers have argued that had Baxter instituted a practice of washing the gloves before sale to remove surface proteins, it would have reduced their allergy-stimulating potential. Hundreds more latex allergy lawsuits are pending, and lawyers are hoping the new case, McGinnis v. Baxter Health Care, will serve as a model for others. (Sonia Giordani, “California Latex Glove Verdict Sets Tone”, The Recorder (San Francisco), July 17) (more about latex allergies) (see also Oct. 26).
July 17 – Dershowitz’s Florida frolic? Alan Dershowitz is demanding $34 million for putting in 118 hours of work on the state of Florida’s Medicaid-reimbursement tobacco suit, according to two of the lawyers who helped mastermind that suit, Robert Montgomery and Sheldon Schlesinger. The two filed suit against the famed Harvard law prof last week, asking a judge to determine whether he’s entitled to a bonus they say they never promised him. Through their attorney they allege that Dershowitz is asserting an entitlement to 1 percent of the gargantuan $3.4 billion fee award made to the attorneys who represented the state, which would amount to $34 million, but they say he hasn’t submitted any hourly time sheets to back up that claim. “He wants a lot of money, and he’s not entitled to it,” said J. Michael Burman, attorney for Montgomery and Schlesinger. If the lawyers’ figures are accurate, $34 million divided by 118 hours would work out to $288,000 an hour. (Jon Burstein, “Lawyer wants $34 million for working 118 hours on Florida’s case against tobacco companies”, Fort Lauderdale Sun-Sentinel, July 14; more on Florida tobacco fees: April 12, December 27-28).
July 17 – Ness Motley’s aide-Grégoire. In a single day, December 8, 1999, Christine Gregoire, the attorney general from the state of Washington who’s been mentioned as a possible AG in a Gore administration, saw her re-election campaign kitty more than double. The benefactors, who sent nearly $23,000, weren’t Washington residents at all, but rather two dozen lawyers and their relatives associated with the Charleston, S.C. law firm of Ness, Motley, which is expected to pocket a billion dollars or more in fees from the multistate tobacco settlement that Gregoire was instrumental in brokering. An aide to Gregoire, who engaged Ness Motley to represent Washington along with the many other states it represented, dismisses talk of payoffs and calls the contributions “a reflection that someone has a high regard for an elected official.” “I only wish we had given her more,” says Ness superlawyer Joe Rice, quoted in this article in Mother Jones spotlighting the sluicing of tobacco-fee money to friendly Democratic pols. (Rick Anderson, “Tobacco money flows both ways”, Mother Jones, July 6).
July 17 – Challenging the multistate settlement. In a Cato Institute paper, Thomas C. O’Brien argues that the anticompetitive provisions of the multistate tobacco settlement, such as those curbing entry by newly formed cigarette companies, should rightly be seen as themselves an antitrust violation and as going beyond the duly constituted power of the fifty states, which would open up the possibility of injunctive relief and treble damage remedies “available in private lawsuits brought directly by injured parties, including smokers and nonparticipating tobacco companies.” (Thomas C. O’Brien, “Constitutional and Antitrust Violations of the Multistate Tobacco Settlement”, Cato Policy Analysis No. 371, May 18 (summary links to PDF document)). Also from Cato, Richard E. Wagner of George Mason University offers another critique of the multistate settlement (“Understanding the Tobacco Settlement: The State as Partisan Plaintiff”, Regulation, vol. 22, no. 4 (table of contents; follow links to PDF document). Cato, the Competitive Enterprise Institute and the National Smokers Alliance filed an amicus brief last week urging the Third Circuit to invalidate the nationwide tobacco settlement agreement on constitutional grounds. (“Public Interest Groups Urge Court to Invalidate Tobacco Agreement ” CEI press release, July 13). On collusive aspects of the multistate settlement, see our commentary for July 29 of last year; Rinat Fried, “Distributors Challenging Tobacco Deal”, The Recorder/CalLaw, June 30, 1999; and “Puff, the Magic Settlement” (Reason, January).
July 14-16 – “Are lawyers running America?”. Time‘s feature story this week on the Fourth Branch leads with the tale of tobacco/HMO nemesis Dickie Scruggs’ recent appearance before the Connecticut State Medical Society (see Feb. 22, “P.S.”), where he “was introduced so gushingly that even he was embarrassed. ‘You forgot to mention,’ he chided the society’s head, ‘that I rested on the seventh day.’” Among bits of new-to-us info about the great legal magnates, we learned that “Wayne Reaud (pronounced Ree-oh) has used his hundreds of millions of dollars in fees from asbestos and other ‘toxic tort’ litigation to buy the local newspaper and a chunk of downtown real estate in his hometown of Beaumont, Texas,” while Florida’s Frederic Levin “concedes his firm’s $300 million take [from tobacco] was ‘totally obscene’ and says he’s giving much of it to charity,” having already had the University of Florida Law School named after him following a big gift. Who’s to be sued next? All sorts of targets, but the magazine reports that some lawyers “are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same ‘negligent marketing’ allegations that have been lodged against gunmakers.” Quotes our editor twice, too. Most memorable line: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t bother to deny it. ‘Somebody’s got to do it,’ he says, laughing.” (Adam Cohen, “Are lawyers running America?”, Time, July 17)
July 14-16 – “‘Whiplash!’ America’s most frivolous lawsuits”. Michigan Lawsuit Abuse Watch is promoting this new book by comedy writer James Percelay and Jeremy Deutchman (Andrews & McMeel). Five of the cases from the book are retold at the M-LAW site, including ones involving a woman who sued a guide-dog service because the dog it provided did not keep its blind human master from stepping on her foot and breaking her toe; a man who cut off his hand, believing it Satanically possessed, refused a doctor’s pleas to let him reattach it, and then sued the doctor later for complying with his instructions; a college student who tried to “moon” friends from a third-floor window, fell out and sued for his injuries; a criminal who filed an excessive-force suit against police after being apprehended for a particularly brutal crime, and won a $184,000 jury verdict, later thrown out; and a man who spilled a cold chocolate milkshake on himself, was so startled that he crashed his car, and sued McDonald’s. (All five cases were sooner or later unsuccessful in the courts.) We haven’t seen the actual book yet (or fact-checked the five cases, although we remember most of them from when they originally happened) but it seems to be selling pretty well on Amazon. Also check out M-LAW’s “obligatory disclaimer“.
July 14-16 – Never too stale a claim. Asbestos, lead paint, small-plane and machine-tool liability cases have all demonstrated that American lawyers are willing to trace responsibility back at least as far as the first decades of the twentieth century if that’s what it takes to find a deep pocket chargeable with injury. So it shouldn’t really have come as much of a surprise when a Texas court entered a $234 million default judgment against the government of Russia on behalf of a man whose grandfather’s property was confiscated during the 1917 Bolshevik Revolution. Dan Nelson, attorney for claimant Lee Magness, “says he will start trying to collect by seizing any Russian art exhibits on tour in this country”, and preliminary maneuvers to that effect led to a temporary delay in two art tours. The Russian government has filed a protest with our State Department (for more on the foreign-policy repercussions of the American way of suing, see July 6). The extreme willingness of our current legal system to revisit very old transactions in search of grist for litigation — much in contrast with an earlier law’s concern for repose and finality — probably made it inevitable that we’d see the current boomlet of discussion regarding reparations claims over slavery: if we’re already willing to go back 83 years to 1917, why not a further 52 years to 1865? Besides, some of us have our eye on the British, who’ve enjoyed virtual impunity for much too long over their burning of American homes during the Revolutionary War and War of 1812. (Susan Borreson, “Texans’ Default Judgment Against Russians Stands”, Texas Lawyer, Feb. 1).
July 13 – Class-action assault on eBay. It’s doubtful whether eBay, the massively popular electronic flea market, would ever have gotten off the ground had its proprietors been required to warrant the goods being sold. In April, however, attorney James Krause of the San Diego-based class-action firm of Krause & Kalfayan filed a lawsuit on behalf of six California residents who had bought sports memorabilia, the subject of widely reported fakery, over the online marketplace. An eight-year-old provision of California law stipulates that dealers in autographed sports memorabilia must provide a certificate of authenticity. Krause is seeking class-action status on behalf of all California buyers, and is asking for the penalties laid out in the statute, which according to AuctionWatch “entitles the buyer to ten times the purchase amount and other damages should an autograph prove to be forged or come without this certificate”. EBay contends that it is not a dealer or auctioneer but simply provides the modern equivalent of newspaper classified ads, so that only the individual sellers could properly be held liable. “If successful, the suit could undermine eBay’s business model,” reports the Industry Standard. “Legal experts say that if the company can be held liable for the actions of its users, it is likely to face a flurry of suits that would severely handicap its business.” Krause & Kalfayan has also filed suits on unrelated theories against such firms as Microsoft (see Dec. 23), Federal Express, Atlantic Richfield, Nine West and Charles Schwab (complaint and related news story at Krause & Kalfayan site; Victoria Slind-Flor, “EBay Denies Auctioneer Status”, National Law Journal, July 10; Miguel Helft, “EBay: We’re Not Auctioneers”, Industry Standard, May 1; “The Class Action Suit”, AuctionWatch, undated). Bonus:Weird eBay Auctions (WhatTheHeck.com) (& update Nov. 22-23: judge certifies class action)
July 13 – Nader on the Corvair. The litigation advocate’s presidential candidacy makes a good occasion to revisit his original claim to fame, the Corvair episode. The car’s safety record turned out in hindsight far better than you’d have guessed reading Unsafe at Any Speed, but “being wrong on the Corvair hasn’t hurt Nader’s career one bit,” writes Ronald Bailey, science correspondent for Reason. (“‘Saint Ralph’s’ Original Sin”, National Review Online, June 28).
MORE LINKS: Bill Vance, CanadianDriver.com (“The Corvair’s handling would later be exonerated, but the damage had been done”); Corvair Society of America (CORSA); Brock Yates, Car & Driver, reprinted in CORSA’sThe Windmill, Nov./Dec. 1971, and Charles B. Camp, “Popularity of Nader Declines to Its Nadir Among Corvair Owners”, Wall Street Journal, July 23, 1971, reprinted at Rick’s Corvair Scrapbook; Thomas Sowell, “Lawsuits and Legal Visions”, 1987 speech at Shavano Institute Seminar, reprinted at tsowell.com; Andrew Gurudata, “Great Car At Any Speed“, Corvair Webring; Corvair Project.
July 13 – Access to something. Federal prosecutors are investigating claims that attorney Denice Patrick of Lynnwood, Washington, outside of Seattle, violated ethics and conflict-of-interest rules. Specifically, they’re looking into allegations that while employed to write legal decisions for the federal Social Security Administration, she also “moonlighted for more than a year as a private lawyer who devoted much of her practice to bringing claims against the agency.” Ms. Patrick, whose attorney denies the charges and says they’re being brought against her in retaliation for whistleblowing about agency wrongdoing, has been active on a Washington State Bar Association panel promoting “access to justice“. (Sam Skolnik, “Lawyer allegedly violated ethics”, Seattle Post-Intelligencer, May 22).
July 12 – Battered? Hand over your kids. Latest advance in child protection: seizing and placing in foster care children whose moms are abused by their husbands or boyfriends or vice versa. New York City can remove kids from their homes if either parent is believed to “engage in acts of domestic violence,” such as slaps, kicks, shoves, or more serious violence, whether or not these acts are directed at the children. “Often,” reports the New York Times‘s Somini Sengupta, the parent who loses children this way “may have done nothing wrong or negligent, but simply lacked the financial or emotional resources to leave an abusive partner.” The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers. And while it’s clearly not good for a child to observe parents engaged in domestic battles, advocates say the city underestimates the trauma to kids of being yanked out of the home they know and sent to live among strangers. (Somini Sengupta, “Tough Justice: Taking a Child When One Parent Is Battered”, New York Times, July 8 (reg)). Update Oct. 31, 2004: New York high court ruling favorable to mothers; Dec. 19, 2004 city agrees to change policy.
July 12 – Forum-shopping in South Carolina. Last year, AP reports, the big railroad CSX paid out about $5 million in five accident lawsuits filed in Hampton County, S.C., and it faces another 15 cases pending in the county, all represented by the Hampton law firm of Peters, Murdaugh, Parker, Eltzroth & Detrick. However, none of the five accidents being sued over had actually taken place in Hampton County; all had been taken there from elsewhere in search of the plaintiff-friendly brand of justice handed out in the impoverished county, where 40 percent of residents have not graduated high school. “They are poor people who don’t like big corporations,” said Dick Harpootlian, a prominent plaintiff’s lawyer in the state capital, Columbia, as well as chairman of the state’s Democratic Party. “We don’t mind being there if we belong there, but these cases are being valued at between two and three times what they would elsewhere,” said Jim Lady, a lawyer for the railroad, who adds that it would be equally unfair if the law permitted his client to remove all cases to Lexington County, where jurors are known as being as conservative as those in Hampton are liberal. Now a move is afoot in the state legislature to curb forum-shopping by giving plaintiffs a choice of at most three venues: the one where the accident took place, the one where they live, or the one where the railroad is headquartered. Trial lawyers are upset: “If they are paying us more than what they are paying elsewhere, it’s because they are not paying fairly in other counties,” says Johnny Parker, a lawyer with the Peters firm in Hampton. State Sen. Brad Hutto (D-Orangeburg), whose district includes Hampton County and who also happens to be a trial attorney, says that the move “smacks of special-interest legislation … Every courthouse in this state is presided over by a judge. If CSX doesn’t like the result of a court case, they have the right to appeal. It’s not the law firm that’s being punished, it’s the person bringing the suit.” The Virginia legislature some years back enacted similar legislation curbing the ability of lawyers from around the state to file railroad suits in the city of Portsmouth, where juries had a reputation for big-ticket verdicts. (Associated Press, “Bill would make generous Hampton County juries unavilable in many railroad suits,” South Carolina state/regional wire, June 12).
July 12 – Suing Nike for getting hacked. Some Web-watchers have been predicting (see Feb. 26) that lawsuits may be forthcoming attempting to lay the costs of hacker attacks on deep-pocket entities that, it’s argued, should have done more to prevent them. Now a Web entrepreneur named Greg Lloyd Smith says his lawyers are drawing up a complaint against Nike. “His beef: When Nike’s website was hijacked [last month], whoever hijacked the domain re-directed Nike.com’s traffic through Smith’s Web servers in the U.K., bogging them down and costing Smith’s Web hosting company time and money.” (Craig Bicknell, “Whom to Sue for Nike.com Hack?”, Wired News, June 29; “Webjackers Do It To Nike”, Wired News, June 21).
July 11 – Australia: antibias laws curb speech. An official civil-rights tribunal in New South Wales, the most populous state in Australia, has ruled that the Australian Financial Review committed an unlawful act of bias when it published an article on its opinion page making slighting comments about Palestinians. The offending piece, a short item by journalist Tom Switzer, had suggested that Palestinians had engaged in acts of terrorism, could not be trusted in Mideast peace talks, and remained “vicious thugs who show no serious willingness to comply with agreements”. The tribunal “found it was irrelevant whether the author intended to incite racial hatred or whether anyone had in fact been incited”, and dismissed a free-comment defense as irrelevant. It has yet to decide on a “remedy” for the speech; among its powers are to order a retraction and apology, and to order the paper, which is owned by the John Fairfax Group, to “implement a program or policy aimed at eliminating unlawful discrimination”. (Mike Seccombe, “Finding ‘restricts’ freedom of speech”, Sydney Morning Herald, Jul. 10) (via Freedom News Daily).
July 11 – “Report on medical errors called erroneous”. You read it here first (see Feb. 22, Feb. 28, March 7 commentaries): more critics are stepping forward to find fault with that highly publicized study alleging that “medical errors” kill between 44,000 and 98,000 patients a year. In the Journal of the American Medical Association, three doctors associated with the University of Indiana’s Regenstreif Institute explain why they believe the study is so constructed as to exaggerate the avoidable damage done by medical mistakes, and study author Lucian Leape, of Harvard’s School of Public Health, responds with a defense. (Rick Weiss, “Report on Medical Errors Called Erroneous”, Washington Post, July 5; Clement J. McDonald; Michael Weiner; Siu L. Hui, “Deaths Due to Medical Errors Are Exaggerated in Institute of Medicine Report” (text) (pdf); Lucian L. Leape, “Institute of Medicine Medical Error Figures Are Not Exaggerated” (text) (pdf), JAMA, July 5 (table of contents))
July 11 – ADA’s unintended consequences. The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied. Thomas DeLeire, assistant professor at the University of Chicago, Harris Graduate School of Public Policy Studies, analyzed data for a sample of men aged 18 to 65 and found that labor force participation fell after the act for virtually every identifiable subgroup of disabled men, but that the relative slippage was worst for those with lower levels of job experience and education, and those with mental impairments. DeLeire believes the law has imposed on employers perverse incentives not to hire and retain disabled workers, since they now risk the possibility of costly and uncertain disputes should they differ with the worker about what constitutes “reasonable” (and thus obligatory) accommodation. (“The Unintended Consequences of the Americans with Disabilities Act”, Regulation, v. 23, no. 1 — table of contents links to pdf document).
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April 28-30 – Degrees of intimidation. Diploma mills (self-proclaimed universities willing to mail out meaningless degrees, in exchange for what is often substantial “tuition”) have flourished lately and efforts to rein them in have foundered, writes a specialist in the field. “In 1982 the American Council on Education announced an impending, hard-hitting, and uncompromising book (I hoped) on fake schools. But by the time Diploma Mills: Degrees of Fraud finally emerged in 1988, the lawyers had marched in, and the book was, at best, soft-hitting and compromised. The authors apologized for lack of specificity (not a single currently operating fake was named) because of ‘the present litigious era.’
“Yes, schools do sue. … I’ve been sued eight times by schools …. Only one ever got to court, and that was thrown out by the judge, as frivolous, in minutes. But there is a cost in both dollars and, my wife will confirm, despondency.” (John Bear, “Diploma Mills: The $200 Million a Year Competitor You Didn’t Know You Had”, University Business, March) (via Arts & Letters Daily).
April 28-30 – Collateral damage in Drug War. Authorities earlier this month arrested Dorothy Jean Manning, 66, Ramona Ann Beck, 61, and Armitta Mae Granicy, 59, for selling iodine crystals without keeping tabs on buyers’ names and vehicle IDs as required by law. All three women work at Granicy’s Feed Store in rural Lancaster, Calif. and have been charged with repeatedly selling the crystals to undercover agents despite warnings. Ranchers use iodine crystals to treat hoof ailments in livestock, but they are also a so-called “precursor chemical” in the production of methamphetamine. (Reason Express, April 17 — third item). (Update: see letter to the editor, May 18, 2001). And Denver’s famous bookstore, the Tattered Cover, is locked in a courtroom battle with the North Metro Drug Task Force over demands that it disclose the identity of the purchaser of two books found in an Adams County residence which also contained a methamphetamine lab; the books, apparently bought from the Tattered Cover with a credit card, contained instructions for manufacturing the drug. “On April 5, five plain clothes Denver police officers showed up at the bookstore with [a] search warrant and insisted on conducting a search” but agreed to wait until a court resolved the situation. (Cheryl Arvidson, “Denver bookstore’s sales records sought in drug-lab investigation”, Freedom Forum, April 20). Update Oct. 27-29: judge orders store to hand over records.
April 28-30 –Legal Times (Washington, D.C.) “Web of the Week”. One of the nicest encomia we’ve received lately makes us anxious to live up to it. “Lawyers and litigation have been lampooned at least since Dickens. Now Walter Olson of the Manhattan Institute, a longtime critic of the excesses of litigation, has launched overlawyered.com, a Web site that gathers daily nearly every story of this type from the media and gently skewers the profession. It remains just this side of acerbic, which actually makes the site more effective. Excessive fees, silly cases, outlandish extenuations, and my favorite, ridiculous warning labels, abound here. Read it and laugh, but take much of it to heart.” (Jonathan Groner, Legal Times, April 10).
April 28-30 – Updating Jane Austen. If the author were writing today. … “After recovering memories of childhood abuse by their father, the novel ends with the Bennet sisters awash in cash, their futures secure, and their romantic lives no longer held in thrall to the economic oppression of the patriarchy.” (Mark Lasswell, “Get real, Jane”, Women’s Quarterly, Winter 2000 (via The Occasional)).
April 27 – Sock puppet lawsuit. Internet pet supply enterprise Pets.com has filed a federal lawsuit against Robert Smigel, a writer with NBC’s “Late Night With Conan O’Brien”, over Smigel’s creation of “Triumph the Insult Comic Dog”, a satirical character reminiscent of Pets.com’s own highly visible sock-puppet mascot. “‘Triumph is a rubber-dog that … regularly uses vulgarity, insults both the humans and other dogs around him and often conducts physical attacks of a sexual nature on female dogs,’ the complaint says.” (“The sock that roared”, TVBarn, April 25; “Pets.com socks it to ‘Late Night’ writer”, AP/FindLaw, April 26, link now dead).
In more news from the world of doll litigation, Barbie-maker Mattel, Inc., has sued the prominent San Diego law firm of Luce, Forward, Hamilton & Scripps for slander and libel. The case arises out of a longstanding legal dispute between the giant toy company and one of Luce Forward’s clients, the Collegiate Doll Co., over sales of dolls by the latter company that allegedly infringed on “college cheerleader” versions of Barbie. Mattel now claims to have been falsely accused of illegalities and unethical conduct in an article published in Luce’s newsletter and on its website. Previously, Mattel successfully sought judicial sanctions against a Luce partner who, having weathered earlier rounds of litigation involving the curvaceous plaything, “began to tout himself as an expert in Barbie disputes,” and whose sanctionable misconduct allegedly included tossing Barbie dolls during a videotaped meeting of counsel. (Gail Diane Cox, “Barbie’s Backers Smack Firm With Slander Suit”, CalLaw, March 2).
April 27 – Let’s go to the tape. “Brian Lopina, a lobbyist for the Association of Trial Lawyers of America [recently broke] the Golden Rule of Washington Voicemail [, which] states that the only message you should ever leave on anyone’s machine is Call me …. Lopina tried to intimidate Sen. Rod Grams, the Minnesota Republican, out of backing a bill that would scrutinize asbestos suits more carefully. … [He] warned Grams that ATLA was bankrolling a set of highly effective ads against senators (like Montana Republican Conrad Burns) who weren’t dancing to the lawyers’ tune. He offered to send over a transcript of the ads, ‘so you’ll see exactly how hard-hitting this stuff is. I think you really ought to get off this bill.’ Lopina claimed to have been calling Grams as a ‘friend,’ and ATLA denied that he’d made the calls at its request. Yeah, sure — he works as a lobbyist but makes threatening calls about legislation in his spare time.” (Christopher Caldwell, “Tele-Grams”, New York Press, April 19-25). The Wall Street Journal beat us to this one with their editorial Tuesday: “The New Commissars”, April 25 (online subscribers only)). See also Dane Smith and Greg Gordon, “Grams said lobbyist tried to ‘blackmail’ him”, Minneapolis Star-Tribune, April 11 (reprinted at Coalition for Asbestos Resolution site).
April 27 – Legal Intelligencer sees Fidel’s sunny side. Whatever divergent views we may hold on the armed seizure and prospective return of Elian Gonzalez, you’d think we could all at least agree in execrating the brutal dictator whose misrule the little boy and his mother were fleeing. But no, even at this late date, the old monster has his defenders — including, it seems, some in the legal profession. Last month Philadelphia’s couldn’t-be-more-respectable Legal Intelligencer ran a kissy account of how fourteen American lawyers went to Cuba on a “fact-finding” mission sponsored by the far-left National Lawyers Guild, met the great man himself, and came back singing his praises. “There is a sense of respect for other human beings there,” effused attorney Joshua Rubinsky. “A respect you don’t see [in the United States] in terms of labor relations.”
Queasy yet? There’s much more. “Fidel Castro is a lawyer,” the account begins (which, for the record, is meaner than anything this site has ever said about lawyers). “He graduated from Cuba’s Havana University with a law degree in 1950, and, although he never practiced law, his political influence has helped shape Cuba’s legal system” — “political influence” being here a remarkable euphemism for the Communist strongman’s tendency to murder or jail opponents and critics. The story proceeds to quote attorney Gail Lopez-Henriquez, who like Mr. Rubinsky practices labor law in Philadelphia, as saying: “People we met really believe that they have a system that has some very important principles and structures that protect people’s rights, dignity and material needs.” The Legal Intelligencer never sees fit to quote even a single critic of the Cuban regime, or indeed anyone outside the admiring circle of trip-goers. (April White, “Meeting Castro Highlight of Study Trip To Cuba for Group of U.S. Labor Lawyers”, The Legal Intelligencer, March 16).
April 25-26 – New page on Overlawyered.com: Free speech & media law. Newest addition to our collection of topical pages covers libel, slander and defamation suits; the use of litigation to suppress or intimidate criticism and political opposition; harassment law’s effects in curbing email jokes, cartoons and workplace banter; efforts to hold makers of shoot-’em-up movies and videogames liable for damages when their customers commit acts of violence; regulation of campaign speech; copyright, broadcast law, and other topics relating to free expression and media law. Also: we’ve updated the desktop links on the front page’s left column, dropping some less-used links, adding a half-dozen new, and creating a new section for “Science/skepticism” links, most of which had previously been found in “Diversions”.
April 25-26 – Celera stockholders vent at Milberg Weiss. Lively discussion breaks out on Motley Fool investment bulletin boards concerning suit filed by class-action filers Milberg Weiss against genome-mapping pioneer Celera after stock price drop (suit announcement). Most of the participants are decidedly unhappy about the suit’s filing, and their email protests succeeded in drawing some response from Milberg Weiss attorneys. Some jumping-off points to browse the discussion: messages #13466, 13594 (cites this site), 13775, 13806, 14041 (view threads).
April 25-26 – Preferred seating. ADA lawsuits against movie theaters proliferate, with a D.C. law firm last week seeking class-action status on behalf of millions of hearing-impaired moviegoers against two of the biggest cinema chains over their failure to install expensive captioning and other assistive technology. (“Hearing-impaired moviegoers sue Lowes [sic] and AMC”, Bloomberg/Boston Globe, April 21, link now dead). In Oregon, where activists filed a suit earlier this year seeking mandatory captioning (see February 19-21 commentary), they’ve now filed another one charging that it’s unlawful for wheelchair users to be seated in front where they may be obliged to crane their necks at an uncomfortable angle (Ashbel S. Green, “Regal Cinemas sued over seats”, The Oregonian (Portland), April 12). The Fifth Circuit, however, recently turned two thumbs down on a similar lawsuit out of El Paso. (Nathan Koppel, “Court Failed to Recognize Disabled Movie Patrons’ Difficulties, Expert Says”, Texas Lawyer, April 13).
April 25-26 – Toronto coach: ich kann nicht anders. Toronto Raptors basketball coach Butch Carter has filed a defamation lawsuit against departed player Marcus Camby, who recently described Carter as a “liar” and unpopular with the team. Camby, who alleges that Carter assured him he’d be kept on the team just before the front office traded him to the New York Knicks, said, “No one likes him and no one wants to play for him. That is the kind of guy that he is.” “I’m responding to an article of untruths in the only manner I can,” said Carter, on the question of why he was suing. “That’s through the courts.” You might think he’s overlooking at least one other manner of responding short of litigation, namely airing his side of the story in the press. Carter hasn’t been shy about doing that in the past: in an upcoming book, he alleges that one of his own former coaches back at Indiana is a “bully” and “self-serving coward” and has used racial slurs. (“Carter would withdraw suit for apology”, ESPN, April 23; “Raptors’ Carter Defends Camby Suit”, Yahoo/AP, April 24; “Carter claims Knight used racial slur”, AP/ESPN, April 14). Update: Carter soon dropped the suit (see May 4 commentary).
April 25-26 – Gray sameness of modern playgrounds. “Is there anything lamer than these new ‘safe’ playgrounds? Where is the fun in the Big Hollow Plastic Cube with Holes Cut in It? Or the Three Axles with Triangular Plastic Spinning Things for Playing Tic-Tac-Toe? … And yet overprotective surrogate mothers from the National Program for Playground Safety insist that still not enough is being done to protect the children. … Give me spinal injury inducing monkey bars over this modern plastic junk any day.” (Eigengrau weblog, April 20 entry).
April 25-26 – Thought for the day. “The history of censorship is a history of folly and cruelty” — Judge Richard Posner in Miller v. Civil City of South Bend, Seventh Circuit, 1990; quoted in the substantial new profile of him in Lingua Franca (James Ryerson, “The Outrageous Pragmatism of Richard Posner”, May).
April 25-26 – Regulation by litigation: what to do? Some ideas that might curb courts’ and trial lawyers’ penchant for acting as surrogate legislatures, including a “Model Separation of Powers Act”, a Sunshine Act requiring that governments disclose the manner in which they hire outside attorneys, and an act making clear that government can’t oust traditional defenses to liability in the course of filing third-party lawsuits over Medicaid reimbursement and the like (assuming governments should be filing such suits at all). (Victor E. Schwartz and Leah Lorber, “Regulation Through Litigation Has Just Begun: What You Can Do To Stop It”, “Briefly…” Series, National Legal Center for the Public Interest, November 1999 (PDF)).
April 24 – Scented hair gel, deodorant could mean jail time for Canadian youth. “A Halifax-area teenager may face criminal charges for wearing Dippity Do hair gel and Aqua Velva deodorant to school after his teacher complained to the RCMP [Royal Canadian Mounted Police, Mounties] about his fragrant abuse of the school’s no-scent policy. Gary Falkenham, 17, has twice been suspended from Duncan MacMillan High School in Sheet Harbour, N.S., for violating the school’s strict policy banning perfumes, aftershaves and scented hairsprays and deodorants.” (Shaune MacKinlay and Adrian Humphreys, “Student may face criminal charge for wearing smelly hair gel”, Halifax Daily News/National Post, Apr. 19. More on the “scent-free” movement, which has made Halifax its poster city: Larry M. Greenburg, “One City Turns Up Its Nose Against the Use of Perfume”, Wall Street Journal, July 28, 1999, reprinted at Junk Science; Betty Bridges, “Halifax Leads the Way With Fragrance-Free Policies”, Flipside, Sept. 1999; Dalhousie U. policy, Environmental Health Network, Fragranced Products Information Network).
April 24 – Court rejects “telephone sex slave” charge. A federal judge has dismissed Doris Ford’s lawsuit charging that Hartford businessman and power broker Arthur T. Anderson had coerced her into being his highly paid “telephone sex slave”. Ms. Ford did not allege that the couple had had physical contact since 1977, and the judge said that even if it were true that the two had more recently engaged in sexually oriented telephone conversations and that she had received sums in excess of $150,000 from Mr. Anderson, the relationship could at most be described as contractual. Anderson’s lawyer says his client had made payments to Ford for years to keep her from revealing their long-ago extramarital relationship. Ms. Ford’s lawyer, Norman A. Pattis, conceded that his claim invoking the federal Violence Against Women Act was “creatively pleaded and probably on the cutting edge.” (Mark Pazniokas, “Judge Rejects Sex Slave Suit”, Hartford Courant, Apr. 21, link now dead).
April 24 – Less suing = less suffering. New England Journal of Medicine study on crash injuries before and after Saskatchewan’s introduction of no-fault insurance finds “the elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury.” Not only did fewer people claim whiplash under the no-fault system, but no-fault’s much faster resolution of claims appeared to be strongly correlated with faster recovery, less intense pain and fewer depressive symptoms. (J. David Cassidy and other authors, “Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury”, New England Journal of Medicine, April 20). A related editorial in NEJM calls the findings “dramatic” and adds: “An obvious concern is whether this change simply forced severely injured patients to suffer in silence without appropriate compensation for ongoing impairments. Several considerations suggest that this explanation is unlikely.” The medical harm done by the fault system, the editorialist proposes, is not so much in encouraging conscious malingering as in generating excessive medical attention and overly alarmist diagnoses that can become self-fulfilling. The editorial also cites studies from Australia and Lithuania suggesting that the legal environment has a profound impact on the amount of perceived pain and disability experienced by whiplash sufferers (“Pain and Public Policy“). Update: trial lawyers’ response (see June 26).
April 24 – Maryland: knowledge, notice not needed to sue landlords over lead. By a 4-to-3 margin, the Maryland Court of Appeals has ruled that apartment owners can be made to face personal-injury claims on behalf of children who ingest lead paint in their units regardless of whether the tenant ever complained about the paint or asked that it be corrected, and regardless of whether the owner knew there was a hazardous condition. The decision overruled a Baltimore Circuit Court jury decision and is expected to open the gates to more widespread legal action against building owners. (Jim Haner, “Landlords can be liable, appellate court rules”, Baltimore Sun, Apr. 21) (more on Maryland and on lead-paint litigation: see Mar. 15, Oct. 19 commentaries).
April 21-23 – The unconflicted Prof. Daynard. On January 8 of this year the British Medical Journal published an article entitled “Tobacco litigation worldwide” by Prof. Richard Daynard of Northeastern University School of Law and two co-authors (Clive Bates of Action on Smoking and Health in London, and Australian barrister Neil Francey). Prof. Daynard is by far reporters’ favorite academic to call when they’re looking for a quote supportive of lawsuits against cigarette makers, and his BMJ article is very much in line with the drift of his previously voiced opinions: it praises such lawsuits as a “productive and promising strategy” for public health, and deplores as “unfortunate” the disapproving attitude toward such lawsuits taken by British courts. So far, so routine. But then at the end of the article appears the following notice: “Competing interests: None declared.”
No competing interests declared? Not any?
Daynard directs the Tobacco Control Resource Center & Tobacco Products Liability Project, and from the way he’s been described in countless press clips over the years (samples: coverage originating in the Washington Post, L. A. Times, AP), you might conclude that he’s contented himself with rendering whatever assistance he can to such suits as a kind of cheerleader from the sidelines, with nothing at stake beyond ideological zeal. So it might have come as a distinct surprise when it was reported in late 1998 that for some time he’d been (in his own view) the owner of an actual contingency share in moneys to be legally extracted from tobacco companies. In December of that year, arbitrators awarded a staggering $8.2 billion in fees to the small band of plaintiff’s attorneys who represented the states of Mississippi, Florida and Texas in the tobacco-Medicaid litigation. At this point we turn the narration over to the National Law Journal: “Richard A. Daynard, the Northeastern University School of Law professor who is a veteran anti-tobacco activist, asked arbitrators for fees for his work on the Florida case, represented by former brother-in-law David Boies, of Armonk, N.Y.’s Boies & Schiller L.L.P. [later famed as the Clinton Justice Department's lawyer in the Microsoft case -- ed.] The arbitrators ruled that they lacked jurisdiction over his claim, leaving him empty-handed. Professor Daynard also says Mr. [Richard] Scruggs promised him 5% of the fees earned by his firm and by the Charleston, S.C., firm Ness Motley Loadholt Richardson & Poole P.A. from the state lawsuits. [emphasis added] Taken together, the two firms represent the lion’s share of states that sued the tobacco industry. Mr. Scruggs said he never made any such promise.” (Bob Van Voris, “Tobacco Road Not Gold for All”, Dec. 28, 1998 – Jan. 4, 1999).
How much would 5 percent of the fees won by the Scruggs and Ness Motley firms amount to? Last year George estimated that the Scruggs firm was going to reap more than $1 billion from its state tobacco representation (see Aug. 21 commentary), and last fall the Dallas Morning News estimated that the Ness Motley firm was going to bag more than $3 billion (see Nov. 1 commentary). If both those estimates were borne out, the share that Prof. Daynard claimed had been privately promised to him might be reckoned at 0.05 x $4 billion, or $200 million — relying as we must on back-of-the-envelope calculations, since far less about this whole topic is a matter of public record than one would like.
Even today, after such eye-openers, most media reports go right on characterizing Prof. Daynard using such anodyne formulas as “head of an anti-tobacco clearinghouse” (AP), “director of a group that encourages lawsuits against tobacco companies” (AP again), and head of a “pressure group” (Sydney Morning Herald). Yet while relaxed standards may prevail on such matters in everyday reporting, medical journals are supposed to be different — a whole lot different. BMJ‘s policy on competing interests reaches back to require disclosure of financial entanglements at any point extending back over five years. Indeed, in recent years the once cozy world of medical journals has been convulsed by a series of controversies over whether existing standards on the disclosure of competing interests have been too lax, as when researchers have been allowed to opine in journal pages about the efficacy of drug compounds without revealing pecuniary ties they might have to drugmaking firms (“Beyond conflict of interest: Transparency is the key”, BMJ, August 1, 1998).
One of those who wondered whether BMJ‘s policy had been lived up to in the Daynard case was Martha Perske of Darien, Ct., who wrote editor Richard Smith in January to call some of the pertinent facts to his attention and ask whether a clarification would be forthcoming in the journal’s pages. Ms. Perske informs this website that Dr. Smith wrote back agreeing that the question deserved to be looked into, and promised to get back to her. That was at the end of February; since then she says she’s heard nothing. Dr. Smith’s own August 1998 editorial on the subject states: “If we learn after publication that authors had competing interests that they did not disclose then we will tell readers.” Later developments: letters, Jan. 31 and Jun. 13, 2001; posts, Aug. 2 and Dec. 17, 2001 (following a persistent campaign by Ms. Perske, and more than a year and a half after the original article, BMJ finally in Oct. 2001 semi-discloses to readers Daynard’s ties to the litigation.) (DURABLE LINK)
April 21-23 – Overlawyered schools: three views. Your chances of being murdered in an American school are almost vanishingly small, but your chances of imagining yourself living through an Orwell novel during your time there are not so remote:
* Now that the White House has turned thumbs down on a “preposterous” plan to set aside a $50 million compensation fund for Columbine victims, a lawyer for survivors says, “We have no recourse but to file suit.” Vincent Carroll of Denver’s Rocky Mountain News reacts: “‘No recourse,’ he says, as if suing people who had nothing to do with the shootings were as unavoidable as breathing. Yet the attorneys’ offer to drop their litigation for a multimillion dollar fund does have the beneficial effect of eliminating all pretense of what the Columbine lawsuits will be about. Not some noble quest to uncover the truth, it turns out, but money. The fund proposal is the proof.” Much more worth reading here too (“Lawsuits Take Therapy’s Place”, April 16)
* Slashdot’s Jon Katz pays a visit to the Pinkerton Corp. to protest the new hotline it runs for North Carolina school-informants (see April 7-9 commentary) and learns “something I hadn’t quite grasped: the anonymous reporting culture is a growing business, now deeply entrenched in the United States, a result of the victimization movement and lawsuit epidemic rampant for nearly a generation. Encouraged by federal and local governments, and many corporate and educational institutions, hotlines operate all over the country to report date rape, sexual harassment, abuse, and other forms of brutality and insensitivity. … Pinkerton itself runs more than 800 such lines. It was inevitable, said Jim, that they would move into schools, and that Pinkerton would extend its security expertise and set them up. … I was transfixed by the idea of a democratic country whose response to social problems was to create an entire new tradition of informing.” (Jon Katz, “Showdown with the Pinkertons”, Slashdot.org, April 13)
* Meanwhile, school authorities run into obstacles in the form of numerous federal laws and court doctrines, notably the 1975 Individuals with Disabilities Education Act, when they try to discipline, suspend or transfer students who genuinely do misbehave in serious ways, according to the Manhattan Institute’s Kay Hymowitz (“Get the lawyers out of schools”, New York Daily News, Apr. 16).
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