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Navy sonar

Daily Roundup 2008-12-28

by SSFC on December 28, 2008

Daily Roundup sounds better than Microblog, if you ask me.

Tomorrow, I predict that somewhere, someone will be sued.

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The Navy wins…

by Walter Olson on November 12, 2008

…in the sonar-marine mammal litigation before the Supreme Court, which we’ve covered a lot over the years. (Althouse, WSJ law blog).

Plus, the ultimate in post titles for the case: “Habeas Porpoise“.

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October 9 roundup

by Walter Olson on October 9, 2008

  • Appeals court upholds Ted Roberts “sextortion” conviction [Bashman with lots of links, San Antonio Express-News]
  • Alito incredulous at FTC: you guys have failed to raise a peep about bogus tar & nicotine numbers for how long? [PoL]
  • Please, Mr. Pandit, do the country a favor and don’t litigate Citigroup’s rights to the utmost in the Wachovia-Wells Fargo affair [Jenkins, WSJ]
  • Docblogger Westby Fisher, hit with expensive subpoena over contents of his comments section, wonders whether it’s worth it to go on blogging [Dr. Wes, earlier]
  • “Title IX and Athletics: A Primer”, critical study for Independent Women’s Forum [Kasic/Schuld, PDF; my two cents]
  • Case of whale-bothering Navy sonar, often covered in this space, argued before high court [FoxNews.com]
  • More on Kentucky’s efforts to seize Internet domain names of online gambling providers [WaPo, earlier]
  • Exposure to pigeon droppings at Iraq ammo warehouse doesn’t seem to have affected worker’s health, but it was disgusting and she’s filed a False Claims Act lawsuit against private contractor for big bucks [St. Petersburg Times, Patricia Howard, USA Environmental; but see comment taking issue]

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July 8 roundup

by Walter Olson on July 8, 2008

  • Business groups have signed off on dreadful ADA Restoration Act aimed at expanding disabled-rights lawsuits, reversing high court decisions that had moderated the law [WSJ; more here and here]
  • U.K. man to win damages from rail firms on claim that trauma of Paddington crash turned him into deranged killer [Times Online]
  • Patent cases taken on contingency lead to gigantic paydays for D.C.’s Dickstein Shapiro and Wiley Rein [Kim Eisler, Washingtonian; related last year at Eric Goldman's]
  • Fort Lauderdale injury lawyer disbarred after stealing $300K in client funds; per an ABA state-by-state listing, Florida has not enacted payee notification to help prevent/detect such goings-on [Sun-Sentinel; more]
  • I’ll pay top dollar for that spot under the bridge: tech firms hope to outbid patent trolls for marginal inventor rights [ABA Journal]
  • Enviro-sympathetic analysis of Navy sonar case [Jamison Colburn, Dorf on Law, first and second posts via Adler @ Volokh]
  • Obama proposal for youth national service “voluntary”? Well, schools will lose funds if they fail to meet goals [Goldberg, LAT; bad link fixed now]
  • Not-so-independent sector: under pressure from Sacramento legislators (Feb. 6, PoL May 30), California foundations pledge to redirect millions toward minority causes [CRC]
  • James Lileks on lawyer-friendly Microsoft Minnesota settlement [four years ago on Overlawyered]

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June 30 roundup

by Walter Olson on June 30, 2008

  • To hold a party in the public parks of Bergenfield, N.J., you’ll need homeowner’s or renter’s insurance to throw on the line [Bergen Record]
  • More on suits against Victoria’s Secret over allegedly hazardous bras, thongs, and undergarments, including an aspiring class action over contact rashes [Heller/On Point News]
  • Supreme Court will review Navy sonar controversy, which we’ve long covered in this space [Adler @ Volokh]
  • Hope of legalized online gambling fades, and you can blame Republicans on Capitol Hill for that [Stuttaford, NRO "Corner"]
  • Disney said to be behind bad proposal to soak foreign tourists to fund visit-America promotions [Crooked Timber]
  • “Squishier than most”: Nocera on A.M.D.’s predatory-pricing antitrust suit against Intel [NYT]
  • Process serving company lied about delivering SEC witness subpoena and falsified later document, judge rules, awarding victim $3 million [Boston Globe]
  • Revisiting the false-accusation ordeal of Dr. Patrick Griffin, and how it relates to pressure to have needless chaperones at medical procedures [Buckeye Surgeon, Dorothy Rabinowitz Pulitzer piece]
  • Overlawyered turns nine years old tomorrow (more). Commenters: how long have you been reading the site? Any of you go back to its first year?

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The Wall Street Journal’s editorialists weigh in on a story we’ve been covering for a long time.

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March 4 roundup

by Walter Olson on March 4, 2008

  • Judge allows lawsuit to go forward as class action claiming consumers defrauded because gasoline expands in summer heat and so there’s less in a “gallon” [KC Star, TodaysTrucking.com; earlier at PoL]
  • Online speech: when a lawprof says it silences someone not to let them sue for defamation, it’s time to check definitions [Reynolds, Bainbridge, Volokh]
  • Should a law school invite Lerach of all people to teach legal ethics? [Massey/Faculty Lounge; earlier] Plus: Congress should investigate how widespread Lerach-style abuses were at other law firms [Columbus Dispatch editorial]
  • Usually no one gets hurt when a physician dodges having to deal with a litigious patient, but then there are those emergencies [Brain Blogger]
  • A lesson for Canada: judged by results in places like Kansas, the American approach to hate speech (i.e., not banning it) seems to work pretty well [Gardner/Ottawa Citizen]
  • “Way way too egocentric”: a marketing expert’s critique of injury law firm websites [Rotbart/LFOMA via ABA Journal]
  • More students are winding up in court after parodying their teachers on the Internet [Christian Science Monitor]
  • Money in the air? It happens the quiet little Alaskan Native village suing over global warming is being represented by some lawyers involved in the great tobacco heist [NY Times]
  • Ninth Circuit panel hands Navy partial defeat in enviro whale sonar suit; ditto federal court in Hawaii [Examiner; earlier]
  • Le Canard Noir “Quackometer” flays pseudo-science, some of its targets complain to ISP which then yanks the site: “We do not wish to be in a position where we could be taken to court” [Orac; earlier]
  • Hans Bader guestblogged at Point of Law last week, on such subjects as: courts that decide punishment before damages; presumed guilty of child abuse? inconsistent straight/gay treatment in sexual harassment law; and signs that today’s Supreme Court doesn’t exactly show a pro-business bias in discrimination cases.

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February 6 roundup

by Walter Olson on February 6, 2008

  • Calling it “oppressive”, committee chair in Mississippi legislature vows to defeat proposal to ban restaurants from serving obese patrons [AP/Picayune-Item; earlier]
  • Latest in whales vs. sub sonar: judge deep-sixes Bush’s attempt to exempt Navy from rules against bothering marine mammals [CNN; earlier]
  • Much-criticized opener of ABC’s new series Eli Stone aired last Thursday, and Orac takes a scalpel to the vaccine-scare script [Respectful Insolence, which also covers new autism studies]
  • Scary proposal approved by California assembly would strong-arm larger private foundations — and businesses that deal with them — into “diversity” numbers game [Lehrer/Hicks @ L.A. Times]
  • New Dutch study finds thin people and nonsmokers cost health system more in long run than obese and smokers — theories behind Medicaid-recoupment litigation are looking more fraudulent every day, aren’t they? [AP]
  • Late, but worth noting: blogger nails John Edwards’s demagoguery on Nataline Sarkisyan case [Matthew Holt @ Spot-On, via KevinMD; more here, here, and from Ted here]
  • Puff piece on food-poisoning lawyer William Marler [AP/KOMO]
  • Ready, set, all take offense: Sen. McCain likes to tell lawyer jokes [WSJ law blog]
  • In suit charging UFCW with “racketeering”, Smithfield cites as an underlying offense union’s having lobbied city councils to pass resolutions condemning the meatpacker; company has hired Prof. G. Robert Blakey, who denies the RICO law he drafted is a menace to liberty [Liptak, NYT; some earlier parallels in federal tobacco suit]
  • Golden age of comic books was 1930s-1950s, but golden age of comic book litigation is now [NLJ]
  • New at Point of Law: Hillary’s “disastrous” mortgage scheme; Qualcomm sanctions ruling could curb discovery abuse; if Mel Weiss has been kind to you, why drop him down memory hole?; new academic theory on uniformity of contingency fees; the trouble with patenting tax avoidance strategies; and much more [visit][bumped Wed. a.m.]

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Earlier:

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest.

A commenter asked why Bush had the authority to do this. President Bush’s order is on-line. The claimed authority is based on 16 U.S.C. § 1456(c)(1)(B), which reads in relevant part:

After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with [the Coastal Zone Management Act], and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States.

The claim by the NRDC that the president’s action is “an attack on the rule of law” and “flouting the will of Congress” is thus invalid: Congress explicitly reserved to the president the power to override a court decision finding a federal agency in violation of the Coastal Zone Management Act by exempting the agency from its requirements. The case has been remanded to district court, but whether it is sound policy to value military convenience over whales is now a political question that will now be resolved by Congress and the President, with nothing more for the court to decide, as the court does not have the authority to second-guess the president’s decision whether something is in the “paramount interest of the United States.”

(Separately, the Navy complied with the National Environmental Protection Act when the Council for Environmental Quality issued a letter (151-page PDF, but pages 3-4 are the relevant ones for the lay curious) under 40 C.F.R. § 1506.11; this will likely get litigated by NRDC, as who better to determine the military needs of the United States than a private litigant and a federal judge?)

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After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest. (Pauline Jelinek, AP/Google, Jan. 16). Earlier coverage here. More: NYTimes.

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December 3 roundup

by Walter Olson on December 3, 2007

  • Drunk driving by St. Louis Blues hockey player Rob Ramage killed his passenger in a Toronto crash, and now Missouri verdict puts car rental company on hook for $9.5 million [Post-Dispatch]
  • Consumers trust lawyer ads in phone book, or at least so say the Yellow Pages people [WV Record]
  • Latest flip in marine-mammal litigation: Ninth Circuit orders curbs on Navy’s sub-hunting sonar [L.A. Times; earlier coverage]
  • More on colorful Judith Regan suit against News Corp. [Carr, NYT]
  • Lesson for law-firm “foreclosure mills”: don’t file the action before your client actually acquires the instrument being sued on [ABA Journal]
  • John Fund on Salvation Army and English in the workplace litigation [WSJ/OpinionJournal; earlier]
  • Comstock Act for the web is one of departed Rep. Hyde’s less happy legacies [McCullagh, CNet]
  • A view from Boston on Lone Star State med-mal reforms [Globe]
  • Shaker abstinence, cont’d: FDA mulls petition to crack down on salt in foods, and AMA has joined busybody brigade [L.A. Times; earlier, see also]
  • Texas tort tycoon John O’Quinn probably isn’t winning prizes these days from historic preservationists [ABA Journal]
  • Run for your lives! Toxic chocolate! [six years ago on Overlawyered]

October 13 roundup

by Ted Frank on October 13, 2007

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Updates – August 8

by David Nieporent on August 8, 2007

1. Yet another Roy Pearson update: the Washington Post, confirming a previous rumor, reports that he’s closer to losing his job. The Commission on Selection and Tenure of Administrative Law Judges (CSTALJ?) has voted to start the process of terminating him, by sending him a letter notifying him that he may not be reappointed to his job. Of course, the procedure alone makes the story a perfect fit for Overlawyered. Pearson can’t just be fired; that would be too easy. First, his boss had to make a formal recommendation. Then, the Commission had to decide to send that letter. And now?

Pearson is not out of work yet. The letter is a key step, though, alerting him that his reappointment is in jeopardy. He has 15 days to file a rebuttal and could push for reappointment by appearing before the commission at its next meeting in September.

The wonders of public employment. And then if he’s turned down, of course, he can sue!

Apparently trying to destroy a business by using the legal system to extort millions from the owners isn’t his big sin; his big sin is being rude to his boss:

Concerns about Pearson’s temperament as an administrative law judge preceded the publicity about the lawsuit this spring. The letter from the commission focuses on those concerns, addressing the lawsuit only briefly.

In e-mails sent to his fellow judges and cited in the letter, Pearson’s contempt for Chief Administrative Law Judge Tyrone T. Butler was evident. In one of the missives, he spoke of protecting himself from any attempt by Butler “to knife” him. In another, he questioned Butler’s competence and integrity.

Incidentally, he was serving a two year term, but if he wins reappointment, it will be for a ten year term.

2. Updating a story from Mar. 25, a federal judge has banned the navy from using sonar in training exercises:

Cooper said it was never easy to balance the interests of wildlife with those of national security. But in this case, she said, environmental lawyers have made a persuasive case that the potential harm to whales and other marine life outweighs any harm to the Navy while the court case proceeds.

Because, clearly, a bunch of lawyers are in the best position to design United States naval strategy.

(Other whale-sonar lawsuit coverage: May 17, Jul. 2006)

3. Remember the Kentucky Fen-Phen scandal? The one in which the class action attorneys were accused of misplacing $60 million of their clients’ money into their own pockets? (We’ve covered it May 20 and earlier) Well, a federal judge has now ruled that they need to repay $62.1 million to their clients. So far. Still to come: a ruling on punitive damages, a criminal trial, and the suit against Cincinnati attorney Stan Chesley, who’s accused of the same wrongdoing. (AP/Forbes)

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When Whale It End?

by David Nieporent on May 17, 2007

Environmental groups keep suing the United States Navy (See: Oct. 2004, Jul. 2006, and Mar. 2006) over its use of sonar, on the speculative theory that sonar hurts whales. Now they’re at it again, filing a lawsuit yesterday in federal court in Hawaii. This time it’s Earthjustice, suing on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA, the Center for Biological Diversity, and the Surfrider Foundation, trying to stop naval exercises off the coast of Hawaii. (PDF copy of complaint.)

Regardless of what one thinks of the merits of using sonar or privileging whales over national security, it’s absurd that federal judges — experts, we think, neither in marine biology nor submarine warfare — should be the ones deciding these policy questions. But it’s more absurd that these issues get to be relitigated over and over and over again. Of course environmental groups are the ones filing these repeated lawsuits, but in the big picture, the blame for this situation should be laid at the feet of Congress, which passes vague environmental laws which create broad standing allowing infinite numbers of random bystanders to sue without having to suffer tangible personal harm. (“I like looking at whales.”) And, perhaps worse than the vagueness of the laws is the fact that so many of these laws simply exist to create a zillion procedural hoops to jump through. (To provide an idea of these hoops, this complaint alone alleges the following causes of action:

  • Failure to provide public notice and an opportunity to comment in violation of Administrative Procedure Act and National Environmental Policy Act
  • Failure to prepare an Environmental Impact Statement in violation of Administrative Procedure Act and National Environmental Policy Act
  • Issuance of an inadequate Environmental Assessment in violation of Administrative Procedure Act and National Environmental Policy Act
  • Issuance of an inadequate Biological Opinion in violation of Administrative Procedure Act and Endangered Species Act
  • Failure to consult with the Hawaii State Coastal Zone Management Program For Undersea Warfare Exercises in violation of Administrative Procedure Act and Coastal Zone Management Act

Have your eyes glazed over yet?)

Whatever the appropriate policy balance to be struck here, it should probably be determined by Congress, and it should definitely be decided once and for all, rather than each and every time a submariner sneezes. If the Navy is to be required to use specific types of sonar or other equipment, or is to be denied permission to operate in certain locales, or whatever, then there ought to be a statute or regulation which spells these rules out explicitly, rather than allowing activist groups to rush to court on a weekly basis to get a judge to decide.

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“The [California] Coastal Commission and a national environmental group sued the Navy on Thursday over its refusal to take certain precautions to protect marine mammals during military training exercises off the coast of San Diego. While the commission’s legal action is a rarity, the Natural Resources Defense Council already had sued the Navy four times over its use of high-intensity sonar.” We last covered the controversy, and discussed the implications for national defense, Jul. 6, 2006. (Terry Rodgers, “Coastal Commission sues Navy over use of sonar”, San Diego Union-Tribune, Mar. 22; Alicia Chang, “Calif. Coast Panel Files Navy Sonar Suit”, AP/Washington Post, Mar. 23).

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Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (” Whale lawsuit forces Navy to change sonar plan”, AP/CNN, Jul. 5). “The Navy, in a statement after the ruling, said sonar was ‘the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,’ and that sonar operators needed training at sea ‘to protect our nation’s ships, shores and allies.’…. The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected.” (Tony Perry, “Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales”, Los Angeles Times, Jul. 4) “The Navy says it must practice hunting submarines near the Hawaiian islands because that’s the type of environment where it most likely will face an emerging threat of submarine warfare.” (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).

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There’ll always be a Ninth Circuit: “The world’s whales, porpoises and dolphins have no standing to sue President Bush over the U.S. Navy’s use of sonar equipment that harms marine mammals, a federal appeals court ruled yesterday. A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco, widely considered one of the most liberal and activist in the country, said it saw no reason why animals should not be allowed to sue [emphasis added] but said they had not yet been granted that right.” (“Court Says Whales, Dolphins Cannot Sue Bush”, Reuters/PlanetArk, Oct. 21). For more on giving animals standing to sue (= giving human lawyers standing to sue on their claimed behalf) see our animal rights archives and specifically May 14-15 and Apr. 29-30, 2002. More: Legal Reader has a link to the opinion (PDF), and Martin Grace also comments. More: Jeff Chorney, “Call Me Ishmael — and Call My Lawyer!”, The Recorder, Nov. 1.

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