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North Dakota

Would that other newspapers were as forthright as calling for an end to “policing for profit” as the Grand Forks Herald. North Dakota is already considered to be one of the states that does best at curbing the abuse of civil forfeiture; adjoining Minnesota does less well.

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Banking and finance roundup

by Walter Olson on October 22, 2013

  • “Dodd-Frank and The Regulatory Burden on Smaller Banks” [Todd Zywicki]
  • Side-stepping Morrison: way found for foreign-cubed claims to get into federal court? [D&O Diary]
  • “Alice in Wonderland Has Nothing on Section 518 of the New York General Business Law” [Eugene Volokh, swipe fees]
  • “Financial Reform in 12 Minutes” [John Cochrane]
  • Why the state-owned Bank of North Dakota isn’t a model for much of anything [Mark Calabria, New York Times "Room for Debate"]
  • Regulated lenders have many reasons to watch SCOTUS’s upcoming Mount Holly case on housing disparate impact [Kevin Funnell]
  • Cert petition: “Time to undo fraud-on-the-market presumption in securities class actions?” [Alison Frankel]

February 24 roundup

by Walter Olson on February 24, 2012

  • Melissa Kite, columnist with Britain’s Spectator, writes about her low-speed car crash and its aftermath [first, second, third, fourth]
  • NYT’s Nocera lauds Keystone pipeline, gets called “global warming denier” [NYTimes] More about foundations’ campaign to throttle Alberta tar sands [Coyote] Regulations mandating insurance “disclosures” provide another way for climate change activists to stir the pot [Insurance and Technology]
  • “Cop spends weeks to trick an 18-year-old into possession and sale of a gram of pot” [Frauenfelder, BB]
  • Federal Circuit model order, pilot program could show way to rein in patent e-discovery [Inside Counsel, Corporate Counsel] December Congressional hearing on discovery costs [Lawyers for Civil Justice]
  • Trial lawyer group working with Senate campaigns in North Dakota, Nevada, Wisconsin, Hawaii [Rob Port via LNL] President of Houston Trial Lawyers Association makes U.S. Senate bid [Chron]
  • Panel selection: “Jury strikes matter” [Ron Miller, Maryland Injury]
  • Law-world summaries/Seventeen syllables long/@legal_haiku (& for a similar treatment of high court cases, check out @SupremeHaiku)

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I was a guest on the North Dakota radio host’s program this morning, discussing federal policy toward childhood obesity. The other guest was Sonia Sekhar of the Center for American Progress (podcast; some background.

A North Dakota woman has pleaded guilty to child neglect and faces a possible five years in prison. But was the baby endangered? [AP/Austin American-Statesman via DRJ/Patterico] More: Deputy Headmistress (citing work of Thomas Hale); Wilfred Laurier University Press.

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Because the government, unlike your parents, has your best interests at heart.

P.S. And now the North Dakota Senate.

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Scruggs indictment, day two

by Walter Olson on November 30, 2007

David Rossmiller at Insurance Coverage Blog (who’s also a co-blogger of mine at Point of Law) continues to be the must-read source on this sensational story and its fast-breaking developments. He’s posted a PDF of Jones v. Scruggs, the lawsuit before Judge Lackey by lawyers who say they were cut out of Katrina fees. He also offers some answers to the question posed by a commenter at Above the Law, who asks, “What kind of cheap-o offers a $40,000 bribe to resolve a dispute over $26.5 million in attorneys fees?!” (To begin with, the ruling sought from Judge Lackey would not have disposed of the fee claim, just sent it to arbitration.) Martin Grace scents a ripe irony in the fee-dispute lawsuit, noting that it charged Scruggs with engaging in the same sorts of tactics toward fellow lawyers that he regularly accused insurers of practicing toward their insureds: “lowballing claims and producing fake documents in support of the claims.”

Jeralyn Merritt at TalkLeft writes that Judge Lackey “presumably [agreed] to tape his calls with the defendants. I suspect the F.B.I. also got a wiretap on Scruggs’ or his co-defendants’ phones, since there are several calls described in the Indictment that don’t involve Judge Lackey. Getting a wiretap on a law firm’s telephone is unusual — particularly due to the substantial and cumbersome minimization efforts required to ensure that calls of clients and lawyers unrelated to the criminal investigation are not overheard.” At the Jackson Clarion-Ledger, columnist Sid Salter has more on co-defendants Tim Balducci and Steve Patterson. A PDF of the indictment is here.

The internal cohesion of the anti-insurer lawyer consortium known as the Scruggs Katrina Group (SKG) appears at present to be under extreme pressure. Rossmiller reports that “policyholder lawyers in general tell me they are seething over Scruggs” and in particular that at least some lawyers who have been his allies “don’t want their names and their cases tarnished with the Scruggs name”. On Thursday an extraordinary contretemps developed in which SKG co-founder Don Barrett of Lexington, Miss. sent a letter (PDF) to a judge hearing Katrina cases against State Farm, suggesting that SKG was being re-formed without Scruggs and would take over the litigation with he, Barrett, as lead counsel (Lattman, WSJ). Within hours, Scruggs had dispatched a letter of his own (PDF) saying that Barrett was misinformed, that it was up to plaintiff families to decide who they wanted to represent them, and that many would undoubtedly wish to retain Scruggs (second posts at Lattman and Rossmiller). As of Thursday evening, the Scruggs Katrina Group website has prominently posted the Scruggs letter but not the Barrett one; one might speculate that if some sort of split within SKG is imminent, the website operation, at least, may have maintained loyalty to the Scruggs side.

On the statewide political repercussions, see Majority in Mississippi, Sid Salter at the Clarion-Ledger, and Chris Lawrence at Signifying Nothing, who also quotes Salter in a comment thread predicting: “The next sob story will be that Dickie’s indictment is about Bush administration persecution of trial lawyers and a rehash of Paul Minor’s problems.” Take it away, Adam Cohen and Scott Horton!

On political repercussions nationally, it didn’t take long for the Hillary Clinton campaign to cancel the Scruggs-hosted fundraiser that was to have been headlined by husband Bill Clinton next month (Associated Press, WSJ Washington Wire). The North Dakota political blog Say Anything thinks politicos in that state should return the (rather substantial) sums they have received from Scruggs and colleagues, but one may reasonably assume that such calls will be ignored, just as elected officials have been in no hurry to divest themselves of the booty collected from such figures as felon/mega-donor William Lerach.

Where are Scruggs’s admirers and defenders? One can only suppose that somber music is playing in the corridors at the business section of the New York Times, which has run one moistly admiring profile of the Mississippi attorney after another in the past couple of years. As of 3 p.m. Thursday, the Times’s very restrained story on the indictment was in a suitably inconspicuous position on the paper’s online business page — the 15th highest story in the left column, in fact. The story, by serial Scruggs profiler Joseph B. Treaster, quotes the relatively ambiguous line attributed to defendant Timothy Balducci — “All is done, all is handled and all went well.” — but omits the far more smoking-gunnish “We paid for this ruling; let’s be sure it says what we want it to say.” And things are anything but upbeat at Mother Jones, where Stephanie Mencimer concedes that she finds the indictment “pretty damning“.

More links: Paul Kiel, TPM Muckraker (indictment “devastating… it doesn’t look good for Scruggs”); Legal Schnauzer (defender of Paul Minor distinguishes the two cases); WSJ interview with Judge Lackey (sub-only) and editorial (free link), Rossmiller Friday morning post (certain details in indictment suggest that a conspiracy insider, possibly Balducci, may have cooperated with prosecutors)(& welcome Instapundit, Point of Law, TortsProf, Adler @ Volokh, Open Market, Y’allPolitics, Majority in Mississippi, Rossmiller readers).

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Now it’s California legislators: “California residents who sell goods on eBay could have to pay a $295 fee and be regulated in the same way as pawnbrokers under legislation designed to crack down on the sale of stolen property.” Opponents say the bill would drive out of business thousands of antique dealers and consignment shops, as well as eBay sellers and the dropoff shops and sellers’ agents that work with them. Pawnbrokers, who are pushing the legislation, say that state law already requires that sales of secondhand goods be reported to local law enforcement, but that the law has gone unenforced against everyone but themselves. In recent years influential Sacramento legislators, including Senate President Pro Tem John Burton (D-San Francisco), have unsuccessfully proposed measures to require secondhand sellers to report transactions to a state law enforcement database, which is the pawnbrokers’ key demand. (Greg Lucas, “Pawnbrokers try, try and try again”, San Francisco Chronicle, Feb. 25). We earlier discussed proposals for licensing of eBay sellers in Ohio (Mar. 21, 2005) and North Dakota (Oct. 13, 2005).

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First it was Ohio contemplating a requirement that people get an auctioneer’s license before selling goods on eBay (Mar. 21). Now it’s North Dakota, which is considering whether to force small consignment merchants like Mark Nichols to take instruction in talking rapidly and interpreting hand gestures before listing merchandise for others on the online service. (Dale Wetzel, “Internet sellers may need auctioneer license”, AP/Bismarck Tribune, Oct. 10).

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August 20 – On the diamond. “Every year, scores of softball leagues play nearly 200,000 organized games in New York City’s parks. Accountants, journalists, and actors have their own leagues, but few are as cutthroat and litigious as the Central Park Lawyers Softball League. …’There were many occasions where I found myself inundated with paperwork,’ [said a former Shea & Gould lawyer who used to serve as commissioner of the league], referring to the softball disputes he used to settle as commissioner. ‘People were filing briefs putting forth arguments, counter-arguments, and counter-counter arguments.’” (Colin Miner, “New Play at Home: ‘Call Me Safe — Or I’ll Sue You’ Lawyers Bunt, Steal, And Argue in Softball”, New York Sun, Aug. 12). (DURABLE LINK)

August 20 – Lord High Private Attorneys General. According to the Civil Justice Association of California, private lawyers in the Golden State have been sending demand letters en masse to small businesses alleging violations of state laws and demanding that attorneys’ fees be forked over as part of the resolution of the complaint. One such set of letters went out to Orange County auto repair shops accused of such misdeeds as failing to provide customers with written estimates; the law allows a private lawyer to bring an enforcement action in such a case even if he does not represent an actual customer of the shop. “Letters were sent to approximately 200 ethnic grocery and retail stores across the state of California in which they allegedly offered to sell or rent videos that violated the anti-pirating statute. According to the letter sent by the plaintiffs’ attorney, stores would be required to pay easily over ‘$10,000 plus restitution.’ The storeowner was then informed a few sentences later, by sending $2,000 ‘in the form of a bank draft or cashier check payable to Brar & Gamulin, LLP’ within 40 days, plus an agreement not to violate the statute again, the lawsuit would be settled.” (“Attorney General Urged to Investigate “Legal Shakedowns” Under State’s Unfair Competition Law”, Civil Justice Association of California, Jul. 11). (DURABLE LINK)

August 19 – “How to Spot a Personal Injury Mill”. In a personal injury mill, medical providers and attorneys conspire to provide unneeded medical services premised on the expectation of obtaining liability-driven compensation. QuackWatch offers eleven danger signs that in combination may indicate that a provider is operating as part of a mill. The exposure of knowing participants to fraud prosecutions is not the only reason for consumers to steer clear of such schemes: “False reports of medical diagnoses or loss of functionality can cause trouble for patients who later apply for a job, apply for insurance, or actually become disabled and apply for disability.” (Stephen Barrett, Charles Bender, and Frank P. Brennan, “Insurance Fraud: How to Spot a Personal Injury Mill”, QuackWatch). (DURABLE LINK)

August 19 – Anti-circumcision suit advances. Some opponents of infant male circumcision, not content with a gradual shift of opinion in their direction among American parents, now seek to enforce their preferences through litigation, even in the face of contrary parental wishes and continuing religious and customary sanction for the practice in many communities. “In July, North Dakota District Judge Cynthia Rothe-Seeger denied a motion for summary judgment by defendants in the Flatt v. Kantak circumcision case, and decided it will proceed to trial on February 3, 2003. The precedent setting decision confirms that a baby who is circumcised can [in this court, at least --ed.] sue his doctor when he reaches age of majority, even if there was parental consent for the circumcision, and even if the results are considered to be ‘normal.’” (“Circumcision case to proceed to trial”, Men’s News Daily, Aug. 1; see Feb. 28, 2001). (DURABLE LINK)

August 19 – Litigation good for the country? Law prof Carl T. Bogus, espousing a view that should win him some admirers among those who violently dislike the viewpoint of this page, has written a whole book entitled “Why Lawsuits Are Good for America.” He’s even dispatched a research assistant armed with a candy thermometer to prove that chain restaurants now furnish caffeinated take-out beverages at more suitably tepid temperatures than they used to, thanks to salutary fear of being hauled to court. But reviewer Michael McMenamin doesn’t find the resulting potion palatable (“Knave of torts”, Reason, Aug.). (DURABLE LINK)

August 16-18 – Wasn’t his fault for laying drunk under truck. West Virginia: “After a night of drinking, Dustin W. Bailey walked out of a Teays Valley bar, crossed the street and ended up underneath an idling tractor- trailer delivering supplies to a pizza restaurant. The truck killed him when the driver pulled forward. Now, nearly two years after the accident, Bailey’s mother … is suing the pizza restaurant, the truck’s driver, the truck’s owner and the bar’s owner because, she says, they all failed to take steps to keep her son alive.” Chief Deputy John Dailey of the sheriff’s department takes issue with the suit’s premises: “If anyone should be blamed for that death, it’s that guy who climbed under the truck.” (Toby Coleman, “Woman files suit over son’s death”, Charleston Daily Mail, Aug. 10). (DURABLE LINK)

August 16-18 – “Warning: …” “Do Not Read This Column While Water-Skiing. Do Not Set Fire To This Column In a Room Filled With Hydrogen”. As usual, one Dave Barry column is worth several treatises on product liability law (“Owners’ manual Step No. 1: Bang head against the wall”, Miami Herald, Jun. 30). (DURABLE LINK)

August 16-18 – “Accident claims salesman is sued over ‘fall’” “A door-to-door salesman for an accident claims firm is being sued after he allegedly fell on the six-year-old son of a potential client.” Salesman Jay Sims, representing a British firm that offers no-win, no-fee representation of injury claims, had been trying to persuade the Stanbury family of Long Eaton, Derbyshire to use the firm’s services. On departing the home he “began to play football with a group of children in the street” with resulting alleged injury to young Yohan Stanbury after which “the family decided to sue Mr Sims, using another no-win, no-fee accident claims firm.” The boy’s father “said he was taking action because Mr Sims’s company, the Accident Group, had refused to accept the incident even took place.” (Nick Britten, Daily Telegraph (U.K.), Aug. 15). (DURABLE LINK)

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March 19-20 – “Kava tea drinker alleges bias in FedEx firing”. Taufui Piutau of San Bruno, Calif., a native of Tonga, was pulled over by a California highway patrolman in 1999 and charged with driving while impaired. It turned out he’d downed dozens of cups of kava tea, a popular Pacific Islander beverage widely regarded as having relaxing medicinal effects. A jury last November deadlocked on whether to convict him and prosecutors decided to drop the case, but by then Federal Express, Piutau’s employer, had suspended him without pay from his driving job over the off-duty incident. Now he’s suing the company for — guess the theory — religious discrimination, saying enjoyment of the beverage is a custom of a religious nature. (Ann E. Marimow, San Jose Mercury-News, Mar. 14).

March 19-20 – Scientologists vs. Slashdot. “In the face of legal threats from the Church of Scientology, Slashdot pulled down an anonymous posting that quoted a copyrighted church tract, known as Operating Thetan, Section III (OT III). ‘It’s an open forum, but as of today it’s a little less open than it was yesterday,’ says Robin Miller, the editorial director of Slashdot’s parent, the Open Source Development Network. ‘And we’re not happy about that.’” (Roger Parloff, “Threat of Scientologists’ Legal Wrath Prompts Slashdot to Censor a Posting”, Inside.com, March 16; Slashdot thread; Church of Scientology; some of its critics (“Operation Clambake“); Declan McCullagh, “Xenu Do, But Not on Slashdot”, Wired News, Mar. 17).

March 19-20 – Why they seize. “Kansas law enforcement officials on Monday strongly opposed a reform forfeiture bill that would send money seized in drug cases to education. Currently, law enforcement agencies can keep most of the money once it is legally confiscated. Law enforcement officials told the House Judiciary Committee that if their agencies were not allowed to keep drug money, forfeitures could become extinct in Kansas”. Kind of confirms what critics have said about the motivations for forfeiture law, doesn’t it? (Karen Dillon, “Kansas law enforcement officials oppose reform forfeiture bill”, Kansas City Star, Mar. 12; see May 25, 2000).

March 19-20 – Microdonation update. Amazon’s new micropayment “Honor System” for small and nonprofit websites has had at least one big success so far, as you may have heard: Andrew Sullivan’s personal site has taken in an envy-inducing $6,000 from his fans. That’s way ahead of most other popular sites: for example, the well-thought-of ModernHumorist.com says that as of March 9 it had received $509.99 from 209 readers, according to its “Tip Jar” account. Reason editor-at-large Virginia Postrel writes that her weblog/commentary “The Scene” “is pulling in about 500 page views a day — the poor woman’s approximation of visitors — and in the last month has netted contributions of $457.38 via Amazon and, in the last week, $27.50 via PayPal.”

So how’re we doing at Overlawyered.com, comparatively? As of Sunday evening we’d taken in about $404.50, from sixty readers, for an average donation of about $6.50. That’s not shabby at all. But we do notice that our readers are showing a far lower rate of participation than Virginia’s: we’ve been getting around 3,500 page views per weekday lately, so if our readers were as generous as hers we’d have raised a kitty that was seven times as high instead of a little lower. Another way of looking at it is that although it takes many thousands of regular readers to get us up to that 3,500-page daily volume, only an average of two of those readers a day actually throw coins in the hat. (No wonder Amazon calls it the Honor System.) We’ve just installed, on our PayPage, a new feature where you can watch donations climb and see your own added to the total. Thanks (again) for your support!

March 16-18 – Coupon settlement? Pay the lawyers in coupons. In a “blistering” 27-page ruling, Broward County, Fla. circuit judge Robert Lance Andrews has slashed a $1.4 million class-action legal-fee request by the New York law firm Zwerling Schachter & Zwerling to about $294,000, and “ordered that a quarter of the fees be paid in $10 to $60 travel vouchers — the same vouchers awarded to the 80,000 plaintiffs in the suit”. The suit had accused Renaissance Cruises Inc. of padding port charges. “Too often, [Judge Andrews] wrote in the ruling, lawyers use class actions as cash cows that ultimately don’t yield much for plaintiffs. … ‘Essentially, these vouchers have no value whatsoever,’ said [Edwin H.] Moore, president and chief executive of the James Madison Institute, a Tallahassee, Fla., think tank. ‘It’s kind of absurd, taking a cruise for hundreds of dollars and getting $10 off.’”

The judge further accused the lawyers of engaging in “fuzzy math” and said they had piggybacked on enforcement efforts by the Florida Attorney General, who had investigated cruise lines’ practice of passing on “port charges” to vacationers greater than those actually incurred. “Andrews said he considered denying plaintiffs’ lawyers any legal fees, ‘on the basis of their blatant disregard of their ethical obligations to the class and to the court.’ In fact, before ruling on legal fees, Andrews rebuffed 13 law firms that claimed to have had a hand in the class action.” Zwerling Schachter says it expects to appeal. “(Tom Collins, “Florida Judge Slashes Fee Request, Blasts Attorneys Suing Cruise Lines”, Miami Daily Business Review, Mar. 15).

March 16-18 – Compulsive grooming as protected disability. Last month a three-judge panel of the Ninth Circuit U.S. Court of Appeals, reversing a lower court, ruled that medical transcriber Carolyn Humphrey can proceed with her claim that her firing by a Modesto, Calif. hospital was unlawful. Humphrey, “an otherwise excellent employee, compiled a history of tardiness and absenteeism because of grooming and dressing rituals that took hours, sometimes all day. … [Her suit claims] the obsessive trait that drove her relentless primping had not been accommodated, as required by the Americans With Disabilities Act.” (Denny Walsh, “Compulsive grooming a true disability? Perhaps”, Sacramento Bee, March 14).

March 16-18 – Wife: hubby’s tooth discovery deprived me of companionship. Ronald Cheeley of Alamance County, N.C. “is suing Hardee’s, claiming he found a tooth in a biscuit from a one of the chain’s Burlington restaurants. … The lawsuit does not say whether Cheeley actually put the tooth in his mouth. … Cheeley’s wife, Queen Williamson Cheeley, is also named as a plaintiff in the lawsuit, which claims the incident has deprived her of companionship.” (Bill Cresenzo, “Tooth found: Man sues Hardee’s”, Burlington (N.C.) Times-News, Feb. 15) (via Obscure Store)

March 15 – Reclaiming the tobacco loot. If the Bush administration has its way, the politically connected lawyers who helped themselves to billions for representing the states in the great tobacco shakedown may soon have to turn a large share of that booty over to their clients, the fifty states (see our earlier coverage of the fees, the settlement and the lawyers). “President Bush proposed during the campaign to apply to lawyers in mass tort cases the Internal Revenue Code provisions that govern fiduciary breaches of duty by pension fund trustees, foundation executives, and employees of 501(c)(3) non-profits. Under this so-called Jim and Tammy Faye Bakker provision of the 1996 Taxpayer Bill of Rights, overreaching fiduciaries have the ‘choice’ of refunding their excess payments or paying a federal tax of $2 for every dollar they keep.” Contrary to some early reports that President Bush had dropped this plan, “[p]age 80 of the president’s budget contains this terse and, to taxpayers, cheering sentence: ‘The budget also assumes additional public health resources for the States from the President’s proposal to extend fiduciary responsibilities to the representatives of States in tobacco lawsuits.’” (Michael Horowitz, “Can Tort Law Be Ethical?”, Weekly Standard, Mar. 19; Ramesh Ponnuru, “A Good Tobacco Tax”, National Review Online, Mar. 14). And hurrah for the U.S. Chamber of Commerce, which has just filed Freedom of Information Act requests to obtain information from 21 states about the magnitude of fees paid to the tobacco lawyers, which it says may exceed $100,000 an hour (U.S. Chamber release; the Chamber’s Institute for Legal Reform; “Group Targets ‘Outrageous’ Legal Fees in Tobacco Case”, Yahoo/Reuters, Mar. 14).

March 15 – No more Indian team names? “The U.S. Commission on Civil Rights will vote next month on a statement that would condemn sports teams or mascots named after American Indians as violations of the 1964 Civil Rights Act. If adopted and widely accepted, the statement could eventually lead to a cutoff in federal funding for schools that cling to traditions like the University of North Dakota Fighting Sioux or the University of Illinois’ mascot Chief Illiniwek.” (Catherine Donaldson-Evans, “Civil Rights Commission Considers Condemning Sports Teams Named After American Indians”, FoxNews.com, Mar. 13 (related story and links, right column, includes this page); John J. Miller & Ramesh Ponnuru, “Home of the Braves”, National Review Online, March 9) (& see letter to the editor, April 16).

March 13-14 – Hypnotist sued by entranced spectator. During a show by mesmerist Travis Fox at the Puyallup Fair last September, fairgoer Joshua Harris of Tacoma agreed to participate but “felt such a threat from a space alien mask that he broke his hand trying to ward off the extra-terrestrial. And now he’s suing. … ‘If people get up there and participate, you have to make sure it’s safe,’ said Harris’ attorney, George Christnacht.” (Karen Hucks, “Entertainment hypnotist being sued for negligence”, Tacoma News-Tribune, March 8).

March 13-14 – Judge throws out Hollywood- violence suit. Citing the First Amendment’s guarantee of free speech, Louisiana state judge Bob Morrison on Monday “threw out a lawsuit against director Oliver Stone that claimed his movie ‘Natural Born Killers’ led to a young couple’s bloody crime spree.” (“Judge Throws Out Movie Lawsuit”, AP/FindLaw, March 12). “It’s depressing that a suit that should have been thrown out on the first pass could result in such a waste of time, energy and money. We’ve created a new legal hell where everyone is entitled and no one is responsible,” said Stone (“Notable Quotes”, Reuters/Yahoo, March 13).

March 13-14 – “Nursing homes a gold mine for lawyers”. Week-long series in the Orlando Sentinel and South Florida Sun-Sentinel (series overview) examines mounting crisis in Florida nursing homes, where lawsuits have multiplied several-fold in recent years as lawyers have learned to deploy a liberal “Resident’s Rights” law that allows them to recover damages without proving negligence. Even the Lutheran Haven home, which hasn’t been sued in its 52 years, faces a liability insurance bill of $175,690 a year. (Diane C. Lade, “Money remains root of nursing homes’ woes”, March 6; Bob LaMendola and Greg Groeller, “Nursing homes a gold mine for lawyers”, March 4; Jeff Kunerth, “Even never-sued home feels insurance’s squeeze”, March 5). “Nursing homes are often in a Catch-22 when it comes to restraining patients. One tenet of the state’s nursing-home residents’ bill of rights guarantees residents the right to safety. Another tenet guarantees their freedom from ‘physical and chemical restraints.’” (Diane C. Lade and Greg Groeller, “Bedsores, falls make homes ripe for suing”, March 4; Jeff Kunerth, “Broken bones ended in lawsuit”, March 6; Jeff Kunerth, “A rarity: Lake lawsuit went to trial”, March 4).

As frequently happens with these newspaper group efforts, the tone is weirdly inconsistent, with one of the lead reporters buying much of the pro-litigation side of the story (Greg Groeller, “Elderly care put to test”, March 4) while many of the other installments in the series tend to document the need for curbs on suing (“Collapse of care” (editorial), March 11). Both nursing home operators and trial lawyers have been pouring money into Tallahassee, where lawmakers are considering such curbs. Among the attorneys opening their wallets is “Jim Wilkes, a sharp and politically connected nursing-home litigator from Tampa who said he probably gave at least $1 million of his own money to campaigns in the last election cycle. ‘If you took the national and state money that my firm has contributed to campaigns, I could have probably retired on the money,” Wilkes said.” Mark Hollis, “Nursing homes, lawyers plan fight in capital”, March 6). Six of eight publicly held for-profit home operators are now operating in bankruptcy, and a plaintiff’s lawyer concedes the possibility that “[t]he entire industry would end up being regulated through the bankruptcy courts.” (Lade, “Money remains”, March 6). Update: the National Law Journal‘s Margaret Cronin Fisk reports on the trend (“Juries Treat Nursing Home Industry With Multimillion Dollar Verdicts”, Apr. 23): “In the past 12 months, there have been verdicts of $312 million and $82 million in Texas, $5 million in California, $20 million in Florida and $3 million in Arkansas. … One Florida-based law firm, Tampa’s Wilkes & McHugh, has about 1,000 cases pending.”

March 12 – We have some to send you. The level of litigation in Japan is still minuscule by U.S. standards, but it has doubled over the past decade, and rural areas experience a perceived lawyer shortage. “Japan has set a goal of reaching France’s level of one lawyer per 1,900 people. That compares with its current level of about one per 7,155 people and America’s world-beating one lawyer per 295 people.” “One unfortunate side effect [of the obstacles to litigation in Japan] has been a social dependence on organized crime for help in settling thorny disputes,” according to the head of the American Chamber of Commerce in the island country. (Mark Magnier, “No Joke: Send More Lawyers”, Los Angeles Times, Mar. 9).

March 12 – More Tourette’s discrimination suits. John Miller is suing Gold’s Gym in Totowa, N.J., saying it terminated his membership because of the involuntary tics caused by his Tourette’s Syndrome. ‘I want these people to realize . . . I guess I do want them to be hurt a little — to realize what they’ve done to me,” he said. The Bergen Record also reports that in October, “a jury in New York City awarded $750,000 to the Metropolitan Museum of Art’s former assistant banquet manager after finding the museum’s food contractor had fired him illegally because of the disorder.” (Jennifer V. Hughes, Bergen County Record, Feb. 9) (earlier Tourette’s cases: August 21 and July 26, 2000).

March 12 – Welcome National Review Online readers. The pseudonymous author, described as an officer of the Los Angeles Police Department, writes: “The Soviet menace may have faded into the history of another era, but the American legal profession, with its standing army of some half-million attorneys, presents as grave a threat to western civilization as has ever existed. For proof of this, I recommend to the strong of heart a visit to Overlawyered.com, a website that will at once amuse, bemuse, and horrify.” We’re headed toward a banner day for traffic, testimony to NR Online‘s popularity. (“Jack Dunphy”, “Disorder in the Court”, March 12).


April 20 – Not tonight, gotta coach my kids. “Children as young as 7 and 9 were coached to fake injuries in a car insurance fraud case in western Arkansas, a lawyer for the state Insurance Department said.” Eleven people in the Fort Smith area were charged with setting up liability claims by staging accidents so as to make it appear that other drivers were at fault. “Clay Simpson, an attorney for the department, said some used children as passengers and trained them to act injured after the staged crashes”. One of the adults evidently decided to add realism, according to Simpson, and “physically struck one of the small children in the head so he would have an injury … and be able to go to the hospital.” (Arkansas Insurance Department press release, April 13; Chuck Bartels, “Eleven Charged for Staging Crashes”, AP/Excite, Apr. 13; “The youngest grifters”, AP/ABC News, Apr. 14).

April 20 – Web-advertisers’ apocalypse? Most noteworthy tidbit in WSJ news story a while back on wave of privacy suits against cookie-deploying Web ad firms, quoting Fordham Law’s Joel Reidenberg, a specialist on the topic: “Even advertisers could have some liability to the extent they benefited from and participated in the DoubleClick network. ‘Anybody in the chain of information who participated in the passing off of information to others would be potential targets,’ Mr. Reidenberg says.” (Richard B. Schmitt, “Online Privacy: Alleged Abuses Shape New Law”, Wall Street Journal, Feb. 29, 2000, fee-based archive).

April 20 – Arm yourself for managed care debate. How much higher will medical costs go when Congress makes it easier to sue, and how many more families will get priced out of health insurance? How coherently will a cost control system work once it’s geared to whichever jury gets angriest? Resources: Krishna Kundu, “The Norwood-Dingell Liability Bill: Health Insurance at Risk”, Employment Policy Foundation cost study, Mar. 24; “The Problems with Punitive Damages in Lawsuits against Managed-Care Organizations”, New England Journal of Medicine, Jan. 27; Health Benefits Coalition.

April 20 – Letourneau scandal: now where’s my million? “The teen-ager who fathered two children by his former grade school teacher, Mary Kay Letourneau, is seeking damages from a suburban [Seattle] municipality and school district. Vili Fualaau, now 16, and his mother, Soona, are seeking damages of at least $1 million for emotional suffering, lost income and the cost of rearing the girls, who are in the care of the boy’s mother.” The suit charges school officials with failing to protect the boy from the amorous advances of his teacher, 38, who’s now serving a 7 1/2 year sentence for her involvement with him. “The teen, his mother and Letourneau previously have said in television appearances and in a book that the relationship was consensual.” (“Teen-age boy seeks damages in Washington state teacher sex case”, AP/CNN, Apr. 14).

April 19 – All dressed up. James and Cynthia Harnage of Norwich, Ct. are seeking $21 million in damages from Publisher’s Clearing House, the magazine sweepstakes company, which they say in or around last December sent them repeated notices marked “Document of Title” and “official correspondence from the Publisher’s Clearing House board of judges” with messages such as “Congratulations! Your recent entry was a winner! And Approved for $21 Million!” The Harnages say they came to be convinced that they would receive the grand prize in person on Super Bowl Sunday and even got all dressed up to wait for the knock on the door, but it never came. According to a local paper, Mr. Harnage describes himself as devastated by the letdown; the lawsuit alleges fraud and breach of contract and says the couple suffered emotional distress. (“Disappointed couple sues Publisher’s Clearing House”, AP/Newsday, Apr. 14; “Couple sues Publisher’s Clearing House”, New London (Ct.) Day, Apr. 16).

April 19 – From the incivility frontier. Richard F. Ziegler, writing in the Feb. 7 National Law Journal: “Until recently, the classic example of incivility in litigation was famed Texas lawyer Joe Jamail’s defense of a deposition witness in the 1993 Paramount-QVC Network-Viacom takeover battle. According to the excerpts of the deposition transcript included in an addendum to an opinion by the Delaware Supreme Court, Jamail told the examining lawyer that he could ‘gag a maggot off a meat wagon’ and made other vituperative remarks that the Delaware court labeled ‘extraordinarily rude, uncivil and vulgar.’ . … Mr. Jamail’s ‘maggot’ rhetoric has now been displaced by a new classic in incivility: a pre-suit letter sent by a New York litigator that threatened the prospective defendant with the ‘legal equivalent of a proctology exam’ if the plaintiff’s claim weren’t satisfied without litigation. That wording, plus some other aggressive tactics by the same lawyer, ended up costing the would-be proctologist a $50,000 sanction (now on appeal).” The sanctions were handed down last November by federal judge Denny Chin against litigator Judd Burstein, in a case called Revson v. Cinque & Cinque P.C. However, prospective targets of legal intimidation should not get their hopes up too high: a few years ago the Second Circuit, which includes New York, “sustained as proper a pre-suit letter that sought to encourage settlement by threatening the opposing party with harmful publicity.” (Richard F. Ziegler, “Litigation: The Price of Incivility”, National Law Journal, Feb. 7).

April 19 – Microsoft case: commentators. A gamut of views, ranging from the moderately appalled to the fully appalled:

* Robert Samuelson on the clash between the living thing that is the New Economy and the seemingly robotic lurch of antitrust enforcement (“Puzzles of the New Economy”, Newsweek, April 17);

* Tom Watson, though declaring himself “no cyberlibertarian,” laments that the suit “has permanently created a Federal presence in the development of networked software in the United States. And that means, of course, lots of lawyers getting lots of hourly fees to litigate in an area they clearly don’t understand.” (“Justice Department Saves the Internet, Film at 11″, AtNewYork, April 6 — via Q Queso);

* Michael Kinsley has fun with a New York Times reporter on the question of whether it was shocking for Bill Gates to try to fend off Justice Department assault by — eeeuw! — hiring lobbyists (“The Timesman With a Microchip on His Shoulder”, Slate, April 17).

April 19 – $60,000 battle over $5 t-shirt. In Westerly, Rhode Island, court wrangling has now gone on for two years over whether then-sophomore Robert Parker’s heavy-metal t-shirt (“White Zombie”, number 666 on back) was unnecessarily disruptive and thus in violation of the school dress code. (Michael Mello, “RI ‘Satanic’ T-Shirt Case Continues”, AP/Washington Post, Apr. 10). Update Aug. 29-30: case has settled.

April 18 – Brockovich story, cont’d: the judges’ cruise. Picking up where we left off yesterday with more highlights from Kathleen Sharp’s investigation for Salon:

* Not long after the case settled with its lucrative $133 million lawyers’ fee, the two L.A. lawyers who’d teamed with the Masry/Brockovich firm to handle the PG&E case, Thomas Girardi of Girardi & Keese in Los Angeles, and Walter Lack of Engstrom, Lipscomb & Lack in Century City, “organized a weeklong Mediterranean cruise for 90 people, including 11 public and private judges. The three PG&E arbitrators were among those invited,” reports Sharp. “One judge called it ‘absolutely incredible.’ A luxury yacht floated on azure waters; tuxedoed butlers balanced silver trays of free champagne; young bikini-clad ladies frolicked on the sun-splashed deck, according to retired Judge [William] Schoettler, who was a guest. As another bare-chested judge remarked at the time: ‘This gives decadence a bad name.’”

“The cruise was organized under the banner of Girardi and Lack’s Foundation for the Enrichment of the Law. Girardi told the Los Angeles Times that the cruise included ‘an extensive professional program,’” which would make it allowable under judicial rules, but retired judge Schoettler can’t recall anyone he knew actually attending a lecture. “The cost was about $3,000 per person, about half the normal rate; Girardi told the Times he and Lack had received a discount for chartering the entire Cunard cruise ship. After some confusion, all of the judges on the trip paid their way, save two unrelated to the PG&E case who were invited to lecture.”

* Some of the judges in the arbitration had an unusually friendly relationship with Girardi: one had officiated at his second wedding, Schoettler had flown in his Gulfstream to attend the World Series, and so forth. “‘I became aware that I should absolutely stay away from [arbitration firm] JAMS or its retired judges when it came to any dealing with Tom Girardi,’ said Laurence Janssen, a partner in the Los Angeles office of Washington law firm Steptoe & Johnson. … ‘The common lore imparted to me was that it would be crazy to get in front of any JAMS arbitration with Girardi.’” The outcry over the post-Hinkley-case cruise helped spur a California Supreme Court inquiry into the arbitration system. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

Incredibly — given all the above — some in the White House and in the Al Gore campaign are hoping to ride the success of the celluloid “Erin Brockovich” into a chance to seize the initiative on behalf of the wonders of the beneficent tort system and the wickedness of the mean old tort reformers who’d like it to be regulated and supervised more closely. That came across in both a relatively light column by the New York Times‘s Maureen Dowd (“The Erin Factor”, April 5) and a thuddingly heavy one by Salon‘s Joe Conason, whose writings often sum up the theme-of-the-week of the Clinton/Gore attack machine (“Lessons from ‘Erin Brockovich’”, March 28). Given the revelations in Kathleen Sharp’s article — which, if there’s any justice, should be in contention for the next round of journalistic prizes — it now may be time for Gore’s backers to hope that public opinion doesn’t start focusing on the Hinkley case. Also recommended: Dennis Byrne, writing in the Chicago Sun-Times that “as I sat through the movie with a reporter’s skepticism, I was uneasy about how one-sided it was,” and offering a list of “movies you’ll never see come out of Hollywood”, (“A feel-good story with a bad taste”, April 12, link now dead); and Michelle Malkin, “The truth about Erin Brockovich”, syndicated/ Jewish World Review, April 17.

April 18 – Catfight! This store’s not big enough for two tigers. Federal appeals court reinstates Kellogg Co.’s suit against Exxon over the two companies’ use of cartoon tigers, both of which date back to the 1950s. For years Exxon’s “tiger in your tank” was mostly seen at the gas pump, but more recently the petroleum company has moved him indoors to tout food items at its convenience stores, angering the Battle Creek-based cereal company, which uses Tony the Tiger to sell its Sugar Frosted Flakes. (“Kellogg Renews Suit Against Exxon over Tiger”, AP/Washington Post, Apr. 12).

April 18 – Update: trial lawyers’ war on Allstate. Plaintiff’s attorneys score some advances in campaign against big insurer known for lawyer-averse claims practices (see “How To Hammer Allstate”, Dec. 22). A New Haven, Ct. federal judge has refused to dismiss a lawsuit claiming that that company committed fraud by discouraging third parties involved in accidents with its insureds from retaining lawyers. A Seattle judge agreed with trial lawyer arguments that for Allstate to urge such third-party claimants not to hire lawyers amounts to the unauthorized practice of law and is thus illegal. And a Nassau County, N.Y. judge has levied sanctions against the company for insisting on its policyholder’s day in court against a claim where it should in the judge’s view have conceded liability. (Mark Ballard, “Allstate Tactics Under Fire,” National Law Journal, Jan. 31; Thomas Scheffey, “Allstate Suit Gets Nod From Connecticut Court”, Connecticut Law Tribune, Feb. 14; Michael A. Riccardi, “Appeal Battle Over Allstate Sanction Case May Help Tort Plaintiffs”, New York Law Journal, Mar. 22). Update Apr. 25, 2004: insurer prevails in Connecticut federal case.

April 17 – Brockovich story breaks wide open. Salon scoops competition with journalist Kathleen Sharp’s impressive investigation of the real lawsuit that inspired “Erin Brockovich”. In the Hollywood tale, after our spunky heroine vanquishes nasty Pacific Gas & Electric, the residents of Hinkley, Calif. win big. In the real world, many of the Hinkley clients feel they got the royal shaft from the lawyers who represented them, and are now proceeding to sue those lawyers, specifically Brockovich’s firm of Masry & Vititoe, headed by Ed Masry:

* Of the $333 million settlement paid by PG&E, the lawyers kept a handsome 40 percent ($133 million) share, plus another $10 mil to cover expenses, yet were short (the clients say) on detail to back up the latter largish number. Worse, they say Masry, Brockovich & Co. held on to their money for six months after the settlement, a delay that appears highly irregular to the experts Salon checks with, while not paying interest or even returning their phone calls (the lawyers claim the payments did include interest). Some with large awards also got steered toward certain financial planners, among whom was Ed Masry’s son Louis.

* When the payouts eventually came, many clients found the division of spoils mysterious, arbitrary-seeming or worse. Divided among the 650 plaintiffs, the announced $196 million would provide about $300,000 per client. However, an outside lawyer who interviewed 81 of the plaintiffs says he was told they received an average of $152,000, and Salon reports that many long-term residents with presumably documented medical ailments got payments of $50,000 or $60,000. The numbers are in fact secret, which means clients can’t get an accounting of who received what — you’ve gotta protect the privacy of the other plaintiffs, right? Moreover, “there was no mention of the criteria, formula or method by which the money would be divided,” other than a statement that the amounts would be based on clients’ medical records. Yet some residents say their medical records were never solicited. One elderly, ailing resident “blew up at one of the attorneys, who didn’t like his attitude,” according to a fellow townsman, and “got a real bad deal,” allotted in the end only $25,000: “fairly or not, some residents say they saw a pattern in the distribution method. ‘If you were buddies with Ed and Erin, you got a lot of money,’ said [client Carol] Smith. ‘Otherwise, forget it.’”

* Even while the case was pending, many clients (as well as the outside press) found themselves unable to keep tabs on its progress; it was resolved in arbitration, which takes place off the public record. “We had no idea what was going on and weren’t allowed to watch,” said one plaintiff. Yet with help from the plaintiffs’ lawyers, Universal Studios managed to obtain a copy of the trial transcript — more than many of the actual plaintiffs in the case have yet managed to do. When journalist Sharp attempted to interview the lawyers on the Brockovich team, the resulting conversations were “short and explosive and terminated abruptly by the lawyers.” And when an outside lawyer took an interest in the disgruntled clients’ case, Masry and fellow lawyers at once seized the offensive, suing him for allegedly slandering them and interfering with their business relationship with the clients; this slander suit was filed, then dropped two weeks later, then reinstated, then dropped again.

* What about the science? (see April 14 and March 30 commentaries) Fumes from the application of chromium-6 in industrial settings are indeed dangerous to workers who inhale them, but the crux of the Hinkley controversy was what kind of health risk the substance poses as a trace water pollutant. Sharp quotes toxicologist Sharon Wilbur at the U.S. Department of Health and Human Services, who flatly contradicts Brockovich on whether the contaminant could have caused the various health problems sued over.

* Sharp also unearths allegations leveled by the Brockovich-side lawyers and by others that the first set of lawyers PG&E had used on the case had engaged in potentially serious misconduct, including privacy invasion by hired gumshoes. It’s hard to know how much weight to give these allegations, but if credited even in part they might suggest a motive for the utility to accept a hasty settlement of the case on unfavorable terms.

Some of Sharp’s sources evidently have a bit of an ax to grind against arbitration as an institution, but the article is still a triumph of sheer reportorial legwork, too rich in detail to summarize in one day. Tomorrow: the judges’ posh Mediterranean cruise, mounting press interest in the case, and the politics of it all. (Kathleen Sharp, “Erin Brockovich: The Real Story”, Salon, April 14).

April 17 – Annals of zero tolerance: kindergartners’ “bang, you’re dead”. Four kindergartners playing “cops and robbers” at Wilson School in Sayreville, New Jersey were given three-day suspensions after they pretended their fingers were guns and played at shooting each other. “This is a no tolerance policy. We’re very firm on weapons and threats,” said district superintendent William L. Bauer. “Given the climate of our society, we cannot take any of these statements in a light manner.” (“N.J. kindergartners suspended for threats during playground ‘cops and robbers’ “, AP/Court TV, April 6; see also Nov. 20 commentary).

April 17 – Another sampling of visitors. The hundreds of diverse websites that link to us include the Wyoming Libertarian Party (“I’d say this country is overlawyered, but some trial lawyer will probably sue me for saying it”), Arrosage Lemay, a pest control and lawn maintenance enterprise in Notre-Dame- de- la-Salette, Québec (catch the antennae-wiggling animations), and Ridgefield Focus, a community site serving a town of which we’re very fond, Ridgefield, Ct.

April 14-16 – Great moments in defamation law. At a sentencing hearing for James Hermann, who’d pled guilty to armed robbery, defense lawyer Robin Shellow argued that despite her client’s extensive criminal record (six previous adult convictions) he deserved to be treated with some leniency because he’d been struggling with a heroin problem. But this last statement of hers was mistaken: though Mr. Hermann admitted in a probation report that he was high on crack cocaine and Valium when he’d used a shotgun to rob a Milwaukee custard store owner, his drug use did not include heroin. Hermann proceeded to sue her for defamation, and although the judge in the criminal case said her slip hadn’t affected the length of the sentence either way, Hermann proceeded to line up an expert witness willing to testify that he’d “suffered psychological harm as the result of being called a heroin addict instead of a cocaine addict”, according to Shellow’s lawyer, Randal Arnold. Psychologist Paul M. Smerz told the court that Hermann had suffered “lessened sense of self-confidence, self-esteem and overall self-image” and even symptoms of post-traumatic stress disorder as a result of his attorney’s groundless comment. The case dragged on for two years and finally settled this spring as it was approaching trial when Shellow agreed to refund $500 of her original legal fee to Hermann. (Cary Spivak, “‘Hey, I use coke, not H’, robber says in suit v. his lawyer”, National Law Journal, Mar. 27).

April 14-16 – “Erin Brockovich”: plume of controversy. Julia Roberts’s screen appeal is undeniable, but how good’s the science? The New York Times‘ Gina Kolata joins the fray (title says it all: “A Hit Movie Is Rated ‘F’ in Science”, April 11), while Brockovich herself, who’s currently traversing the country helping organize toxic tort suits, spars with critic Michael Fumento in the letters column of the Wall Street Journal (letters exchange reprinted at Fumento website; Raphael Lewis, “Opening in a toxics case near you, Erin Brokovich” [sic], Boston Globe, Apr. 1; Edward Lewine, “Writer’s Slam Angers Real Erin Brockovich”, New York Daily News, Apr. 2; this site’s March 30 commentary).

April 14-16 – “Saints, sinners and the Isuzu Trooper”. Column by Washington Post‘s Warren Brown on Consumer Reports/Isuzu Trooper dustup (see April 10) finds plenty to criticize on both sides. “If anything is to be learned from the Isuzu-CU conflict, it is, perhaps, that both David and Goliath deserve equally aggressive scrutiny because both are equally capable of screwing up.” (“Saints, Sinners and the Isuzu Trooper”, April 13 — online chat with Brown scheduled for Monday 11 a.m. EST at Post site).

April 14-16 – Police resent political gun-buying influence. Part of the developing plan for strong-arming independent gunmakers into a Smith & Wesson-type settlement is to get cities and counties to redirect police-gun purchases toward favored manufacturers such as S&W and any companies that sign similar agreements. But many on police forces see it as playing politics with their lives to select guns based on anything other than their optimality for police use, which requires ease of control and use, speed, accuracy and reliability under extreme conditions. (Smith & Wesson has not been a popular brand in police use.) “Adherence to a particular political philosophy” shouldn’t play a part in gun purchases, Gilbert G. Gallegos, national president of the Fraternal Order of Police, told the Los Angeles Times. A few jurisdictions like Atlanta, Berkeley and San Mateo County, Calif. have signed onto the program, but the L.A. County Sheriff’s Department is planning to stick with its 9-mm Berettas. “Politics aren’t going to enter into how we choose our firearms,” said Capt. Garry Leonard of the department. “When you think of what we do for a living, we just can’t take chances.”

Glock general counsel Paul Jannuzzo said that, in a recent phone call, Housing Secretary Cuomo asked about his company’s sales to police and “made it fairly clear” that those sales would be at risk if the company didn’t play ball. “I think the expression he used was, ‘I have a lot of push with these Democratic mayors,’” said Jannuzzo. “There was no doubt in my mind that I’d just been threatened with economic extortion”. Told about the charge, Secretary Cuomo, ever the model of grace in controversy, retorted: “It’s an interesting response from the subject of an antitrust investigation,” referring to the trade-restraint probe recently launched against the gun industry for allegedly shunning S & W (see March 31). (Richard Simon and Eric Lichtblau, “Police Feel Pressure to Choose the ‘Code’”, Los Angeles Times, Apr. 9).

April 13 – Judge dismisses suit blaming entertainment biz for school shootings. U.S. District Judge Edward Johnstone has dismissed an action on behalf of school shooting victims in Paducah, Ky. against 25 enterprises whose movies, videogames and Internet sites had allegedly incited teenage gunman Michael Carneal to go on his rampage (“Federal judge dismisses lawsuit against movie, video game makers”, AP/Freedom Forum, April 7; “Suit blaming media for Kentucky killings dismissed”, CNN/Reuters, April 7; see July 22 and Nov. 2 commentaries). Plaintiffs vowed to appeal the ruling, which came shortly after a Senate hearing at which conservative Sen. Sam Brownback (R-Kansas) lent a sympathetic ear to the lead plaintiff’s charges against the videogame industry (“Witness tells Senate panel: Video games taught teen killer how to shoot”, AP/Freedom Forum, March 22).

Other litigation continues to move forward around the country seeking to blame the media and game makers for school violence, including the Columbine High School massacre in Colorado. Lt. Col. David Grossman, a former Army psychologist signed as an expert witness by the plaintiffs in the Carneal case, has been much in the press lately denouncing such games as Doom and Quake (“The Games Kids Play”, John Stossel/ABC News 20/20, Mar. 22). And Vermont state senator Tom Bahre (R-Addison) has introduced legislation in that state which would hold makers of graphically violent movies and other media liable for the costs of acts of real-life violence that their products are deemed to have incited. An AP report says Bahre’s bill would “place the burden of proof on those producers to show that their depictions of violence did not cause an actual event.” (“Vermont lawmaker wants to hold media responsible for violence”, AP/Freedom Forum, Dec. 29).

April 13 – Bill Gates and the Nasdaq: why didn’t the Munchkins sing? “When the wicked witch is dead, you expect the Munchkins to break out in song. But that was not the reaction in the technology sector this week, after a federal judge found Microsoft Corp. guilty of behaving like a bully.” Nasdaq, composed heavily of tech firms that Microsoft is supposed to have victimized, fell off a cliff. Paradoxical? “Economists Thomas Hazlett of the American Enterprise Institute and George Bittlingmayer of the University of California at Davis recently published a study in the Journal of Financial Economics documenting that whenever the government’s antitrust suit scores a victory, an index of non-Microsoft computer stocks falls — and when Microsoft wins a round, computer stocks rise.” (Steve Chapman, “The Real Cost of the Microsoft Verdict”, Chicago Tribune, April 6).

April 13 – “Congress passes asset forfeiture bill”. Long awaited reforms will make it harder for the government to seize assets first and ask questions later. “The legislation would shift the burden of proof in asset forfeiture cases from the property owner to the government. … It allows federal judges to release property to the owner if continued government possession causes substantial hardship to the owner, extends the time a property owner has to challenge a seizure in court and ends the requirement that a person seeking to recover property post a bond with the court worth 10 percent of the property value.” (AP) To placate prosecutors, however, the bill also gives law enforcement officials a number of new powers. (Jim Abrams, “Congress passes asset forfeiture bill”, AP/Topeka Capital-Journal, April 12; Stephen Labaton, “Congress Raises Burden of Proof on Asset Seizures”, New York Times, April 12).

April 13 – Regulation through litigation: opinion pieces. The topic’s starting to arouse significant attention among the commentariat, and not a moment too soon:

* We think he’s joking dept.: Univ. of Colorado law prof Paul Campos (Jurismania) foresees a gigantic class-action suit against “Big Auto” (“Where are next brave lawyers?”, Rocky Mountain News (Denver), April 11).

* “First, tobacco. Then, guns. Now, Microsoft. Does anyone seriously believe the class-action legal industry will stop there?” asks Wall Street Journal editorialist John Fund, who sees reformist sentiment rising: “In North Dakota and Texas, new ‘sunshine’ laws give the legislature oversight of government contracts with outside lawyers.” (“Litigation gold rush”, MS/NBC, April 4).

* Today’s less-than-spontaneous agitations against each newly designated Industry-To-Hate remind the Kansas City Star‘s E. Thomas McClanahan of China’s old “mass political campaigns” in which the populace was whipped up to support a purge of the “Four Bads” or of “capitalist roaders”. Quotes this site’s editor, too (“Bypassing the checks and balances”, Apr. 10 (click “columns”, then scroll list))

* “None dare call it extortion” is the Las Vegas Review-Journal‘s take (editorial, April 7).

April 12 – Gore amid friendly crowd (again). Bill Clinton and Al Gore have been racing around the country to attend a seemingly unending series of fund-raisers thrown by such prominent personal-injury lawyers as Dallas’s Fred Baron (see Feb. 14) and Cincinnati’s Stanley Chesley (see Mar. 30). Last Thursday it was the turn of Palm Beach, Fla. tobacco-fee tycoon Robert Montgomery (see Aug. 21-22), for a $10,000-a-plate dinner graced by the Veep.

The Washington Post‘s Ceci Connolly writes that at yet another recent lawyer-hosted fund-raiser — this one at the home of Houston’s Denman Heard — Democratic National Committee Chairman Ed Rendell said, with Gore looking on, “we are proud as a party to have the support of the trial lawyers. It is nothing we apologize for”. “Gore summed up the differences this way: ‘We fight for the working people, for those who don’t have the resources,” he said. Republicans ‘draw from the wealthiest, most powerful and well-heeled.’”

To be sure, Mr. Montgomery, who hosted last Thursday’s Gore event, could give most GOPers a lesson or two about what it means to be powerful and well-heeled: together with some colleagues he pulled off the Florida tobacco caper, representing the state government and nabbing what was at the time the biggest legal fee in history, $3.4 billion, his own share amounting (per George magazine’s estimate) to some $678 million. Montgomery is also a longtime donor to political candidates ranging from the Kennedy family to Hillary Rodham Clinton. Maybe it’s not so surprising after all that the Democratic National Committee raised more money in the first quarter than its Republican counterpart. (Ceci Connolly, “Democrats Have No Argument with Trial Lawyers”, Washington Post, April 9; Jonathan Salant, “Democrats raise more money than Republicans”, AP/CNN, April 7).

A proper account of the Florida tobacco affair for a national readership remains to be written. For an introduction, check out the following 1998 coverage by Lucy Morgan in the St. Petersburg Times: “Tobacco trial lawyers say they had to hire [Governor Lawton] Chiles’ friends”, March 25, 1998; “Tobacco team lawyer is called to account”, March 31, 1998 (“Did lawyers hired by Florida to fight the tobacco industry cough up more than $100,000 for the Clinton/Gore campaign in hopes of currying favor with the administration? And were those campaign contributions illegally disguised as legal expenses — and actually paid by the tobacco industry?” — with eyebrow-raising details about a Fort Lauderdale meeting between the tobacco trial team and Vice President Gore on Oct. 15, 1996, shortly before the 1996 election); as well as “Tobacco and torts” (editorial by the paper), Dec. 19, 1998 (calling the eventual arbitration award to lawyers “breathtakingly excessive … It’s almost disgusting to think of such riches going to a few people who gave relatively little time and expertise to ‘earn’ them. … receiving billions of dollars in fees for a case that never went to trial is utterly unconscionable. … [the lawyers have put] a face on greed”.) (DURABLE LINK)

April 12 – Triumph of plastic foliage. New York Times home and garden section advises that artificial plants are making inroads in both interior commercial decor and landscaping; unlike the live kind, “they don’t house pests or provoke allergic reactions (and subsequent lawsuits)”. (William L. Hamilton, “The Flowers That Bloom in Spring, Ha Ha”, New York Times, April 6).

April 12 – Cops shoot civilian; city blames maker of victim’s gun. In a suit filed last week, the city of Riverside, Calif. says gunmaker Lorcin Engineering should bear legal responsibility for the shooting by Riverside police of 19-year-old Tyisha Miller of Rubidoux, because it sold the weapon she had on her lap at the time she was shot in a locked, idling car. Officers from the force were later fired for the tactics they used in the shooting, which led to a wrongful-death lawsuit by Miller’s survivors. The city is now seeking to dodge that suit by impleading Lorcin on the theory that had it provided better user training Miller might have known not to keep a gun on her person in a way that approaching officers might interpret as threatening to them, though her gun was later found to be inoperable. Lorcin shuttered its plant in nearby Mira Loma and declared bankruptcy last year, but an attorney for the city suggests it still has money. “Every single claim against Lorcin was dismissed, but at a very expensive cost of $100,000 here, $100,000 there” in legal fees, said owner James Waldorf. (Lisa O’Neill Hill and John Welch, Riverside Press-Enterprise, April 7) (discuss at Press-Enterprise site).

April 12 – Endorsed again. “oh man, this is great. overlawyered.com. check the left side for ‘personal responsibility’ …” — thus one of the April 10 entries on Array, a weblog specializing in art and applied digital technology, but with a wide miscellany of other topics in there too.

April 11 – Stuart Taylor, Jr., on Smith & Wesson deal. His new column on law-stretching gun and tobacco suits is must reading even aside from the handsome plug it gives this website (see below). “One thing I am sure of is that the Framers of the Constitution created Congress — and assigned to it ‘all legislative powers herein granted’ — to set policy for the nation on such complex questions of social engineering [as gun control]. They also made it hard to enact legislation unless backed by a fairly broad national consensus. That’s a far cry from what’s going on now….

“[T]he gun litigation represents a deeply disturbing way of making public policy. It was started by private lawyers and municipalities with big financial interests at stake. The courts have largely been bystanders as the Clinton Administration and its allies have sought to bludgeon gunmakers into settling before trial.” (Stuart Taylor Jr., “Guns and Tobacco: Government by Litigation”, National Journal, March 27; NJ yanks these free columns after offering them briefly as a teaser, so catch this one now.)

P.S. Okay, and now about that plug: “For a fuller taste of these and other peculiar workings of our legal system, with copious links to news reports, check out an amusingly depressing Web site called Overlawyered.com, created and edited by Walter K. Olson of the conservative-libertarian Manhattan Institute,” writes Taylor. “Amusingly depressing” — an ideal slogan for our banner ads (if we ever get around to devising them; someone wanna help volunteer?).

April 11 – Oops: D.A.’s and judge’s fwding of sex pic deemed “unfortunate event”. Dateline Las Vegas: “A pornographic photograph sent by e-mail to dozens of Clark County employees originated from a deputy district attorney’s computer. The e-mail was then forwarded to a senior judge who passed it on to other county workers.” Apparently the sexually explicit photo was meant to reach only one or two recipients, but was inadvertently blind-cc’d to a longer list. County manager Dale Askew said those involved likely would be suspended without pay. “Needless to say employees were not happy receiving it because it came across their computer unsolicited,” said county spokesman Doug Bradford, who called the episode “an unfortunate event.” How lucky for all concerned that they weren’t at a big private firm, where skittishness over harassment liability might have gotten the senders fired. (Adrienne Packer, “Obscene e-mail traced to deputy DA”, Las Vegas Sun, Feb. 9). (DURABLE LINK)

April 11 – Krugman on MS: his “blood runs cold”. “I don’t know anyone outside Seattle who is really pro-Microsoft. But a lot of us are, at least mildly, anti-anti-Microsoft. That is, we worry that the crusade against Bill Gates sets a bad, even dangerous precedent. …

“The anti-anti-Microsoft case does not deny that there is some truth to that story [that Redmond's market dominance and hard-guy tactics caused a climate of fear among its competitors], but asserts that taking punitive action will be the worse of two evils because it will create a different, and worse, climate of fear — fear that success itself will be punished. Today Microsoft, tomorrow Intel and eventually (as soon as somebody figures out what it does) Cisco.”

“… [W]hen I hear that a coalition of states is demanding damages from Microsoft, as if Windows caused lung cancer; well, my blood runs cold. I know that there is an intellectually respectable case against Microsoft, but I’ve got a bad feeling about where we are going.” (Paul Krugman, “Rights of Bill”, New York Times, April 9).

April 11 – Chat into the microphone, please. Securities and Exchange Commission announces plans to acquire automated software to trawl websites, Usenet and Yahoo/AOL-type bulletin boards searching for phrases like “get rich quick” and “free stock” which might signal illicit securities promotion. The results, including email addresses and other identifying information about posters, will be copied into a giant database and indexed for the convenience of SEC investigators whose job is to file civil charges against persons suspected of stock-jobbing. One company invited to submit bids on the system, the big accounting firm of Pricewaterhouse Coopers LLP, has already bowed out of consideration, saying it had “serious concerns about the implications for the privacy of individuals”. The proposal “is equivalent to, in my opinion, wiretapping … the equivalent of planting a bug,” said Larry Ponemon, a partner at the firm in charge of privacy issues. Members of Congress have begun to express concern: “Engaging in such a wide level of monitoring will have a chilling effect on free speech online,” Rep. Bob Barr (R-Ga.) wrote to SEC Chairman Arthur Levitt. “While I understand the need to prevent securities fraud, federal agents should not be allowed to sift through the conversations of millions of innocent parties in order to do so.”

Levitt says there’s little difference in principle betwen current practice — in which flesh-and-blood SEC attorneys laboriously traverse the Web looking individually for possible indicia of fraud — and the new proposal. The commission also says it will keep the data confidential and throw out information that does not establish wrongdoing. Other federal agencies are eager to follow the SEC’s lead, such as the Commodity Futures Trading Commission, which has begun talking to vendors: “For us it’s a very exciting prospect,” says acting CFTC director of enforcement Phyllis J. Cela. (Michael Moss, “SEC’s Plan to Snoop for Crime on Web Spraks a Debate Over Privacy”, Wall Street Journal/ZDNet, March 28; Marcy Gordon, “SEC Plans Web Surveillance System”, AP/Excite, March 29; Michelle Finley, “SEC Plan: Free Speech Violation?”, Wired News, March 29; “House panel questions automated surveillance by SEC”, Reuters/Excite, April 4). (DURABLE LINK)

April 11 – Attention librarians. Starting immediately, we’ll be dividing each new month’s archives into three, rather than two, sections; that way readers with low bandwidth won’t have to wait quite so long for those pages to load.

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