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The Aftenposten story has been widely repeated on the web, but it’s worth noting that the supposed decision has not yet been catalogued on the English version of the Norges Høyesterett website, though that site is only up to date to March 31. That said, this page looks suspiciously like the decision in question, though my Norwegian language skills are decidedly limited. I further note that it is utterly charming that Norway is sufficiently non-litigious otherwise that its Supreme Court apparently has the time to regularly decide appeals of speeding tickets. (& letter to the editor, Jul. 13).

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P.S. In Oslo, Norway, a court has just thrown out a man’s conviction on charges of drunken driving on the grounds that he had been much too drunk at the time to give proper consent for the police to interrogate him; the resulting confession had provided the basis for the conviction (”Drunk driver acquitted for drunkenness”, Aftenposten, Jul. 30)(via James Taranto’s Best of the Web, OpinionJournal, Jul. 30).

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* * *

America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent.  It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.

Overlawyered.com’s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device.  He also testified before Congress when the issue came up that year as part of the “Contract with America”.  Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.

As other countries recognize, the arguments in support of the indemnity principle are overwhelming.  They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements.  Sad to say, the American bar, though loud in proclaiming that every other industry and profession should be made to pay for its mistakes, changes its mind in this one area, demanding an across-the-board charitable immunity for its own lucrative industry of suing people. 

Also in 1995, Rep. Chris Cox (R-Calif.) published a succinct defense of the loser-pays principle, terming it the “full recovery rule” and pointing out that it would improve the position of a large number of plaintiffs with meritorious claims who currently go undercompensated because of the need to pay their lawyers large sums which cannot be recovered from the opponent. 

Author James Fallows of The Atlantic called the idea “overdue” and included it in his list of “Ten New Year’s Resolutions for America” (National Public Radio). 

The principle in other countries:

The leading British scholar of torts and accident law, the distinguished Patrick Atiyah of Oxford, observes that “the reality is that the accident victim with a reasonable case should be able to find a lawyer with equal ease in England and America.” (1987 Duke L.J. 1002, 1017; cited in Olson House testimony above) 

In the United Kingdom, as throughout Europe, the general loser-pays principle enjoys strong support among social democrats and conservatives alike.  In this debate excerpt from Britain’s House of Lords (January 21, 1999), in response to an objection that applying loser-pays in cases before employment tribunals might discourage workers from bringing claims against their employers, Lord Irvine, who serves as Lord Chancellor in the Labour government of Prime Minister Tony Blair, responds that “It can be argued… that one should discourage weak cases. Very often applicants bring weak cases before employment tribunals inspired by animus against their employers arising out of their dismissal.  If the effect of [a costs] rule were to deter weak claims and prevent employers being vexed by them there is a highly respectable argument in favour of that change.”

In Australia, according to this official report, “The general rule on costs is that costs follow the event (i.e. that the party in whose favour the issue is decided normally has his or her costs met by the unsuccessful party). It should be noted, however, that an award of costs is at the discretion of the court and in exercising the discretion the court may take into account the conduct of the parties and the manner in which the case was litigated.” 

Sometimes it is argued that loser-pays principles should be suspended in cases where litigation is claimed to have gone on in the public interest, as a test case, or to procure a change in established law.  While some loser-pays jurisdictions suspend the principle for what are viewed as true “cases of first impression” where there is no established law, most are skeptical about applying any exemption more liberally, as one sees in this 1996 case from Alberta, Canada. (Update Nov. 20, 2004: on appeal to the Supreme Court of Canada, the Alberta plaintiff in 1998 won his case on the merits (with an award of costs), thus presumably escaping any need to pay costs arising from his “case of first impression” loss at the earlier stage).

Given the pervasive influence of U.S. ways of doing things, and the extraordinary success (by some standards) of the American bar, it is not surprising that a definite though minority bloc of practitioners and academics has arisen outside the U.S., particularly in English-speaking countries, that is favorably disposed toward the American rule on costs.  The rationale offered by such advocates can itself be interesting, as when James Eck, an Australian professor who teaches at Washburn University in Nebraska, calls for his country to emulate the American fee rule on the grounds that “An Increase in Litigation Would Be Good for Australia“.  Prof. Eck writes that insurance rates are “artificially low” in Australia and foresees that abandoning loser-pays would engender an increase in litigation that would result in “an increase in the number of persons employed by the insurance industry,” which would, he believes, redound to the benefit of that country’s economy — a sentiment many will view as open to doubt.

Some jurisdictions have over the years weakened loser-pays provisions in ways that create important exceptions in a minority of cases. Perhaps the best-known of these rules, in Britain, denies fee recovery to prevailing defendants when they are sued by plaintiffs assisted by official legal-aid funds, a policy that many spokesmen for defendants have bitterly denounced as unfair and inconsistent with national tradition.  Even in these cases, it seems, defendants benefit from the distinctive British pay-into-court system (see below).   More recently, Britain has excluded an even wider class of injury claims from the rule. Although Ontario has somewhat watered down its loser-pays provisions for class actions (R. Bruce Smith of Smith Lyons, link now dead), they are still far superior to the American rules in discouraging ill-founded litigation.

Special wrinkles: paying into court, legal expenses insurance

Two institutional features of the landscape in loser-pays countries deserve special mention: the complex of questions surrounding issue-splitting and offers of settlement, and the availability of legal expenses insurance.

It is common for litigation to involve multiple issues, some of which are resolved in favor of one party, others in favor of its opponent, or for a plaintiff to be vindicated as to liability but for his claim of damages to be upheld only in part. Most loser-pays systems explicitly empower the judge or other magistrate to split fees in these cases, usually with the objective of allocating each element of cost to the party whose position was defeated.  Thus it is quite conceivable for a plaintiff to establish liability but for the fee award mostly to favor the defendant on the grounds that most of the cost of the litigation was spent arguing over issues on which the defendant prevailed.  A different way of approaching the same general problem is practiced in England, where defendants can offer to “pay into court” a proffered settlement and are entitled to fees if a plaintiff turns it down and does less well at trial.  Some countries combine elements of the two systems. 

Just as liability insurance covers the risks of being a defendant in litigation, so nations with loser-pays have developed markets for what is called legal expenses insurance, which helps manage the financial risks of becoming a plaintiff including the chance of becoming liable for costs in the event of a courtroom loss.  (This chance is in fact quite remote, since abroad, as in the United States, well over 90 percent of cases settle out of court before a final legal resolution; the primary influence of loser-pays is in the “shadow” it casts on the size and timing of this settlement.) Legal expenses insurance is typically available at quite modest cost, often as an added rider to homeowners’ or automobile policies.  Its cost is modest in part because it can benefit from a self-financing fund: if the insurer correctly analyzes which cases brought in by its policyholder plaintiffs are worthy of being pressed, it will benefit from fee shifts paid by the defendants against whom it finances suits. 

A series of country-by-country reports from the European Commission indicate that legal expenses insurance is “almost universal in Denmark” “very common in Norway“, and “widely available in the Netherlands“, while “Germany has the largest LEI market of any EU country“. 

In Britain, the Blair government has proposed to increase the role played by legal expense insurance and in particular a variant known as “after-the-event” insurance (report by Daphne Loebl for solicitors Wilde Sapte, link now dead). Websites put up by plaintiff’s-oriented solicitors’ firms in Nottingham and East Anglia explain more about how the English system works. 

Loser-pays in this country:

The state of Alaska has followed a loser-pays system for decades. Rule 82 of the Alaska Rules of Civil Procedure (requires scrolling down), provides a modest degree of fee-shifting, and operates in tandem with Rule 68 (requires scrolling down), which provides for fee awards hinged on offers of settlement. The Alaska Judicial Council discusses the operation of the rules in this 1995 report.

In the mid-1990s, both Oregon and Oklahoma enacted statutes that applied loser-pays principles to significant categories of litigation in their state courts. These laws are discussed in the Olson/Bernstein Maryland Law Review article cited below. 

Although no national organization has arisen to promote it, loser-pays continues to be a popular reform idea in many states.  In South Carolina, 57 House colleagues joined state representative Gresham Barrett in sponsoring a loser-pays measure (South Carolina Policy Council). Loser-pays measures have been introduced in Arizona (H.B. 2230), and, with respect to specialized statutory areas, such states as Colorado (farm nuisance suits, S.B. 43, Rep. Ken Chlouber). 

Many states have also introduced or strengthened offer-of-settlement systems in which at least some costs are available to parties when the other side turns down a proffered settlement and then does worse at trial.  Frequently these laws are hampered in their effect because they exclude what are the largest categories of cost, attorneys’ and expert witnesses’ fees.  Attorney Geoffrey L. Bryan picks through some of the complexities and exceptions in Section 998 of California’s Code of Civil Procedure, a provision of this sort. 

One particularly promising field for the extension of loser-pays principles is in the realm of statutes governing disputes between business entities.  For example, the Federal Communications Commission recently suggested a loser-pays mechanism for disputes between providers of satellite service over customers (February 24, 1999 testimony of Deborah Lathen) 

Loser-pays is the subject of a large theoretical literature generated by economists and other model-builders who mostly have found themselves at a loss to predict from their models whether litigation will be on average better restrained in the one type of system or in the other.  Professors Thomas D. Rowe, Jr. (Duke) and David A. Anderson (Centre College) ran simulations of the effect of various offer-of-settlement rules on lawyers’ behavior in settling cases. (”Empirical Research on Offer of Settlement Devices”, 1996; reprinted by Texas Association of Mediators, link now dead). 

For further reading: Walter Olson and David Bernstein, “Loser-Pays: Where Next?”, Maryland Law Review, 1996 (55 Md. L. Rev. 1161).

Related posts

• March 2000 archives, part 1 (0)
• November 2002 archives, part 1 (1)
• November 2000 archives, part 3 (0)
• Archived tobacco items, pre-July 2003 (0)
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Tobacco fees reconsidered, 2003: “Senate panel nixes tobacco-fee clawback“, May 9-11; “Feds indict former Texas AG“, Mar. 8-9; “‘Not a pretty picture’“, Jan. 10-12.  2002: “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29; “Welcome Fox News viewers/ readers“, Aug. 2-4; “Tobacco fees: one brave judge” (New York), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, Oct. 16-17, Oct. 25-27, 2002; Feb. 11 & Jun. 6-8, 2003; May 11, 2001).


“‘Lawyers who won $10 bil. verdict had donated to judge’“, Apr. 30, 2003; “A bond too far“, Apr. 4-6; “Appeals bonds, again“, Apr. 2-3; “Mad County pays out again” (”light” cigarette class action), Mar. 24, 2003.

“‘Nanny Bloomberg’” (NYC smoking ban), Oct. 22, 2002.

Tobacco fees, state by state, 2003: “‘Law firms in tobacco suit seek $1.2b more’” (Mass.), May 19 (& Jan. 2-3, 2002, Dec. 22, 1999); “Feds indict former Texas AG“, Mar. 8-9 (& May 22, Sept. 1-3, 2000; Jun. 21, Aug. 29-30, Nov. 12, 2001, Jul. 15, Jul. 30-31, 2002; Jan. 10-12, 2003). 2002: “Judge overturns $1.3 billion tobacco fee award” (Castano Group, California), Sept. 27-29; “Tobacco fees: one brave judge” (N.Y.), Jul. 30-31 (& Aug. 2-4, Jun. 21-23, 2002, Oct. 16-17, 2002, Feb. 11, 2003, May 11, 2001); “Dewey deserve that much?“, Mar. 6; “Mass., Ill., NYC tobacco fees“, Jan. 2-3.  2001: “Michigan tobacco fees“, Sept. 19-20; “Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Missouri’s tagalong tobacco fees“, Jun. 5 (& Sept. 21, 2000); “‘Lungren now a paid advocate for his former foes’” (Calif.), Apr. 5; “(Another) ‘Monster Fee Award for Tobacco Fighters’” (Calif. cities and counties), Mar. 21-22; “Reclaiming the tobacco loot“, Mar. 15; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19.  2000: “Beehive of legal activity: Utah tobacco fees“, Nov. 6; “South Carolina tobacco fees: how to farm money“, Oct. 25; “Gore amid friendly crowd (again)” (Fla.), Apr. 12 (& “Dershowitz’s Florida frolic?“, Jul. 17; also see Dec. 8-10, 2000, Aug. 8-9, 2000, Dec. 27-28, 1999); “Sooner get rich” (Oklahoma), Jun. 7; “‘Lawyers’ tobacco-suit fees invite revolt’” (Ohio), May 23; “North Carolina (& Kentucky & Tennessee) tobacco fees“, May 2; “Connecticut AG has ‘no idea’ whether lawyers he hired are overcharging“, Feb. 3 (& update Feb. 16); “Pennsylvania tobacco fees: such a bargain!“, Jan. 10 (& Oct. 24, 2002). 1999: “Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001, Apr. 10, 2002); “Illinois tobacco fees“, Oct. 16-17; “My dear old tobacco-fee friends” (Kansas AG, like Connecticut’s, gave tobacco business to her old law firm), Oct. 11 (see also Sept. 21, 2000); “Boardwalk bonanza” (N.J.), Oct. 1-3; “News judgment“, Aug. 6; “Puff, the magic fees” (Wisc.), Jul. 13. 

Tobacco-fee tycoons, 2003: “Class action lawyer takes $20 million from defendant’s side” (Joseph Rice), Mar. 15-16; “‘Not a pretty picture’“, Jan. 10-12; 2002: “Rumblings in Mississippi” (Scruggs, Minor), Oct. 9-10 (& Nov. 6); “Judge overturns $1.3 billion tobacco fee award” (Castano Group), Sept. 27-29.  2001: “Settle a dispute today” (O’Quinn vs. Jamail), Sept. 18; “Ness monster sighted in Narragansett Bay” (Rhode Island, Ness Motley), Jun. 7 (& see Oct. 6-9, 2000, July 17, 2000, Nov. 1, 1999). 2000: “Punch-outs, Florida style” (Robert Montgomery), Nov. 17-19 (& see Aug. 8, April 12, 2000; Aug. 21-22, 1999); “Friend to the famous” (Williams Bailey), Oct. 12; “Senator Lieberman: a sampler” (voted to curb tobacco fees), Aug. 8-9; “Trial lawyer candidates” (Minnesota’s Ciresi), Jul. 6 (& update Sept. 15-17; loses primary bid); “‘Lawyers’ tobacco-suit fees invite revolt’” (USA Today editorial), May 23.  1999: “Who’s afraid of Dickie Scruggs?“, Dec. 2; “Maryland’s kingmaker” (Peter Angelos), Oct. 19 (& Dec. 9, 1999, Oct. 16-17, 2000, June 21, 2001); “The Marie Antoinette school of public relations” (tobacco lawyers pose for photo shoot on their yachts, horse farms, etc.), Aug. 21-22; and see lawyers’ campaign contributions. 

Humor: “Dave Barry on tobacco settlement, round III“, Sept. 16-17, 2002; “Dave Barry on tobacco suits, round II“, March 16, 2000; “Dave Barry on federal tobacco suit“, Oct. 26, 1999; “Cartoon that made us laugh” (”….We can’t take those off the market! Dangerous products are a gold mine for the government!”), Jan. 21-23, 2000.
.
Terms of state tobacco settlement, 2003: “Appeals bonds, again“, Apr. 2-3. 2002: “We did it all for the public health, cont’d” (Alabama devotes more proceeds to tobacco farmers than to smoking reduction), Aug. 22; “Tobacco settlement funds go to tobacco promotion” (N.C.), Jun. 28-30;  “‘Bush budget surprise: $25M for tobacco suit’” (Martha Derthick, Up in Smoke), Feb. 20. 2001: “Tobacco-fee tensions” (Fla. resumes investing in tobacco cos.), Jun. 21 (& letter to editor, Jul. 6); “Reclaiming the tobacco loot“, Mar. 15; “Push him into a bedroom, hand him a script” (Bill Clinton testimonial for tobacco lawyers), Mar. 9-11; “Lawyers get tobacco fees early“, Mar. 5; “Tobacco arbitrator: they all know whose side I’m on“, Feb. 16-19; “Safer smokes vs. the settlement cartel“, Feb. 7-8.  2000: “Missouri tobacco fees“, Sept. 21, 2000; “Tobacco- and gun-suit reading” (Stuart Taylor, Jr.), Aug. 21-22, 2000; “Challenging the multistate settlement“, Jul. 17, 2000.  1999: “‘Few Settlement Dollars Used for Tobacco Control’“, Dec. 27-28; “Tobacco bankruptcies, and what comes after” (state gov’ts, trial lawyers would become cigarette producers), Dec. 13; “How the tobacco settlement works” (the more cigarettes sold, the more money states get), Nov. 2; “Addictive tobacco money” (states sued over alleged burden on their taxpayers — so are they using the proceeds to cut taxes?), Sept. 7; “Collusion: it’s an AG thing” (terms of settlement cartelize cigarette industry), Jul. 29. Also see Walter Olson, “Puff, the magic settlement“, Reason, Jan. 2000. 

“‘Tough tobacco laws may not deter kids’“, Jun. 7-9, 2002; “Blind newsdealer charged with selling cigarettes to underage buyer“, Sept. 16, 1999.

“Sin-suit city” (Banzhaf), Jun. 10, 2002. 

“Ad model sues tobacco company“, May 1-2, 2002. 

“Australian party calls for banning smoking while driving“, Jun. 3-4, 2002; “‘Positive nicotine test to keep student from prom’” (over-18 student, off-premises consumption), Apr. 26-28, 2002 (& update May 10-12: school backs down); “Judge orders woman to stop smoking at home“, Mar. 27-28, 2002; “‘Smokers told to fetter their fumes’” (smoking in homes that bothers neighbors), Nov. 26, 2001; “Utah lawmakers: don’t smoke in your car” (when kids present), Oct. 5-7, 2001; “Apartment smoking targeted“, Jan. 3, 2000. 

“Australian party calls for banning smoking while driving“, Jun. 3-4, 2002 (document retention case); “International tobacco suits: not quite such easy pickings“, Feb. 1-3, 2002; “‘Saudi Arabia finally gets tough on terrorism!’“, Dec. 10, 2001; “More from Judge Kent” (Bolivian suit), Aug. 3, 2001; “Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “They call it distributive justice” (government of Saudi Arabia sues tobacco cos.), Nov. 16, 2000; “Spreading to Australia?“, Dec. 29-30, 1999; “Israeli court rejects cigarette reimbursement suit“, Oct. 7, 1999. 

“Veeps ATLA could love” (Durbin, D-Ill., as guardian of tobacco lawyers’ fees), July 7, 2000 (& see Apr. 25, 2002). 

“Competing interests: none declared”.  “The unconflicted Prof. Daynard“, April 21-23, 2000 (& update: letters, Jan. 2001, June 2001; Aug. 2, Dec. 17, 2001). 

Federal tobacco suit: our views: “‘Bush budget surprise: $25M for tobacco suit’“, Feb. 20, 2002; “Judge throws out half of federal tobacco suit“, October 2, 2000; “Good news out of Washington…” (House votes to cut off funding for suit), June 21, 2000 (& update June 26: action reversed, funds approved); “Feds: dissent on smoking = racketeering“, Sept. 23, 1999; “Guest column in Forbes by Overlawyered.com’s editor“, Oct. 25, 1999. 

“Prison litigation: ‘Kittens and Rainbows Suites’” (cellmate’s smoking violates rights), Jan. 11-13, 2002. 

Boeken v. Philip Morris: “Boeken record“, June 19, 2001; “$5,133.47 a cigarette“, Jun. 11, 2001; “Tobacco plunder in Los Angeles” ($3 billion damage award), Jun. 8-10, 2001. 

Federal tobacco suit: others’ views: “Columnist-fest” (Jacob Sullum), Jun. 22-24, 2001; “Blatant end-runs around the democratic process” (former Labor Secretary Robert Reich), Jan. 15-16, 2000; “Dave Barry on federal tobacco suit” (plus novelist Tom Clancy’s critique), Oct. 26, 1999; “‘This wretched lawsuit’” (Jonathan Rauch in National Journal ), Oct. 13, 1999; “Feds’ tobacco shakedown: ‘A case of fraud’“, Sept. 29, 1999 (roundup of editorial pages); “Feds as tobacco pushers” (columnist Andrew Glass recalls encouragement of smoking in U.S. Army), Sept. 24, 1999; “Hurry up, before the spell breaks” (leading plaintiff’s lawyer wants feds to sue fast since public losing interest), Sept. 24, 1999.

Regulation by litigation: “Tobacco- and gun-suit reading” (law prof Michael Krauss), Aug. 21-22, 2000; “Convenient line at the time” (tobacco is unique, said state attorneys general — sure), May 15; “Stuart Taylor, Jr., on Smith & Wesson deal” (”Guns and Tobacco: Government by Litigation”), Apr. 11, 2000; “Arbitrary confiscation, from Pskov to Pascagoula” (Michael Barone in U.S. News on threat to rule of law), Jul. 24-25, 1999; “Guns, tobacco, and others to come” (Peter Huber in Commentary on the new mass-tort cases as “show trials”), Jul. 20; “‘A de facto fourth branch of government’” (prominent trial lawyer Wendell Gauthier’s view of plaintiff bar’s role), Jul. 4, 1999. 

“Dewey deserve that much?“, Mar. 6, 2002; “Health plans rebuffed in bid to sue cigarette makers“, Jan. 11, 2000. 

“Terrorists, American business execs compared“, Sept. 28-30, 2001. 

“Columnist-fest“, Jun. 22-24, 2001 (Amity Shlaes on asbestos synergy case); “Best little forum-shopping in Texas” (state’s Medicaid suit got filed in Texarkana, contributing $6.1 million to local economy), Aug. 27, 1999. 

“The Kessler agenda” (former FDA chief calls for cigarette ban), Jan. 12-14, 2001; “Kessler rebuked” (FDA claim of authority over tobacco), March 27, 2000. 

“Updates” (baby Castano suit nixed in N.Y.), Dec. 26-29, 2000. 

“Wal-Mart’s tobacco exposure“, Sept. 25-26, 2000; “The Wal-Mart docket” (sued over tobacco sales), July 7, 2000.

“Another billion, snuffed” (antitrust lawsuit between snuffmakers), May 10, 2000. 

“Hollywood special: ‘The Insider’“, Mar. 30, 2000. 

“Because they still had money” (Hausfeld’s price-fixing suit), Mar. 2, 2000. 

“Tobacco lawyers’ lien leverage“, Feb. 29, 2000. 

“Feds’ tobacco hypocrisy, cont’d: Indian ’smoke shops’“, Jan. 25, 2000; “Do as we say, please” (Indian tribes, after profiting immensely from tax-free smoke shops, turn around and sue suppliers), Jul. 14, 1999. 

“The joy of tobacco fees“, Jan. 20, 2000.

“Calif. state funds used to compile ‘enemies list’“, Jan. 5, 2000.

“‘Trial lawyers on trial’” (Trevor Armbrister, Reader’s Digest), Dec. 23-26, 1999.

“Philadelphia Inquirer Tech.life: ‘Web Winners’” (this page is recommended), Dec. 15, 1999.

“Ohio tobacco-settlement booty“, Nov. 8, 1999.

“Public by 2-1 margin disapproves of tobacco suits“, Nov. 5-7, 1999. 

“Not-so-Kool omen for NAACP suit“, Nov. 1, 1999. 

“Minnesota to auction seized cigarettes“, Oct. 21, 1999. 

“Reform stirrings on public contingency fees“, Oct. 15, 1999.

“Big guns” (tobacco example shaped gun litigation), Oct. 5-6, 1999.

“Plus extra damages for having argued with us” (”lesson of tobacco”: you can get punished for defending your product), Aug. 19, 1999. 

“‘Settlement bonds’: are guns next?” (how Wall Street finances expropriation of industries), Aug. 5, 1999.

Do the tobacco wars that began in the mid-1990s represent an unprecedented triumph for public health?  Are they an inevitable response to legislative gridlock on smoking policy?  Or are they our legal system’s own updated version of the Gilded Age scandals that brought American government into disrepute a century ago, siphoning billions of dollars of publicly obtained money into the hands of politically connected attorneys?  Commentaries on Overlawyered.com (above) may help you decide.  In the mean time, the following links offer a way into the wider tobacco controversy: 

Anti-tobacco groups, most of which are supportive of litigation as well as other coercive government actions aimed at curtailing tobacco sale and use, are well represented on the web.  They include Tobacco.org, federally funded antitobacco activist Stanton Glantz’s Tobacco Control Archives, Americans for Non-Smokers’ Rights, Action on Smoking and Health, and the American Council on Science and Health. Tobacco.org’s links list is especially comprehensive. The empire associated with Prof. Richard Daynard, participant in tobacco suits, oft-quoted expert, and professor at Northeastern U., includes the Tobacco Products Liability Project and Tobacco Control Resource Center, as well as the State Tobacco Information Center.  The Castano Group, a vast joint venture of trial lawyers cooperating to file tobacco class actions, maintains a website that is distinctly uninformative (unless you’re a lawyer/member or a cooperative pressie).

Relatively neutral sites include Yahoo Full Coverage.

Critics of the anti-tobacco crusade often note that it curtails individual liberty, freedom of contract and freedom of association.  As part of its Breaking Issues series (”Fining Smokers“), Reason magazine includes a list of online articles skeptical of the government’s role in the tobacco field, while Reason senior editor Jacob Sullum is the author of 1998’s For Your Own Good : The Anti-Smoking Crusade and the Tyranny of Public Health.  At the libertarian-oriented Cato Institute, Robert Levy has criticized “The Tobacco Wars“, written that “States Share Blame for Tobacco Lawyers’ Greed“, and called tobacco settlements “Dangerous to Your Liberty“; the state Medicaid suits, he argues, are “Snuffing Out the Rule of Law“. Cato’s Jerry Taylor describes the battle as “The Pickpocket State vs. Tobacco“. “The Anti-Tobacco Crusade” by Joseph Kellard, Capitalism magazine, March 1998, argues from a viewpoint supportive of Ayn Rand’s Objectivism. In Colorado, the Independence Institute maintains a Center for Personal Freedom run by Linda Gorman which draws the connection to other paternalist crusades on issues like drinking, seatbelt use and mandatory helmet laws.  The Heritage Foundation’s Todd Gaziano makes the case that a proposed federal lawsuit against tobacco companies is “elevating politics over law” (July 30, 1999 Backgrounder).  Overlawyered.com’s editor has taken exception to the retroactivity of the crusade, to its manipulative treatment of children, and to the hardball or demagogic tactics used in the Castano and Engle cases. Rep. Chris Cox (R-Calif.) delivered a notable critique of the tobacco litigation at a Congressional hearing held Dec. 10, 1997 (no longer online).

An extensive site offering an aggressive defense of smoking and smokers, along with a large collection of links, is Forces International (”Fight Ordinances and Restrictions to Control and Eliminate Smoking”).

Related posts

• November 2002 archives, part 1 (1)
• December 1999 archives, part 1 (1)
• March 2000 archives, part 2 (1)
• October 2002 archives, part 3 (1)
• October 1999 archives, part 1 (0)

Intellectual property, 2003: “He’s gotta have it” (Spike Lee v. Spike TV), Jun. 16-17; “Hiker cuts off use of his name“, Jun. 4-6.  2002: “Macaulay on copyright law“, Oct. 14; “‘Judge Throws Out “Harry Potter” Copyright Suit’“, Oct. 7-8; “How sharper than a serpent’s tooth it is/To have a precociously musical child” (singer James Brown sued by daughters), Sept. 20-22; “Skittish at Kinko’s” (won’t make copies of customer’s own published writing), Jul. 26-28; “Stolen silence?” (John Cage composition), Jul. 19-21; “Law blogs“, Jul. 3-9; “‘Top ten new copyright crimes’” (satire), Jun. 3-4; “‘A fence too far’” (Hollings bill), May 20-21; “ReplayTV copyright fight“, May 6; “A DMCA run-in” (linking to copyright violation), Apr. 16-17; “Intel Corp. versus yoga foundation“, Apr. 1-2; “Web speech roundup“, Mar. 25-26; “British Telecom claims to own hyperlinks“, Feb. 13-14 (& Oct. 1-2); “Overlawyered film sets“, Feb. 8-10; “‘”Let’s Roll” Trademark Battle Is On’“, Feb. 4-5 (& Feb. 11-12); “‘Aborigines claim kangaroo copyright’“, Feb. 1-3.  2001: “Radio daze“, Aug. 31-Sept. 2; “Barney’s bluster“, June 25 (& “Welcome Slashdot readers“, July 5); “Mich. lawyer’s demand: get my case off your website” (”Love Your Neighbor”, M-LAW, Overlawyered.com), June 20; “Value of being able to endure parody without calling in lawyers: priceless” (MasterCard), April 25; “Patenting the Web?“, April 3-4; “Scientologists vs. Slashdot“, Mar. 19-20.  2000: “Web-copyright update: ‘Dialectizer’ back up, ‘MS-Monopoly’ down“, Aug. 16-17; “‘Dialectizer shut down’“, May 18-21; “More assertions of link liability” (DVD hack), Dec. 31, 1999-Jan. 2, 2000. 1999: “Hey, what is this place, anyway?” (Pez Co. claims right to restrict use of word “Pez”), Oct. 16-17; “Copyright and conscience” (goodbye to “Dysfunctional Family Circus”), Oct. 7 (& see main IP section on tech law page). 

Lawsuits intimidate expression, 2003: “McDonald’s sues food critic” (Italy), Jun. 16-17.  2002: “PetsWarehouse.com defamation suit, cont’d” (linking, metatags), May 22-23 (& May 27, 2002, Oct. 4-6, 2002, Aug. 6, 2001); “AVweb capitulates to defamation suit“, Sept. 16-17 (& Sept. 18-19); “Defend yourself in print and we’ll sue” (Nike issue ads), May 3 (& Feb. 13-14); “Web speech roundup“, Mar. 25-26.  2001: “Gary to Gannett: pay up for that investigative reporting“, March 30-April 1; “Scientologists vs. Slashdot“, March 19-20; “‘Persistent suitor’” (criticism of academic journals’ publisher), Feb. 6. 2000: “Hauling commentators to court“, Dec. 1; “Degrees of intimidation” (book on “diploma mills”, Apr. 28-30; “Terminix vs. consumer critic’s website“, Mar. 31-April 2; “Costs of veggie-libel laws“, Mar. 20.  1999: “Feds: dissent on smoking = racketeering“, Sept. 23. 

Bans on web content not “accessible” to disabled: see special section on disabled rights page. 

Blaming media for violence, 2002: “Updates” (Jenny Jones case), Oct. 25-27; “‘Addictive’ computer game blamed for suicide“, Apr. 3-4 (& letter to the editor, Apr. 11).  2001: “Blame video games, again” (WTC terrorism), Sept. 24; “Put the blame on games” (Columbine), April 24, 2001 (& see March 6, 2002: judge dismisses case); “Judge throws out Hollywood- violence suit” (Oliver Stone, Natural Born Killers), March 13-14.  2000: “Hollywood under fire: nose of the Camel?“, Sept. 19; “‘Violent media is good for kids’“, Sept. 13-14; “Shoot-’em-ups: hand over your files“, June 19; “Judge dismisses suit blaming entertainment business for school shootings“, April 13.  1999: “Down the censorship-by-lawsuit road“, Oct. 12; “‘Bringing art to court’“, Sept. 9; “Censorship via (novel) lawsuit” (media companies sued after school shootings), July 22. 

Harassment law: “‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001; “Harassment-law roundup” (pin-ups, bar owner case), May 4, 2000; “The scarlet %+#?*^)&!“, March 7; “Recommended reading” (Roland White in London Times on chill to office banter), Jan. 25, 2000; “Suppression of conversation vs. improvement of conversation“, Nov. 12, 1999 (excerpts from Joan Kennedy Taylor book); “‘Personally agree with’ harassment policy — or you’re out the door“, Sept. 22; “EEOC encourages anonymous harassment complaints“, Sept. 3, 1999; and see separate page on harassment law.

Those dangerous emails: “Cartoonist’s suit over practical joke“, Oct. 26-28, 2001 (& letter to the editor, Nov. 29); “Big fish devour the little?” (listserv defamation, aquatic plants case), Aug. 6, 2001; “Harassment-law roundup” (email-shredding software), Feb. 19-21, 2000; “Emails that ended 20 Times careers“, Feb. 8-9, 2000; “Hold your e-tongue” (emails “can kill you in a courtroom”), Nov. 9, 1999; “Please — there are terminals present” (Bloomberg email system censors bad words), July 30; “‘Destroy privacy expectations’: lawyer” (tell workers their email and hard drives are open to company inspection), July 26, 1999; and see separate page on harassment law.

Web liability issues, 2002: “AVweb capitulates to defamation suit“, Sept. 16-17 (& Sept. 18-19); “PetsWarehouse.com defamation suit, cont’d” (linking, metatags), May 22-23 (& Oct. 4-6); “A DMCA run-in” (linking to copyright violation), Apr. 16-17; “Web speech roundup“, Mar. 25-26; “Columnist-fest” (N.Y. Times v. Tasini), Feb. 11-12; “Web defamation roundup“, Jan. 18-20.  2001: “Words as property: ‘entrepreneur’” (domain name dispute), Nov. 1; “University official vs. web anonymity“, Oct. 30; “‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3; “Anonymity takes a D.C. hit” (Italy licenses web publishers), May 21; “Scientologists vs. Slashdot“, March 19-20.  2000: “Yahoo pulls message board“, Oct. 18; “‘Regulating Privacy: At What Cost?’” (Swedish privacy laws), Sept. 20; “Web-copyright update: ‘Dialectizer’ back up, ‘MS-Monopoly’ down“, Aug. 16-17; “Dangers of linking“, June 7; “Illegal to talk about drugs?“, May 30; “‘Dialectizer shut down’“, May 18-21; “eBay yanks e-meter auctions” (copyright claim), May 3; “Terminix vs. consumer critic’s website” (metatags), March 31-April 2; “More assertions of link liability” (DVD hack), Dec. 31-Jan. 2.  1999: “Link your way to liability?” (professor sues over “course critique” website), Nov. 15 (& update Oct. 10, 2000); “We ourselves use ’sue’” (competitors’ names used as metatags), Sept. 25-26; “Don’t link or I’ll sue” (”deep linking” suits), Aug. 13 (& update April 5, 2000: court rules deep linking not violation).  Plus: our 404 message; & see data collection, disabled online access issues, and high-tech law generally. 

Other media/performance accessibility issues, 2002: “11th Circuit reinstates ‘Millionaire’ lawsuit” (suit against “Millionaire” TV show over telephone-based screening), Jun. 21-23 (& Mar. 24-26, June 12, June 19, Nov. 7, 2000; Nov. 5, 2001).  2001: “‘Panel backs deaf patron’s claim against club’” (interpreter demand at comedy club), March 9-11.  2000: “Seats in all parts” (theaters), Dec. 29, 2000-Jan. 2, 2001; “Movie caption trial begins” (assistive devices aid concert bootleggers), Aug. 1; “Complaint: recreated slave ship not handicap accessible“, July 21-23; “Preferred seating” (theaters), April 25-26; “Newest disabled right: audio TV captioning“, March 22; “‘Deaf group files suit against movie theaters’” (closed captioning demand), Feb. 19-21; “The fine print” (sue Boston Globe for reducing type size?), Feb. 17. 

Surveillance: “Collateral damage in Drug War” (identity of book buyer), Apr. 28-30, 2000; “Chat into the microphone, please” (SEC plan to trawl Web), Apr. 11; “The booths have ears” (restaurant conversations spied on in U.K.), Apr. 5; “The bold cosmetologists of law enforcement“, Mar. 29; “Your hairdresser — and informant?“, Mar. 16, 2000; “EEOC encourages anonymous harassment complaints“, Sept. 3, 1999. 

Defamation, 2003: “Around the blogs” (N.Y. Times brass), Jun. 18-19. 2002: “PetsWarehouse.com defamation suit, cont’d“, May 22-23; “Web speech roundup“, Mar. 25-26; “Web defamation roundup“, Jan. 18-20; “The talk of Laconia“, Jan. 2-3. 2001: “Attorney can sue for being called ‘fixer’“, Dec. 5-6; “University official vs. web anonymity“, Oct. 30; “Disparaging stadium nickname leads to suit“, Jul. 5 (& update Aug. 29-30: company drops suit); “Patenting the Web?” (TechSearch v. Intel defamation suit), Apr. 3-4.  2000: “Toronto coach: Ich kann nicht anders” (had to file defamation suit), Apr. 25-26 (& update May 4, case dropped); “Great moments in defamation law” (armed robber sues own lawyer for mistakenly calling him heroin instead of crack abuser), Apr. 14-16.

Advertising, 2003: “Clear Channel = Deep Pocket” (advertising as nexus of liability in nightclub fire?, Mar. 10-11. 2002: “Lawsuit threats vs. campaign speech“, Oct. 4-6 (& May 18-21, 2000); “Defend yourself in print and we’ll sue” (Nike issue ads), May 3 (& Feb. 13-14); “Norway toy-ad crackdown” (sexism), Apr. 23-24; “‘FTC Taking “Seriously” Request to Probe Firearms Sites’” (unlawful to recommend guns for family security?), Jan. 16-17.  2001: “Radio daze“, Aug. 31-Sept. 2; “Ghost blurber case“, June 12; “Old-hairstyle photo prompts lawsuit“, June 1-3; “Junk-fax bonanza“, March 27 (& March 3-5, 2000, Oct. 22, 1999). 2000: “Web-advertisers’ apocalypse?“, Apr. 20.  1999: “Free expression, with truth in advertising thrown in?” (lawyer’s Jolly Roger flag dispute), Dec. 31; “Feds: dissent on smoking = racketeering“, Sept. 23, 1999 (and see lawyers’ advertising page). 

TV, 2003: “He’s gotta have it” (Spike Lee v. Spike TV), Jun. 16-17; “Jailhouse rock” (VH1), Mar. 10-11; “‘Jack Ass blasts “Jackass”‘“, Jan. 3-6.  2002: “Updates” (Jenny Jones case), Oct. 25-27; “‘Demand for more ugly people on TV’” (Norway: higher “ugly quotas” sought), Oct. 21; “Lawsuit threats vs. campaign speech“, Oct. 4-6; “11th Circuit reinstates ‘Millionaire’ lawsuit” (suit over show’s telephone-based screening), Jun. 21-23 (& Mar. 24-26, June 12, June 19, Nov. 7, 2000; Nov. 5, 2001); “Soap star: ABC wrote my character out of the show“, Apr. 10.  2001: “Suing ‘The Sopranos’“, Apr. 6-8 (& Jul. 12-14, 2002: case dropped); “‘Survivor’ contestant sues“, Feb. 7-8.  2000: “Behind ‘Boston Public’“, Nov. 21; “Palm Beach County ‘Under Control’” (suit against network for erroneous election-eve projection), Nov. 16; “Why the bad guys can’t stand John Stossel“, Aug. 18-20; “Won’t pay for set repairs” (Orkin ad leads viewers to throw objects at their TVs), May 30; “Thomas the Tank Engine, derailed” (show’s email contact with young fans), May 25; “Sock puppet lawsuit” (”Late Show with Conan O’Brien” writer), Apr. 27; “Who wants to sue for a million?” (suit against game show for lack of disabled access), Mar. 24-26 (& update Jun. 12); “Newest disabled right: audio TV captioning“, Mar. 22; “Letterman sign suit“, Mar. 17-19.  1999: “The fateful T-shirt” (Leno show giveaway suit), Dec. 7. 

Articles by Overlawyered.com editor Walter Olson: “The Law on Trial“, Wall Street Journal, October 14, 1997 (review of Beyond all Reason by Daniel Farber and Suzanna Sherry).  “Shut Up, They Explained” (”zero-tolerance” harassment policies), Reason, June 1997.  “Judge Dread” (on Robert Bork, Slouching Toward Gomorrah), Reason, April 1997. Tags: ACLU, advertising, Australia, Bill McClellan, broadcasters, Chrysler, Clear Channel, copyright, Dallas, deep pocket, Denver, fair housing, free speech, Italy, John Stossel, libel slander and defamation, Madison County, music and musicians, newspapers, Norway, online speech, reparations, Sweden, trademarks, Utah Related posts May 2000 archives, part 2 (0) September 2000 archives, part 1 (0) November 2000 archives, part 1 (0) November 1999 archives, part 1 (1) May 2001 archives, part 3 (0) ]]> http://overlawyered.com/2003/06/archived-media-law-free-speech-items-pre-july-2003/feed/ 0