I have an op-ed in today’s New York Sun on the affirmance of the “Port Authority is 68% responsible for the 1993 World Trade Center car bomb” verdict. Earlier.

In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What’s Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).

Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not “legal error” to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys’ incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.

A New York State Supreme Court Justice has denied a defense motion to set aside the jury verdict finding the Port Authority primarily responsible for the first terrorist attack on the World Trade Center. (AP, Mar. 2) Now to a whole new jury trial on damages for the up-to-400 remaining plaintiffs, unless the Port Authority appeals.

Aside from the bizarre assignment of responsibility (68% to the Port Authority, just 32% to the terrorists), the case also demonstrated yet another exemplary feature of our tort system: a speedy resolution of claims. The attack was fourteen years ago — and damages haven’t even been calculated yet (let alone the appellate process begun).

Originally covered by Overlawyered: Oct. 27, 2005.

For the past three years, Stan Cramer has been fighting to save his parking garage near the Harrisburg International Airport from eminent domain seizure by the airport’s municipal operating authority. The airport wants to eliminate competition with its own parking lots, and when Cramer refused to sell voluntarily, the authority used its powers under Pennsylvania law to take the property by force. Recently, a Pennsylvania judge allowed Cramer’s lawsuit to stop the seizure to proceed to trial.

In a related case, Pennsylvania AG Tom Corbett filed a federal lawsuit last year to stop the airport authority’s seizure on the grounds that it violates federal antitrust law. It’s a strange setup: The Commonwealth of Pennsylvania suing one of its own subdivisions in federal court over the use of power granted by state law. In March, U.S. District Judge Christopher Conner dismissed the AG’s complaint, citing the airport authority’s immunity from federal antitrust lawsuit as a state actor. Conner said the airport’s anti-competitive motives were irrelevant; its actions were clearly authorized by the Pennsylvania legislature.

Corbett appealed the judge’s dismissal to the Third Circuit Court of Appeals. Briefs were filed in October, and a decision on the appeal is expected next year. Meanwhile, new management has taken over at the airport, and they are trying to negotiate a settlement with Cramer.

Continue Reading »

In the Washington Post, Brandt Goldstein gives me a mention in the course of reviewing The Money Lawyers, the new book by Joseph Goulden profiling some of the country’s most powerful attorneys (”Legal vultures”, Washington Post, Jan. 18). I gave this book a blurb, which can be seen on its back jacket (”Eye-opening and timely. Goulden gives us a close look at some of the nation’s most powerful lawyers. Both friends and foes will learn a great deal.”)

On Dec. 18 the Chicago Sun-Times took note of Ted’s entry about the cautionary wording on a Milky Way chocolate bar, “Warning: contains milk”. (Zay N. Smith, “An intelligent look at who knew what”, Chicago Sun-Times, not online). I’m quoted in an editorial (I think that’s what it is) on punitive damages in the Fredericksburg, Va. paper (”Punitive-damage reform takes a big step in the General Assembly”, Fredericksburg Free Lance-Star, Jan. 20). Aileen Cho of the Engineering News Record quoted me in an article on a New York jury’s ruling that the city’s Port Authority was largely responsible for the 1993 WTC bombing (”Jury Says Agency Liable in Bombing”, Nov. 7, not online). And in the ABA Journal eReport, G.M. Filisko quotes me airing some of my differences with AEI’s Alex Tabarrok concerning the workings of the lawyer’s contingency fee (”Fee Caps Won’t Solve Liability Crisis, Study Says”, Sept. 23).

A few weeks ago (see Oct. 27, Oct. 29) a jury decided to hold the Port Authority of New York and New Jersey 68 percent to blame for the first World Trade Center bombing, and the terrorists themselves only 32 percent responsible. Now the authority has filed court papers declaring that the verdict “shocks the conscience” and urging that it be set aside. According to the motion, the outcome in the case “stemmed directly from the court’s jury instructions and verdict sheet interrogatories that violated the Port Authority’s fundamental right to a fair trial.” The authority also faults Judge Nicholas Figueroa for “banning testimony from terrorism experts called by the authority,” and for asserting that he would be justified in overturning a defense verdict should the jury return one. (Anemona Hartocollis, “Port Authority Seeks Voiding of Jury Verdict”, New York Times, Dec. 7). Andy MacCarthy has a comment at National Review Online.

New York Times columnist Clyde Haberman, on a jury’s determination last week (Oct. 27, Oct. 29) that negligent security on the part of New York’s Port Authority was more responsible for the damage from the first (1993) bombing at the World Trade Center than the Islamist terrorists themselves:

Through some mathematical wizardry, the jurors held the authority to be 68 percent at fault, the murderers only 32 percent.

Poor terrorists! Guess they couldn’t help themselves. They must have felt they had no choice but to take advantage of a security lapse.

(”Sometimes Big Brother Is a Protector”, Nov. 1, immured behind Times Select wall).

If the agency is indeed made to pay $1.8 billion for not preventing the first (1993) bombing, as suggested by this week’s jury verdict (Oct. 27), it could be forced “to reduce drastically its spending on the region’s airports, bridges and tunnels,” its leaders say. Hmmm… since security measures are among the big items in the current budget, might that not have menacing implications for future anti-terrorist preparedness all by itself? And Mark Geistfeld, a law prof at NYU, agrees that “It’s really hard to get your mind around” the jury’s finding that the terrorists themselves were only 32 percent responsible for the outrage, with the agency responsible for 68 percent. (Anemona Hartocollis and Patrick McGeehan, “Port Authority Fears Costs From Verdict”, New York Times, Oct. 28). More: the Times has a fascinating article about winning plaintiff’s lawyer David J. Dean, who bounced back from disbarment (Oct. 30). Yet more: David Bernstein, Orin Kerr and commenters. And the Washington Examiner blasts the verdict in an editorial that kindly quotes me (”Blame the terrorists, not their victims”, Oct. 31).

Twelve years after the event, a jury finds someone to blame for the Islamist van-bomb attack that killed six, injured nearly 1,000, and caused costly business dislocation (Sept. 21, 2005, Dec. 5, 2004, Oct. 12-14, 2001). The culprit? The Port Authority, an agency whose losses are likely to be ultimately borne by New York and New Jersey taxpayers, motorists and air travelers:

The jury voted unanimously that the Port Authority [then-owner of the WTC] was negligent. It found the authority 68 percent at fault for the bombing, while the terrorists who carried it out were 32 percent at fault.

Mr. [David J.] Dean, the plaintiffs’ lawyer, said that because the jury apportioned more than half the blame to the Port Authority, the agency will have to pay 100 percent of any damages for pain and suffering, the so-called non-economic damages, that might be awarded.

Regardless of how the blame was shared, the Port Authority would have to pay 100 percent of any economic damages, like lost business, he said.

Separate legal proceedings will be used to determine actual payouts; “Lawyers for the plaintiffs said they were seeking a total of as much as $1.8 billion.” And this from Mr. Dean: “The case was never about blaming the terrorists.” Well, of course it wasn’t, from his point of view, was it? (Anemona Hartocollis, “Port Authority Found Negligent in 1993 Bombing”, New York Times, Oct. 27).

So there you have it. “What is robbing a bank compared with founding a bank?” wrote Bertolt Brecht, and now we learn that being the target of a terrorist act carries with it more than twice as much responsibility for the resulting damage as actually planting and detonating the bomb. The jury’s (and plaintiff’s lawyer’s) rationale was that security experts had warned that the use of car bombs was on the rise, and yet the PA did not take the (massively disruptive to its tenants) step of closing its enormous underground garage to the public. Inevitably, the lawyers portrayed the earlier advice as a “smoking gun”, a strategem I describe in Chapter 6 of The Litigation Explosion:

Among the favorite smoking-gun generators are memo debates or unheeded suggestions within an organization. The sought-after memo will advise the hotel to dismantle the diving board, the brokerage to go easy on the risky investment, the magazine to kill the hard-hitting investigative story, the hospital to close down the vaccination program that has attracted malpractice suits. (They knew it was wrong to go ahead!) New York City injury king Harry Lipsig’s law firm got a $1.8 million settlement for forty-six-year-old postal worker Freddie Brown, mugged and badly hurt in a housing project lobby, after they found a security specialist whose recommendations to upgrade security at the project had gone unheeded. “We couldn’t lose,” jubilated lawyer Thomas Stickel. “With that witness, we had the city by the throat.” Actually, it would be a wonder if the files of a city as intensively governed as New York did not contain unheeded recommendations by the bushelful on countless subjects.

The logic of lawyers’ search for “smoking guns” is that an organization faces one of three unattractive choices: put itself at risk for verdicts like this; implement any and all recommendations it gets from security experts, no matter that many of them will be costly and intrusive (like, say, stadium patdowns for football fans) and will guard against dangers that never would have materialized; or alternatively, arrange its affairs so that fewer safety recommendations enter its files in the first place, either by asking its experts to commit fewer ideas to paper, or just by not employing them. The New York Sun quotes me today in its coverage of the story: David Lombino, “Port Authority Is Held Liable in Bombing That Killed Six in 1993 Attack on WTC”, New York Sun, Oct. 27. More:Ann Althouse and commenters discuss the verdict, while Michael Krauss at Point of Law hopes it will be thrown out on grounds of lack of proximate cause.

Trial is starting in a liability case against New York’s Port Authority over the 1993 bomb attack on the World Trade Center (see Dec. 5, 2004). (cross-posted from Point of Law).

Eleven years after the first terrorist bombing of the World Trade Center, a suit against New York’s Port Authority still hasn’t reached trial, though it’s inching closer (Tom Perrotta, “Liability for 1993 WTC Bombing Argued in Appeals Court”, New York Law Journal, Nov. 10)(see Oct. 12-14, 2001).

Even though the 9/11 commission (debunking certain widely circulated stories to the contrary) concluded that the government of Saudi Arabia did not fund al-Qaeda, several institutional victims of the terrorist attacks, including Cantor Fitzgerald Securities and the Port Authority of New York and New Jersey, recently filed suit against a long list of foreign entities including the Saudi government and various financial institutions for their alleged role in the attacks (Larry Neumeister, “Port Authority to Join Suit Against Saudi Arabia Over 9/11 Attack”, AP/Law.com, Sept. 13). The U.S. government has been highly critical of the freelance use of private litigation to second-guess the state of U.S.-Saudi relations, which has in no way deterred colorful asbestos-tobacco zillionaire Ron Motley from setting up his own mini-CIA-cum-State-Department-for-profit toward that end (Jennifer Senior, “Intruders in the House of Saud, Part II: A Nation Unto Himself”, New York Times Magazine, Mar. 14)(see Jul. 11, 2003). And in the New York Observer, Nina Burleigh in February profiled attorney Brian Alexander of the prominent plaintiff’s air-crash firm of Kreindler & Kreindler, who had “already filed a suit — on behalf of the families of more than 1,000 9/11 families?against a list of foreign entities hundreds of pages long.” (”Air Disasters, Legal Fees And Justice for the Victims”, New York Observer, Feb. 23).

November 30-December 2 – Be somewhat less afraid. Notwithstanding a scare campaign by antinuclear activists including the egregious Robert F. Kennedy Jr., two physicists argue that U.S. nuclear power plants are not likely to top the list of targets of opportunity for terrorists seeking to inflict mass casualties (Gerald E. Marsh and George S. Stanford, “Terrorism and Nuclear Power: What are the Risks?”, National Center for Policy Analysis Analysis #374, November; “NY Nuclear Plant Shutdown Sought Pending Security Review”, AP/Dow Jones/Business Times, Nov. 9 (RFK Jr. compares Indian Point facility near NYC to nuclear bomb); NCPA “Ten Second Response” series, “Media Overplays Risk of Terrorist Attacks on Nuclear Power Plants”, Nov. 16). California agricultural officials are seeking to calm public fears that Central Valley crop dusters furnish a likely method of attack on major urban targets; among the planes’ limitations are their constricted range and speed (Michael Mello, “Crop-dusters nothing to fear, officials told”, Modesto Bee, Nov. 29). And for a really contrarian view, U.S. Army veteran Red Thomas has written a short essay on why, if you possess fairly minimal civil defense smarts, you’re likely to survive a chemical, biological or even radiological attack. (”The Real Deal — Words of Wisdom About Gas, Germs, and Nukes” — Snopes.com, via Libertarian Samizdata and Rallying Point weblogs).

November 30-December 2 – “U.S. Judge Dismisses All but One Columbine Lawsuit”. “A federal judge on Tuesday dismissed all but one lawsuit filed against police and all claims lodged against a school district by victims and relatives of people killed and injured in the 1999 Columbine High School shooting, lawyers said.” (Yahoo/Reuters, Nov. 27)

November 30-December 2 – Whiplash days: a memoir. Back in 1992, actor/writer Thomas M. Sipos (books: Vampire Nation, Manhattan Sharks, Halloween Candy) answered a help wanted ad in Los Angeles’s newspaper for lawyers and took a job with a high-volume personal injury law firm. He’s now published on his website a memoir of that experience, entitled “How To Make Money In Soft Tissue Injury” — names changed to protect the not necessarily innocent.

November 30-December 2 – Rejecting an Apple windfall. The news that a disgruntled Apple employee had filed a race discrimination lawsuit seeking $40 million from the computer maker prompted this reaction from one African-American who recalls his own run-in with prejudice at a high-tech employer (AppleLinks, “Moore’s Mailbag”, letter from Marvin Price, Nov. 9; Duncan Campbell, “Apple faces £27m ‘race bias’ lawsuit”, The Guardian, Nov. 9).

November 29 – “Patriot Act would make watchdogs of firms”. “Ordinary businesses, from bicycle shops to bookstores to bowling alleys, are being pressed into service on the home front in the war on terrorism. Under the USA Patriot Act, signed into law by President Bush late last month, they soon will be required to monitor their customers and report ’suspicious transactions’ to the Treasury Department — though most businesses may not be aware of this.” (Scott Bernard Nelson, Boston Globe, Nov. 18).

Broadcaster Neal Boortz, who unlike many lawmakers actually sat down and read the text of the USA Patriot Act, spells out the details of what this means: “if you go to a business [not just a bank] and spend more than $10,000 in cash that business has to report your name, address, social security number and other pertinent information to the feds. It doesn’t matter whether you spend the money on one item, or a whole shopping cart full … the federal government must be notified.” He adds: “This has absolutely nothing to do with international terrorism” — at least not the variety practiced by the Sept. 11 killers, who used credit cards and “did not deal in large amounts of cash. … They never spent $10,000 in cash with any business. In short, they never engaged in any activity that would have to be reported under Section 365.” (Neal Boortz, “Neal’s Nuze: The ‘Patriot’ Act???”, Nov. 20). In fact, the Treasury Department has been hoping to extend federal “money laundering” law in this manner for years; it just wasn’t pressing an anti-terrorism rationale for doing so (see “Lost in the Wash”, Reason, March 1999). According to Gabriel Schoenfeld in Commentary, one of the conclusions of former CIA counterterrorism deputy director Paul R. Pillar in a major new study of terrorism policy for Brookings is that financial controls are primarily of “symbolic” importance in combating terrorism, which unlike drug trafficking typically involves the transfer of only smallish sums. (”Could September 11 Have Been Averted?”, Commentary, December).

November 29 – Taco Bell a liquor purveyor? Well, no, you can’t buy booze at its outlet in Fort Smith, Ark. However, after several of its employees there attended a party together on their own time, one got into a fatal traffic accident, and before you can say “Yo quiero deep pockets” the lawyers had figured out who they really wanted to blame (Jeff Arnold, “Taco Bell Attorneys Seek Dismissal”, Fort Smith Times-Record, Nov. 9). Update Feb. 20: case settled.

November 29 – Lutefisk as toxic substance, and other reader letters. A Wisconsin attorney writes to say that his state’s employee right-to-know law specifically excludes the Scandinavian discomfort food from being considered a toxic substance; and we hear about precedents for Sept. 11 litigation, the proper response to malicious email pranks, and whether judges should expect any more privacy than the people who appear before them.

November 29 – “North America’s most dangerous mammal”. It’s not the grizzly bear or mountain lion, but adorable Bambi: deer-car collisions kill 130 Americans a year and seriously injure many more. Meanwhile, “nearly all the venison served in America’s finest restaurants is imported from places like New Zealand (where deer are an exotic species).” One idea for getting more on platters and fewer on fenders: reconsidering old laws restricting traffic in hunted game. (Ronald Bailey, Reason, Nov. 21).

November 28 – Bioterror unpreparedness. First the government does its best to render the making of vaccines uneconomic; then it declares that the private sector has failed and vaccine production must be federalized (Sam Kazman & Henry I. Miller, “Uncle Sam’s Vaccines”, National Review Online, Nov. 26; Naomi Aoki, “Nation wants vaccines, but drug makers remain wary of the risks”, Boston Globe, Nov. 14). Meanwhile, the haste with which politicians like Sen. Charles Schumer and anti-intellectual-property activists called (quite unnecessarily) for abrogating Bayer’s patent in its antibiotic Cipro helped send the worst possible signal to drug companies’ research budgeters about the safety of their investments (James Surowiecki, “No Profit, No Cure”, The New Yorker, Nov. 5; John E. Calfee, “Bioterrorism and Pharmaceuticals: The Influence of Secretary Thompson’s Cipro Negotiations”, draft, American Enterprise Institute, Nov. 1).

November 28 – Oklahoma forensics scandal, cont’d. The Washington Post has a substantial front-page piece catching up with it. “Already, a reexamination of [Joyce Gilchrist's] work has freed a convicted rapist and a death row inmate, overturned a death sentence, and called into question the evidence used to execute a man last year.” (Lois Romano, “Police Chemist’s Missteps Cause Okla. Scandal”, Nov. 26)(see May 9).

November 28 – “Does reading grades aloud invade privacy?” The Supreme Court has now heard arguments on that very strange case (see June 27) in which a teacher who allowed students to rate each other’s performance on an exam was accused of violating federal “educational privacy” laws. (Warren Richey, Christian Science Monitor, Nov. 27; Frank J. Murray, “Students’ grading papers passes Supreme Court’s test”, Washington Times, Nov. 28; Marcia Coyle, “High Court Faces First School Records Case”, National Law Journal, Nov. 13). Update: high court rules practice not unlawful (Feb. 22, 2002).

November 28 – Fiat against further fatherhood. The Wisconsin Supreme Court “has upheld a ban preventing a man who owes thousands of dollars in child support from having any more children. The court ruled that David Oakley, a father of nine, would be imprisoned if he had another child, unless he was able to prove that he would pay support for both that child and his current offspring.” (BBC, “Baby ban on US child support shirker”, Nov. 24).

November 27 – U.K. to compensate relatives who saw WTC attack on TV. “British families who watched their relatives die during live television coverage of the terrorist attacks on the World Trade Center may receive compensation for the trauma they suffered. The Criminal Injuries Compensation Authority (CICA), which normally compensates people who witness in person a relative killed or injured in Britain, has taken the unprecedented decision that people who watched coverage of the 11 September attacks should be eligible for payments. … Those eligible will receive payouts of between £1,000 and £500,000, although the average level will be an estimated £20,000.” Under earlier rules, such payouts were made only in cases where family members witnessed crimes that took place in Great Britain. Critics complain that the U.K. is developing a “compensation culture”. (Matthew Beard, “British families of New York victims may be compensated for trauma”, The Independent, Nov. 19; Dominic Kennedy, “Surprise payout for relatives who saw attack on TV”, The Times, Nov. 19; Sarah Womack, “Cash plan for British TV witnesses”, Daily Telegraph, Nov. 19).

November 27 – Target: ethnic-immigrant landlords. Latest shock-horror on the housing front: many ethnic immigrant landlords prefer to rent units to members of their own minority group. Who knew? Such patterns have been detected among “Cambodians in Long Beach, Latinos in El Monte and Taiwanese in Rosemead”; some landlords, it seems, will take tenants from their own state in Mexico but not from other states in Mexico. The L.A. Times lends a sympathetic ear to civil rights activists who send out “testers” to catch such building owners and supers in the act, though the article does not explore the hefty financial rewards sometimes available when activists succeed in these missions (see “Tripp Wire”, Reason, April 1998). The article quotes no critics of the law, but does unveil yet another demand coming down the pike: “In California, advocates say the state should require antidiscrimination training for landlords.” (Sue Fox, “Mi Casa No Es Su Casa”, L.A. Times, Nov. 21).

November 27 – Columnist-fest. Very topical stuff today:

* The proposed settlement of (some of) the private Microsoft class actions (donations of outdated product to school districts, which could entrench the company even more as standard-setter) may be absurd, but blame that on the absurdity of the underlying lawsuits themselves, argues Nick Schulz (”‘You’re an Evil Predator; Now Teach My Kids’”, TechCentralStation.com, Nov. 23; Matthew Fordahl, “Few criticize Microsoft deal”, AP/Seattle Post-Intelligencer, Nov. 24).

* Canada’s super-liberal asylum policies are coming under a lot more scrutiny (Christie Blatchford, “Canada and terrorism: programmed to receive”, National Post, Nov. 24; “Canada probes 14,000 refugees”, Nov. 24)(see Sept. 14-16). See Cindy Rodriguez, “Suspects take advantage of liberal asylum program”, Boston Globe, Nov. 23 (tossed grenades at airliner, now collects welfare in Ontario).

* “A desperately needed bill to protect the nation’s insurance industry and the greater economy after Sept. 11 remains in dire peril, thanks to the financial pressure group that exerts the most influence over the Democratic Party: the plaintiff trial lawyers of America.” (Robert Novak, “Politics as usual”, syndicated/TownHall, Nov. 22).

November 26 – Utah: rescue searchers sued. “The family of Paul Wayment and his son Gage have filed claims against searchers who did not find 2-year-old Gage before he froze to death last year. The family of Paul Wayment is seeking more than $3 million. Paul Wayment committed suicide after being sentenced to jail for negligent homicide in his son’s death. The family is accusing searchers of being negligent in their efforts to find Gage and are seeking more than $2 million in damage for the deaths of father and son.” (Pat Reavy, “Wayment kin sue searchers”, Deseret News, Nov. 21; Jim Woolf, “Multimillion-Dollar Claim Filed By Wayments Against Searchers”, Salt Lake Tribune, Nov. 21; Lucianne.com thread).

November 26 – “Smokers Told To Fetter Their Fumes”. In suburban Washington, D.C., the Montgomery County, Md. council has approved a measure setting stiff fines for residents who smoke at home if their neighbors object. “Under the county’s new indoor air quality standards, tobacco smoke would be treated in the same manner as other potentially harmful pollutants, such as asbestos, radon, molds or pesticides. If the smoke wafts into a neighbor’s home — whether through a door, a vent or an open window — that neighbor could complain to the county’s Department of Environmental Protection. Smokers, and in some cases landlords or condominium associations that fail to properly ventilate buildings, would face fines of up to $750 per violation if they failed to take steps to mitigate the problem.” “This does not say that you cannot smoke in your house,” said council member Isiah Leggett (D-At Large). “What it does say is that your smoke cannot cross property lines.” Arthur Spitzer, legal director of the American Civil Liberties Union’s capital area chapter, expressed unease over the proposal, but George Washington U. law prof and anti-smoking activist John Banzhaf, who has been known to give class credit to students for suing people, calls it a “major step forward”. (Jo Becker, Washington Post, Nov. 21; Jacob Sullum, “The Home Front”, Reason Online, Nov. 27) (see also Oct. 5-7). Update: plan is dropped after storm of criticism (Jo Becker, “Global Ridicule Extinguishes Montgomery’s Anti-Smoking Bill”, Washington Post, Nov. 28).

November 26 – After racist gunman’s assault, a negligent-security suit. “A San Fernando judge is set to decide if the North Valley Jewish Community Center can be sued for failing to protect 5-year-old Benjamin Kadish from a racist gunman who opened fire inside the Granada Hills facility in August 1999, injuring the boy and four others. Benjamin’s parents, Eleanor and Charles Kadish, sued the center in April, claiming the center’s officials should have known the facility ‘was a target for anti-Semitic attacks’ and taken appropriate security precautions, such as locking entrances and hiring guards.” Defense lawyers for the center call the Kadishes’ lawsuit “inappropriate, divisive and utterly unsupported by the law”. “There cannot be a duty on the [center] to prevent the likes of Buford Furrow from doing this terrible thing,” attorney Scott Edelman said. “They are suing a victim.” (Jean Guccione, “Judge to Rule on Suit Over Shooting”, Los Angeles Times, Nov. 19).

November 23-25 – Disposable turkey pan litigation. The National Law Journal’s Gail Diane Cox decided to follow up on some of the suits that get filed after each holiday season against makers of disposable turkey roasting pans, alleging that the pans buckled or collapsed causing personal injuries to result from oven-hot birds or drippings. Attorney Matthew Willens of the Rapoport Law Offices in Chicago said his office’s case on behalf of a 69-year-old Illinois woman hurt in a pan incident on Thanksgiving Day 1995 settled for “a decent amount, if not the millions that some of these cases seek,” but that his office did not pursue opportunities for cases brought in by resultant publicity: “We didn’t want to become known as the turkey pan guys.” (”Voir Dire: Thanksgiving law a turkey”, National Law Journal, Nov. 12, not online). (DURABLE LINK)

November 23-25 – “School sued over poor results”. One we missed last month from the U.K. educational scene: “A student is suing her former school, claiming poor teaching was to blame for her failure to achieve a top grade at A-level. Kate Norfolk, who attended £4,000 per term independent school Hurstpierpoint College, West Sussex, says she was not properly prepared for her Latin A-level. … Her family has issued a writ to the High Court, seeking £150,000 to cover the loss of future earnings, school fees and compensation for the distress caused.” (BBC, Oct. 1).

November 23-25 – Australian roundup. In Australia, Supreme Court Justice Peter McClellan has ruled against Kane Rundle’s claim for more than $1 million in compensation for brain damage suffered when, as he leaned out of a train carriage to spray-paint graffiti on a wall, his head collided with a stanchion. Rundle had argued that the State Rail Authority was negligent “because it had failed to ensure a carriage window could not be opened far enough to put his body through.” (Will Temple, Queensland Courier-Mail, Oct. 6). In the state of Victoria, a woman has won a $20,000 payout from the police for being handcuffed by police in a 1993 incident after she failed a breath test; police sources said the woman had “started banging her head against a wall for several minutes and was handcuffed to a chair [for five minutes] to stop her injuring herself” while the woman contended in a 1998 writ that the cuffed state had lasted a half hour and that she had been severely bruised. A police spokesman said the payout was made after considering the expected cost of fighting the claim and that the department did not concede any liability. “In the past 2 1/2 years, about $5 million has been paid out by police over alleged bashings, illegal arrests and jailings. Police have blamed ‘no win, no fee’ lawyers for fueling a flood of claims.” (Nick Papps, “$20,000 payout for handcuffing”, Sunday Herald-Sun (Melbourne), Sept. 9). However, a Perth bodysurfer dumped by a wave lost his case arguing that the local council breached its duty of care by not posting signs warning of the dangers of bodysurfing, leading one frustrated Aussie private citizen to post a formal declaration: “I hereby publicly totally renounce any duty of care to anybody. … If a person wants to commit suicide, it is not my duty to talk them out of it.” (”Ziggy”, “Blame Others for Your Mistakes“). (DURABLE LINK)

November 21-22 – Liability limits speed WTC recovery. How to help New York City and the commercial aviation business recover from the devastating blows of September? When the chips are down, there’s no substitute for reining in our system of unlimited liability and unpredictable punitive damages, as is being recognized in the WTC case by some unlikely candidates for the role of tort reformer, like New York Sens. Hillary Rodham Clinton and Chuck Schumer, both Democrats who have opposed liability limits in the past. Clinton and Schumer have now successfully pressed for legislation to protect the operator/leaseholder of the destroyed WTC, Larry A. Silverstein; the Port Authority; the city of New York; airport operators such as Boston’s Logan; and certain aircraft makers from the prospect of unlimited, ruinous liability in a decade or more of future litigation. Most of these entities will see their exposure limited to the extent of their insurance or, in the case of the self-insured city of New York, to $350 million, a figure that approximates the city’s annual payout for suits of all other kinds. Sen. Patty Murray (D-Wash.) went to bat for provisions protecting Boeing, which has large operations in Washington state; the airlines themselves were protected in an earlier round.

House Judiciary Chairman James Sensenbrenner (R-Wisc.) warns that various less obvious targets that wield less clout on the Hill, including World Trade Center architects, steel manufacturers, jet-fuel providers, and the state of New York, still face open-ended liability. You’d think this would be what educators call a teachable moment for longtime tort-reform opponents Hillary and Chuck, since they’ve now acknowledged that when it’s really necessary to pick up and keep going after disaster, some limits are needed on the power of their friends in the trial bar to keep the blame process in play forever. Unfortunately, both New York senators are signaling that the circumstances in this case were, um, unique, and that no other defendants worried about liability exposure should expect any sympathy from them. (DURABLE LINK)

SOURCES: “Hillary for Tort Reform” (editorial), Wall Street Journal, Nov. 20 (online subscribers only); statement of Rep. James Sensenbrenner, chairman, House Judiciary Committee, Nov. 16; Christopher Marquis, “Measure Sets Liability Caps for New York and Landlord”, New York Times, Nov. 17; “War Profiteers” (editorial), OpinionJournal.com, Oct. 14; “War Profiteers II” (editorial), Wall Street Journal, Nov. 8; and WSJ coverage: Jim VandeHei, “Airline-Security Bill Will Extend Liability Shield to Boeing, Others,” Nov. 16; Jim VandeHei and Milo Geyelin, “Bush Seeks to Limit the Liability Of Firms Sued as Result of Attacks”, Oct. 25; Jim VandeHei and Jess Bravin, “Lawmakers Work to Provide Liability Shields For Boeing, World Trade Center Leaseholder”, Oct. 24.

November 21-22 – “They’re back!” No, this isn’t the first parody of what will happen if apprehended Al-Qaeda terrorists hire big-name American trial lawyers to get them off, but it’s one of the funnier ones (Victor Davis Hanson, National Review Online, Nov. 20). See also Jonathan Kay, “Bullets over barristers”, National Post, Oct. 13; Michelle Malkin, “No more jury trials for terrorists”, TownHall.com, Oct. 24; James S. Robbins, “Bring on the Dream Team!”, National Review Online, Oct. 9. Incidentally: here’s an inspiring photo weblog of Afghan liberation (via Matt Welch).

November 21-22 – Fight over dog’s disposition said to cost taxpayers $200K. An eight-year legal battle over a Lhasa Apso by the name of Word, alleged by the city of Seattle to be vicious, has at last ended with the dog’s reprieve. “Attorneys for Word’s owner say the fight has cost taxpayers well over $200,000.” (Sara Jean Green, “Canine con gets reprieve after eight years”, Seattle Times, Nov. 14).

November 21-22 – Welcome SmarterTimes readers. Ira Stoll’s invaluable New York Times-watching service gave us a nice mention Tuesday in a discussion of an absurdly one-sided piece the Times ran on the Americans with Disabilities Act. (Nov. 20, see bottom). Also linking us recently: India’s Bombay Bar Association (”Law-U.S.”); Duke Update Morning Run (college sports); John Brignell’s NumberWatch from the U.K. (a site “devoted to the monitoring of the misleading numbers that rain down on us via the media”); Citizen’s Coalition for Children’s Justice (zero tolerance abuses); CPA Wizard; National Anxiety Center; Jim’s Cop Stuff; Egotist (”The mildly libertarian stance bothers me but that aside this site seems to actually have something to say, which is sadly not the rule on the internet”); Randleman Land; weblogs More Than Zero (Andrew Hofer), LawSchoolCrazy, Nov. 17 (Jorge Schmidt, Univ. of Miami — “Every once in a while I need a reality check. Nothing is better at reminding me what most people think of lawyers, and the law, than the outstanding Overlawyered.com site”), What the…? (Andrew Shulman — “find out how funny and sad our legal system is”). Best wishes to all of you, and happy Thanksgiving.

October 19-21 – Lawyer-vetted war? According to Sy Hersh, American gunners had Taliban chief Mullah Omar in their sights, but declined to finish him off per the advice of an army lawyer that there was too much risk of collateral damage to civilians: “‘My JAG’ — Judge Advocate General, a legal officer –’doesn’t like this, so we’re not going to fire,’” said the commandant. Defense Secretary Rumsfeld is said to have been “kicking a lot of glass and breaking doors” in fury over the decision, and the editorialists at the New York Post aren’t happy about it either (Seymour Hersh, The New Yorker, Oct. 22; “Lawyers for Bin Laden” (editorial), New York Post, Oct. 17). But Inigo Thomas of Slate thinks the system of civilian control of the military probably worked as intended: “Spinning Seymour Hersh”, Oct. 17; also see Clarence Page, “The U.S. frowns on assassinations, except …”, Chicago Tribune, Oct. 17. [See letter to the editor, Oct. 22]

October 19-21 – U.K. may ban anti-religious speech. A bill proposed by the Home Secretary would outlaw “incitement to religious hatred”. Comedian Rowan Atkinson (Mr. Bean) warns that literary and satirical writing is likely to be chilled as a result — watch out, Monty Python’s Life of Brian, criticized as anti-Christian. Also in potential danger: a sketch on Not The Nine O’Clock News depicting Muslim worshippers simultaneously bowing to the ground with the voiceover: “And the search goes on for the Ayatollah Khomeini’s contact lens.” (The Times, Oct. 17) (& see Bjoern Staerk, Oct. 17). Update Dec. 21-23: provision dropped before passage of bill.

October 19-21 – It’s the clients’ money. A panel of the Fifth Circuit strikes down one of those schemes so popular among organized lawyerdom which grabs the interest earned on clients’ trust accounts to subsidize poverty law. (Janet Elliott, “Panel strikes down legal services fund “, Houston Chronicle, Oct. 17; “U.S. Court Voids Texas Approach to Legal Aid”, AP/New York Times, Oct. 18 (reg)).

October 19-21 – Our own terrorist-funding problem. P.J. O’Rourke, in an interview with Clive James excerpted in the Daily Telegraph:

“There is a person in America who is known as a three-drink Republican — I don’t mean my Republican party: the Irish Republican Army — and the Noraid can comes along and in goes a fiver and ‘that’s for the boys back in wherever’. Yes, America has a lot to answer for.

“We turned a blind eye to the funding coming out of the USA. We did it because the Boston Catholics were a very important part of the Democratic coalition and they were also a very important part of the Reagan Republicans and neither wished to offend them. They had a lot of clout in Congress and we let them go and it was shameful, absolutely shameful.” (”‘I believe the terrorists wanted a nuclear attack on Baghdad’”, Oct. 7).

MORE: Jonathan Duffy, “Rich friends in New York”, BBC, Sept. 26; “America pressed over UK terrorism”, BBC, Oct. 10; “‘Sinn Fein support wanes in US’”, BBC, Aug. 17; “How the Real IRA was born”, Guardian, March 5; “Omagh relatives consider picket”, BBC, Aug. 8, 2000; “‘Split’ on thwarting Real IRA”, BBC, Oct. 20, 2000 (Americans helped fund 1998 Omagh bombing which killed 29); Sean Boyne, “The Real IRA: after Omagh, what now?”, Jane’s, Aug. 24, 1998).

October 17-18 – NYC trial lawyers’ post-9/11 complaints. It seems Gotham’s personal injury practitioners have all sorts of gripes concerning their conditions of practice these days. To begin with, juries don’t sympathize as much with their clients’ woes with the image of much vaster hardships still fresh in their minds. Courts are handing out lots of delays and adjournments to defendants, especially to those whose legal offices were destroyed (like the Port Authority’s) or evacuated (like the city’s). Some weaker insurance companies may be going broke. “Another plaintiffs’ lawyer suggested that given the current ‘high public esteem’ for police officers and firefighters, ‘cases against them are going to be particularly difficult.” Attorney Martin Edelman of Edelman & Edelman exhorts his colleagues, however, to “be brave”. (Daniel Wise and Tom Perrotta, “Plaintiffs’ Lawyers Feel Post-Attack Pinch”, New York Law Journal, Oct. 16).

Edelman is especially dismissive of opponents’ excuses for delay: “Defense lawyers are milking this to a fare-thee-well — one attorney said that his staff could not work because the air smells bad.” As it happens, this week’s New York Observer quotes well-known downtown plaintiff’s attorney Harvey Weitz as describing conditions in his Woolworth Building office as “intolerable”, explaining that the place “just plain stinks”, even with the windows closed. (Petra Bartosiewicz and James Verini, with Blair Golson, “Reeling and Dealing”, New York Observer, Oct. 15). The New York Law Journal authors, who quote Weitz on a different point, perhaps should introduce him to Edelman so they can compare notes on whether the acrid smells that waft from the attack site do or do not render nearby offices intolerable. (DURABLE LINK)

MORE: Also quoted in the NYLJ piece is extremely successful NYC plaintiff’s lawyer Robert Conason of Gair, Gair, Conason, Steigman & Mackauf. Could anyone clear up for us once and for all whether he’s related to left-wing columnist Joe Conason?

October 17-18 – “Hate speech” law invoked against anti-American diatribe. Hey, it wasn’t supposed to work this way! Section 319(1) of Canada’s Criminal Code makes it unlawful to incite public hatred of an “identifiable group”, such as a nationality, in a way that “is likely to lead to a breach of the peace.” Now University of British Columbia prof Sunera Thobani is facing possible investigation under the law over a vicious tirade she delivered against the United States at a conference which (ironically or not) was subsidized by the Canadian government and presided over by Hedy Fry, a well-known Ottawa official. Columnist Wendy McElroy of FoxNews.com sorts it all out (”Free Speech Protects All Speech”, Oct. 16).

October 17-18 – Court’s chutzpah-award nominee. Not only did San Francisco attorney Sherman Kassof not succeed in defending the $215,000 in fees he thought he had coming from the settlement of a class action against Wells Fargo, but a California appeals court, in a 32-page opinion, said his fee request might deserve a “chutzpah award.” “‘To award an attorney a premium for duplicative work that was neither difficult nor particularly productive, involved little or no risk, may well have delayed settlement, and seems to have been primarily designed to line counsel’s pockets would reward behavior which it is in the public interest (and as well the special interest of the legal profession) to strongly discourage,’ Presiding Justice J. Anthony Kline wrote.” (Mike McKee, “Fee Appeal Backfires on Class Lawyer”, The Recorder, Oct. 5).

October 16 – Counterterrorism bill footnote. During consideration of the bill, reports Declan McCullagh at Wired News, civil libertarians raised concerns about possible leeway for forum selection by prosecutors seeking wiretap orders. “Since the Patriot Act gives courts the power to order wiretapping anywhere in the U.S., Rep. Maxine Waters (D-California) said she was worried that ‘it would encourage the government to engage in forum searching. If the court that issues the warrant is far from the defendant, it becomes difficult for the person to contest it.’” Plausible enough, right? And by the same logic, civil defendants deserve protection against the filing of, say, class actions in forums selected by lawyers for their inconvenience to the defense — right again? That thud you hear is Rep. Waters keeling over rather than admit any such thing. Just as Trix are for kids, everyone knows due process protections are for criminal, not civil defendants (”Patriot Bill Moves Along”, Oct. 4).

October 16 – Status of judicial nominations. The Office of Legal Policy of the U.S. Department of Justice has put up an informative page on the status of judicial nominations. As Glenn Reynolds points out at his fledgling but already indispensable InstaPundit weblog, “The ready availability of this information on the Web represents a net loss of power for the Senate.”

October 16 – Latest lose-on-substance, win-on-retaliation case. A federal court in San Antonio threw out Raymond Morantes’s original claim of discrimination against his employer, the Federal Aviation Administration, but a jury decided that agency managers had wrongly passed over Morantes for promotion because they were annoyed at his having sued them, so he’s getting half a mil. (”Man Gets $500,000 for Retaliation by FAA”, AP/FoxNews.com, Oct. 6).

October 15 – “Company Tried to Capitalize on Sept. 11″. A Cincinnati company named Providence Inc. has been sending out portfolios to Sept. 11 victim families with “$50 to $200 in cash, prepaid calling cards and the names of four law firms with ‘extensive experience in major airline and other similar mass disasters.’” The company advances money to plaintiffs in anticipation of lawsuit settlements; because it employs no lawyers, it can skirt a 1996 federal law “that forbids lawyers from approaching the families of air crash victims for 45 days after an accident.” The outfit, which routinely drops mail to victims after other disasters as well, “says none of the law firms named on its list knew that their names were being distributed … three law firms threatened to sue to block Providence from using their names”. (Jonathan D. Glater and Diana B. Henriques, New York Times, Oct. 13 (reg)). And despite the go-slow approach to litigation proposed by the leadership of the Association of Trial Lawyers of America, some plaintiff’s lawyers are raring to go with Sept. 11 suits, among them New York City’s Aaron Broder, who has bought the fine-print ad space at the bottom of the New York Times’s front page to solicit clients. “‘They’re all going to be socked real hard,’” [Broder] said yesterday of the airlines and other American businesses and government agencies, adding that he disapproved of other lawyers discouraging suits. ‘Right now, everybody’s so patriotic they’ve forgotten about the fact that there are defendants and wrongdoers here,’” he said.” None of that excessive patriotism for him! (William Glaberson, “Legal Community Is Divided by the Prospect of Lawsuits for Attack Victims”, New York Times, Oct. 10 (reg)).

October 15 – “Mother of all copyright battles”. Now they’re really in trouble: Osama bin Laden’s Mideast followers have gotten American intellectual property lawyers steamed at them following their unwitting use of an image of “Bert” from PBS’s Sesame Street: “you don’t get much more ‘interconnected’ with Western culture than getting your a– sued off.” (Mark Steyn, “Culture Shock”, Daily Telegraph, Oct. 13; Don Kaplan, “Osama’s ‘Muppet’ State”, New York Post, Oct. 11). On the other hand, maybe Binny could beat a criminal rap before a court here given the sort of American legal talent his ample fortune could buy (James S. Robbins, “Bring on the Dream Team!”, National Review Online, Oct. 9).

October 15 – Disclaimer rage? “Lawyers are destroying the usability of American products. … Work comes to a standstill while we look for the button to vanish the tiny box with the even tinier type.” It was bad enough in PC software, but now automotive and aeronautic GPS (global positioning satellite) map programs require operators of moving vehicles to click past screens of fine print before they can read maps, adding crucial seconds of distraction: “in their fanatic pursuit of zero liability, they’ve set up the ideal conditions to actually kill people.” However, not all disclaimers have to be a drag, as one maker of household products has shown: “The Good Grips people obviously put a lot of work, not only into constructing a fun-to-read page, but in talking conservative corporate attorneys into allowing such a page.” (Nielsen Norman Group, “Good Lawyers, Bad Products”, Asktog, August).

October 12-14 – “Suits Still Pending from 1993 Trade Center Blast”. So sad: eight years after the incident, “[t]he legal fallout from the 1993 truck bomb that rocked the World Trade Center hasn’t even gone to trial. Plaintiffs’ lawyers claim that the Port Authority knew the towers were an attractive terrorist target and that a truck bomb was the most likely weapon.” Included in the claims against the Port Authority: a business-interruption claim from Cantor Fitzgerald over having to shut down its WTC offices back then. (Bob Van Voris, National Law Journal, Oct. 3).

October 12-14 – “Philadelphia judicial elections still linked to cash”. “Despite a scathing state grand jury report this spring on Philadelphia’s system of electing judges, little has changed, a review of campaign reports for the 2001 primary suggests.

“Candidates for the legal system’s most sensitive offices still shelled out millions of dollars in ’street money’ to ward leaders, consultants, and freelance vote-producers for primary-day help in hopes of landing a seat on the bench.

“About $500,000 was spent in ways that required no accounting to the public.” (Clea Benson, Philadelphia Inquirer, Oct. 7).

October 12-14 – Watch what you say about lawyers, cont’d. As we reported on Sept. 7-9, Pennsylvania trial lawyer Arthur Alan Wolk, sharply criticized by several posters on AVweb after he won a $480 million verdict against Cessna, proceeded to sue the website, its editors and various posters for defamation. AVweb’s editors have been advised by their lawyers to refrain from commenting on the litigation, but they have now posted on their site a copy of the full text of Wolk’s complaint, and have established a legal defense fund to pay legal bills which they say could exceed $100,000, win or lose. AVweb, a leading aviation website, says it has 130,000 regular readers. “Wolk has also written our attorneys and threatened to continue filing additional lawsuits until he has silenced what he considers to be damaging and unfounded criticism.” (donor form) Update Sept. 16-17, 2002: in July 2002 AVweb capitulated and published on its website an extensive apology to Wolk, along with an apology from one of the individually sued posters.

October 10-11 – “U.S. to Fully Compensate Victims’ Kin”. In a step virtually unprecedented in a government-run program, the new Sept. 11 fund will assign a dollar value to, and compensate at taxpayer expense, the emotional pain and suffering experienced by survivors (David G. Savage, Los Angeles Times, Oct. 5). Wealthier victims’ families could be the ones who mostly opt out of the federal plan and into private litigation, because of the proviso by which payments from the federal fund will be reduced to reflect amounts families can recover from insurance and other contractual sources, which will often amount to a large offset in the case of high-paid execs (Harriet Ryan, “Victims’ families face choices in collecting compensation”, CourtTV.com, Sept. 28). With damages for airlines limited to their insurance, “the hunt is on for additional defendants with deep pockets. Lawyers say these could include wealthy supporters of terrorism; private baggage-screening firms hired by airlines; contractors that may have improperly screened service personnel allowed on planes; and the operators of the airports where the hijackers boarded.” (Martin Kasindorf, “Families seeking compensation face a choice”, USA Today, Oct. 2) And see if you can spot the implicit assumption in this headline: Seth Stern, “Who pays the damages for Sept. 11?”, Christian Science Monitor, Sept. 27.

October 10-11 – “Never far from school halls: the lawsuit”. “Schools have always been fertile ground for lawsuits over religious observance and free speech. But educators say the volume of suits is on the rise, forcing them to siphon time and money away from learning.” (Seth Stern, Christian Science Monitor, Oct. 9).

October 10-11 – “Man Thought He Was Dead, Sues Airline”. Scott Bender of Philadelphia was snoozing when the U.S. Airways flight from North Carolina landed at the Birmingham, Alabama airport and the crew left him there in the little plane until he woke up. It was really dark, says his lawyer, and Bender “didn’t know if he was alive or dead” — it turned out the former. Now he wants money for the fright and other harms. (Chanda Temple, Birmingham News, Oct. 4).

October 9 – Employee’s right to jubilate over Sept. 11 attack. Kenneth Bredemeier, “On the Job” columnist for the Washington Post, yesterday ran the following remarkable communication from one of his readers, which we take the liberty of quoting at length since it deserves to be read word for word:

“On the day of the World Trade Center and Pentagon disasters, a Muslim woman at work jumped for joy in the cafeteria saying, ‘Yes, yes, yes,’ upon hearing the news.“Apparently nothing was said to her at the time of her ‘celebration.’ Her supervisor consulted the HR manager for advice. He suggested a group meeting to explain that this is a very sensitive time for everyone and that it is probably best to not discuss the disasters at all. He also said to not single out anyone or specifically mention her actions.

“When I heard about it, I wanted to know why she is still at work. I was told to not say anything. Is that right? I have no intention of starting a riot, but I feel this incident should not be ignored. What, if anything, can I do?”

Don’t say anything to her; hold a group meeting; tell other workers to stop talking about the attacks. Could this be just one supremely craven HR manager, at one sensitivity-addled company? No, it gets worse. Bredemeier then consults an expert named Laurie Anderson, a “Chicago clinical psychologist and organizational consultant”. Her advice? As “uncalled for [!] as the impromptu celebration might have been, corporations ‘can’t fire someone for violating something that was never spelled out.’ She said the employee who was upset by her co-worker’s joy at the attacks ought to go to management and say that she wants ‘to be a part of the ongoing conversation about our policies.’” And Anderson adds: “It’s horrifying, but there’s no law against being insensitive.”

But of course Anderson gets it exactly, 180-degrees wrong on that last point. There is a federal law against being insensitive in ways that make co-workers feel disliked or disparaged because of their ethnic or national affiliation — it’s called the “hostile environment” branch of harassment law, and lawyers have deployed it repeatedly to win big bucks for workers who have testified that they were upset by hearing slighting comments aimed at their ethnic or national group. If an employer in this country learns that one of its workers has burst into applause in the cafeteria at learning of, say, a massacre or assassination aimed at a protected ethnic minority, then its failure to discipline that worker would create something approximating a dream case if and when a member of that minority chooses to sue the company charging hostile environment. (Nor will it get the company off the hook, in explaining its failure to discipline, to plead that it had not previously warned its workers specifically not to jubilate in such circumstances.)

The difference between the two fact patterns? So far as we can tell, it’s mostly that “American” doesn’t operationally count as a protected ethnicity under federal law. And so we arrive at a supposed right to jubilate, among Americans, over the deaths of Americans without having to worry about the risk of dismissal or even harsh words or shunning. Could anything be crazier? (Kenneth Bredemeier, “At Some Companies, An All-Too-Rapid Response to Attacks”, Washington Post, Oct. 8).

Addendum: no more than urban legend? Reader John Kingston of Carle Place, N.Y., in a letter to Washington Post columnist Bredemeier which he cc’s to us, writes:

Your column on workplace reaction to September 11 may have come closest to actually identifying the jubilant Muslims, a story sweeping the country that has all the earmarks of an urban myth. It appears the person who wrote you the note at least claims to have actually seen the jubilant worker. Every other reference to the jubilant workers has several key omissions: the name of the workplace where it happened (as in your case); the name of the jubilant person (OK, understandable); or an actual first-person account (which you sort of have, but do not actually identify the first-person). Yet these stories of the celebrating Muslims have come from all over the country, and none of them have been proven.Please do your readers a service in a future column. Put the name of this correspondent in print. And if the correspondent does not want to be put in print, please call him up and grill him on the facts of the case. Because quite frankly, this story sounds like a pile of baloney, and I was shocked to see it repeated and given credence, without what I would consider significant attribution, in a fine paper like yours.

Adds reader Kingston: “And to make it worse, Overlawyered.com repeats it as well. OK, its point was regarding what a workplace could do if it actually had a publicly jubilant Muslim. But my guess is that nobody actually did. This story, Mr. Olson, sounds like a close cousin of junk science.” (DURABLE LINK) [And see Letters, Oct. 22]

October 9 – “Plaintiff’s lawyers going on defense”. In at least two major areas of mass tort litigation now under way, plaintiff’s lawyers well known from asbestos and tobacco work have crossed the aisle to work for defendant businesses: Sulzer Orthopedics Inc. has hired Mississippi’s Richard Scruggs to represent it in hip joint cases, and Bridgestone Firestone has hired Texas’s Wayne Reaud to settle tire cases. “Already this year, Reaud has negotiated 117 settlements for Firestone in Texas, including 22 cases involving deaths.” (Mark Curriden, Dallas Morning News/Austin American-Statesman, Sept. 4, Googlecached) On Reaud and Firestone, see also Michael Freedman, “The Informer: It Takes One to Know One”, Forbes, Sept. 17. (DURABLE LINK)

October 8 – Why we fight, #2. Reason #1 is of course what happened on Sept. 11; but how strangely constricted would be our war aims if they did not also by this point include the final overthrow of the Taliban. (Sam Handlin, “Justice takes on a different meaning in Afghanistan”, CourtTV.com, Sept. 28; Jan Goodwin, “The first victims: the Taliban have been terrorizing women for years”, New York Daily News, Oct. 4; Vincent Laforet, “At Kabul’s door, an army of addicts”, New York Times, Oct. 7 (reg) (arms chopped off by the Taliban for smoking opium in an Afghan school, Mooruddin Aki now begs on a street in Quetta, Pakistan, where passersby stuff bills into his mouth)).

Among pieces we’ve liked recently: Peter Ferrara, “What is an American?” (National Review Online, Sept. 25). And what’s the opposite of Osama bin Laden? Here’s one answer: “The men and women of the space program, and their legions of scientific antecedents, spent countless hours acquiring the knowledge and developing the moral values that led to the moon landing. Not many years later, Osama bin Laden and his fellow terrorists also spent many hours of planning, sitting not in laboratories and libraries, but in tents and caves, with one goal: not to create, but to annihilate human creations. The scientists measured their success by how much they could produce. The terrorists measure their success by how much they can destroy.” (Michael Berliner, “Terrorists vs. America”, Ayn Rand Institute, Oct. 5) (via InstaPundit).

October 8 – “Hama to sue bridge owners over her daughter’s fall”. When Kaya, a 17-month-old with Down’s syndrome, fell from her mother’s arms and off the Capilano Suspension Bridge in Vancouver, she miraculously escaped with only scratches, tree boughs breaking her fall. But her mother, Nadia Hama, is suing the bridge operator anyway; her lawyer says she was traumatized by the aftermath of the incident which included a police investigation and press coverage that “was largely very negative”. (Andy Ivens, “Hama to sue bridge owners over her daughter’s fall”, The Province (Vancouver), Sept. 25).

October 5-7 – Feds’ Lanning v. SEPTA turnabout. The U.S. Justice Department has unexpectedly dropped its support of a long-running lawsuit which sought, in the name of female applicants, to weaken the physical fitness standards used in hiring by the Philadelphia transit police. The Department did not cite the Sept. 11 attacks in explaining its abrupt shift, but its spokesman Don Nelson explained the new stand as follows: “Our position is that we believe it is critical to public safety for police and firefighters to have the ability to run and climb up and down stairs under the most extraordinary circumstances”. In earlier rounds of litigation the feds had sided with plaintiffs lawyers from the Public Interest Law Center of Philadelphia, whose chief counsel calls the new turnabout “a slap in the face of women” and a breach of what he said was a promise made by Attorney General John Ashcroft not to retreat on any civil rights issue. (Joseph A. Slobodzian, “U.S. backs away from suit against SEPTA test”, Philadelphia Inquirer, Oct. 2) (see Sept. 15, 1999). Maybe someone at the Department has been listening to our commentaries of Sept. 13 and other dates. Update Oct. 25-27, 2002: Third Circuit panel rules for SEPTA.

October 5-7 – Civil liberties roundup. What Alexander Hamilton (who used to hang out a lot in New York’s financial district) would want us to remember (Andrew Ferguson, “Strange Bedfellows in This War”, Bloomberg.com, Oct. 2). The left-right civil liberties coalition that has urged scrutiny of the counter-terrorism bill doesn’t agree within itself on much more than platitudes, argues James DeLong of the Competitive Enterprise Institute (”Liberty and Order”, National Review Online, Oct. 2). And London’s invaluable Spectator points out some of the very real costs of national identity cards, whose use would probably not have done much to hinder last month’s suicide attacks, the ringleaders of which were mostly traveling under their own names with valid ID (”Fighting for Freedom” (editorial), Sept. 29).

October 5-7 – “Attorney Ordered to Pay Fees for ‘Rambo’ Tactics”. “Clifford Van Syoc, a solo practitioner in Cherry Hill, N.J., is known for his zealotry in pursuing plaintiffs’ employment-discrimination claims. But now a federal judge, comparing Van Syoc to Rambo, says he’s gone over the line. The judge excoriated him for unreasonably pushing a meritless reverse-bias claim and assessed Van Syoc personally for $59,216 in fees and expenses.” (Tim O’Brien, New Jersey Law Journal, Sept. 6).

October 5-7 – Utah lawmakers: don’t smoke in your car. Legislators in that state have “approved in concept” the idea of legally banning parents from smoking in cars in the presence of their kids, but some among them are reluctant to put their names on such a measure as sponsors given its appearance of extreme meddlesomeness in what was once considered private life (James Thalman, “Lawmakers may up ante for smoking around kids”, Deseret News, Sept. 15).

October 3-4 – Anti-bias law not a suicide pact. “Earlier this summer, U.S. officials told airlines that conducting extra checks on passengers of Arab origin was a violation of the passengers’ civil rights. Also, Transportation Secretary Norman Mineta ordered a federal investigation into complaints by Arab-Americans that they were being unfairly targeted by security screenings.” (Catherine Donaldson Evans, “Terror Probe Changes Face of Racial Profiling Debate”, FoxNews.com, Oct. 1; Stuart Taylor Jr., “The Case for Using Racial Profiling at Airports”, National Journal/The Atlantic, Sept. 25). But of Arab Americans in metropolitan Detroit, “61 percent said such extra questioning or inspections are justified, according to a poll conducted last week by the Detroit Free Press and EPIC/MRA. Twenty-eight percent disagreed; 11 percent were undecided.” (Dennis Niemiec and Shawn Windsor, “Arab Americans expect scrutiny, feel sting of bias”, Detroit Free Press, Oct. 1). “Federal regulations give commercial captains the right to remove anyone from a flight without reason.” (Jonathan Osborne, “Passenger ejections seen as profiling”, Austin American-Statesman, Sept. 29).

In reaction to the horrors of World War II, the federal constitution of Germany curbs what might be termed religious profiling in law enforcement, and authorities in Hamburg, where preparations for last month’s attack were apparently made, acknowledge that their monitoring of extremist Islamic activity has been sharply limited as a result: “police are severely restricted in probing groups defined by faith”. (Carol J. Williams, “German Hunt for Terrorists Haunted by Past”, Los Angeles Times, Oct. 1). Detailed passenger profiling is essential to the much-admired security record of the Israeli airline El Al (Vivienne Walt, “Unfriendly skies are no match for El Al”, USA Today, Oct. 2). Updates: see Nov. 2-4, Nov. 9-11.

October 3-4 – “Follow the money … but don’t hold your breath”. Shutting down sham ‘charities’ and terrorist-owned businesses can’t hurt the war effort,” and it’s also worth investigating the possibility that persons with foreknowledge of the attack might have engaged in options speculation before and since Sept. 11, which would leave a relatively robust paper trail. Don’t expect much, however, from more generalized efforts to prevent terrorist supporters from moving less-than-enormous sums around the globe; there are too many ways around such rules, which are also highly onerous to the non-terrorist economy (James Higgins, Weekly Standard, Oct. 8; Michael Lynch, “Following the Money”, Reason.com, Oct. 4).

October 3-4 – Fear of losing welfare benefits deemed coercive. “A Nova Scotia woman who confessed to cheating the welfare system out of more than $70,000, can’t have her admission used against her in court because she gave it only out of fear that her benefits would be cut off.” Judge Peter Ross of Nova Scotia Provincial Court conceded that Brenda Young’s case was a “particularly glaring instance of welfare fraud”, but “said her fear of impoverishment meant her confession was effectively coerced by the state, an action which violated her constitutional right not to incriminate herself.” Young is no longer on the welfare rolls, however. (Richard Foot, “Judge: confession by welfare cheat cannot be used”, National Post, Sept. 29).

October 3-4 – Victory (again) in Connecticut. “A unanimous state Supreme Court Monday threw out Bridgeport’s lawsuit against dozens of gun manufacturers and retailers, saying the city’s claims of injury to its citizenry, budget and reputation are too specious and indirect to litigate.” (Lynne Tuohy, “Court Disarms Gun Lawsuit, Hartford Courant, Oct. 2) (see Dec. 11-12, 1999)

October 3-4 – “Proposed Law Would Consider Alcohol As Date-Rape Drug”. Liquor may be something that prospective sexual assault victims consume voluntarily and knowingly, while substances such as Rohypnol get sprung on them unawares; but backers of the bill introduced into the Wisconsin legislature by Rep. Terese Berceau (D-Madison) say that shouldn’t make a difference in regarding both substances alike as date-rape drugs. (WISC-TV/Channel 3000/Yahoo, Sept. 27).

October 1-2 – “Litigation threatens to snarl recovery”. “[S]ome lawyers are already gearing up for what could be the most complicated web of litigation in American history. Lawyers across the country are looking for ways around the victims’ fund established as part of a $15 billion government bailout of the airline industry in the wake of the attacks.” During the (still-continuing) litigation over the previous bombing of the World Trade Center in 1993, plaintiff’s lawyers suing the Port Authority insisted that it turn over as part of “discovery” its internal reports on terrorist threats and security, even though “Port Authority lawyers at the time argued that providing the reports would leave security information open to terrorists for another attack.” (Kate Shatzkin, Baltimore Sun, Sept. 30).

MORE: Signe Wilkinson cartoon, “Unleashing Our Most Feared Weapon Against Afghanistan” (guess who), Philadelphia Daily News/Slate (”Get Image” for Sept. 27); Alan Fisk, “Calculation of Losses, Liability to Be Major Insurance Issues in Wake of Terrorism”, National Law Journal, Sept. 28; Michael Freedman and Robert Lenzner, “Lawyers Won’t Sue, But For How Long?” Forbes.com, Sept. 19.

October 1-2 – Ralph Nader is heard from. Addressing students at the University of Minnesota, the prominent litigation advocate — always willing to impute the most evil of motives to his adversaries at home — “asked audience members to consider why U.S. foreign policy is creating enemies. ‘We have to begin putting ourselves in the shoes of the innocent, brutalized people in the Third World and ask ourselves, why do they dislike our foreign policy?’” Maybe if we referred to the Trade Center murderers as “Terrorism Inc.” he’d mistake them for a legitimate business and start turning up the rhetorical heat (Jessica Thompson, “Nader calls for ‘permanent patriotism’ in Northrop speech”, Minnesota Daily, Sept. 26). (DURABLE LINK)

October 1-2 – Chemical-plant vulnerabilities: read all about them. A “provision of the 1990 amendments to the Clean Air Act requir[ed] that thousands of industrial facilities develop risk management plans (RMPs) and submit them to the Environmental Protection Agency (EPA).” One part of the required analysis “documents the potential impacts of a catastrophic accidental chemical release assuming the ‘worst case scenario.” The [analysis] includes the number of potential fatalities that an accidental release could cause to the surrounding community. The law then demands that EPA make this information available to the public.” When an initial plan was floated to publish such reports on the Internet, “security experts — the FBI, CIA, the International Association of Fire Chiefs and various other groups — raised alarm.” The plan was soon shelved, but “public interest groups” vowed to make the information broadly anyway in defiance of the warnings, and a current public availability scheme involving drop-in “reading rooms” appears highly vulnerable to exploitation by advance scouts for terrorist operations, who need only present an identification card, something the Sept. 11 terrorists had little trouble obtaining (Angela Logomasini, “Innocent no more”, Competitive Enterprise Institute/Washington Times, Sept. 27). (DURABLE LINK)

October 1-2 – “Polls say blacks tend to favor checks”. “African-Americans, whose treatment by the criminal justice system gave rise to the phrase ‘racial profiling,’ are more likely than other racial groups to favor profiling and stringent airport security checks for Arabs and Arab-Americans in the wake of this month’s terrorist attacks, two separate polls indicate.

“The findings by the Gallup Organization and Zogby International were met with varying degrees of disappointment and disbelief by black activists and intellectuals, who struggled with explanations.” (Ann Scales, Boston Globe, Sept. 30) (see Sept. 19-20).

October 1-2 – Propulsid verdict: “Robbery on Highway 61″. A jury in Claiborne County, Mississippi deliberated just over two hours before voting $100 million in compensatory damages to 10 plaintiffs in the first suit to reach trial against a Johnson & Johnson subsidiary over alleged side effects of the anti-heartburn medication Propulsid. “Defense attorney Robert Johnson III of Natchez said in closing arguments Friday that no evidence was presented in the four-week trial that showed Propulsid caused any of the plaintiffs’ health problems. He said the plaintiffs’ own doctors said there was no evidence the drug was to blame. … Stop Lawsuit Abuse in Mississippi executive director Chip Reno called the decision ‘unbelievable.’ ‘This was highway robbery on Highway 61,” Reno said. ‘Our system is broke.’” (Jimmie E. Gates, “$100M verdict: Propulsid at fault”, Jackson Clarion-Ledger, Sept. 29). Judge Lamar Pickard later ruled out punitive damages. (Deborah Bulkeley, “Judge Bars Drug Trial Punitive Damages”, AP/Yahoo, Sept. 29). Update May 15, 2004: Miss. Supreme Court vacates verdict and orders individual trials, after earlier reduction of award by trial judge.