We have occasionally posted (here, here, and here) about the lawyer advocate’s longstanding plan for a museum in his home town of Winsted, Connecticut, dedicated to the praise and glorification of the American tort law system. The project has now dragged on fitfully through many years of economic stagnation, unexpectedly costly environmental remediation, changes of venue, and community suspicion (“a lot of empty promises”, one resident puts it), which may function as some kind of metaphor, no? [Torrington Register Citizen, Connecticut Law Tribune]
“…Video game consumption is not correlated with gun violence” [Maggie Koerth-Baker, BoingBoing]
Also: on which same general subject, a helpful reminder that Ralph Nader is still an idiot [Erik Kain, Forbes; Gamespot]
[Third in a series on the possible effects of proposed federal food safety legislation on small/local foodmakers and farmers. Earlier coverage is here and here; and see related post on animal-tracking proposals]
- Could the outcry be having an effect? Until now, Rep. Rosa DeLauro (D-Ct.) has repeatedly insisted that backyard and kitchen-table producers have nothing to fear from her bill, H.R. 875, the proposed Food Safety Modernization Act, because they do not engage in “interstate commerce”. Many observers pointed out that under U.S. Supreme Court precedent, an exceedingly broad range of agricultural and food activity (right down to the growing of grain with which to feed oneself or one’s animals) has counted as within the bounds of “interstate commerce” reachable by federal regulation.* Now, at the end of a Huffington Post piece sympathetically relaying DeLauro’s views, there comes an “Update” nodding toward the courts’ practical application of the “interstate commerce” concept and reporting that DeLauro’s staff is promising “clarifications” of the bill’s reach, perhaps even “technical corrections”, to be ready “in the next few weeks”.
- When those corrections and clarifications appear, one crucial question will be whether they include any de minimis provisions exempting small, local, or informal producers and sellers (of course, these entities might continue to face stringent state or local regulation). As it stands now FSMA, like CPSIA before it, is notable for its lack of de minimis exclusions, as well as its failure to prescribe “scale-appropriate” principles (“tiering”, streamlined reporting, etc.) by which entities that deal in less than industrial volumes might be given the benefit of simpler and less onerous rules.
- Given the stated views of the advocacy groups behind FSMA, I very much doubt that a revised version will in fact exempt producers of food intended for consumption within one state only. Even if it does, however, the law will still cover many persons like Harold Gundersen, who sells food from his Southwest Michigan farm at two suburban-Chicago farmer’s markets and in doing so manages to have legal contact with three states in all:
“We’re highly regulated by state government and federal government,” he said. … [Gundersen] pays $65 twice a year to an inspector from DuPage County, who comes up to Michigan to inspect the apple butter and cider that he sells.
Gundersen is indignant at that last requirement because he doesn’t even process the apple butter and apple cider — he takes his apples down to an Amish man in Indiana who seals them in cans and jugs. Because that facility is already visited by Indiana inspectors, Gundersen sees no reason for a DuPage inspector to take a second look.
“There is nothing for her to look at,” Gundersen said. “She looks at my jars and says, ‘OK, I’ll sign this stuff.’”
Through much of the country — in most of the big cities of the Northeast and Midwest, for example — food grown within a radius of (say) 100 miles will often have crossed state lines.
- FactCheck’s lullaby of reassurance on the subject contains the following passage aimed at readers who might be perceiving FSMA as a far-reaching power grab by the federal government, or something like that:
The bill has 41 cosponsors** and has been endorsed by major food and consumer safety organizations, including the Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, Food & Water Watch, and The Pew Charitable Trusts. Food & Water Watch is a nonprofit organization that advocates for clean water and safe food and is headed by a woman who used to work for Public Citizen, the consumer group founded by Ralph Nader.
Well! If a bill has 41 cosponsors, it must have been well vetted, right? (CPSIA had 106). And its backers include not only Consumers Union and Consumer Federation of America — both instrumental in bringing us the CPSIA debacle — but also a group headed by an alum of Nader-founded Public Citizen. It’s not as if Public Citizen was the acknowledged leader of the Washington coalition that pushed for CPSIA and has defended it ever since, right? Oh wait.
Center for Science in the Public Interest? That’s the outfit that’s called for federal regulation of the use of salt in foods, and its busybody litigiousness has long furnished copious material for this site. Pew Charitable Trusts (is it now OK for charitable foundations to support legislation?) has long had its hand in a hundred activist causes. And so forth. This is not reassurance; to coin a phrase, it’s de-assurance.
- Deputy Headmistress: “I would believe these consequences were ‘unintended’ if I didn’t see the same consequences from government action over and over again.”
- No, I don’t agree with the chain-email theories that insist that Monsanto, the giant agribusiness firm, is masterminding the push for this law. (Or the counter-push against it, depending on who you talk to. Maybe both!). Since the company’s name is always coming up, however, here’s a link to what the company’s own spokesman had to say on the lefty site Crooks and Liars, which was not quite what I expected (though I’m not sure what I did expect).
- Brian Doherty writes about the furor at Reason (with comments here) and John Schwenkler also weighs in at his blog. And in the comments section of our initial post, check out what “Pelly” has to say about yogurt in Nova Scotia.
*Of course, it’s possible that a statute might not grant the federal regulator as much authority as courts would be willing to uphold as constitutional. HR 875 incorporates by reference the FDA’s current definition of “interstate commerce”. I’m not an expert in this area, but various documents suggest that the FDA already asserts much authority over items and processes whose production or use does not cross state lines.
**Among the 41 co-sponsors are such figures as Rep. Jan Schakowsky (D-Ill.), who as a co-sponsor and defender of CPSIA has been ferociously unsympathetic to distress cries from small businesses arising from that law.
Ralph Nader’s “big campaign stop at Dartmouth College on Monday drew an audience of eight. The Connecticut Valley Spectator reported the news on its obituaries page.” (Mark Steyn, NRO “Corner”, Oct. 9). But note: other coverage of what was presumably the same event gives the total attendance at 40, specifying that under ten persons “appeared to be Dartmouth students”, which may be where the “eight” came from.
“A prominent class-action lawyer facing sentencing today for secretly paying plaintiffs to file securities lawsuits, William Lerach, is suggesting that the under-the-table practice was widespread and was not isolated to the firm he helped run for decades, Milberg Weiss. … Despite the highly publicized travails of what was once America’s leading class-action law firm, there has been little public discussion of whether other firms may have emulated the secret payment scheme Lerach and other Milberg lawyers devised.” Notwithstanding a request by Lerach’s lawyers that the letters from his friends and supporters asking clemency be sealed from public inspection, most of the letters have become public, revealing the identities of such entirely unsurprising Lerach backers as Ralph Nader (who in this one particular case did not favor prison for white-collar criminality) and Ben Stein, known to readers of these pages (though apparently not to many readers of his New York Times column) as an expert witness hired repeatedly by Lerach to help portray sued companies’ conduct in the harshest possible light. (Josh Gerstein, “Lerach Says Payoffs Were Widespread”, New York Sun, Feb. 11). Another letter writer: Sen. Carl Levin (D-Mich.) And the list of letter-writers (PDF) includes “two redacted names in between Gordon Churchill and Charles Cohen”, leading to speculation that one or both surnames might be “Clinton”. It seems unlikely, though, that either prominent ex-White House resident would have risked the sort of negative publicity involved even as a gesture to acknowledge Lerach’s past favors. (CalLaw “Legal Pad”, Feb. 8)(corrected shortly after posting to reflect release of most letters by stipulation of parties, not judicial order). Update 4 p.m. EST: sentence is 24 months.
By reader acclaim: “A New York Jets season-ticket holder filed a class-action lawsuit Friday against the New England Patriots and coach Bill Belichick for ‘deceiving customers.’” Carl Mayer of Princeton Township, N.J., is suing over revelations that the Patriots unlawfully videotaped signals from Jets coaches in a Sept. 9 game. Mayer and his attorney, Bruce Afran,
calculated that because customers paid $61.6 million to watch eight “fraudulent” games, they’re entitled to triple that amount — or $184.8 million — in compensation under the federal Racketeer Influenced and Corrupt Organization Act and the New Jersey Consumer Fraud Act.
Mayer and Afran, who consider themselves public interest lawyers, have been thorns in the side of New Jersey politicians for years, filing lawsuits and demanding investigations to advance their grievances. They are well known in the state but generally have had little success in their causes.
Both have lost bids for elected offices, and Mayer once served as a presidential campaign adviser to Ralph Nader.
(Dennis Waszak Jr., “Jets fan sues Pats, seeks $184 million”, AP/Boston Globe, Sept. 28; ProFootballTalk “Rumor Mill”, Sept. 28). More: Sadly, No!.
A prominent and much-admired figure in conservative journalism for decades, Ralph de Toledano died last month at the age of 90. (Dave Zincavage, Feb. 6). The Washington Post in its obituary recounts a sequence of events that did much to darken de Toledano’s later years:
In 1975, consumer activist Ralph Nader filed a lawsuit against De Toledano in connection with a De Toledano suggestion — denied by Nader — that Nader had “falsified and distorted” evidence about the Corvair automobile. The case lingered in court for years and cost De Toledano his life savings. Paul Toledano [son of the author] said it was settled out of court.
(Joe Holley, “Ralph de Toledano, 90; author and ‘nonconformist conservative’”, Washington Post/L.A. Times, Feb. 10).
De Toledano in fact had published an entire critical biography of Nader, entitled Hit and Run: The Rise — and Fall? — of Ralph Nader, used copies of which remain available online — even Nader himself can’t prevent that. The entire episode — in which Mr. Litigation, then at the height of his public fame and influence, inflicted vindictive and personal financial ruin on a well-known journalist who’d had the temerity to criticize him — is one that you’d think would have provoked expressions of concern and solidarity from leading writers and civil libertarians of the day, and yet it didn’t (scroll to #8). The episode tends to get no mention these days in accounts of Nader’s life (which, whatever their varying opinions of his actions as a spoiler presidential candidate, tend toward cloying hagiography of his earlier career). And one consequence of its lingering chilling effect (who wants to volunteer to be the next de Toledano?) may be that no one will be willing to write another genuinely unsparing biography of Nader, at least for publication during the subject’s lifetime.
For a sampling of our posts about Nader, see Jun. 13, 2000; Feb. 22, 2004; and this set of 2000-2003 links.
Stephanie Mencimer, in a trolling post I really should just ignore, suggests that reformers are just “overprivileged white guys” who have “never flipped a burger” or driven an American car and whose “private schooling and Ivy League bona fides” mean we just want to stick it to the little guy.
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Maryland PIRG complains about the toy industry:
Some toy manufacturers are over-labeling toys by placing choke hazard warnings on items that do not contain small parts. This could dilute the meaning of the warning labels, making them less useful to parents.
One looks forward to the day where a Ralph Nader-founded organization intervenes as amicus in a failure-to-warn lawsuit to make the argument that liability should not be found because holding a manufacturer liable will create incentives to over-label and dilute the meaning of warnings.
Ralph Nader is arguing that the Philadelphia Eagles’ decision to suspend star wide receiver Terrell Owens (for, inter alia, publicly criticizing the team and quarterback, shouting at coaches, a physical altercation with a teammate, and then failing to apologize) is consumer fraud because season-ticket holders had an expectation that Owens would play for the team, which barely lost the Super Bowl last year, and was an early favorite this year. (But what about all those New York Times subscribers who expected to read Judy Miller?) The suggestion rises to self-parody, though it exhibits the absurdity of modern consumer fraud law in that it isn’t crazier than suits that actually succeed. But I’m somewhat sanguine about Nader’s latest foray; if he’s tilting at the windmill of trying to make football coaching decisions litigable (Can a fan sue the Washington special teams coach for costing the team the game against Tampa Bay because it reduced the chance the team would go to the Super Bowl and the resale value of his season tickets?), it means he’s not spending time trying to wreck more important industries.
(Yes, I know that one shouldn’t blame the Washington special teams coach for losing the game. But it would be actionable under the Nader regime if a lawyer can find a fan who purchased tickets after hearing coaches say they were trying to avoid senseless penalties this season.)
“Ralph Nader says an architectural firm is now ‘putting final touches on the plans’” for his long-envisioned Museum of American Tort Law in his hometown of Winsted, Ct. “So far, says Nader, he’s raised half of the $4 million needed to open the museum — adding that he expects the rest to come from the trial-lawyer industry.” A New York Post editorial (Jun. 4) says all that needs to be said about the matter. See also John Leo’s 1998 column on the museum proposal, and our posts for Sept. 27, 1999 and May 16, 2000. P.S. Readers Troy Hinrichs and Walter E. Wallis write in to foretell the headaches the museum’s designers and groundskeepers will face as they try to prepare for opening day; the impending arrival of the world’s most litigious clientele will test to the limit their ability to anticipate slip-fall hazards, handicap compliance problems, potential injuries to burglars trying to sneak into the building after hours, and so forth.
Over at our sister website Point of Law, Jim Copland memorializes one of the more entertaining moments of this election season: arch-litigation advocate Ralph Nader’s denunciation of Sen. John Edwards as a “sniveling coward” for not more forcefully countering Vice President Dick Cheney’s support for malpractice reform at their debate. Jim also comments on trial lawyers’ role in the recent Sinclair Broadcasting brouhaha. Finally, there’s a link to a provocative George Will column on the presidential race from earlier this month.
“A good sign that Mississippi has passed fair tort reform is Ralph Nader not liking it.”
– Pete Smith, spokesman for Governor Haley Barbour.
(Lynda Edwards, AP, Jun. 18; previous coverage on Mississippi on Jun. 11 and Nader Mar. 1).
“The qualities that liberals have observed in him of late — the monomania, the vindictiveness, the rage against pragmatic liberalism — have been present all along. Indeed, an un-blinkered look at Nader’s public life shows that his presidential campaigns represent not a betrayal of his earlier career but its apotheosis.” (Jonathan Chait, The New Republic, Mar. 8). And Peter Brimelow, who with Leslie Spencer wrote a noteworthy piece of investigative journalism on Nader for Forbes more than a decade ago (“Ralph Nader Inc.”, Forbes, Sept. 17, 1990) has now reprinted that article at his VDare.com site. For more on Nader, see Feb. 22; Jun. 13, 2000; etc.
Reports from Capitol Hill indicate that Congress may be ready to pass a version of the filibustered Class Action Fairness Act (Oct. 21, Sept. 28, etc.) early next year after alterations to bring aboard three Democratic Senators who had supported the filibuster, Chris Dodd of Connecticut, Mary Landrieu of Louisiana and Chuck Schumer of New York. We haven’t had a chance to check the details of how good the resulting bill is, but one circumstance speaks strongly in its favor: Ralph Nader is really upset. (Charles Hurt, “Revised lawsuit-reform bill wins Democratic converts”, Washington Times, Nov. 27; Joseph Straw, “Nader slams Dodd?s class action reform act”, New Haven Register, Dec. 3; Bruce Alpert, “House, Senate avoid gridlock” (Landrieu), New Orleans Times-Picayune, Dec. 1). See also John Godfrey, “US Senate Democrats Seek To Revive Class-Action Bill”, Dow Jones/Yahoo, Nov. 17 (Sen. Jeff Bingaman, D-N.M., also said to be open to compromise).
Trial lawyers are hoping to turn California’s endlessly abused and abusive s. 17200 “unfair competition” law (Oct. 26, etc.) to rich new account by using it to sue pharmaceutical companies over a variety of marketing practices that the U.S. Congress and Food and Drug Administration have not seen fit to ban. The Ralph Nader operation is helping out, while the litigation effort is being handled by Seattle trial lawyer and tobacco-caper veteran Steve Berman of Hagens & Berman (see Sept. 9-10, 2002 and links from there). (Bernadette Tansey, “Citizens use law to pursue drug firms”, San Francisco Chronicle, Nov. 23; plaintiff’s site (“Prescription Access Litigation”). Update: see Point of Law, Nov. 8, 2004.