“In the courtroom, the quiet courtroom, the lawsuit slept for decades.” Mark Steyn on “the biggest hit ever to come out of Africa – and why its author never reaped the benefits,” with attention to the cultural appropriations of Pete Seeger et al. Earlier on unrelated litigation over one American cover of “Lion,” which figured in Ted Frank’s popular post, “The Overlawyered IMix.”
So argued former State Department legal adviser John Bellinger III in the WSJ last week, with special reference to the overreaching, extraterritorial Alien Tort Statute. But it’s not as if the efforts to turn the U.S. into the courtroom for the world are slackening at all:
- As Curtis Bradley and Jack Goldsmith note in the Washington Post, a federal court recently allowed to proceed a lawsuit seeking to blame the evils of South African apartheid on Western multinationals, even despite strong opposition to the suit from both the U.S. government’s executive branch and today’s duly elected multiracial South African government. Unfortunately, the State Department’s up-to-now-staunch opposition to this and similar lawsuits is imperiled by the installment of Harold Koh as legal adviser at Foggy Bottom: “Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”
- If asked what should happen to frozen Cuban-government assets under U.S. control, reasonable possibility #1 might be “hold them against the eventual day when a non-tyrannical regime emerges there, it will need help.” Reasonable possibility #2 might be “divide the assets among Castro’s many victims in some deliberate and step-by-step way, knowing that their injuries are so numerous and severe that even very deserving victims will get only small payments”. The answer you’d think makes no sense at all is “encourage first-come-first-served tort lawsuits, so that the first couple of cases to maneuver their way through the legal process get handsome compensation, while no money is left for either #1 or #2″. So naturally, the latter is what our legal system is doing, previously in $188 million and $253 million verdicts involving single incidents or families, and now in a new case in which the family of Gustavo Villoldo has been awarded $1.179 billion. One of the plaintiff’s lawyers in the case actually boasts that the new award may obstruct a warming of relations between the U.S. and a post-Castro successor regime: “with the opening of relations between the U.S. and Cuba to come, there are debts to society to be paid before that happens” (more on Che Guevara, via).
- On the brighter side, the Obama administration has joined its Bush predecessors in correctly drawing a line against litigation by some September 11 victims and insurance companies: under the Foreign Sovereign Immunity Act, the courts are no place to pursue theories trying to link the rulers of Saudi Arabia to the terrorist attacks.
(cross-posted from Point of Law)
The traffic camera automatically recorded the license plate of the vehicle going too fast, so the owner (in Plettenberg Bay, South Africa) was automatically mailed a ticket. The only problem: the vehicle was being towed by a tow truck at the time. (Stumblng Tumblr, Aug. 5).
More from commenter Cathy Gellis: “I know someone who canceled her Fastrak/EZ Pass automatic toll account and was charged when the device passed through a toll while being mailed back.”
Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions
seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:
• The lawsuits will do victims of wrongdoing little or no good.
• They will penalize no human being who has done anything wrong.
• They will deter more conduct that is beneficial than harmful.
• The legal costs and any damages will come at the expense of the general public.
• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.
American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.
The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”
With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).
- No imprisonment for debt, except when owed to a lawyer? Texas man who didn’t pay $1,750 attorney fee jailed for 30 days [ABA Journal; Jonathan Skero]
- Exploding-bra claim against Victoria’s Secret “does not specify how the injury occurred” [Greenville, S.C. News]
- We’re all set to close on your mortgage refinance, and while we’re at it could I interest you in a class action over courier fees? [Madison County Record]
- So long we elect state court judges, they’ll never escape taint associated with need to campaign [J.D. Hull, What About Clients?]
- Milberg now argues any forfeiture of proceeds from tainted cases should be confined to its actual net profits, not gross fee revenue — would it have let off defendants it sued so easily? [Gerstein, NY Sun]
- Tom Goldstein of Akin Gump (SCOTUSblog) has a spoof “Call 1-CER-TIORARI” TV ad hawking his Supreme Court advocacy [YouTube]
- New at Point of Law: Colorado unions’ revenge initiatives; Dennis Quaid at Congressional hearing on federal pre-emption; guess why Orlando isn’t getting commuter rail; drafting docs for ER duty; court green-lights suit blaming U.S. business for South African apartheid; what we can learn from defunct causes of action; Rhode Island high court mulls lead paint suit; and Ted on Massachusetts med-mal study and on reversal of $32 million Garza v. Merck Vioxx verdict.
- Managers at Tim Horton may have been ninnies to fire worker who quieted crying child by giving out free mini-donut, but today’s law does tend to ninnyize those in authority [Cosh/National Post, Canada]
- Jonathan Rauch isn’t overjoyed at California high court marriage ruling [Independent Gay Forum; more from Kmiec, Lederman and others at Slate and from Eugene Volokh] More: Steve Chapman via Sullivan and Dale Carpenter @ Volokh.
- Road delayed at £1million expense, and then great crested newt turned out not to be there [Leicester, U.K.; Ananova]
- Why trial lawyers were pleased when Boeing moved its HQ from Seattle to Chicago [seven years ago on Overlawyered]
Florida divorce lawyer Steve Miller wants your business if “you and your spouse hate each other like poison”. Just a few easy steps, and “you’re on the way to getting rid of that vermin you call a spouse.” His YouTube video is discussed by Carolyn Elefant (Aug. 30), Greedy Trial Lawyer (Sept. 2), and Jacobson Attorneys in South Africa (Aug. 31) which contributes a Flickr photo documenting a marketing effort by divorce attorneys in that country (“Cheating Bastard!”). Miller’s site is here.
The Boston Phoenix (“World of Pain”, Feb. 9) tells readers that “frankly, the primary reason” it isn’t going to run the Danish Muhammed cartoons:
Out of fear of retaliation from the international brotherhood of radical and bloodthirsty Islamists who seek to impose their will on those who do not believe as they do. …Simply stated, we are being terrorized, and as deeply as we believe in the principles of free speech and a free press, we could not in good conscience place the men and women who work at the Phoenix and its related companies in physical jeopardy. As we feel forced, literally, to bend to maniacal pressure, this may be the darkest moment in our 40-year publishing history.
Somewhere there’s probably an issue of vicarious/employer liability lurking in here — if printing the cartoons did lead to violence, the Phoenix’s owners might well end up having to pay. But of course the venerable alt-weekly’s stance is practically a profile in courage compared with that of editors, publishers, governments and university officials in many other places, including South Africa (bans publication of images), Sweden (reported to have shut down website carrying them), Canada’s Prince Edward Island (university confiscates student newspaper, edict forbids weblog comments) and so on (Michelle Malkin roundup, Feb. 9). Commentaries worth reading: Krauthammer, Kinsley, and, from a different perspective, a commenter at Andrew Sullivan’s. (More on the cartoons here and here.)
“Fed-up with jokes that unfairly typecast them as ambulance-chasers or worse, Canada’s lawyers are considering drastic means to rehabilitate their image, including striking a truth and reconciliation task force to find out why they ‘can’t get no respect’ from the public.” Truth and reconciliation commissions came to prominence as an innovation employed in countries such as South Africa seeking to overcome highly repressive or acrimonious national pasts. Halifax lawyer Robert Patzelt, who chairs a Canadian Bar Association committee looking into the idea, said “it may be necessary to accept that the profession is far from perfect and that it may, to some extent, have contributed to some of its own image problems.” All talk of “truth commissions” aside, that last bit sure sounds like progress to us — and a decided improvement over the circle-the-wagons reaction to criticism so often adopted by organized lawyerdom in the U.S. (Cristin Schmitz, “Objection! Lawyers lament poor public image”, CanWest/Montreal Gazette, Aug. 16).
Updating our Aug. 8, 2003 post (and links from there): “Lawsuits seeking more than $400 billion in damages from US corporations for victims of apartheid in South Africa were tossed out [Nov. 30] by a federal judge who said the claims bordered on the frivolous.” (Boston.com/AMABoston, Dec. 1; David Teather, “Apartheid court case dismissed”, Guardian (UK), Nov. 30; Mark Hamblett, “Businesses Win End to Multiple Apartheid Suits”, New York Law Journal, Dec. 1). The South African government, along with former South African president Nelson Mandela, had strongly opposed the suits. (Jonathan Ancer, “Activists hit out at ‘reactionary’ government”, Independent Online (South Africa), Dec. 7). The U.S. Council for International Business was of course pleased. Brandon Hamber has a weblog and site supporting the apartheid reparations claims.
The once dominant U.S. men’s and women’s diving teams suffered their worst performance ever at the Athens Olympics, shut out from medals for the first time since diving was introduced at as an Olympic sport 92 years ago. (“Chinese dive to record haul”, AFP/Independent Online (South Africa), Aug. 29). Why the falloff? “After a golden age in the seventies — a decadent, late-Roman last hurrah — the American pool has suffered a gradual decline: thanks, for the most part, to concerns about safety and liability, diving boards have been removed and deep ends undeepened. At municipal pools across the country, the once-ubiquitous one-metre springboard has become an endangered species; and the three-metre high dive — the T. rex of the community pool — is now virtually extinct. … Ron O?Brien, U.S.A. Diving?s national technical director, and the former coach of Greg Louganis, said last week, ‘You can’t put your finger on any one thing, but having so many diving boards taken out around the country has had a serious impact on our sport, no question about it.'” (Field Maloney, “Cannonball!”, The New Yorker, Aug. 30 issue (posted Aug. 23))(via Common Good)(more about pool and diving liability).