|Articles by Overlawyered.com editor Walter Olson: |
“Title IX’s Invisible Ink” (“student-on-student” harassment), Reason, August/Sept. 1999.
“Standard Accommodations” (special ed expands toward infinity), Reason, February 1999.
“Title IX from Outer Space: How federal law is killing men’s college sports“, Reason, February 1998.
“Opposing View: Meddlers Won’t Quit” (EEOC guidelines on college athletic coaches’ pay), USA Today, November 17, 1997.
“Say What?” (“accent discrimination”; Westfield, Mass. school case), Reason, November 1997.
“The Law on Trial“, Wall Street Journal, October 14, 1997 (review of Beyond all Reason by Daniel Farber and Suzanna Sherry).
“Time to Get Off the Tenure Track“, The New York Times, July 8, 1997.
“Shut Up, They Explained” (zero-tolerance harassment policies), Reason, June 1997.
“Have You Used a Kid Today As a Political Pawn?“, Chicago Tribune, November 14, 1996.
“A Connecticut Yankee in Court” (Sheff v. O’Neill decision), City Journal, Autumn 1996.
“Kidlib and Mrs. Clinton: The Hand that Rocks the Cradle,? National Review, May 11, 1992.
“Breaking Ranks“, review of Reflections of an Affirmative Action Baby by Stephen Carter, National Review, October 7, 1991.
Tipple your way to court, 2003: “Shouldn’t have let him get so drunk” (Australia), May 12. 2002: “‘Woman freezes; sues city, cabbie’“, Sept. 18-19; “Wasn’t his fault for lying drunk under truck“, Aug. 16-18; “Hey, no fair talking about the pot” (highway rollover), Apr. 12-14; “European workplace notes” (employer responsible for vodka overdose), Feb. 25-26; “‘Drunken Driver’s Widow Wins Court’s OK To Sue Carmaker’“, Feb. 25-26. 2001: “‘Teen hit by train while asleep on tracks sues railroad’“, Dec. 12; “‘Man suing after drunken driving crash’“, Aug. 20-21; “Don’t rock the Coke machine“, Jul. 20-22; “Court says tipsy topless dancer can sue club“, Jul. 3-4; “Jury: drunk driver hardly responsible at all for fatal crash“, Jun. 15-17; “It was the bar’s fault“, Apr. 13-15; “‘Court upholds workers compensation for drunk, injured worker’“, Apr. 6-8; “‘Woman who drove drunk gets $300,000′” (Ontario), Feb. 7-8 (& see Sept. 24, second case: $18 million); “‘All you can drink’ winner sues over fall“, Jan. 31-Feb. 1. 2000: “Zapped pylon-climber sues liquor-servers, utility“, March 6. 1999: “Personal responsibility wins a round” (judge rejects case from Pa. man who got drunk and climbed high voltage catenary), Sept. 17-19.
Maybe crime does pay, 2003: “‘Robber sues clerk who shot him during holdup’“, May 6; “Not an April Fool’s joke“, Apr. 1; “‘Burglars to be banned from suing victims’” (U.K.), Mar. 10-11; “‘Family of electrocuted thief gets $75,000′“, Feb. 26; “Tried to outrun Coast Guard in chase“, Feb. 14-16; “‘No suits by lawbreakers, please’“, Jan. 27-28 (& Jan. 31-Feb. 2). 2002: “‘Mom who drugged kids’ ice cream sues’“, Nov. 1-3; “‘Patient sues hospital for letting him out on night he killed’” (Australia, psychiatric case), Oct. 16-17; “‘Crime pays for teenage lout’” (Australia), Sept. 3-4; “‘After stabbing son, mom sues doctors’“, May 31-Jun. 2; “‘Barbed wire might hurt burglars, pensioner warned’“, May 28-29; “Hospital rapist sues hospital“, May 22-23 (& Mar. 5-7, 2003: court dismisses case); “Lawyers say taxpayers owe $41 million to smuggled illegals’ survivors“, May 10-12; “L.A. police sued, and sued” (by family of gunman killed in shootout), Apr. 12-14; “Should have arrested him faster” (frostbite in the open), Mar. 1-3; “Vandal’s dad sues store over blaze“, Feb. 6-7; “Paroled prisoner: pay for not supervising me“, Jan. 4-6. 2001: “Firefighter’s demand: back pay for time facing criminal rap“, Aug. 29-30; “‘Man suing after drunken driving crash’“, Aug. 20-21; “‘Criminals could sue their victims’” (U.K.), July 26; “‘Woman who drove drunk gets $300,000′” (Ontario), Feb. 7-8; “Crime does pay” (Denver burglar shot by police gets $1.2 million), Feb. 2. 2000: “‘Burglar sues for compensation’” (Australia), Nov. 21 (& see Apr. 1-2, 2002); “‘Fla. DUI Teen Sues Police’” (should have arrested him, he argues), Nov. 14; “Killed his mother, now suing his psychiatrists“, Oct. 2; “Not my fault, I” (woman who murdered daughter sues psychiatrists), May 17; “$65 million Texas verdict: driver at twice the legal blood limit” (drunk driver’s estate sues automaker), March 28; “From the labor arbitration front” (disallowed firing of employee who pleaded no contest to larceny), March 28; “Crime does pay, cont’d” (North Hollywood, Calif. bank robber killed in police shootout), Feb. 23 (& update March 23: mistrial declared after jury deadlock in suit by robber’s family); “County to pay ‘mountain man’ burglar $412,500“, Feb. 15. 1999: “‘Two men shot in suspected drug deal win $1.7 million’“, Dec. 15 (& update June 6, 2001: appeals court overturns); “California’s worst?” (bank robber sues after hidden tear-gas device goes off in loot), Dec. 14; “Drunks have rights, too“, Dec. 1 (& update Jul. 24-25, 2000: appeals court throws out award). See also our editor’s article on New York’s “mugger millionaire” case.
Pools & swimming, 2003: “‘Lawyers spoil fun’” (Ga. water park), May 19; “‘Florida jury awards $100M for pool accident’“, Feb. 13. 2002: “Australia’s litigation debate“, May 24-26. 2001: “Australian roundup” (bodysurfer), Nov. 23-25; “Needed: assumption of risk“, Jul. 27-29. 2000: “‘How’s the pool?’” (Las Vegas Strip’s Frontier Hotel recommended for its pre-big-lawsuits deep end), Feb. 23; “Latest shallow-end pool dive case“, Jan. 24. 1999: “Razor wire on the pool fence” (homeowner finds it too big a legal risk to let local kids swim), Jul. 27.
“Should have watched his step answering call of nature“, Mar. 8-9, 2003.
Couldn’t help eating it, 2003: “Give me my million“, Jun. 20-22; “Judge tosses McDonald’s obesity case“, Jan. 23 (& Jan. 27-28); “Anti-diet activist hopes to sue Weight Watchers“, Jan. 13-14. 2002: Letter to the editor, Oct. 23; “Claim: docs should have done more to help woman quit smoking and lose weight“, Sept. 18-19; “Personal responsibility roundup“, Sept. 12; “Fat suits, cont’d“, Jul. 26-28; “‘Ailing man sues fast-food firms’“, Jul. 25; “Sin-suit city“, Jun. 10; “McArdle on food as next-tobacco“, May 27; “‘Targeting “big food”‘“, Apr. 29-30; “Life imitates parody: ‘Whose Fault Is Fat?‘”, Jan. 23-24. 2001: “‘Diabetic German judge sues Coca-Cola for his health condition’“, Nov. 18. 2000: “‘Caffeine added to sodas aims to addict — study’“, Aug. 18-20. 1999: “Toffee maker sued for tooth irritation“, Nov. 5-7; “Not just our imagination” (calls for class-action suits against fast-food, meat purveyors), Sept. 25-26.
Warning labels and disclaimers, 2003: “‘Wacky Warning Label’ winners“, Jan. 13-14. 2002: “Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29; “‘Warning …’” (Dave Barry humor column), Aug. 16-18; “Read the label, then ignore it if you like” (flammable carpet adhesive), Jul. 12-14; “Pitcher, hit by line drive, sues maker of baseball bat“, Apr. 19-21; “Injured in ‘human hockey puck’ stunt“, Mar. 18; “‘Before you cheer … “Sign here”‘“, Mar. 15-17; “Didn’t know cinema seats retracted“, Feb. 13-14; “Warning on fireplace log: ‘risk of fire’“, Jan. 25-27. 2001: “Et tu, UT?” (Utah will not enforce parent-signed release forms for children), Nov. 16-18; “Disclaimer rage?“, Oct. 15; “Needed: assumption of risk“, Jul. 27-29; “Quite an ankle sprain” (failure to warn of gopher holes in parks), Apr. 20-22; “‘Wacky Warning Label’ winners“, Jan. 19-21. 2000: “Columnist-fest” (Girl Scout horseback riding disclaimer), Apr. 6; “Rise of the high school sleepover disclaimer“, Mar. 22; “From our mail sack: skin art disclaimers” (tattoo consent form), Mar. 1; “Weekend reading: columnist-fest” (Laura Pulfer on warning labels), Feb. 5-6; “Never iron clothes while they’re being worn” (Wacky Warning Label contest winners), Jan. 18 (& letter to editor, Jan. 21-23). 1999: “Christmas lawyer humor” (Yuletide greetings consisting entirely of disclaimers), Dec. 23-26; “Weekend reading” (disclaimers “creeping into nearly every aspect of American life”), Jul. 31-Aug. 1.
Blamed for suicides, 2003: “‘No suits by lawbreakers, please’“, Jan. 27-28 (& Jan. 31-Feb. 2). 2002: “The blame for suicide“, Sept. 25-26; “‘Addictive’ computer game blamed for suicide“, Apr. 3-4. 2001: “Utah: rescue searchers sued“, Nov. 26, 2001; “‘Shooting range sued over suicide’“, Sept. 27; “$3 million verdict for selling gun used in suicide“, Sept. 17; “‘Suicide- Attempt Survivor Sues’” (department that issued cop his gun), Jan. 24-25.
Excuse syndromes, 2002: “Blue-ribbon excuses” (sex on train), Oct. 7-8; “So depressed he stole $300K“, Mar. 19; “Rough divorce predisposed him to hire hitman“, Feb. 13-14. 2001: “Stories that got away” (multiple-personality defense), Jul. 23; “‘Pseudologica fantastica’ won’t fly” (judge’s fibs on resume), Jun. 7 (& Aug. 20-21); “Judge buys shopaholic defense in embezzling“, May 25-27; “The malaria drug made him do it“, Mar. 28. 2000: “Blue-ribbon excuses” (baked goods mutilator, lawyer pleading incompetent self-representation), Oct. 6-9; “Predestination made him do it” (Pope’s assassin and Fatima prophecy), June 6; “Victim of the century?” (misbehaving school principal collects disability benefits for sexual compulsion), Jun. 2-4; “Prozac made him rob banks“, Mar. 1; “Blue-ribbon excuse syndromes“, Feb. 12-13; “Latest excuse syndromes“, Jan. 13-14. 1999: “Doctor sues insurer, claims sex addiction“, Oct. 13.
“Lightning bolt in amusement park’s parking lot“, Jun. 23, 2003; “‘Woman attacked by goose sues county’“, Jan. 27-28, 2003; “Quite an ankle sprain” (watch where you’re going in parks), Apr. 20-22, 2001.
“MIT sued over student’s nitrous-oxide death“, Feb. 25, 2003; “By reader acclaim: ‘Parents file suit over student’s drug death’” (abuse of Oxycontin), Jul. 25, 2001.
“Take care of myself? That’s the doc’s job“, Feb. 14-16, 2003; “Claim: docs should have done more to help woman quit smoking and lose weight” (Pa.), Sept. 18-19, 2002.
“Satirical-disclaimer Hall of Fame” (Australian humor magazine), Oct. 28-29, 2002; “Tobacco: Boeken record” (The Onion parody), June 19, 2001; “Jury orders ‘Big Chocolate’ to pay $135 billion to obese consumers” (parody), Aug. 3, 2000; “This side of parodies” (fictional account of self-inflicted icepick injury), Oct. 5-6, 1999.
Sports risks: “Sis-Boom-Sue” (cheerleading), Jan. 15-16, 2003; “Skating first, instructions later“, Sept. 25-26, 2002; “Pitcher hit by line drive sues maker of baseball bat“, Apr. 19-21, 2002; “Australian roundup” (Perth bodysurfer), Nov. 23-25, 2001; “Needed: assumption of risk” (baseball thrown into stands, skydiving), July 27-29; “‘Lawsuits could tame ski slopes’“, Feb. 6, 2001; “Promising areas for suits” (foul-ball cases and other stadium injuries), Dec. 7, 2000; “Teams liable for fans’ safety” (Colorado: hockey puck hit into stands), Aug. 15; “‘Skydivers don’t sue’“, May 26-29; “Trips on shoelace, demands $10 million from Nike“, April 7-9, 2000.
Gambling: Letter to the editor, Oct. 23; “Personal responsibility roundup“, Sept. 12, 2002; “Sin-suit city“, Jun. 10; “‘Next tobacco’ watch: gambling“, May 20-21, 2002 (& May 31); “‘Gambling addiction’ class action” (Quebec), June 20, 2001.
Hot beverages: “Litigation good for the country?” (Carl T. Bogus), Aug. 19, 2002; “British judge rejects hot-drink suits“, Mar. 29-31, 2002 (& Aug. 10, 2000); “By reader acclaim” (Illinois case; complainant sues mother), Jan. 11, 2001; “‘Court says warning about hot coffee unnecessary’” (Nevada Supreme Court), Jul. 18, 2000; “Now it’s hot chocolate“, Apr. 4, 2000.
“‘Family of boy injured by leopard may sue’“, Jul. 18, 2002; “Skinny-dipping with killer whale: ‘incredibly bad judgment’“, Sept. 21, 1999 (Oct. 7 update: case dropped).
“Wasn’t his fault for lying drunk under truck“, Aug. 16-18, 2002; “‘Win Big! Lie in Front of a Train!’“, Jun. 26-27, 2002 (& Jul. 12-14); “Australian roundup” (graffiti artist on train), Nov. 23-25, 2001; “Hit after laying on RR tracks; sues railroad“, Oct. 23, 2001.
“‘Man awarded $60,000 for falling over barrier’“, Mar. 5, 2002.
“Utah: rescue searchers sued“, Nov. 26, 2001.
“Suit blames drugmaker for Columbine“, Oct. 24-25, 2001.
“Mosh pit mayhem“, Sept. 7-9, 2001.
“Urban legend alert: six ‘irresponsibility’ lawsuits“, Aug. 27-28, 2001.
“Don’t rock the Coke machine“, Jul. 20-22, 2001.
“Tobacco: Boeken record“, June 19, 2001.
Scary!: “From dinner party to court” (U.K. hypnotist), May 22, 2001; “Hypnotist sued by entranced spectator“, March 3-14, 2001; “Girl puts head under guillotine; sues when hurt“, March 8, 2000; “Haunted house too scary“, Jan. 6, 2000; “‘Scared out of business’” (decline of community Halloween haunted houses), Nov. 5-7, 1999.
Stop having fun (children’s recreation): see schools page.
“Tendency of elastic items to recoil well known“, Mar. 6, 2001.
“By reader acclaim” (sues alleged crack dealers over own addiction), Jan. 11, 2001.
“Smoker’s suit nixed in Norway“, Dec. 18-19, 2000; “Personal responsibility takes a vacation in Miami” (Engle tobacco verdict), July 8, 1999.
“Highway responsibility” (Derrick Thomas suit), Nov. 28, 2000.
“Fat tax proposed in New Zealand“, Oct. 31, 2000.
“More things you can’t have: raw-milk cheeses“, Oct. 3, 2000; “More things you can’t have” (unpasteurized cider, New England square dances), Sept. 27, 1999; “More things you can’t have” (rare hamburgers, food sent to summer camp), August 9, 1999.
“Smoking and responsibility: columnists weigh in” (after Florida verdict), Jul. 28-30, 2000.
“‘”Whiplash!” America’s most frivolous lawsuits’” (book collects cases), Jul. 14-16, 2000.
“Inmate: you didn’t supervise me” (horseplay alone in cell), Jul. 7, 2000.
“Can’t sue over affair with doctor” (court rules it was consensual), Jun. 13, 2000.
“Risky? Who’da thunk it?” (currency speculator sues over losses), Jun. 9-11, 2000.
“‘Jury awards apparent record $220,000 for broken finger’” (hurt while dancing), May 22, 2000.
“Videogame maker agrees to furnish safety gloves“, Mar. 13, 2000.
“Letourneau scandal: now where’s my million?” (boy sues), Apr. 20, 2000.
“All dressed up“, Apr. 19, 2000.
“Down repressed-memory lane I: costly fender-bender” (eggshell-psyche plaintiff), Dec. 29-30, 1999.
“Down repressed-memory lane II: distracted when she signed” (separation agreement), Dec. 29-30, 1999.
“GM verdict roundup” (lawyers shift drunk drivers’ responsibility to automakers), Dec. 16, 1999; “Drunks have rights, too“, Dec. 1, 1999.
“Rolling the dice (cont’d)” (Internet gambler sues credit card companies that advanced him money), Dec. 7, 1999; “Rolling the dice” (same), Aug. 26, 1999.
“Responsibility, RIP” (columnist Mona Charen), Nov. 2, 1999.
“The art of blame” (death of child left in hot van), Oct. 20, 1999.
“Nominated by reader acclamation” (killer’s parents sue school district, lawmen for failing to prevent Columbine massacre), Oct. 18, 1999.
“Block PATH to lawsuits” (fall out of tree in yard, sue your employer), Sept. 1, 1999.
“To restore individual responsibility, bring back contract principles” (Cato Institute paper by Prof. Michael Krauss), Aug. 16, 1999.
“Somebody might trip” (NYC condemns prints-of-the- Hollywood-stars sidewalk as slip hazard), Aug. 13, 1999.
“All have lost, and all must have damages” (huge award to salesman who hawked bad insurance policies since he’s a victim too), Aug. 3, 1999.
Through much of American history, courts discouraged lawsuits arising from risks that individuals were deemed to have assumed in the course of going about familiar activities, such as the risk of being thrown while horseback riding, of slipping on toys underfoot while visiting a house with children, or of being hit with a foul ball while attending a ball game. (Stored search on “assumption of risk”: Google, Alta Vista). Under the doctrine of “contributory negligence”, they often dismissed, as a matter of law, cases where a complainant’s own negligence had helped cause an accident. They were even less likely to entertain cases in which someone’s knowing or deliberate dereliction had placed him in physical peril, such as cases in which people sue over injuries sustained in the course of committing crimes or attempting suicide. And finally, they gave broad respect to express contractual disclaimers or waivers of liability: if a party was on notice that the other side in a transaction wasn’t willing to assume a responsibility, it wouldn’t be easy to tag them later with that responsibility in court.
By the 1950s all these old barriers to liability had come under sustained attack in the law schools, where they were viewed as insulating defendants’ misconduct from legal scrutiny and impeding the forward march of liability law as a (high-overhead) variety of social insurance. Most states moved from contributory negligence to comparative negligence, which allows a plaintiff whose negligence helped cause an accident to sue over it anyway, though for a reduced recovery. Waivers and disclaimers began to be struck down as unconscionable, against public policy, not spelled out with sufficient clarity, etc. And assumption of risk was whittled down by way of a dozen techniques: the most influential torts scholar of the postwar period, William Prosser, took the view that “that implied reasonable assumption of risk should not be allowed to reduce a plaintiff’s damage in any way” (Chase Van Gorder, “Assumption of Risk Under Washington Law“).
The result is today’s American legal environment in which plaintiffs routinely try their luck at suits after being injured climbing high-voltage utility structures while drunk, skinny-dipping in icy pools with captive killer whales, trying “wheelies” and other stunts on industrial forklifts, and smoking for decades. Some of these suits succeed at obtaining settlements while others fail, and it’s important to bear in mind that assumption of risk and related doctrines have not disappeared entirely. Their general decay, however, has been important in bringing us today’s hypertrophy of such areas of law as premises liability, product liability and recreational liability.
The website of attorney D. Pamela Gaines has useful resources on assumption of risk as it applies to such areas as premises liability, recreation and amusement parks. At the International Mountain Bicycling Association site, Tina Burckhardt explains “recreational use statutes” which grant some protection from liability lawsuits to landowners who allow free recreational use of their property.
May 31-June 2 – Welcome Fox News viewers/readers. Our editor is interviewed on air and quoted in print in this piece on the quest to make casinos and lottery operators the next Big Tobacco (Alisyn Camerota, “Trial Lawyers Target Gambling”, Fox News, May 31) (see May 20-21). (DURABLE LINK)
May 31-June 2 – “After stabbing son, mom sues doctors”. Pennsylvania: “Janice Taylor, who stabbed her 4-year-old son two dozen times outside their Lake Ariel home in 2000, is suing her doctors for not adequately responding to her psychosis as she neared the end of a pregnancy.” (Scranton Times Tribune, May 29). (via WSJ OpinionJournal “Best of the Web“, May 30). (DURABLE LINK)
May 31-June 2 – Activist judges north of the border. In the United States judicial activism has been falling into gradual disrepute for a quarter century, but in Canada many highly placed jurists seem eager to boogie like it’s 1975: the Ontario Court of Appeal has just struck down as unconstitutional one of the central planks in welfare reform, the principle that recipients with live-in boyfriends should not draw benefits accorded to single mothers. It’s only the latest in a long string of decisions in which judges seem to be writing their own preferences into law, according to columnist Christina Blizzard. Earlier this year the Supreme Court of Canada struck down as unconstitutional a Conservative government’s repeal of a law authorizing unionization of workers on family farms, although the effect of the repeal would only have been to revert to the state of the law as of a couple of years previously. Next up: a challenge to another plank of welfare reform, a lifetime ban on payment of benefits to persons caught cheating the system. Paging Mickey Kaus — they need you up there! (Christina Blizzard, “Disorder in the court”, Toronto Sun/Canoe, May 18). On U.S. judicial activism, see John Leo, “Running away with the law”, U.S. News/Jewish World Report, May 13. (& see letter to the editor, Jun. 14). (DURABLE LINK)
May 31-June 2 – Folk medicine meets child abuse reporting. The Vietnamese and Hmong folk remedy cao gio, or coining, “involves the rubbing of warm oils or gels across a person’s skin with a coin, spoon or other flat object. It leaves bright red marks or bruises, but many Asian families believe the marks represent bad blood rising out of the body and allow improved circulation and healing.” The lesions are typically not of medical significance, according to many Western medical observers, but they sometimes lead school and social service workers to report suspected child abuse, in part owing to the influence of laws mandating that possible instances of abuse be reported even if borderline. In Omaha, following such reports, police swooped down and removed ten children from their parents; following an outcry, charges against the parents were dropped and the children were returned to their homes. (Omaha World-Herald coverage including Joe Dejka, “Asian couples work to get children back”, May 3; Jeremy Olson, “Asian remedy raises few alarms elsewhere”, May 3; Joseph Morton, “2nd coining case dropped; Asian family expresses relief”, May 14; Karyn Spencer and Angie Brunkow, “Officials not sanctioning all ‘coining'”, May 17). (DURABLE LINK)
May 30 – “Oxy Morons”. “Last fall,” reports Forbes, North Carolina law firm Lutzel & Associates “sent a letter soliciting users of [time-release pain medication] Oxycontin and several other drugs. Claiming that the Food & Drug Administration had ‘banned’ the medications, the letter advised them to ‘stop using’ the drugs immediately.” But in fact Oxycontin was neither banned nor threatened with removal, and for a patient suffering pain suddenly to discontinue its use without a doctor’s recommendation can result in medically serious consequences as well as needless agony. (Ian Zack, “Oxy Morons”, Forbes.com, Apr. 29). Despite vigorous efforts by some plaintiff’s lawyers to stoke mass tort litigation over the drug (see Apr. 10 and links from there), the National Law Journal reports that drugmaker Purdue Pharma has “had a string of confidence-building victories in early litigation.” (Bob Van Voris, “OxyContin Maker Not Yet Feeling Much Pain”, National Law Journal, April 30). (DURABLE LINK)
May 30 – “Privileged chambers”. Earlier this year the Albany Times Union ran a five-day editorial series (“Unequal Justice” — scroll down to find it) on judicial misconduct in New York state. It concluded that discipline is generally lax when Empire State judges behave badly and that it can take years to remove a jurist from the bench even after charges of serious misconduct (“Privileged chambers”, Feb. 3; “Justice denied”, Feb. 4; “Conduct unbecoming”, Feb. 5; “Starving the watchdog”, Feb. 6; “The need for reform”, Feb. 7). (DURABLE LINK)
May 29 – Our editor interviewed. John Hawkins at Right Wing News interviewed our editor by email about this site and our ideas on legal reform, and publishes the results this morning (“An Interview with Walter Olson“). Earlier interviewees in the series include Glenn Reynolds of InstaPundit, Wendy McElroy of iFeminists and FoxNews.com, and Australian journalist Tim Blair. Update: nice things said about this by Protein Wisdom, VodkaPundit, and Eve Tushnet.
May 28-29 – The scandal of the Phoenix memo. It warned FBI higher-ups that Islamic radicals including followers of Osama bin Laden were training at American flight schools. So why wasn’t it followed up? FBI director Robert Mueller told Senators May 8 that it would have been a “monumental undertaking” to investigate the 20,000 or so students at domestic flight schools. “What a load of nonsense,” writes Christopher Caldwell. “Any small-town newspaper reporter could have narrowed down that 20,000 to under a hundred in an afternoon, just by focusing on names like … oh, I don’t know … try Mohamed, Walid, Marwan, and Hamza. Couldn’t the entire FBI have done the same?
“As it turns out, no. And the reason is, whoever got Williams’s memo would understand that there is one commonsensical way to implement it: Look for Arabs. And given congressional pressure on racial profiling and the president’s own outrageous pandering on the subject during the 2000 election campaign, Williams’s lead was something no agent with an instinct for self-preservation would want to touch with a barge pole.” (Christopher Caldwell, “Low Profile”, Weekly Standard, May 24) (via WSJ Best of the Web, May 24). See also John Fund, “Willful Ignorance”, WSJ OpinionJournal.com, May 22; “Key Lawmaker: Probe of FBI Warrant Will Look at ‘Racial Profiling’ Concerns”, AP/Fox News, May 26). Update: perfect Mark Steyn column (“Stop frisking crippled nuns”, The Spectator, May 25). (DURABLE LINK)
May 28-29 – “Rocketing liability rates squeeze medical schools”. “The University of Nevada School of Medicine in Reno could be forced to close if it can’t find affordable liability insurance by June 30. In West Virginia, Marshall University’s Joan C. Edwards School of Medicine in Huntington has cut its pathology program and is trimming resident class size. Pennsylvania State University College of Medicine in Hershey is cutting faculty salaries, which will make it hard to land top researchers. ‘The sudden, very large increase in expenses that were not anticipated or budgeted is creating a great deal of anxiety,’ says Jordan J. Cohen, MD, president of the Assn. of American Medical Colleges.” (Myrle Croasdale, American Medical News, May 20). (DURABLE LINK)
May 28-29 – “Barbed wire might hurt burglars, pensioner warned”. In Northampton, England, 94-year-old Ruby Barber has finally gotten permission from the borough council to put barbed wire on her garden walls after suffering four break-ins to her bungalow over the past year and a half. The council granted permission “as long as she uses warning signs and agrees to take full responsibility if a would-be intruder is injured“. Her son Burt, who lives nearby, said: “It is bordering on the ridiculous to say that if they hurt themselves getting in here I am responsible. The Queen has got it all around Buckingham Palace and if it is good enough for her it is good enough for my mother. She is the Queen to me.” (Ananova, May 24). (DURABLE LINK)
May 28-29 – Must-know-Spanish rules defended. Recently it was reported that a Miami social services agency was requiring an Anglo worker to learn Spanish on pain of losing her job. Some commentators were upset, but Eugene Volokh, of the Volokhii, argues that “speaking a foreign language is a valuable skill, and … employers may legally discriminate against employees who lack this skill”. (Volokh blog, May 8, May 11; Jim Boulet Jr., “Mandatory Spanish”, National Review Online, May 10, and running commentary by Boulet at English First site). And the factual background of the case turns out to be considerably less simple than first reports indicated; not only does the county deny that failure to learn Spanish was the reason for the worker’s firing, but it seems she held herself out as having “proficiency” in that language when she accepted the job (Jay Weaver, “Poor work, not language barrier, got employee fired, court says”, Miami Herald, May 11). (DURABLE LINK)
May 28-29 – Goodbye, Wendell Barry. Eve Tushnet administers a well-deserved thrashing to the overrated localist (“Hayseeds and Straw Men”, Eve Tushnet blog, May 27) (DURABLE LINK)
May 27 – McArdle on food as next-tobacco. “If you can’t be held responsible for what you put in your mouth, what are you responsible for?” (Megan McArdle, “Can We Sue Our Own Fat Asses Off?”, Salon, May 24). See also Duncan Campbell, “Junk food firms fear being eaten alive by fat litigants”, The Guardian, May 24; Jacob Sullum, “Food Fight”, Reason Online, May 10 (& see Jun. 3-4). (DURABLE LINK)
May 27 – “Lawsuit stifles Internet critics”. The Richmond Times-Dispatch and Long Island Business News have new stories out on the PetsWarehouse case (in which a pet store owner has sued aquatic plants hobbyists on charges of online defamation based on their postings on mailing lists and websites — see Aug. 6, 2001 & May 22, 2002). Both interview several parties, including defendant Dan Resler (a professor at Virginia Commonwealth University), plaintiff Robert Novak, and (in the Richmond paper) free-speech law commentator Rodney Smolla. A key factor working to defendants’ disadvantage: liberal jurisdictional rules which allow a plaintiff to file an Internet libel case in his local court (in this case the Eastern District of New York) and force defendants who live in distant states to shoulder the cost of litigating there from a distance. (Gordon Hickey, “Online speech not free”, Richmond Times-Dispatch, May 26). In Long Island Business News, owner Novak is quoted as being aware of this cost asymmetry: “‘It’s only five miles for me,’ he said. ‘All these people have to come here at their own expense.'” (Ken Schachter, Long Island Business News, “PetsWarehouse.com founder dries out aquarists in courts”, May 24-30). More on Internet jurisdiction: Carl S. Kaplan, “A Libel Suit May Establish E-Jurisdiction”, New York Times, May 27 (reg). Update Oct. 4-6: Novak sues Google and other defendants. Further update: Oct. 5, 2003. (DURABLE LINK)
May 24-26 – Nader credibility watch. In France, the litigation advocate called fast-food restaurants “weapons of mass destruction”. (“Ralph Nader met en garde les Français contre les ‘fast food'”, Yahoo/AFP, May 17; via Matt Welch, May 18; see comments at Tim Blair blog, May 26). More on Nader’s credibility or lack thereof: Matt Welch, “Speaking Lies To Power”, Reason, May; Thomas Oliphant, Boston Globe, Apr. 21. (DURABLE LINK)
May 24-26 – “Counseling center may face closure”. Chickasha, Okla.: “The largest civil verdict in Grady County history may mean the county’s largest mental health center will have to close for financial reasons, officials said Wednesday. A $1.5 million jury verdict awarded last week against Chisholm Trail Counseling Service was a bittersweet victory for the family of James Phillips, who committed suicide a few hours after being interviewed and released by one of the agency’s counselors.” (Penny Owen, The Oklahoman, May 23). (DURABLE LINK)
May 24-26 – Australia’s litigation debate. “Some of Australia’s most famous beaches face closure after a huge damages award to a man paralysed while swimming at Bondi Beach, local authorities have warned.” (BBC, “Closure ‘threat’ to Australia’s beaches”, May 14). Former chief justice of the High Court of Australia Harry Gibbs “said the culture of litigation had been fostered by some lawyers, while some judges seemed to strive to find a reason for finding in favour of an injured plaintiff and award damages in cases where a reasonable and informed person would not have thought the defendant was at fault. He said the deficiencies of the law of negligence had now become apparent. ‘It favours generosity to the plaintiff at the expense (in many cases) of justice to the defendant’.” Gibbs suggested that Australia might want to consider emulating the New Zealand model under which most negligence actions are replaced with a system of no-fault compensation. (“Lawyers blamed for crisis” (editorial), Queensland Courier-Mail, May 16). See Susanna Lobez, “Snails, Consumer Power and the Law”, ABC national radio transcripts, The Law Report, June 1, 1999)
“The latest figures available from the Australian Bureau of Statistics show that as of June 30, 1999, there were 10,819 barrister and solicitor practices in Australia, an increase of 11 per cent over three years, and these practices generated an income of $7.04 billion, a robust 27 per cent increase over three years. Income from personal injury cases grew still faster, by 31 per cent.” What strikes us as remarkable about these figures is not just the rapid growth in sums redistributed, but that the figures are obtainable at all. Virtually no data is available, reliable or otherwise, on how much money American lawyers receive in the aggregate from personal injury cases. Why not? If the answer that occurs to you is “because our legal profession doesn’t want it to be collected”, you may be on to something. (Paul Sheehan, “Laws made by lawyers — well they would like that, wouldn’t they?”, Sydney Morning Herald, May 6). (DURABLE LINK)
May 22-23 – Convicted hospital rapist sues hospital. “A Sandusky man serving a 10-year sentence for raping a patient at the former Providence Hospital is suing both the hospital and his former attorney for negligence, according to Erie County Common Pleas Court records. Edward Brewer filed suit Monday against Providence Hospital, now part of Firelands Regional Medical Center, for ‘inadequate security in protecting visitors as well as their patients’ which caused him pain and suffering, according to court documents. Brewer, 47, was found guilty in October of raping a 44-year-old acquaintance in her hospital bed in June 1998. … Brewer claims negligence by the hospital, including a poorly trained nursing staff, negatively affected his criminal case, according to the suit.” The suit, which Brewer filed on his own behalf, asks for $2 million in damages; separately, Brewer is suing his former criminal attorney. (Emily S. Achenbaum, “Convicted rapist sues hospital”, Sandusky [Ohio] Register, May 21). Update: court dismisses case, see Mar. 5-7, 2003. (DURABLE LINK)
May 22-23 – Reparations suits “pure hooey”. The “slave-reparation plaintiffs have articulated neither standing nor a cognizable claim. In the final analysis, these cases are not really about pushing the envelope and making new law. Rather, they are part of a strategy to inflict public relations damage in order to coerce political and economic concessions. The federal courts should stand firm against this gathering storm, dismiss the lawsuits and leave the complex issues of social policy they raise to the political process.” (Steven P. Benenson, “Reparations Suits Are Too Little, Too Late”, National Law Journal, May 20). “Any judge not assessing sanctions for the filing of frivolous litigation should be ashamed. … So much for laches, the statute of limitations and all the other legal devices that assure that disputes are resolved in a timely manner. No wonder the world laughs at our love of litigation.” (Norm Pattis, “The Color of Money: It’s Red for Reparations”, Connecticut Law Tribune, Apr. 15).
“The villain Calvera said, ‘Generosity, that was my first mistake,’ as he peered ominously from beneath his mega-sombrero at the gringo gunman in the classic scene from the 1960 film The Magnificent Seven. … Honchos at Aetna Inc., the insurance company named in a recent lawsuit seeking reparations for slavery, must be remembering that quote right about now.” (Gregory Kane, “Generosity goes unnoticed in slavery reparations lawsuit”, Baltimore Sun, Apr. 20). Kane says Aetna has responded to the suit with “infuriating wussiness” and says “what Aetna bigwigs should tell [plaintiff-activist Deadria] Farmer-Paellmann and her lawyers [is]: ‘Get a life!'” (DURABLE LINK)
May 22-23 – PetsWarehouse.com defamation suit, cont’d. Last year we reported on the ongoing litigation filed by Robert Novak, founder and owner of PetsWarehouse.com, against members of an internet discussion list that he said had defamed him and his company (see Aug. 6, 2001; letter to editor from Novak, Aug. 10). Many aquarium enthusiasts, alarmed by the legal action, have at various times posted information on their sites about the suit, sometimes posting banners that solicit donations on the defendants’ behalf. (“$15,000,000 lawsuits suck the life out of online discussions. Please support the APD Defense Fund,” reads one.) According to Katharine Mieszkowski, writing last month in Salon, a number of these site operators have been given reason to regret that they ever took such rash steps. In particular, according to Mieszkowski, Novak has proceeded to add more defendants to the suit, including supporters of the APD Defense Fund who put up its banner solicitations, and the webmaster of a site that had posted information on the case, charging them with violating his PetsWarehouse copyright and engaging in a conspiracy against him. Among evidence of copyright infringement offered in his suit was webmasters’ use of Pets Warehouse as a “metatag”, that is to say, a keyword directed at search engines but not normally seen by ordinary users (more on metatag litigation: Sept. 25, 1999).
A number of defendants have settled out of the case, including a Colorado webmaster who says she spent thousands on her defense and who turned over the rights to her domain to Novak as part of the settlement, having shut it down after being sued. “Other defendants had to run banners on their sites promoting Pets Warehouse.” “According to [defendant Dan] Resler, at one point, the money in the defense fund ran out, and when the defendants had to start paying out of their own funds, they got scared. (Novak is representing himself ‘pro se’ in the case.)” Resler himself agreed to pay $4,150. “Beyond the lawsuit itself, other supporters of the case say they have received cease-and-desist letters for using the words ‘Pets Warehouse’ on their sites.” Among them: the webmaster of a site that “features a banner advertisement that mentions the case with this headline: ‘Pets Warehouse Sues Hobbyists’ and links to the aquarists’ site about the case. ‘I’m just literally reporting that the case exists and linking to another site,’ he says.” (Katharine Mieszkowski, “Free speech and the Internet; a fish story”, Salon, Apr. 4). (DURABLE LINK)
January 30-31 – Don’t mess with the taste cops. Arizona: Angelica Flores was handcuffed by police officers in front of her daughter and packed off to jail because “she and her husband, Tony, last year violated a code requiring Christmas decorations to be removed 19 days after the holiday.” Thinking that the charges had been dropped, the couple had skipped a court date with officials of the town of Peoria. (Monica Alonzo-Dunsmoor, “Couple jailed for Christmas lights see charge as humbug”, Arizona Republic, Jan. 28).
January 30-31 – “Legal Lesson for Afghanistan: War’s Not a Slip-and-Fall Case”. “For centuries, it has been accepted that damage caused in wartime cannot be claimed as injuries deserving compensation. … combatants are not required to treat every invasion like a massive slip-and-fall case,” notes law prof/pundit Jonathan Turley of George Washington University (L.A. Times, Jan. 29) (via InstaPundit).
January 30-31 – Washington Post blasts HMO class actions. The paper’s editorialists warn of “a new rash of abusive class action lawsuits” that “are being filed by an array of plaintiff’s lawyers, led by Richard Scruggs — of tobacco litigation fame and fortune — and David Boies”. The suits’ premise that managed health care cost control amounts to “racketeering” is a “novel but silly” theory that has already been rejected by one federal appeals court, the Third Circuit. “The notion of a national class of HMO enrollees is absurd. … The suits are a transparent effort to hijack the policy debate about managed care.” (“More actions without class”, Jan. 28).
January 30-31 – All things sentimental and recoverable. Down, attorney, down! cont’d: trial lawyers are salivating at the prospect of getting the law changed so they can file malpractice suits against veterinarians not just for a pet’s economic or replacement value as an animal, as is mostly the rule now, but for its personal and sentimental value, which would clear the way for six- and even seven-figure recoveries. In a closely watched case called Bluestone v. Bergstrom, an Orange County, Calif. judge has ruled in favor of a plaintiff’s right to pursue the larger scope of damages. At present only one veterinarian in sixteen faces a malpractice claim every year, but insurance specialist Mike Ahlert of Mack & Parker predicts skyrocketing rates if courts adopt the new doctrines: “it will drive up the cost of claims and attract plaintiff’s attorneys looking for new sources of income”. (Jennifer Fiala, “Court rulings could up ante on DVM malpractice”, DVM (veterinary newsmagazine), Sept., reprinted at ABD Services site); see also Thomas Scheffey, “Putting a Price on Pets”, Connecticut Law Tribune, Nov. 21).
January 28-29 – “Probe of Milberg Weiss Has Bar Buzzing”. Rumors fly that a grand jury is investigating class-action behemoth Milberg Weiss. Accounts differ, but the focus of the investigation is said to be the firm’s financial relationships with clients serving as plaintiffs in securities cases. (Jason Hoppin, The Recorder, Jan. 28). (DURABLE LINK)
January 28-29 – State of prosecution in Iowa. In a bizarre application of federal sentencing guidelines, the U.S. attorney’s office in Cedar Rapids, Iowa has gotten Dane Allen Yirkovsky, 38, sentenced to prison for 15 years for possessing a single .22 caliber bullet. “Yirkovsky’s saga began when he happened to come across a loaded .22-caliber round while pulling up carpets in the home of a friend who was putting him up in exchange for some remodeling work. He stuck the bullet in a box in his room. The bullet was discovered by police who were searching Yirkovsky’s room after his ex-girlfriend asserted he had some of her belongings.” (“Editorial: One bullet, 15 years”, Des Moines Register, Jan. 21). “The Iowa Supreme Court ruled Thursday that Polk County authorities were within their rights to confiscate a $9,000 car for a $35.81 crime.” (Frank Santiago, “County seizure of $9,000 car for $35.81 crime is upheld”, Des Moines Register, Jan. 25) And thank the Iowa attorney general’s office for this one: “Critics say a state law aimed at confining sexual predators past their prison terms is being used to punish offenders for crimes that aren’t sex-related.” (Jeff Eckhart, “Predator law used in non-sex crimes, critics say”, Des Moines Register, Dec. 23 — via Free-Market.Net). (DURABLE LINK)
January 28-29 – Strain, sprain injuries get $350K. “A California shopper who sustained a lower-back injury after a slip and fall in a department store settled her case for $349,999. On Dec. 26, 1998, plaintiff Bianca Hernandez, an unemployed female in her early 50s, was shopping in the sportswear section of a J.C. Penney store when she slipped and fell on coat hangers, clothes and other debris that were left on the floor.” Hernandez was taken to an emergency room. “She suffered sprain and strain injuries to her lumbar spine, left knee and left ankle.” Her suit alleged “that the store was inadequately supervised because the department manager and the assistant manager were both on break at the time, and sales associates were fully occupied serving customers.” Hernandez v. J.C. Penney Co. Inc., No. VC 030 725 (L.A. County) (“Fall during post-holiday sale costs J.C. Penney”, National Law Journal, Jan. 21, not online). (DURABLE LINK)
January 28-29 – Third Circuit nixes Philly gun suit. Goodbye to the city’s nuisance of a suit against the gun industry: “gun manufacturers are under no legal duty to protect citizens from the deliberate and unlawful use of their products,” said the federal appeals court, which also ruled the city couldn’t show the gunmakers were the “proximate cause” of harm suffered. (Shannon P. Duffy, “Philadelphia’s Gun Suit Off Target, 3rd Circuit Says”, Legal Intelligencer, Jan. 14). (DURABLE LINK)
January 25-27 – Warning on fireplace log: “Risk of Fire”. Michigan Lawsuit Abuse Watch has released the results of its fifth annual contest for the wackiest warning label, with the warning on the fireplace log coming in second. The winning entry, found on a CD player: “Do not use the Ultradisc2000 as a projectile in a catapult.” Third prize went to the label on a box of birthday candles: “DO NOT use soft wax as ear plugs or for any other function that involves insertion into a body cavity.” (Larry Hatfield, “Dumbest warning labels get their due”, San Francisco Chronicle, Jan. 24; M-Law press release, Jan. 22). (DURABLE LINK)
January 25-27 – Goodbye to zero tolerance? Democratic state senator Richard Marable is leading a bipartisan group of lawmakers in the Georgia legislature who want to give school authorities more discretion for lenience in cases of students found with weapons or weapon-like objects in their possession. The public has been soured on zero-tolerance policies by cases like that of Ashley Smith, the Cobb County sixth-grader suspended for 10 days for bringing to school a Tweety Bird keychain (see Sept. 29, Oct. 4, 2000), and an Eagle Scout punished after “return[ing] to school from a weekend expedition with a broken ax in his car … An Atlanta Journal-Constitution poll this past Friday found that 96 percent of respondents supported examining each case individually. Only 1 percent liked zero tolerance the way it was, and 3 percent wanted school safety laws to be stricter.” (“Georgia Pols Want ‘Common Sense’ to Trump ‘Zero Tolerance'”, FoxNews.com, Jan. 21). (DURABLE LINK)
January 25-27 – McMouse story looking dubious. Brett B., 32, “said he found a mouse inside his Big Mac sandwich in June of 2001.” His story has been looking a little peaked, however, since he and four others were busted “as part of a methamphetamine ring in Berkeley County. Police say [he] was also part of a scam that went around the state stealing people’s identities and credit cards. But one of his alleged accomplices spoke up about last June’s mouse incident, telling police, ‘Brett had got together with myself … and had planned to come up with a scam to pull on McDonald’s where Brett was going to say he had bit into a mouse that the employees of McDonald’s had put in there.'” (Dan Krosse, “McMouse Case Looks Like a Hoax”, WCIV-TV (Charleston, S.C.), Jan. 15). (DURABLE LINK)
January 25-27 – “Companies may be liable for drugs used in rapes”. “Drug manufacturers whose products are used by offenders to help them commit rape could be held legally responsible for the crimes, according to a Melbourne lawyer. Eugene Arocca was commenting on reports of increasing drug-assisted date-rape in and around Melbourne clubs and entertainment venues. … However, the managing director of Roche Australia, the drug company that produces several drugs that have allegedly been used in date-rapes, described the whole idea as ‘bloody ridiculous’.” (Heather Kennedy, The Age (Melbourne), Jan. 6). (DURABLE LINK)
January 23-24 – Life imitates parody: “Whose Fault Is Fat?” By reader acclaim: “Some say the food industry — particularly fast food, vending machine and processed food companies — should be held accountable for playing a role in the declining health of the nation, just as the tobacco industry ultimately was forced to bear responsibility for public health costs associated with smoking in its landmark $206 billion settlement with the states. Although no one is taking such legal action against the food industry, nutrition and legal experts say it is reasonable to think that someday, it may come to that. ‘There is a movement afoot to do something about the obesity problem, not just as a visual blight but to see it in terms of costs,’ says John Banzhaf, a George Washington University Law School professor.” (Geraldine Sealey, “Whose Fault Is Fat? Experts Weigh Holding Food Companies Responsible for Obesity”, ABCNews.com, Jan. 22). OpinionJournal.com “Best of the Web” (Jan. 22) reports that “This past Sunday, ‘The Simpsons’ aired a new episode in which Marge, shocked to learn that Springfield is the fattest town in America, hires a lawyer to sue ‘big sugar.'” See Michael Y. Park, “Lawyers See Fat Payoffs in Junk Food Lawsuits”, FoxNews.com, Jan. 23 (quotes our editor).
January 23-24 – “Law hurts men, women”. Title IX, the feminist sports law run amok, is taking an ever-increasing toll: “Baseball at Boston University — gone. Kent State hockey — goodbye. Swimming at New Mexico — finished. The list goes on and on, more than 350 programs in virtually every sport on campus, and with it go the scholarships earned by student athletes and their dreams of competition to which most have devoted a lifetime. Incredibly, that has happened to more than 22,000 college athletes in recent years.” (Mike Moyer (executive director of the National Wrestling Coaches Association), Yahoo/USA Today, Jan. 21)(see Nov. 3, 2000, and our 1998 take).
January 23-24 – “Dangerous compensation”. “It seems that envy has replaced acceptance as the final stage of grief. … Washington’s payments to the victims of terrorism exposes the government to a potentially limitless array of future claims. Families of those killed in the 1988 bombing of Pan Am 103 over Lockerbie, Scotland, received nothing from Washington; relatives of federal employees killed in the 1995 Oklahoma City bombing collected approximately US $100,000 each. But if US $1.6-million per decedent is the going rate, then a proper accounting for past and future terrorist attacks might bleed the coffers dry.” (National Post (editorial), Jan. 21).
January 23-24 – Drug demagogy and needless pain. Doctors still underprescribe opioids for the control of chronic pain, and it doesn’t help when CBS “60 Minutes” lends its assistance to the campaign against one of the most important recent pain advances, the drug OxyContin (Jane E. Brody, “Misunderstood Prescription Drugs and Needless Pain”, New York Times, Jan. 22 (reg); Jacob Sullum, “Killing a Painkiller”, Dec. 18; Geov Parrish, “A junkie’s confession”, Seattle Weekly, Dec. 20-26) (see Aug. 7, 2001). A Google search on the drug’s name immediately calls up ads from the websites AboutOxyContin.com and OxycontinInfoCenter.com, which might sound neutrally informative but turn out to be client intake sites for trial lawyers.
January 21-22 – Med-mal: should doctors strike? Insurance rates for doctors are soaring in New Jersey, and the legislature in Trenton is too deeply entwined with trial lawyers to pass anything likely to curtail the bar’s prosperity. “Calling the supply of surgeons tenuous, Dr. Michael Goldfarb, chief of surgery at Monmouth Medical Center in Long Branch, said that unless action is taken soon, New Jersey and the rest of the nation will have a surgeon shortage.” Neptune, N.J. ob/gyn Dr. George Lauback “gave up the obstetrical side of his practice, realizing that paying the $170,000 annual premium would mean he was working for the insurance company, not his family.” Brick, N.J. obstetrician Dr. Charles Brick suggests the state’s physicians stage a work stoppage of non-emergency care to draw attention to their plight (Naomi Mueller, “Malpractice costs driving doctors out”, Asbury Park Press, Jan. 19). In neighboring Pennsylvania, where payouts per doctor are said to be the highest in the country, the “Pennsylvania Medical Society reports that, according to data compiled by CASCO Consulting, a typical obstetrician in the regions of Pennsylvania with the highest average premiums, pays $83,541 a year in insurance premiums …[a] typical orthopedic surgeon in Pennsylvania’s highest region pays $96,199 a year … the average neurosurgeon in the same Pennsylvania region pays $111,296 a year.” (“Focus on medical malpractice”, Law.com, Oct. 31).
One Delaware County, Pa., orthopedic surgeon calculates that his liability insurance costs him $300 per surgery, which is more than some of the procedures are reimbursed for, so that “he’s losing money before other expenses are even factored into the equation.” (Tanya Albert, “Liability rates squeezing out specialties”, American Medical News (A.M.A.), Dec. 3; Tanya Albert and Damon Adams, “Professional liability insurance rates go up, up; doctors go away”, Jan. 7). On the withdrawal from delivering babies of half or more of the obstetricians practicing in various Mississippi Delta counties since just a year or two ago, see Hugh A. Gamble (president, Mississippi State Medical Association), letter to the editor, Mississippi Medical News, Dec., (PDF format, large download), at p. 4. (DURABLE LINK)
January 21-22 – “In a class of his own”. Profile of famed class-actioneer Melvyn Weiss of Milberg Weiss Bershad Hynes & Lerach. Quotes our editor (The Economist, Jan. 17).
January 21-22 – Student: clown college harder to get into than law school. Soon after graduating with his law degree from the University of California, Berkeley, David Carlyon left it all behind to enroll in the Ringling Bros.-Barnum & Bailey clown training program. “Hey, listen, it’s harder to get into that Clown College than it is into a law school,” he told the Saginaw (Mich.) News. “Some 3,000 apply to it each year, only 60 get in and only 30 get contracts after they graduate.” (“Berkley [sic] grad says getting into clown school harder than getting into law school”, AP/AZcentral.com, Jan. 18). (DURABLE LINK)
January 21-22 – “Judo champion refuses to bend in lawsuit”. Challenging the ritual which begins sanctioned judo matches, a suit by three students “against three U.S. judo groups, as well as the International Judo Federation. …claim[s] that the forced bowing to inanimate objects, such as judo mats and pictures of the Japanese martial art’s founder, is religious in nature and violates federal and Washington state discrimination laws.” (Sam Skolnik, Seattle Post-Intelligencer, Dec. 7) (via OpinionJournal.com “Best of the Web“).
August 20-21 – “Man suing after drunken driving crash”. Nashua, N.H.: “Three years ago, a Merrimack man crashed his Jeep in a Londonderry sand pit, killing a friend. Now, he’s suing the pit’s owner and the couple who threw the party where he was drinking before the crash. Albert Gordon, 36, charges Jay and Susan Barrett of Londonderry were negligent in letting him get drunk at a company party and didn’t warn him and other guests of the dangers of four-wheeling in the sand pit next door. He alleges the pit owner, Continental Paving Inc., should have done something to keep people off its property or warn them of the danger.” Gordon was convicted of aggravated driving while intoxicated; prosecutors said his “blood alcohol level after the accident was more than twice the legal limit for driving.” (AP/Boston Globe, Aug. 16)
August 20-21 – Jury orders Cessna to pay $480 million after crash. Sure, go ahead and let trial lawyers swallow the light aircraft industry — no doubt they’ll do a better job running it. Tobacco-fee angle: one of the plaintiff’s firms in the case is that of Fred Levin, who hauled in an estimated $300 million representing Florida in the tobacco suit, gave enough to the University of Florida’s law school to get it named after himself, and clearly knows how to reinvest his winnings. (Bill Kaczor, “Pensacola Jury Returns $480 Million Verdict in Plane Crash”, AP/TBO.com, Aug. 16; Molly McMillin, “Jury says Cessna is at fault in crash”, Wichita Eagle, Aug. 17; Shannon P. Duffy, “Florida Jury Sets $480 Million Verdict in Crash of Defective Plane”, The Legal Intelligencer, Aug. 17).
August 20-21 – Welcome LinkyDinky, FluffyBunny visitors. The popular best-of-the-web service LinkyDinky gives us a nod, describing Overlawyered.com as a site that “chronicles the sad (and scary) state of affairs due to our litigious attitudes, including bizarre examples of greed overcoming logic” (Aug. 15). We’ve also newly won mention on FluffyBunny.com, which says of us: “Sites like this are always a good read when you’re tired of the dozen shark stories, recaps of Chandra Levy timelines and discussions of the obvious” (first Aug. 16 item). LinkyDinky, FluffyBunny — could a pattern be developing here? Also: Australia’s Blackstump (Aug. 8) and HalluciNETting; Pop-o-ganda.com (“control- trademark – delete”), RidersForJustice.com (“links of interest to bikers”/”Freedom Fighter” section), Daily Frank weblog (July 26), Teri O’Brien (“speaker, author, motivator”), Laipple family of Tulsa, Okla., GentleWolf.com.
August 20-21 – Updates. More new developments in familiar stories:
* By a 9-5 vote, the Fifth Circuit has paved the way for a new trial for Texas death row inmate Calvin Burdine on the grounds that his lawyer was asleep during parts of his trial. The dissenting judges argued that Burdine’s guilt was clear from his confession and other evidence and that his lawyer’s alleged propensity to snooze off made no difference in the case’s outcome. The dissent “also noted that Mr. Burdine waited 11 years before raising the ‘sleeping lawyer’ claim and even praised [his lawyer's] performance after the trial.” (see Feb. 12) (Diane Jennings & Ed Timms, “Court sides with inmate in sleeping-lawyer case”, Dallas Morning News, Aug. 14).
* In California, a state panel has ordered Judge Patrick Couwenberg off the bench for lying extensively about his background during the process that led to his appointment, despite his lawyer’s plea that Couwenberg “is a victim of a mental condition called ‘pseudologia fantastica’ for which he is undergoing treatment” and which causes him to fib in a compulsive way (see June 7). (Erica Werner, “Los Angeles Superior Court judge removed from bench for lying”, Sacramento Bee, Aug. 16; Sonia Giordani, “L.A. Judge Removed From Bench for Lies About Past”, The Recorder, Aug. 17).
* “A federal judge has rejected a proposed settlement of an antitrust suit against the National Football League and its member teams over the pricing structure of the ‘Sunday Ticket’ on satellite television after finding that consumers weren’t getting enough money and that the plaintiffs’ lawyers were getting too much. … [The judge said] courts have a duty to reject such settlements so that plaintiffs’ lawyers will be discouraged in the future from bringing weak cases.” (see June 5). (Shannon P. Duffy, “Judge Rejects NFL Antitrust Settlement That Pays Lawyers Too Much, Consumers Too Little”, The Legal Intelligencer, Aug. 20).
* In the eight-year-long saga that has pitted Marilyn Bartlett’s demands for handicap accommodation against the resistance of the New York State board of bar examiners, federal judge Sonia Sotomayor has ruled that the board must allow Bartlett four days, rather than two, to complete the bar exam because of her dyslexia and learning disability (see our editor’s column in Reason, Feb. 1999) (Mark Hamblett, “Learning-Disabled Woman Wins Added Time for New York Bar Exam”, New York Law Journal, Aug. 17; Daniel Wise, “Review of Dyslexic’s Bar Exam Ordered by 2nd Circuit”, New York Law Journal, Aug. 31, 2000).
August 17-19 – Contrarian view on PBR. “The managed care industry is not complaining that loudly about the latest legislation.” (George M. Kraw, “The Patients’ Bill of Rights” (commentary), The Recorder, Aug. 10). Also: Philip K. Howard, “A Cure for the Patient’s Bill of Rights,” AEI-Brookings Joint Center for Regulatory Studies Policy Matters #01-18 June; Karlyn H. Bowman, “Public Favors Patients’ Bill of Rights, but It’s Not a Top Priority,” Roll Call, June 28.
August 17-19 – “The arithmetic of arsenic”. U. of Chicago law prof Cass Sunstein, a frequent contributor to the New Republic and mentioned as a possible Supreme Court pick in a future Democratic administration, examines the role of cost-benefit analysis in the recent EPA arsenic controversy, and concludes that reasonable assumptions could have tipped the decision either way: there is “no obvious, correct decision for government agencies to make”. (AEI/Brookings Joint Center for Regulatory Studies, Working Paper 01-10, Aug. — abstract/full paper (PDF) (see also Apr. 18))
August 17-19 – From the evergreen file: humiliation for dollars. How much embarrassment would you be willing to put up with on the witness stand just to nab a few thousand dollars more in damages after a fender-bender in which “not even a taillight was broken”? As much as this Connecticut couple? (Colleen Van Tassell, “Good Thing It Wasn’t A Tow Job”, New Haven Advocate, March 11, 1999).
August 16 – Bias suits can tap personal assets of innocent higher-ups. “Victims of housing discrimination have a direct claim on the personal assets of business owners and officers whose employees were at fault and need not go through the usual hurdles to pierce the corporate veil, the 9th U.S. Circuit Court of Appeals ruled on July 31.” The court ruled that a mixed-race couple and homebuilder could file suit against David Meyer, the founder of Triad Realty in Twenty-Nine Palms, Calif., over the discriminatory failure of one of the realty firm’s agents to present the couple’s bid on a house, and that Meyer’s personal assets could be proceeded against if he were the owner or proprietor whether or not it could be shown that he knew anything about the discrimination. (Gary Young, “Realtor Liable for Agent Bias, 9th Circuit Rules”, National Law Journal, Aug. 14).
August 16 – “Deputies Sue Diabetic Driver They Beat After Traffic Stop”. Maryland: “Two Frederick County sheriff’s deputies are suing a diabetic man they beat after a traffic stop, contending his complaints about the incident hurt their careers. Eric J. Winer and Jeffrey A. Norris are seeking more than $68,000 from Frederick T. ‘Tom’ Moore IV of Virginia.” In 1998 officers Winer and Norris chased and blocked Moore’s erratic truck on the assumption he was drunk, then beat and doused him with pepper spray and let their dog into his vehicle when he failed to respond to their commands. It turned out, however, that he had been slipping into a diabetic coma. “Moore spent four days in the hospital for dog bites and other wounds from the beating.” In their lawsuit, “the officers say the inquiries and publicity portrayed them unfairly. They contend Moore’s criticism of them in media interviews was ‘highly offensive,’ considering they had ‘prevented serious harm, injury and/or death’ to Moore.” (WJLA/Yahoo, Aug. 10).
August 16 – How Germans see American injury law. “In Germany, lawyers and the media look upon the American tort system with a mixture of fascination, envy, and horror.” Perhaps surprisingly, the difference between the two systems is not so much in the substantive scope of liability; in fact, German law in some respects is more liberal than American, imposing a “duty to rescue” that American courts have rejected, for example. Instead, the differences have more to do with damages: ours are both far higher and far more unpredictable. “It is well documented that the scale of damages resulting from successful tort litigation in Germany is at least one order of magnitude lower than in the US. Thus, where a broken leg in a car accident in New York City might produce a jury award of $300,000, in Berlin it would produce an award of around $30,000.” At the same time, “in comparison with the German tort system the American system is wildly more unpredictable at every level”: many cases result in low compensation or none even though they seem as deserving as the jackpot cases.
“The Germans find the variation in our damages awards totally unacceptable. … [They feel] we should give the same amount to people for the same kind of injury. The Germans enforce a semblance of order with respect to pain and suffering damages by collecting together all the damage awards produced in every trial court in Germany in a given year. This book, called the Tabellen, is published and used by judges and lawyers to estimate what a damage award in a new case should be.” The American system is “actively opposed” to any such approach (more on “scheduled compensation” abroad: Aug. 10). (Anthony J. Sebok (professor, Brooklyn Law School), “How Germany Views U.S. Tort Law”, FindLaw.com, July 23) (via Arts & Letters Daily).
August 16 – New daily traffic record on Overlawyered.com. Upwards of 11,700 pages served on Tuesday, helped along by that excellent John Leo column and by our first announcement mailing since we moved the list to Topica (though we bunglingly forgot to include in it a link to this site’s front page, an omission we’ll rectify in the future). Thanks for your support!
August 15 – John Leo on Overlawyered.com. The columnist pulls together a fresh batch of “news from the annals of zero tolerance and the continuing campaign to make the culture ever more deranged”. He gives generous credit to the website you are perusing at this very moment, which “reports brightly on the amazing excesses of the litigious society” (“It’s a mad, mad world”, U.S. News/TownHall.com, Aug. 14). Some recent zero-tolerance cases he describes, which hadn’t made it onto this site yet: “A New Jersey student made a baseball bat in shop class, then was expelled for refusing to hand it over to a teacher as a dangerous weapon. A National Merit scholar in Fort Myers, Fla., missed her graduation ceremony and was sent to jail after a kitchen knife was found on the floor of her car. She said the knife had fallen there when she moved some possessions over the weekend. At a Halifax, Nova Scotia, school, a ban against throwing snowballs also prohibited all arm motions that can be interpreted as possible attempts to throw something at anyone.”
August 15 – Navegar not nailed. Pundit/law prof Erwin Chemerinsky was sure that Navegar’s sued-over TEC-DC9 weapon, though it sold by the hundreds of thousands, had no legitimate uses whatsoever. Notes Reason Online‘s Jacob Sullum: “it was galling how readily anti-gun activists and politicians leaped from the premise that thugs liked a given gun to the conclusion that no one else did”. (“The Evil Gun”, Aug. 14; see also “California Dreamin'”, WSJ/OpinionJournal.com, Aug. 10; “Gun makers’ liability (editorial), Las Vegas Review-Journal, Aug. 7). And given voter trends in last November’s election, many national Democrats are racing to distance themselves from the agenda of the litigate-and-confiscate antigun groups. “More than any other issue, some analysts say, unease about gun control helped defeat presidential candidate Al Gore in several traditionally Democratic Southern and border states — any one of which would have been enough to put him in the White House.” (Susan Page, “Democrats back off on firearms”, USA Today, Aug. 14). Similarly: James Dao, “New Gun Control Politics: A Whimper, Not a Bang”, New York Times, March 11; Juliet Eilperin and Thomas B. Edsall, “For Democrats, Gun Issue Losing Its Fire”, Washington Post, Oct. 20, 2000.
August 15 – “Girl from Ipanema is sued over the song she inspired”. “It was as a sultry 18-year-old that Heloise Pinheiro inspired Brazil’s best-known tune. Now aged 57, she is being threatened with legal action by the songwriters’ heirs, who claim that her boutique, ‘The Girl From Ipanema’, infringes their copyright.” (Philip Delves Broughton, Daily Telegraph (U.K.), Aug. 13; “The churls from Ipanema” (editorial), Aug. 13).
August 13-14 – Why she’s quitting law practice. Karen Selick, a libertarian attorney who writes a column for Canadian Lawyer and practices in a small community in Ontario, is getting out of the business and explains why on her website. To begin with, there’s the aggravation and emotional wear and tear of matrimonial law, the bulk of her practice. “Then there’s the state of the law itself. When I started in this field in 1985, there was at least a modicum of cohesiveness to the case law. That has now vanished completely. Not only is the law different from what it was in 1985 — it’s different from what it was last month or last week. Once upon a time, you could give your clients a pretty good idea of the outcome they might expect if they went to court. Now all you can tell them is that every case is a crapshoot.” And then there’s the law’s tilt against husbands and fathers, “to the point where representing women in a manner that protects you from negligence suits requires a lawyer to make claims that I consider to be unethical, while representing men means you are perpetually on the losing side.” (“A Twist on Gresham — Bad Laws Drive Out Good Lawyers”, undated, late July).
August 13-14 – “Shark-bite victim turns to Cochran”. By reader acclaim: “The family of a highly publicized shark-attack victim mauled while swimming at a Bahamian resort has consulted a famous legal barracuda to represent them in a possible suit against the hotel: Johnnie Cochran.” The family of 36-year-old Krishna Thompson “has accused lifeguards at the Our Lucaya Beach & Golf Resort on Grand Bahama of lingering on the beach during the attack. … The resort has insisted that lifeguards acted swiftly in pulling Thompson out of the water. The resort’s statements were backed by a Bahamian doctor who interrupted his morning stroll to help.” (Tere Figueras, Miami Herald, Aug. 10).
August 13-14 – “We often turn irresponsibility into legal actions against others”. Two events in the Tampa Bay area caught the eye of St. Petersburg Times columnist Robyn Blumner: the criticism that greeted the city of St. Petersburg for declining to cancel a free fireworks display in the face of an approaching lightning storm, even though it might tempt residents to go outside; and “a sexual harassment lawsuit filed by Nicole Ferry against the University of South Florida, in which the state of Florida agreed to give her $25,000″ for having subjected the student to a sexually explicit photograph (warned of in advance) as part of her university art class. The two news reports suggest to Blumner that our sense of personal responsibility and resilience is slipping fast, and remind her of a certain website which (among other functions) “documents the way predatory lawyers help people turn their personal failings into lawsuit fodder.” Which cases on this site does Blumner “find most appalling?” Read the column and find out. (July 15).
August 13-14 – Tobacco: judge cuts Boeken award. In Los Angeles, Superior Court Judge Charles McCoy has upheld $105 million worth of a jury’s $3 billion award to smoker Richard Boeken against Philip Morris (more). The company has vowed to appeal, citing among other reasons the judge’s refusal to admit evidence that would have shed light on Boeken’s credibility, in particular his record of criminal convictions on fraud and other charges. (Anna Gorman, “Huge Award to Smoker Cut by Judge”, L.A. Times, Aug. 10; Cadonna M. Peyton, AP/Daily Southtown, Aug. 10). On the evidence exclusion issue, see “Tobacco Giant Cites Plaintiff’s Credibility; Courts: Philip Morris Says Smoker’s Criminal Record Should Have Been Considered by Jury that Awarded Him $3 Billion,” Los Angeles Times, July 29, summarized in Columbia Law School Faculty In the News, Summer 2001 (scroll to “Prof. Richard Uviller”). See also Paul Campos, “Outrageous verdicts are genteel theft”, Rocky Mountain News (Denver)/Jewish World Review, June 9).
August 13-14 – Tobacco: Boston Globe on state-settlement aftermath. Meanwhile, a report from the National Conference of State Legislatures confirms what is already well known, namely that states are spending only a small fraction of their $246-billion tobacco windfall on programs to hector smokers into quitting, propagandize youngsters against the habit, and vilify tobacco-company execs in mass-media ads. The Boston Globe‘s coverage strings together many quotes from anti-tobacco activists flaying the settlement as not tough enough, but seems unable to find anyone willing to blast the settlement from the other direction, as an extortive deal premised on bad law, nor anyone who will point out the cozy nature of the alliance between many AGs and trial lawyers with whose firms they often had personal and campaign-finance links. The story also misses the reason why tobacco companies have found it so easy to recover the settlement’s costs in higher prices, namely the settlement’s provisions cartelizing the industry and hobbling new entrants (see July 29, 1999) — but then, none of the groups quoted in the article (anti-tobacco activists, state governments, trial lawyers, tobacco companies themselves) have any interest in shining light in that particular dark corner. Incredibly, even Mississippi AG Michael Moore and his good friend trial lawyer Dickie Scruggs, who led the whole crusade, now have the nerve to criticize the outcome as “perverse”, ineffective and so on. Is Scruggs saying he was outnegotiated or that he didn’t get his clients that great a deal, and if so is he going to give back some of his estimated billion in fees? (Thomas Farragher, “Little of $246b deal fights tobacco”, Boston Globe, Aug. 9). The same paper reports on the ugly feud over what Massachusetts owes to the law firm Brown Rudnick, which represented the state in the settlement and now says $178 million in fees aren’t enough. “‘If you divide what we’re getting, which is $178 million over 25 years, and then divide that by [about 50] partners, you’ll see that it’s certainly significant. But on an annual basis, it’s not something that anybody can retire on,’ said M. Frederick Pritzker, chairman of Brown Rudnick’s litigation department.” (Thomas Farragher, “State, lawyers fight over settlement fees”, Boston Globe, Aug. 10). Daynard-cite dishonor roll: both the Globe‘s Aug. 9 entry and the L.A. Times‘s Aug. 10 (see above) quote Northeastern U.’s Richard Daynard on tobacco suits without mentioning his interest as a contingent-fee claimant to state settlement booty (the Globe‘s Aug. 10 article does mention this in passing, however).
July 31 – 1.5 million pages served on Overlawyered.com. Last month set a new visitor traffic record, and this month will set another one …. Thanks for your support!
July 31 – N.J.: 172 nabbed on fake car-crash charges. “Capping a 19-month investigation, prosecutors [July 19] announced the indictment of 172 people in New Jersey, including a medical doctor, a lawyer and two chiropractors, charging them with staging 19 automobile accidents and filing false medical claims totaling more than $5 million. …’Runners’ would recruit drivers and passengers, who would meet ahead of time, typically in West New York, N.J., to discuss details of the staged collisions, which were mostly minor,” according to first assistant Hudson County prosecutor Terrence Hull. “Participants were paid up to $2,500 and would be coached about the types of injuries to fake, Mr. Hull said.” (“False Claims From Fake Crashes Leads [sic] to Charges Against 172″, New York Times, July 20, not online). Meanwhile, a detailed Boston Globe front-page investigation finds that lawyers employing “runners” to bring in accident business are contributing to a sharp run-up in the cost of auto insurance fraud in Massachusetts; one of the state’s biggest personal injury law firms “is under investigation by federal authorities for participating in a criminal scheme that resulted in more than $50,000 worth of claims being filed from a staged accident.” (Stephen Kurkjian, “Injury claims flourish in loophole”, Boston Globe, July 16; “Study ID’s high injury claim areas”, July 19). “Massachusetts is not alone in experiencing a dramatic increase in payments for suspicious injuries from minor automobile accidents. Fed by runners who are arranging for faked accidents and phony personal injury claims, medical payments made by auto insurers jumped by more than 30 percent last year in New York, according to a study by the Insurance Information Institute, an industry research group, in March.” (more).
July 31 – Global warming suit? “States like Bangladesh that are the victims of climate change have a good case in law for suing polluters like the United States for billions of dollars, a law professor will tell a London conference today. With the US delaying action on climate change and President George Bush refusing to ratify the Kyoto protocol, the case for court action is becoming overwhelming, according to Andrew Strauss, of the school of law at Widener University, Delaware.” (Paul Brown, “Rich nations ‘could be sued’ by climate victims”, The Guardian (U.K.), July 10) (& see Aug. 19, 1999).
July 31 – “The Lost Art of Drawing the Line”. “The air in America is so thick with legal risk that you can practically cut it and put in on a scale,” says Philip Howard, attorney at Covington & Burling and author of the new book The Lost Art of Drawing the Line, which was preceded by his bestselling The Death of Common Sense. Howard is working with the founders of the Concord Coalition to establish something to be called the Common Sense Coalition. “The trial lawyers have to be taken on,” he says. “Leadership is required by whoever can get public attention.” (Lucy Morgan, “Author sees good sense as cure for what ails us”, St. Petersburg Times, July 28; official book site; Diane Rehm show, June 5; William Galston, “The Art of Judgement” (review), Washington Monthly, July/August; Cass Sunstein, “The Stifled Society” (review), The New Republic, July 9; Pete DuPont, National Center for Policy Analysis, “Drawing the Line”, May 1).
July 30 – “Couple sues over flaming Pop-Tart”. In Washington Township, N.J., Brenda Hurff and her husband are “suing the Kellogg Co. for $100,000 in damages caused to their home when an unattended Pop-Tart allegedly burst into flames inside their toaster.” A spokesman for the Battle Creek, Mich., cereal maker counters: “Pop-Tarts are safe and do not cause fires.” (Reuters/CNN, July 28; Jake Wagman, “From toaster to lawsuit”, Philadelphia Inquirer, July 28).
July 30 – Mommy, can I grow up to be an informant? Controversy mounts over large payouts ($40 million in one case, $25 million in another) under the False Claims Act to “whistle-blowers” who rat out overbilling by government contractors in health care, defense and other areas. “‘I think it’s a ridiculous ripoff of the taxpayers’ money,’ said U.S. Representative John Duncan, a Texas Republican, who has proposed a $1 million cap on rewards. ‘I don’t mind some compensation for these people, but I do not think they should be allowed to make off like bandits.'” A lawyer who represented one of the informants in the $40 million case takes a different view: ”It’s almost got to be set up like the lottery or very few people in their right mind would do this.” An informant given only $12 million for his work on an overbilling case against Quorum Health Group has gone to court to demand more, calling the figure “insulting” (Alice Dembner, “Whistle-blower windfalls questioned”, Boston Globe, July 29). Last year the U.S. Supreme Court upheld the constitutionality of the act’s informant (“relator”) provisions, but ruled that state governments cannot be named as defendants (Francis J. Serbaroli, “Supreme Court Clarifies, Broadens Antifraud Laws”, New York Law Journal, July 27, 2000, reprinted at Cadwalader, Wickersham & Taft site)(more on False Claims Act: Sept. 9, 1999; Jan. 18, 2000; April 30, 2001).
July 30 – N.J. court declares transsexuals protected class. Earlier this month an appeals court in the Garden State ruled that “gender dysphoria”, or dissatisfaction with the gender one has been assigned at birth, is protected as a handicap under the state’s disabled-rights law. In addition, it declared that by banning employers from discriminating on grounds of sex the law actually bans them from discriminating on the basis of “qualities society considers masculine or feminine”. The American Civil Liberties Union was overjoyed, but our editor, quoted by Fox News, was not. (Catherine Donaldson-Evans, “Transsexual Rights in Spotlight Following N.J. Court Ruling That Condition a Handicap”, Fox News, July 9; Mary P. Gallagher, “Transsexuals Held to be Protected Class Under New Jersey Law”, New Jersey Law Journal, July 11) (more transsexualism cases: March 23, 2001, May 31, 2000).
July 27-29 – Welcome New York Times readers. John Tierney’s column on overzealous prosecution quotes our editor and mentions this site. (“The Big City: Prosecutors Never Need to Apologize”, July 27)(reg).
July 27-29 – Report: “medical errors” studies overblown. “Alarming studies suggesting that medical errors kill close to 100,000 U.S. hospital patients each year probably overestimate the problem, with the real total perhaps 5,000 to 15,000, researchers say.” Readers of this space will not be surprised. The higher estimates have been much cited by Ralph Nader and others to promote medical malpractice litigation, but they rest on case-review studies whose format is problematic because reviewing doctors show little consensus as to which cases involve errors and which errors cause or hasten death, according to the new report in the Journal of the American Medical Association. In addition, “clinicians estimated that only 0.5 percent of patients who died would have lived three months or more in good cognitive health if care had been optimal.” (“Number of Medical-Error Deaths Overestimated, Researchers Say”, AP/ FoxNews.com, July 24; “Researchers Question Data on Fatal Medical Errors”, Reuters/ABC News, July 24; “Findings: Study Disputes Report on Fatal Medical Errors”, Washington Post, July 25; Rodney A. Hayward and Timothy P. Hofer, “Estimating Hospital Deaths Due to Medical Errors: Preventability Is in the Eye of the Reviewer,” JAMA, July 25; National Academies report on medical errors, 1999).
July 27-29 – Needed: assumption of risk. Community swimming holes are disappearing, and one reason is landowners’ fear of litigation, reports the New York Times. “In New York, landowners have become particularly wary of swimmers,” because state law pointedly omits swimming from a list of activities that they can permit to visitors without fear of liability. “Though recreation groups have lobbied to expand the law to include swimming, these efforts have been blocked by the state’s trial lawyers. ‘We have done everything we could to slip it in,’ said Neil F. Woodworth, deputy executive director of the Adirondack Mountain Club. (Winnie Hu, “Keep Out: The Water’s Fine, but Private”, New York Times, July 23 (reg)). First-time skydiver Paul Bloebaum is suing Archway Skydiving Center in Vandalia, Ill. over injuries incurred in his maiden jump; he “wants a judge to throw out the lengthy waiver he signed before he jumped and make Archway responsible for his injuries. Bloebaum wrote his initials beside all 25 paragraphs of the release.” (“Company Sued Over Skydiver’s Fall”, AP/Fox News, July 25). And Atlanta Braves outfielders, after catching third outs to end an inning, routinely throw the balls to fans in the stands, but now a woman is suing star centerfielder Andruw Jones saying she was hit in the face when he did that recently (Carroll Rogers, “Bullpen becoming a strength”, Atlanta Journal-Constitution, July 22 (third item)). However, a Michigan appeals court “has overturned a million-dollar verdict against the Detroit Tigers for injuries suffered by a child hit by a baseball bat splinter.” (Alan Fisk, “$1 Million Ballpark Injury Award Strikes Out”, National Law Journal, July 27).
July 27-29 – Chandra, Monica, and sex-harass law. Why is the furtive liaison between the ardent young woman and the powerful older man still so common in Washington, D.C.? “Politicians are immune from the sexual harassment systems that protect young women in corporate workplaces and academia, where the presumption has become that the older male will say no or face brutal consequences. These kinds of advances would cost your political science professor his job. In an office, it would be sexual harassment. In D.C., it’s still 1951, and young girls are still curvy temptresses.” (Dahlia Lithwick, “G-Girl Confidential”, Slate, July 25).
July 27-29 – Feeling queasy? Litigation over E. coli food poisoning has proliferated rapidly, so much so that there’s now a law firm whose specialty consists of filing cases over the nasty bacterium. (“E. Coli’s Twisted Tale of Science in the Courtroom and Politics in the Lab”, Los Angeles Times, June 6, reprinted at STATS).
July 26 – Welcome CourtTV.com visitors. This week the cable network’s online “Caught in the Web” feature profiles “the hub of all things legally absurd on the Net”, from its origins on our editor’s hard drive as “an out-of-control file of favorite bookmarks” to our current popularity on who knows how many continents (key to the editorial mix: “frequent food pellets” so that you regular readers “keep on pressing the lever”). Seriously, this counts as the most comprehensive profile of the site that’s appeared anywhere, for which we’re grateful to CourtTV.com correspondent Adrien Seybert (the opening Shakespeare line didn’t actually come up in our talk, though) (“Chasing the Ambulance Chasers”, July 25). Also: we’re a web pick of the week for Australia’s FHM (“It’s a Guy Thing”); Herff.com (“Neat stuff on the Internet” — see “Shark Indigestion”); Follow Me Here weblog, early July (450k).
July 26 – Dispute over $118 pizza bill costs $18,000. Nebraska: “Lancaster District Court Clerk Kelly Guenzel is now pondering whether she should go to court to force the county to pay the $18,000-plus in legal fees she racked up defending herself against a charge she misused public funds in reimbursing herself for $118.76 worth of pizza.” (“Pizza bill just grows and grows” (editorial), Lincoln Journal-Star, undated (sent to us July 20))
July 26 – Latex liability, foreseeable or not. “Bucking a national trend in design defect cases, the Wisconsin Supreme Court upheld a jury’s finding that a brand of latex gloves was defectively designed, even though no one, including the manufacturer, was aware of latex-related health problems until years after the brand was put on the market.” Rejecting the argument that the company should be liable only for foreseeable risks, the court ordered Smith & Nephew AHP Inc. to pay $1 million to Linda M. Green, who developed a latex allergy from the naturally occurring substances found in the gloves. (Gary Young, “Defective Latex Glove Costs $1 Million”, National Law Journal, July 23).
July 26 – “Criminals could sue their victims”. Dateline U.K.: “Criminals could find it easier to sue members of the public who injure them while defending their homes, under Law Commission reforms proposed yesterday. … The recommendations are open for consultation until the autumn when a final report is made to Parliament.” (Frances Gibb, The Times (London), June 29).
July 26 – Quiz: which are the made-up cases? Funny L.A. Times feature where you have to guess which outlandish news report isn’t true: “Hypersensitivity, political correctness and frivolous lawsuits are taking over the world. Increase your awareness with this handy quiz.” (Roy Rivenburg, “It’s Truly a Dangerous World Out There”, July 24) (via Kausfiles).
July 25 – By reader acclaim: “Parents file suit over son’s drug death”. “The parents of an 18-year-old University of Florida student who died after taking OxyContin last year have filed a lawsuit against the drug’s manufacturer and the pharmacy chain where one of Matthew Kaminer’s friends stole the painkiller.” Kaminer was found dead in a fraternity house bedroom after taking one of the pills, stolen by another student from an Eckerd drugstore. “The powerful painkiller was designed to combat chronic pain with a time-release formula,” but abusers chew the capsules in order to get “an immediate, heroin-like high.” The parents are blaming drugmaker Purdue Pharma as well as the Eckerd chain. (Erika Bolstad, Miami Herald, July 24) (via WSJ OpinionJournal.com “Best of the Web“).
July 25 – 220 percent rate of farmer participation. “In a 1999 major class-action settlement, the Clinton administration agreed to pay $50,000 to each black farmer who had suffered discrimination at the hands of the federal government. As of 2001, some 40,000 people have applied for their cash. The problem is, according to the Census Bureau, there are only 18,000 black farmers in the country.” (Steve Brown, “Settlement Is a Crass-Action, USDA Employees Say”, Fox News, July 14).
July 25 – “Trial lawyers derail Maryland small claims reform”. “In an unexpected setback to small claims reform, on May 17 Maryland Governor Parris Glendening vetoed HALT-supported legislation, despite its unanimous approval by both houses of the state legislature.” The legislation would have raised the jurisdiction of Maryland’s small claims court from $2,500 to $5,000, and eliminated formal pleadings in cases below $2,500, reducing the occasion for disputants to hire lawyers. “According to his message, Glendening acted in response to concerns that ‘prompted the Maryland Trial Lawyers Association to request a veto of this bill.’ … The Maryland Trial Lawyers Association organization was one of the largest institutional supporters of Glendening’s 1998 reelection campaign, donating $12,000 to him directly and spending about $110,000 on radio and television advertisements supporting him.” (Tom Gordon, HALT.org “Legal Reformer”, Spring) (more on small claims: Sept. 29, Oct. 3 and (letters) Oct. 5, 2000) (& see letter to the editor, Aug. 1).
July 25 – Yesterday’s visitors to this site came from domains including eop.gov, usdoj.gov, sec.gov, nrc.gov, treas.gov, ornl.gov; dowjones.com, trib.com, usnews.com, disney.com; boeing.com, gendyn.com, lucent.com, ibm.com, fujitsu.com, honeywell.com, att.com, philips.com, pg.com, ual.com, oracle.com, cat.com, sun.com, cisco.com, intel.com, pge.com, roche.com…
…columbia.edu, uiuc.edu, asu.edu, uncg.edu, american.edu, lu.se, uoregon.edu, ucsd.edu, stanford.edu, utoronto.ca, gatech.edu, rutgers.edu, auckland.ac.nz, wustl.edu, upenn.edu; state.mn.us, state.fl.us, state.oh.us, state.mo.us; omm.com, debevoise.com, kirkland.com, ffhsj.com, lockeliddell.com, corboydemetrio.com, atlahq.org (which has been poking around here a lot lately); army.mil, af.mil, navy.mil, nipr.mil; thehartford.com, prudential.com, statefarm.com, travelers.com, fanniemae.com, bear.com, schwab.com, jpmorgan.com, socgen.com, agedwards.com, norwest.com, tiaa-cref.org; cato.org, cir-usa.org; jcpenney.com, fedex.com, ups.com; bigpond.com, gc.ca, gov.au, and asce.org, among many, many others including countless local ISPs. Moral: your competitors read us regularly, so there’s no reason why you should feel guilty about doing so too.
July 24 – “The Louima millions”. “Last week, after the Giuliani administration and the Patrolmen’s Benevolent Association agreed to pay [Abner] Louima nearly $9 million to settle his police brutality lawsuit, Louima said he did not feel like a rich man. That’s because Louima cannot touch one dime until he settles a bitter quarrel with [his lawyers]“. The dispute pits the lesser-known attorneys who originally represented Louima against the high-profile trio of Johnnie Cochran, Barry Scheck, and Peter Neufeld (“Johnnie- come- latelies”) who took over afterward. Before getting to the juicy particulars, be sure to catch the opening quote, from an attorney named Harold J. Reynolds: “So ingrained and unexamined is the notion of the one-third contingency fee that it has taken on the character of a natural law. … if liability and recovery were certain, then there is no contingency that Louima’s lawyer is risking … [and the operation of the fee percentage] would have done nothing except guarantee to that lawyer a freight train of money that should have been paid to Abner Louima.” (Peter Noel, Village Voice, July 18-24). More on why contingency fees are so seldom discounted: Judyth Pendell (Manhattan Institute), “Price Colluder, Esq.”, Forbes, July 23, reprinted at MI site. Update: see Nov. 8-10, 2002.
July 24 – Junk fax litigation: blood in the water. We’ve covered the saga of junk fax litigation, in which federal law allows class action lawyers to demand $500-$1,500 per unsolicited fax sent, which means the sums at stake can quickly mount up to enormous levels (see Oct. 22, 1999; March 3, 2000; March 27, 2001). Now the New York Times weighs in to report a number of recent breakthroughs for the lawyers, including a recent $12 million judgment that forced Hooters of Augusta, Ga., a unit of the national restaurant chain, to declare bankruptcy; it had been an advertiser in six omnibus fax mailings sent to 1,321 customers. Some more new developments: “Last month, a South Carolina judge approved a settlement of another class-action suit in which a North Charleston Ramada Inn paid $450,000 for sending thousands of faxes advertising a New Year’s Eve celebration. Last week, a Texas judge authorized a class-action trial of claims on behalf of thousands of people who received fax advertisements from an apartment rental company.” (William Glaberson, New York Times, July 22 (reg)).
July 24 – “Melbourne man patents the wheel”. “A Melbourne man has patented the wheel. Freelance patent attorney John Keogh was issued with an Innovation Patent for a ‘circular transportation facilitation device’ within days of the new patent system being invoked in May. But he has no immediate plans to patent fire, crop rotation or other fundamental advances in civilisation. Mr Keogh said he patented the wheel to prove the innovation patent system was flawed because it did not need to be examined by the patent office, IP Australia.” (Nathan Cochrane, The Age (Melbourne), July 2).
July 23 – “2nd Circuit Upholds Sanctions Against Firms for Frivolous Securities Claims”. “The 2nd U.S. Circuit Court of Appeals has upheld sanctions against two law firms for pursuing frivolous securities claims. New York’s Schoengold & Sporn and Philadelphia’s Berger & Montague were sanctioned a total of $84,153 based on the fact that under a settlement advocated by Schoengold & Sporn, the plaintiff class in the case would have received nothing, while the firm would have been paid $200,000.” Trial judge Shira Scheindlin had reduced the sanctions against Berger & Montague after concluding that it had acted to a significant extent at the direction of the other class-action firm. (Mark Hamblett, New York Law Journal, July 16).
July 23 – Stories that got away. News items from recent months that fell through our editorial cracks at the time, but better late than never:
* Sacramento Bee investigation of the state of the environmentalist movement includes a look at the extent to which some lawyers may be using endangered-species complaints as a way of generating legal fees for themselves (Tom Knudson, “Litigation central: A flood of costly lawsuits raises questions about motive”, April 24) (series). See also Michael Grunwald, “Endangered List Faces New Peril,” Washington Post, March 12; “Protect Animals, Not Lawyers” (editorial), Detroit News, May 7; “Congress Grapples With Endangered Species Law”, AP/Fox News, May 9. And the more recent controversy over agricultural water use in Klamath Falls, Ore., reminds us of the “enclosures” by which upper-class landowners tossed tenant farmers off the land in early industrial England: Michael Kelly, “Evicted by Environmentalists”, Washington Post, July 11 (& letter to the editor in response from Brock Evans, July 13).
* The still-in-progress controversy over whether the Digital Millennium Copyright Act really allows the recording industry to keep a Princeton professor from publishing a research paper on the subject of breaking digital music encryption (Declan McCullagh, “Watermark Crackers Back Away”, Wired News, April 26; Janelle Brown, “Is the RIAA running scared?”, Salon.com, April 26; Brenda Sandburg, “Recording Industry Sued in Battle Over Research”, The Recorder, June 7). See also Carl S. Kaplan, “CyberLaw Journal: Does an Anti-Piracy Plan Quash the First Amendment?”, New York Times, April 27; Brad King, “ISPs Face Down DMCA”, Wired News, Dec. 23, 2000).
* That odd case from Everett, Wash. where a federal judge “has thrown out the kidnapping and sexual assault convictions of a man who had argued he was not responsible for those crimes because another of his 24 separate personalities had committed it.” A Snohomish County judge declared the multiple personality defense inadmissible, but “U.S. District Judge Marsha J. Pechman in Seattle ruled Friday that it was up to the trial court to clarify the question for jurors by establishing standards for assessing legal responsibility.” (“Judge Throws Out Conviction of Multi-Personality Defendant”, AP/Fox News, June 12).