Steve Chapman on the new tobacco regulation bill: “When it gets in a mood to regulate, Congress doesn’t like to trouble itself with nuisances like the First Amendment.”
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Funny how Philip Morris, the biggest tobacco company, is the bill’s “most important ally“. [CEI "Open Market"] More: Jacob Sullum, Reason “Hit and Run”, Jonathan Adler, Volokh (”the bill represents the marriage of big government and big business”).
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- Pennsylvania Department of Labor launches probe on whether reality-TV show “Jon & Kate Plus 8″ violates child labor laws [Pennsylvania Labor & Employment Blog, Hirsch/Workplace Law Prof via Ohio Employer's Law]
- Dispute over termination of Navy aircraft contract called “Jarndyce v. Jarndyce of U.S. legal system” [WSJ Law Blog]
- Medical tourism, cont’d: “It appears that ‘we’re easier to sue’ is the uniquely American defense to medicine outsourcing.” [KevinMD]
- New Oklahoma law protects farmers from neighbors’ suits complaining of nuisance from farm activity [Enid, Okla., News]
- For unusually bad advice on how to save GM and Detroit, Michael Moore as usual comes through [Popehat]
- Lawyer reprimanded for telling party she should be cut up, shipped overseas [NJLJ, ABA Journal]
- Call for reform of UK laws banning press interviews of jurors after verdict [Times Online first, second articles and commentary]
- Coming soon: campaign against depiction of smoking in Raymond Chandler books, Edward Hopper paintings [CEI "Open Market"]
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Dismissing a suit claiming that cigarettes and upholstery should have been flameproof, a Kentucky federal judge last month had this to say:
No court has found that there is a duty to make our world fool-proof or risk free. Nor is there a duty to warn of obvious consequences of foolish behavior.
In this case, we will reject the opportunity to hold that just because something could happen, failure to prevent it is unreasonable….
Nothing this court can do will change what happened. But we are obliged to ensure that the law is applied dispassionately, and in a principled way.
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- Surprising origins of federal corruption probe that tripped up Luzerne County, Pa. judges who were getting kickbacks on juvenile detention referrals: insurers had noted local pattern of high car-crash arbitration sums and sniffed collusion between judges and plaintiff’s counsel [Wilkes-Barre Times Leader, Legal Intelligencer] Court administrator pleads to theft [Times Leader] Judge Ciavarella had secret probation parole program [PAHomepage]
- We get accolades: “Overlawyered.com has a new look. Great new format, same good stuff,” writes ex-securities lawyer Christopher Fountain, whose real estate blog I’m always recommending to people even if they live nowhere near his turf of Greenwich, Ct. [For What It's Worth]
- “Fla. Jury Awards $8M to Family of Dead Smoker in Philip Morris Case” [ABA Journal; for more on the complicated background of the Engle case, which renders Florida a unique environment for tobacco litigation, start here]
- Scott Greenfield vs. Ann Bartow vs. Marc Randazza on the AutoAdmit online-bathroom-scrawl litigation, all in turn playing off a David Margolick piece in Portfolio;
- Eric Turkewitz continues his investigations of online solicitation by lawyers following the Buffalo crash of Continental Flight #3407 [NY Personal Injury Law Blog, Mon. and Tues. posts; earlier]
- One vital element of trial management: keep track of how many jurors there are [Anne Reed, Deliberations]
- Public Citizen vs. public health: Sidney Wolfe may succeed in getting the FDA to ban Darvon, and the bone marrow transplant nurse isn’t happy about that [Dr. Wes, KevinMD, more on Wolfe here]
- “Baseball Star’s [uninfected] Ex Seeks $15M for Fear of AIDS” [OnPoint News, WaPo, New York Mets star Roberto Alomar]
- Tons and tons of favorable reaction to my Forbes piece on CPSIA: commenters there, Etsy thread, sampling of blogs: Polka Dot Patch, Heartkeeper’s Common Room, Colby Lane Designs, Baby Gardner’s (aw), Tristan Benz (double aw). Others who’ve gotten into the act: Iain Murray/Open Market, Jeff Nolan, Patrick @ Popehat (SSFC). New: Superblogger Glenn Reynolds at Instapundit, John Schwenkler, Carter Wood at ShopFloor, Ramesh Ponnuru at National Review “Corner”.
- “California Lawmakers Rush to Rescue Good Samaritans in Wake of Court Ruling” [The Recorder, Calif. Civil Justice Blog, earlier]
- “America needs a tax code simple enough for the Treasury secretary to figure out” [Taranto, WSJ]
- “Federal judge might ax $2M legal fee in Seattle ‘pro bono’ case” [ABA Journal, earlier here and here]
- Indictment of Long Island attorney Felix Vinluan dismissed; charged for advising nurses it was okay to quit their jobs [Cernovich, Volokh, Greenfield, Mitchell Rubinstein]
- “Apartment owner sued for common area second hand smoke” [Womble Carlyle]
- “Tulsa World sues alt-weekly over circulation story” [Romenesko and more, Shafer, BatesLine with many links] Update: drops suit against publication, leaving suit against columnist [Romenesko]
- “No evidence of a causal link between restaurants and obesity”. Hey, that could derail some lawsuits [Pethokoukis, U.S. News, on Northwestern/Berkeley study]
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- “You’ve got to be alive to be inconvenienced”: some thoughts on the withdrawal of an emergency battlefield therapy [GruntDoc]
- Yes, let’s all have a nice scare over “third-hand” tobacco smoke, or actually let’s not [Sullum, Siegel, Greenfield] And you knew they were coming: “smokeasies” [Tuccille, Examiner]
- “We are fully cooperating with the government in its investigations” (Hey, I never said “we” included my client) [WSJ Law Blog on Madoff case]
- Speech so precious it must be rationed: Yale Law Journal author proposes “Tort Liability on Websites for Cyber-Harassment” [via TortsProf]
- Rick Hills on Richardson probe: federally criminalizing state-level pay-to-play is a bad idea [Prawfs]
- Paul Alan Levy: Martin Luther King Jr. estate, much criticized for its aggressive trademark assertions in the past, deserves due credit for its handling of a case where free speech was implicated [CL&P]
- Lawyers on Craigslist: “If you practice as well as you spell, we’re golden” [Nicole Black, Legal Antics]
- Yes, I’m overhauling Overlawyered’s look and feel with the aid of Thesis, a powerful “theme” (way of changing presentation) for WordPress. Expect my tinkering to go on for a while.
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- “The Boston Public Health Commission has just banned the sale of all tobacco products at colleges. Not high schools. Colleges.” [Saletan, Slate]
- Sometimes the case caption seems to tell a little story all by itself [Lorraine Hodges v. Mt. Zion Temple d/b/a Zero Gravity Skatepark Oakland County, Mich., 12/1/2008 08-096435 NI Chabot (Pontiac), slip-fall on snow and ice]
- Consumer complaint site Ripoff Report is magnet for lawsuits [Citizen Media Law, Eric Goldman and again]
- EEOC hearing on English-in-the-workplace issues [Clegg, NRO "Corner"]
- Wiretapper Anthony Pellicano, helpful gnome behind the scenes for many powerful Hollywood lawyers, sentenced to 15 years behind bars [CNN, Patterico]
- “Hungary’s Constitutional Court says it has annulled a law giving rights to domestic partners because it would diminish the importance of marriage”; now just watch how many folks on both sides flip their opinion of judicial activism [AP/WHEC]
- No teaser rates for you! Harvard’s Elizabeth Warren wants new law empowering federal government to order withdrawal of “too-risky” consumer credit products [Consumer Law & Policy]
- Major new study of defensive medicine, conservatively estimated to waste $1.4 billion in Massachusetts alone [KevinMD, Boston Globe; Massachusetts Medical Society]
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The Supreme Court rejected (h/t Beck/Herrmann) tobacco companies’ argument that the FTC’s use of the Cambridge Filter Method standard of measuring tar and nicotine impliedly preempted lawsuits against the tobacco companies for advertising their cigarettes using data from the Cambridge Filter Method standard of measuring tar and nicotine. The fact that the federal government disavowed preemption lends another data point in support of Professor Catherine Sharkey’s argument that the Court tends to defer to the Solicitor General’s position on preemption disputes. Justice Thomas’s dissent, which would undo the unworkable Cipollone plurality, appears to me to be the stronger argument, but it didn’t carry the Kennedy Five.
The fact pattern is the subject of numerous multi-billion dollar lawsuits against tobacco companies alleging that their sales of light cigarettes are fraudulent. The light-cigarette consumer fraud litigation still suffers from constitutional flaws relating to due process in aggregate litigation, but these remain to be resolved.
The courts have been unwilling to treat dependence on smoking as a disability requiring reasonable accommodation under the Americans with Disability Act. Some are wondering whether that will change, however, with the new expansion of protected categories under the ADA Amendments Act. (Michael Moore, Pennsylvania Labor and Employment Blog, Oct. 29; Jon Hyman, Ohio Employment Law, Oct. 30).
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- Appeals court upholds Ted Roberts “sextortion” conviction [Bashman with lots of links, San Antonio Express-News]
- Alito incredulous at FTC: you guys have failed to raise a peep about bogus tar & nicotine numbers for how long? [PoL]
- Please, Mr. Pandit, do the country a favor and don’t litigate Citigroup’s rights to the utmost in the Wachovia-Wells Fargo affair [Jenkins, WSJ]
- Docblogger Westby Fisher, hit with expensive subpoena over contents of his comments section, wonders whether it’s worth it to go on blogging [Dr. Wes, earlier]
- “Title IX and Athletics: A Primer”, critical study for Independent Women’s Forum [Kasic/Schuld, PDF; my two cents]
- Case of whale-bothering Navy sonar, often covered in this space, argued before high court [FoxNews.com]
- More on Kentucky’s efforts to seize Internet domain names of online gambling providers [WaPo, earlier]
- Exposure to pigeon droppings at Iraq ammo warehouse doesn’t seem to have affected worker’s health, but it was disgusting and she’s filed a False Claims Act lawsuit against private contractor for big bucks [St. Petersburg Times, Patricia Howard, USA Environmental; but see comment taking issue]
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Around the country, courts have thrown out suit after suit by private hospitals, health insurers and benefit funds seeking to tag tobacco companies with the cost of smokers’ illnesses. A suit on behalf of various Missouri hospitals still hasn’t flickered out and is being litigated expensively, with Richard Daynard’s Northeastern University-based Tobacco Product Liability Project doing its customary cheerleading. (Heather Ratcliffe, “Hospitals’ suit against tobacco industry is large in every dimension”, St. Louis Post-Dispatch, Sept. 15).
In a daring journalistic departure, yesterday’s New York Times “Style” section piece actually interviewed some people who use the product. (Mireya Navarro, “Take Away Their Menthols? Is That Cool?”, Aug. 3). The paper’s coverage a week ago, by contrast, hewed more strictly to the favored narrative of the “tobacco control” crowd, vilifying as corrupt black members of Congress not yet ready to jump on board in banning a product very popular with their constituents. (Stephanie Saul, “Blacks in Congress Split Over Menthol Cigarettes”, Jul. 25).
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- If you’re claiming benefits for “total and permanent” disability it’s probably best not to enter bodybuilding competitions [Boston Globe and more, firefighter Albert Arroyo] More: GruntDoc;
- From 1884 Montreal: actionable to snub a parishioner while taking collection in church? [Volokh]
- Follow the bouncing venue in lawsuits against Rick Frenkel and Cisco over Patent Troll Tracker blog [Texas Lawyer "Tex Parte" blog]
- Individual liberty was one reason Bill Gates was free to earn his billions, too bad he’s not doing more to advance it with his philanthropy [NYTimes, Bloomberg and "tobacco control"]
- Andrew Giuliani, son of the mayor, is suing Duke University for kicking him off its golf team [Newsday, Henican] More: complaint at Popehat;
- New at Point of Law: AAJ, formerly ATLA, has its convention in Philadelphia (more); bogeyman of supposedly ultraconservative Roberts Court; why must “trophy” federal courthouses have such soulless and uncomfortable design?; Congress gunning for arbitration; too bad NYT’s enthusiasm for transparent public contracting on corporate monitors doesn’t carry over to other lawyer-hiring; the Delaware advantage in court organization; as we keep asking, what happened to Ron Motley’s yacht? and much more;
- Dr. Anna Pou, New Orleans cancer surgeon whose prosecution after Katrina roused intense controversy, recounts her experience [AP via Folo]
- “Unreal world of greed”: California appeals court throws out $88 million fee-arbitration award to Milberg Weiss and other firms following challenge to “smog impact fees” [six years ago on Overlawyered]
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Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
The facade of the Old Morris tobacco shop in Victoria, British Columbia, which has operated at its location for 120 years, “has been preserved in it’s [sic] original design, including signs noting the tobacco, house blends and Havana cigars within.” New provincial legislation prohibits tobacco-promoting signage where visible to youths; “Businesses who violate the act face a $575 fine for a first offense, with penalties rising up to $5,000 for repeat offences.” At the same time:
In a letter sent to [store owner Rick] Arora, Steve Barber, senior heritage planner with the City of Victoria, called the store’s signs “an integral part of the history of this building and part of it’s heritage character,” meaning Arora cannot remove or cover the signs.
“They’ve made it clear I can’t touch them,” Arora said. “I could be fined $1 million and go to jail for two years.”
Neither government agency “is budging” on its demands. (Tom Mcmillan, “Tobacco store owner caught between policies”, Canwest/Vancouver Sun, May 27). Update: compromise struck (thanks to reader ras in comments).
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Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:
Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.
(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.
More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.
Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.
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