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Victim Compensation Fund

April 25 roundup

by Walter Olson on April 25, 2012

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Rep. Sheila Jackson-Lee posed additional questions to me about my congressional testimony on the legislation to expand the 9/11 Victim Compensation Fund to cover Ground Zero dust litigation and “psychological injury.” I have posted my answers on line.

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

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

The hearing is now on-line (I’m at the 55:18 mark; Maxine Waters is at the 2:10:20 mark), as is my written testimony.

Things I should’ve said: that a dictator did a good job in the past hardly means that a dictatorship is a good idea, even if you can reappoint the same dictator. But one can be dumbfounded by the stupidity of some questions.

Earlier: April 1 and March 31.

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Speaking of Ground Zero dust lawsuits, I will be testifying Tuesday morning about H.R. 3543‘s proposal to reopen the September 11 Victim Compensation Fund to potentially hundreds of thousands of new claimants.

(Bumped Tuesday with SSRN link to testimony.)

“Laura Balemian, whose husband Edward J. Mardovich died in the World Trade Center, received one of the largest awards paid out by the September 11th Victim Compensation Fund: $6.7 million. But she in turn paid out what is almost certainly the highest legal fee. While the vast majority of victims were represented before the fund pro bono or for a nominal fee, Balemian paid her lawyer, Thomas J. Troiano, a one-third contingent fee, or over $2 million.” In an affidavit, 9/11 fund special master Kenneth Feinberg calls Troiano’s fee “shocking and unconscionable”, and says that fund guidelines recommend that attorney fees be kept under 5 percent of family recoveries; Troiano, however, says Mrs. Balemian knew what she was getting into and that his efforts produced outstanding results. (Anthony Lin, “Attorney’s $2 Million 9/11 Fee Called ‘Shocking, Unconscionable’”, New York Law Journal, Aug. 29; Alfonso A. Castillo, “9/11 widow battles over attorney’s fee”, Newsday, Sept. 1; MyShingle, Aug. 28).

Update: Story also covered in this American Justice Partnership publication (PDF).

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Next Thursday, Jan. 13, the Manhattan Institute’s Center for Legal Policy is giving a half-day symposium in Washington, D.C. on “The 9/11 Victim Compensation Fund: Successes, Failures, and Lessons for Tort Reform”. The event is at the Hyatt Regency on Capitol Hill and runs from 8:30 a.m. to 2 p.m. (agenda and registration). I’ll be on the second of the day’s two panels with very brief remarks responding to the primary paper(s). Among notable panelists are Yale Law’s Peter Schuck and Robert Reville, director of the Rand Institute for Civil Justice; Kenneth Feinberg, Special Master of the 9/11 Fund, will deliver the luncheon address.

Sometimes the system works

by Leah Lorber on December 30, 2003

Despite much hue and cry about the September 11 Victim Compensation Fund (see Dec. 29, 2003, almost immediately below, and Apr. 2-3, 2003, Sept. 9-10, 2002, Oct. 26-28, 2001), more than 95 percent of eligible families ultimately opted to file claims with the fund rather than going to court. (Jennifer Barrett, “A Dramatic Success,” Newsweek, Dec. 23 (via msnbc.com)).

More than 6,450 claims were received by the December 22nd midnight deadline, with about 70 of the remaining 150 eligible families having decided to pursue a lawsuit instead of filing with the fund. Other families have chosen to forego both a lawsuit and the administrative fund, saying others need the money more than they do. “None of us were dependent on” our sister, one such family member explained, “and none of us wanted to gain from her death.” (Stephanie Saul, “Foregoing the WTC Victims’ Fund,” NYNewsday, Dec. 23).


September 9-10 – Mississippi doctors win a round. “[L]egislators passed new restrictions today [Friday] on lawsuits against doctors in Mississippi, the latest spasm in a national convulsion over sharply increasing medical malpractice insurance rates.” (Adam Nossiter, “Miss. Lawmakers Set Limits on Medical Lawsuits”, Washington Post, Sept. 7). “Mississippi’s legislature is the third in less than a year to be called into special session over the issue, an ‘extraordinary trend,’ said Cheye Calvo, an insurance specialist at the National Conference of State Legislatures.” The fate of the legislation remains uncertain, however. (Patrice Sawyer, “Plenty of talk, but no action”, Jackson Clarion-Ledger, Sept. 8).

It’s far too early for doctors to jubilate, anyway: if the measure makes it to into law, the trial lawyers will predictably commence efforts to convince the Mississippi Supreme Court to strike it down as unconstitutional, as they have gotten other state courts to do with many liability reforms of the past. (e.g. Ohio: Aug. 18, 1999). Some expect the re-election bid this fall of state supreme court justice Charles McRae, to serve as a kind of referendum on whether the court’s pro-plaintiff tilt has gone too far. McRae, a past president of the Mississippi Trial Lawyers Association, is the author of some of the court’s decisions most hostile to defendants. (Bobby Harrison, “McRae a lightning rod for business groups”, Daily Journal, Jul. 23; Jimmie E. Gates, Clarion-Ledger, Jul.29, Ben Bryant, Biloxi Sun-Herald, Aug. 15). (DURABLE LINK)

September 9-10 – Hiring apple pickers = racketeering. “A federal appellate court has revived a racketeering lawsuit filed by Washington state farm workers who claim apple growers and packers intentionally hired undocumented workers to depress wages. The suit says that Zirkle Fruit Co. and Matson Fruit Co., both based in Washington state, created an employment agency to recruit illegal immigrants, mainly from Mexico, knowing that many of the workers were providing false documentation. At the same time, the suit says, the companies rejected job candidates known to be legal aliens or U.S. residents.” Which naturally leads to the question: should those who knowingly hire undocumented gardeners, nannies and house painters be deemed racketeers as well? The pending suit demands monetary damages from the apple growers and packers, and is being pressed by superrich Seattle attorney Steve Berman, well known to readers of this column (Aug. 21, 1999; Oct. 16, 1999; Jan. 19, 2000; May 11, 2001). (“Racketeering suit vs. apple growers, packers is revived”, Seattle Post-Intelligencer, Sept. 6). (DURABLE LINK)

September 9-10 – Free legal services! (except when they aren’t). The Association of Trial Lawyers of America has derived great publicity mileage by saying it will help victims of last year’s terrorist attacks obtain legal representation for free, but it and its members have also worked quietly behind the scenes to defeat legislation that would in any way curb the amounts that lawyers could keep for themselves from 9/11 awards. “Senator [Charles] Schumer [D-N.Y.] is drafting legislation that would let attorneys collect between 8 and 12% of a family’s payout from the September 11th Victim Compensation Fund, a victims’ advocate said. The Schumer plan is a compromise between Senator [Don] Nickles [R-Okla.], who did not want lawyers to take any money from the fund, and the trial lawyers themselves, who want no limit on their contingency fees.” (Timothy Starks, “Schumer Pushes Fees”, New York Sun, Aug. 5). (DURABLE LINK)

September 9-10 – Ignominious wind-down to Norplant campaign. At one time, trial lawyers must have had high hopes that their campaign against the contraceptive Norplant, which is administered in the form of under-the-skin silicone arm implants, would bring down drugmaker Wyeth the way their breast implant campaign bankrupted silicone maker Dow Corning. The litigation dragged on for years and cannot have been encouraging to firms pursuing contraceptive research, but it now appears to be winding down with a whimper, reports Texas Lawyer. In an August 14 ruling, “a federal judge in Texas granted partial summary judgment to the makers of Norplant and dismissed the claims of most of the remaining 3,000 women, leaving only 10 plaintiffs to pursue their cases.” Earlier, a large class of plaintiffs “settled out of court for a payment of $1,500 each”, a paltry sum by the standards of what must originally have been expected. “Notably,” wrote U.S. District Judge Richard Schell, “in the three years since Defendants filed this motion for partial summary judgment, Plaintiffs have not produced a shred of evidence or expert testimony that supports an association between Norplant and” such conditions as polyarthralgia, fibromyalgia and rheumatoid arthritis. (Pamela Manson, “Federal Judge Dismisses Norplant Damage Claims”, Texas Lawyer, Aug. 27)(see Aug. 11 and Aug. 27, 1999). (DURABLE LINK)

September 6-8 – “Doctors hope fines will curb frivolous lawsuits”. Lawyers are seldom made to pay any tangible price when they wrongly accuse a doctor, but South Texas doctors are hoping District Judge Ronald M. Yeager of Corpus Christi will set a precedent by granting a motion for $50,000 sanctions against local attorney Thomas J. Henry for filing false claims against Dr. Steven Smith and Dr. Robert Low. “The case Henry originally brought to court alleged that the doctors had prescribed the drug Propulsid to Henry White, a patient at Northbay who eventually died of complications from a stroke. Propulsid is an acid reflux medicine that has been taken off the market. According to court documents, neither of the doctors had issued the prescription. Henry, who declined comment on the fines, filed a notice of appeal Friday. … Low said he will never forget the embarrassment the case caused and hopes the fines will deter similar suits in the future. … ‘It takes time away from your practice and these things can be emotionally devastating to a physician,” Low said. Attorney Henry is a high-profile local advertiser: “Many in the community know him by the prominent ad on the back of the local phonebook”. (Jesse Bogan, San Antonio Express-News, Aug. 5). (DURABLE LINK)

September 6-8 – Slippery slope on terrorism compensation. Just as skeptics predicted would happen, survivors of earlier terrorist attacks and outrages are looking at the generous payments forthcoming from the taxpayer-staked 9/11 compensation fund and asking: why shouldn’t we get retroactive compensation for our losses too? And so legislators are busily introducing bills to compensate victims of the Oklahoma City bombing, the first World Trade Center bombing, Pan Am Flight 103, the sailors on the U.S.S. Cole, and others. (Michael Freedman, “Compensatory Damages”, Forbes.com, Sept. 16)(reg). (DURABLE LINK)

September 6-8 — Update: government can be sued for not warning of Yellowstone thermal-pool dangers. “A Wyoming federal judge has refused to dismiss a lawsuit brought by a Utah teenager who was severely burned when he and two others jumped into a thermal pool in Yellowstone National Park. Assistant U.S. Attorney Thomas Roberts had asked the U.S. District Court in Cheyenne to reject Lance Buchi’s complaint, which alleges the federal government failed to adequately warn of dangers posed by thermal pools in the park.” (see Jun. 26, 2001) (“Judge won’t dismiss Yellowstone burn victim’s lawsuit”, AP/Billings Gazette, Aug. 30)
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September 5 – “Disabled Entitled to Same Sight Line in Theaters”. Departing from decisions handed down by other courts, a federal judge in Albany, N.Y. “has held that a movie theater providing handicapped patrons with an unobstructed sight line to the screen has not necessarily complied with the Americans with Disabilities Act. Rather, U.S. District Judge David N. Hurd found, the law implicitly requires a qualitative element demanding an analysis into whether the lines of sight available to ambulatory and wheelchair customers are comparable.” Although Judge Hurd held that it might constitute an ADA violation for wheelchair-using patrons to be given less desirable viewing angles, he found that Hoyts Theaters had sufficiently complied with the mandate in the case at hand. (John Caher, New York Law Journal, Aug. 28). (DURABLE LINK)

September 5 – Missouri: a judge speaks out. Ralph Voss, recently retired from the Missouri bench, has launched a website that minces no words about what he sees as wrong with the local civil courts. “My story begins around 1985. By that time it was possible to see major inroads the plaintiffs’ lawyers were making in asserting control over the civil justice system. They exercised tremendous influence in the Missouri legislature, but also in the judiciary. Their influence came from their money and their money came in large part from huge and relatively easily-obtained victories in the courts of St. Louis and Kansas City. … The contingent fee has gotten so out of hand something needs to be done. I am told by one judge that 50 and 60 percent contingent fees in Kansas City are not uncommon. This same judge reports that the fee comes on top of charging the client for the expenses of depositions taken at 5-star resorts.” There’s much more, including critiques of forum-shopping, of lawyers who pocket big contingent fees on sure-thing insurance settlements, and of some fellow judges whom he names elsewhere on the site as (in his view) undeserving of re-election this November. (RalphVoss.com, “Opening Statement”, Aug. 16). (DURABLE LINK)

September 5 – A Gotham lawyer’s complaint. Outside the courthouse in Brooklyn, the New York Press‘s Johnny Dwyer transcribes the gripes of a local personal injury attorney who “only wants his first name used — Dan”. Not only are verdicts down and settlements harder to get in the formerly bounteous borough, but clients aren’t willing to accept the bad news. “Plaintiffs have a skewed view on what a case is worth. I’ve never seen a more obsessional group of people. The case becomes their whole life. And it’s the newer immigrants that are suing the most — at least in Brooklyn. …That’s become the new American dream.” (“Lawsuits: A Lawyer’s Dilemma”, New York Press, vol. 15, #36 (recent)). More: “Jane Galt” and her readers weigh in. (DURABLE LINK)

September 3-4 – By reader acclaim: “Airline sued for $5 million over lost cat”. “A couple sued Air Canada for $5 million, claiming the airline lost their tabby cat during a flight from Canada to California. … ‘It’s not about the money,’ [Andrew] Wysotski said.” (AP/CNN, Aug. 29). (DURABLE LINK)

September 3-4 –Federal authorities say judge offered illegal payoff”. Pittsburgh: “In a meeting secretly taped by federal authorities, Allegheny County Common Pleas Judge Joseph A. Jaffe told a lawyer how he could use his judicial powers to pay back $13,000 in cash that the lawyer had given him in an envelope.” Judge Jaffe, who is presiding over thousands of asbestos cases, “said the attorney could file 26 motions in settled asbestos cases, and he would order insurance companies to pay the lawyer’s firm $500 per motion in legal fees, or $13,000.” He also said that by holding a mass settlement conference he could “put pressure on defendants to favorably settle the claims. …Jaffe evidently did not know that the lawyer, Joel Persky, was cooperating with federal investigators after receiving what he considered an improper request for money from the judge.” Persky’s firm, Goldberg, Persky, Jennings & White, represents thousands of asbestos complainants. Who says plaintiff’s attorneys don’t sometimes figure as heroes in these chronicles? (Marylynne Pitz, Pittsburgh Post-Gazette, Aug. 29). Update: Mar. 25-30, 2003. (DURABLE LINK)

September 3-4 – “Crime pays for teenage lout”. Australia: In a decision that “stunned the legal community and victim’s groups”, a “teenager who broke into a nightclub was yesterday awarded nearly $50,000 damages for injuries he received in an attack by the publican. Joshua Fox was a ‘grossly stupid, totally irresponsible drunken lout’, according to a court assessment. But a [New South Wales] judge said the force used against him was excessive. Mr. Fox’s mother was awarded $18,000 for nervous shock upon seeing her son’s injuries.” (Steve Gee and Patrick O’Neil, Melbourne Herald-Sun, Aug. 30). (DURABLE LINK)

September 3-4 – 2002′s least surprising headline. [Sen. John] “Edwards has been on a fundraising frenzy over the last three months, raising nearly $2 million in ‘soft money’ — the type of donation soon to be banned, with three-quarters of it coming from trial lawyers.” (Jim VandeHei, “Trial Lawyers Fund Edwards”, Washington Post, Sept. 3). (DURABLE LINK)

September 3-4 – A breast-cancer myth. For years many have held it as an article of faith that synthetic chemicals in the environment are an important contributor to American cancer rates, the best-known example being the supposedly inexplicably high rates of breast cancer occurring on New York’s Long Island. But as a new $8 million study from National Cancer Institute researchers concludes, science has not found evidence to document the thesis. (“Federal study shows no link between pollution and breast cancer”, AP/MedLine, Aug. 6; Gina Kolata, “Looking for the Link”, New York Times, Aug. 11; “Epidemic That Wasn’t”, Aug. 29)(both reg)). See Ronald Bailey, “Cluster Bomb”, Reason Online, Aug. 14. This weekend, in a perhaps surprising development, the New York Times‘s editorialists joined the chorus (“Breast Cancer Mythology on Long Island”, Aug. 31)(reg).
Who should be embarrassed by these developments? Well, for starters, Sen. Hillary Rodham Clinton (Margaret Costello, “Elmirans to testify about cancer”, Elmira (N.Y.) Star-Gazette, June 11, 2001); Ms. magazine (Sabrina McCormick, “Breast Cancer Activism”, Summer); activist groups like the Breast Cancer Fund and the Nader-orbit New York Public Interest Research Group (Stony Brook chapter). And perhaps more than any other well-known group, the Sierra Club, which notwithstanding its sometimes warm-huggy image has published spectacularly wrongheaded and irresponsible coverage of the issue (Sharon Batt & Liza Gross, “Cancer, Inc.”, Sierra Magazine, Sept./Oct. 1999). For similar myths about “cancer alley” in Louisiana, see Nov. 8, 2000. (DURABLE LINK)


October 31 – Quote of the day. Or maybe the year: “If we sue each other, the terrorists win. We need to be united.” — Personal injury and class action lawyer Elizabeth Cabraser, regarding potential Sept. 11 lawsuits. (Quoted in Gail Diane Cox, “Voir Dire”, National Law Journal, Oct. 8, not online)

October 31 – The deportation sieve. “For starters, there is the case of Gazi Ibrahim Abu Mezer and Lafi Khalil, the two Palestinians who were arrested in July 1997 in a Brooklyn, N.Y., apartment right before they planned to blow up a subway station. Because both men were in this country illegally, the inspector general at the Justice Department issued a report relating solely to their immigration status. I won’t bore you with the whole thing, but it contains such sentences as: ‘After Mezer’s third detention in January 1997, the INS had begun formal deportation proceedings against him, but Mezer had been freed on bond, while the deportation proceedings were pending…’ Yes, ladies and gentlemen, that is how deportation works: If you are due for a hearing that may kick you out of this country, you very often are on your honor to show up for the hearing that makes it official. Shockingly, many do not. (And they sometimes just out and out lie: Mezer got out of his hearing by phoning his attorney and telling her that he was in Canada.” (Tish Durkin, “Let’s Not Bypass the Obvious in Our Quest for the Profound”, National Journal, Sept. 29). The magazine National Journal, a treasure trove of policy journalism and the home base of such columnists as Stuart Taylor, Jr. and Jonathan Rauch, is normally available to online subscribers only, but has temporarily lifted password procedures during the partial Capitol Hill shutdown to offer full web access to the public.

October 31 – Santa Claus sexist? “Shops are stocking ‘Mother Christmas’ outfits to avoid being taken to court over sex discrimination. Woolworths says it’s stocking the outfits in 800 stores to avoid problems with European gender legislation.” A spokeswoman for the European Union, however, describes as “total bunkum” the idea that selling “Father Christmas” (St. Nicholas) costumes alone might subject retailers to complaint under regulations against products reinforcing gender stereotypes. (“Shops stock Mother Christmas outfits to avoid accusations of sexism”, Ananova, Oct. 26).

October 30 – Bioterrorism preparedness. A bioterrorist incident could flood hospitals in one locality with thousands of persons in need of medical care, but an official with the American Hospital Association says that the group’s member hospitals “could be hindered in their response by federal laws, says Tom Nickels, the association’s senior vice president for federal relations. Antidumping statutes, which prohibit hospitals from transferring patients to other facilities unless the patients have been evaluated and stabilized, could undermine plans to direct patients with specific exposures to specified treatment centers. Patient-privacy regulations that will go into effect soon could complicate surveillance programs to detect an outbreak early and to notify relatives of the status of victims of an attack, he says.” (Ron Winslow, “U.S. Hospitals May Need $10 Billion to Be Prepared for Bioterror Attack,” Wall Street Journal, Oct. 29) (online subscribers only) (via NCPA Policy Digest).

October 30 – University official vs. web anonymity. “A lawyer for the authors of an anonymous Web site criticizing the University of Louisiana-Monroe is seeking to block a federal magistrate’s order to reveal his clients’ identities. … Richard Baxter, the university’s vice president for external affairs, wants the names of those behind the site Truth at ULM so he can file a defamation lawsuit. U.S. Magistrate James Kirk also ordered Homestead Technologies Inc. to provide computer logs of all people who have posted, published or provided any content to the site. The Internet site has called the university administration incompetent and accused top officials of lying.” (“Lawyer fights order to reveal identities of university critics”, AP/Freedom Forum, Oct. 24).

October 30 – “Crying wolf”. “In the approximately four and a half years since [Ontario] made record-keeping of violent crime mandatory,” writes the National Post‘s Christie Blatchford, 2,233 of 39,223 complaints of sexual assault have been shown to have been knowingly false. That amounts to more than one false accusation per day in Canada’s largest province; British Columbia reports similar rates as a share of population. The number is a “bare minimum”, since authorities have “adopted strict definitions of what comprises a false allegation.” “Unfounded complaints, where police determine there was no crime but also that the victim did not intend to mislead investigators, are not tracked at all.”

Why would someone lodge a false allegation? Reasons vary from the wish to avoid admitting to consensual sex to a craving for attention to post-breakup revenge to mental illness. Some charges begin on impulse, then spiral out of control since authorities are obliged to set an investigative process in motion. One serial “allegator” filed charges against numerous men, including a dark-skinned stranger who luckily was able to prove he was out of the country at the time; another of her targets, a veteran Ontario police officer, though eventually winning vindication, “was left in ruins, with legal bills, his long and respected career in tatters, and deserted by even life-long colleagues. … ‘There are two principles at work in the system right now,’ [his lawyer, Bill] Bain told the Post. ‘That children don’t lie, and that women are victims.’” Following pressure on the legal system by feminist and rape-crisis activists, Bain says, “police became afraid of not laying charges even in dubious cases, demurring that ‘the courts will decide,’ while Crown attorneys [prosecutors] grew ‘loathe to exercise their discretion and to live in fear of screwing up a sexual assault trial.’” And, importantly, complainants seldom face criminal penalties themselves even for knowingly filing false charges. (Christie Blatchford, “Crying wolf”, National Post, Sept. 8).

October 29 – U.S. Muslims told: don’t talk to law enforcement. Three of the Sept. 11 hijackers, Nawaf Alhazmi, Khalid Al-Midhar and Hani Hanjoor, lived in San Diego and had many contacts among persons active in a mosque in suburban La Mesa; others mingled with Muslim communities in Arizona and elsewhere in the U.S. However, if one American attorney has his way, law enforcement may not get the kind of free and spontaneous cooperation they might like from U.S. Muslims who may have information relating to the three’s activities in this country. Attorney Randall Hamud has left slips of paper for La Mesa mosque-goers which “instruct the reader, in both English and Arabic, that ‘in case of law enforcement questioning you,’ respond as follows: ‘I exercise my right to remain silent according to the 5th Amendment. I exercise my right to have my attorney, Randy Hamud, present.” (Maureen Tkacik and Rick Wartzman, “Muslim Lawyer Terms FBI Probe Discriminatory”, Wall Street Journal, Oct. 15 (online subscribers only); Ben Fox, “Three held in California as material witnesses to terror attack”, AP/Nando, Sept. 25; Kelly Thornton, “3 local men to be kept in jail indefinitely”, San Diego Union-Tribune, Sept. 26). Press coverage has depicted some other Muslim activists as discouraging their co-believers from cooperating with inquiries from the FBI and other agencies.

Persons charged with crimes in this country, of course, are entitled to have a lawyer and to not be convicted on the basis of self-incrimination, but it is a rather big jump from there to the premise that free and spontaneous cooperation by the residents of this country with police inquiries is in itself something to be discouraged. And it would seem odd to tell innocent people to invoke the Fifth Amendment privilege against self-incrimination, since they wouldn’t seem to come under that privilege — or are we missing something?

MORE: Four terror suspects apprehended under highly suspicious circumstances after the attacks have stonewalled police inquiries since then, to the deep frustration of investigators (Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma”, Washington Post, Oct. 21; John Leo, “Muslims must shoulder responsibilities as citizens”, TownHall/syndicated, Sept. 25). (DURABLE LINK)

October 29 – A belt too far. The survivors of Lori Mason-Larez, who plunged more than 100 feet to her death from a ride at Knott’s Berry Farm in Orange County, Calif., are suing the amusement park and the ride’s manufacturer, Intamin Ltd., but Sandor Kernacs, president of Intamin, said the 292-pound woman was “too large to be belted in properly around her waist”. “If the company did try to limit riders according to weight or waist size, Kernacs said, advocates for the obese would be quick to challenge the restrictions. ‘Basically we cannot discriminate against anybody,’ he said.” (Michelle Dearmond, “Manufacturer says woman was too big for Knott’s ride safety restraint”, San Diego Union-Tribune, Oct. 23) (see also Aug. 31, 1999). (DURABLE LINK)

October 29 – Australian roundup. On Australian TV this summer, viewers heard about the “dentist and bartender” theories of how lawyers behave, which will be familiar to longtime followers of this site (“Law Matters with Susanna Lobez”, ABC (Australian Broadcasting Corporation)-TV, July 30; Walter Olson, “Lawyers, Gums, and Rummies”, Reason, July 1999). And we never got around to thanking Richard Ackland of the Sydney Morning Herald for this very kind reference a while back: “You only have to read of developments abroad in this area, which are religiously tracked by the marvellous online journal overlawyered.com, to see all the interesting new twists and plays that are possible in a properly evolved legal system.” (“Lawyers now free to sue the pants off everyone”, Feb. 16).

MORE: Justice Thomas of the high court of Queensland recently wrote: “The generous application of [negligence] rules is producing a litigious society and has already spawned an aggressive legal industry. I am concerned that the common law is being developed to a stage that already inflicts too great a cost upon the community both economic and social. In a compensation-conscious community citizens look for others to blame. The incentive to recover from injury is reduced. Self-reliance becomes a scarce commodity. These are destructive social forces. Also much community energy is wasted in divisive and non-productive work. A further consequence is the raising of costs of compulsory third party, employer’s liability, public risk and professional indemnity insurance premiums. These costs are foisted upon sectors of the public and in the end upon the public at large. I would prefer that these problems be rectified by the development of a more affordable common law system, but in recent times its development has been all in one direction ­- more liability and more damages.” (Thomas, J., in Lisle v Brice & Anor, QCA 271 Queensland Court of Appeal, July 20opinion in PDF format). (DURABLE LINK)

October 26-28 – “Lawyers see trouble over victims’ fund”. After last month’s attacks, Congress rushed to enact the Victim Compensation Fund. But many trial lawyers are now advising victim families to avoid the fund and prepare for all-out litigation of the sort the legislation was supposed to forestall. Meanwhile, some expect claims to roll in from such potentially large and open-ended categories of victim as “people who say they suffered respiratory distress from the dust cloud kicked up by the collapse of the World Trade Center” and “workers in nearby buildings so emotionally debilitated that they can no longer work in a high-rise”. The Association of Trial Lawyers of America “helped shape the law” and its president Leo Boyle now says that aggregate cost to the taxpayers is not a legitimate factor to take into account in deciding how much the fund should pay claimants (”That is not a relevant consideration”); individual families may ask for tens of millions because they lost high-earning executives. (Ralph Ranalli, Boston Globe, Oct. 22). If cases proceed to litigation, many lawyers concede that it will be difficult to prove the “foreseeability” of the outrages, as needed to prove negligence (Tom McGhee, “Lawyers: Federal plan may not stem WTC suits”, Denver Post, Oct. 16). Some observers also believe it will be difficult to prove that it was negligent not to order the immediate evacuation of the second tower after the first was attacked, not only because of a lack of foreseeability of the second attack, but because authorities could reasonably believe that a mass exodus from building two would interfere with the obviously critical evacuation of building one and expose evacuees to danger from falling debris if they emerged on the street. (Phil Hirschkorn, “Lawsuits likely after WTC attacks”, CNN, Oct. 10).

October 26-28 – Abusive workplace language: banned, or federally protected? A question we’ve raised before: why is it that the National Labor Relations Board extends the formal protection of federal law to “abusive language, vulgar expletives, and racial epithets”, requiring employers to refrain from treating them as grounds for discipline, on the claim that they are “part and parcel of the vigorous exchange that often accompanies labor relations’”, while at the same time federal harassment law exposes employers to stiff financial penalties for allowing those same things? An NLRB decision last year in a case called Adtranz raises the question anew. Writing for a federal appeals court, Judge David Sentelle called the discrepancy “preposterous”. (Michael Barone, “The Evolution of Labor Law”, Oct. 11).

October 26-28 – Cartoonist’s suit over practical joke. We have never derived much pleasure or instruction from the work of the cartoonist Ted Rall, and now we also know that we never, ever, want to play a stupid practical joke on him like the one that has enmeshed a man named Danny Hellman in a long-running suit at his hands. “I don’t know if any of you have ever been on the receiving end of a lawsuit; those of you who have understand what an emotionally devastating situation it is,” writes Mr. Hellman. “We have gone through months of anxiety riding this out-of-control roller coaster; only the vengeful individual at the controls knows when it will end.” DannyHellman.com (via InstaPundit: Oct. 21, Oct. 20, Oct. 15) (see letter to the editor, Nov. 29).

October 24-25 – Suit blames drugmaker for Columbine. “Families of five Columbine High School shooting victims are suing the maker of an anti-depressant that one of the student gunmen was taking when he opened fire. A therapeutic amount of the drug Luvox was found in Eric Harris’ system after he died, the Jefferson County coroner’s office has said. Solvay Pharmaceuticals Inc. makes the drug to treat obsessive-compulsive disorder and depression.” (“Columbine victims’ families sue maker of anti-depressant”, AP/CNN, Oct. 21; Allison Sherry, “Drug firm sued over Columbine”, Denver Post, Oct. 21).

October 24-25 – Don’t try rating our judges, or else. Even by Philadelphia standards, it’s an unusually bare-knuckled tactic: three Democratic politicos, U.S. Reps. Robert Brady and Chaka Fattah and Pennsylvania State Sen. Christine Tartaglione, have sued a business-oriented advocacy group named Pennsylvania Law Watch, whom the plaintiffs claim are unlawfully trying to influence next month’s statewide judicial elections by distributing ratings of judges as pro- or anti-business. “Imagine,” writes one of our readers. “Someone other than lawyers rating judges. This must be stopped immediately!” Brady et al want a freeze on Law Watch’s assets, the right to go through its books, an injunction against its activities, and more. (Jeff Blumenthal, “Philly Politicians File Suit to Stop Pa. Law Watch From ‘Influencing Election’”, Legal Intelligencer, Oct. 22).

According to the Philadelphia Daily News, “State Sen. Vincent Fumo prompted some controversy last month when he told the Philadelphia Chamber of Commerce that anyone who helped [Republican judge/candidate Michael] Eakin by donating to Pennsylvania Law Watch ‘should expect to be arrested,’ according to a witness at the chamber meeting, who also said Fumo mentioned Richard Sprague as a member of a team of attorneys ready for action.” (Chris Brennan, “Dems sue non-profit group, calling it a PAC”, Philadelphia Daily News, Oct. 23). For more on what is considered perfectly acceptable campaigning when done on behalf of the city’s Democratic machine, see our Oct. 12 entry (millions of dollars in “street money” handed out to elect judges, including at least $500,000 not subject to any public accounting). Update: case already settled, with Law Watch agreeing with Pennsylvania Democrats that it would not “it would not attempt to influence the statewide judicial elections through advertising, ‘push polling’ or any other kind of communication with the public” (Jeff Blumenthal, “TV Ads Against Ford Elliott Barred”, Legal Intelligencer, Oct. 23 — with discussion of related case against a second group).

October 24-25 – Guarding the spires. “I feel that if a war came to threaten this, I would like to throw myself into space, over the city, and protect these buildings with my body.” — said of the Manhattan skyline by a character in Ayn Rand’s novel of New York architecture, The Fountainhead, 1943 (via David Kelley, “The Assault on Civilization”, Objectivist Center, Sept. 13).

October 23 – Guest commentary #1. Jay Nordlinger, National Review Online, on the idea of “trying” Al Qaeda: “The American love of the courts — bordering on religious worship — is pretty much comical in this instance, which is an instance of obvious and necessary war. Clarence Darrow, Atticus Finch, and Perry Mason simply have nothing to do with it, fellas. The attacks on our embassies, the attacks on the U.S.S. Cole, the attacks of 9/11? War, war, war, and to be treated as such, properly. That’s why the phrase ‘bring them to justice’ is an alarming one. No, bring them to defeat.” (“Impromptus”, Oct. 19). A contrary view: Molly Ivins, “There has to be a better way”, syndicated/Sacramento Bee, Oct. 11 (bring World Court case against bin Laden).

October 23 – Guest commentary #2. Andrew Sullivan, Sunday Times (London): “So far, this hasn’t happened in America. But the country is on a knife-edge. Americans aren’t like Brits. They have a long history of requiring almost risk-free living, which is why this is the land of the trial lawyer and the damages suit. A country that came up with a tort for the accidental spilling of hot coffee will no doubt have some difficulty acclimatizing to a world where the deliberate spilling of anthrax spores is a real and present danger.” (“Fear in the air as concern rises over biochemical attacks”, Oct. 14). Actually, we wouldn’t say it was “Americans” generally who demand that life be almost risk-free, so much as one sector of our opinion — but point taken.

October 23 – Hit after laying on RR tracks; sues railroad. “A homeless woman is suing Santa Fe Southern Railway over a 1998 accident in which a train in Santa Fe severed her feet as she was lying on the tracks at a crossing.” Dionne Fresch says the railway and its conductor and brakeman should have seen her and slowed or stopped in time; a police report found that the train was going at about 8 mph and that the engineer had honked before the crossing, as required. Railway general manager Bob Sarr called the lawsuit “disgusting” and said the “accident was not the railroad’s fault. He said Fresch was lying under a brown blanket and was indistinguishable from debris when the train hit her.” (“In brief: Woman sues over railroad accident”, Santa Fe New Mexican, Oct. 18) (& see Jun. 26-27, 2002). (DURABLE LINK)

October 22 – Lawsuit fears slow bioterror vaccines. “[T]he biotechnology industry plans to tell Congress that financial incentives and liability protection for companies would go a long way toward meeting increased demands for vaccines and medicines to treat bioterrorism agents” such as smallpox and anthrax. Many companies are eager to participate in emergency production plans, says Stephan Lawson of the Biotechnology Industry Organization, but are awaiting legislative assurances that it will not be self-defeating as a business decision to do so. “The issue of liability is particularly big since vaccine makers have a long history of being sued by patients.” (Marilyn Chase and Jill Carroll, “Trial Planned to Stretch Smallpox-Vaccine Supply”, Wall Street Journal, Oct. 15 (online subscribers only); Julie Appleby, “U.S. requesting 300M smallpox vaccines”, USA Today, Oct. 18). See also Scott Gottlieb, “Ammo for the War on Germs”, WSJ/ OpinionJournal.com, Oct. 19 (FDA obstacles); Michelle Malkin, “Who hates the drug industry now?”, syndicated/Jewish World Review, Oct. 17).

October 22 – Channeling Chomsky. Ralph Nader, the world’s most prominent litigation advocate, has long kept many of his views about foreign policy under discreet wraps but now hops from campus to campus to denounce U.S. policy ascribing our current woes to our government’s not siding with the “workers and peasants” around the globe. Matt Welch, who puts out a fine “warblog” (recent coinage: war + weblog), covered Nader’s campaign and even voted for him for president but now writes of his disillusionment: “I have discovered, in reading way too much Noam Chomsky lately, that whole phrases of Nader’s admittedly limited foreign policy utterings on the stump were cut and pasted directly from Chomsky”. (MattWelch.com, Oct. 7; Oct. 11; Sept. 20). More: Ronald Radosh, “Nader and the New ‘Peace’ Movement”, FrontPage, Oct. 18.

October 22 – Batch of reader letters. Latest batch (we still haven’t fully caught up with our backlog) deals with how employers react to workers who jubilate at terrorist acts, legal vetting of anti-Taliban strikes, disabled rights and the bar exam, a proposal for a class action over law firms’ incremental billing, and whether doctors should avoid taking on attorneys as patients.

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