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 20 — opinion 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.