Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2004

Brazil Hoping To Shoot Down Suspected Drug Planes

Starting in late October, Brazil intends to shoot down planes flying within its airspace that it suspects of drug trafficking. The story began to receive publicity about a week ago, and today’s New York Times has an article. Brazil’s decision stirs memories of the tragic killing of a US missionary and her child under a similar policy in Peru in 2001.

The Times article includes a couple of quotes from “Gen. Mauro Jos? Miranda Gandra, a former chief of the air force who is now director of the Air Institute at Est?cio de S? University in Rio de Janeiro.” Gen. Gandra is concerned, it seems, that the shootdown policy will not be applied to any planes with children in them:”‘This really left me perplexed, because it practically undermines the very purpose of the decree,’ General Gandra said. ‘What you’re doing is creating a safe-conduct pass for drug-smuggling aircraft carrying kids and creating the possibility that children will be kidnapped and used as human shields.'”

Yes, drugs are so evil that you have to be willing to shoot down planes with children in them to combat drug trafficking. Anything short of that is a dangerous half-measure.

Read On…

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Update: Microsoft fee-ing frenzy

“A group of national law firms that failed to recover significant damages in federal antitrust suits against Microsoft is demanding a cut of the $15.5 million in fees awarded to plaintiffs lawyers in a Florida class action suit against the software giant.” Cohen, Milstein, Hausfeld & Toll and thirty other firms that prosecuted a mostly unsuccessful federal class action say the lawyers in the Florida case used information they developed and, although they never signed an agreement to share fees, should cough up a quantum meruit. “The federal lawyers were spectacularly unsuccessful and only got one small class certified,” said Daryl Libow of Sullivan & Cromwell, who represents Microsoft. “They weren’t satisfied with the fees, so they started roaming the country to see if they could get more.” (Laurie Cunningham, “Lawyers in U.S. Microsoft Case Want Cut of Fees in Miami Suit”, Miami Daily Business Review, Jul. 23). More on Microsoft cases: Jul. 9, Mar. 31 and links from there.

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Attractive Nuisance and Drug Laws

Now I am no lawyer (we are overlawyered anyway, right?), so don’t rely upon this information, but I don’t think you can legally set up a clown mannequin on your property near the street and booby trap it in such a way that if a little kid walks up to the clown, he will, say, fall into a deep ditch. It’s called an attractive nuisance, and your argument that you should not get in trouble, that the kid was himself behaving illegally by trespassing, is likely to fall upon deaf ears.

But if we are the government, what can we do? We can make it illegal to traffic in a commodity that many people want to consume. Then, a black market will develop, and of course it will develop primarily in bad neighborhoods where schools are rotten and legal earning prospects are poor. Then, we will occasionally police the black markets, and any young men who actually are tempted to sell the verboten commodity we label as reviled “drug pushers” or maybe even “drug kingpins,” and we put them away for a long, long, time. And the penalties applied to adults will be so significant, in fact, that 12 and 13 and 14-year old kids in these poor neighborhoods will have a comparative advantage in working in the trade, so we will have to arrest them, too, even if we can’t lock them up for quite so long. And we will shake our heads at the immorality of those folks in the bad neighborhoods who allow their youngsters to become drug pushers.

And while we are at it, we can set up ongoing integrity tests for the police, too. As drug transactions are voluntary, they generally don’t involve a direct victim who has incentives to go to the cops (especially if the transaction is not creating a public nuisance). A less-than-vigilant drug enforcement officer will not have complaints piling up on his sergeant’s desk, as he might if he neglected to investigate robberies, say. Anti-drug officers will quickly learn that their own efforts aren’t going to alter much of anything, that people will still buy and sell drugs, anyway, and that the drug use in and of itself only directly harms the user. And the officers also see that they can earn a lot of money, maybe thousands of dollars a month, by turning their heads at the appropriate times. Some of them do, and some of those get caught, and we are happy to label them “corrupt cops” and “bad apples,” and ship them off to prison, too, shaking our heads at their immoral acts that have brought shame upon our nation’s finest.

Now I am no lawyer, but maybe we should think about extending this notion of attractive nuisance to some of our drug laws, too.

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More Victories in the War on Drugs

Singapore executed a man last week after he was caught with 6 pounds of marijuana. In the more enlightened US of A, he would have been unlikely to receive more than 20 years in prison.

Surely, if marijauna use would have been widespread during the Scottish enlightenment, Adam Smith would never have written about a smuggler in the terms that he actually did use in 1776: “a person, who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been, in every respect, an excellent citizen, had not the laws of his country made that a crime which nature never meant to be so.”

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Update: Mich. high court throws out Chrysler harassment award

It won’t come as much surprise to readers of our May 31, 2001 item (“Fieger’s firecrackers frequently fizzle”) that the Michigan Supreme Court has thrown out controversial attorney Geoffrey Fieger’s $20 million jury win on behalf of Linda Gilbert, a female millwright harassed by co-workers at a Chrysler assembly plant in Detroit. “The jury verdict is so excessive and so clearly the product of passion and prejudice that there can be no justification for the trial court’s denial of defendant’s motion for a new trial,” wrote Justice Robert Young Jr. in the majority opinion. Three dissenting justices on the seven-member court thought that reducing the award would be adequate remedy for the problems with the trial. (David Eggert, “Michigan Supreme Court Overturns $21 Million Verdict Against DaimlerChrysler”, AP/Law.com, Jul. 23). More: Dawson Bell, “Harassment verdict is overturned”, Detroit Free Press, Jul. 23; Ernie the Attorney.

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More on Alcohol Taxation

My initial Overlawyered guest post calling for higher excise taxes on alcohol in the US motivated a particularly thoughtful and lengthy reply from Radley Balko over at The Agitator, and his post has been followed by a fair number of comments. While I agree with many of the arguments that Radley and his commentators raise, there are a few points of contention. I will make a couple of remarks here, and then move any further discussion on my part to Vice Squad. If you are already tired of this, do not click on the ?Continue reading?? link.

Read On…

Beach blanket bankruptcies

The meter in the Enron bankruptcy just hit $700 million (Brendan I. Koerner, “Explainer: Who Pays Enron’s Legal Bills?”, Slate, Jul. 15)(see Dec. 6 and links from there). And it’s not as if the execs in the Pacific Gas & Electric bankruptcy are doing too shabbily for themselves either (David Lazarus, “Bankruptcy has its rewards for PG&E execs”, San Francisco Chronicle, Jul. 23).

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Alcohol Prohibition v. Drug Prohibition

While national alcohol prohibition in the US is widely (if not quite universally) regarded as a failure, there remains substantial support for our current tragic folly, drug prohibition. The respective prohibitions are not identical, however, and I want to point out two ways in which drug prohibition is worse than alcohol prohibition. First, during alcohol Prohibition, purchase and (for the most part) possession of alcohol were not crimes. (People often seem surprised to learn this these days, as if the drug war has made a firm link in their minds between prohibition and the criminalization of possession and purchase.) In other words, what we refer to as a “decriminalization” regime with respect to drugs today is pretty much what we had with alcohol prohibition: drug prohibition is much more severe than alcohol Prohibition.

The second major difference is that alcohol prohibition was restricted to a handful of countries, whereas drug prohibition is global. As a result of the limited geographical scope, there was plenty of legally produced alcohol during Prohibition, such as that made in Canada (and then illegally smuggled into the US) by Seagrams. But more importantly, the fact that other countries had legal alcohol — and were often just as successful in reducing consumption and alcohol-related problems as the US — provided ongoing evidence of the extent to which Prohibition was a policy blunder. With global drug prohibition, we are very limited in the types of policy experiments that can be run; even in the Netherlands, marijuana is technically just as illegal as it is in the US. This helps to explain the odd “self-justifying” nature of drug prohibition. Bad outcomes under drug prohibition should tend to discredit prohibition as a policy. This is what would likely occur if there were a visible alternative policy with outcomes that were better. Instead, bad outcomes under drug prohibition are met with the logic that if there were fewer drugs, there would be fewer bad outcomes. So to reduce bad outcomes under prohibition, we need… a stronger, more committed prohibition!

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Anonymous accusers (of the expert kind)

From the Chicago Sun-Times:

When a doctor is sued for malpractice in Illinois, another physician must sign a statement certifying the lawsuit has merit.

Moreover, the physician alleging malpractice must be an expert in the field. The idea is to prevent frivolous lawsuits.

But there’s a catch. The name of this expert physician is kept secret. …

When the expert’s name isn’t revealed, there’s no way for the defense to question his or her qualifications, said Robert Kane of the Illinois State Medical Society.

The plaintiff’s bar in Illinois is strenuously defending the right of their certifying experts to remain anonymous, saying they might face retaliation if they revealed their identities. However, it seems the current policy also has the convenient effect of insulating the lawyers themselves to some degree from accountability for misconduct:

Dr. William Sullivan, an emergency room physician at Advocate South Suburban Hospital, believes a certifying physician should not be able to hide behind anonymity. Sullivan once was sued at another hospital, along with about 10 other doctors, by the family of a woman who died from car accident injuries.

Sullivan said he was named as a defendant, even though his only involvement in the case was to insert an IV line. When the case against him was dropped, Sullivan, who is also an attorney, turned around and sued the woman’s law firm for “malicious prosecution.”

Sullivan also sued “physician John Doe,” the doctor who certified Sullivan had committed malpractice. Sullivan said he needed to interrogate Dr. Doe in order to prove the case against him had been frivolous. But Sullivan never was able to learn Dr. Doe’s identity, so he had to drop his case.

(Jim Ritter, “Doctors seek to lift veil on malpractice cases”, Chicago Sun-Times, Jul. 5 (link no longer online except as $ archives))(& letter to the editor, Jul. 26).

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