Joining us this week as a guestblogger is Hans Bader, Counsel for Special Projects at the Competitive Enterprise Institute in Washington. Hans is a frequent visitor to our comments section; his current projects for CEI include constitutional challenges to the 1998 tobacco Master Settlement Agreement and to the Public Company Accounting Oversight Board created by Sarbanes-Oxley. Before joining CEI he was at the Center for Individual Rights where his work included constitutional and civil rights litigation, including free speech and workplace claims.
Archive for June, 2006
Update: Devastated by cheating spouse
In the much-watched case we discussed last week (Jun. 21), the Supreme Court of Canada ruled that compensation could indeed be awarded a wife for her inability to work due to ongoing trauma from her ex-husband’s infidelity years earlier. Per the Globe and Mail:
Some legal experts said yesterday that the vague and self-contradictory nature of the ruling may encourage litigation from other estranged spouses who want to mount similar arguments based on their emotionally fragile state.
“What has opened up is a new route for people to argue that they cannot become self-sufficient,” said University of Toronto law professor Brenda Cossman.
(Kirk Makin, “Divorce ruling threatens to open floodgates”, Globe & Mail, Jun. 22).
Jack Thompson being risible faster than we can post about it
Overlawyered favorite Jack Thompson (Jun. 9, Apr. 14, ad infinitum) is perturbed that his publishing house, Tyndale House, is licensing a video game based on the Left Behind books. Thompson is especially upset that the game will offer players the option to take the role of the anti-Christ. He’s certainly entitled to break off his publishing relationship (doing so shows admirable consistency) and attempt to enlist others in a boycott, but his threat to take “legal action” on grounds of unspecified “tortious conduct” seems questionable. (via Rickey)
By popular demand: the $400,000 permanent erection
You’ve seen the AP press coverage. Charles Lennon had a pre-Viagra surgery to install a prosthesis, but had trouble keeping it in a concealed position; the legal opinion reveals he also complained about the product’s discomfort and noise. He won $400,000 after a jury trial. I don’t know whether the jury was correct. On the one hand, the description is one of a bad product failure. On the other hand, Lennon had trouble meeting federal evidentiary standards, and dismissed with prejudice the case he filed in federal court, rather than face the results of a summary judgment motion; moreover, an Oklahoma case against the manufacturer also suggests that the manufacturer didn’t do anything actionable. (Lennon also sued his doctor and his hospital; they won below.)
What nobody has mentioned is that the case turned on a lawyer’s use of Latin. The reference in the notice of appeal was to “Dacomed Corp., et al.” But Rule 3(c) requires parties to be named with specificity in such a notice. Thus, co-defendant National Union Fire Insurance was not allowed to appeal—and the appeal may very well have been dispositive in its favor, because Dacomed’s appeal—based on res judicata because they had succeeded in a previous federal lawsuit after two First Circuit appeals—was successful. The ruling is correct: better to have a straightforward rule that can be neutrally applied than a vague multi-factor balancing test that essentially permits a judge to let sympathy into play, and the insurer was on the wrong side of the rule. But when so much turns on something so seemingly trivial, judges should not be surprised that appellate briefing costs so much. Lennon v. Dacomed Corp. (R.I. Jun. 23, 2006).
A thought about law and economics
It’s one thing for a blogger to suggest that there is something inherently wrong with the arguments of “people without serious legal training [who] comment on the law.” That’s just argumentum ad verecundiam. But it’s especially ironic coming from a blogger who doesn’t reveal his credentials and hides behind a pseudonym.
That same blogger writes:
I don’t think that economics is the best field to inform issues of substantive law, unless, of course, the substantive law explicitly refers to economic decisions.
Of course, all substantive law—tort, contract, property, criminal—explicitly refers to economic decisions; anyone who thinks otherwise hasn’t had serious economic training or hasn’t thought about the law seriously, because economics is merely the study of choice and decision-making in a world of scarce resources. But perhaps Justice Holmes is also a dilettante for suggesting that incentives matter.
Others will be fascinated to learn from the blog post that “going to faculty committee meetings” is a prerequisite for economic analysis, and that Richard Posner, Dan Fischel, and Nobel Prize winner Ronald Coase are not economists because they lack Ph.D.s.
Duke lacrosse rape case in SI
The June 26 Sports Illustrated has a comprehensive look at the appalling Duke lacrosse rape prosecution. The June 29 Newsweek package isn’t too friendly either (via Newmark). Earlier: Jun. 13, May 22, May 17, May 4.
Update: $9,500 fine for Edwards campaign finance violations
The Federal Election Commission has fined an Arkansas law firm for making illegal contributions to John Edwards’ 2004 presidential campaign. Tab Turner solicited four $2,000 contributions from his co-workers at Little Rock law firm Turner & Associates in January 2003 and illegally reimbursed them for their contributions using a company credit card, according to the FEC. He also used a company credit card to make an illegal campaign contribution in his own name and to pay for various campaign expenses. Federal law prohibits donors from making contributions in others’ names and prohibits direct corporate contributions to a federal candidate. Edwards for President also agreed to pay a $9,500 fine, and called the commission’s announcement “old news,” reported the AP.
We covered the laundering story Apr. 28, 2003.
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Clarifying note by W.O. [editor], Jan. 25, 2014: This archival post has drawn reader interest in light of more recent straw-donor enforcement controversies. It is worth noting that while the Edwards campaign paid only a $9,500 civil fine for accepting the illegal contributions, the lawyer and law firm that arranged the donations paid a larger fine of $50,000, several times the size of the original contributions, in a civil (not criminal) penalty.
Department of Stupid Criminal Defense Attorney Excuses
Teacher Heather Faria defrauded her co-workers of $37,000 by falsely claiming to have cancer. Defense attorney Francis O’Boy is pleased with her sentence, stating “This isn’t a crime of violence. This was a situation where she couldn’t stand the pressure of opportunity.” Ah, it was the pressure of opportunity’s fault. (AP/Boston Globe, Jun. 15). Jay Nordlinger is suitably aghast. Previously: Jan. 11, 2005.
Irony and the Illinois Supreme Court
Two decisions came down yesterday, but it’s not clear if the Illinois Supreme Court recognized that it was engaging in self-parody.
In the Tri-G legal malpractice case, Tri-G’s case against its bank was dismissed with prejudice when its law firm failed to be ready to try the case. Tri-G accused its law firm of losing a lawsuit, and sought to recover the damages, including punitive damages, it would have won had the lawsuit been appropriately prosecuted. The Supreme Court held the law firm immune from paying those lost punitive damages, because “holding the [law] firm liable for the intentional or willful and wanton misconduct of a third party” would be inappropriate. (I commented on the different standards for legal and other malpractice at Point of Law.) Effectively, Illinois plaintiffs’ lawyers are now immune from malpractice claims for any failure to achieve punitive damages.
Meanwhile, the same day, in the case of Marshall v. Burger King, which we covered Aug. 3, the Illinois Supreme Court held that Burger King could be held liable for a case where the decedent plaintiff “was killed when a car driven by Fritz crashed through the wall of the Burger King restaurant where the decedent was eating and fatally injured him.” Justice McMorrow’s dissent notes:
According to the majority, a duty to protect a business invitee from the negligent driving of a third person exists where: the landowner’s property is not inherently dangerous or defective and the landowner’s own conduct has not created any risk of harm to the invitee through negligent design or construction; the landowner has complied with all applicable building codes and safety regulations; the landowner has experienced no previous incidents of any sort involving automobile-related accidents, whether similar or not; the parking lot is unremarkable, a sidewalk is present, and the invitee is inside a building behind a half-brick wall; and the only means of protecting the invitee from the negligent driving is to construct an impregnable barrier around the building that, even if possible to construct, may have a negative effect on the safety of business invitees in other circumstances. If there is an affirmative duty to protect a business invitee from out-of-control vehicles on these facts, then such a duty exists for every business which owns a building that abuts a road or parking lot.
The majority’s holding is exceptionally broad and has the potential to alter substantially the function and appearance of every city in the state. With its far-reaching implications, I do not believe that the adoption of the duty of protect, as described by the majority, is an appropriate undertaking for this court.
MySpace Cross-Complaint?: Alleged rapist blames site
Via Childs, Pete Solis, the 19-year-old who allegedly sexually assaulted a 13-year-old Austin, Texas, girl whose family is suing the MySpace website where the two met, is, Time Magazine reports, contemplating his own litigation against MySpace on the grounds that it made him think he was meeting a 15-year-old.
“MySpace wasn’t there when they went to Whataburger. MySpace wasn’t there when they went to the movie and MySpace wasn’t there when they climbed in the backseat,” [Solis attorney Adam] Reposa said. “Meeting on MySpace — if that alone is enough, then we can make the same claim for damages.”