Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2006

Today’s Courageous Feminists

Cinnamon Stillwell observes International Women’s Day by observing that:

the real radical women in the world go largely unremarked by the feminist movement. Today’s true heroines are those who do battle with the gender apartheid, violence and oppression practiced against women in the Muslim world. There, women face not just phantom infringements to their civil rights and perceived slights to their sensitivities, but threats to their lives.

Read the whole article for an inspiring litany of women putting lives on the line by speaking out against Islamist oppression.

Whoopie Cushion Chair Prompts Lawsuit

Today’s Times of London reports an employment law claim by a teacher who chair made flatulent noises whenever she moved. The teacher, who resigned her position, is claiming constructive dismissal, and asking for one million Pounds in compensation.

Asked why she did not sort out the problem, she told the tribunal: “It’s a health and safety issue for an employer to ensure you have a comfortable chair.”

A chair that forces a person into bad posture might well be a health and safety issue, but a chair that merely causes embarassment is plainly not a health and safety issue — although the chair should still be replaced.

Lawsuit over Denial of Federal Financial Aid to College Students with Drug Convictions

Students for Sensible Drug Policy and the American Civil Liberties Union have filed a lawsuit alleging that the federal law which denies federal financial aid to any student with a drug law conviction is unconstitutional. Personally, I think the federal law is atrocious, and would vote to repeal it. But I think the prospects for victory in court are very slim. The SSDP press release points out several good policy arguments, but raises only two legal points:

The law punishes individuals twice for the same infraction. Affected students have already been dealt with by the criminal justice system. Taking away their access to education after they’ve already paid their debt to society is unnecessary. This violates the “double jeopardy” clause of the Fifth Amendment.

Commenters are welcome to correct me if I’m wrong, but I don’t think that the Fifth Amendment has ever been interpretted to prohibit governments from choosing to make persons with criminal convictions ineligible for welfare programs, including student aid for higher education.
Second, SSDP argues:

Putting up roadblocks on the path to education does nothing to solve our nation’s drug and crime problems; it only makes them worse. Forcing students convicted of drug charges to drop out of school makes them more likely to fall into drug abuse or commit crimes (thus becoming costly burdens on the criminal justice system) and less likely to become productive taxpaying citizens (thus reducing the nation’s economic productivity). Congress has no rational basis to attach student aid eligibility to drug convictions, especially since murderers, rapists, burglars, and arsonists can still receive financial aid. This violates the equal protection guarantee of the Fifth Amendment’s “due process” clause.

The first half of the paragraph is really a policy argument. The second half — that it is irrational to deny aid to a person with a misdemeanor marijuana conviction, while giving aid to a person with a felony rape or arson conviction — seems more plausible. In an article in the Journal of Contemporary Law, I have argued for taking the rational basis test seriously. But whether courts will do is uncertain.

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Health Insurance Doesn’t Matter. Medicaid Should be Scrapped:

John Goodman, of the National Center for Policy Analysis, comments on a new study published in the New England Journal of Medicine: “Who is at Greatest Risk for Receiving Poor-quality Health Care?” Contrary to many previous studies, the NEJM study found that, in Goodman’s words:

– Among people who seek care (actually see a doctor), there is virtually no difference in the quality of care received by the insured and uninsured.

– There is also very little difference in the care provided by different types of insurance – Medicaid, managed care, fee-for-service and so forth.

The study is consistent with Dallas-area data reported by Goodman in his book Lives at Risk. Goodman summarizes the implications of the NEJM study:

The entire Medicaid program (at a cost of $1,000 per person for every man, woman and child in the country and a huge crowd out of private insurance) is predicated on the conventional wisdom that being insured matters. Now we know that what really matters is seeing a doctor. Two deterrents are rationing by waiting and physician fees. Both hurdles could be overcome with funded health savings accounts.

Another conventional wisdom is that the uninsured need sky-is-the-limit coverage just like the United Auto Workers. But since the low-income uninsured have few assets to protect, why do people with modest means need such expensive coverage? They don’t. A scaled down plan could give them ample choice of doctors and allow entry into the system for much lower premiums.

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Alexandra Shaw and the Princeton bell tower

Police detected a “strong smell of alcohol” on 21-year-old Alexandra Shaw’s breath when they rescued her after she took a 40-foot fall through a grate in a Princeton University bell tower that was closed for renovations. But no blood test was done, Shaw claimed to have had only one beer, and the two contractors she sued settled the suit for $350,000 rather than risk a greater liability finding from a jury.

“The young lady fell and she was rather seriously injured,” [defense attorney Michael] O’Mara said. But the area where the accident occurred was not open to the public and “a person of common sense would not have entered. It looked like the bowels of the earth.”

Neither his client nor the co-defendant were responsible for the condition of the grate Shaw stepped through, O’Mara said. But there was a possibility that the jury might find liability so a compromise was reached.

(Linda Stein, “$350,000 settles tower plunge suit”, The Trenton Times, Mar. 22 (h/t P.E.); Bill Beaver, “Undergraduate falls climbing in chapel turret, injures leg”, Daily Princetonian, Dec. 14, 2001).

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Journal on Fireams & Public Policy now accepting submissions

I am the Editor of an iinterdisciplinary academic journal, the Journal on Firearms and Public Policy. The Journal is now accepting submissions for its next volume, our 18th year of publication. Some sample issues, in PDF, are here. (We hope eventually to put all volumes on-line.) Because we are interdiscplinary, articles may be written in a variety of academic and citation styles, including law, history, social science, philosophy, and so forth. The JFPP’s circulation is vastly larger than most academic journals. If you would like to submit an article, or send a query about possible submission, please write me at the e-mail link on the lower-left column of my website.

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Update: Chrysler asks for Fabila lawyer to be disbarred

(Earlier coverage: Jul. 10, 2003 and links therein.) Two of the three lawyers behind a fraud where plaintiffs’ lawyers falsified evidence and tried to bribe police officers to hide the fact that their client fell asleep at the wheel are still practicing law. The attorneys still haven’t paid the sanction against them. In a radio interview for DaimlerChrysler, Steve Hantler calls for more Texas legislature oversight over the bar. (David Shepardson, “Chrysler takes fight to lawyers”, Detroit News, Mar. 21).

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Stand Up to Islamism

Twelve leading writers from the Muslim world signed the Manifesto of 12: Together Facing a New Totalitarianism:

After having overcome fascism, Nazism, and Stalinism, the world now faces a new global totalitarian threat: Islamism.

We — writers, journalists and public intellectuals — call for resistance to religious totalitarianism.

Instead, we call for the promotion of freedom, equal opportunity and secular values worldwide.

The necessity of these universal values has been revealed by events since the publication of the Muhammad drawings in European newspapers. This struggle will not be won by arms, but in the arena of ideas. What we are witnessing is not a clash of civilizations, nor an antagonism of West versus East, but a global struggle between democrats and theocrats.

Like all totalitarianisms, Islamism is nurtured by fears and frustrations. The preachers of hate bet on these feelings in order to form battalions destined to impose a world of inequality. But we clearly and firmly state: nothing, not even despair, justifies the choice of obscurantism, totalitarianism and hatred.

Islamism is a reactionary ideology which kills equality, freedom and secularism wherever it is present. Its success can only lead to a world of greater power imbalances: man’s domination of woman, the Islamists’ domination of all others.

To counter this, we must assure universal rights to oppressed people. For that reason, we reject “cultural relativism,” which consists of accepting that Muslim men and women should be deprived of their right to equality and freedom in the name of their cultural traditions.

We refuse to renounce our critical spirit out of fear of being accused of “Islamophobia,” an unfortunate concept that confuses criticism of Islamic practices with the stigmatization of Muslims themselves.

We plead for the universality of free expression, so that a critical spirit may be exercised on every continent, against every abuse and dogma.

We appeal to democrats and free spirits of all countries that our century should be one of enlightenment, not of obscurantism.

Now, the 12 signers are the subjects of a death threat. One of the 12, Irshad Manji, is asking people to come to her website and add their own names to the Manifesto. I just did, and I urge you to do the same.

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Should Health Care Workers be Able to Refuse Treatment to Gun Owners?

That”s the polling question of the day in Canada, on morning television. The story involves an elderly woman in Nova Scotia who suffers from multiple sclerosis and cannot walk. She was receiving health assistance from employees of Northwood Home Care. One morning, the Northwood sent an employee who had never been to the home before. In the home, the worker saw an unloaded hunting rifle, with the safety on, and a trigger lock.

The worker immediately fled the home in fear, because the locked, unloaded rifle was not in a gun cabinet. The elderly woman’s husband is a hunter, whose gun is lawfully registered, but he had forgotten to return the locked, unloaded gun to his gun cabinet.

Northwood Home Care refuses to send employees back to the home. According to a Canadian Press Association report, “The agency said its workers fear for their safety because of the hunting rifles.” (“Rifle kills home care,” Halifax Chronicle Herald, March 21, 2006.)

The health care workers themselves would seem to be in need of mental health treatment. The Northwoods workers plainly suffer from a serious case of hoplophobia. (From the Greek word “hoplo”, meaning “weapon.”)

Just as many normal people dislike spiders, many other normal people dislike guns. A few mentally ill people have such debilitaing fear of spiders (aracnophobia) that their fear impedes their functioning in their daily lives. Similarly, hoplophobes suffer from such extreme and irrational fears of guns that their daily functioning is impaired. A health care worker who refuses to provide health care would obviously be suffering from impairment of her normal daily functioning.

I hope that the publicity surrounding the incident persuades Northwood Home Care (Halifax, N.S.) to resume providing health care to the elderly woman, and also encourages Northwood to seek mental health treatment for the hoplophobics among its employees.

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Stand Your Ground

Back in 1987, Florida set off a national trend by enacting a law which allows adults with a clean record, who pass a safety class, to obtain a permit to carry a concealed handgun for lawful defense. Although some states already allowed concealed carry, Florida’s 1987 law led to the concept spreading nationally, so that today 38 states have handgun carry laws similar to Florida’s. Now, a new Florida trend is spreading: “Stand your ground” laws.


Last year, Florida enacted a statute stating that victims of a violent felony attack do not have to retreat from the aggressor (even in a public place), and can use deadly force. Now, Indiana Governor Mitch Daniels has signed a Stand Your Ground law in his state, and the South Dakota legislature has enacted a similar law.

Because most Americans intuitively agree with the principle of self-defense, opponents of the law, such as the Brady Center, have resorted to making silly claims, such as asserting that the laws allow “a person who just feels something bad is going to happen to open fire in public.” A careful look at the Florida model, which I blogged about last year, leads to the conclusion that the Brady Center’s claims are unmerited.

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