The Minnesota appeals court took exception to a provision of the law providing that a car owner would be responsible for traffic infractions caught on camera unless he or should could prove someone else was driving. (Joy Powell, “Court upholds ruling against traffic cameras”, Minneapolis Star-Tribune, Sept. 23). For more on the evils of traffic-cams and contingency-fee law enforcement, see Sept. 6, 2001, Apr. 8-9 and Apr. 19-21, 2002, Mar. 10, 2004, and Mar. 31, 2005.
Archive for 2006
Calif. AG sues automakers for global warming
In a first-of-its-kind suit, California Attorney General Bill Lockyer is demanding damages from automakers for the impact of global warming. “Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy,” notes Ted at Point of Law. Even accepting Lockyer’s contentions at face value, autos sold in California contribute less than 1 percent of global greenhouse-gas emissions (David Shepherdson, “Calif. sues over auto emissions”, Detroit News, Sept. 21).
Is Lockyer making it up as he goes along with the new suit, legal-theory-wise? It would seem so. His theory that autos constitute a nuisance have never been enacted as law even by the California legislature, yet he’s asserting it retroactively to punish past behavior by Detroit and Japan worldwide. His views clash strongly with those held by elected officials in many other states, which is one reason our system gives the U.S. Congress, rather than the California attorney general, the right to set national environmental policy. His notion that internal combustion engines might not be unlawful in themselves, but constitute nuisance in this case because manufacturers could be doing more to minimize their impact, makes as much sense (which is to say, no sense whatever) as if he sued California’s own drivers on the grounds that they contribute to the problem by taking unnecessary trips.
Prof. Bainbridge has quite a bit more to say about the abuse of power involved in using this type of litigation as an end run around the political branches of government which are the proper locus of authority on policy matters of this sort (Sept. 21).
Reader Earl Wertheimer writes: “I would rather see the automakers simply agree to stop selling cars in California. Let them walk & bicycle for a while. This would promote better fitness and also reduce future obesity lawsuits.”
Reader Loren Siebert writes: “I wonder if the discovery process will include how many motor vehicles the state of CA has purchased and operates.” And Nick Fenton at DTT Buzz has suggestions for more litigation (Sept. 20).
More: Lockyer “is unlikely to win” the suit, according to legal experts interviewed, especially since “a similar case brought by California and other states against utilities companies in 2004 failed in the courts”. “Even with a small chance of success, environmental advocates say the new legal action is useful and necessary”, one reason being “to pressure carmakers”. “I hope that automakers realise this will be the first of a series of lawsuits,” says Jim Marston of Environmental Defense. (Roxanne Khamsi, “California faces uphill battle on car emissions”, New Scientist, Sept. 22). EconBrowser (Sept. 24):
…the key question in my mind is not the extent to which reducing greenhouse emissions from vehicles may be a good idea, but rather whether, under previously existing U.S. law, it has been lawful to manufacture cars that emit carbon dioxide. I submit that it has, and if a judge somewhere now creatively determines that a company can be punished for such perfectly lawful behavior, then I fear that America is no longer a nation ruled by law, but rather ruled at the whim of whatever those currently wielding power happen to think might be a good idea.
Yet more: Brian Doherty, Reason “Hit and Run”, Sept. 21.
Ayaan Hirsi Ali in America
George Will profiles the brave Muslim feminist, which would be worthy of mention even if it didn’t lead off with this anecdote:
“While her security contingent waits outside the Georgetown restaurant, Ayaan Hirsi Ali orders what the menu calls “raw steak tartare.” Amused by the redundancy, she speculates that it is intended to immunize the restaurant against lawyers, should a customer be discommoded by that entree. She has been in America only two weeks. She is a quick study.”
See also Nov. 11, 2004; AEI, Aug. 28.
Wal-Mart sued for CDs’ naughty words
Speaking of class actions without cognizable causation: Wal-Mart refuses to sell albums that contain foul language, but a Tool CD that didn’t have the Tipper-Gore “Parental Advisory” label slipped through the cracks (as did another album with a song that had the phrase “menage-a-trois” in the lyrics). This is supposedly grounds for a class action lawsuit, but it’s really just a legalized extortion attempt, since if the court certifies the class, it will cost Wal-Mart about as much to defend the case as it would to just pay the plaintiffs’ attorneys a nuisance settlement. (I presume they’ve sued The plaintiffs will be disappointed because they failed to sue beneath the Class Action Fairness Act $5 million jurisdictional requirement to keep the case in judicial hellhole Cook County; the case is thus almost certain to be removed to federal court, and the federal appellate courts for Chicago scrutinize class action settlements too closely for the hit-and-run plaintiffs’ bar’s comfort.)
Even plaintiffs’ attorney David Fish is appalled at the blatant misuse of consumer fraud laws. Professor Childs isn’t impressed, either, and Peter Lattman comments.
Pelman v. McDonald’s going forward
The infamous class action litigation seeking to blame McDonald’s for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, “N.Y. Judge Rebuffs McDonald’s Motion to Dismiss Deceptive Ad Claims”, New York Law Journal, Sep. 22). Judge Sweet’s opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald’s can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald’s if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.
Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as “pure hype” because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It’s a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Point of Law.
Pro se suits: don’t blame lawyers, right?
Every so often someone suggests that poorly conceived pro se (self-represented without a lawyer) lawsuits can’t count as a symptom of an overlawyered society, since lawyers aren’t involved in them, right? I left a comment at Evan Schaeffer’s site the other day about this question and reproduce it here:
I agree that it’s fair to point out that many dubious legal claims are advanced by unrepresented pro se litigants, and also fair to point out that most lawyers would have advised against pressing many of these claims, and thus would have played a socially beneficial role had they been called into the case by the claimant.
I don’t agree that the moral is that such cases have no logical link to public discontent with the legal profession. Our system is set up so as to encourage marginal pro se claims (like marginal claims generally) through liberal rules of civil procedure that make it easier to get into court, rules on causation and damages that make longshot theories seem worth a try, lack of loser-pays, and so forth. These ground rules were largely developed by, and are certainly jealously guarded by, the profession that administers and makes its living from them, and that profession is assuredly not the hatters, the cobblers, or the cigar makers.
More on “unfair failure to publicize” suit
The New York Times has more on that dispute in which an L.A. boutique is claiming that Us Weekly is wrongfully failing to give it publicity (see Sept. 12). (Mireya Navarro, “The End of a Beautiful Friendship?”, Sept. 21). More: Ellis Henican, “Only in America: Suing to Be a Celeb”, Newsday, Sept. 20.
Rock climbing disclaimer, cont’d
Bruce Carton of Securities Litigation Watch writes, regarding the demise of our Trackback function (Sept. 20): I sent you a Trackback when I linked to your great Nelson Rocks post (my post at Securities Litigation Watch is here, where I tried to create a humorous securities disclosure/MD&A version of the Nelson Rocks disclaimer) — I was wondering why it never showed up.”
“Aborigines given ownership of Perth by judge”
In Australia, at least, it seems this whole land claims and reparations business is getting rather serious. “The judgment will not affect homes or businesses, as the Australian courts have ruled that native title does not apply to land owned on a freehold or long-lease basis.” However, if the judgment is upheld against an expected appeal by the state of Western Australia, descendents of natives may win the right to convert public lands in the city (such as urban parks) into permanent encampments, and boaters worry that control over the right to use waterways may also be affected. (Kathy Marks, The Independent (U.K.), Sept. 21; “Native title could lock up parks: Ruddock”, AAP/The Australian, Sept. 22; Chris Merritt and Patricia Karvelas, “Title win boosts capital city claims”, The Australian, Sept. 21). Perth is a city of 1.5 million. A native claim over land in Melbourne and its environs is expected next. (Ben Packham, “Native title claim looms”, Herald-Sun, Sept. 21).
U.K.: “Hair salons offered a cut of solicitors’ fees”
In Salisbury, England, a “firm of solicitors is offering hairdressers cash to refer customers who reveal that they have marital problems. But one hairdresser has criticised the idea as unethical and refuses to help.” The law firm of Trethowans says there is nothing in violation of Law Society rules in its offer of £75 to salon stylists who steer distraught spouses its way, the fee “payable when the courts grant a decree nisi or upon the agreement of a separation deed.” The law firm’s director describes the payments as “just a different sort of advertising” and says he has heard of firms in other geographic areas doing the same thing. (The Times (U.K.), Sept. 1). Alex Wade comments (“‘Short back and sides? How’s your marriage, by the way?'”, The Times (U.K.), Sept. 15).