I’m quoted in yesterday’s Roanoke Times article. (Mike Allen, Aug. 17). We noted the case, where the lawn mower manufacturer was blamed when a day-care center operator ran over a small boy after overriding safety features, June 16.
Archive for 2006
Foie gras foolery
Chicago’s silly anti-foie gras law is taking effect next week (see Jun. 8 and links therein), but a planned commerce-clause lawsuit against the ban (via Wallace, whose post has a lot of good links on similar bad laws and proposals) is even more silly. In 1995, the Seventh Circuit Court of Appeals upheld an even sillier nanny-state ordinance against spray paint sales that was also challenged on commerce clause grounds: “Just as the Constitution does not enact Mr. Herbert Spencer’s Social Statics, so it does not enact prescriptions from the pages of The Journal of Law & Economics—where, we may assume, an article will appear in due course adding this ordinance to the long list of laws whose costs exceed their benefits.” (Full disclosure: I was a clerk for the author of that opinion at that time.)
Warrantless Wiretapping Program Struck Down
I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.
While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.
Jack Thompson, meta-Bully
Take-Two Interactive/Rockstar, a controversy magnet for its Grand Theft Auto game, has unveiled a new game called Bully, set at a boarding school. Despite the predictions of some anti-game activists that the new production would glorify bullying, a reviewer for the New York Times says it does nothing of the sort: “the entire point of the game is that bullies (noticeable at a distance by their distinctive white shirts) are everyone’s enemies”. (Seth Schiesel, “With Bully, Rockstar Looks to Beat the Grand Theft Auto Rap”, New York Times, Aug. 10). None of which stopped Overlawyered favorite Jack Thompson (Jul. 24, Jun. 25 and many others) from firing off a letter to Take Two and Wal-Mart vowing to file suit to stop the game’s Oct. 1 release unless they provide him with an advance copy to criticize. Bit-Tech has the gory details (Brett Thomas, “Jack is back to beat up on Bully”, Aug. 15). And now it’s reported that Thompson having gotten no satisfactory answer to his demand letter, he’s proceeded to sue under Florida nuisance law to demand such an advance copy (Eric Bangeman, “Jack Thompson sues over upcoming “Bully” title”, Ars Technica, Aug. 16). Update Oct. 14: judge demands to inspect the game.
More: Steve Chapman, as usual, has a relevant observation: “Like adults, who can enjoy murder mysteries without ever feeling the need to commit murder, adolescents apparently can separate the fantasies of mass entertainment from the realities of how they want to live their own lives.” (“Teens’ lives don’t always imitate art”, syndicated/Chicago Tribune, Aug. 10).
“Have You Tried Rebooting?”
A few quick thoughts about the massive Dell battery recall:
The relatively new Restatement (Third) of Torts: Product Liability proposes some modifications of the common law duty to warn after a sale (as opposed to a duty to warn — i.e., on the packaging — before a sale).
Of course, a manufacturer remains strictly liable for any damages proximately caused by a manufacturing defect before a post-sale warning or recall is announced. Under the Restatement (Third), Section 11, there is still never a “duty to recall,” unless imposed by the government.
Previously, the determination of whether there was a “duty to warn after the sale” was no different than any other test for duty: Did the benefits of a post-sale warning outweigh the costs?
Ted on the Return(?) of the Coffee Tort
(Bumping from August 16, 2:30 pm upon update.)
I’ve been invoked. Some observations about the New York case of Alice Griffin v. Starbucks:
“Untested Conspiracy Theory Seeks to Expand DUI Liability”
“If an untested and novel legal theory succeeds, the wife and brother of a binge drinker with a string of drunken driving arrests could be held civilly liable for the death of a bicyclist because they supplied the car, insurance and alcohol to the driver. …The suit seeks damages from the wife and bar owner/brother of Joseph Lynchard, 74, of Santa Rosa, Calif.” According to plaintiff’s lawyer Patrick Emery, “Lynchard’s wife transferred all his assets to her name after an earlier accident and got him auto insurance. His brother, owner of Eddie’s Bar, bought Lynchard a pickup truck and supplied him with drinks the day of the accident. All this, Emery argues, shows a conspiracy to commit an illegal act, allowing Lynchard to drive while drunk.” A judge has allowed the suit to proceed to discovery. (Pamela A. MacLean, National Law Journal, Aug. 15).
“Legislating Discovery” Pop Quiz
Which of the following was recently uttered by a Member of Congress?
“Cutting-edge research by top scientists from the United States and Israel could…”
a) discover a cure for cancer.
b) locate Noah’s Ark.
c) reduce our reliance on foreign oil.
d) prove the existence of an Intelligent Designer.
e) find a way to end world hunger.
Oh, and if you need a reason to care, is $20 million of taxpayer money annually reason enough?
My previous post on the folly of trying to “legislate discovery” here.
Via Coyote Blog.
European Court Denies Proactive Request for “Food & Water” Order
There but for “the grace…” —
A man with an incurable brain condition has lost his final legal appeal to insist that doctors give him food and drink in the final stages of his life.
Leslie Burke, from Lancaster, feels he will be denied sustenance when his illness makes him unable to speak.
The European Court of Human Rights said it did not believe there was a real threat that his food would be stopped. The European judges refused to reverse a UK ruling that allows doctors to decide a patient’s treatment.
Mr Burke, 46, has Friedreich’s ataxia. It causes a lack of co-ordination, but does not affect mental faculties.
This is certainly not the forum to reopen the Terri Schiavo affair — my posts are the subject can be found at this chain. And I have remained on the sidelines regarding the teenaged cancer victim who was almost forced to undergo debilitating and painful chemotherapy against his will.
I’ll simply note that I consider it axiomatic that food and water are, um, food and water and not “medical care” in the strict sense. And that knowingly permitting a patient under your care for Friedreich’s ataxia to die against his wishes — not of Friedreich’s ataxia, but of dehydration — is homicide.
Discuss.
(Via Medpundit.)
—
Perhaps the European courts are correct and Mr. Burke’s litigation was simply not ripe, as we say in the U.S. And perhaps a properly drafted “living will” would preempt any issues or concerns.
On the other hand, a legally recognized spouse would certainly also address those concerns. Generally speaking, when there is any uncertainty, a spouse has the final say about medical decisions when the patient cannot communicate. No living will necessary. Advisable, but not strictly necessary.
Just one of the more than 1,000 ways in which gays suffer in the name of “defending traditional marriage.”
It’s absolutely barbaric.
NJ court: No warning that one might fall out of loft bed required
Donald Mathews, a Stockton State College senior living on campus, woke up in the middle of an October 11, 1999, nap and fell out of bed, injuring himself. For this, he blamed the manufacturer of his loft bed for failing to warn that people might hurt themselves by falling out of bed. A jury agreed, and awarded $179,001.
(Because Mathews claimed that he fell out of bed because he was startled, it’s not clear how a warning would have helped, unless he was seeking an audible recording regularly repeating, much like airport moving walkways, “Caution! The bed is above the ground!” Of course, this might interfere with sleep, but wakefulness is watchfulness.)
A unanimous appellate state court reversed on the obvious grounds that the danger was open and obvious and didn’t require a warning (the same grounds on which the McDonald’s coffee case should have been thrown out), but plaintiffs’ lawyer Gary Piserchia threatens an appeal to the New Jersey Supreme Court. (Robert Schwaneberg, “Suit over loft bed falls short”, Newark Star-Ledger, Aug. 16, via Lattman).