“A discrimination lawsuit filed by a Muslim Dunkin’ Donuts franchisee who was not allowed to renew his contract with the chain because of a refusal to sell pork products can proceed, a U.S. appeals court ruled Tuesday.” For many years the donut chain had permitted Walid Elkhatib to refrain from including bacon, sausage or pork in breakfast sandwich offerings, because of religious scruples, but in 2002 it insisted that he carry the line with meat included, and he sued on religious-discrimination grounds. According to the coverage, Circuit judge Ilana Diamond Rovner apparently found it significant that the donut chain had allowed some franchisees in the area not to carry the breakfast sandwiches, for reasons that included, e.g., limited space. It sounds, though, as if the deal that Elkhatib wished to carry forward was somewhat different: he wanted to go ahead and keep selling the sandwiches without putting meat in them, which would presumably have implications for what franchising strategists call the consistency of the customer experience. (“Muslim Dunkin’ Donuts Owner Can Sue Over Pork, Appeals Court Says”, Reuters/FoxNews.com, Jul. 10; Samuel Estreicher and Michael J. Gray, “Religion and the U.S. Workplace”, Human Rights Magazine (ABA), Summer 2006)(& welcome Michelle Malkin readers).
Archive for July, 2007
Pearson’s pants appeal
Bulldozer’s progress
They didn’t tell me guest-blogging at Overlawyered would be an autopilot proposition, but thanks to James Taranto, it is — complete with a law professor to do the work for me:
The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.
“Caterpillar sold this product knowing — or it should have known — it would cause exactly this harm,” one of the family’s lawyers, Duke University law professor Erwin Chemerinsky told the three judges from the 9th U.S. Circuit Court of Appeals on Monday.
Yes, a law professor is making this argument. Okay, a law professor who blogs at Huffington Post, but still? No, he’s not a new face; but he certainly remains a brazen one. For in our bizarro world, right is a very special kind of wrong — the promotion of violence (by the likes of Rachel Corrie) is peace;the sale of construction equipment (by Caterpillar) is murder; and fallacious legal argumentation is the product of one of the “the top 20 legal thinkers in America.”
This could be one even the Ninth gets right. Meanwhile,
Corrie’s parents said after the hearing that they have been carrying on their daughter’s work since she died.
“You can’t go back to the way things were before, so you determine a path forward,” Cindy Corrie said.
I thought that’s exactly what they were suing over!
Class actions from scratch
The important issues challenging our society remain at the forefront of the class action bar:
Microsoft has been targeted by a $5m (£2.5m) lawsuit over its Xbox 360 console and the infamous yet almost forgotten scratched disc saga. There have for a long time been many rumours about the Xbox 360 scratching game and movie discs.
Count on lawyers never to forget. What’s this about?
A growing number of Xbox 360 customers are reporting having problems with their disc’s getting scratched by the DVD drive when switching the unit’s position from vertical to horizontal and vise versa.. Initially we thought this was the usual fanboy vs. hater propaganda that swirls around the launch of any new console like this. It didn’t take long until the seriousness of the situation…
… which is explained at some length. Not everyone is sympathetic to the victims in this dog-eat-dog world. But most of the discussion of this burning issues seems to go back, indeed a couple of years.
On the other hand, there’s always the Old World, ever eager to distract from its own coming demographic obsolescence by beating up on that most American of companies, Microsoft. Yes, less than a month ago word got out that the EU lean was on Microsoft to address the problem — which Microsoft seems grudgingly to admit to.
One month: That’s about long enough to read the story, do some research, find a lead plaintiff, and file the lawsuit. So foes of the class action can thank the European Union for this one. Considering the “popularity” of Microsoft on either side of the pond (right up there with plaintifs’ lawyers), not much sympathy is to be expected. But this is an interesting exercise in how the once-forgotten can, in the new global economy, still be resurrected, as long as the statute hasn’t run.
Litigation and the D.C. schools
In a hard-hitting series last month, the Washington Post investigated the enduring calamity that is the Washington, D.C. public school system, which persistently ranks at or near the bottom among the nation’s leading cities. (Dan Keating and V. Dion Haynes, “Can D.C. Schools be Fixed?”, Jun. 10; April Witt, “Worn Down by Waves of Change”, Jun. 11)(via Frum). Along with familiar problems of cronyism, mismanagement and undislodgeable incompetents, there is another persistent theme: “Reformers’ lawsuits have backfired, time and again.” For instance:
The activist group Parents United for the D.C. Public Schools tried to force city officials to help the schools in 1992 by suing over fire code violations in dilapidated buildings. Members thought they were helping [Superintendent Franklin L.] Smith by forcing Mayor Marion Barry, the D.C. Council and Congress to pay to rebuild the schools.
Instead, D.C. Superior Court Judge Kaye K. Christian closed schools with fire code violations. The suit dragged on for years. It contributed to the 1996 ouster of Smith, a favorite of Parents United activists. …
“In our wildest imaginings, we never thought this would happen,” Delabian Rice-Thurston, then executive director of Parents United, told The Washington Post the day Smith was fired. “The whole thing — the lawsuit, the court dates — it all backfired. Be careful what you wish for; you might get it.”
And then this, on special ed:
[Former superintendent Arlene] Ackerman balked when she discovered that the school system was paying millions of dollars annually to lawyers representing special education students who had successfully sued for better services. A lawyer sending a short form letter setting up a meeting might bill the schools $450, she said. Ackerman persuaded Congress to cap the amount lawyers could bill the schools at $80 an hour, she said.
Instead of winning plaudits for saving money, “you would have thought that I was responsible for World War III,” Ackerman said. “I started getting pressure — ‘we don’t need to get a cap,’ ‘this is not fair’ — and I mean from all parts of the community. Somebody said to me these were trial lawyers who support certain politicians.”
Ackerman was summoned to meet with [Anthony] Williams, by then the mayor, about raising the cap. She resigned before the meeting took place, and her initiative was soon rolled back, she said. Williams, in a recent interview, conceded that he “might have caved in” to political pressure even though he fundamentally believed Ackerman had been right to limit money spent on lawyer fees that could have gone to classrooms.
Overall, the Post reports, special-ed lawsuits
wound up forcing the system to spend about $120 million a year to pay private tuition for 2,400 students out of a system of 55,000, plus $75 million for special education transportation. That left less money to fix the system’s own inadequate special education programs that sparked the lawsuits in the first place.
32 years later
The Rhode Island attorney general’s office has charged a man with rape based on a memory “repressed” by the complainant “until recently”. Harold Allen of Narragansett, 48, at the time of the alleged incident was sixteen years old, as was the complainant. Allen has pleaded not guilty, and through his attorney says he never had relations with the woman, though he was acquainted with her. There is no statute of limitations on the charge of first-degree sexual assault. (“Man charged with rape 32 years later”, AP/EyewitnessNews, Jun. 14; Volokh, Jul. 3).
Free market magic
You can make these things up — economists do it all the time — but it’s a lot more compelling when they really happen (link added):
An influx of doctors lured to Texas by new limits on malpractice lawsuits has overwhelmed the state board that screens candidates for medical licenses, creating a backlog that forces many applicants to wait months before they can start seeing patients.
Officials said many of the relocating physicians are filling shortages in areas such as Beaumont, where trauma patients previously had to be flown other cities because there weren’t enough surgeons to treat them.
(Italicized part added:)This sounds like great news — more doctors coming back into the system. But who knows? Chances are the plaintiffs’ bar can find a way to spin this as an ominous development — the return of the malpracticers. Now it’s entirely possible that this represents an influx of marginally competent doctors who can’t afford to practice elsewhere because their malpractice premiums are justifiably sky-high. As it is, the article in the Houston Chronicle quoted above says that a simple background check takes 41 days — hence the huge bottleneck — and that more complex histories such as those of veteran or out-of-state doctors will take correspondingly more time. So it doesn’t seem as if the Texas regulatory authorities are lowering the bar too too low.
Indeed, any supply-and-demand interplay where the market is allowed to be distorted by an industry like the insurance business, whose operations seem to defy normal ways of doing business and which is itself hopelessly regulated, is going to be hard to predict.
But in fact, one thing that happened shortly after Texas’s Proposition 12 was passed is that malpractice insurance rates started dropping almost immediately. That’s consistent with reduced financial exposure, but certainly not with an influx of incompetent physicians coming to the “market” (i.e., seeking medical malpractice insurance). The pushmepullyou of the interplay between these things is the sort of thing that makes insurance underwriters such exciting company at a weenie roast, so I won’t even try to have at it.
Again, in any event, this is a stunning example of the invisible hand at work. But surely there is a down side, and not only to med-mal plaintiffs’ lawyers? Of course: Med-mal plaintiffs themselves, who no longer can play in the Texas state court injury lottery. That doesn’t mean other personal injury plaintiffs can’t, unfortunately. But one step at a time.
God forbid anyone reading this or their loved one should be in a position to be seeking damages, economic or otherwise, for medical malpractice. But short of the argument that, well, higher non-economic damages should be available just because they should — or proof, in ten years, that there’s more malpractice in Texas than there was before because of the influx of quack doctors attracted to the free bread crumbs of “easy” med-mal limits — this quacks like a policy that works.
The civil right to be cruel
But first, a greeting, and a thank you to the Overlawyered boys for inviting me to guest-blog this week. I’m Ron Coleman, proprietor of the LIKELIHOOD OF CONFUSION® blog on trademark, copyright and free speech law, and a contributor to Dean’s World and other things. In short, I love practicing law so much that I spend most of the day blogging.
So much for self-promotion (if you can call it that) — now to the promotion of animal cruelty — it’s all the rage, after all:
A new state law against fighting roosters violates a treaty that ended the Mexican-American War, a cockfighting association claims in a lawsuit.
The New Mexico Gamefowl Breeders Association and six businessmen argued that the law infringes on rights protected under the 1848 Treaty of Guadalupe Hidalgo, which made New Mexico a U.S. territory.
The lawsuit contends the treaty guarantees civil, political and religious rights, privileges and immunities to the people of New Mexico.
Many of the association’s 2,000 members “are devoted to rural lifestyles, of which gamefowl breeding and-or participating in gamefowl shows and fights are, in New Mexico, long-standing, culturally bound and significant activities,” the lawsuit said.
Wow, some treaty! It guarantees the right to — well, to do what, exactly? Let’s ask the Humane Society:
Cockfighting is a centuries-old blood sport in which two or more specially bred birds, known as gamecocks, are placed in an enclosure to fight, for the primary purposes of gambling and entertainment. A cockfight usually results in the death of one of the birds; sometimes it ends in the death of both. A typical cockfight can last anywhere from several minutes to more than half an hour.
The birds, even those who do not die, suffer in cockfights. The birds cannot escape from the fight, regardless of how exhausted or injured they become. Common injuries include punctured lungs, broken bones, and pierced eyes. Such severe injuries occur because the birds’ legs are usually fitted with razor-sharp steel blades or with gaffs, which resemble three-inch-long, curved ice picks. These artificial spurs are designed to puncture and mutilate.
Nice. And, best of all, tanto auténtico! What judge could resist such a rootsy appeal to heartless blood lust? Plus there’s dinero at stake, too.
Okay, so what’s the legal theory again? Oh, yeah, that’s right: This novel civil right — the right to engage in any “long-standing, culturally bound and significant activities” — is enshrined in the Treaty of Guadalupe Hidalgo. Well, here’s the Treaty: You see the clause guaranteeing the inalienable right to “long-standing, culturally bound and significant activities”?
No? Okay, well how about just the piece about roosters? Any specifications for ice picks?
Me neither. The only thing I remember about the unlikely juxtaposition of ice picks and Mexico is a certain unpleasantness involving some murderous Bolsheviks. Now, we saw then that “breaking a few eggs” can be unpleasant, but these poor chickens deserve better. Plaintiffs in this lawsuit, however, don’t.
UPDATE: Wow. There’s more to this civil right than I thought!
July 9 roundup
- Judge Ramos disallows settlement of Citigroup directors derivative suit: deal had met defendants’ needs, plaintiff’s lawyers’ too, but not shareholders’ [PDF of decision courtesy NY Lawyer]
- Drove a golf cart into the path of his car as it was being repossessed, jury decides he deserves $56,837 [MC Record]
- Per ACOG, 92 percent of NY ob/gyns say they’ve been sued at least once [NY Post edit; more]
- New British online-gambling law could trip up some virtual-world/massively multiplayer online games [GamesIndustry.biz]
- Good news for bloggers: Iowa-based site can’t be sued in New York just because it answered questions from NY reader and accepted NY donations [Best Van Lines v. Walker, Second Circuit; McLaughlin]
- Another great idea from Public Citizen: let’s not use new drugs till they’ve been on the market for seven years [Pharmalot via KevinMD]
- After conviction of Mississippi trial lawyer Paul Minor in judicial corruption scandal, squabbling drags on over sentencing [Jackson Clarion-Ledger]
- Conservative public interest law firms “can win some big cases [but] are notorious for lacking follow-through” [Tushnet, L.A. Times]
- Contestants in Australian business dispute probably wound up spending more on the litigation than had been at stake in the first place [Sydney Morning Herald]
- New at Point of Law: New Hampshire governor vetoes trial lawyers’ bill; global warming litigation to be bigger than tobacco?; the Times notices HIPAA;
- It’s my emotional-support dog, and my lawyer says you have to let it into your store [eight years ago on Overlawyered, before these stories started getting common]
July 8 roundup
- RIP, Ladies Nights in Denver [Denver Westword; earlier Feb. 12; earlier i in California: Jun. 7, Aug. 19, Aug. 2003; and New Jersey, Jun. 2004]
- “A cop sues McDonalds because of the slimy stuff a couple of teens put in his sandwich. His biggest problem may be that he didn’t even take a bite” [Turkewitz]
- Montana Supreme Court: hunter can’t blame state for being attacked by bear [On Point]
- Don’t: provide your criminal client with means to escape [Fulton County Daily Report]; alter documents responsive to discovery requests [The Recorder]; hide evidence in multi-billion dollar insurance litigation [NY Sun via Lattman]; or videotape your fellow lawyers changing clothes [ATL].
- Reason #473 why I live in Virginia instead of DC: DC police catch two in middle of attempted burglary, just after being released from prison, decide to let them go because they can’t figure out what to charge them with. Good thing residents aren’t allowed to own guns to defend themselves, right? [PTN]