Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2008

Martin Luther King Day… and preemption?

If you’re looking for the most strained use of Martin Luther King, Jr., as a metaphor, look no further than a non sequitur at Bizarro-Overlawyered, where Kia Franklin calls on King’s memory as an argument against preemption. The historically minded will note the irony of invoking King’s name in a defense of states’ rights to subvert federal principles of uniform treatment. For more on preemption, see Greve and Epstein, POL March 2006, and POL on last week’s cert grants in preemption cases.

We’ll talk about King, too, but relate it to something he actually said: “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” See posts Jan. 2007 and Dec. 2006, Heriot @ POL, Jan. 2006, and POL on the Akaka bill. As Chief Justice Roberts noted (and was criticized for noting) in the last term, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

(And update: don’t forget October 2006 on school discipline. Or October 2005 on why the great documentary “Eyes on the Prize” still isn’t available on DVD to the general public.)

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NY Times on Scruggs, again

Yesterday’s extensive New York Times piece by Nelson D. Schwartz, the lead story in the paper’s Sunday business section, once again (see Dec. 9) provides strong overall perspective on the scandal, along with tidbits that will be new to all but the most obsessed (or most locally knowledgeable) followers of the affair. It focuses in particular on ever-more-central scandal figure P.L. Blake, sometimes known as the $50 million man, of whom we learn:

In interviews, other Mississippi political figures suggest that Mr. Blake has played a key role for Mr. Scruggs over the years. “P. L. essentially has done all the back-room negotiating for Dickie, but you’ll never see his tracks,” says Pete Johnson, a former state auditor who is now co-chairman of the Delta Regional Authority, a federal agency with headquarters in Clarksdale, Miss. …“He was the nexus of his political network.”

Incidentally, and presumably unrelatedly, former Times insurance-beat reporter Joseph Treaster, whose profiles of Scruggs in years past I’ve had occasion to blast as epically credulous, is departing the paper to teach journalism at the University of Miami, per Romenesko.

Anita Lee of the Biloxi Sun-Herald is also out with another good background piece, including the results of inquiries into a topic of widespread interest, namely the circumstances under which Judge Bobby DeLaughter’s name was not put forward for a federal judgeship even though (according to prosecutors) such a prospect had been dangled by conspirators hoping to improperly influence his rulings on a key Scruggs fee case:

Sen. Thad Cochran’s office told the Sun Herald that DeLaughter’s name was one of those mentioned for the appointment, but would not say which candidates Lott and Cochran privately discussed to recommend to President Bush. The office said Cochran wants to respect the privacy of candidates for the position. … Government evidence indicates DeLaughter e-mailed at least one order to Peters so he could pass it along for pre-approval from Scruggs’ attorneys.

Investigators are presumably taking an interest in confirming the account of Sen. Lott, who is Scruggs’s brother-in-law, that he raised DeLaughter’s name only as a brief and passing “courtesy” as opposed to making a serious effort on the candidate’s behalf (more). And a commenter at Folo points to a passage deep in the now-fabled Luckey transcript which is highly suggestive as to the possible ways in which a large share of P.L. Blake’s millions in tobacco fees might not have remained for long in Mr. Blake’s possession (more).

Earlier coverage can be found on our scandals page.

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Catholic hospital won’t perform transgender-related surgery

In order to enhance diversity, it was necessary to suppress it dept.: “She feels as if she’s been treated as if she has no rights,” said the attorney for m-to-f transgender San Francisco resident Charlene Hastings, who’s suing Daughters of Charity/Seton in Daly City alleging harassment and discrimination because it’s not among the many Bay Area hospitals that would be happy to assist in Hastings’s breast augmentation procedure. (Melissa Underwood, “Transgender Woman Sues Catholic Hospital for Refusing Breast Augmentation Surgery”, FoxNews.com, Jan. 18; Barbara Feder Ostrov, “Transgender woman sues Seton hospital”, San Mateo County Times/InsideBayArea.com, Jan. 6). [Title edited after commenter pointed out inaccuracy]

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UK: “Pantomime gun must be registered”

In Great Britain, the Health and Safety Executive (HSE) has required the Carnon Downs drama group in Cornwall to undertake to keep plastic and wooden swords and cutlasses locked up when not in use on stage in a traditional pantomime. The group was also obliged to register an imitation gun which ejects a flag with the word BANG. (BBC, Jan. 18). Earlier on holiday pantomime regulation: Dec. 13, 2007 (no throwing candy to audience), Sept. 14, 2004 (cultural sensitivity in portrayals of characters).

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Hit by stray golf ball on course

Crystal Timpanaro was sitting in a golf cart near the 16th tee at Owl’s Creek Golf Course in Virginia Beach watching her boyfriend play when a golfer at the 17th hole shanked a drive that hit her, per her lawsuit, which claims inadequate warning and misdesign of the course. (Deirdre Fernandes, “Woman struck by golf ball files suit, alleging design flaw in Beach course”, Virginian-Pilot, Jan. 5).

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Implausible defense department

LA Times:

In a deposition, [Dov Charney, founder and chief executive of casual fashion giant American Apparel] said that during the time of Nelson’s employment he “frequently had been in my underpants . . . because I was designing an underwear line.”

“I’m very proud of the underwear,” he added.

In an interview, he also defended appearing in front of Nelson with just his genitals covered. “The demonstration of the” garment, Charney said, “was a product we were considering — and I was in fit condition for it.” He ultimately decided against putting it in the American Apparel line. “It wasn’t classy,” he said.

(A local designer “burst into laughter” when hearing Charney’s explanation from a reporter; per the New York Post, the garment that the LA Times is too prim to mention is a “sock on his privates”; per Dateline NBC, it appears to have a rhyming name.) Mary Nelson’s suit against Charney is docketed in Los Angeles Superior Court; he denies creating a hostile work environment or propositioning Nelson and claims Nelson was fired for poor performance (which Nelson, in turn, denies). This is the fourth sexual harassment suit against Charney, who won one and settled two. (Carla Hall, “Lawsuit has fashion mogul in spotlight”, Los Angeles Times, Jan. 17; Dateline NBC (via ABA Journal)).

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January 18 roundup

  • Protection of ugly garage views? Garrison Keillor vs. neighbors in St. Paul, Minn. [NYTimes]

  • If you’re a lawyer who practices before the south Florida bench, it’s not a recommended career move to use a blog to call one of its judges an “evil, unfair witch” [WSJ Law Blog]

  • Nonprofit sleep-off center that takes in drunks sued after rescuing man who then succeeds in laying his hands on more liquor and drinking himself to death [Anchorage Daily News]

  • New Starbucks offering of “skinny” drinks “could easily be considered a form of size discrimination” and lead to litigation, complains ticked-off barista [StarbucksGossip]

  • Appearance of impartiality? West Virginia high court judge cavorted on Riviera with coal exec whose big case was pending before his court [Liptak/NYT] Update: Now recused, per WV Record.

  • Retired drug enforcement officers sue Universal Studios, saying they were defamed as a group by “American Gangster” [MSNBC]

  • Not much likelihood of confusion: shirtmaker Lacoste can’t keep two dentists in Cheltenham, England from using toothy crocodile as logo for their practice [Reuters]

  • People seized randomly off street for compulsory jury duty in St. Johnsbury, Vt. and Greeley, Colo. [AP/Findlaw via KipEsquire, Greeley Tribune]

  • Federal judge orders attorney Robert Arledge of Vicksburg, Miss. to pay $5.8 million in restitution after conviction for organizing bogus fen-phen claims [Clarion-Ledger; earlier]

  • Canada: abuser of crystal meth successfully sues her drug dealer [BBC]

  • Animal rights group tries to shut down “happy cows” ad campaign [three years ago on Overlawyered]

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“Bush Exempts Navy from Environmental Law” II

Earlier:

After years of wrangling in the Ninth Circuit and lower courts over environmentalist efforts to block Navy anti-sub sonar exercises on the grounds that they disturb marine mammals, the issue may be resolved by a Presidential assertion of national security interest.

A commenter asked why Bush had the authority to do this. President Bush’s order is on-line. The claimed authority is based on 16 U.S.C. § 1456(c)(1)(B), which reads in relevant part:

After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with [the Coastal Zone Management Act], and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States.

The claim by the NRDC that the president’s action is “an attack on the rule of law” and “flouting the will of Congress” is thus invalid: Congress explicitly reserved to the president the power to override a court decision finding a federal agency in violation of the Coastal Zone Management Act by exempting the agency from its requirements. The case has been remanded to district court, but whether it is sound policy to value military convenience over whales is now a political question that will now be resolved by Congress and the President, with nothing more for the court to decide, as the court does not have the authority to second-guess the president’s decision whether something is in the “paramount interest of the United States.”

(Separately, the Navy complied with the National Environmental Protection Act when the Council for Environmental Quality issued a letter (151-page PDF, but pages 3-4 are the relevant ones for the lay curious) under 40 C.F.R. § 1506.11; this will likely get litigated by NRDC, as who better to determine the military needs of the United States than a private litigant and a federal judge?)

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